Exhibit 10.40
Translation
DEBT ACKNOWLEDGEMENT AND OBLIGOR SUBSTITUTION AGREEMENT (THE "AGREEMENT")
ENTERED INTO BY AND AMONG:
I. PANAMERICAN BEVERAGES INC., IN ITS CAPACITY AS ORIGINAL OBLIGOR
(HEREINAFTER "PANAMCO HOLDING" OR THE "ORIGINAL OBLIGOR"), HEREIN
REPRESENTED BY XX. XXXXX X. XXXXXX;
II. PANAMCO MEXICO, S. A. DE C.V., IN ITS CAPACITY AS SUBSTITUTE OBLIGOR
(HEREINAFTER "PANAMCO MEXICO" OR THE "SUBSTITUTE OBLIGOR"), HEREIN
REPRESENTED BY MESSRS. XXXXXXXX XXXXXXX XXXX AND XXXXXXX XXXXX XXXXXXX;
III. PANAMCO GOLFO, S.A. DE C. V. IN ITS CAPACITY AS JOINT OBLIGOR AND
GUARANTOR (HEREINAFTER "PANAMCO GOLFO" OR THE "JOINT OBLIGOR AND
GUARANTOR"), HEREIN REPRESENTED BY MESSRS. XXXXXXXX XXXXXXX XXXX AND
XXXXXXX XXXXX XXXXXXX; AND
IV. ING BANK (MEXICO), S. A., INSTITUCION DE BANCA MULTIPLE, ING BARING GRUPO
FINANCIERO (MEXICO), S. A. DE C. V., IN ITS CAPACITY AS CREDITOR
(HEREINAFTER "ING"), HEREIN REPRESENTED BY XX. XXXXX XXXX XXXXXXX XXXXXX;
PURSUANT TO THE FOLLOWING BACKGROUND, REPRESENTATIONS AND CLAUSES:
BACKGROUND
On December 18, 2001, ING and Panamco Holding entered into a loan agreement up
to the amount of $ 465,000,000.00 MXP (four hundred and sixty five million
Pesos 00/100 Mexican currency) with borrowings effective as of this date,
wherein Panamco Mexico and Panamco Golfo acted as joint obligors and
guarantors.
REPRESENTATIONS
I. Panamco Holding hereby declares under affirmation:
I.1. That it is corporation duly organized and existing under the laws of
Panama and that pursuant to its current corporate purpose it is fully
authorized to enter into this Agreement and to assume the obligations
attributable thereto herein.
I.2. That its representative has been conferred sufficient powers and
authority to appear in its name and stead in the execution of this Agreement
and that such powers and authority have not been amended, restricted or
revoked as of this date.
I.3. That it acknowledges and accepts to be liable for the obligations derived
from the loan agreement described in the Background section hereof.
I.4. That it has requested from ING to accept, effective as of December 28,
2001, an obligor substitution with respect to the aggregate balance, as of
said date, of the loan described in the Background section hereof.
II. The Substitute Debtor hereby declares under affirmation:
II.1. That it is a variable capital stock company duly organized and existing
under the Mexican laws and that it has been authorized pursuant to its current
corporate purpose to enter into this Agreement and to assume the obligations
attributable thereto in said Agreement.
II.2 That its representatives have been conferred sufficient powers and
authority to appear in its name and stead in the execution of this Agreement
and that such powers and authority have not been amended, restricted or
revoked as of this date.
II.3 That it has requested from ING to accept, effective as of December 28,
2001, an obligor substitution with respect to the aggregate balance, as of
said date, of the loan described in the Background hereof.
II.4 That it is up to date in the payment of any and all taxes and dues
attributable thereto and that, to the best of its knowledge, no judicial
claims have been filed against it nor is there any action or proceeding which
adversely affects or may adversely affect its performance of all the
provisions set forth in this Agreement.
II.5 That it is free from labor disputes which may affect its payment capacity
with respect to the obligations it shall assume by virtue of this Agreement.
II.6. The financial statements which have been already delivered to ING and
served as basis for entering into this Agreement, reflect in a accurate and
faithful manner the financial condition of the company, and at the time of the
execution hereof, there is no adverse change whatsoever which may affect in a
significant manner its financial condition or operations.
