Exhibit 10.2
US$15,000,000
CREDIT AGREEMENT
Dated as of June 1, 2001
among
SPAL INDUSTRIA BRASILEIRA DE BEBIDAS, S.A
as Borrower
-----------
and
PANAMERICAN BEVERAGES INC.
as Guarantor
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and
CITIBANK, N.A. -- INTERNATIONAL BANKING FACILITY
as Bank
-------
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CREDIT AGREEMENT
Dated as of June 1, 2001
SPAL INDUSTRIA BRASILEIRA DE BEBIDAS, S.A. a company organized and existing
under the laws of the Federative Republic of Brazil (the "Borrower"),
PANAMERICAN BEVERAGES, INC., a company organized and existing under the laws
of the Republic of Panama (the "Guarantor"), and CITIBANK, N.A. --
INTERNATIONAL BANKING FACILITY, an international banking facility of a United
States national banking association organized and existing under the laws of
the United States (the "Bank"), hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means each of the disbursements to be made by the Bank in
United States Dollars at the request of the Borrower in accordance with
Section 2.01 hereof, or as the context may require, the principal amount of
such disbursement from time to time outstanding.
"Business Day" means a day on which banks are not required or authorized
to close in New York City or Sao Paulo, Brazil.
"Citibank London" means the main office in London, England of Citibank,
N.A., a national banking association organized and existing under the laws of
the United States of America, which office is located on the date hereof at
Xxxxxxxx Xxxxx, 000 Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx.
"Citibank-NY" means the branch of Citibank, N.A., a national banking
association organized and existing under the laws of the United States of
America, located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx
of America.
Consolidated Net Worth" means, for any date the consolidated
stockholders' equity of the Guarantor and its Subsidiaries (set forth on the
line "total shareholders' equity" on the Guarantor's balance sheet) on such
date.
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"Disbursement Date" for an Advance means the date on which the Advance is
made by the Bank to the Borrower pursuant to Section 2.01.
"Indebtedness" means (i) indebtedness for borrowed money or for the
deferred purchase price of property or services, (ii) obligations as lessee
under leases which shall have been or should be, in accordance with generally
accepted Brazilian accounting principles, recorded as capital leases, (iii)
obligations under direct or indirect guarantees in respect of indebtedness or
obligations of others of the kinds referred to in clause (i) or (ii) above,
and (iv) obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in clause (i)
or (ii) above.
"Interest Payment Date" means, with respect to each Interest Period, the
last day of such Interest Period.
"Interest Period" means, with respect to each Advance, the period of
approximately six months used as the basis of computation of interest on an
Advance, beginning with the Disbursement Date of such Advance and ending on
but not including the day six months thereafter; and thereafter the interest
periods shall begin on such final day and end but not include the day which is
six months thereafter; provided, that if such Interest Period is scheduled to
end on a day which is not a Business Day, the Interest Period shall be
extended to the next succeeding Business Day unless such extension would cause
such Interest Period to end on the next calendar month, in which event such
Interest Period shall end on the next preceding Business Day.
"Six Month LIBOR" as of a given date means the rate offered by Citibank
London to prime banks in the London Interbank Market at 11:00 a.m. (London
Time) two London Banking Days prior to that date with reference to advances of
six months' tenor of amounts approximately equal to the principal amount of
the Advance then outstanding. For this purpose, a "London Banking Day" shall
mean a day on which banks are not required or authorized to close in London.
"Person" means any individual, partnership, company, joint venture,
trust, corporation, any government or governmental agency or authority,
unincorporated entity, or any other legal entity, including the Borrower and
the Guarantor.
"Subsidiary" means any Person which is directly or indirectly owned or
effectively controlled by the Borrower or by the Guarantor.
"Voting Trust Agreement" means the Voting Trust Agreement among the
Shareholders (as defined therein) and the Voting Trustees (as defined therein)
party thereto, amended and restated as of April 20, 1993 and further amended
on July 15, 1993.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. The Bank agrees, subject to the terms and
conditions hereinafter set forth, to provide to the Borrower one or more
Advances, which Advance(s) shall not exceed in the aggregate the amount of
FIFTEEN MILLION United States Dollars (U.S. $ 15,000,000). Each such Advance
shall be made to the account specified in the Addendum executed in connection
with that Advance pursuant to Section 2.02(b) below.
NOTE: It is the policy of the Board of Governors of the Federal Reserve
System of the United States that extensions of credit by international banking
facilities, such as the Advance, may be used only to finance operations outside
the United States of the borrower or of the borrower's affiliates outside the
United States. The Borrower shall indicate its understanding of this provision
by initialing the blank which follows this paragraph.
Initial:
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SECTION 2.02. Making the Advances. (a) Each Advance to be made by the Bank
to the Borrower under Section 2.01 hereof shall be made on at least two Business
Days' notice from the Borrower. Upon fulfillment of the applicable conditions
set forth in Article V hereof, the Bank will effect each Advance on the
Disbursement Date therefor by forwarding the principal amount thereof to the
account instructed by the Borrower.
(b) With respect to each Advance to be made by the Bank pursuant to
this Agreement, in addition to the other conditions precedent specified in
Section 4.01 hereof, the Bank the Borrower and the Guarantor shall execute an
Addendum to this Agreement in substantially the form set forth as Exhibit A
hereto on or before the Disbursement Date specified in the Addendum for that
Advance.
SECTION 2.03. Repayment of the Advances. The Borrower and/or the
Guarantor shall direct payment to the Bank as specified in the Addendum
executed in connection with each Advance pursuant to Section 2.02.(b) above,
with each such payment to be made in United States Dollars with respect to
that Advance in accordance with Section 2.08 below.
SECTION 2.04. Interest. (a) In addition to its obligation to repay the
principal amount of each Advance as set forth in Section 2.03 above, the
Borrower and/or the Guarantor shall pay interest on the unpaid principal
amount of each Advance from the Disbursement Date therefor until the repayment
in full of such principal amount, payable on the Interest Payment Date for
each Interest Period.
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(b) The rate of interest to be applied with respect to each Advance
shall be 1.15% (One and fifteen hundredths percent) per annum above Six-Month
LIBOR for each relevant determination date and shall be specified in the
Addendum executed in connection with that Advance pursuant to Section 2.02(b)
above. Notwithstanding anything which may be to the contrary herein or in any
such Addendum, any amount which is not paid on the date such amount shall
become due and payable hereunder shall bear interest from that due date until
the date the Bank receives such amount, at an interest rate equal at all times
to 2% (two percent) per annum above Six Month LIBOR (determined as of such
due date) for the length of time the relevant payment is not made.
(c) Notwithstanding anything which may be to the contrary in this
Section 2.04, the rate of interest to be applied to any obligation of the
Borrower and/or the Guarantor hereunder shall be the lower of (x) the rate
specified in subparagraph (b) above and (y) the highest rate permitted with
respect to such obligation under the laws of the State of New York.
(d) Computation of Interest. All computations of interest shall be
made on the basis of a year of 360 days for the actual number of days
occurring in the period for which such interest is payable.
