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The business law resource for Latin America
Select specific jurisdictions to filter on. Alternatively select no jurisdictions and select questions below to see all jurisdiction answers for them.
Select specific questions to filter on. Alternatively select no questions and select jurisdictions above to see all question answers for them.
What are the most common forms of bank financing in your jurisdiction?
Can non-bank lenders such as private credit fund managers offer credit in your jurisdiction?
Are any governmental or central bank registrations or approvals required for a foreign arranger or lender (being an entity not incorporated in your jurisdiction or operating through a branch or office outside of your jurisdiction) to arrange on behalf of or to lend to a borrower in your jurisdiction?
Are there any foreign exchange provisions restricting, or governmental or central bank registrations or approvals required for, a borrower in your jurisdiction to contract debt obligations in a foreign currency or to remit funds abroad?
Are borrowers of foreign currency denominated debt required as a matter of law to maintain a minimum hedging ratio or a minimum forex liquidity ratio?
Are there any governmental or central bank registrations or approvals required for the prepayment of loans abroad?
Are any mandatory governmental or central bank deposits required to be made from loan proceeds?
Describe any governmental measures that may be taken to declare a moratorium on the loan obligations of private companies.
Describe any environmental liabilities and any other areas of lender liability that may arise as a result of the activities of a borrower or the realisation of a security interest.
Are interest payments or loan fees subject to a withholding tax?
Do there exist any thin capitalisation rules which limit the amount of debt a borrower may incur as a proportion of its equity or governmentally imposed credit rating maintenance requirements to mitigate overleverage risk?
What other taxes or mandatory fees, for example, transaction, registration or documentary, apply to loan transactions?
Are there different taxes applicable to loans repayable to lenders in your jurisdiction and loans repayable to lenders in a foreign jurisdiction?
Is your country party to any double taxation treaties that reduce taxes payable by borrowers in respect of loan payments abroad?
Do any financing structures receive favourable tax treatment, such as prepayments of exports?
Describe any limitations on interest rates or the ability of lenders to charge default interest under loan agreements.
Are there any restrictions on the payment of interest in kind (PIK), generally involving the collateralisation of interest in the case of a loan?
What restrictions exist upon the ability of a borrower to provide an equity kicker to lenders, that is a conversion feature, warrant or some other right to acquire equity in the borrower?
Do any limitations exist on the ability of a lender to require a borrower to pay a make whole fee or premium in the event of prepayment of a loan, usually calculated on the expected return on the debt through maturity?
Describe any restrictions that may apply to the choice of law, for example, whether a choice of New York or English law will be recognised and enforced in your jurisdiction.
Describe generally the requirements for the enforceability of a foreign judgment in your jurisdiction in respect of an outstanding loan.
Upon the closing of a loan, what procedural requirements (execution formalities, notarisation, registration, recordation or filing) should be observed to ensure that a loan agreement or related judgment is enforceable in your jurisdiction?
Does a loan agreement in English need to be translated or locally registered to be enforceable in your jurisdiction?
Must a foreign lender be registered in your jurisdiction to enforce any rights under the applicable loan documentation?
Are foreign lenders treated any differently from local lenders in enforcing loan documentation in the courts of your jurisdiction?
Is consideration required for the enforceability of a contractual obligation or guarantee?
To enforce a loan in your jurisdiction, need the loan be evidenced by a promissory note or other form of título executivo?
To enforce a guarantee (aval) in your jurisdiction, is it necessary that the guarantee be evidenced by a guarantee agreement or other form of título executivo?
Are there any restrictions on loans to multiple borrowers or on a guarantee in respect of a loan to an affiliated entity?
Can a party grant a secured or unsecured guarantee in respect of a loan to an unaffiliated third party?
Is there a distinction between the granting of a security interest and the perfection of a security interest?
What is the most common form of granting and perfecting a security interest in movable assets?
What is the most common form of granting and perfecting a security interest in real estate?
What is the most common form of granting and perfecting a security interest in receivables and accounts?
Does your jurisdiction recognise the transfer of assets to a trust for the benefit of a lender as a means of granting a security interest in such assets?
Does your jurisdiction recognise the fiduciary transfer of assets (such as an alienação fiduciária) to a lender as a means of granting a security interest in such assets?
Are there any types of asset that cannot be pledged as collateral under the laws of your jurisdiction?
Describe any restrictions on enforcement of security. For example, any statutory regime that may stay the enforcement of the security or provide that enforcement is limited to public sale through the courts.
Is all unsecured debt treated as pari passu in right of payment or may a loan include subordinated or mezzanine credits and, if so, how is the different ranking of credits achieved?
Describe any other relevant legal considerations in connection with loans to a borrower in your jurisdiction.
Proskauer Rose LLP
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