EXHIBIT 2
EXECUTION COPY
THIRD AMENDED AND RESTATED
RESTRUCTURING AND EXCHANGE AGREEMENT
THIRD AMENDED AND RESTATED RESTRUCTURING AND EXCHANGE AGREEMENT
dated as of February 24, 1999 among BUENOS AIRES EMBOTELLADORA S.A., an
Argentine corporation ("BAESA"), PEPSICO, INC., a North Carolina corporation
("PepsiCo"), and each of the institutions listed on Schedule I hereto that on
the date hereof or hereafter becomes a party hereto (each such institution,
other than PepsiCo, a "Lender" and collectively, the "Lenders").
PRELIMINARY STATEMENTS
1. As of the date hereof, BAESA is indebted to each of the Lenders
and PepsiCo pursuant to the loan agreements, credit agreements, notes or other
agreements or documents listed on Schedule I hereto (collectively, the "Existing
Facilities") for, inter alia, the principal amounts set forth thereon.
2. BAESA has defaulted in the repayment of the indebtedness owed to
the Lenders and PepsiCo, and has advised the Lenders and PepsiCo that it is
unable to repay such indebtedness in accordance with its terms.
3. In addition, BAESA has defaulted on its obligations under the
US$60,000,000 8.50% Negotiable Obligations due 2000 (collectively, the
"Eurobonds"), which were issued pursuant to the Fiscal Agency Agreement, dated
as of December 29, 1993 among BAESA, The Bank of New York, as Fiscal Agent,
Registrar and Principal Paying Agent, Banque Generale du Luxembourg, S.A., as
Paying Agent and Transfer Agent and Banque Bruxelles Xxxxxxx, as Paying Agent.
4. Pursuant to the terms and conditions of the Amended and Restated
Restructuring and Exchange Agreement, dated as of April 6, 1998, among BAESA,
PepsiCo and the Lenders (the "Amended Restructuring and Exchange Agreement"),
the Lenders and PepsiCo agreed with BAESA to exchange all of their obligations
under or evidenced by the Existing Facilities and the Migrating Debt (as defined
below) for (i) new notes of BAESA, (ii) Rights Offering Proceeds and (iii)
Unsubscribed Shares.
5. In satisfaction of one of the conditions to closing of the
Amended Restructuring and Exchange Agreement, in the Eurobond Exchange Offer (as
defined below), Eurobond Holders (as defined below) tendered in excess of the
required aggregate principal amount of Eurobonds necessary to allow BAESA to
consummate the exchange of Eurobonds
SS_DOCS03/449068.8
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for Class A Exchange Receipts (as defined below) and Class B Exchange Receipts
(as defined below) .
6. In satisfaction of one of the other conditions to closing of the
Amended Restructuring and Exchange Agreement, BAESA entered into the Class
Action Litigation Settlement Agreement (as defined below), which settlement was
consented to by the Steering Committee (as defined below) in the manner provided
for in the Amended Restructuring and Exchange Agreement and was approved by the
District Court (as defined below).
7. Pursuant to the terms of the Second Amended and Restated
Restructuring and Exchange Agreement, dated as of November 30, 1998, among
BAESA, PepsiCo and the Lenders (the "Second Amended Restructuring and Exchange
Agreement"), BAESA, the Lenders and PepsiCo agreed to amend and restate the
Amended Restructuring and Exchange Agreement, in its entirety, on the terms and
conditions set forth therein, for the purposes of, inter alia, (i) reducing the
aggregate amount of New Negotiable Obligations (as defined below) to be issued
by BAESA to the Lenders and PepsiCo and (ii) providing for the distribution to
the plaintiffs in the Class Action Litigation of New Ordinary Shares (as defined
below) representing 2% of the total issued and outstanding equity capitalization
of BAESA after the Closing (as defined below), which the Financial Creditors (as
defined below) and PepsiCo were entitled to under the Amended Restructuring and
Exchange Agreement, but that they agreed to forego in order to allow for the
consummation of the settlement approved in the Class Action Litigation
Settlement Order (as defined below).
8. In order to facilitate BAESA's access to the new working capital
facility required by Section 9.01 of the Second Amended Restructuring and
Exchange Agreement, BAESA, PepsiCo and the Lenders have further agreed to amend
and restate the Second Amended Restructuring and Exchange Agreement, in its
entirety, on the terms and conditions set forth in this Agreement, to provide,
inter alia, for the forgiveness by the Lenders and PepsiCo, as provided in
Article III hereof, of all interest accrued and unpaid with respect to the
Existing Facilities and the Migrating Debt.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree, subject to the terms and conditions
hereof, as follows:
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ARTICLE I
DEFINITIONS
"Alternative Eurobond Debt" means Eurobond Debt Subject to
Restructure in an aggregate amount of US$25,000,000, that was exchanged for
Class A Exchange Receipts in the Eurobond Exchange Offer.
"Bolsa" means the Bolsa de Comercio de Buenos Aires.
"Business Day" means any day that is not a Saturday, a Sunday or
other day on which banks are required or authorized to be closed in Xxx Xxxx
Xxxx xx Xxxxxx Xxxxx, Xxxxxxxxx.
"Class Action Litigation" means the litigation in the United States
District Court for the Southern District of New York captioned, In re BAESA
Securities Litigation, Master File Xx. 00 Xxx. 0000 (XXX), which was settled
pursuant to the Class Action Litigation Settlement Agreement as approved by the
Class Action Litigation Settlement Order.
"Class Action Litigation Settlement Agreement" means the Stipulation
and Agreement of Settlement dated July 31, 1998 among BAESA, Xxxxxxx Xxxxx and
the plaintiffs in the Class Action Litigation.
"Class Action Litigation Settlement Order" means the order of the
District Court dated October 7, 1998, which approved the Class Action Litigation
Settlement Agreement.
"Class Action Litigation Settlement Shares" means New Ordinary
Shares, which, after the consummation of the transactions contemplated hereby,
will represent 2% of the total issued and outstanding equity capitalization of
BAESA.
"Class A Exchange Receipts" means the Class A Exchange Receipts, the
terms of which are more fully described in the Eurobond Exchange Offering
Memorandum, issued to certain former holders of Eurobonds in the Eurobond
Exchange Offer.
"Class B Exchange Receipts" means the Class B Exchange Receipts, the
terms of which are more fully described in the Eurobond Exchange Offering
Memorandum, issued to certain former holders of Eurobonds in the Eurobond
Exchange Offer.
"Closing" means the closing of the transactions contemplated by
Article II of this Agreement.
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"Closing Date" means the date, which shall be a Business Day
selected by BAESA and the Steering Committee not more than 10 Business Days
after the satisfaction of the conditions set forth in Section 9.01 of this
Agreement, or such later date as BAESA and the Steering Committee may agree, on
which the Closing occurs.
"CNV" means the Comision Nacional de Valores of Argentina.
"Current Shareholders" means the holders of Existing Shares as of
the Record Date.
"Distributable Unsubscribed Shares" means an amount of Unsubscribed
Shares equal to (i) the product of New Ordinary Shares multiplied by a fraction
the (a) numerator of which is the aggregate Lender Debt Subject to Restructure
plus the PepsiCo Debt Subject to Restructure minus the Lender Share minus the
PepsiCo Share and (b) the denominator of which is the aggregate Financial Debt
Subject to Restructure (Adjusted) plus the PepsiCo Debt Subject to Restructure
(Adjusted) minus the New Negotiable Obligations (ii) minus (a) the Class Action
Settlement Shares plus the shares for which Rights were exercised multiplied by
(b) 1 minus the Eurobond Equity Multiplier.
"District Court" means the United States District Court for the
Southern District of New York, in which the Class Action Litigation was pending.
"Eurobond Debt Multiplier" means a fraction, (i) the numerator of
which is the Eurobond Debt Subject to Restructure minus the Alternative Eurobond
Debt and (ii) the denominator of which is the aggregate amount of the Financial
Debt Subject to Restructure (Adjusted) and the PepsiCo Debt Subject to
Restructure (Adjusted).