SECTION 2.05. The Notes. Each Advance shall be evidenced by a promissory
note (collectively, the "Notes"), payable to the order of the Bank, each in
the principal amount of the Advance concerned. Each Note shall be issued by
the Borrower and the Guarantor substantially in the form set forth in Exhibit
B hereto with the blank spaces appropriately completed. The Borrower and the
Guarantor hereby irrevocably authorizes the Bank to date each Note as of the
Disbursement Date for the associated Advance.
SECTION 2.06. Prepayments. The Borrower may, upon at least five Business
Day's notice to the Bank stating the proposed date and aggregate principal
amount of the prepayment, prepay the outstanding principal amount of the
Advances in whole or in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid, without premium or penalty if
such prepayment is made on an Interest Payment Date, provided that each
partial prepayment shall be in a minimum aggregate principal amount of
US$1,000,000 or an integral multiple of US$250,000 in excess thereof and each
prepayment shall be applied pro rata among the Advances to the repayment of the
principal thereof in the inverse order of maturity, and further provided that
prepayments not made on the last day of an Interest Period shall be subject to
a fee reflecting costs of Six Month LIBOR breakage to the Bank, if any. Any
amount prepaid may not be reborrowed. All prepayments shall be subject to
approval of the Central Bank of Brazil.
SECTION 2.07. Place and Manner of Payments. All amounts due from the
Borrower and/or the Guarantor hereunder or under the Notes on account of
principal and interest on the Advances, as well as any fees and all other
amounts payable by the Borrower and/or the Guarantor hereunder, shall be made
not later than 12:00 noon (New York City time) on the day
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when due in lawful money of the United States of America (in freely
transferable United States Dollars) to the Bank's account number 00000000 at
the principal office of Citibank-NY set forth in Section 1.01(d) above.
SECTION 2.08. Taxes. (a) Any and all payments made by the Borrower and/or
the Guarantor hereunder or under any instrument to be delivered hereunder
shall be made free and clear of and without deduction for any present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on net income and
all income and franchise taxes of the United States of America or any
political subdivision thereof (all such non-excluded taxes hereinafter
referred to as "Taxes"). If the Borrower and/or the Guarantor shall be
required by law to make any such deduction from any payment hereunder, (i)
the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Bank receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower and/or
the Guarantor shall make such deductions and (iii) the Borrower and/or the
Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower and the Guarantor agrees to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder
or from the execution, delivery or registration of, or otherwise with respect
to, any instrument delivered hereunder (hereinafter referred to as "Other
Taxes").
(c) The Borrower and the Guarantor will indemnify the Bank for the
full amount of Taxes or Other Taxes (including without limitation any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section)
paid by the Bank or any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be made
within 30 days from the date the Bank makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes the Borrower and/or the Guarantor will furnish to the Bank, at its
address referred to in Section 6.03, the original or a certified copy of a
receipt evidencing payment thereof. If no Taxes are payable in respect of any
payment, the Borrower and/or the Guarantor will furnish to the Bank a
certificate from each appropriate taxing authority, or an opinion of counsel
acceptable to the Bank, in either case stating that such payment is exempt
from or not subject to Taxes.
(e) Without prejudice to the survival of any other agreement of the
Borrower and the Guarantor hereunder, the agreements and obligations of the
Borrower and the Guarantor contained in subsections (a) through (d) above
shall survive the payment in full of principal and interest hereunder and
under any instrument delivered hereunder.
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SECTION 2.10. Increased Costs. If due to either (i) the introduction of
or any change (including, without limitation, any change by way of imposition
or increase of reserve requirements) in or in the interpretation of any law or
regulation or (ii) the compliance by the Bank with any guideline or request
from any central bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost to the Bank of
agreeing to make or making, funding or maintaining the Advances, then the
Borrower and/or the Guarantor shall from time to time, upon demand by the
Bank, pay to the Bank additional amounts sufficient to indemnify the Bank
against such increased cost. A certificate as to the amount of such increased
cost, submitted to the Borrower and to the Guarantor by the Bank, shall be
conclusive.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Borrower and the
Guarantor. Each the Borrower and the Guarantor represents and warrants as
follows:
(a) It is a company duly incorporated, validly existing and in good
standing under the laws of the Federative Republic of Brazil and the Republic
of Panama, respectively, and has all requisite power and authority, corporate
or otherwise, to conduct its business, to own its properties and to execute
and deliver and to perform all of its obligations under this Agreement and the
Notes.
(b) The execution, delivery and performance by it of this Agreement
and the Notes will not (i) violate any provision of any law, regulation,
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to the Borrower or the Guarantor respectively, or
any provision of the charter or by-laws of the Borrower or the Guarantor
respectively, (ii) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which the Borrower or the Guarantor is a party or by which it or
its properties may be bound or affected, or (iii) result in, or require the
creation or imposition of, any pledge, lien, security interest or other charge
or encumbrance of any nature upon or with respect to any of the properties or
assets of the Borrower or the Guarantor, and the Borrower and the Guarantor
are not in default under any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or any such indenture,
agreement, lease or instrument.
(c) The balance sheets of it and its Subsidiaries as at December 31,
2000, and the related statements of income and retained earnings of the
Borrower and the Guarantor and their Subsidiaries for the fiscal year then
ended, copies of which have been furnished to the Bank, fairly present the
condition (financial or otherwise) of the Borrower and the Guarantor and its
respective Subsidiaries as at such date and the business and results of the
operations of the Borrower and the Guarantor and its respective Subsidiaries
for the period ended on such date, all
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in accordance with generally accepted accounting principles consistently
applied; and from the date of the above-referenced financial statements until
the date of this Agreement (or, with respect to any Addendum, from the latest
financial statements submitted pursuant to Section 7.01(a)(iii) hereof until
the date of the respective Addendum), there has been no material adverse
change in their business, condition (financial or otherwise) or results of
operations.
(d) There is no pending or threatened investigation, litigation, or
proceeding affecting the Borrower or the Guarantor or any of its respective
Subsidiaries or affiliates before any court, governmental agency or
arbitrator, which may materially adversely affect its business, condition
(financial or otherwise) or results of operations, or the business, condition
(financial or otherwise) or results of operations of any Subsidiary or
affiliate, or which may affect the legality, validity or enforceability of
this Agreement. The Borrower is the subject of several administrative and
judicial proceedings before the tax authorities as disclosed in Form 10-K of
the Securities and Exchange Commission for the fiscal year ended December 31,
2400. The Borrower believes that the ultimate disposition of these cases will
not have a material adverse effect on its business or operation.
(e) This Agreement constitutes, and the Notes when duly executed and
delivered by the Borrower and the Guarantor (as well as each document to be
delivered by the Borrower and the Guarantor hereunder or in connection
herewith) shall constitute, legal, valid and binding obligations of the
Borrower and the Guarantor, enforceable against them in accordance with their
respective terms thereof.
(f) Except for the duty to register the Agreement before the Central
Bank of Brazil, no authorization, consent, approval, license, exemption or
filing or registration with any court or governmental agency or
instrumentality is or will be necessary to the valid execution, delivery or
performance by the Borrower and the Guarantor of this Agreement and the Notes.
