CCR 1025 01L The Loan Agreement No. CCR 1025 01L is approved, which will finance the "Budget Support Program Based on Policies to Implement the Sustainable and Inclusive Trajectory of Costa Rica", signed between the Republic of Costa Rica and the French Development Agency (AFD) for an amount up to €150,000,000 (one hundred fifty million euros) or its equivalent in dollars.
The text of the aforementioned loan agreement and its annexes, which are attached below, form an integral part of this law.
AFD AGREEMENT No. CCR 1025 01 L ____________________________________________________________________________ CREDIT AGREEMENT dated October 14, 2021 between THE FRENCH DEVELOPMENT AGENCY The Lender AND THE REPUBLIC OF COSTA RICA The Borrower TABLE OF CONTENTS 1. DEFINITIONS AND INTERPRETATION ........................................................................ 7 1.1 Definitions ................................................................................... ............................. 7 1.2 Interpretation.................................................................................. ........................... 7 2. CREDIT, ALLOCATION AND CONDITIONS OF USE ............................................... 7 2.1 Credit ........................................................................................ ................................ 7 2.2 Allocation ..................................................................................... ............................. 7 2.3 Absence of liability ..................................................................................... 7 2.4 Conditions precedent ............................................................................................ 7 3. DISBURSEMENT MODALITIES ............................................................................ 8 3.1 Amount of Disbursements ......................................................................................... 8 3.2 Disbursement Request ............................................................................................ 8 3.3 Execution of the Disbursement ...................................................................................... 8 3.4 Credit Disbursement Modalities ................................................................................. 9 4. INTEREST ....................................................................................... ................................. 9 4.1 Interest Rate ................................................................................ ............................ 9 4.2 Calculation and payment of interest ................................................................................ 11 4.3 Default and late payment interest .............................................................................. 11 4.4 Communication of Interest Rates ................................................................... 12 4.5 Annual Percentage Rate (Taux Effectif Global) ......................................................... 12 5. CHANGE IN INTEREST RATE CALCULATION ........................................... 12 5.1 Market Disruption ...................................................................................... 12 5.2 Substitute Rate .................................................................................................... 13 6. FEES ...................................................................................... ............................ 14 6.1 Commitment fee ........................................................................................ 14 6.2 Appraisal fee ........................................................................................... 15 7. REPAYMENT ....................................................................................... ........................... 15 8. EARLY REPAYMENTS AND CANCELLATION ...................................................... 15 8.1 Voluntary early repayments .................................................................... 15 8.2 Mandatory early repayments ................................................................... 16 8.3 Cancellation by the Borrower ....................................................................... 16 8.4 Cancellation by the Lender...................................................................... 16 8.5 Limitations ................................................................................... .......................... 17 9. ADDITIONAL PAYMENT OBLIGATIONS ............................................................. 17 9.1 Costs and expenses ................................................................................ .......................... 17 9.2 Cancellation indemnity ................................................................................. 17 9.3 Indemnities consequential to early repayment ....................................... 18 9.4 Taxes and obligations ......................................................................................... 18 9.5 Additional Expenses ................................................................................................... 18 9.6 Indemnity consequential to a conversion operation ....................................... 19 9.7 Acceleration date ............................................................................................... 19 10. REPRESENTATIONS AND WARRANTIES ........................................................................ 19 10.1 Power and authority .................................................................................................... 19 10.2 Validity and admissibility as evidence .................................................................... 20 10.3 Binding force .................................................................................................... 20 10.4 Registration and stamp duties. ............................................................ 20 10.5 Transfer of funds .......................................................................................... 20 10.6 Absence of conflict with other obligations ................................................ 20 10.7 Applicable law; exequatur ................................................................................. 20 10.8 Absence of Acceleration Event. ...................................................... 21 10.9 Absence of misleading information ...................................................................... 21 10.10 Pari Passu ................................................................................... .......................... 21 10.11 Lawful origin of funds, Act of Corruption, Fraud, Anti-Competitive Practices ................................................................................... ................................ 21 10.12 Absence of Material Adverse Effect ................................................. 21 10.13 Sovereign immunity ........................................................................................... 21 11. UNDERTAKINGS .................................................................................... ..................... 21 11.1 Compliance with laws, regulations and obligations ............................................. 22 11.2 Authorizations ................................................................................ .......................... 22 11.3 Implementation and Protection of the Program ......................................................... 22 11.4 Environmental and social responsibility ........................................................................ 22 11.5 Additional financing ............................................................................................. 22 11.6 Pari Passu .................................................................................... ............................. 22 11.7 Inspections .................................................................................. ............................ 22 11.8 Program Evaluation ........................................................................................ 23 11.9 Program Implementation ............................................................................... 23 11.10 Lawful origin, absence of an Act of Corruption, Fraud, Anti-Competitive Practices ................................................................................... ................................ 23 11.11 Additional undertakings ................................................................................... 24 12. INFORMATION UNDERTAKINGS ................................................................... 24 12.1 Financial information ............................................................................................ 24 12.2 Program Implementation ............................................................................... 24 12.3 Monitoring report ........................................................................................... 24 12.4 Additional information .............................................................................................. 24 13. EVENTS OF DEFAULT ........................................................................ 25 13.1 Events of Default ..................................................................................... 25 13.2 Acceleration ........................................................................................... 26 13.3 Notification of an Event of Default ...................................................... 27 14. CREDIT MANAGEMENT ......................................................................................... 27 14.1 Payments ......................................................................................... ................................ 27 14.2 Set-off .................................................................................. ........................ 27 14.3 Business Days .................................................................................. ............................ 28 14.4 Payment currency ................................................................................ ....................... 28 14.5 Calculation of days ............................................................................... .......................... 28 14.6 Place of performance and payments .................................................................................. 28 14.7 Payment system disruption ..................................................................... 29 15. MISCELLANEOUS ......................................................................................... ............................... 29 15.1 Language ........................................................................................ ............................... 29 15.2 Certificates and calculations ............................................................................................. 29 15.3 Partial invalidity ............................................................................... .......................... 29 15.4 Absence of Waiver .............................................................................................. 30 15.5 Assignments ...................................................................................... .............................. 30 15.6 Legal value ................................................................................ ........................... 30 15.7 Entire agreement .................................................................................................... 30 15.8 Amendments ..................................................................................... ........................... 30 15.9 Confidentiality - Information Disclosure ................................................... 30 15.10 Limitation period .......................................................................................... 31 16. NOTICES .................................................................................................... 31 16.1 Written communications and addressees ................................................................ 31 16.2 Receipt ..................................................................................... ............................. 32 16.3 Electronic Communication ...................................................................................... 32 17. GOVERNING LAW, JURISDICTION AND ELECTION OF DOMICILE .. 32 17.1 Governing law ............................................................................. ........................ 32 17.2 Arbitration ..................................................................................... .............................. 32 17.3 Election of domicile ............................................................................................... 33 18. DURATION ....................................................................................... ........................... 33 ANNEX 1A-DEFINITIONS ................................................................................................. 35
LETTER....................................52
LETTER.......................................53
LETTER .....................................54
FOR PUBLICATION BY THE LENDER AND THE FRENCH GOVERNMENT ON THEIR INTERNET PAGES ................................................... 70 CREDIT AGREEMENT BETWEEN THE UNDERSIGNED, NAMELY:
(1) THE REPUBLIC OF COSTA RICA, represented by Elian Villegas Valverde, in his capacity as Minister of Finance, who is duly authorized to sign this Agreement (hereinafter, "Costa Rica" or the "Borrower"); AND (2) THE FRENCH DEVELOPMENT AGENCY, a French public entity governed by French law, having its principal office at 5, Rue Roland Barthes, 75598 Paris Cedex 12, France, registered with the Paris Trade and Companies Registry under number 775 665 599, represented by Matthieu Robin, in his capacity as representative of the Agence Française de Développement in Costa Rica, and duly authorized to sign this Agreement, (hereinafter, the "AFD" or the "Lender"); (hereinafter, the Borrower and the Lender shall be referred to jointly as the "Parties" and individually as a "Party"); RECITALS:
(A) The Borrower intends to implement a program consisting of budget support based on policies to implement the sustainable and inclusive trajectory of Costa Rica (hereinafter, the "Program"), as further described in Annex 2 (Program Description).
(B) The Borrower requested the Lender to grant a credit to participate in the financing of the Program.
(C) By virtue of Resolution No. C20210421 of July 8, 2021, issued by the Board of Directors of the AFD, the Lender agreed to grant a Credit to the Borrower in accordance with the terms and conditions of this Agreement.
THE PARTIES HAVE AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION 1.1 Definitions Capitalized terms and expressions used in this Agreement (including those appearing in the foregoing recitals and in the Annexes) shall have the meaning ascribed to them in Annex 1A (Definitions), unless otherwise provided in this Agreement.
1.2 Interpretation The terms and expressions used in this Agreement shall be understood in accordance with the provisions of Annex 1B (Interpretation), except where otherwise indicated.
2. CREDIT, ALLOCATION AND CONDITIONS OF USE 2.1 Credit The Lender makes available to the Borrower, subject to the provisions of this Agreement, a Credit in a maximum total amount of one hundred fifty million Euros (€150,000,000) or its equivalent in U.S. dollars at the request of the Borrower in accordance with Article 14.6 (Place of performance and payments).
2.2 Allocation The Borrower shall use the entirety of the sum lent under the Credit exclusively to implement the Program, as indicated in Annex 2 (Program Description), in accordance with the Financing Plan described in Annex 3 (Financing Plan).
2.3 Absence of liability The Lender shall not be liable for the use of any amount lent that is not in compliance with the provisions of this Agreement.
2.4 Conditions precedent (a) The Borrower shall provide the Lender, no later than the Agreement Signing Date, all documents listed in Part I of Annex 4 (Conditions Precedent).
(b) The Borrower may not deliver a Disbursement Request to the Lender unless:
(i) For the first Disbursement, the Lender has received all the documents listed in Part II of Annex 4 (Conditions Precedent), and has confirmed to the Borrower that said documents are compliant with the requirements of the aforementioned Annex in form and substance; (ii) For any Disbursement, the Lender has received all the documents indicated in the Part III of Annex 4 (Conditions Precedent) and has notified the Borrower that said documents are satisfactory in form and substance; and (iii) on the date of the Disbursement Request and on the Disbursement Date, no Payment System Disruption event has occurred and the conditions established in this Agreement are met, in particular:
(1) no Event of Default is ongoing or could possibly occur; (2) the Disbursement Request is in accordance with the stipulations of Article 3.2 (Disbursement Request); and (3) each representation made by the Borrower under Article 10 (Representations and warranties) is accurate; 3. DISBURSEMENT MODALITIES 3.1 Amount of Disbursements The Credit shall be made available to the Borrower during the Availability Period, in two (2) Disbursements.
The proposed Disbursement amount shall be a minimum of fifty million Euros (€50,000,000) and a maximum of one hundred million Euros (€100,000,000), or its equivalent in U.S. dollars if the Borrower so requests in accordance with Article 14.6 (Place of performance and payments).