"Eurobond Debt Subject to Restructure" means the Eurobonds plus
accrued and unpaid interest thereon at the non-default rate of 8.5% per annum
through but not including the Closing Date.
"Eurobond Equity Multiplier" means a fraction, (i) the numerator of
which is the Eurobond Debt Subject to Restructure minus the Alternative Eurobond
Debt minus the Eurobond Share and (ii) the denominator of which is the Financial
Debt Subject to Restructure (Adjusted) plus the PepsiCo Debt Subject to
Restructure (Adjusted) minus the aggregate amount of the New Negotiable
Obligations.
"Eurobond Exchange Offer" means the exchange offer made with
Eurobond Holders, whereby, pursuant to the terms of the Eurobond Exchange
Offering Memorandum, BAESA effected an exchange of Eurobonds for (i) Class A
Exchange Receipts, which will be converted on the Closing Date into certain new
negotiable obligations of BAESA and (ii) Class
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B Exchange Receipts, which will be converted on the Closing Date into a certain
amount of New Senior Negotiable Obligations, Rights Offering Proceeds and
Unsubscribed Shares, all as further described in the Eurobond Exchange Offering
Memorandum.
"Eurobond Exchange Offering Memorandum" means the Offering
Memorandum, dated April 6, 1998, and such other documents that were prepared in
connection therewith, pursuant to which the Eurobond Exchange Offer was
conducted.
"Eurobond Holders" means the holders of Eurobonds as of the date of
the commencement of the Eurobond Exchange Offer.
"Eurobonds" shall have the meaning ascribed thereto in the recitals
hereof.
"Eurobond Share" means with respect to the aggregate principal
amount of New Senior Negotiable Obligations, an amount equal to the product of
(i)(a) $200,000,000 minus (b) an amount equal to the product of (1) $200,000,000
and (2) a fraction, the numerator of which is the aggregate Alternative Eurobond
Debt and the denominator of which is the aggregate amount of Financial Debt
Subject to Restructure and the PepsiCo Debt Subject to Restructure (Adjusted)
and (ii) the Eurobond Debt Multiplier.
"Eurobond Unsubscribed Shares" means with respect to Unsubscribed
Shares to be delivered to Holders of Class B Exchange Receipts pursuant to the
terms of the Eurobond Exchange Offer, the aggregate Unsubscribed Shares
multiplied by the Eurobond Equity Multiplier.
"Existing Debt" means all of the indebtedness and obligations under
or evidenced by (i) the Existing Facilities, (ii) the Migrating Debt, (iii) the
Class A Exchange Receipts and (iv) the Class B Exchange Receipts.
"Existing Facilities" shall have the meaning ascribed thereto in the
recitals hereof.
"Existing Ordinary Class A Shares" means Ordinary Class A Shares of
BAESA issued and outstanding as of any date prior to the Closing Date.
"Existing Ordinary Class B Shares" means Ordinary Class B Shares of
BAESA issued and outstanding as of any date prior to the Closing Date.
"Existing Shares" means the Existing Ordinary Class A Shares and the
Existing Ordinary Class B Shares, collectively.
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"Financial Creditors" means the Lenders, the holders of Class B
Exchange Receipts, and their respective successors, transferees and assigns.
"Financial Debt Subject to Restructure" means the aggregate amount
of Lender Debt Subject to Restructure (Adjusted) plus the aggregate amount of
Eurobond Debt Subject to Restructure.
"Financial Debt Subject to Restructure (Adjusted)" means the
aggregate amount of Financial Debt Subject to Restructure minus the aggregate
amount of the Alternative Eurobond Debt.
"GAAP" means generally accepting accounting principles in the
applicable jurisdiction in which such principles are applied.
"Lender Debt" means the aggregate principal amount of the
indebtedness held by the Lenders as set forth on Schedule I hereto.
"Lender Debt Subject to Restructure" means Lender Debt plus the
Migrating Debt.
"Lender Debt Subject to Restructure (Adjusted)" means the (i) Lender
Debt plus accrued and unpaid interest on such amount at the rate of 9.479% per
annum from October 1, 1996 through but not including the Closing Date, plus (ii)
Migrating Debt plus accrued and unpaid interest on such amount at the rate of
9.479% per annum from October 22, 1997 through but not including the Closing
Date.
"Lender Share" means with respect to the aggregate principal amount
of New Senior Negotiable Obligations to be delivered to the Lenders, an amount
equal to the product of (i) the aggregate amount of the New Negotiable
Obligations minus the Eurobond Share and (ii) a fraction, the numerator of which
is the aggregate Lender Debt Subject to Restructure (Adjusted), and the
denominator of which is the sum of the aggregate amount of the Lender Debt
Subject to Restructure (Adjusted) plus the PepsiCo Debt Subject to Restructure
(Adjusted).
"Liens" means a lien, security interest, charge, encumbrance,
pledge, assignment for security, mortgage or preferential arrangement of any
kind or nature whatsoever.
"Migrating Debt" means (i) US$10,225,347.20 owed to BankBoston, N.A.
and (ii) US$13,824,574.45 owed to Citibank, N.A.
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"New Negotiable Obligations" means the New Senior Negotiable
Obligations and the New Subordinated Negotiable Obligation, collectively, in an
aggregate amount equal to (i) US$100,000,000 minus (ii) an amount equal to the
product of (a) US$200,000,000 and (b) a fraction, the numerator of which is the
aggregate Alternative Eurobond Debt and the denominator of which is the
aggregate amount of Financial Debt Subject to Restructure and PepsiCo Debt
Subject to Restructure (Adjusted).
"New Ordinary Shares" means New Ordinary Class B Shares offered in
the Rights Offering, which, after issuance in connection with Rights exercised
and to Old Debtholders, holders of Class B Exchange Receipts and pursuant to the
Class Action Litigation Settlement Agreement, will represent 98% of the total
issued and outstanding equity capitalization of BAESA.
"New Senior Negotiable Obligation Indenture" means the indenture, in
form and substance satisfactory to BAESA and the Steering Committee, pursuant to
which the New Senior Negotiable Obligations will be issued.
"New Senior Negotiable Obligations" means the Senior Negotiable
Obligations in an aggregate principal amount equal to the Lender Share plus the
Eurobond Share to be issued by BAESA in accordance with Argentine Law 23,576, as
amended, to the Financial Creditors having the terms provided in the New Senior
Negotiable Obligation Indenture, including the principal terms set forth in
Exhibit A hereto.
"New Subordinated Negotiable Obligation" means the Subordinated
Negotiable Obligation in the principal amount equal to the PepsiCo Share to be
issued by BAESA in accordance with Argentine Law 23,576, as amended, to the
holder of the PepsiCo Debt Subject to Restructure (Adjusted) having the terms
provided in the New Subordinated Negotiable Obligation Indenture, including the
principal terms set forth in Exhibit B hereto.
"New Subordinated Negotiable Obligation Indenture" means the
indenture, in form and substance satisfactory to BAESA, the Steering Committee
and PepsiCo, pursuant to which the New Subordinated Negotiable Obligation will
be issued.
"Non-Eurobond Unsubscribed Shares" means the aggregate Unsubscribed
Shares minus the Eurobond Unsubscribed Shares.
"Old Debtholders" means the Lenders and PepsiCo, and their
respective successors, transferees and assigns.
"Other Funded Debt" means the claims listed on Schedule II hereof.
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"PepsiCo Debt Subject to Restructure" means the aggregate principal
amount of the indebtedness held by PepsiCo as evidenced by the PepsiCo Facility
in the aggregate principal amount set forth in Schedule I.
"PepsiCo Debt Subject to Restructure (Adjusted)" means the PepsiCo
Debt Subject to Restructure plus accrued and unpaid interest on such amount at
the rate of 9.479% per annum from October 1, 1996 through but not including the
Closing Date.