(g) The obligations of the Borrower and the Guarantor under this
Agreement and the Notes do rank and will rank at least pari passu in priority
of payment and in all other respects with all other Indebtedness of the
Borrower and the Guarantor. There is no lien, security interest or other
charge or encumbrance, and no other type of preferential arrangement, upon or
with respect to any of the properties or income of the Borrower and the
Guarantor, which secures Indebtedness of any Person.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01. Conditions Precedent to the Making of the Advances. The
obligation of the Bank to make any Advance shall be subject to the following
conditions precedent:
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(a) The Bank shall have received, on or before the Disbursement Date
for such Advance, the following documents, each dated on or before such date,
in form and substance satisfactory to the Bank:
(i) This Agreement duly executed by the Borrower and the Guarantor,
and a Note duly executed by the Borrower and the Guarantor substantially in
the form of Exhibit A hereto;
(ii) Certified copies of the resolutions of the Board of Directors
or equivalent body of the Borrower and the Guarantor approving this Agreement,
as applicable, and of all documents evidencing other necessary corporate or
other action;
(iii) Certificates of the Secretary or an Assistant Secretary or
other appropriate officer of the Borrower and the Guarantor certifying the
names and true signatures of the officers of the Borrower and the Guarantor
duly authorized to sign this Agreement and the other documents to be delivered
by it hereunder;
(iv) A letter from the Process Agent referred to and defined in
Section 6.07 hereof, agreeing to act as such Process Agent and to forward
forthwith all process received by it as such Process Agent to the Borrower and
the Guarantor;
(v) If the Bank shall so require, the favorable opinion of counsel
for the Borrower and for the Guarantor, as to the matters referred to in
Section 3.01 hereof (except subsection (c) thereof), and as to such other
matters as the Bank may reasonably request; and
(vi) Such other documents requested by the Bank which, in the Bank's
opinion, are necessary to evidence the Borrower's and/or the Guarantor's
ability to execute, deliver and perform this Agreement and the Notes which
shall evidence the Advances.
(b) The following statements shall be true as of the Disbursement
Date for the Advance (the Borrower and the Guarantor agrees to issue a
certificate to such effect if and when the Bank deems necessary):
(i) The representations and warranties contained in Section 3.01 of
this Agreement are true and correct on and as of that Disbursement Date as
though made by the Borrower and the Guarantor on and as of such date; and
(ii) No event has occurred and is continuing, or would result from
the Advance, which constitutes an Event of Default or would constitute an
Event of Default of the Borrower or the Guarantor.
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ARTICLE V
EVENTS OF DEFAULT
SECTION 5.01. Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any installment of principal of
any Note when due, or shall fail to pay any interest on any Note when due; or
(b) Any representation or warranty made by the Borrower or by the
Guarantor in this Agreement (including any representation or warranty made
under Section 3.01 above), or in any certificate, agreement, instrument or
statement contemplated hereby or made or delivered pursuant hereto or in
connection herewith, shall prove to have been incorrect in any material
respect; or
(c) The Borrower or the Guarantor shall fail to perform or observe
any other term, covenant or agreement contained in this Agreement on its part
to be performed or observed, and any such failure shall remain unremedied for
10 days after written notice thereof shall have been given to the Borrower or
the Guarantor, as the case may be, by the Bank; or
(d) Any of the Borrower, the Guarantor or one of their Subsidiaries
shall (i) default in any payment of Indebtedness in the aggregate amount equal
to or greater than US$20,000,000 beyond the grace period if any (not to exceed
30 days) provided in the instrument or agreement under which such Indebtedness
was created or (ii) default in the observance or performance of any
guarantee, agreement, collateral arrangements or condition relating to any
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist the
effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or Bank on behalf of
such holder or holders) to cause (determined without regard to whether any
notice is required), any such Indebtedness to become due prior to its stated
maturity whether or not such holder or holders exercises its rights of
acceleration; or any Indebtedness of the Borrower, the Guarantor or any of
its Subsidiaries shall be declared to be due and payable or required to be
prepaid other than by a regularly scheduled required prepayment prior to the
stated maturity thereof; or
(e) This Agreement or any Note shall at any time for any reason
cease to be in full force and effect or shall be declared to be null and void,
or the validity or enforceability thereof shall be contested by the Borrower
or by the Guarantor, or the Borrower or the Guarantor shall deny that it has
any or further liability or obligation hereunder or thereunder; or
(f) Any provision of any guarantee, aval, mortgage, pledge, security
agreement, or other document or agreement executed (whether as a condition
precedent to this Agreement or
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subsequent hereto) to guarantee or secure the performance by the Borrower or
by the Guarantor of any of its obligations hereunder shall for any reason
cease to be in full force and effect or shall be declared to be null and void,
or the validity or enforceability thereof shall be contested by the person or
entity executing such document or agreement, or such person or entity (or the
Borrower or the Guarantor, as the case may be) shall deny any or further
liability or obligation hereunder or thereunder; or
(g) The Borrower or the Guarantor shall be adjudicated bankrupt or
insolvent, or shall admit in writing its inability to pay its debts as they
mature, or shall make any assignment for the benefit of creditors; or the
Borrower or the Guarantor shall institute (by petition, application, answer,
consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceeding relating
to it under the laws of any jurisdiction, or any such proceeding shall be
instituted (by petition, application or otherwise) against the Borrower or the
Guarantor and shall remain undismissed for a period of 30 days; or any
judgment, writ, warrant of attachment of execution or similar process shall be
issued or levied against a substantial part of the property of the Borrower or
the Guarantor and such judgment, writ, or similar process shall not be
released, vacated or fully bonded within 30 days after its issue or levy; or
(h) A material adverse change in the condition (financial or
otherwise), business or operations of the Borrower or the Guarantor or any
circumstance of a national or international financial, political or economic
nature shall occur which gives reasonable grounds to conclude, in the judgment
of the Bank, that the Borrower or the Guarantor may not, or will be unable to,
perform or observe in the normal course its obligations under this Agreement
or the Notes; or
(i) There shall occur any material change in the ownership of the
Borrower or the Guarantor; or
(j) One or more judgements or decrees shall be entered against the
Borrower, the Guarantor or any of its Subsidiaries involving in the aggregate
a liability (not paid) of US$20,000.000 or more, and all such judgements or
decrees shall not have been vacated, discharged or stayed or bonded pending
appeal within 60 days after the entry thereof;
then, and in any such event, the Bank may, by notice to the Borrower and to
the Guarantor, (i) declare its obligation to make the Advances to be
terminated, whereupon the same shall forthwith terminate, and/or (ii) declare,
upon notice to the Borrower and the Guarantor, the entire unpaid principal
amount of the Advances and the Notes, all interest accrued and unpaid thereon
and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Borrower and/or the Guarantor shall be obligated
forthwith to make payment of the Advances, the Notes, all such interest and
all such amounts without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower and by the
Guarantor.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. No Waiver; Remedies. No failure on the part of the Bank to
exercise, and no delay in exercising, any right, power or remedy hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 6.02. Amendments, Etc. No amendment, modification, termination or
waiver of any provision of this Agreement, nor consent to any departure by the
Borrower or the Guarantor therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Bank, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on the Borrower or the
Guarantor in any case shall entitle the Borrower or the Guarantor, as the case
may be, to any other or further notice or demand in similar or other
circumstances.