3.2 Disbursement Request Provided the conditions set forth in Article 2.4 (b)(ii) (Conditions precedent) are met, the Borrower may access the Credit by delivering to the Lender the duly completed Disbursement Request. Each Disbursement Request shall be delivered by the Borrower to the Director of the AFD Office at the address specified in Article 16.1 (Written communications and addressees). Each Disbursement Request is irrevocable and shall be considered as duly completed only if:
(a) it is substantially in the form of the model set out in Annex 5A (Model Disbursement Request Letter); (b) it is received by the Lender no later than fifteen (15) Business Days before the Disbursement Deadline; (c) the requested Disbursement Date is a Business Day falling within the Availability Period; (d) the Disbursement amount complies with Article 3.1 (Amount of Disbursements); and (e) all documents listed in Part III of Annex 4 (Conditions Precedent) to justify the requested Disbursement were attached to the Disbursement Request, comply with the requirements of the aforementioned Annex and the stipulations of Article 3.4 (Credit Disbursement Modalities), and are satisfactory in form and substance to the Lender.
3.3 Execution of the Disbursement In accordance with the stipulations of Article 14.7 (Payment system disruption), in the event each condition stipulated in Article 2.4 b) (Conditions precedent) of this Agreement is fulfilled, the Lender shall make available to the Borrower the requested Disbursement, no later than the Disbursement Date.
The Lender shall send to the Borrower, as soon as possible, a disbursement confirmation letter substantially in the form of the model appearing in Annex 5B (Model disbursement and rate confirmation letter).
3.4 Credit Disbursement Modalities The disbursed amounts shall be credited to the Borrower's account or to any other account whose details shall be duly communicated by the Borrower to the Lender.
4. INTEREST 4.1 Interest Rate 4.1.1 Choice of Interest Rate For each Disbursement, the Borrower may choose between a fixed Interest Rate or a variable Interest Rate, which shall apply to the amount set out in the corresponding Disbursement Request, indicating the Interest Rate Type selected, i.e., fixed or variable, on the Disbursement Request delivered to the Lender in the form set out in Annex 5C (Model Rate Conversion Request Letter), in accordance with the following conditions:
(i) Variable interest rate The Borrower may choose a variable interest rate, which shall be the annual percentage rate, and the sum of:
- six-month EURIBOR, or, as the case may be, the Reference Rate plus any Adjustment Margin, as determined in accordance with the provisions of Article 5 (Change in interest rate calculation) of the Agreement; and - the Margin.
Notwithstanding the foregoing, in the case of the first Disbursement, if the first Interest Period is less than one hundred thirty-five (135) days, the applicable EURIBOR shall be:
- one-month EURIBOR, or, if applicable, the Reference Rate plus any Adjustment Margin, as determined in accordance with the provisions of Article 5 (Change in interest rate calculation) of the Agreement, in the event the first Interest Period is less than sixty (60) days; or - three-month EURIBOR, or, where applicable, the Reference Rate plus any Adjustment Margin, as determined in accordance with the provisions of Article 5 (Change in interest rate calculation) of the Agreement, in the event the first Interest Period is between sixty (60) and one hundred thirty-five (135) days.
(ii) Fixed interest rate Provided the requested Disbursement amount is equal to or greater than three million Euros (€3,000,000), the Borrower may choose a Fixed Interest Rate for said Disbursement. The Fixed Interest Rate shall correspond to the Fixed Reference Rate increased or reduced due to any fluctuation in the Interest Rate from the Signing Date to the corresponding Rate Fixing Date.
The Borrower shall have the power to indicate a maximum fixed Interest Rate in the Disbursement Request letter. If the fixed Interest Rate calculated on the Rate Fixing Date exceeds the maximum fixed Interest Rate amount specified in the Disbursement Request, said Disbursement Request shall be cancelled and the disbursed amount specified in the cancelled Disbursement Request shall be credited to the Available Credit.
4.1.2 Minimum Interest Rate The Interest Rate determined in accordance with Article 4.1.1 (Choice of interest rate), regardless of the option chosen, shall not be less than zero point twenty-five percent (0.25%) per annum, notwithstanding any downward trend in interest rates.
4.1.3 Conversion of the variable Interest Rate to a fixed Interest Rate The variable Interest Rate applicable to one or more Disbursements shall be converted to a fixed Interest Rate in accordance with the conditions set out below:
(i) Rate conversion at the Borrower's request The Borrower may, at any time, request that the Lender convert the variable Interest Rate applicable to the Disbursement or several Disbursements to a fixed Interest Rate, provided the amount of said Disbursement (as applicable) is equal to or greater than three million Euros (€3,000,000).
To this end, the Borrower shall send the Lender a Rate Conversion Request in accordance with the model attached in Annex 5C (Model rate conversion request letter). The Borrower shall have the power to indicate a maximum amount for the fixed Interest Rate in the Rate Conversion Request. If the fixed Interest Rate calculated on the Rate Fixing Date exceeds the maximum amount for the fixed Interest Rate specified by the Borrower in the Rate Conversion Request, said Rate Conversion Request shall be automatically cancelled.
The fixed Interest Rate enters into effect two (2) Business Days after the Rate Fixing Date.
(ii) Rules applicable to Rate Conversion The fixed Interest Rate applicable to the Disbursement(s) in question shall be determined in accordance with the provisions of Article 4.1.1(ii) (Fixed interest rate) referenced above in paragraph (i) concerning the Rate Fixing Date.
The Lender shall send the Borrower, as soon as possible, a Rate Conversion Confirmation letter in the substantial form of the model appearing in Annex 5D (Model rate conversion confirmation letter).
Rate Conversion is final and is effected at no cost.
4.2 Calculation and payment of interest The Borrower shall pay the interest accrued on the Disbursement(s) on each Payment Date.
The amount of interest payable by the Borrower on a given Payment Date and for a given Interest Period shall equal the sum of the interest owed by the Borrower on the entire Outstanding Principal Amount of each Disbursement. For a specific Disbursement, the interest owed by the Borrower shall be calculated taking into account:
(i) the Outstanding Principal Amount owed by the Borrower on the Disbursement in question on the immediately preceding Payment Date or, in the case of the first interest period, on the corresponding Disbursement Date; (ii) the actual number of days elapsed during the Interest Period on the basis of three hundred sixty (360) days per year; and (iii) the applicable Interest Rate in accordance with the provisions of Article 4.1 (Interest rate).
4.3 Default and late payment interest (a) Default interest on all amounts due and unpaid (excluding interest) If the Borrower does not pay any amount owed to the Lender under this Agreement (whether a principal payment, early repayment indemnities, fees or ancillary expenses of any kind, excluding due and unpaid interest) on the Payment Date, this amount shall bear interest within the limits authorized by law, during the period from its acceleration date to its actual payment date (both before and after an arbitral award, if any) at the Interest Rate applicable to the current Interest Period (late payment interest) increased by three percent (3.0%) (default interest). No prior formal notice on the part of the Lender shall be required.
(b) Default interest on due and unpaid interest Interest due and not paid on its acceleration date shall bear interest, within the limit authorized by law, at the Interest Rate applicable to the current Interest Period (late payment interest), increased by three percent (3.0%) (default interest), to the extent that such interest has become due and is payable for at least one (1) year. No prior formal notice on the part of the Lender shall be required.
The Borrower shall pay interest due under this Article 4.3 (Default and late payment interest) immediately at the Lender's request or on each Payment Date following the due date of the outstanding payment.
(c) The receipt of any default interest payment or late-payment interest by the Lender in no way implies the granting of payment extensions to the Borrower, nor shall it operate as a waiver of any of the Lender’s rights under this Agreement.
4.4 Communication of Interest Rates The Lender shall notify the Borrower as soon as possible of each Interest Rate determined in accordance with this Agreement.
4.5 Global Effective Rate (Tasa Efectiva Global) In order to comply with articles L. 314-1, L.314-5 and R.314-1 et seq. of the French Consumer Code and L. 313-4 of the French Monetary and Financial Code, the Lender shall inform the Borrower, and the Borrower shall accept, the global effective rate (taux effectif global) applicable to the Loan, which may be evaluated at an annual rate of one point ninety-seven percent (1.97%) based on a three hundred and sixty-five (365) day year, for an Interest Period of six (6) months, and in accordance with the following conditions:
(a) the above rates are provided for informational purposes only; (b) the above rates shall be calculated on the following bases:
(i) disbursement of the entire Loan on the Signature Date; (ii) no Disbursement made available to the Borrower shall bear interest at a variable rate; and (iii) the fixed rate over the entire duration of the Loan shall be equal to one point eighty-nine percent (1.89%); (c) The aforementioned rates take into account the commissions and miscellaneous expenses payable by the Borrower under this Agreement, on the assumption that said commissions and miscellaneous expenses will remain fixed and will apply until the maturity of the term of this Agreement.
5. CHANGE IN THE CALCULATION OF THE INTEREST RATE 5.1 Market Disruption (a) In the event that a Market Disruption affects the eurozone interbank market, and it is impossible:
- i)For the fixed Interest Rate, to determine the fixed Interest Rate applicable to a Disbursement, or ii) For the variable Interest Rate, to determine the EURIBOR applicable for the relevant Interest Period, the Lender must notify the Borrower of such situation.
(b) When the event described in paragraph a) above occurs, the applicable Interest Rate, as the case may be, for the Disbursement or the Interest Period in question shall be the sum of:
(i) the Margin; and ii) the annual rate corresponding to the cost borne by the Lender to finance the corresponding Disbursements by any reasonable means it has selected. Said rate shall be notified to the Borrower as soon as possible and, in any event, before: 1) the first Payment Date for interest due under said Disbursement for the fixed Interest Rate or 2) the Payment Date for interest due under said Interest Period for the variable Interest Rate.
5.2 Monitoring Rate 5.2.1 Definitions "Designated Competent Body" refers to any central bank, regulator, supervisor, working group or committee sponsored, chaired or constituted at the request of any of them.
"Monitoring Rate Replacement Event" means any of the following events or series of events:
- a)when the definition, methodology, formula or means for determining the Monitoring Rate has changed significantly; b) when a law or regulation is enacted prohibiting the use of the Monitoring Rate, it being specified, for the avoidance of doubt, that the occurrence of such event shall not constitute a mandatory prepayment event; c) the administrator of the Monitoring Rate or its supervisor publicly announces:
- i)that it has ceased or will cease to provide the Monitoring Rate permanently or indefinitely and, at that time, no successor administrator has been publicly appointed to continue providing said Monitoring Rate; ii) that the Monitoring Rate has ceased or will cease to be published permanently or indefinitely; or iii) that the Monitoring Rate may no longer be used (either now or in the future); d) there is a public announcement of the bankruptcy of the administrator of said Monitoring Rate or any other insolvency proceedings against it and, at that time, no successor administrator has been publicly appointed to continue providing said Monitoring Rate; or e) in the Lender's judgment, the Monitoring Rate has ceased to be used in a series of comparable financial transactions.
"Monitoring Rate" means EURIBOR or, following the replacement of such rate by a Reference Rate, the Reference Rate.
"Monitoring Rate Replacement Date" means:
- with respect to the events mentioned in points a), d) and e) of the definition above of Monitoring Rate Replacement Event, it refers to the date on which the Lender becomes aware of the occurrence of such event, and - with respect to the events referred to in points b) and c) of the foregoing definition of Monitoring Rate Replacement Event, it refers to the date beyond which the use of the Monitoring Rate will be prohibited or the date on which the administrator of the Monitoring Rate ceases to provide said Rate permanently or indefinitely or the date beyond which the Monitoring Rate may no longer be used.