"PepsiCo Facility" means the Existing Facility provided by
Pepsi-Cola Argentina S.A.I.C.
"PepsiCo Share" means with respect to the principal amount of the
New Subordinated Negotiable Obligation to be received by PepsiCo, an amount
equal to the aggregate amount of the New Negotiable Obligations minus the
aggregate principal amount of New Senior Negotiable Obligations.
"Professional" means each lawyer, law firm, consultant, investment
bank, accounting firm or other third party retained by any member of the
Steering Committee or BAESA in connection herewith or with respect to defaults
under the Existing Facilities to which members of the Steering Committee are a
party.
"Professional Fees" means the fees and expenses accrued by each
Professional as of the Closing Date in connection with the matters contemplated
by this Agreement or in connection with the defaults under the Existing
Facilities, subject to any limitations agreed to by BAESA and any Professional.
"Proportionate Share" means with respect to the amount of
Distributable Unsubscribed Shares to be received by (i) any Lender pursuant
hereto, a fraction, the numerator of which is the amount of such Lender's Lender
Debt Subject to Restructure (Adjusted) and the denominator of which is the
aggregate Lender Debt Subject to Restructure (Adjusted) plus the PepsiCo Debt
Subject to Restructure (Adjusted) and (ii) PepsiCo pursuant hereto, a fraction,
the numerator of which is the amount of the PepsiCo Debt Subject to Restructure
(Adjusted) and the denominator of which is the aggregate Lender Debt Subject to
Restructure (Adjusted) plus the PepsiCo Debt Subject to Restructure (Adjusted).
"Pro Rata Share" means with respect to the amount of Rights Offering
Proceeds to be received by (i) any Lender pursuant hereto, a fraction, the
numerator of which is the amount of such Lender's Lender Debt Subject to
Restructure (Adjusted) and the denominator of which is the aggregate of all
Financial Debt Subject to Restructure (Adjusted) plus the PepsiCo Debt Subject
to Restructure (Adjusted) and (ii) PepsiCo pursuant hereto, a fraction, the
numerator of which is the amount of the PepsiCo Debt Subject to Restructure
(Adjusted)
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and the denominator of which is the aggregate of all Financial Debt Subject to
Restructure (Adjusted) plus the PepsiCo Debt Subject to Restructure (Adjusted).
"Ratable Share" means with respect to the amount of New Senior
Negotiable Obligations to be received by any Lender pursuant hereto, a fraction,
the numerator of which is the amount of such Lender's Lender Debt Subject to
Restructure (Adjusted) and the denominator of which is the aggregate of all
Lender Debt Subject to Restructure (Adjusted).
"Record Date" means the date to be specified in the Rights Offering
Documents, which is the date on which a holder of an Existing Share must be a
shareholder of record in order to be eligible to participate in the Rights
Offering.
"Released Party" means, for purposes of Article XI of this
Agreement, each party to this Agreement, in its individual capacity, and each
member of the Steering Committee, in its capacity as a member of the Steering
Committee.
"Releasees" shall have the meaning ascribed thereto in Section 11.01
of this Agreement.
"Releasors" shall have the meaning ascribed thereto in Section 11.01
of this Agreement.
"Requisite Majority" means, at any time, Old Debtholders holding
more than 65% of the outstanding principal amount of Lender Debt Subject to
Restructure and PepsiCo Debt Subject to Restructure.
"Right" means a registered detachable right, which will entitle the
holder thereof, in the exercise of Argentine statutory preemptive and accretion
rights, to subscribe to New Ordinary Shares in accordance with the terms of the
Rights Offering Documents.
"Rights Offering" means the offering made to Current Shareholders to
subscribe for New Ordinary Shares, through the exercise of Rights, pursuant to
the terms of the Rights Offering Documents.
"Rights Offering Documents" means the registration statement filed
with the SEC (including the prospectus filed therewith), and such other
documents filed with the SEC, the CNV and the Bolsa, pursuant to which the
Rights Offering was conducted.
"Rights Offering Proceeds" means the cash proceeds from the exercise
of Rights for the purchase of New Ordinary Shares in accordance with the terms
of the Rights Offering Documents.
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"Rights Offering Subscription Period" means the period of time fixed
in the Rights Offering Documents during which Rights may be timely exercised, as
such period may be extended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"Senior Trustee" shall have the meaning ascribed thereto in Section
2.05 of this Agreement.
"Steering Committee" means BankBoston, N.A., Citibank, N.A.,
Franklin Mutual Advisers, Inc., the High Yield Group of Trust Company of the
West and Bayerische Vereinsbank, and does not include their respective
successors and assigns.
"Undistributed Unsubscribed Shares" means the Non-Eurobond
Unsubscribed Shares minus the Distributable Unsubscribed Shares.
"Unsubscribed Shares" means that number of New Ordinary Shares equal
to the number of New Ordinary Shares for which Rights were not exercised prior
to the close of the Rights Offering Subscription Period minus the number of
Class Action Litigation Settlement Shares.
ARTICLE II
EXCHANGE BY OLD DEBTHOLDERS OF THEIR EXISTING DEBT FOR NEW
NEGOTIABLE OBLIGATIONS, RIGHTS OFFERING PROCEEDS AND UNSUBSCRIBED SHARES
Section 2.01. Lenders Exchange of Existing Debt. At the Closing,
each Lender shall exchange the Lender Debt Subject to Restructure held by such
Lender for its (i) Ratable Share of the Lender Share of the New Senior
Negotiable Obligations, (ii) Pro Rata Share of the Rights Offering Proceeds and
(iii) Proportionate Share of the Distributable Unsubscribed Shares.
Section 2.02. PepsiCo Exchange of Existing Debt. At the Closing,
PepsiCo shall exchange the PepsiCo Debt Subject to Restructure for (i) the New
Subordinated Negotiable Obligation, (ii) its Pro Rata Share of the Rights
Offering Proceeds and (iii) its Proportionate Share of the Distributable
Unsubscribed Shares.
Section 2.03. The Closing. The Closing shall occur at the offices of
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or at such other
location as BAESA and the Steering Committee shall agree.
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Section 2.04. Deliveries By Old Debtholders at Closing. At the
Closing, each Old Debtholder shall deliver to BAESA (i) each promissory note or
other instrument evidencing its Existing Debt marked "canceled" or similarly
annotated, or a customary lost note indemnity letter and (ii) such other
documents in respect of the Existing Debt held by such Old Debtholder, as may be
required under applicable law to evidence the cancellation or extinguishment of
such Existing Debt.
Section 2.05. Deliveries By BAESA at Closing. At the Closing, BAESA
shall deliver:
(a) (i) to the trustee under the New Senior Negotiable Obligation
Indenture (the "Senior Trustee") on behalf of the Lenders, a global
certificate evidencing the New Senior Negotiable Obligations executed,
authenticated and delivered as provided in the New Senior Negotiable
Obligation Indenture and (ii) to each of the Lenders, (A) such Lender's
Pro Rata Share of the Rights Offering Proceeds and Unsubscribed Shares,
which Unsubscribed Shares such Lender may elect, not less than 10 Business
Days prior to the Closing, to receive as American Depositary Shares and
(B) the Senior Trustee's confirmation that such Lender's Ratable Share of
the Lender Share of the New Senior Negotiable Obligations is evidenced by
the global certificate delivered to the Senior Trustee; and
(b) (i) to the trustee under the New Subordinated Negotiable
Obligation Indenture on behalf of PepsiCo, a global certificate evidencing
the New Subordinated Negotiable Obligation executed, authenticated and
delivered as provided in the New Subordinated Negotiable Obligation
Indenture and (ii) to PepsiCo its Pro Rata Share of the Rights Offering
Proceeds and Unsubscribed Shares, which Unsubscribed Shares PepsiCo may
elect, not less than 10 Business Days prior to the Closing, to receive as
American Depositary Shares.