SECTION 6.03. Address for Notices. All notices, requests, demands and
other communications provided for hereunder shall be in writing and, if to the
Borrower, mailed or delivered to it, addressed to it at Xx. Xxxxxxxxxx Xxxxxxx
xx Xxxxxxxx, 000, Xxx Pablo, Brasil; if to the Guarantor, mailed or delivered
to it, addressed to it at c/o Panamco, L.L.C. 000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxxx, Xxxxxxx, 00000, and if to the Bank, mailed or delivered to it,
addressed to it x/x Xxxxxxxx, N.A., at 000 Xxxx Xxxxxx, Xxx Xxxx, X.X., 00000,
Attention: Brazilian Desk, or, as to each party, at such other address as may
be designated by such party in a written notice to each other party complying
as to delivery with the terms of this Section 6.03. All notices, requests,
demands, and other communications provided for hereunder shall be effective
when deposited in the mails or delivered to the telegraph company, addressed
as aforesaid, except that notices from the Borrower or the Guarantor to the
Bank made pursuant to Article II hereof shall not be effective until received
by the Bank.
SECTION 6.04. Costs and Expenses. The Borrower and/or the Guarantor shall
pay on the Bank's first demand all losses, costs and expenses, if any
(including reasonable external legal fees and expenses connected therewith),
incurred by the Bank in connection with the preparation, execution, delivery,
administration and enforcement of this Agreement, the Notes and the
instruments and documents to be delivered hereunder.
SECTION 6.05. Right of Setoff. Upon the occurrence and during the
continuance of any Event of Default the Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Bank
(or any other branch of Citibank, N.A., or any affiliate or subsidiary
thereof) to or for the
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credit or the account of the Borrower or the Guarantor against any and all of
the obligations of the Borrower and the Guarantor now or hereafter existing
under this Agreement and the Notes delivered hereunder, irrespective of
whether the Bank shall have made any demand under this Agreement or any Note
and whether such obligations may be unmatured. The Bank agrees promptly to
notify the Borrower or the Guarantor, as the case may be, after any such
setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of the Bank
under this Section are in addition to other tights and remedies (including,
without limitation, other rights of setoff) which the Bank may have.
SECTION 6.06. Judgment. (a) If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due hereunder or under any Note in
United States Dollars into another currency, the parties hereto agree, to the
fullest extent permitted by law, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Bank could purchase
United States Dollars with such other currency on the Business Day preceding
that on which final judgment is given.
(b) The obligation of the Borrower and the Guarantor in respect of
any sum due from it to the Bank hereunder or under any Notes shall,
notwithstanding any judgment in currency other than United States Dollars, be
discharged only to the extent that on the Business Day following receipt by
the Bank of any sum adjudged to be so due in such other currency the Bank may
in accordance with normal banking procedures purchase United States Dollars
with such other currency; if the United States Dollars so purchased are less
than the sum originally due to the Bank in United States Dollars, the Borrower
and the Guarantor agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Bank against such loss, and if the United
States Dollars so purchased exceed the sum originally due to the Bank in
United States Dollars, the Bank agrees to remit to the Borrower or the
Guarantor, as the case may be, such excess.
SECTION 6.07. Consent to Jurisdiction; Waiver of Immunities. (a) The
Borrower and the Guarantor hereby irrevocably submits to the non-exclusive
jurisdiction of any New York State or Federal court sitting in New York City
in any action or proceeding arising out of or relating to this Agreement or
the Notes, and the Borrower and the Guarantor hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and determined
in any such New York State or Federal court. The Borrower and the Guarantor
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 and the right to a jury trial. The Borrower and the Guarantor
hereby irrevocably appoints CT CORPORATION SYSTEM (the "Process Agent"), with
an office on the date hereof at 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
Xxxxxx Xxxxxx of America, as their agent to receive on behalf of the Borrower
and the Guarantor and its property service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding. Such service may be made by mailing or delivering a copy of such
process to the Borrower and the Guarantor in care of the Process Agent at the
Process Agent's above address, and the Borrower and the Guarantor hereby
irrevocably authorizes and directs the Process Agent
13
to accept such service on its behalf. As an alternative method of service,
the Borrower and the Guarantor also irrevocably consents to the service of
any and all process in any such action or proceeding by the mailing of
copies of such process to the Borrower and the Guarantor at its address
specified in Section 6.03 above. The Borrower and the Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(b) Nothing in this Section 6.07 shall affect the right of the Bank
to serve legal process in any other manner permitted by law or affect the
right of the Bank to bring any action or proceeding against the Borrower the
Guarantor or their property in the courts of any other jurisdictions.
(c) To the extent that the Borrower or the Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, the Borrower and the Guarantor hereby irrevocably
waives such immunity in respect of its obligations under this Agreement and
any Note.
SECTION 6.08. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
United States, without giving effect to the conflicts of law rules of the
State of New York.
SECTION 6.09. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Guarantor and the Bank and
their respective successors and assigns, except that the Borrower and the
Guarantor shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Bank. The Bank may
assign all or any part of, or any interest in, its rights and benefits
hereunder and under any instrument delivered hereunder, and in connection with
such assignment may transfer to the assignee thereof such information
concerning the Borrower and the Guarantor as the said assignee may reasonably
require (unless and to the extent expressly prohibited by applicable law). To
the extent of such assignment, such assignee shall have the same rights and
benefits against the Borrower and the Guarantor as it would have had if it
were the Bank hereunder.
SECTION 6.10. Transfer of Information. The Borrower and the Guarantor
hereby authorizes the Bank to transfer to any other branch of Citibank, N.A.,
or any affiliate or Subsidiary thereof, regardless of location, or any
assignee such information about the Borrower and the Guarantor as the Bank
may acquire or come to acquire, including without limitation information
concerning the credit relationship between the Bank and the Borrower and
between the Bunk and the Guarantor.
SECTION 6.11. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall be
ineffective to the extent of such
l4
prohibition or unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 6.12. Further Assurances. The Borrower and the Guarantor hereby
agrees to execute and deliver, at the request of the Bank, such additional
documentation as may be reasonable requested from time to time by the Bank to
evidence their respective obligations hereunder.
ARTICLE VII
AFFIRMATIVE COVENANTS OF THE BORROWER AND THE GUARANTOR
SECTION 7. AFFIRMATIVE COVENANTS. Each of the Borrower and the Guarantor
covenants and agrees, as applicable, that on and after the date of this
Agreement and until all obligations under this Agreement has terminated and
the Loan and the Note, together with interest, fees and all other Obligations
incurred hereunder and thereunder, are paid in full:
7.1 Information Covenants. The Borrower and the Guarantor will
furnish to the Bank:
(a) Quarterly Financial Statements. As soon as available and in any
event within 60 days after the end of each quarter of each fiscal year,
quarterly balance sheets and the related statements of income of the Borrower
and the Guarantor and statements of cash flow of the Borrower (prepared in
accordance with US GAAP) and the Guarantor for the period ended on such date;
(b) Annual Financial Statements. Within 120 days after the close of
each fiscal year of the Guarantor, the Holding Company of the Borrower and the
Borrower, audited statements of financial condition of the Guarantor and
non-audited statements of financial condition of the Borrower (prepared in
accordance with US GAAP) as at the end of such fiscal year and the related
statements of income and retained earnings and statements of changes in
financial position for such fiscal year, in each case setting forth
comparative figures for the preceding fiscal year and certified in the case of
the Guarantor by independent certified public accountants reasonably
acceptable to the Bank, in each case together with a report of such accounting
firm stating that in the course of its regular audit of the financial
statements of the Guarantor, which audit was conducted in accordance with U.S.