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II.7 That it expressly states that it is willing to act as substitute obligor,
effective as of December 28, 2001, with respect to the obligations incurred by
the Original Obligor, as described in the Background of this Agreement, in the
terms and conditions set forth below.
II.8 That it does not require any authorization, approval or action of any
governmental authority or public or private entity for the execution and
performance of the provisions of this Agreement.
III. The Joint Obligor and Guarantor hereby declares under affirmation that:
III.1 it is a variable capital stock company duly organized and existing under
the Mexican laws and that it has been authorized pursuant to its current
corporate purpose to enter into this Agreement and to assume the obligations
attributable thereto in said Agreement.
III.2 Its representatives herein has been conferred sufficient powers for the
execution of this Agreement, and that the same have not been amended,
restricted or revoked as of this date.
III.3 It gives hereby its express consent to the obligor substitution with
respect to the loan granted by ING to the Original Obligor.
IV. ING declares under affirmation that:
IV.1 It is a credit institution duly authorized and incorporated under the
Mexican law.
IV.2 Its representative herein has been conferred sufficient powers for the
execution of this Agreement, and that the same have not been amended or
revoked.
IV.3 That based on the representations of the Original Obligor, the Substitute
Obligor, and the Joint Obligor and Guarantor, and the information provided by
the latter, it is willing to enter into this Agreement and to accept the
obligor substitution, effective as of December 28, 2001, in the terms set
forth herein.
In view of the preceding representations, the parties herein agree to the
following:
C L A U S E S
FIRST. DEFINITIONS
The capitalized words or terms used in this Agreement shall have the following
meaning unless a different meaning shall be attributed thereto herein.
"Acknowledged Debt" shall mean the amount of $ 465,000,000.00 MXP (four
hundred and sixty-five million Pesos 00/100 Mexican Currency) indebted by the
Original Obligor to ING as of the date of execution hereof, plus the amount of
$ 1,033,333.33 MXP (one million thirty-three thousand three hundred and
thirty-three Pesos 33/100 Mexican Currency) as interest to be generated by the
Original Loan on the Substitution Date.
"Agreement" shall mean this Debt Acknowledgment and Obligor Substitution
Agreement.
"Original Loan" shall mean the loan substantiated in the agreement mentioned
in the Background section hereof.
"Original Obligor" shall mean Panamco Holding as obligor in the Original Loan.
"Substitute Obligor" shall mean Panamco Mexico.
"Substitution Date" shall mean December 28, 2001
"ING" shall mean ING Bank (Mexico), S. A. Institucion de Banca Multiple, ING
Baring Grupo Financiero (Mexico), S. A. de C. V.
"Joint Obligor and Guarantor" shall mean Panamco Golfo.
"Panamco Golfo" shall mean Panamco Golfo, S. A. de C. V.
"Panamco Holding" shall mean Panamerican Beverages, Inc.
"Panamco Mexico" shall mean Panamco Mexico, S. A. de C. V.
SECOND. DEBT ACKNOWLEDGMENT
Panamco Holding, as obligor of the loan described in the Background Section of
this Agreement and the Joint Obligor and Guarantor of said loan, hereby
expressly acknowledge and accept to have received from, and to owe to ING, as
of the date of execution of this Agreement, the amount of $ 465,000,000.00 MXP
(four hundred and sixty-five million Pesos 00/100 Mexican Currency) as
outstanding principal derived from the loan referred to in the Background
section of this Agreement and that, as of the Substitution Date, they shall
also be answerable for the interest caused in the amount of $ 1,033,333.33 MXP
(one million thirty-three thousand three hundred and thirty-three 33/100
Mexican Pesos).
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THIRD. OBLIGOR SUBSTITUTION
In terms of Articles 2051 (two thousand and fifty-one), 2055 (two thousand and
fifty-five) and 2057 (two thousand and fifty-seven) of the Civil Code for the
Federal District:
i) For purposes of the Eighth clause of the Agreement referred to in the
Background section hereof, ING herein gives its consent so that,
effective on the Substitution Date, the Substitute Obligor shall assume
any and all obligations incurred by the Original Obligor under the
Original Loan, including the obligation to pay the Acknowledged Debt and
the interest caused thereby in terms of the provisions of the Original
Loan;
ii) The Joing Obligor and Guarantor hereby gives its consent to the above
substitution and states that its joint obligation with respect to the
Original Loan remains unchanged. Its joint obligation shall be in full
force and effect as long as the balance of the Original Loan shall remain
due and payable; and
iii) The Substitute Obligor hereby acknowledges that, on the Substitution
Date, it shall have assumed each and every one of the obligations
incurred by the Original Obligor under the Original Loan and that it
shall owe to ING the Acknowledged Debt and shall be bound to pay the
interest caused thereby, as originally agreed upon pursuant to the
Original Loan.
