Full Press Release Details
Procaps - Loan Agreement
Diabetrics Healthcare S.A.S.
Procaps, S.A. de C.V.
Banco Davivienda S.A.
| ARTICLE I. DEFINED TERMS And Rules Of Interpretation | 2 | ||
| Section 1.01 | Defined Terms And Rules Of Interpretation | 2 | |
| ARTICLE II. OBJECT AND PURPOSE | 3 | ||
| Section 2.01 | Loan | 3 | |
| Section 2.02 | General Rules For Disbursements | 3 | |
| Section 2.03 | Use Of Proceeds | 6 | |
| Section 2.04 | Amortization | 7 | |
| Section 2.05 | Voluntary Prepayments | 7 | |
| Section 2.06 | Mandatory Prepayments | 8 | |
| Section 2.07 | Interests | 10 | |
| Section 2.08 | Interests Rate Adjustment | 10 | |
| Section 2.09 | Default Interest | 11 | |
| Section 2.10 | Payment Provisions | 11 | |
| Section 2.11 | Fees | 12 | |
| Section 2.12 | Allocation Of Payments | 12 | |
| Section 2.13 | Performance Protection; Change In Applicable Law | 13 | |
| Section 2.14 | Taxes And Expenses | 14 | |
| Section 2.15 | Mitigation Obligations | 14 | |
| Section 2.16 | Temporary Suspension And Cancellation Of Commitments | 15 | |
| Section 2.17 | Allocation Of Excess Payment Among Lenders | 15 | |
| Section 2.18 | Nature Of Lender's Obligations | 16 | |
| ARTICLE III. REPRESENTATIONS & WARRANTIES | 16 | ||
| Section 3.01 | Representations & Warranties Of The Joint Obligors | 16 | |
| ARTICLE IV. CONDITIONS PRECEDENT | 24 | ||
| Section 4.01 | Conditions Precedent To Disbursement | 24 | |
| ARTICLE V. COVENANTS OF THE JOINT OBLIGORS | 27 | ||
| Section 5.01 | Affirmative Covenants of the Joint Obligors | 27 | |
| Section 5.02 | Negative Covenants of the Joint Obligors | 37 | |
| ARTICLE VI. DEFAULT AND EVENTS OF DEFAULt | 43 | ||
| Section 6.01 | Events Of Default | 43 | |
| Section 6.02 | Remedies On Default | 47 |
| ARTICLE VII. GUARANTY | 47 | ||
| Section 7.01 | Unconditional Guaranty | 47 | |
| Section 7.02 | Absolute Obligations | 48 | |
| Section 7.03 | Waiver | 49 | |
| Section 7.04 | Unimpaired Obligations | 49 | |
| Section 7.05 | Subrogation And Subordination | 50 | |
| Section 7.06 | Reinstatement Of Guaranty | 50 | |
| Section 7.07 | Guaranty Conditions | 50 | |
| Section 7.08 | Information Regarding The Guaranty | 51 | |
| ARTICLE VIII. MISCELLANEOUS | 51 | ||
| Section 8.01 | Expenses, Etc | 51 | |
| Section 8.02 | Certain Taxes | 51 | |
| Section 8.03 | Waiver Of Consequential Damages | 51 | |
| Section 8.04 | Survival | 52 | |
| Section 8.05 | Authorizations And Majorities | 52 | |
| Section 8.06 | Accounting Terms | 53 | |
| Section 8.07 | Modifications | 53 | |
| Section 8.08 | Assignments; Transfers; Participations | 53 | |
| Section 8.09 | Act of God And Force Majeure | 54 | |
| Section 8.10 | Waivers | 54 | |
| Section 8.11 | Indemnity | 54 | |
| Section 8.12 | Confidentiality | 55 | |
| Section 8.13 | Loan Reports | 56 | |
| Section 8.14 | Addresses. Notices | 56 | |
| Section 8.15 | Severability | 57 | |
| Section 8.16 | Entire Agreement | 57 | |
| Section 8.17 | Schedules; Headings; Clause Headings | 57 | |
| Section 8.18 | Enforceable Title | 57 | |
| Section 8.19 | Governing Law And Jurisdiction | 57 | |
| Section 8.20 | Term | 57 |
| Schedule 1 | Defined Terms |
| Schedule A | Procaps Incorporation Documents |
| Schedule B | Parent Guarantor Incorporation Documents |
| Schedule C | C.I. Procaps Incorporation Documents |
| Schedule D | Diabetrics Incorporation Documents |
| Schedule E | Funtrition Incorporation Documents |
| Schedule F | Procaps (El Salvador) Incorporation Documents |
| Schedule (i) | Indebtedness to be Refinanced |
| Schedule 2.01 | Commitments |
| Schedule 2.02(i) | Disbursement Request |
| Schedule 2.02(i)(1) | Active Operation Schedule |
| Schedule 2.02(iv)(a)(1) | Colombian Promissory Notes |
| Schedule 2.02(iv)(a)(2) | El Salvador Promissory Notes |
| Schedule 2.02(vi)(a) | Novation Agreement |
| Schedule 2.04(i) | Amortization Schedule |
| Schedule 3.01(iv)(a) | Subsidiaries |
| Schedule 3.01(v) | Financial Statements |
| Schedule 3.01(ix)(a) | Disclosed Litigations |
| Schedule 3.01(xiv) | Existing Indebtedness |
| Schedule 3.01(xiv)(a) | Waivers and Defaults |
| Schedule 3.01(xvi)(a) | Environmental Claims |