GAAP, such accounting firm obtained no knowledge of any Default or Event of
Default which has occurred and is continuing or, if in the opinion of such
accounting firm such a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof.
(c) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 7.1(a) and (b), a certificate
of an authorized officer of the
15
Borrower and the Guarantor to the effect that, to the best of his knowledge,
no Default or Event of Default has occurred and is continuing or, if any
Default or Event of Default has occurred and is continuing, specifying the
nature and extent thereof.
(d) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after an officer of the Borrower or the Guarantor
obtains knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or Event of Default, (ii) any litigation or governmental
proceeding pending (x) against the Borrower which could materially and
adversely affect the business, operations, property, assets, condition
(financial or otherwise) or prospects of the Borrower or the Guarantor or (y)
with respect to any Credit Document and (iii) any other event which is likely
to have a Material Adverse Effect on the Borrower or the Guarantor.
(e) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other information and reports, if any, which
each of the Borrower and the Guarantor shall send to any of its security
holders or file with any national securities exchange in Brazil or Panama,
any other Brazilian or Panamanian governmental agencies, as applicable.
(f) Other Information. From time to time, such other information or
documents respecting the business, financial condition, operations,
performance, properties or assets of the Borrower as the Bank may reasonably
request. Such information shall be treated at all times as confidential.
7.2 Books, Records and Inspections. The Borrower and the Guarantor
will keep proper books of record and account in which full, true and correct
entries in conformity with U.S. GAAP (but excluding the Borrower, which will
keep proper books of records and account in accordance with US GAAP) and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. The Borrower and the Guarantor will permit
officers and designated representatives of the Bank to visit and inspect,
under guidance of officers of the Borrower or the Guarantor any of the
properties of the Borrower and the Guarantor, and to examine the books of
record and account the Borrower and the Guarantor, and discuss the affairs,
finances and accounts of the Borrower and the Guarantor with, and be advised
as to the same by, its and their officers, all at such reasonable times and
intervals and to such reasonable extent as the Bank may request.
7.3 Maintenance of Property Insurance. Each of the Borrower and the
Guarantor will (i) keep all property useful and necessary in its business in
good working order and condition, (ii) maintain with financially sound and
reputable insurance companies insurance on all relevant property, and (iii)
furnish to the Bank, upon written request, full information as to the
insurance carried.
7.4 Corporate Franchises. The Borrower and the Guarantor will do or
cause to be done, all things necessary to preserve and keep in full force and
effect its existence and its material rights, franchises, licenses and
parents; provided, however, that nothing in this Section
16
7.4 shall prevent the withdrawal by the Borrower and the Guarantor of its
qualification as a foreign corporation in any jurisdiction where such
withdrawal could not have a Material Adverse Effect on the Borrower or the
Guarantor.
7.5 Compliance with Statutes, etc. The Borrower and the Guarantor
will comply with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls), except such non compliance
as could not, in the aggregate, have a Material Adverse Effect on the Borrower
or the Guarantor.
7.6 Performance of Obligations. The Borrower and the Guarantor will
perform all its obligations under the terms of each of the Credit Documents,
other debt instrument by which it is bound, except such non-performances as
could not in the aggregate have a Material Adverse Effect on the Borrower or
the Guarantor.
7.7 Management. Each of the Borrower and the Guarantor shall
continue to engage in business of the same general type as now conducted by
them and preserve, renew and keep in full force and effect its corporate
management. Any event shall not prevent the withdrawal by each of the Borrower
and the Guarantor of its qualification as a foreign corporation in any
jurisdiction where such withdrawal could not have a Material Adverse Effect on
the Borrower or the Guarantor.
7.8 Change in Control. Suffer, or allow its Subsidiaries to suffer,
a Change in Control. Change in Control means:
a. the failure of the Shareholders (as defined in the Voting Trust
Agreement) parties to the Voting Trust Agreement to collectively to:
(i) own, directly or indirectly, on the date hereof and until all
Obligations owing under this Agreement are paid in full
(ii) control directly, or indirectly, whether by the percentage of
ownership of Voting Stock imposed by any applicable law, the possession of
voting power or otherwise, the power to direct the affairs or control the
composition of at least a majority of the board or directors, management
committee, or other equivalent body, of the Borrower orb. dissolution or
termination of the Voting Trust Agreement;
c. The failure of The Coca Cola Company or any successor thereto
("TCCC") to own (as a result of a sale by TCCC of such Common Stock described
below), directly or indirectly, on the Borrowing Date and until all
Obligations owing under this Agreement and other Credit Documents are paid in
full and all Commitments have expired, at least 20% of the outstanding Class B
Common Stock of the Borrower, 22.6% of the outstanding Class A Common
Stock of the Borrower and 100% of the outstanding Class C Preferred Stock of
the
17
Borrower, in each case, on a fully diluted basis, free and clear of all Liens
ARTICLE VIII
NEGATIVE COVENANTS OF THE BORROWER AND THE GUARANTOR
SECTION 8. The Borrower and the Guarantor covenants and agrees, as applicable,
that on and after the date hereof and until the Loan and the Note, together
with interest, Fees and all other Obligations incurred hereunder and
thereunder, are paid in full:
8.1 Liens. Neither the Borrower nor the Guarantor will incur,
assume, suffer to exist any Lien upon or with respect to any property or
assets (real or personal, tangible or intangible) of the Borrower or the
Guarantor whether now owned or hereafter acquired, provided that the
provisions of this Section 8.1 shall not prevent the creation, incurrence,
assumption or existence of the following (i) Permitted Liens (Liens described
below are herein referred to as "Permitted Liens"):
(a) pledges or deposits by such Persons under worker's compensation
laws, unemployment insurance laws or similar legislation, or
good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases for
which such Person is a party, or deposits to secure government
bonds to secure performance, surety or appeal bonds to which
such Person is a party or which are otherwise required of such
Persons, or deposits as security for contested taxes or import
duties or for the payment of rent or other obligations of like
nature, in which case incurred in the ordinary course of
business;
(b) Liens imposed by law, such as carriers, warehousemen's,
laborers', materialmen's, landlords', vendors', workmen's,
operators', producers' and good faith by appropriate
proceedings or other Liens arising out of judgement or awards
against such Person with respect to which such Person shall
then be proceeding with an appeal or other proceedings of
review;
(c) Liens for taxes, assessments and other governmental charges or
levies not yet delinquent or subject to penalties for non-
payment or which are being contested in good faith by
appropriate proceedings;
18
(d) Minor survey exceptions, minor encumbrances, easements or
reservations of or with respect to, or rights of others for or
with respect to, licenses, rights-of-way, sewers, electric and
other utility lines and usages, telegraph and telephone lines,
pipelines, surface use, operation of equipment, permits,
servitudes and other similar matters, or zoning or other
restrictions as to xxx of real property or Liens incidental to
the conduct of the business of such Person or to the ownership
of its properties which were not incurred in connection with
Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially
impair their use in the operation of the business of such
Person;
(e) Liens existing on or provided for under the terms of
arrangements existing on the Execution Date;
(f) Liens on property at the time the Borrower or any of its
Subsidiaries acquired the property or the entity owning such
property, including any acquisition by means of a merger or
consolidation with or into the Borrower; provided however, that
any such Lien may not extend to any of its property owned by
the Borrower or any of its Subsidiaries;
(g) Liens securing hedge agreements as long as (i) such hedge
agreements are of the type customarily entered into in
connection with, and are entered into for, the bona fide
purpose of reducing financial risk relating to interest rate or
foreign exchange fluctuations, and (ii) the collateral securing
obligations in respect of such hedge agreements consists only
of cash or cash equivalents, and does not exceed in market
value on any date an amount equal to 1.5% of consolidated
tangible assets of the Borrower (calculated as of the end-date
of the last quarter for which consolidated financial statements
have been distributed);
(h) Liens on accounts receivable, inventory or bottles and cases to
secure working capital or revolving credit indebtedness
incurred by any Subsidiary in the ordinary course of business;
(i) Purchase Money Liens;
(j) Liens securing only indebtedness of a Subsidiary of the
Borrower to the Borrower or one or more Subsidiaries of the
Borrower;
19
(k) Liens on any property to secure indebtedness incurred in
connection with the construction, installation or financing of
bottling facilities financed through indebtedness issued by
TCCC or any subsidiary of it;
(1) Liens resulting from the deposit funds or evidences of
indebtedness in trust for the purpose of defeasing indebtedness
in trust for the purpose of defeasing indebtedness of each of
the Borrower and the Guarantor or any of its Subsidiaries;
(m) Legal or equitable encumbrances deemed to exit by reason of
negative pledges or the existence of any litigation or other
proceeding and any related lis pendent filing (excluding any
attachment prior to judgement, judgement lien or attachment
lien in aid of execution on a judgment);
(n) Rights of a common owner of any interest in property held by
such Person;
(o) Liens on property or shares of stock or another Person at the
same time such other Person becomes a Subsidiary of such Person;
provided however, that such liens are not created, incurred or
assumed in connection with, or in contemplation of, such other
Person becoming such a Subsidiary of such person; provided
further, however, that such Lien may not extend to any other
property owned by such person or any of its Subsidiaries;
(p) Any defects, irregularities or deficiencies in title to
easements, rights-of-way or other properties which do not in
the aggregate materially adversely affect the value of such
properties or materially impair their use in the operations of
the business of such Person;
(q) Liens in favor of the issuers of surety bonds or letters of
credit issued pursuant to the request of and for the account of
such person in the ordinary course of business; provided
however, that the obligations in respect of such letters of
credit do not constitute indebtedness;
(r) Liens arising in connections with capitalized leases in an
aggregate principal amount not to exceed US$75,000,000 at any
time outstanding, and
20
(s) Liens to secure any refinancing, refunding, extension, renewal
or replacement (or successive refinancings, refundings,
extensions, renewals or replacements), as a whole, or in part,
of any indebtedness secured by any Lien referred to in the
foregoing clauses (e) to (l) above; provided however, that (i)
such new Lien (plus improvements on or to such property) and
(ii) the indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of the outstanding
principal amount or, if greater, committed amount of the
indebtedness described under clauses (e) through (l) above at
the time the original Lien became a Permitted Lien this
Agreement and any amount greater, committed amount of the
indebtedness described under clauses (e) through (l) at the
time the original Lien because a Permitted Lien under this
Agreement and any amount necessary to pay any fees and
expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement; and
(ii) Liens securing Indebtedness if after giving pro forma effect to
the incurrence of such Indebtedness (and the receipt and application of the
proceeds thereof) or the securing of outstanding Indebtedness, the sum of
(without duplication) all Indebtedness of the Borrower and its Subsidiaries
secured by Liens (other than Permitted Liens), at the time of determination
would not exceed 10 % of the Consolidated Net Assets of the Guarantor.
8.2 Consolidation, Merger, etc. The Borrower shall not without the
written consent of the Bank, merge, with or into or consolidate with or into
any Person, or permit any of it Subsidiaries to do so, unless: (i) either (a)
such merger or consolidation is between the Borrower's and its Subsidiaries or
Affiliates or between any of the Borrower's Subsidiaries or Affiliates, (b)
the Borrower shall be the continuing person in the case of a merger or (c) the
resulting surviving Person if other than the Borrower (the "Successor
Company") shall expressly assume, by a written agreement, executed and
delivered to the Bank, in form satisfactory to the Bank, all the obligations
of the Borrower under the Credit Documents; (ii) immediately after giving
effect to such transaction (and treating any debt which becomes an obligation
of the Successor Company or any Subsidiary of the Borrower or the Successor
Company or such Subsidiary at the time of such transaction), no Default would
occur or be continuing and the Borrower shall have delivered to the Bank an
officer's certificate to that effect; and (iii) except in the case of a merger
or consolidation under clause (i) (a) above, the Borrower shall have delivered
to the Bank an officer certificate and an opinion of counsel, each stating that
such consolidation or merger and such written agreement comply with the Credit
Documents and, if such consolidation or merger results in a Successor Company,
that such written agreement continues to be legal, valid and binding obligation
of the Successor Company, enforceable against such entity in accordance with
its terms, subject to customary exceptions.
21
8.3 Transactions with Affiliates. Neither the Borrower nor the
Guarantor will enter into any transaction or series of related transactions,
whether or not in the ordinary course of business, with any Affiliate of the
Borrower or the Guarantor, as applicable, other than on terms and conditions
substantially as favorable to the Borrower or the Guarantor as would be
obtainable by the Borrower or the Guarantor, at the time in a comparable
arm's-length transaction with a Person other than an Affiliate.
8.4 Minimum Net Worth. The Guarantor shall maintain at all times a
minimum Consolidated Net Worth of not less than (i) U.S. $ 1,050,000,000 during
the 2001 calendar year, (ii) U.S. $ 1,150,000,000 during the 2002 calendar year
and (iii) US$1,250,000,000 during the 2003 calendar year.
8.5 Reduction of Stated Capital. The Borrower shall not, without the
prior written consent of the Bank, permit a decrease or reduction of its
stated capital as of the date hereof at any time that the Loan and the Note,
together with interest, Fees and all other Obligations incurred hereunder and
thereunder, are outstanding and unpaid in full.
8.6 Limitation on ; Modifications of the Borrower's Certificate of
Incorporation and By-laws. The Borrower and the Guarantor shall report to the
Bank within 10 business days any material amendment, modification or change of
its certificate of incorporation and by-laws, or after any of them they have
taken any other action in connection with any constitutional document that
would reasonably by likely to result in Material Adverse Effect.
8.7 Change in Nature of Business. The Borrower and the Guarantor
shall not without the prior consent of the Bank, make, or permit any of its
Subsidiaries to make, any material change in the nature and conduct of the
business of the Borrower and of the Guarantor and its Subsidiaries as carried
out on the date of this Agreement.
8.8 Financial Covenants Applicable to the Borrower. The Borrower and
its Brazilian Affiliates shall not incur or suffer to exist any Indebtedness
in an aggregate amount greater than US$250,000,000.