5.2.2 Each of the Parties acknowledges and agrees for the benefit of the other Party that if a Monitoring Rate Replacement Event occurs and in order to preserve the economic balance of the Agreement, the Lender may replace the Monitoring Rate with another rate (hereinafter the "Reference Rate") which may include an adjustment margin in order to avoid any transfer of economic value between the Parties (if any) (hereinafter, the "Adjustment Margin") and the Lender shall determine the date from which the Reference Rate and, if any, the Adjustment Margin shall replace the Monitoring Rate and any other amendment to the Agreement required as a result of the replacement of the Replacement Rate with the Reference Rate.
5.2.3 The determination of the Reference Rate and the necessary modifications shall be made in good faith and taking into account, i) the recommendations of any Designated Competent Body, or ii) the recommendations of the administrator of the Monitoring Rate, or iii) the industry solution recommended by professional banking sector associations or, iv) the market practice observed in a series of comparable financial transactions on the replacement date.
5.2.4 In the event of replacement of the Monitoring Rate, the Lender shall immediately notify the Borrower of the terms and conditions of replacement for substituting the Monitoring Rate with the Reference Rate, which shall be applicable to Interest Periods beginning at least two Business Days after the Monitoring Rate Replacement Date.
5.2.5 The provisions of Article 5.2 (Monitoring Rate) shall prevail over the provisions of Article 5.1 (Market Disruption).
6. COMMISSIONS 6.1 Commitment commission The Borrower shall pay to the Lender a commitment commission at a rate of zero point five percent (0.5%) per annum under the conditions set forth below.
The commitment commission shall be calculated based on the rate specified above, on the amount of the Available Loan prorated by the actual number of days elapsed, increased by the amount of any Disbursement made by the Lender in accordance with any pending Disbursement Request.
The first commitment commission shall be calculated for the period between i) the date falling twelve (12) months after the Signature Date (excluded), up to ii) the immediately following Payment Date (included). Subsequent commitment commissions shall be calculated for periods beginning on the day immediately following a Payment Date (included) and ending on the next payment date (included).
The commitment commission shall be payable (i) on each Payment Date within the Availability Period, (ii) on the Payment Date following the last day of the Disbursement Period and (iii) in the event the Available Loan is cancelled in its entirety, on the Payment Date following the effective date of such cancellation.
If applicable, the commitment commission accruing between i) the date falling twelve (12) months after the Signature Date (excluded) up to ii) the immediately following Payment Dates (included) before the Effective Date, shall be payable on the first Payment Date occurring after the Effective Date.
6.2 Appraisal commission No later than ten (10) Business Days from the Effective Date, the Borrower shall pay to the Lender an appraisal commission of zero point five percent (0.5%) calculated on the maximum amount of the Loan.
7. REPAYMENT Upon the expiry of the Grace Period, the Borrower shall repay to the Lender the principal of the Loan in thirty (30) semi-annual installments, due and payable on each Payment Date.
The first installment shall fall due and be payable on May 31, 2027 and the last installment shall fall due and be payable on November 30, 2041.
At the end of the Disbursement Period, the Lender shall provide the Borrower with a Loan amortization schedule, taking into account and, where applicable, any cancellations of the Loan pursuant to Article 8.3 (Cancellation by the Borrower) and/or 8.4 (Cancellation by the Lender).
8. PREPAYMENTS AND CANCELLATION 8.1 Voluntary prepayments No prepayment of all or part of the Loan may be made by the Borrower during a period of one hundred and twenty (120) months commencing from the Signature Date.
From the date mentioned in the preceding paragraph, the Borrower may prepay all or part of the Loan, under the following conditions:
(a) the Borrower must notify the Lender of its intention to prepay at least thirty (30) Business Days in advance, in writing and irrevocably, prior to the scheduled prepayment date; (b) the amount to be prepaid shall be equal to one or more principal installments; (c) the scheduled prepayment date shall be a Payment Date; (d) each prepayment shall be made together with the payment of accrued interest, commissions, indemnities and related costs in connection with the amount prepaid, as provided for in this Agreement; (e) there shall be no amount outstanding for payment; and (f) in the event of a partial prepayment, the Borrower must demonstrate, to the Lender's satisfaction, that it has sufficient funds to finance the Program, as determined by the Financing Plan.
The Borrower shall pay, on the Payment Date on which the prepayment is made, the full amount of the indemnities due pursuant to Article 9.3 (Indemnities consequential to prepayment).
8.2 Mandatory prepayments The Borrower shall immediately and fully repay all or part of any Disbursement after having been informed by the Lender of the occurrence of one of the following events:
(a) Illegality: that, in accordance with applicable law, the Lender cannot comply with any of the obligations provided for in this Agreement or cannot finance or maintain the Loan as they become illegal; (b) Additional costs: the amount of the additional costs mentioned in Article 9.5 (Additional Costs) is significant and the Borrower has refused to pay said additional costs; and (c) Default: the Lender declares an Event of Default of the Agreement in accordance with Article 13 (Events of Default).
In the cases mentioned in paragraphs (a), (b) and c) above, the Lender, by written notice to the Borrower, reserves the right to exercise its creditor rights stipulated in paragraph (b) of Article 13.2 (Acceleration).
8.3 Cancellation by the Borrower Before the Disbursement Deadline Date, the Borrower may cancel all or part of the Available Loan by sending a notification to the Lender at least three (3) Business Days in advance.
Upon receipt of such cancellation notification, the Lender shall cancel the amount notified by the Borrower, provided that the expenses, as specified in the Financing Plan, are covered in a manner satisfactory to the Lender, except in the event that the Borrower abandons the Program.
8.4 Cancellation by the Lender The Available Loan shall be immediately cancelled by sending a notification to the Borrower, effective immediately, if:
(a) The Available Loan is not equal to zero on the Disbursement Deadline Date; (b) the first Disbursement did not take place at the latest by the expiry date of a period of twenty-four (24) months commencing on the date of the decision to grant the Loan by the competent bodies of the Lender indicated in paragraph (C) of the Preamble; (c) An Event of Default has occurred that has not been remedied; or (d) an event mentioned in Article 8.2 (Mandatory prepayments) has occurred; Except in relation to the cases in paragraphs a) and b) of this Article 8.4 (Cancellation by the Lender), if the Lender has proposed to postpone the Disbursement Deadline Date of the funds or the Deadline Date for the first Disbursement on the basis of new financial conditions to be applied to any Disbursement under the Available Loan and the Borrower has accepted the proposal.
8.5 Limitations (a) Any prepayment or cancellation notice given by a Party in accordance with this Article 8 (Prepayments and cancellation) shall be irrevocable and, unless otherwise provided in this Agreement, any such notice shall specify the date or dates on which the corresponding prepayment or cancellation will be made and the amount of said prepayment or cancellation.
(b) The Borrower may not repay or cancel all or part of the Loan, except at the times and in the manner expressly provided for in this Agreement.
(c) Any prepayment under this Agreement shall be made together with the payment of i) interest accrued on the amount prepaid, ii) outstanding commissions and iii) the Prepayment Indemnity referred to in Article 9.3 (Indemnities consequential to prepayment).
(d) Prepaid amounts shall be applied to the last repayment maturities, starting with the most distant.
(e) The Borrower may not re-borrow all or part of the Loan that has been prepaid or cancelled.
9. ADDITIONAL PAYMENT OBLIGATIONS 9.1 Costs and expenses 9.1.1 The Borrower shall reimburse the Lender for all costs and expenses (including attorneys' fees) incurred in connection with the enforcement or preservation of any of its rights under this Agreement.
9.1.2 All costs and expenses related to the disbursement by the Lender of the Loan to the Borrower shall be borne by the Lender. All costs and expenses related to all payments made by the Borrower to the Lender shall be borne by the Borrower.
9.2 Cancellation indemnity In the event of cancellation of all or part of the Loan, in accordance with the stipulations of Articles 8.3 (Cancellation by the Borrower) and/or 8.4 (Cancellation by the Lender), paragraphs a), b) and c), the Borrower shall pay to the Lender a cancellation indemnity of two percent (2%) on the cancelled amount of the Loan.
In any case, the cancellation indemnity shall only be due if the cumulative cancelled amount exceeds 15% of the total amount of the Loan.
Each cancellation indemnity shall be payable on the Payment Date immediately following a cancellation of all or part of the Loan.
9.3 Indemnities consequential to prepayment In respect of the losses suffered by the Lender as a result of the prepayment of all or part of the Loan and in accordance with the stipulations of Articles 8.1 (Voluntary prepayments) and 8.2 (Mandatory prepayments), the Borrower shall be obliged to pay to the Lender an indemnity the amount of which shall be the sum of:
- the Prepayment Compensation Indemnity; and - any expense arising from the breach of any of the interest rate hedging operation(s) established by the Lender in connection with the amount prepaid.
9.4 Taxes and duties 9.4.1 Registration duties The Borrower shall pay directly or, where applicable, reimburse the Lender if the Lender has paid in advance, the stamp duties, registration duties and other similar taxes to which the Agreement and any amendments thereto would be subject.
9.4.2 Withholding Tax The Borrower undertakes to make all payments under the Agreement, free of any Withholding Tax.
If a Withholding Tax must be made by the Borrower, the amount of its payment under the Agreement must be increased to reach an amount equal, after deduction of the Withholding Tax, to that which would have been due if the payment had not been subject to Withholding Tax.
The Borrower undertakes to reimburse the Lender for all expenses and/or taxes payable by the Borrower, in the event that these have been paid by the Lender (if applicable), with the exception of Taxes due in France.
9.5 Additional Costs The Borrower shall pay to the Lender, within five (5) Business Days from the date of the Lender's request, all reasonable Additional Costs incurred by the Lender as a result of: i) the entry into force of any new law or regulation, or any amendment or change in the interpretation or application of any existing law or regulation; or ii) compliance with any law or regulation coming into force after the Signature Date.
In this Article, "Additional Costs" means:
(i) any cost resulting from the occurrence after the Signature Date of one of the events mentioned in the first paragraph of this Article, and which was not taken into account in the calculation of the financial conditions of the Loan; or (ii) any reduction of any amount due and payable under this Agreement; incurred by the Lender in i) making the Loan available to the Borrower or ii) entering into or fulfilling its obligations under this Agreement.
Following notification by the Lender, the Borrower and the Lender shall enter into a consultation period of ten (10) Business Days to evaluate the amount of the relevant Additional Costs and determine a decision regarding the payment of said costs that is suitable for both Parties. If so requested by the Borrower, the Lender shall provide the Borrower with the supporting documents for the Additional Costs subject to the Notification by the Lender.
9.6 Indemnity consequential to a currency exchange transaction If an amount due by the Borrower under this Agreement, or any order, judgment or award made or issued in relation to such amount, must be converted from the currency in which it is denominated into another currency for the purposes of:
(i) a claim or evidence against said Borrower; or (ii) obtaining or enforcing an order, judgment or award in the context of litigation or arbitration proceedings, The Borrower shall, within three (3) Business Days following the Lender's request and as permitted by law, pay to the Lender the amount of any expense, loss or liability arising from or as a result of the conversion, including any eventual difference between: (A) the exchange rate used between the currencies to convert the amount and (B) the exchange rate(s) that the Lender is able to use to convert the amount due at the time of its receipt. This indemnity obligation is independent of the other obligations of the Borrower under this Contract.
The Borrower waives any right it may have, in any jurisdiction, to pay any amount due under this Agreement in a currency or monetary unit other than that in which it is denominated.