| Schedule 5.01(xi)(a) | Joinder Agreement |
| Schedule 5.02(v)(a) | Existing Liens |
| Schedule 5.02(v)(b) | Material Property |
| Schedule 8.08(iii) | Form of Conditional Assignment Agreement |
S.A., a sociedad an nima, incorporated and existing under the laws of Colombia, with its principal place of business
in the city of Barranquilla, Colombia, identified with NIT 890.106.527-5, represented by the person signing this Agreement in its behalf,
who acts with sufficient powers and authority to enter into this Agreement, as evidenced by the certificate of existence and legal representation
issued by the Chamber of Commerce of Barranquilla (C mara de Comercio de Baranquilla) and the corporate authorizations attached
as Schedule A to this Agreement (the "Borrower");
Group, S.A. a soci t anonyme, incorporated and existing under the laws of the Grand Duchy of Luxembourg, having
its registered office 9 rue de Bitbourg, L-1273 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies
Register under number B 253360, represented by the person signing this Agreement in its behalf, who acts with sufficient powers and authority
to enter into this Agreement, as evidenced by the corporate authorizations attached as Schedule B to this Agreement (the "Parent
Procaps S.A. a sociedad an nima, incorporated and existing under the laws of Colombia, with its principal place of business
in the city of Barranquilla, Colombia, identified with NIT 802.009.120 - 6, represented by the person signing this Agreement in
its behalf, who acts with sufficient powers and authority to enter into this Agreement, as evidenced by the certificate of existence and
legal representation issued by the Chamber of Commerce of Barranquilla (C mara de Comercio de Baranquilla) and the corporate
authorizations attached as Schedule C to this Agreement ("C.I. Procaps");
Healthcare S.A.S. a sociedad por acciones simplificada, incorporated and existing under the laws of Colombia, with its principal
place of business in the city of Barranquilla, Colombia, identified with NIT 900.372.416 - 0, represented by the person signing
this Agreement in its behalf, who acts with sufficient powers and authority to enter into this Agreement, as evidenced by the certificate
of existence and legal representation issued by the Chamber of Commerce of Barranquilla (C mara de Comercio de Baranquilla)
and the corporate authorizations attached as Schedule D to this Agreement ("Diabetrics");
S.A.S. a sociedad por acciones simplificada, incorporated and existing under the laws of Colombia, with its principal place
of business in the city of Barranquilla, Colombia, identified with NIT 901.415.267-1, represented by the person signing this Agreement
in its behalf, who acts with sufficient powers and authority to enter into this Agreement, as evidenced by the certificate of existence
and legal representation issued by the Chamber of Commerce of Bogot (C mara de Comercio de Bogot ) and the
corporate authorizations attached as Schedule E to this Agreement ("Funtrition");
S.A. de C.V. a sociedad an nima de capital variable, incorporated and existing under the laws of El Salvador, identified
with tax identification number 0614-280878 - 003 - 7, represented by the person signing this Agreement in its behalf, who
acts with sufficient powers and authority to enter into this Agreement, as evidenced by the corporate authorizations attached as Schedule
F to this Agreement ("Procaps (El Salvador)"and, jointly with C.I. Procaps, Diabetrics, and Funtrition, the "Original
Subsidiary Guarantors");
S.A., a financial establishment, incorporated and existing under the laws of Colombia, represented by the person signing this Agreement
in its behalf, who acts with sufficient powers and authority to enter into this Agreement ("Bancolombia"); and
Davivienda S.A., a financial establishment, incorporated and existing under the laws of Colombia, represented by the person signing
this Agreement in its behalf, who acts with sufficient powers and authority to enter into this Agreement ("Davivienda"
and, jointly with Bancolombia, the "Lenders" and, jointly with the Joint Obligors (as defined below), the "Parties").
