EXHIBIT 4
AGREEMENT
AGREEMENT, dated as of November 30, 1998, among CITIBANK, N.A.
("Citibank"), BANKBOSTON, N.A. ("BankBoston"), BAYERISCHE VEREINSBANK ("BV")
(Citibank, BankBoston and BV being sometimes hereinafter referred to
individually as a "Bank" and collectively as the "Banks"), TCW SHARED
OPPORTUNITY FUND II, L.P. ("TCW") and FRANKLIN MUTUAL ADVISERS, INC.
("FRANKLIN").
RECITALS:
1. Citibank, BankBoston, BV, TCW and Franklin are parties to that
certain Second Amended and Restated Restructuring and Exchange Agreement, dated
as of November 30, 1998 (the "Restructuring Agreement"), among Buenos Aires
Embotelladora S.A. ("BAESA"), PEPSICO, INC. ("Pepsico"), the parties to this
Agreement and the other institutions listed on Schedule I of the Restructuring
Agreement. All capitalized terms utilized herein unless otherwise defined herein
shall have the meanings ascribed to such terms in the Restructuring Agreement.
2. Pursuant to the Restructuring Agreement and subject to the terms and
conditions thereof, each of the parties hereto, the other Lenders and Pepsico
have agreed to exchange all of their obligations under or evidenced by the
Existing Facilities and the Migrating Debt for new notes of BAESA, Rights
Offering Proceeds and Unsubscribed Shares.
3. In connection with and as a condition to entering into the
Restructuring Agreement, the parties hereto wish to set forth certain rights and
obligations with respect to certain dispositions of the New Ordinary Shares to
be received by certain entities under the Restructuring Agreement.
NOW, THEREFORE, in consideration of the agreements, premises and mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
DEFINITIONS
"Affiliate" means, with respect to any Person, any other person which,
directly or indirectly, controls, is controlled by or is under common control
with such person. For purposes of the preceding sentence, "control" shall
include the power to vote or direct the voting of more than fifty percent (50%)
of the voting shares, general partnership interests of a Person.
NY2:\182853\03\3X3903!.DOC\66228.0230
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization or government or political
department or agency thereof or any other entity.
"Stockholder" means any Lender which is a party to the Restructuring
Agreement as at the date of this Agreement which receives New Ordinary Shares
under the Restructuring Agreement and any Affiliate of such Lender which is a
transferee of New Ordinary Shares of such Lender.
"Third Party" means a prospective purchaser of New Ordinary Shares in
an arm's-length transaction from a Bank where such purchaser is not an Affiliate
of any Bank, provided that for purposes of Article II of this Agreement, BAESA
shall not be deemed to be an Affiliate of any Bank.
"Transfer" means directly or indirectly sell, transfer, assign or
otherwise dispose of, but does not include any transfer, assignment or other
disposition for the purpose of creating a mortgage, pledge, security interest,
hypothecation, lien or similar interest.
ARTICLE 2
TAG-ALONG PARTICIPATION
SECTION 2.1 Tag-Along Rights. (a) Any two or more Banks (collectively, the
"Selling Banks") may not Transfer to any Third Party (the "Tag-Along
Purchaser"), in one transaction or a series of related transactions with such
Third Party, a number of New Ordinary Shares constituting in the aggregate more
than 50% of the total issued and outstanding equity capitalization of BAESA,
unless the Tag-Along Purchaser offers to purchase from each other Stockholder,
for the same consideration, and on the same terms and conditions as the Selling
Banks intend to Transfer such New Ordinary Shares, a number of New Ordinary
Shares then owned by such Stockholder determined in accordance with Section
2.1(b) (the "Tag-Along Shares").
(b) Each such other Stockholder shall have the right, pursuant to Section
2.1(a), to sell pursuant to the offer by the Tag-Along Purchaser, a number of
New Ordinary Shares equal to the product of (A) the number of New Ordinary
Shares owned by such Stockholder, and (B) a fraction, the numerator of which
shall be the total number of New Ordinary Shares Transferred by the Selling
Banks in such transaction or series of related transactions and the denominator
of which shall be the total number of New Ordinary Shares owned by the Selling
Banks.
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SECTION 2.2 Notice; Deliveries. Not less than 15 Business Days prior to any
proposed Transfer pursuant to Section 2.1, the Selling Banks shall deliver to
each other Stockholder written notice of the proposed Transfer (the "Tag-Along
Notice"), which notice shall set forth the consideration to be paid by the
Tag-along Purchaser and the other terms and conditions of such transaction. Any
Stockholder electing to Transfer some or all of the Tag-Along Shares pursuant to
Section 2.1, shall so notify the Selling Banks within 10 Business Days after the
date of the Tag-Along Notice and, at the Selling Banks request not less than two
Business Days prior to the proposed Transfer, such Stockholder shall deliver to
the Selling Banks the certificates representing such Tag-Along Shares, duly
endorsed, in proper form for Transfer, together with a limited power-of-attorney
authorizing the Selling Banks to transfer the Tag-Along Shares to the Tag-Along
Purchaser for the consideration and upon the terms and conditions specified in
the Tag-Along Notice, including authorization to execute all documents required
to be executed by a transferor of New Ordinary Shares in connection with such
transaction. Failure of any such other Stockholder to comply fully with the
provisions of this Section 2.2 shall constitute the election of such other
Stockholder to not participate in the Transfer which is the subject of the
Tag-Along Notice.