9.7 Due date Any indemnity or reimbursement of the Lender by the Borrower under this Article 9 (Additional payment obligations) is payable on the Payment Date immediately following the triggering events to which the indemnity or reimbursement refers.
Notwithstanding the foregoing, indemnities relating to prepayment under Article 9.3 (Indemnities consequential to prepayment) shall be payable on the date on which the prepayment occurs.
10. REPRESENTATIONS AND WARRANTIES All representations and warranties set forth in this Article 10 (Representations and warranties) are made by the Borrower for the benefit of the Lender on the Effective Date. The Borrower is also deemed to make all representations and warranties of this Article 10 (Representations and warranties) on the date on which all the conditions listed in Part II of Annex 4 (Conditions precedent) are fulfilled, on the date of each Disbursement Request for funds, on each Disbursement Date for funds and on each Payment Date, except for the repetitive representations contained in Article 10.9 (Absence of erroneous information) which are deemed to be made by the Borrower with respect to information provided by it since the date on which the last representation was made.
10.1 Power and authority The Borrower has the capacity to sign and execute the Agreement and perform the obligations arising from it, carry out the activities corresponding to the Program and has completed all the formalities required for this purpose.
10.2 Validity and admissibility as evidence All Authorizations necessary so that:
(a) the Borrower may sign, legally exercise its rights and fulfill its obligations under this Agreement; and (b) this Agreement is admissible as evidence before the courts of the Borrower's jurisdiction or in the arbitration proceedings defined in Article 17 (Applicable law, jurisdiction and choice of domicile), have been obtained and are in force and there are no circumstances by which these Authorizations may be revoked, not renewed or modified in whole or in part.
10.3 Binding force The obligations incumbent upon the Borrower under this Agreement are in accordance with the applicable laws and regulations and jurisdiction of the Borrower's country and are legal, valid, binding and enforceable obligations in accordance with the written terms.
10.4 Registration and stamp duties.
Under the laws of the jurisdiction of incorporation of the Borrower, it is not necessary for this Agreement to be filed, registered or recorded with any court or other authority of that jurisdiction or for any stamp, registration, tax or similar duty to be paid on or in connection with this Agreement or the transactions contemplated therein.
10.5 Transfer of funds All sums due by the Borrower to the Lender under this Agreement, whether principal, interest, default interest, prepayment compensation indemnities, ancillary costs and others, are freely transferable and convertible.
This Authorization shall remain in effect until the total repayment of all sums owed to the Lender, without the need to establish a document confirming this in the event that the Lender has to extend the repayment dates of the sums lent.
The Borrower shall timely obtain the Euros necessary for compliance with this transfer authorization.
10.6 Absence of contradiction with other obligations The signing and performance by the Borrower of this Agreement, as well as the transactions contemplated therein, shall not be contrary to any national or foreign law or regulation applicable to it, to any of its constitutional documents (or any equivalent document) or any agreement or document binding the Borrower or encumbering any of its assets.
10.7 Applicable law; exequatur (a) The choice of French law as the law applicable to the Agreement shall be recognized by the jurisdictions and arbitral bodies of the Borrower.
(b) Any award or judgment in relation to the Agreement rendered by a French jurisdiction or by an arbitral body shall be recognized and have executory force in the Borrower's country.
10.8 Absence of Case for Acceleration.
There is no Event of Default that is ongoing or that is reasonably likely to occur.
No default by the Borrower likely to have a Material Adverse Effect is ongoing under any other document or agreement binding the Borrower or encumbering any of its assets.
10.9 Absence of erroneous information All information and documents provided by the Borrower to the Lender are accurate and current as of the date on which they were delivered, or where applicable, on the date to which they related and have not been amended, modified, cancelled, annulled or altered, nor are they likely to mislead the Lender on any significant point, by reason of an omission or the emergence of new facts or due to information communicated or not disclosed.
10.10 Pari Passu The payment obligations of the Borrower under this Agreement shall benefit from the same order of payment priority (pari passu) as the claims of all its other unsecured and unsubordinated creditors.
10.11 Lawful origin of funds, Act of Corruption, Fraud, Anti-Competitive Practices The Borrower represents and warrants that:
(i) all funds invested in the Program come entirely from the State budget; and (ii) the Program has not given rise to any Act of Corruption, Fraud or Anti-Competitive Practices 10.12 Absence of Material Adverse Effect The Borrower represents and warrants that no event likely to have a Material Adverse Effect has occurred nor is likely to occur.
10.13 Sovereign immunity The Borrower waives the immunity from jurisdiction and immunity from execution it may claim.
11. UNDERTAKINGS Notwithstanding the provisions of Article 18 (Duration), the obligations of this Article 11 (Undertakings) shall be binding on the Effective Date and shall remain fully in effect as long as any amount due under this Agreement remains outstanding.
11.1 Compliance with laws, regulations and obligations The Borrower undertakes to comply with:
(a) in all respects with all laws and regulations to which it and/or the Program is subject, in particular in relation to all applicable laws regarding procurement, environmental protection, safety and labor regime; and (b) with all its obligations under this Agreement.
11.2 Authorizations The Borrower undertakes to obtain, comply with, and will do everything necessary to maintain in force and effective any Authorization required under any applicable law or regulation enabling it to fulfill its obligations under this Agreement and guarantee its legality, validity, applicability and admissibility as evidence.
11.3 Implementation and Protection of the Program The Borrower undertakes to:
(i) implement the Program in accordance with generally accepted safety principles and in accordance with the technical standards in force; and (ii) maintain the assets of the Program in accordance with all applicable laws and regulations, in good operating and maintenance condition, and use said assets in accordance with their purpose and applicable laws and regulations.
11.4 Environmental and social responsibility 11.4.1 Implementation of environmental and social measures In order to promote sustainable development, the Parties agree that it is necessary to promote compliance with internationally recognized environmental and labor standards, including the fundamental conventions of the International Labour Organization ("ILO") and the international environmental laws and regulations applicable in the Borrower's jurisdiction.
11.5 Additional financing The Borrower shall not amend or modify the Financing Plan without the prior written consent of the Lender and shall finance any additional expense not provided for in the Financing Plan in a manner that guarantees the repayment of the Loan.
11.6 Pari Passu The Borrower undertakes to (i) ensure that its payment obligations under this Agreement shall at all times rank at least pari passu with its other present and future unsecured and unsubordinated payment obligations; (ii) not grant any prior ranking or security to any other lender, except where the Borrower grants the same ranking or security in favor of the Lender, should the Lender so request.
11.7 Inspections By this Agreement, the Borrower authorizes the Lender and its representatives to carry out annual inspections, the purpose of which shall be to evaluate the implementation of the Program in its technical, financial, and institutional aspects in accordance with the Program Documents.
The Borrower shall cooperate and provide all reasonable assistance and information to the Lender and its representatives during such inspections, the timing and format of which shall be determined by the Lender after consultation with the Borrower.
11.8 Program Evaluation The Borrower undertakes to cooperate, directly or through the Ministry of Finance (Ministerio de Hacienda), in the evaluation of the Program carried out by the Lender after its execution, in order to determine whether the Program objectives were met, and to provide the Lender with the information, data, and documents requested by it to carry out said evaluation.
This evaluation shall be used to prepare an implementation report that includes information on the Program, such as: the total amount and duration of the Credit, the Program objectives, the expected and actual results of the Program, and the evaluation of its relevance, efficiency, impacts, and viability/sustainability.
The Borrower shall agree to the publication of this implementation report, particularly on the Lender's website.
11.9 Program Implementation The Borrower undertakes to:
(i) ensure that the individuals, groups, or entities participating in the implementation of the Program do not appear on any of the Financial Sanctions Lists (specifically including those related to combating the financing of terrorism); and (ii) not finance materials or sectors under United Nations, European Union, or French Embargoes.
11.10 Lawful Origin, Absence of Acts of Corruption, Fraud, Anticompetitive Practices The Borrower undertakes to:
(i) ensure that funds, other than those of public origin, invested in the Program are not of Unlawful Origin; (ii) ensure that the Program does not give rise to Acts of Corruption, Fraud, or Anticompetitive Practices; (iii) inform the lender as soon as it becomes aware of or suspects any Act of Corruption, Fraud, or Anticompetitive Practices; (iv) in the case mentioned in paragraph (iii) above, or at the request of the Lender if the latter suspects that the acts or practices mentioned in paragraph (iii) have occurred, adopt all necessary measures to remedy the situation in a manner satisfactory to the Lender and within the timeframe determined by it; and (v) notify the Lender immediately if it becomes aware of any information leading it to suspect any Unlawful Origin of the funds used for the execution of the Program.
11.11 Additional Commitments The Borrower shall organize biannual executive meetings for the purpose of monitoring the implementation of the Program and the fulfillment of the objectives described in Annex 2 (Anexo 2).
12. INFORMATION UNDERTAKINGS Notwithstanding the provisions of Article 18 (Term), the undertakings in this Article 12 (Information Undertakings) shall take effect on the Effective Date and shall remain fully in effect as long as any amount owed under this Agreement remains outstanding.
12.1 Financial Information The Borrower shall provide the Lender with all information that the latter may reasonably request regarding the status of its domestic and external public debt, as well as the status of loans it has guaranteed.
12.2 Program Implementation The Borrower shall provide the Lender, immediately upon request, with any information or supporting documents relating to the implementation of the Program, in accordance with the Program Documents.
The Borrower shall have the support of MINAE for the technical coordination of the preparation, supervision, and monitoring of the Program. The various institutions responsible for implementing and executing the policy matrix commitments described in Annex 2 (Anexo 2) (Program Description) must provide MINAE with supporting documents and information related to the fulfillment of these commitments, or notify MINAE of any difficulty or obstacle to the execution of these commitments, providing sufficient time to allow appropriate measures to be taken.
12.3 Monitoring Report The Borrower shall provide the Lender with:
(a) Until the Program Completion Date, within one (1) month following the end of each semester, a monitoring report regarding the implementation of the Program during that semester in accordance with the Program Documents; (b) Within one (1) month following the Program Completion Date, a report summarizing the technical and budgetary execution of the Program, in accordance with the Program Documents.
12.4 Additional Information The Borrower shall provide the Lender with:
(a) immediately after becoming aware of them, details of any event or occurrence that constitutes or may constitute an Event of Default or that has or may have a Material Adverse Effect, the nature of such event, and all measures taken or to be taken to remedy it (if any); and (b) immediately, details of any decision or event that may affect the organization, implementation, or operation of the Program; 13. EVENTS OF DEFAULT 13.1 Events of Default Each of the events and circumstances mentioned in this Article 13.1 (Events of Default) constitutes an Event of Default.
(a) Payment Default If the Borrower, under the terms and conditions agreed under the Agreement, fails to pay any sum due on its due date; however, without prejudice to Article 4.3 (Default and Late Payment Interest), no Event of Default under this paragraph (a) shall occur if the Borrower makes such payment in full within five (5) Business Days following the due date.
(b) Undertakings and Obligations The Borrower fails to comply with any of the stipulations under the Agreement, particularly, and without limitation, any of its undertakings entered into under Article 11 (Undertakings) and Article 12 (Information Undertakings).
Except for the undertakings set forth in Articles 11.4 (Environmental and Social Responsibility), 11.9 (Program Implementation), and 11.10 (Lawful Origin, Absence of Acts of Corruption, Fraud, Anticompetitive Practices) for which no grace period is permitted, no Event of Default under this paragraph (b) shall be found if the default is capable of remedy and is remedied within five (5) Business Days from the earlier of the following dates: (A) the date of the communication sent by the Lender to the Borrower notifying the default; and (B) the date on which the Borrower became aware of said default, or within the period granted by the Lender for the cases cited in paragraph (iv) of Article 11.10 (Lawful Origin, Absence of Acts of Corruption, Fraud, Anticompetitive Practices).