The Parties, acting in the capacity described
above, have agreed to enter into this loan agreement (the "Agreement"), subject to the following:
Joint Obligors have certain obligations as of the Execution Date including (without duplication): (a) the Syndicated Existing Credit Facility;
(b) those listed on Schedule (i) - Indebtedness to be Refinanced (together with the Syndicated Existing Credit Facility, the "Indebtedness
to be Refinanced"); and (c) the Notes;
order to extinguish the Indebtedness to be Refinanced, the Joint Obligors requested the Lenders to grant the Loan in favor of the Borrower;
the corresponding credit analysis and authorizations, the Lenders have resolved to grant the Loan under the terms and conditions set forth
in this Agreement; and
Joint Obligors have agreed to assume their obligations as joint obligors under this Agreement.
NOW THEREFORE, pursuant
to the foregoing considerations, the Parties have resolved to enter into this Agreement, in order to establish the terms and conditions
of the Loan, which shall be governed by the following clauses:
DEFINED TERMS and Rules of Interpretation
Section 1.01 Defined Terms
and Rules of Interpretation
For purposes of this Agreement,
capitalized terms shall have, both in the singular and plural, the meanings set forth in Section (A) of Schedule 1 - Defined
Terms of this Agreement. In addition to the rules of interpretation provided under Applicable Law, this Agreement shall be interpreted
in accordance with the rules of interpretation set forth in Section (B) of Schedule 1 - Defined Terms of this Agreement.
the purpose of this Agreement and subject to the terms and conditions set forth herein, the Lenders agree to grant to the Borrower, jointly
and severally, during the Availability Period, a loan in the amount of up to COP$247.817.751.759,49 (the "Loan"), that
shall be granted by the Lenders in accordance with their respective Commitments.
Loan does not include interests, commissions, expenses or any other amount, other than the principal amount of the Loan, to be paid by
the Joint Obligors and stipulated in this Agreement. The Loan is granted as a non-revolving credit, therefore the amounts disbursed and
paid by the Joint Obligors under this Agreement may not be re-disbursed again.
Commitment of each of the Lenders to grant the Loan under this Agreement shall terminate on the earlier of the expiration of the Availability
Period or the cancellation of their Commitments pursuant to Section 2.15 hereof, without any liability for the Lenders.
Section 2.02 General Rules
The obligation to make the Disbursement
by the Lenders shall be subject to the following rules:
(i) Disbursement Request.
of Disbursement Request. The Disbursement Request shall be irrevocable whereby the Borrower hereby instructs the Lenders to consider
as not written, any instruction that is received for any reason by the Borrower or its Responsible Officers (a) subsequent to the submission
of the Disbursement Request; and (b) that is contrary to or discrepant with such Disbursement Request.
of the Disbursement Request. The Lenders must receive the Disbursement Request no later than 11:00 a.m. (Colombia time) (a) at least
5 Business Days prior to the expiration of the Availability Period; and (b) at least 5 Business Days prior to the Requested Disbursement
Date. The Disbursement Request shall be delivered together with all documents and certificates necessary to evidence compliance with all
conditions precedent set forth in Section 4.01 of this Agreement.
(iv) Delivery of Promissory Notes.
(v) Replacement of Promissory Notes.
(vi) Surrender of Promissory Notes.
of Compliance with Conditions Precedent for Disbursements. Upon receipt of the Disbursement Request by the Lenders, the Lenders shall
verify compliance of the conditions precedent set forth in Section 4.01 of this Agreement within one Business Day following the date of
notification of the respective Disbursement Request and up to 2 Business Days immediately preceding the Requested Disbursement Date. If
any Lender determines that the conditions precedent set forth in Section 4.01 have not been met, it shall so inform the Borrower and the
other Lender no later than the Business Day prior to the Requested Disbursement Date. In this event, the Borrower shall submit (a) new
documents evidencing compliance with the conditions precedent that are deemed not to have been met; (b) a new Disbursement Request substantially
in the form of Exhibit 2.02(i) - Disbursement Request, in accordance with the provisions of Section 2.02(iii) of this Agreement;
and (c) a new Bancolombia active operation schedule. If the Lenders determine that the conditions precedent are satisfied or if none of
the Lenders express to the Borrower any disagreement with respect to the satisfaction of such conditions precedent within the Business
Day immediately preceding the Requested Disbursement Date, the conditions precedent shall be deemed to have been duly satisfied and each
of the Lenders shall make the Disbursement in accordance with the terms set forth in the corresponding Disbursement Request and in proportion
to the total Disbursement that corresponds to each of the Lenders in accordance with their Commitments.
(viii) Disbursement of Funds.
Section 2.03 Use of Proceeds.
The proceeds of the Loan disbursed
shall be used exclusively for the prepayment and novation of the Indebtedness to be Refinanced, as detailed in Schedule (i) - Indebtedness
Section 2.04 Amortization.
Joint Obligors undertake to pay to the Lenders the outstanding balance of the Loan effectively disbursed, as from the expiration of the