ARTICLE IX
GUARANTY
SECTION 9.1 The Guarantor hereby unconditionally and irrevocably guarantees
and promises to pay to the Bank on demand any and all obligations of the
Borrower under this Agreement and agrees to pay any and all out-of-pocket
costs and expenses and reasonable fees and disbursements of counsel (including
the allocated costs of staff counsel) incurred by the Bank in enforcing any
rights under this Agreement. The word "Obligations" is used herein in its
most comprehensive sense and includes all obligations and liabilities of the
Borrower to the Bank
22
under any loan agreement, promissory notes or other instruments to which the
Borrower is a party, whether absolute of contingent, liquidated or
unliquidated, for principal, interest, fees, indemnities, costs and expenses
and all other amounts payable under or in connection with the Credit.
SECTION 9.2. (a) The Guarantor's obligations hereunder are those of a primary
obligor, and not merely a surety, and are independent of the Obligations. A
separate action or actions may be brought against the Guarantor whether and
action in brought against the Borrower or any other obligor in respect of the
Obligations or whether the Borrower or any other obligor in respect of the
Obligations is joined in any such action or actions.
(b) The obligations of the Guarantor under this Agreement are
absolute and unconditional, and the Guarantor guarantees that the Obligations
will be paid in full on demand when due (whether at stated maturity, by
required prepayment, by acceleration, on demand otherwise) in accordance with
the terms of this Agreement, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Bank with respect thereto or any other circumstance which might
otherwise constitute a defense available to, or a legal or equitable discharge
of, a guarantor.
(c) This Guaranty shall in all respects remain in full force and
effect (notwithstanding, without limitation, the dissolution, liquidation,
bankruptcy, insolvency or reorganization of the Borrower or any other obligor
in respect of the Obligation), unless and until all of the Obligations have
been finally paid in full.
(d) This Guaranty shall in all respects continue in full force and
effect or shall be reinstated, as the case may be, if at any time payment, in
whole or in part, of any of the Obligations is rescinded or must otherwise be
restored or returned for any reason, including, without limitation, because of
any change in the corporate existence or structure or ownership of the
Borrower or because the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any other obligor in respect of the
Obligations or upon or as a result of the appointment of a custodian,
receiver, trustee or other officer with similar power with respect to the
Borrower or any such other obligor or any material part of its assets, or
otherwise, all as though such payment had not been made. If an event
permitting the acceleration of the Obligations shall any time have occurred
and be continuing and such acceleration shall at such time be prevented by
reason of the pendency against the Borrower of a case of proceeding under any
bankruptcy or insolvency law, the Guarantor agrees that, for purposes of this
Guaranty and its obligations hereunder, the Obligations shall be deemed to
have been accelerated and the Guarantor shall forthwith pay such Obligations,
and the other obligations hereunder, without any further notice or demand.
23
(e) Without limiting the foregoing, the Guarantor authorizes the
Bank, without notice or demand and without affecting the Guarantor's liability
hereunder, from time to time to (i) renew, extend, accelerated, compromise,
settle restructure, refinance, refund or otherwise change the amount and time
for payment of the Obligations, or otherwise change the terms of the
Obligations or any part thereof; (ii) take and hold security for the payment
of this Guaranty of the Obligations or the obligations of other obligors in
respect of the Obligations and enforce any such security, (iii) apply such
security and direct the order or manner of sale thereof or sell, exchange,
release, compromise, settle, waive or surrender any such security; and (iv)
take, hold, exchange, release, compromise, settle, amend or waive, or consent
to the departure from the terms of, any guaranty or other agreement relating
to the obligations of any other obligor in respect of the Obligations. The
Bank shall have no obligation to perfect, secure, protect or insure any
collateral agreement or any collateral and the Guarantor's liability hereunder
shall not be affected by the non-perfection, invalidity or unenforceability of
any collateral or collateral agreement.
(f) Notwithstanding any payments made by the Guarantor hereunder,
the Guarantor shall not be entitled to be subrogated to any of the rights of
the Bank against the Borrower or any other person or to any collateral or
other rights or interests held of the payment of the Obligations of the
Guarantor hereunder have been finally paid in full. If the Guarantor shall
receive any payment on account of any subrogation rights at any time when all
the Obligations and the Guarantor's obligations hereunder shall not have been
paid in full, any amount so paid will be held in trust by the Guarantor and
promptly turned over to the Bank to be applied first to the Obligations until
paid in full and thereafter to the Guarantor's obligations hereunder.
(g) Guarantor's liability under this Guaranty shall be
unconditional irrespective of (i) any exchange, release or non-perfection of
any collateral securing payment of any Obligations, (ii) the existence of any
claim, set-off or other rights which we may have at any time against the
Borrower, the Guarantor, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim, (iii)
any statute of limitation, (iv) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge of the
Borrower or the Guarantor, other than the payment in full of the Obligations
and (v) an occurrence of an Event of Sovereign Risk, as such term is defined
below.
24
(h) The Guarantor unconditionally waives any right to require the
Bank to (i) proceed against the Borrower or any other obligor in respect of
the Obligations, (ii) proceed against or exhaust any security held directly or
indirectly on account of the Obligations, or (iii) pursue any other remedy in
the Bank's powers whatsoever Guarantor unconditionally waives any defense
arising by reason of any disability or other legal or equitable defense of the
Borrower by reason of the cessation from any cause whatsoever of the liability
of the Borrower other than final payment in full in cash of the Obligations.
The Guarantor waives all diligence, presentments, protest, notices of protest,
notices of dishonor, notices of non-payment, acceptance and notices of
acceptance of this Guaranty.
(i) All payments by Guarantor hereunder shall be made in freely
transferable United States Dollars in same day funds free and clear of all
taxes or other deductions levied or assessed by any domestic or foreign
governmental entity. Such payments shall be made without set-off or
counterclaim and free and clear of and without deduction or withholding for or
on account of any present or future taxes, levies, imposts, duties or other
charges of whatsoever nature imposed, levied, assessed, collected or required
to be withheld by any government or political subdivision or taxing authority
thereof. In the event that Guarantor shall be compelled by law to make any
such deduction, then it shall pay such additional amounts as may be necessary
to ensure that the net amount received by the Bank shall equal the amount it
would have received if such withholding would not have been made, and
Guarantor shall furnish copies of the receipts evidencing that such taxes have
been paid within 30 days after such taxes are due.