(c) Inaccurate Representation Any declaration or statement made by the Borrower under the Agreement, and particularly under Article 10 (Representations and Warranties), or in any other document delivered by or on behalf of the Borrower under or in connection with the Agreement, is or proves to be inaccurate or erroneous at the time it was made or deemed made.
(d) Cross-Default (i) Subject to the provisions of paragraph (ii), any Financial Indebtedness of the Borrower is not paid on its due date or, as the case may be, within the grace period provided under the documentation relating thereto.
(ii) A creditor with whom the Borrower has incurred Financial Indebtedness terminates or suspends its commitment, declares early acceleration, or orders early repayment of such indebtedness as a result of an event of default or any provision having a similar effect (however described) in accordance with the relevant documentation.
(iii) No Event of Default under this Article 13.1(d) shall occur if the individual amount of the Financial Indebtedness or the commitment relating to Financial Indebtedness falling within the scope of paragraphs (i) and (ii) above is less than one hundred million Euros (EUR 100,000,000) (or its equivalent in any other currency(ies)).
(e) Illegality It is or becomes illegal for the Borrower to perform any of its obligations under this Agreement.
(f) Material Adverse Effect Any event (including a change in the political situation of the Borrower's country) or any measure that, in the Lender's opinion, may produce a Material Adverse Effect.
(g) Abandonment or Suspension of the Program Any of the following events occurs:
(i) the Borrower withdraws from the Program; or (ii) the implementation of the Program is suspended by the Borrower for a period exceeding six (6) months; (h) Authorizations Any Authorization required by the Borrower to perform or enforce its obligations under this Agreement or required in the ordinary course of the Program is not obtained in due time, is annulled, expires, or ceases to be in effect.
(i) Judgments, Awards, or Decisions with Material Adverse Effect Any judgment, arbitral award, or any judicial or administrative decision that occurs or could occur and that, in the Lender's opinion, has a Material Adverse Effect on the Borrower.
(j) Suspension of Free Convertibility and Free Transferability The free convertibility and free transferability of any sums owed by the Borrower under this Agreement, or any other Credit granted by the Lender to the Borrower or to any other borrower in the Borrower's jurisdiction, is challenged.
13.2 Acceleration At any time after an Event of Default has occurred, the Lender may, without the need to file a formal claim or initiate judicial or extrajudicial proceedings, notify the Borrower in writing:
(a) The cancellation of the Available Credit; and/or (b) declare immediately due and payable all or part of the Credit, increased by current or accrued interest, as well as all amounts due under the Agreement.
Notwithstanding the foregoing, should an Event of Default occur as set forth in Article 13.1 (Events of Default), the Lender reserves the right, by written notice to the Borrower, to (i) suspend or defer any Disbursement under the Credit and/or (ii) suspend the formalization of agreements relating to other potential financing offers that the Lender has notified to the Borrower and/or (iii) suspend or defer any disbursement under any other current financing agreement entered into between the Borrower and the Lender.
13.3 Notification of an Event of Default Pursuant to the terms of Article 12.4 (Additional Information), the Borrower undertakes to notify the Lender as soon as possible after becoming aware of any event constituting or likely to constitute an Event of Default and shall inform the Lender of all measures contemplated by the Borrower to remedy it.
14. CREDIT MANAGEMENT 14.1 Payments All payments received by the Lender under this Agreement shall be applied towards the payment of expenses, fees, interest, principal, or any other sum owed under this Agreement in the following order:
- 1)accessory costs and expenses; 2) fees; 3) default interest and late payment interest; 4) accrued interest; 5) principal repayments.
Payments made by the Borrower shall be allocated primarily to the sums due under the Credit or under other potential Credits granted by the Lender to the Borrower, according to the greatest interest of the Lender in having them repaid, and in the order set forth in the preceding paragraph.
14.2 Set-off Without the need for the Borrower's consent, the Lender may at any time proceed to set off between the sums owed and unpaid by the Borrower and the sums held by the Lender in any capacity on behalf of the Borrower or owed by the Lender to the Borrower that are due and payable. If such sums are in different currencies, the Lender may convert any of them at the market exchange rate for set-off purposes.
All payments to be made by the Borrower under the Agreement shall be calculated disregarding any potential set-off, which, indeed, the Borrower refrains from exercising.
14.3 Business Days Any payment falling due on a day that is not a Business Day shall be made on the following Business Day in the same calendar month or, failing a following Business Day in the same calendar month, on the preceding Business Day.
If the due date for a principal sum or an unpaid sum under this Agreement is extended, such amount shall bear interest during the extension period at the rate applicable on the initial due date.
14.4 Payment Currency Except as otherwise provided in Article 14.6 (Place of Performance and Payments), payment of any sum owed by the Borrower under the Agreement shall be made in Euros.
14.5 Calculation of Days All interest, fees, or expenses owed under the Agreement shall be calculated on the basis of the number of days actually elapsed and a three hundred sixty (360) day year, in accordance with European interbank market practices.
14.6 Place of Performance and Payments (a) The funds transferred by the Lender to the Borrower under the Credit shall be transferred to the bank account specifically designated for this purpose by the Borrower, provided that the Lender's prior consent is obtained regarding the selected bank.
The Borrower may request that funds be transferred: i) in Euros to a Euro-denominated bank account; or ii) in the legal tender currency of the Borrower's jurisdiction, in the amount equivalent to the Disbursement at the market exchange rate on the day of the Disbursement, to a bank account denominated in that currency, provided such currency is convertible and transferable; or iii) in any other convertible and transferable currency, for an amount equivalent to the Disbursement on the day of the Disbursement, to a bank account denominated in said currency.
(b) Any payment made by the Borrower to the Lender shall be paid on the due date no later than 11:00 am (Paris time) to the following bank account:
RIB Code: 30001 00064 00000040242 79 IBAN Code: FR76 3000 1000 6400 0000 4024 279 Bank of France SWIFT Code (BIC): BDFEFRPPCCT opened by the Lender at the Bank of France (head office/main branch) in Paris or in any other account notified by the Lender to the Borrower.
(c) The Borrower shall request the bank responsible for transferring any sum to the Lender to provide the following information in a transmission message that fully and sequentially reflects the following information (SWIFT MT 202 and protocol 103 numbers) . Ordering Customer: name, address, account number (field 50) . Ordering Customer's Bank: name and address (field 52) . Reference: name of the Borrower, name of the Program, Agreement reference number (field 70) (d) All payments made by the Borrower must comply with this Article 14.6 (Place of Performance and Payment) for the relevant payment obligation to be deemed fully satisfied.
14.7 Disruption of Payment Systems If the Lender determines (at its discretion) that a Disruption of Payment Systems has occurred, or if the Borrower notifies it that such a disruption has arisen:
(a) the Lender may and, at the Borrower's request, shall consult with the Borrower in order to reach an agreement on the changes to be made to the operation and management of the Credit that the Lender considers necessary in light of the circumstances; (b) the Lender shall not be obligated to consult the Borrower regarding the changes mentioned in paragraph (a) if it considers it impossible to do so under the circumstances and, in any event, is not obligated to reach an agreement on such changes; and (c) the Lender shall not be held liable for any expense, loss, or liability resulting from any action taken or not taken by it under this Article 14.7 (Disruption of Payment Systems).
15. MISCELLANEOUS 15.1 Language The language of the Agreement is English. If a translation is made, only the English version shall prevail in the event of any discrepancy in the interpretation of the provisions of the Agreement, or in the event of litigation between the Parties.
Any communication or document provided under or in connection with the Agreement must be drafted in English.
The Lender may request that any notification or document provided under this Agreement or in connection therewith that is not in English be accompanied by a certified English translation, in which case, the English translation shall prevail unless the document is a statutory document of a company, a legal text, or another official document.
15.2 Certificates and Calculations In any litigation or arbitration arising out of or in connection with this Agreement, the entries recorded in the accounts kept by the Lender shall be prima facie evidence of the facts to which they relate.
Any certificate or determination by the Lender of a rate or amount under the Agreement shall constitute, save for manifest error, proof of the facts to which it refers.
15.3 Partial Invalidity If, at any time, any provision of this Agreement is or becomes illegal, invalid, or unenforceable, the validity, legality, or enforceability of the remaining provisions of the Agreement shall not be affected or impaired in any way.
15.4 Absence of Waiver The mere fact that the Lender refrains from exercising a right or delays its exercise under the Agreement shall not be deemed a waiver of such right.
The partial exercise of a right shall not preclude its further exercise, nor in general, the exercise of the rights and remedies provided by law.
The rights and remedies stipulated in the Agreement are cumulative and not exclusive of the rights and remedies provided by law.
15.5 Assignments The Borrower may not assign or transfer all or part of its rights and/or obligations under the Agreement without the prior written consent of the Lender.
The Lender may assign or transfer any of its rights or obligations under this Agreement to any other third party and may enter into any sub-participation agreement related thereto.
15.6 Legal Effect The attached Annexes and the recitals thereof form an integral part of this Agreement and have the same legal effect.
15.7 Entire Agreement As of the date of signature, this Agreement represents the entire agreement between the Parties concerning its subject matter and supersedes and replaces all prior documents, agreements, or understandings in the context of the negotiation of this Agreement.
15.8 Amendments No amendment to this Agreement may be made without the prior written consent of the Parties.
15.9 Confidentiality and - Information Disclosure (a) The Borrower shall not disclose the content of this Agreement to any third party without the prior consent of the Lender, except to any person to whom the Borrower has a disclosure obligation under any applicable law, regulation, or judicial decision.
(b) Without prejudice to any existing confidentiality agreement, the Lender may disclose any information or documents in connection with the Program to: i) its auditors, experts, rating agencies, legal advisors, or supervisory bodies; ii) any person or entity to which the Lender may assign or transfer all or part of its rights or obligations under the Agreement; and iii) any person or entity for the purpose of taking protective measures or preserving the Lender's rights under the Agreement.
(c) Furthermore, the Borrower expressly authorizes the Lender to:
(i) exchange information with the French Republic for publication on the French Government website, in accordance with any request from the International Aid Transparency Initiative; and (ii) to publish on the Lender's website the information relating to the Program and its financing as indicated in Annex 6 (Anexo 6) (Information that may be published on the French Government website and on the Lender's website).
15.10 Limitation Period The limitation period for any claim under this Agreement shall be five (5) years, except in the case of a claim relating to the payment of interest owed under this Agreement.
16. NOTICES 16.1 Written Communications and Addressees Any notice, request, or other communication required to be made under this Agreement or in connection therewith shall be made in writing, and unless otherwise stipulated, may be made by mail to the following address and numbers:
For the Borrower:
REPÚBLICA DE COSTA RICA Ministerio de Hacienda Address:
San José, Avenida 2da Calle 1 y 3, diagonal al Teatro Nacional Costa Rica Telephone: (506) 2547- 4264 Email: [email protected] Address to: Ministro de Hacienda For the Lender:
AFD - OFICINA REGIONAL DE MÉXICO Address:
Torre Omega Campos Elíseos 345, piso 16 Col. Chapultepec Polanco C.P 11560 Ciudad de México México Telephone: +52 (55) 52 8l 17 77 Email: [email protected] Address to: Director Regional de la AFD With a copy to: With a copy to:
AFD - OFICINA SEDE DE PARÍS Address: 5, rue Roland Barthes - 75598 Paris Cedex 12, France Telephone: + 33 1 53 44 31 31 Address to: Director (a) del Departamento para América Latina (AML) or any other address or name of the responsible department that one Party shall indicate to the other.