Section 2.06. Delivery of Class Action Litigation Settlement Shares.
Contemporaneously with or after the Closing, in lieu of delivery of the Class
Action Litigation Settlement Shares to the Financial Creditors and PepsiCo, the
Class Action Litigation Shares will be delivered in accordance with the terms of
the Class Action Litigation Settlement Agreement.
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ARTICLE III
INTEREST FORGIVENESS
Section 3.01. Forgiveness of Interest. Immediately upon the
occurrence of the Closing, the Lenders and PepsiCo agree to forgive any and all
accrued and unpaid interest with respect to the Existing Facilities and the
Migrating Debt.
Section 3.02Cancellation of Undistributed Unsubscribed Shares. As
soon as practical after the closing, the Undistributed Unsubscribed Shares shall
be canceled by BAESA.
ARTICLE IV
THE RIGHTS OFFERING
Section 4.01. Rights Offering. The Rights Offering shall not be
consummated and the transfer of New Ordinary Shares to any person or entity that
exercises Rights shall not occur unless and until the occurrence of the Closing
Date. If the Closing Date does not occur and this Agreement is terminated, the
Rights Offering shall be null and void and the Rights Offering Documents shall
so provide.
ARTICLE V
[INTENTIONALLY OMITTED]
ARTICLE VI
PAYMENT OF PROFESSIONAL FEES
Section 6.01. Payment of Fees. Subject to the provisions of Section
6.02, at Closing, BAESA shall pay each Professional the Professional Fees due
such Professional on and as of the Closing Date. At Closing, BAESA shall also
pay all out-of-pocket expenses incurred as of the Closing Date by members of the
Steering Committee in connection with the matters contemplated by this Agreement
or in connection with the defaults under the Existing Facilities.
Section 6.02. Delivery of Final Invoice. Any Professional entitled
to be paid Professional Fees at Closing, as a condition to receiving payment,
shall deliver to BAESA
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reasonably detailed invoices at least four Business Days prior to the Closing
(with reasonable estimates of fees and expenses through the Closing).
ARTICLE VII
COVENANTS
Section 7.01. Affirmative Covenants of BAESA. BAESA hereby agrees
and covenants that it shall from the date of this Agreement until the Closing,
unless it shall have received the written consent of the Requisite Majority:
(a) Compliance with Law, Etc. Comply in all material respects with
all applicable laws, rules, regulations and orders, such compliance to
include, without limitation, paying all taxes, assessments and
governmental charges imposed upon it or upon any of its property before
the same become delinquent, except to the extent contested in good faith
by appropriate proceedings and for which reserves in conformity with GAAP
have been established;
(b) Maintenance of Existence. Preserve and maintain its corporate
existence, rights, franchises and privileges in the jurisdictions of its
incorporation and such other jurisdictions as are necessary for conducting
its businesses as presently conducted and as proposed to be conducted;
(c) Maintenance of Insurance. Keep in force insurance with
responsible and reputable insurance companies or associations with respect
to its businesses in such a manner and to such an extent as would a
prudent operator in BAESA's industries for facilities of substantially
comparable type and scale in the jurisdictions in which BAESA is engaging
in business, including, at a minimum, but not limited to, policies
covering property losses wherein settlement is on a replacement value
basis, and policies covering general liability;
(d) Truth and Accuracy of Certificates. Assure that all statements
contained in any certificate delivered pursuant to this Agreement shall be
true, complete and correct in all material respects; and assure that all
written information furnished after the date hereof by BAESA to the other
parties hereto in connection with this Agreement and the transactions
contemplated hereby will be true, complete and accurate in every material
respect and will not omit to state any information that would be required
to make such written information true, complete and accurate on the date
as of which such information is stated or certified;
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(e) Reporting Requirements. Deliver to the Lenders those financial
reports that BAESA has been delivering to the Steering Committee on a
regular basis as of the date of this Agreement;
(f) Conduct of Business Prior to the Closing. Except as specifically
contemplated by this Agreement, operate its business in the ordinary
course and use its best efforts to comply with the business plan prepared
by BAESA and delivered to the Steering Committee and PepsiCo;
(g) Corporate Actions To Issue New Negotiable Obligations. Take all
required corporate action necessary for the issuance of the New Negotiable
Obligations;
(h) Corporate Actions To Effectuate the Rights Offering. Take all
required corporate action necessary to enable it to effectuate the Rights
Offering and to issue, upon consummation of the Rights Offering, the New
Ordinary Shares to the Old Debtholders, as contemplated by this Agreement;
(i) Listing. Use its best efforts to list the New Ordinary Shares on
the Bolsa;
(j) Closing Conditions. Use its best efforts to ensure the
satisfaction of conditions in Article IX of this Agreement; and
(k) Securities Act Compliance; Qualification of Indenture. (i) File
one or more registration statements under the Securities Act of 1933, as
amended (the "Securities Act"), covering the resales of all securities
received by the Old Debtholders who request their new securities be
included therein, (ii) use its best efforts to have each such registration
statement declared effective on the Closing Date or such later date as the
Steering Committee may approve, (iii) use its best efforts to keep each
such registration statement continuously effective and current, subject to
such terms and conditions as the Steering Committee shall approve, to
enable sales to be made pursuant thereto until all securities covered by
such registration statement have been sold, or, in the case of
non-affiliates, until the securities covered by such registration
statement are no longer restricted securities (as defined in Rule 144 of
the Securities Act), and (iv) qualify the New Senior Negotiable Obligation
Indenture and the New Subordinated Negotiable Obligation Indenture under
the Trust Indenture Act of 1939, as amended. Notwithstanding anything to
the contrary contained herein, the obligations contained in paragraphs
(i), (ii) and (iii) of this section 7.01(k) shall survive the Closing.
15
Section 7.02. Negative Covenants of BAESA. BAESA hereby agrees and
covenants that it shall not from the date of this Agreement until the Closing,
unless it shall have received the written consent of the Requisite Majority:
(a) Sale of Assets. Sell, lease, transfer or otherwise dispose of,
any assets, or grant any option or other right to purchase, lease or
otherwise dispose of, any assets, other than: (i) sales of inventory,
receivables, post-dated checks and obsolete bottles and shells in the
ordinary course of businesses for cash and without recourse and (ii) sales
of other assets, the net proceeds of which do not exceed US$500,000 (or
its equivalent in another currency) in the aggregate;
(b) Payment of Existing Debt. Pay any obligation in respect of
Existing Debt, the Eurobonds or any Other Funded Debt (other than Other
Funded Debt set forth on Exhibit D hereof) or prepay any other material
obligation;
(c) Additional Indebtedness, No Guarantees. Create, incur or assume
any indebtedness for borrowed money, or guarantee or otherwise assure any
person or entity against loss with respect to any indebtedness for
borrowed money;
(d) Liens, Etc. Create any Lien, other than:
(1) Liens imposed by operation of law securing an obligation
that either is not delinquent or the validity of which is being
contested in good faith and for which adequate reserves in
conformity with GAAP have been established;
(2) deposits or pledges to secure the payment of worker's
compensation, unemployment insurance or other social security
benefits or obligations to the extent required by law, or to secure
the performance of bids, tenders, trade contracts, leases, public or
statutory obligations, surety or appeal bonds or other obligations
of like nature to the extent required by law, in each case incurred
in the ordinary course of business;
(3) easements, rights of way, servitudes or zoning or building
restrictions and other minor encumbrances on real property and
irregularities in the title to such property that do not in the
aggregate materially impair the use or value of such property or
risk the loss or forfeiture of title thereto;
(4) Liens in respect of any purchase money obligation for
tangible property acquired after April 6, 1998 and to be used in the
ordinary course of business by BAESA not exceeding in the aggregate
US$100,000 (or its
16
equivalent in another currency), provided, however, that any such
Liens shall not extend to property or assets of BAESA not financed
by such purchase money obligation;
(5) Liens resulting from judgments not exceeding in the
aggregate US$1,000,000 (or its equivalent in another currency),
provided, however, that the execution or other enforcement of such
Liens is effectively stayed and that the claims secured thereby are
being actively contested in good faith and by appropriate
proceedings and for which adequate reserves in conformity with GAAP
in the applicable jurisdiction have been established by BAESA;
(6) Liens incurred in connection with obtaining the working
capital facility contemplated by Section 9.01(l) hereof; and
(7) Liens on BAESA's interest in ECUSA to secure trade
accounts payable due from BAESA to Cervecerias Chilenas Unidas S.A.