SECTION 2.3 Transfer. (a) If, within 120 Business Days after delivery by a
Stockholder to the Selling Banks of the certificates and related documents
described in Section 2.2, no Transfer of the New Ordinary Shares to be sold by
the Selling Banks and of the Tag-Along Shares in accordance with the provisions
of this Article II shall have been completed, then the Selling Banks shall
promptly return to such Stockholder, in proper form, all certificates
representing the Tag-Along Shares and the limited power-of-attorney previously
delivered by such Stockholder to the Selling Banks.
(b) Promptly after the consummation of the transfer of the New Ordinary Shares
sold by the Selling Banks and the Tag-Along Shares pursuant to Section 2.1, the
Selling Banks shall remit or cause to be remitted to each Stockholder the
consideration with respect to the Tag-Along Shares so transferred and shall
furnish such other evidence of the completion of such transfer and the terms and
conditions (if any) thereof as may reasonably be requested by such Stockholder.
(c) The provisions of this Article II shall remain in effect, notwithstanding
any return to any Stockholder of Tag-Along Shares as provided in Section 2.3(a).
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ARTICLE 3
MISCELLANEOUS
SECTION 3.1 Notices. Any and all notices or any other communication provided for
herein shall be made in writing by hand-delivery, first-class mail (registered
or certified, with return receipt requested), telecopier (with confirmation of
receipt), or overnight air courier guaranteeing next day delivery, to the
address of the party appearing under its name below (or to such other address as
may be designated in writing by such party):
If to Citibank:
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxx, Esq.
If to BankBoston:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Mail Stop 01-19-04
Xxxxxx, XX 00000
Attn. Xxxxx Xxxxxx and
Xxxxxxx Xxxx, Esq.
If to BV:
Bayerische Vereinsbank AG
Xxx Xxxxxx 000 x.00
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxx Xxxxx Xxxxxx
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If to a Stockholder:
To the address set forth next to the
Stockholder's name on the
signature pages to the
Restructuring Agreement
SECTION 3.2 Amendment. Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by all of
the parties hereto.
SECTION 3.3 Termination. (a) All rights, and the performance of all obligations,
under this Agreement, are conditioned upon the occurrence of the Closing under
the Restructuring Agreement, and this Agreement shall be automatically
terminated in its entirety, without further action on the part of any person, if
the Restructuring Agreement by its terms or otherwise, is terminated.
(b) This Agreement may be terminated at any time by an instrument in writing
signed by the parties hereto. Notwithstanding the previous sentence, this
Agreement shall terminate on the second anniversary of the date of this
Agreement.
SECTION 3.4 Waiver. No failure or delay on the part of any or all of the parties
hereto in exercising any right, power, or privilege hereunder, and no course of
dealing between the parties, shall operate as a waiver thereof nor shall any
single or partial exercise of any right, power, or privilege hereunder preclude
the simultaneous or later exercise of any other right, power, or privilege. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights and remedies which any or all of the parties would otherwise have.
SECTION 3.5 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 3.6 Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed and construed in accordance with the law of
the State of New York without giving effect to the conflict of laws provisions
thereof, other than ss. 5-1401 of the General Obligations Law of the State of
New York.
SECTION 3.7 Benefit and Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of each of the parties hereto. Each Bank agrees, as a
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condition of any Transfer of all or substantially all of its New Ordinary Shares
to a Third Party that such Third Party agree to be bound by the terms of this
Agreement applicable to a Bank if such Transfer does not give rise to Tag-Along
Rights pursuant to Section 2.1 hereof. This Agreement shall not be binding upon
any other purchaser of any New Ordinary Shares from a Bank. This Agreement shall
not inure to the benefit of any entity other than the actual Stockholders.
Nothing in this Agreement shall create or be deemed to create any third party
beneficiary rights in any person or entity who is not a party to this Agreement
or a Stockholder. Specifically, and without limitation, no transferee or
assignee of any Stockholder shall have any rights hereunder.
IN WITNESS WHEREOF, the parties hereto have signed and delivered this
Agreement as of the date first above written.
CITIBANK, N.A.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxx X. Eusdan
----------------------------------
Name: Xxxxx X. Eusdan
Title: Director
BAYERISCHE VEREINSBANK AG
By: /s/ X.X. Xxxxxx
----------------------------------
Name: X.X. Xxxxxx
Title: Representative
TCW SHARED OPPORTUNITY FUND II, L.P.
By TCW Investment Management Company,
as General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
By: /s/ Xxxxxxxx X. Tell, Jr.
----------------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
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TCW LEVERAGED INCOME TRUST, L.P.
By TCW Investment Management Company,
its Investment Manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
By: /s/ Xxxxxxxx X. Tell, Jr.
----------------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
TCW Advisers (Bermuda), Ltd.,
As General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
FRANKLIN MUTUAL ADVISERS, INC.
As advisers to Franklin Mutual
Discovery Fund
By:
----------------------------------
Name:
Title:
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