16.2 Receipt Any notice, request, or communication made, or any document sent by one Party to the other Party in connection with this Agreement shall be effective if made by letter sent by physical mail, when delivered to the correct address, and, if a specific service or officer has been specified according to the address details provided under Article 16.1 (Written Communications and Addressees), if said notice, request, or communication has been addressed to that person or department.
16.3 Electronic Communication (a) Any communication made by one person to another under or in connection with this Agreement may be made by email or other electronic means if the Parties:
(i) agree that this shall be an accepted form of communication until further notice; (ii) notify each other in writing of their email addresses and/or any other information necessary for the exchange of information by such means; and (iii) notify each other of any change to their respective addresses or the information they have provided.
(b) Any electronic communication between the Parties shall be deemed effective if received in legible form.
17. GOVERNING LAW, JURISDICTION, AND DOMICILE ELECTION 17.1 Governing Law This Agreement shall be governed by French law.
17.2 Arbitration Any dispute arising out of or in connection with this Agreement shall be submitted to arbitration and finally resolved in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce applicable on the date of commencement of the arbitration proceedings, by one or more arbitrators appointed in accordance with said Rules.
The seat of the arbitration shall be Paris, and the language of the arbitration shall be English.
This arbitration clause shall remain valid even in the event of nullity, rescission, annulment, or expiry of the Agreement. The fact that one of the Parties initiates proceedings against the other Party shall not, in itself, suspend its contractual obligations as they result from the Agreement.
The Parties expressly agree that, by signing this Agreement, the Borrower irrevocably waives all rights of immunity with respect to jurisdiction or enforcement that it might otherwise claim.
17.3 Domicile Election Without prejudice to applicable legal provisions, for the purposes of service of judicial and extrajudicial documents that may arise from any action or proceeding mentioned above, the Borrower irrevocably elects domicile at the address indicated in Article 16 (Notices) and the Lender at the address "OFICINA AFD SEDE" indicated in Article 16 (Notices).
18. TERM All obligations incurred under this Agreement shall take effect on the Effective Date and shall remain in effect as long as an amount is owed under this Agreement.
Notwithstanding the foregoing, the stipulations of Articles 15.9 (Confidentiality and Information Disclosure) shall continue to be effective for a period of five (5) years after the last Payment Date.
Executed in two (2) originals, in San José de Costa Rica, on October 14, 2021.
BORROWER REPÚBLICA DE COSTA RICA ___________________________________ Represented by:
Name: Elian Villegas Valverde
LENDER AGENCE FRANÇAISE DE DÉVELOPPEMENT ___________________________________ Represented by:
Name: Matthieu Robin
____________________________________ Co-signatory, His Excellency Mr. Philippe Vinogradoff, Ambassador of France.
| Agreement | Means this Credit Agreement, including its preamble, its Annexes and, as the case may be, its subsequent amendments. |
|---|---|
| Acts of Corruption | Means the following acts: |
| a) Promising, offering, or granting to a Public Official, or to any person who directs or works in any capacity for a private sector entity, directly or indirectly, an undue advantage of any nature for himself or for another person or entity, in order for him to perform or refrain from performing an act in violation of his official, legal, contractual, or professional duties having the effect of influencing his own actions or those of another person or entity; or | |
| b) The fact that a Public Official, or any person who directs or works in any capacity for a private sector entity, solicits or accepts, directly or indirectly, an undue advantage of any nature for himself or for another person or entity, in order to perform or refrain from performing an act in violation of his official, legal, contractual, or professional duties having the effect of influencing his own actions or those of another person or entity. | |
| Annex(es) | Means the Annex(es) to this Agreement. |
| Authorization(s) | Means all agreements, registrations, filings, conventions, certifications, attestations, authorizations, approvals, permits, and/or mandates, or waivers thereof, obtained from or made before an Authority, whether granted by explicit act or deemed granted in the absence of a response after a specified period, as well as all approvals and other agreements granted by the Borrower's creditors. |
| Authority(ies) | Means any government or body, department, commission exercising a public prerogative, administration, court, agency, or entity of a state, governmental, administrative, tax, or judicial nature. |
| Acceptable Bank | Means any bank acceptable to the Lender. |
| Principal Outstanding | Means, with respect to any Disbursement, the amount of principal remaining unpaid in respect of said Disbursement, which corresponds to the amount of the Disbursement paid by the Lender |
| | to the Borrower less the total of the principal installments repaid by the Borrower to the Lender with respect to said Disbursement. | | --- | --- | | Conforme Certificate(s) (Certificado(s) Conforme) | Designates, for any copy, photocopy, or other duplicate of an original document, the authentication or legalization by a person duly authorized for that purpose, that the copy, photocopy, or other duplicate is a true copy of the original. | | Rate Conversion (Conversión de Tasa) | Designates the conversion of the variable rate applicable to the Credit or to a part of the Credit into a fixed rate according to the terms provided in Article 4.1 (Interest Rate). | | Credit (Crédito) | Designates the credit granted by the Lender under these presents and for the maximum principal amount stipulated in Article 2.1 (Credit). | | Available Credit (Crédito Disponible) | Designates at any given time, the maximum principal amount specified in Article 2.1 (Credit), less (i) the amount of Disbursements made, (ii) the amount of Disbursements to be made pursuant to pending Disbursement Requests, and (iii) the portions of the Credit canceled pursuant to Article 8.3 (Cancellation by the Borrower) and/or Article 8.4 (Cancellation by the Lender). | | Borrower's Accounts (Cuentas del Prestatario) | refers to the account with the following details: Euros: - Account Number: GB50CHAS60924241388180 - Bank SWIFT (BIC) code: BCCRCRSJ opened in the name of the Borrower with the Banco Central de Costa Rica USD: Account Number: 826196292 - Bank SWIFT (BIC) code: BCCRCRSJ opened in the name of the Borrower with the Banco Central de Costa Rica | | Disbursement (Desembolso) | Designates the disbursement of part or all of the funds made available to the Borrower by the Lender under the Credit under the conditions of Article 3 (Disbursement Terms) or the principal amount of a disbursement owed and payable at a certain point in time. | | Financial Debt(s) (Deuda(s) Financiera(s)) | Designates any financial debt relating to: a) sums borrowed in the short, medium, and long term; | | | (iv) funds raised through the issuance of bonds, certificates of deposit, promissory notes, or other debt instruments; (v) funds raised under any other transaction (including forward purchases and sales) having the economic effect of a loan; (vi) a possible payment obligation in the form of a personal guarantee, guarantee, or other commitment. | | --- | --- | | Business Day(s) (Día(s) Hábil(es)) | Designates a full business day, except Saturdays, Sundays, and public holidays, when banks are open in Paris and being a TARGET Day if it concerns a day on which a Disbursement must be made. | | TARGET Day (Día TARGET) | Designates a day on which the Trans European Automated Real Time Gross Settlement Express Transfer 2 (TARGET 2) system, or any successor to such system, is open for payments in Euros. | | Program Documents (Documentos del Programa) | Means the Public Policy Matrix (MPP, for its acronym in Spanish) and the Technical Cooperation Program. | | American Dollars or USD (Dólares americanos o USD) | Designates the currency that is legal tender in the United States of America. | | Material Adverse Effect (Efecto Significativo Desfavorable) | Designates a significant and adverse effect on: - the Program in a way that compromises the continuity of the Program pursuant to the Agreement - the activity, assets, or financial situation of the Borrower or its capacity to fulfill its obligations under the Agreement - the validity or enforceability of the Agreement; or - The rights and remedies of the Lender under the Agreement. | | Embargo (Embargo) | Designates any sanction of a commercial nature that prohibits imports and/or exports (supply, sale, or transfer) of one or more types of goods, products, or services to and/or from a State for a determined period, and as published and amended by the United Nations, the European Union, or France. | | Financial Indebtedness (Endeudamiento financiero) | means any financial debt by and with respect to: a) All money borrowed in the short, medium, or long term; | | | (i) Sums raised through the issuance of bonds, promissory notes, debentures, loan stocks, or any other similar instrument; (ii) Funds raised under any other transaction (including any forward purchase and sale agreement) that has the commercial effect of a loan; (iii) Any possible payment obligation resulting from a guarantee, surety, or any other instrument. | | --- | --- | | Reference Financial Institution (Establecimiento Financiero de Referencia) | Designates an institution permanently chosen as a reference by the Lender and that regularly and publicly publishes, in one of the international financial information dissemination systems, its financial instrument quotations in accordance with uses recognized by the banking profession. | | EURIBOR | Designates the interbank rate applicable to the Euro for deposits in Euros for a period comparable to the Interest Period as determined by the European Money Markets Institute (EMMI) or any successor body, at 11:00 a.m., Brussels time, two (2) Business Days before the first day of the Interest Period. | | Euro(s) or EUR | Designates the single European currency of the Member States of the European Economic and Monetary Union, including France, and which is legal tender in said States. | | Event of Default (Evento de Incumplimiento) | Designates each of the events or circumstances of Article 13.1 (Events of Default). | | Payment Dates (Fechas de Pago) | Designate May 31 and November 30 of each year. | | Disbursement Deadline (Fecha límite de Desembolsos) | means October 14, 2023, the date after which no further Disbursements may be made. | | Disbursement Date (Fecha de Desembolso) | refers to the date on which the Lender makes a Disbursement of funds available. | | Effective Date (Fecha de Entrada en Vigor) | means the date on which the obligations under this Agreement will enter into force following the fulfillment, within a reasonable period, of the formalities required by Costa Rican legislation, including the corresponding legislative approval. | | Rate Fixing Date (Fecha de Fijación de Tasas) | Designates: I - in the case of an Interest Period for which an Interest Rate must be fixed: (i) the first Wednesday (or the next Business Day if it is a public holiday) following the date of receipt by the Lender of the complete Disbursement Request, if the Disbursement Request was received by the Lender at least two (2) Business Days before said Wednesday; | | | (ii) the second Wednesday (or the next Business Day if it is a public holiday) following the date of receipt by the Lender of the complete Disbursement Request, if the Disbursement Request was received by the Lender at least two (2) Business Days before the first Wednesday. | | --- | --- | | | II - in the case of a Rate Conversion: | | | (i) the first Wednesday (or the next Business Day if it is a public holiday) following the date of receipt by the Lender of the Rate Conversion Request sent by the Borrower, if this date is more than two (2) Business Days before the first Wednesday. | | | (ii) the second Wednesday (or the next Business Day if it is a public holiday) following the date of receipt by the Lender of the Rate Conversion Request sent by the Borrower, if this date is not more than two (2) Business Days before the first Wednesday. | | Program Completion Date (Fecha de Finalización del Programa) | means the technical completion date of the Program, which is expected to be December 31, 2023. | | Signing Date (Fecha de Firma) | Designates the date of signature of the Agreement by all Parties. | | Fraud (Fraude) | Designates any unfair practice (action or omission) that seeks to deliberately deceive the other, intentionally conceal elements from them, or surprise or vitiate their consent, evade legal or regulatory obligations, and/or violate the internal rules of the Borrower or a third party to obtain an illegitimate benefit. | | Fraud against the financial interests of the European Community (Fraude contra los intereses financieros de la Comunidad Europea) | Refers to any intentional act or omission aimed at harming the budget of the European Union and relating to: i) the use or presentation of false, inaccurate, or incomplete statements or documents, which have the effect of misappropriating or wrongfully retaining funds or any illegal retention of resources from the general budget of the European Union; ii) the non-disclosure of information with the same effect; and iii) the misappropriation of such funds for purposes other than those for which they were originally granted. | | Public Official (Funcionario Público) | Designates (i) any person holding a legislative, executive, administrative, or judicial mandate, whether appointed or elected, whether permanent or not, paid or unpaid, and whatever their hierarchical level, (ii) any person defined as a public official in the domestic law of the Borrower, (iii) any person exercising a public function, including for a public body or a public enterprise, or providing a public service. | | Tax(es) (Impuesto(s)) | Designates any tax, contribution, levy, duty, or other charge or withholding of a comparable nature (including any penalty or interest payable for a failure or delay in paying any of the aforementioned taxes). | Early Repayment Compensatory Indemnity (Indemnización Compensatoria de Reembolso Anticipado) Designates the indemnity calculated by applying the following percentage applied to the portion of the Credit repaid early:
(vii) if the repayment occurs before the fifth anniversary (excluded) of the Signing Date: two point five percent (2.5%); (viii) if the repayment occurs between the fifth anniversary (included) and the tenth anniversary (excluded) of the Signing Date: two percent (2%); (ix) if the repayment occurs between the tenth anniversary (included) and the fifteenth anniversary (excluded) of the Signing Date: one point seventy-five percent (1.75%); (x) if the repayment occurs after the fifteenth anniversary (included): one point five percent (1.5%).