(e) Mergers, Etc. Merge, consolidate or otherwise combine with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or any material portion of
its assets (whether now owned or hereafter acquired) to any entity, or
acquire all or any material portion of the assets of any entity that is
not a subsidiary of BAESA;
(f) Non-Related Activities. Engage, directly or indirectly, in any
activity, unless such activity is, directly or indirectly, related to the
operation of the business of BAESA as conducted on the date hereof;
(g) Distributions or Dividends. Directly or indirectly, declare or
pay any dividend or make any distribution on or with respect to Existing
Shares or Existing Class C Shares, or purchase, redeem or otherwise
acquire any Existing Shares or Existing Class C Shares;
(h) Loans, Advances and Investments. Except as otherwise expressly
permitted by this subsection, at any time, make or suffer to remain
outstanding any loan or advance to, or purchase, acquire or own any stock,
bonds, notes or securities of, or any partnership interest (whether
general or limited) in, or any other interest in, or make any capital
contribution to, any other person or entity other than:
(1) advances to employees to meet expenses incurred by such
employees or with respect to salary advances and other similar
advances, in each case to the extent made in the ordinary course of
business;
17
(2) any capital stock, bonds, notes, securities, partnership
or joint venture interests that are owned by BAESA on the date
hereof and any similar items received as a distribution or dividend
in respect thereof or in exchange therefor; and
(3) investments of cash in the ordinary course of business in
the types of instruments and for similar maturities as existed prior
to the date hereof consistent with past business practices;
(i) Maintenance of Business. Except as contemplated by this
Agreement, make or suffer any changes in any of its business objectives,
purposes or operations that might in any way have a material adverse
effect on BAESA;
(j) Transactions with Affiliates. Enter into or be a party to any
transaction with any affiliate, except in the ordinary course of BAESA's
business and upon fair and reasonable terms that are no less favorable to
BAESA than would be obtained in a comparable arm's length transaction with
a person not an affiliate; and
(k) New Shares; Options. Issue any new shares of stock or stock
options, provided, however, that BAESA is permitted to issue such Ordinary
Class B Shares as are necessary to provide for the conversion of Existing
Ordinary Class A Shares into Ordinary Class B Shares, if a request to
convert is made by the holder of Existing Ordinary Class A Shares.
Section 7.03. Affirmative Covenant of PepsiCo. PepsiCo hereby agrees
and covenants that it shall, and shall require its subsidiaries to, vote the
Existing Shares held by PepsiCo or its subsidiaries on the date of this
Agreement in favor of this Agreement and the transactions contemplated hereby,
at any duly convened shareholders' meeting of BAESA at which a vote is taken on
this Agreement or any of the other transactions, documents, agreements or other
actions contemplated hereby.
Section 7.04. Negative Covenants of PepsiCo. PepsiCo hereby agrees
and covenants that it shall not, and shall not permit any of its subsidiaries,
from the date of this Agreement until the Closing, unless it shall have received
the written consent of the holders of more than 60% of the Lender Debt Subject
to Restructure (Adjusted):
(a) Exclusive Bottling Appointments. Voluntarily terminate or
transfer (i) the Master Franchise Commitment Letter dated November 1,
1993, as amended from time to time ("Master Franchise Letter"), (ii) any
Exclusive Bottling Appointment issued by PepsiCo or any of its
subsidiaries to BAESA or any of its affiliates or any of their respective
predecessor companies, in connection with the Master Franchise Letter
18
(collectively, the "Exclusive Bottling Appointments") or (iii) any
agreement, understanding or arrangement between PepsiCo and BAESA or any
of their respective affiliates related to the Master Franchise Letter or
the Exclusive Bottling Appointments (together with the Master Franchise
Letter, and the Exclusive Bottling Appointments, the "EBA Documents");
(b) Amendments to EBA Documents. Amend any of the EBA Documents in
any manner that would be materially adverse to BAESA or any of its
affiliates; and
(c) Maintenance of Shareholdings in BAESA. Sell, transfer or dispose
of, or cause the sale, transfer or disposition of, shares of BAESA or
equity interests in any subsidiary or affiliate of PepsiCo that owns any
shares of BAESA other than sales or transfers to a wholly owned subsidiary
of PepsiCo.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Section 8.01. Representations and Warranties of BAESA. BAESA
represents and warrants to each Lender that as of the date hereof:
(a) BAESA is a corporation duly organized, validly existing and in
good standing under the laws of the Republic of Argentina and it has the
power and authority to own its property, to conduct its business as
currently conducted and as proposed to be conducted and to consummate the
transactions contemplated by this Agreement.
(b) The execution, delivery and performance by BAESA of this
Agreement are within its corporate powers, have been, subject to any
requisite approval of the holders of Existing Shares, duly authorized by
all necessary action and do not contravene the charter or by-laws of BAESA
or any law or contractual restriction binding or affecting BAESA.
(c) Except as otherwise provided in this Agreement, no
authorization, approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the
due execution, delivery and performance of this Agreement by BAESA.
(d) BAESA has obtained all authorizations, approvals (including
exchange control approvals) and consents of, and has made all filings and
registrations with, each
19
and every governmental authority and any third party necessary for the
operation and maintenance of its business as currently conducted and as
proposed to be conducted.
(e) This Agreement has been duly executed and delivered by BAESA and
constitutes the legal, valid and binding obligation of BAESA, enforceable
against BAESA in accordance with its terms.
(f) The authorized capital stock of BAESA consists, on the date
hereof, of 16,372,973 Existing Ordinary Class A Shares and 56,127,114
Existing Ordinary Class B Shares, each of which has a par value of $0.01
per share, and all of which are duly and validly issued and outstanding,
fully paid and nonassessable.
(g) There are no options to purchase equity interests in BAESA
existing as of the date hereof.
(h) The information, reports, financial statements and schedules
furnished in writing by or on behalf of BAESA in connection with the
negotiation, preparation or delivery of this Agreement or included herein
or delivered pursuant hereto, when taken individually or as a whole, do
not contain any untrue statement of any material fact or omit to state any
material fact necessary to make such information, reports, financial
statements and schedules, in light of the circumstances under which they
were made, not misleading.
(i) BAESA has not received any claim or notice of potential claim
regarding obligations of any of its former subsidiaries, except as set
forth in Schedule III hereof.
(j) As of the Closing Date, BAESA will have no obligations to
PepsiCo, other than normal commercial obligations relating to the EBA
Documents and obligations with respect to the PepsiCo Facility.
(k) Any New Ordinary Shares to be delivered pursuant to this
Agreement shall, when issued and delivered, be duly and validly issued,
fully paid and nonassessable.
(l) The New Senior Negotiable Obligation Indenture and the New
Subordinated Negotiable Obligation Indenture and the transactions
contemplated thereunder, will as of the Closing Date, be duly authorized
by all necessary corporate action, and each such indenture, when executed
and delivered by BAESA and each such indenture trustee, will constitute
the legal, valid and binding obligation of BAESA, enforceable in
accordance with its terms.