For the purpose hereof an "Event of Sovereign Risk" means any of the
following:
(a) any war (whether or not declared), revolution, insurrection, civil
strife or hostile acts,
(b) the promulgation, operation or enforcement of any law, act, decree,
regulation or other similar event, ordinance, order, policy or
determination (herein, a "Brazilian Law"), or any modification of or
change in the interpretation of any Brazilian Law, by any National
Governmental Authority (as herein defined), including without
limitation the imposition of any moratorium on, required
rescheduling of, or required approval of the payment of any
indebtedness,
(c) the failure or refusal by the Central Bank of Brazil (or other
governmental authorities of Brazil with comparable jurisdiction) to
exchange, or to approve or permit the exchange of, the then-lawful
currency of Brazil for Dollars, or any other action of any National
Governmental Authority that has the effect of prohibiting or
restricting such exchange or the transfer of funds outside Brazil,
25
(d) the unavailability of Dollars in the exchange market therefor in
Brazil in accordance with normal commercial practice for the purpose
of transactions such as the transactions contemplated herein,
(e) any expropriation, confiscation, requisition, nationalization, or
other action by any National Governmental Authority which, directly
or indirectly, deprives Issuer, any other branch or affiliate of
Citibank, N.A. in Brazil, of its ownership or control of the
benefits of all or a substantial portion of its assets located in
Brazil or the revenues attributable thereto,
(f) a declaration of banking moratorium or any suspension of payments by
banks in Brazil, or the imposition by any National Governmental
Authority of any moratorium on, required rescheduling of, or
required approval of, the payment of any indebtedness in Brazil,
(g) any disruption in the bank payments system which prevents Issuer
from paying Dollars in the manner contemplated by the Credit
Instruments, or
(h) any suspension, relinquishment or termination of the operations of
Issuer, any other branch or affiliate of Citibank, N.A. in Brazil,
or a result of any event of the kinds referred to in clauses (a)-(g)
above or as the result of the threat of any such event.
"National Governmental Authority" means, at any time, the government of
Brazil or any political subdivision thereof or any other office, agency or
instrumentality thereof, including the Central Bank of Brazil or any successor
thereto, or any other authority asserting governmental, military or political
power of any kind at such time in Brazil, whether or not such authority is
recognized as a de facto or de jure government.
SECTION 9.3 The Guarantor hereby waives (i) notice of acceptance of this
Guaranty and of any extension of credit by the Bank to the Borrower; (ii)
presentment and demand for payment of any of the Obligation; (iii) protest and
notice of dishonor or default to the Guarantor or to any other party with
respect to any of the Obligations: and (iv) all other notices to which the
Guarantor might otherwise be entitled.
26
SECTION 9.4 This is a continuing guaranty and shall (i) remain in full force
and effect until the Bank shall have received written notice from the
Guarantor that has been revoked, but any such notice shall not release the
Guarantor from any liability as to any Obligation or the Guarantor's
obligations hereunder (including any contingent liability) existing at the
time of such notice (ii) be binding upon the Guarantor and the Guarantor's
successors and assigns, and (iii) inure to the benefit of, and be enforceable
by, the Bank and the Bank's successors, transferees and assigns. Without
limiting the generality of the foregoing clause (iii), the Bank may assign or
otherwise transfer all or any portion of the Bank's rights and obligations to
any other person or entity, and such other person or entity shall thereupon
become vested with all the benefits thereof granted to the Bank herein or
otherwise.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first
above written.
SPAL INDUSTRIA BRASILEIRA DE CITIBANK, N.A. -- INTERNATIONAL
BEBIDAS S.A. BANKING FACILITY
By: By:
-------------------------- ----------------------------
Name: Name:
Title:
By:
--------------------------
Name:
Title:
PANAMERICAN BEVERAGES, INC.,
By:
--------------------------
Name:
Title:
WITNESSED BY:
-----------------------------
-----------------------------
27
EXHIBIT A
ADDENDUM -- CREDIT AGREEMENT
This Addendum -- Credit Agreement (the "Addendum"), made as of this
June 4th, 2001, by and among Spal Industria Brasileira de Bebidas S.A. (the
"Borrower"), Panamerican Beverages Inc. (the "Guarantor") and CITIBANK, N.A.
--INTERNATIONAL BANKING FACILITY (the "Bank"),
WITNESSETH:
WHEREAS, the Borrower, the Guarantor and the Bank entered into a
Credit Agreement dated as of June lst, 2001 (the "Credit Agreement" --
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Credit Agreement);
WHEREAS, pursuant to Section 2.02(b) of the Credit Agreement, as a
condition precedent to any Advance to be made by the Bank pursuant to the
Credit Agreement, the Borrower, the Guarantor and the Bank are required to
execute an Addendum to the Credit Agreement substantially in the form of
Exhibit A thereto;
WHEREAS, the Borrower, the Guarantor and the Bank have determined
that the Bank will extend an Advance pursuant to that agreement in the amount
of Fifteen Million United States Dollars (US$ 15,000,000) as of June 1st,
2001, and therefore have determined to execute this Addendum in connection
with that Advance to satisfy the requirement of Section 2.02(b) to that
effect;
NOW THEREFORE, the Borrower, the Guarantor and the Bank do hereby
agree as follows:
Section 1. Amendment to the Credit Agreement. The Borrower, the
Guarantor and the Bank have executed this Addendum as a condition precedent to
the referenced Advance, in satisfaction of the requirements of Section 2.02(b)
of the Credit Agreement. This Addendum shall also constitute an amendment to
the Credit Agreement pursuant to Section 6.02 thereof, such that following the
execution of this Addendum, the Credit Agreement shall be deemed to be amended
to the effect set forth herein.
Section 2. Making the Advance. Subject to the satisfaction of the
conditions precedent to each Advance set forth in Section 2.02(a) of the
Credit Agreement, the referenced Advance shall be disbursed by the Bank on
June 4th, 2001 (which shall be the "Disbursement Date" for that Advance). The
Borrower and the Guarantor hereby confirms that the statements set forth in
Section 4.01(b) of the Credit Agreement are true as of the date hereof. To
effect the referenced Advance, the Bank shall pay Fifteen Million United
States Dollars (US$ 15,000,000) to that account number 00000000 at Banco
Citibank S.A., to be then transferred to the relevant beneficiary's account as
the Borrower may determine.
28
Section 3. Repayment of the Advance. Except as may otherwise be
specifically provided herein or in the Credit Agreement, the Borrower or the
Guarantor shall repay the principal amount of the Advance in one single
installment, in the amount Fifteen Million United States Dollars (US$
15,000,000). Such payment shall be due and payable on June 4th, 2003. The
Borrower or the Guarantor shall direct payment to the Bank on that date of the
amount of United States Dollars due hereunder (and under the Credit Agreement)
with respect to the referenced Advance in accordance with Section 2.04 (b) of
the Credit Agreement.
Section 4. Interest. With regard to each calendar day that interest
shall accrue on obligations of the Borrower, the race of interest to be
applied to interest obligations of the Borrower with respect to the referenced
Advance shall be 5,96% per annum, as provided in Section 2.04 (b) of the
Credit Agreement. Notwithstanding anything which may be to the contrary herein
or in the Credit Agreement, any amount which is not paid on the date such
amount shall become due and payable hereunder and under the Credit Agreement
shall bear interest from that due date until the date the Bank receives such
amount, at an interest rate equal at all times to 2,00% (Two hundredth
percent) per annum above SIX- MONTH LIBOR (determined as of such due date) for
the length of time the relevant payment is not made.
IN WITNESS WHEREOF, the Borrower, the Guarantor and the Bank have
executed this Addendum as of the date first above written.
SPAL INDUSTRIA BRASILEIRA DE CITIBANK, N.A. -- INTERNATIONAL
BEBIDAS S.A. BANKING FACILITY
By: By:
-------------------------- ----------------------------
Name: Name:
Title:
By:
--------------------------
Name:
Title:
PANAMERICAN BEVERAGES, INC.,
By:
--------------------------
Name:
Title: WITNESSED BY:
----------------------------- -----------------------------------