Payment System Disruption (Interrupción de los Sistemas de Pago) Designates one and/or the other of the following events:
- a significant disruption of the payment or communication systems of the financial markets through which it is required to transit to make the Disbursements (or more generally to carry out the operations provided for in the Agreement) which is not the act of a Party and which is beyond the control of the Parties; - any event that involves a disruption of the treasury or payment operations of a Party (whether of a technical nature or linked to the malfunctioning of the systems) and that would prevent that Party or any other Party from:
. making the payments owed by the Party involved under the Agreement; or . communicating with the other Parties in accordance with the terms of the Agreement; provided that this event is not attributable to one of the Parties and is beyond the control of the Parties.
Financial Sanctions List (Lista de las Sanciones Financieras) Designates the lists of persons, groups, or entities subject to financial sanctions by the United Nations, the European Union, and France.
Solely for informational purposes, and without the Borrower being able to avail itself of the references set out hereinafter:
For the United Nations, the lists can be consulted at the following address:
| | https://www.un.org/sc/suborg/es/sanctions/un-sc-consolidated- list For the European Union, the lists can be consulted at the following address: | | --- | --- | | | https://eeas.europa.eu/headquarters/headquarters- homepage_en/8442/Consolidated%20list%20of%20sanctions For France, the lists can be consulted at the following address: https://www.tresor.economie.gouv.fr/services-aux- entreprises/sanctions- economiques/dispositif-national-de-gel- des-avoirs | | Margin (Margen) | means one hundred forty-five basis points (145 bps) per year | | MINAE | Designates the Ministerio de Ambiente y Energía of Costa Rica. | | Illicit Origin (Origen Ilícito) | Designates an origin of funds from: | | | (i) predicate offenses for money laundering as designated by the glossary of the 40 FATF recommendations "designated categories of offenses" (https://www.fatf- gafi.org/media/fatf/documents/recommendations/pdfs/F ATF%20Recommendations%202012.pdf | | | (ii) Acts of Corruption; or | | | (iii) Fraud against the Financial Interests of the European Communities. | | Internet Page (Página Internet) | Designates the AFD internet page http://www.afd.fr/ or any other internet portal that would replace it. | | Interest Period (Período de Intereses) | Designates a period running from one Payment Date (excluded) to the next Payment Date (included). For each Disbursement under the Credit, the first interest period will run from the Disbursement Date (excluded) to the first following Payment Date (included). | | Availability Period (Período de Disponibilidad) | Designates the period from the Signing Date to the Disbursement Deadline. | | Disbursement Period (Período de Desembolso) | Designates the period from the date of the first Disbursement to the first of the following dates: (i) the date on which the Available Credit is equal to zero; (ii) the Disbursement Deadline. | Grace Period (Periodo de Gracia) refers to the period between the Signing Date and the date falling sixty (60) months after said date, during which no principal repayment is due or payable under the Credit.
Market Disturbance (Perturbación del Mercado) Designates the occurrence of one of the following events:
(i) the EURIBOR was not determined by the European Money Markets Institute (EMMI) or any successor body, at 11:00 a.m. Brussels time, two Business Days before the first day of the considered Interest Period; or at the close of the considered interbank market, the Borrower receives two (2) Business Days before the first day of the considered Interest Period a notification from the Lender according to which (i) the cost it incurs to obtain the corresponding deposits in the considered interbank market is higher than the EURIBOR for the corresponding Interest Period or (ii) in the course of its current management operations, it cannot and will not be able to have the corresponding deposits available in the interbank market in question, to finance the Disbursement for the term in question.
Financing Plan (Plan de Financiamiento) Designates the financing plan for the Program as attached in Annex 3 (Financing Plan).
Anti-competitive practices (Prácticas anticompetitivas) Refers to:
(i) any concerted or implied action having the object and/or effect of preventing, restricting, or distorting fair competition in a market, including, without limitation, when it tends to (i) limit access to the market or the free exercise of competition by other companies; (ii) prevent the setting of prices by the free play of the market by artificially favoring their increase or decrease; (iii) limit or control any production, market, investment, or technical progress; or (iv) share markets or sources of supply; (ii) any abuse by a company or group of companies of a dominant position in a national market or a substantial part thereof; or (iii) any predatory offer or price having the object and/or effect of eliminating a company or one of its products from a market, or preventing it from accessing the market.
Program (Programa) Designates the Program as described in Annex 2 (Description of the Program).
| Withholding at Source (Retención en la Fuente) | Designates a deduction or a withholding for Tax applicable to a payment under the Agreement. | | --- | --- | | Rate Conversion Request (Solicitud de Conversión de Tasa) | Designates substantially a request in the form of the model attached in Annex 5C (Model Rate Conversion Request). | | Disbursement Request (Solicitud de Desembolso) | Designates substantially a disbursement request in the form of the model attached in Annex 5A (Model Disbursement Request). | | Interest Rate (Tasa de interés) | means the interest rate expressed as a percentage and determined in accordance with clause 4.1 (Interest Rate). | | Fixed Reference Rate (Tasa Fija de Referencia) | Designates one point eighty-nine percent (1.89%) per year. | | Index Rate (Tasa Índice) | Designates the daily TEC 10 index, the 10-year constant maturity rate published daily on the web pages of the quotations of the Reference Financial Institution or any other index that would replace the TEC 10. On the Signing Date, the Index Rate observed on October 13, 2021, is zero point nineteen percent (0.19%) per annum. |
- a)"assets" refers to property, income, and rights of any nature, present or future; b) any reference to the "Borrower", a "Party" or to the "Lender" includes their successors and assigns; c) any reference to the Agreement, another agreement, or any other instrument is understood to be the document as it may be eventually amended, ratified, or supplemented and even, if applicable, any instrument that substitutes it by way of novation, in accordance with the Agreement.
- d)"guarantee" (garantía) is understood to mean any surety, aval, or any autonomous guarantee, independent of the debt to which it refers; e) "indebtedness" (endeudamiento) is understood to mean any payment or reimbursement obligation of a sum of money, subscribed by any person (as principal or as guarantor) that is immediately or eventually due, definitive or conditional; f) "person" (persona) is understood to mean any natural person, company, corporation, partnership, trust, government, state or state agency, or any association, or group of two or more of the foregoing (with or without legal personality); g) "regulation" (reglamentación) designates any legislation, regulation, rule, decree, instruction, or official circular, any requirement, decision, or recommendation (whether or not having binding force) emanating from any governmental, intergovernmental, or supranational entity, from any supervisory authority, independent administrative authority, agency, directorate, or other division of any other authority or organization (including any regulation emanating from a public industrial and commercial establishment) that has an effect on the Agreement or on the rights and obligations of a Party; h) any reference to a legal provision is understood as this provision as it was eventually amended;/ i) unless otherwise stipulated, any reference to a time of day is understood to be Paris time.
- j)the headings of the Chapters, Articles, and Annexes are indicated for convenience only and do not influence the interpretation of the Agreement; k) unless otherwise stipulated, a term used in another document in relation to the Agreement or in a notification under the Agreement will have the same meaning as in the Agreement; l) an Event of Default is "continuing" (en curso) if it has not been remedied or if the persons who may avail themselves of it have not waived it; m) a reference to an Article or an Annex is a reference to an Article or Annex of the Agreement.
- n)words in the plural include the singular and vice versa.
Costa Rica adopted the National Decarbonization Plan (Plan Nacional de Descarbonización, PND) for the period 2018-2050. This plan, consistent with the National Development and Public Investment Plan (PNDIP) 2018-2022, seeks the country's carbon neutrality by 2050 through 10 lines of action in the most emitting sectors, including sustainable construction (axis 5) and integrated waste management (axis 7). The PND also integrates the objective of limiting the country's Greenhouse Gas (GHG) emissions to 9,110,000 t of CO2eq. by 2030, established in its nationally determined contribution (NDC) under the Paris Agreements.
In 2015, Costa Rica's GHG emissions reached 10,881,680 t of CO2 eq., or 2.25 t of CO2eq per capita. In Costa Rica, the sector that emits the most GHGs is transportation. The second sector that contributes most to GHG emissions is the construction industry. In 2015, emissions from the construction sector were estimated at 1,085.86 t of CO2eq, to which are added emissions from industrial processes and the consumption of products related to the production of cement, lime, and glass, and air conditioning and refrigeration, which are strong emitters of carbon and GHGs.
The third highest GHG emitting sector in the country is the waste sector with estimated emissions of 2,084,610 t of CO2eq in 2015. Likewise, this sector is the second largest emitter of methane, a gas whose global warming potential is 30 times higher than that of carbon. Consequently, these two sectors are important sources of GHG mitigation for Costa Rica.
In 2020, AFD co-financed a first Public Policy Loan (PPL) (Préstamo de Política Pública, PPP) together with the Inter-American Development Bank (IDB) to support Costa Rica's decarbonization trajectory.
AFD now renews its support through the implementation of a new Public Policy Loan, which this time integrates the sectors of sustainable construction, integrated solid waste management, and just transition, with a transversal objective of contributing to gender equality.
The need for a just and inclusive transition is present in Costa Rican public policies. Costa Rica's economic and social situation remains unfavorable for women. According to the Global Gender Gap report, the country ranks 112th in the specific component of economic participation and opportunity for women, with particularly large gender gaps. Despite Costa Rica's strong commitment to gender equality and the Government's will, this constant remains. The development and economic growth that Costa Rica has experienced in recent years does not translate into an equivalent increase in women's economic participation, who are comparatively more affected by unemployment than men. The global climate crisis exacerbates this situation.