20
(m) The New Senior Negotiable Obligations, will as of the Closing
Date, be duly authorized by BAESA and, when duly executed, authenticated,
issued and delivered in the manner provided for in the New Senior
Negotiable Obligation Indenture, and when approved by the CNV will be
obligaciones negociables in accordance with Argentine Law 23,576, as
amended by Law 23,962, eligible to enjoy the tax benefits provided
therein, and will constitute legal, valid and binding obligations of
BAESA, enforceable against BAESA in accordance with their terms, subject
to the law of bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting enforcement of creditors'
rights generally and to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(n) The New Subordinated Negotiable Obligation, will as of the
Closing Date, be duly authorized by BAESA and, when duly executed,
authenticated, issued and delivered in the manner provided for in the New
Subordinated Negotiable Obligation Indenture, and when approved by the CNV
will be obligaciones negociables in accordance with Argentine Law 23,576,
as amended by Law 23,962, eligible to enjoy the tax benefits provided
therein, and will constitute a legal, valid and binding obligation of
BAESA, enforceable against BAESA in accordance with its terms, subject to
the law of bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting enforcement of creditors'
rights generally and to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(o) The Rights Offering Documents and the resale registration
statement (including any prospectus prepared in connection therewith) will
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements made, in light of the
circumstances under which they were made, not misleading.
(p) As of the date hereof and as of the Closing Date, BAESA has no
indebtedness for borrowed money other than Existing Debt, the Eurobonds
and Other Funded Debt.
(q) BAESA has complied with the obligations on its part to be
performed set forth in Section 7.01 and Section 7.02 of the Amended
Restructuring and Exchange Agreement.
(r) The recapitalization contemplated by this Agreement was approved
at a shareholders meeting duly convened and conducted under Argentine law.
21
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.01. Conditions to Closing. The occurrence of the Closing
Date shall be subject to each of the following conditions:
(a) No Order. No court of competent jurisdiction or governmental
agency or authority shall have issued, or entered any injunction or other
order (whether temporary, preliminary or permanent) that is in effect and
has the effect of restraining or prohibiting consummation of the
transactions contemplated by this Agreement.
(b) CNV Approval of New Senior Negotiable Obligations and New
Subordinated Negotiable Obligation. BAESA shall have received all
requisite approvals for the issuance of the New Senior Negotiable
Obligations and the New Subordinated Negotiable Obligation from the CNV.
(c) Definitive Documentation. The New Senior Negotiable Obligation
Indenture and the New Subordinated Negotiable Obligation Indenture shall
have been executed and delivered by BAESA and the trustees parties thereto
and the New Senior Negotiable Obligations and the New Subordinated
Negotiable Obligation shall have been duly authenticated and issued
thereunder.
(d) [Intentionally Omitted]
(e) Execution by all Old Debtholders. Each institution listed on
Schedule I hereof shall have executed and delivered to BAESA a counterpart
of this Agreement.
(f) Rights Offering Approvals. The Rights Offering Documents shall
be satisfactory to BAESA and the Steering Committee and BAESA shall have
received all requisite approvals from the SEC and CNV for the commencement
of the Rights Offering and for the issuance of the New Ordinary Shares and
the Rights.
(g) Expiration of Rights Offering Period. The Rights Offering
Subscription Period shall have expired.
(h) Existence of Exclusive Bottling Appointment. The EBA Documents
shall be in full force and effect, except as such EBA Documents shall have
been amended to reflect any modifications agreed upon by PepsiCo, BAESA
and the Steering Committee.
22
(i) Resale Registration. Unless waived by the Steering Committee,
the resale registration statement shall have been filed confidentially
with the SEC, provided, however, that the waiver of the condition in this
Section 9.01(i) shall not release BAESA of its obligations under Section
7.01(k) of this Agreement.
(j) Board Composition. The Board of Directors of BAESA initially
shall consist of one member selected by Franklin Mutual Advisers, Inc. and
the High Yield Group of Trust Company of the West and such other members
as are selected by PepsiCo and the Steering Committee.
(k) Opinions of Counsel. The Lenders shall have received opinions of
counsel satisfactory to the Steering Committee regarding (i) the
enforceability of, and BAESA's authority to enter into, this Agreement,
(ii) the enforceability of the New Senior Negotiable Obligations, the New
Subordinated Negotiable Obligation and the due issuance of the New
Ordinary Shares, and (iii) such other opinions as reasonably requested by
the Steering Committee and that are customary in transactions of the
nature contemplated by the Eurobond Exchange Offer and the Rights
Offering.
(l) Working Capital Facility. A working capital facility, on terms
approved by the Requisite Majority and sufficient to meet BAESA's ongoing
working capital requirements, shall be in place and all funding conditions
contained therein shall have been satisfied.
(m) Simultaneous Closings. The exchange of Class A Exchange Receipts
and Class B Exchange Receipts for, as the case may be, New Senior
Negotiable Obligations, Rights Offering Proceeds, Unsubscribed Shares or
other consideration, and the consummation of the Rights Offering shall
occur simultaneously with the occurrence of the Closing Date.
(n) Noncontravention. The issuance of the New Senior Negotiable
Obligations, the New Subordinated Negotiable Obligation and the New
Ordinary Shares, and compliance by BAESA with the provisions of this
Agreement and the consummation of the transactions contemplated herein,
shall not conflict with any law, order or charter instrument or agreement
to which BAESA is a party or by which any material amount of its property
is bound.
(o) Compliance; Certificate. The representations and warranties of
BAESA herein shall be true and correct in all material respects when made
and on the Closing Date. BAESA shall have performed in all material
respects all obligations required to be performed by BAESA from the date
hereof to the Closing and the Steering Committee shall have received a
certificate from an executive officer of BAESA to
23
such effect and to the effect that the conditions set forth above, other
than clause (f), have been satisfied.
ARTICLE X
TERMINATION BY THE REQUISITE MAJORITY OR BAESA
Section 10.01. Termination. This Agreement may be terminated:
(i) by the Requisite Majority or BAESA, upon written notice to each
of the other parties to this Agreement, if the Closing Date shall not have
occurred by May 15, 1999;
(ii) by the Requisite Majority if there shall have been a material
adverse change in the condition, financial or otherwise, of BAESA or its
subsidiaries from the financial projections delivered to the Lenders on
October 28, 1998;
(iii) by the Requisite Majority, upon written notice to each of the
other parties to this Agreement, if BAESA or PepsiCo is not in compliance
in any material way with any of the covenants contained in Article VII of
this Agreement; and
(iv) automatically, without further notice, upon (1) the entry of an
order for relief under the United States Bankruptcy Code, (2) the filing
of a Concurso Preventivo by BAESA, or (3) the filing of a Quiebra or any
other insolvency proceeding by BAESA under the Argentine Bankruptcy Act
(Law 24,522).
ARTICLE XI
RELEASES
Section 11.01. Releases. Upon the occurrence of the Closing, each
party hereto, for itself, its successors, assigns, affiliates, directors, (other
than those directors of BAESA that are not directors of BAESA on the Business
Day prior to the Closing Date) sindicos, officers, employees, agents, attorneys,
consultants and advisors (collectively, the "Releasors") will acquit, waive,
release and discharge each Released Party and each of their respective
successors, assigns, affiliates, directors (other than those directors of BAESA
that are not directors of BAESA on the Business Day prior to the Closing Date),
sindicos, officers, employees, agents, attorneys, consultants and advisors of
(collectively, the "Releasees"), of and from any and all claims (including,
without limitation, any liabilities, damages, demands and causes of action to
the extent arising therefrom) whatsoever, in law or in equity, whether
24
known or unknown, which the Releasors ever had, now have, or hereinafter can,
shall or may have against any Releasee by reason or any matter arising out of
the Existing Debt and any and all other actions or omissions relating in any way
thereto; provided, however, that BAESA reserves the right to assert any claim so
released as an affirmative defense or offset to any indemnification claim by a
Released Party made or on account of matters arising prior to the Closing Date.
Notwithstanding the foregoing, in no event shall BAESA be released from any of
its obligations in this Agreement, including, without limitation, its
obligations with respect to the New Negotiable Obligations.