However, the 24th State of the Nation Report of 2018 for Costa Rica points out that if unemployed women or those outside the labor force were to obtain formal employment, the country's total poverty (26%) could be reduced by half.
As highlighted by the International Labour Organization (ILO), low-carbon and resilient transitions implemented in a fair and inclusive manner can be, on the contrary, an important driver of job creation, improvement of job quality, social justice, and the fight against poverty and inequality. Thus, within the framework of this Public Policy Support Program, a "just transition" axis and a transversal approach of "promotion of gender equality" were integrated into the objectives.
This Public Policy Loan will be disbursed in two tranches over a period of two years starting from the validation by the Legislative Assembly expected for summer 2021. A first tranche will be disbursed in 2021, provided the objectives set in the Public Policy Matrix presented below in the column corresponding to the 1st tranche are met. A second tranche is planned to be disbursed in late 2022/mid-2023, in accordance with the new disbursement objectives formulated in this same Public Policy Matrix.
A third level of indicators was defined to situate the public policies applied in these two sectors in the long term.
The AFD confirmed its commitment to accompany, through non-reimbursable technical assistance, the political reform process agreed upon within the framework of this operation.
MINAE (Dirección de Cambio Climático - DCC) will be the coordinator of this technical cooperation program.
The different institutions responsible for implementing and executing the various activities and projects under the Technical Cooperation Program will provide MINAE with evidence and information related to its execution, or will notify it of difficulties or obstacles in its implementation, providing sufficient time to take appropriate measures.
The current objective of the Public Policy Loan is the development of public policies in the following sectors and subsectors:
??Sustainable construction (Component/Pillar 1) - dialogue and technical cooperation could focus on:
-Strengthening norms and guidelines for public and private investments, supporting the definition of climate change mitigation and adaptation criteria, promoting the improvement of urban planning towards sustainable urban development, the reduction of greenhouse gas emissions, and adaptation to climate change through:
??The conceptualization and development of pilot proposals for Eco-Barrio (Eco Barrios) project models.
??The development of a technical guide for the design of Eco-Barrios including a gender approach.
The objective is the planning and design of at least 3 "Eco-Barrios" projects by INVU in different cantons of the country before the second disbursement of the project.
Improving construction and renovation practices to reduce their GHG emissions, by promoting energy efficiency, the reuse of materials, the use of low-carbon materials including energy for hot water, cooking, air conditioning, and refrigeration, as well as capacity building.
The program seeks to promote sustainable housing and construction related to decarbonization, especially in the use of low-carbon or carbon-sequestering materials (wood, bamboo, local materials, reuse of materials), with a gender perspective through:
??The establishment and approval of the National Habitat Policy (Política Nacional del Hábitat).
??The establishment and approval of a sustainable construction regulation for the implementation of social housing.
??The approval of regulations on the sustainable construction of social housing including the use of materials with low carbon emissions and environmental characteristics (of the type/inspired by RESET, LEED, EDGE).
??Implementation of at least two pilot housing projects according to the guidelines of the VUIS guide.
The integration of the gender approach in the application of sustainable construction measures through the:
??Development and publication of a national gender and housing strategy and the analysis of the gender gap and access to housing, as the main input for the National Gender and Housing Strategy (Estrategia Nacional de Género y Vivienda).
??Implementation of a gender training plan at MIVAH.
??Waste management (Component/Pillar 2) - dialogue and technical cooperation could focus on:
- Development of policies that promote integrated low-emission waste management and the circular economy, through the launch and implementation of a program that promotes and strengthens community-scale waste management, with a gender equality approach, through the Eco-communities (Ecomunidades) program that promotes recycling.
-Development and strengthening of governance, public policies, technical tools, products, and services with a gender equality approach in the area of waste and circular economy, through:
??The publication of an Integrated Waste Management Action Plan (Plan de Acción de Gestión Integral de Residuos).
??The approval of the National Composting Plan (Plan Nacional de Compostaje).
??The publication of a guide for the Management of Recoverable Organic Waste (Gestión de Residuos Orgánicos Valorizables).
??The development of a market study on the real possibility of using the compost produced.
??The establishment of a governance mechanism to strengthen the integrated management of solid waste and the goals of the different policies and plans related to the sector, through cooperation between the various actors in the sector.
??The development of a step-by-step guide to facilitate the transition of local governments towards a circular economy that integrates gender equality.
- Support the transition and transformation of existing treatment units so that they emit fewer GHGs, promoting the reduction of GHGs by decreasing methane emissions from solid organic waste in dumps and landfills.
-The integration of the gender approach in the chain of actors in waste management.
??Just transition (Component/Pillar 3) - dialogue and technical cooperation could focus on:
- The development of governance mechanisms, policies, and plans that incorporate a just transition approach in Costa Rica's decarbonization process, through the creation of a High-Level Committee for the coordination of work, decarbonization, and just transition topics. The Committee will be composed of the Ministerio de Ambiente y Energía (MINAE), the Ministerio de Desarrollo Humano e Inclusión Social (MDHS), and the Ministerio de Trabajo y Seguridad Social (MTSS) for the sectors contemplated in the NDC.
-Identification of strategic and priority sectors for the just transition and preparation of a diagnosis of green and blue jobs in Costa Rica.
-Officialization by MINAE of the "National Ambition Cycle," which officially establishes the foundations for a continuous, iterative, and inclusive process that appropriately incorporates the groups most vulnerable to climate change for the monitoring and updating of its NDCs and its Long-Term Strategy under the Paris Agreement.
-Development of public programs and policies that contribute to closing the gender gaps associated with the PND and the National Adaptation Plan.
The detail of the objectives to be achieved before each disbursement per supported sector is formulated in the following Public Policy Matrix, established in consensus with the Costa Rican authorities.
| Public Policy Matrix Objectives | Responsible Government Entity | Special conditions prior to the first disbursement | Special conditions prior to the second disbursement | Long-term goals | Results (indicators, baseline) | | --- | --- | --- | --- | --- | --- | | Pillar 1. Sustainable Construction | | | | | |
| Amount (EUR) | |
|---|---|
| AFD | 150,000,000 |
| Total | 150,000,000 |
With respect to the set of documents submitted by the Borrower under the conditions precedent listed below:
- If the document sent is not an original but a copy, the Lender must be provided with the original of the certified copy; - The final versions of the documents, whose Programs were previously communicated to the Lender and accepted by the latter, shall not reveal any substantial difference in relation to the Programs previously communicated and accepted; - Documents that have not been previously communicated to and accepted by the Lender must be deemed satisfactory by the latter in both substance and form.
PART I - CONDITIONS PRECEDENT TO BE FULFILLED ON THE DATE OF SIGNATURE (a) Delivery by the Borrower to the Lender of the following documents:
(i) A certified copy of the decision(s) required pursuant to the legislation of the Borrower's country:
- Authorizing the Borrower to enter into the Agreement; - Approving the terms and conditions of this Agreement; - Approving the execution of this Agreement; and - Authorizing one or more persons to sign the Agreement on its behalf and for its account.
These conditions must be fulfilled by delivering the following documents:
- The approval of the "Ministry of National Planning and Economic Policy"; - The approval of the Central Bank of Costa Rica; - The approval of the Budgetary Authority; and - The document granting full powers to the Borrower to execute the Agreement together with the specimen signature of the person authorized to execute this Agreement.
(b) Receipt by the Lender of a draft legal opinion satisfactory to the Lender in both substance and form prepared by an independent law firm (which has been previously approved by the Lender) from the Borrower's country.
PART II - CONDITIONS PRECEDENT FOR THE FIRST DISBURSEMENT (a) Delivery by the Borrower to the Lender of:
(i) The documents justifying the fulfillment of any formalities or approvals required by Costa Rican legislation for the provisions of this Agreement to be fully applicable, including the relevant legislative approval and its publication in the official gazette; (ii) The documents justifying compliance with all requirements for registration or enrollment, filing, or publication of this Agreement and the payment of all stamp duties, registration fees, or similar duties in connection with this Agreement, where applicable; (iii) A legal opinion issued by the Office of the Attorney General of the Republic that is satisfactory to the Lender; (iv) A certificate issued by a duly authorized representative of the Borrower setting forth the person(s) (i) authorized to sign, on behalf and for the account of the Borrower, the Disbursement Requests and any certificate in connection with this Agreement and to take all other measures and/or sign all other documents necessary on behalf and for the account of the Borrower by virtue of this Agreement (ii) together with the specimen signature of the aforementioned persons; and (v) Documents justifying that the total amount of the Loan is provided for in the Borrower's budget.
(b) Evidence of payment of all commissions and expenses due under the Agreement, if any; (c) Documents demonstrating compliance with the indicators established in the column "Special conditions prior to the first disbursement (end of 2021)" of the Public Policy Matrix set forth in Annex 2 (Program Description) of this Agreement; and (d) Delivery to the Lender of a duly executed legal opinion, in form and substance satisfactory to the Lender, from a reputable law firm (which has been previously approved by the Lender) acting as legal advisors in the Borrower's country.
PART III - CONDITIONS PRECEDENT FOR OTHER DISBURSEMENTS INCLUDING THE SECOND Delivery by the Borrower to the Lender of documents demonstrating compliance with the indicators established in the column "Special conditions prior to the second disbursement (2022)" of the Public Policy Matrix set forth in Annex 2 (Program Description) of this Agreement.
[On Borrower's letterhead] To: AGENCE FRANÇAISE DE DÉVELOPPEMENT On: [Date] Borrower's Name - Loan Agreement No. CCR1025 01 L dated [?]
Disbursement Request No. [?]
Dear Sirs:
1. We refer to Loan Agreement No. CCR1025 01 L entered into between the Borrower and the Lender, dated [?] (hereinafter, the "Agreement"). The capitalized terms and expressions used in this request, but not defined, shall have the same meaning as in the Agreement.
2. We irrevocably request the Lender to make a Disbursement under the following conditions:
Amount: EUR [? amount in words] or, if less, the Available Loan.
Amount: The equivalent in United States dollars of [? amount in words] (EUR [?])] EUR, or, if less, the Available Loan.
Interest Rate: [fixed or variable] 3. The Interest Rate shall be determined in accordance with the provisions of Article 4 (Interest) and Article 5 (Change in Interest Calculation) of the Agreement. The Interest Rate applicable to the requested Disbursement shall be communicated to us in writing and we accept said Interest Rate [(subject, where applicable, to the application of the following paragraph)], even if the Interest Rate is determined by reference to a Reference Rate plus any Adjustment Margin as notified by the Lender following the occurrence of a Monitoring Rate Substitution Event.
[For Fixed Interest Rate only]: If the fixed Interest Rate applicable to the requested Disbursement exceeds [?insert percentage in words] ([?] %), we request that this Disbursement Request be annulled.
4. We confirm that each condition mentioned in Article 2.4 (Conditions Precedent) has been fulfilled as of the date of this Disbursement Request and that no Event of Default is ongoing or likely to occur. In the event that any of the aforementioned conditions are not fulfilled prior to or on the Date of Disbursement, we undertake to immediately notify the Lender of such a situation.
5. The Disbursement must be credited to the following account:
(a) Name [of Borrower]: [?]
(b) Address [of Borrower]: [?]
(c) IBAN Account Number: [?]
(d) SWIFT Number: [?]
(e) Bank and address of the bank [of the Borrower]: [?]
(f) Correspondent bank and account number of the Borrower's bank: [?]
6. This Disbursement Request is irrevocable.
7. We attach hereto all relevant supporting documents specified in