ARTICLE XII
PEPSICO OBLIGATIONS
Section 12.01. Payment of Certain Employee Obligations. PepsiCo
shall pay all costs, liabilities and expenses in connection with the termination
of the employment of, and any employment or other arrangements with, Messrs.
Xxxxxx and Banos, including any and all severance amounts payable to such
individuals.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.01. Amendments. No amendment, consent or waiver of
compliance with any provision of or condition set forth in this Agreement, shall
be effective unless the same shall be in writing and signed by BAESA and the
Requisite Majority (or the Steering Committee, where this Agreement so
provides), at the time such amendment, consent or waiver is given or made, and
then such amendment, consent or waiver shall be effective only in the specific
instance and for the specific purpose for which given, provided, however, that
no amendment to (i) the definition of Pro Rata Share, (ii) the definition of
Ratable Share, (iii) the interest rate, maturity or principal amount of the New
Negotiable Obligations, (iv) the subordination provisions of the New
Subordinated Negotiable Obligation or (v) this Section 13.01, shall be effective
unless such amendment shall be in writing and be signed by each Old Debtholder
intended to be bound thereby, provided further, however, that no amendment to
Exhibits A or B hereto shall be effective unless such amendment shall be in
writing and signed by Old Debtholders holding not less than 75% of the sum of
the principal amounts of Lender Debt Subject to Restructure (Adjusted) and
PepsiCo Debt Subject to Restructure (Adjusted).
Section 13.02. Notices. (a) All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telecopier) and mailed, telecopied or hand delivered,
25
(i) as to each Lender, at its address set forth under its name on
the signature pages hereof or at such other address as shall be designated
in writing to BAESA and the other parties hereto; and
(ii) as to BAESA, at Xxxxx Xxxxx Xxxx 000, 0xx Xxxxx, 0000 Xxx
Xxxxxx, Xxxxxxxxx, Facsimile Number 00-0-000-0000, Attention: Xxxxxxx
Xxxxx, with a copy to (1) Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopier Number 212-848-7179, Attention: Xxxxxx
XxXxxxx, Esq. and (2) Xxxxxxx & Xxxx, Xxxxx 0000, 0000 Xxxxxx Xxxxx,
Xxxxxxxxx, Telecopier Number 54-1-318- 9999, Attention: Xx. Xxxxxxx
Xxxxxxx; and
(iii) as to PepsiCo, at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000- 1444, Telecopier Number 000-000-0000, Attention: Xxxxxxxx X.
Xxxxxx, Esq.
(b) All notices hereunder shall, when mailed, hand delivered or
telecopied, be effective when delivered to the receiving party, if by mail or
hand delivery and when telecopied, if by telecopier.
(c) Failure to deliver copies in accordance with paragraph (a) of
this Section 13.02 shall not constitute a default under this Agreement.
Section 13.03. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
of this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart hereof.
Section 13.04. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, United
States, without giving effect to the principles of conflicts of law of such
jurisdiction.
Section 13.05. Jurisdiction; Waiver of Process Agent: Immunity. (a)
Each party hereto irrevocably (i) submits to the jurisdiction of any New York
State or Federal court sitting in the City of Xxx Xxxx, Xxxxx xx Xxx Xxxx,
Xxxxxx Xxxxxx, in any action or proceeding arising out of or relating to this
Agreement and (ii) agrees that all claims in respect of such action or
proceeding shall be heard in such New York State court or such Federal court.
Each party hereto hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. Each party hereto agrees that a final judgment in any
such action or proceeding shall be
26
conclusive and may be enforced in other jurisdictions by suit on the judgment or
by any other matter provided by law.
(b) BAESA hereby irrevocably appoints CT Corporation System (the
"Process Agent"), with an office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx, X.X.X., as its agent to receive service of copies of the summons and
complaint and any other process which may be served in an action or proceeding
brought with respect to this Agreement. Such service may be made by mailing or
delivering a copy of such process to BAESA in care of the Process Agent at the
Process Agent's address, and BAESA hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf, or service may be made on
the Process Agent and BAESA, or as otherwise provided by law.
(c) To the extent that any party hereto may be entitled, in any
jurisdiction in which judicial proceedings may at any time be commenced with
respect to this Agreement, to claim for itself or its revenues, assets or
properties immunity (whether by reason of sovereignty or otherwise) from suit,
from the jurisdiction of any court (including, but not limited to, any court of
the United States of America or the State of New York), from attachment prior to
judgment, from set-off, from execution of a judgment or from any other legal
process, and to the extent that in any such jurisdiction there may be attributed
such immunity (whether or not claimed), each party hereto irrevocably agrees not
to claim and irrevocably waives such immunity.
Section 13.06. Public Announcements. No party hereto shall make, or
cause to be made, any press release or public announcements in respect of this
Agreement or the transactions contemplated herein without the prior consent of
BAESA and, except as to press releases to the extent required by applicable law,
the Steering Committee.
Section 13.07. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 13.08. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, transferees and assigns. Notwithstanding anything herein to the
contrary, each Old Debtholder that has become a party hereto may transfer any or
all of the Existing Debt held by it, provided that the transferee agrees to be
bound by the terms of this Agreement by signing a counterpart hereof and
delivering same to BAESA and the Steering Committee. If any transfer represents
all of the Existing Debt held by an Old Debtholder, such Old Debtholder shall be
released from its obligations hereunder.
27
Section 13.09. Steering Committee Action. Action taken by the
Steering Committee may be taken if approved by members thereof holding at least
85% of the principal amount of Existing Debt held by all members of the Steering
Committee at such time.
Section 13.10. No Third-Party Beneficiaries. This Agreement is for
the sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person or
entity, other than the parties hereto and such assigns, any legal or equitable
rights hereunder.
Section 13.11. Satisfaction of Obligations. This Agreement shall not
constitute a novation; however, each of the Old Debtholders agrees that the
timely performance by BAESA of all of its obligations and liabilities hereunder
in accordance with the terms hereof and consummation of the Closing in
accordance with the terms hereof shall constitute a full, complete and final
satisfaction of the obligations and liabilities of BAESA under and pursuant to
each of the Existing Facilities to which it is a party and shall constitute
satisfaction in full of all Existing Debt under the Existing Facilities to which
the Old Debtholders are parties.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BUENOS AIRES EMBOTELLADORA S.A.
By /s/ [illegible]
--------------------------------------
29
PEPSICO, INC.
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
30
CITIBANK, N.A.
By /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
31
BANKBOSTON, N.A.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
32
BAYERISCHE VEREINSBANK AG
By /s/ X.X. Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
Title: Representative
33
BANCO SUPERVIELLE SOCIETE GENERALE
By /s/ Xxxx Xxxxxx Abizzati
-------------------------------------
Name: Xxxx Xxxxxx Abizzati
Title: Manager, Risk Area
By /s/ German Xxxxxx [illegible]
-------------------------------------
Name: German Xxxxxx [illegible]
Title: Manager
34
BEAR, XXXXXXX & CO. INC.
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Managing Director
35
CONTINENTAL CASUALTY CO.
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
36
DLJ CAPITAL FUNDING, INC.
By /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
Title: Managing Director
37
FRANKLIN MUTUAL ADVISERS, INC., as advisers
to Mutual Discovery Fund and Mutual
Discovery Securities Fund
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
38
INTERMARKET MANAGEMENT CORP.
On behalf of:
Fernwood Associates L.P.
Fernwood Restructuring Ltd.
Fernwood Total Return Holdings Ltd.
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
39
LAZARD FRERES & CO. LLC
By /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
40
THE MAINSTAY FUNDS,
on behalf of its High Yield Corporate
Bond Fund Series
BY: MACKAY XXXXXXX FINANCIAL CORPORATION
By /s/ X. Xxxxxx Hawks
-------------------------------------
Name: X. Xxxxxx Hawks
Title: Analyst
41
MAINSTAY VP SERIES FUND, INC.
on behalf of its High Yield Corporate
Bond Portfolio
BY: MACKAY XXXXXXX FINANCIAL CORPORATION
By /s/ X. Xxxxxx Hawks
-------------------------------------
Name: X. Xxxxxx Hawks
Title: Analyst
42
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: Senior Vice President
By
-------------------------------------
Name:
Title:
43
TCW LEVERAGED INCOME TRUST, L.P.
By TCW Investment Management Company,
its Investment Manager
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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
44
WHIPPOORWILL ASSOCIATES, INCORPORATED,
as agent for the following entities:
President and Fellows of Harvard College
The Rockefeller Foundation
Xxxx Partners III, X.X.
Xxxx Partners IV, X.X.
Xxxx Offshore Fund Trust
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
XXXX PARTNERS, L.P.
BY: WHIPPOORWILL ASSOCIATES, INCORPORATED,
as general partner
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
XXXX PARTNERS II, L.P.
BY: WHIPPOORWILL ASSOCIATES, INCORPORATED,
as general partner
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
45
POLICE OFFICERS PENSION SYSTEM
OF THE CITY OF HOUSTON
BY: MACKAY XXXXXXX FINANCIAL CORPORATION
By /s/ X. Xxxxxx Hawks
-------------------------------------
Name: X. Xxxxxx Hawks
Title: Analyst
46
HIGHBRIDGE CAPITAL CORPORATION
BY: MACKAY XXXXXXX FINANCIAL CORPORATION
By /s/ X. Xxxxxx Hawks
-------------------------------------
Name: X. Xxxxxx Hawks
Title: Analyst
47
XXXXX AND XXXXXXXXXX MASTER
RETIREMENT TRUST
BY: MACKAY XXXXXXX FINANCIAL CORPORATION
By /s/ X. Xxxxxx Hawks
-------------------------------------
Name: X. Xxxxxx Hawks
Title: Analyst
48
CONDOR PARTNERS
By /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: President
Exhibit A
Summary of Terms - New Senior Negotiable Obligations
----------------------------------------------------
Interest Rate: A fixed rate of interest per annum equal to
the lower of (i) 12% and (ii) 250 basis points
above the rate of interest for Argentine sovereign
debt of a similar maturity.
Original Issue Date: Closing Date
Ranking: The New Senior Negotiable Obligations will rank
pari passu with all other senior unsecured debt of
BAESA and shall be senior to the New Subordinated
Negotiable Obligation.
Initial Offering: The New Senior Negotiable Obligations will
initially be offered (i) to the Lenders pursuant
to the exemption from registration provided
byss.4(2) of the U.S. Securities Act of 1933, as
amended (the "1933 Act") and (ii) to holders of
Eurobonds pursuant to an exchange offer exempted
from registration pursuant toss.3(a)(9) of the
1933 Act.
Resale of Securities: BAESA will file with the SEC a resale registration
statement with respect to the New Senior
Negotiable Obligations and shall use its best
efforts to ensure that such resale registration
statement shall become effective on the Closing
Date.
Form of Securities: Global Note registered in the name of a nominee
of DTC.
Covenants: The Indenture under which the New Senior
Negotiable Obligations will be issued will
include, among others, the following negative
covenants:
1. Sale of assets - the net cash proceeds of asset
sales in an amount greater than US$10,000,000
in any year shall be used to tender for the New
Senior Negotiable Obligations and the New
Subordinated Negotiable Obligation ratably at
par together with accrued interest;
2. Negative Pledge - subject to liens for the
working capital lenders and other customary
permitted liens;
A-2
3. Additional Indebtedness - no additional
indebtedness above US$50,000,000 in the
aggregate at any time (including the working
capital facility); and
4. No Dividends or Redemption of Capital Stock.
Change of Control: Upon the occurrence of a change of control, during
the first year after issuance of the New Senior
Negotiable Obligations, BAESA will be required to
call the New Senior Negotiable Obligations at par
together with accrued interest.
After the first year, and through repayment in
full, upon the occurrence of a change of control
the holders shall be entitled to put the New
Senior Negotiable Obligations to BAESA at 101% of
the principal amount thereof together with accrued
interest.
Call Protection: Except in the event of a change of control during
the first year after issuance of the New Senior
Negotiable Obligations, BAESA shall not have any
right to call the New Senior Negotiable
Obligations through the fourth anniversary of
issuance. Thereafter, BAESA shall be entitled to
call for any reason the New Senior Negotiable
Obligations at a redemption price equal to (i)
100% of the principal amount thereof plus (ii) 50%
of the Interest Rate thereon, together with
accrued interest. The redemption price shall be
reduced evenly on each anniversary of issuance so
that in the seventh year after issuance the New
Senior Negotiable Obligations may be redeemed at
par together with accrued interest.
Events of Default: Market
[Listing: NYSE (if accepted)]
Exhibit B
Summary of Terms - New Subordinated Negotiable Obligation
---------------------------------------------------------
Interest Rate: A fixed rate of interest per annum equal to
the lower of (i) 12% and (ii) 250 basis points
above the rate of interest for Argentine sovereign
debt of a similar maturity.
Original Issue Date: Closing Date
Ranking: The New Subordinated Negotiable Obligation will
rank pari passu with all other senior unsecured
debt of BAESA, but shall be subordinated only to
the New Senior Negotiable Obligations.
Initial Offering: The New Subordinated Negotiable Obligation will
initially be offered to PepsiCo pursuant to the
exemption from registration provided by ss. 4(2)
of the U.S. Securities Act of 1933, as amended
(the "1933 Act").
Resale of Securities: BAESA will file with the SEC a resale registration
statement with respect to the New Subordinated
Negotiable Obligation and shall use its best
efforts to ensure that such resale registration
statement shall become effective on the Closing
Date.
Form of Securities: Global Note registered in the name of a nominee
of DTC.
Covenants: The Indenture under which the New Subordinated
Negotiable Obligation will include, among others,
the following negative covenants:
1. Sale of assets - the net cash proceeds of asset
sales in an amount greater than US$10,000,000
in any year shall be used to tender for the New
Senior Negotiable Obligations and the New
Subordinated Negotiable Obligation ratably at
par together with accrued interest;
2. Negative Pledge - subject to liens for the
working capital lenders and other customary
permitted liens;
B-2
3. Additional Indebtedness - no additional
indebtedness above US$50,000,000 in the
aggregate at any time (including the working
capital facility); and
4. No Dividends or Redemption of Capital Stock.
Change of Control: Upon the occurrence of a change of control, during
the first year after issuance of the New Senior
Negotiable Obligations, BAESA will be required to
call the New Subordinated Negotiable Obligation at
par together with accrued interest.
After the first year, and through repayment in
full, upon the occurrence of a change in control
the holder shall be entitled to put the New
Subordinated Negotiable Obligation to BAESA at
101% of the principal amount thereof together with
accrued interest.
Call Protection: Except in the event of a change of control during
the first year after issuance of the New
Subordinated Negotiable Obligation, BAESA shall
not have any right to call the New Subordinated
Negotiable Obligation through the fourth
anniversary of issuance. Thereafter, BAESA shall
be entitled to call for any reason the New
Subordinated Negotiable Obligation at a redemption
price equal to (i) 100% of the principal amount
thereof plus (ii) 50% of the Interest Rate
thereon, together with accrued interest. The
redemption price shall be reduced evenly on each
anniversary of issuance so that in the seventh
year after issuance the New Subordinated
Negotiable Obligation may be redeemed at par
together with accrued interest.
Events of Default: Market
[Listing: NYSE (if accepted)]
Exhibit C
[Intentionally Omitted]
Exhibit D
Other Funded Debt
Lender Outstanding Debt Facility
------ ---------------- --------
Cervecerias Chilenas
Unidas S.A. $26.589MM ECUSA Shares
XXXXXXX $2.109MM MDP (Unsecured)
Xxxxxx Sud/Others $10MM Account Receivables Factoring
Agreement/Post Dated Checks