On the Substitution Date, ING shall return to the Original Obligor the
promissory note subscribed by the latter to substantiate the drawdown of the
Original Loan against delivery of a promissory note in identical terms,
subscribed by the Substitute Obligor in its capacity as main obligor, and by
the Joint Obligor and Gurarantor, in its capacity as guarantor.
FOURTH. SETTLEMENT
As a consequence of the obligor substitution referred to in the Third clause
above, ING shall release the Original Obligor effective on the Substitution
Date, from any and all the obligations the Original Obligor is or may have
been subject to pursuant to the contracts, agreements, negotiable instruments
and any other documents substantiating the Original Loan.
FIFTH. JOINT OBLIGATION AND GUARANTEE OF PANAMCO MEXICO
Effective on the Substitution Date, Panamco Mexico shall cease to act in its
capacity as joint obligor and guarantor with respect to the obligations
derived from the Original Credit.
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In the event ING shall authorice the assignment of the obligations to be
assumed by Panamco Mexico as of the Substitution Date, Panamco Mexico shall
thereupon forthwith resume its capacity as joint obligor and guarantor in
terms and conditions identical to those agreed upon in the Original Credit.
SEVENTH. CONSIDERATION
In consideration for the assumption of the obligations of the Original Obligor
under the Original Loan, Pananco Holding shall pay to Panamco Mexico, on the
Substitution Date, an amount equivalent to the Acknowledged Debt.
The consideration referred to in the preceding paragraph may be set off
against any outstanding obligation of Panamco Mexico in favor of Panamco
Holding effective on the Substitution Date.
EIGHTH. GENERAL
7.1 Headlines. All Clause headlines or titles in this Agreement have been
inserted for convenience or as reference only and under no circumstance
shall they constitute an interpretation or shall be taken into
consideration for the interpretation of the terms hereof or any of the
respective Clauses. For purposes of the interpretation of each Clause of
this Agreement, the parties shall exclusively refer to their contents and
under no circumstance to their headline or title.
7.2 Notices and Addresses. All notifications and notices required to be given
pursuant to this Agreement, shall be made in writing and delivered to the
parties, return receipt requested or notified through a notary public at
the following addresses:
If to ING: Xxxxxx xx Xxxxxx Xx. 00-X, Xxxx 0
Bosques de las Xxxxx 00000
Xxxxxx, D. F.
If to Panamco Holding: Torre Dresdner Bank
Xxxxx 00, Xxxx 0
X. X. 00-000 Xx. xx Xxxxxx
Xxxxxxxxx de Panama
If to Panamco Mexico: Blvd. Xxxxxx Xxxxx Xxxxxxx No. 40,
Piso 00
Xxxxx xx Xxxxxxxxxxx 00000
Xxxxxx, D. F.
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If to Panamco Golfo: Blvd. Xxxxxx Xxxxx Xxxxxxx No. 40,
Piso 00
Xxxxx xx Xxxxxxxxxxx 00000
Xxxxxx, D. F.
All notifications and notices shall take effect on the date of
receipt thereof at the address of the addressee.
All notices, notifications, proceedings as well as any other judicial
or extrajudicial proceedings served at the above referred addresses
shall take effect unless the parties shall give written notice of a
change of address at least ten (10) days in advance.
7.3 Executive Title. This Agreement, together with the debt certification
made by an ING authorized accountant with respect to the Acknowledged
Debt derived from the Original Loan, shall constitute an executive title
against the Substitute Obligor, pursuant to the provisions of article 68
(sixty-eight) of the Credit Institutions Law.
7.4 Discount and Right Assignment. ING is hereby authorized to assign or
otherwise negotiate, even prior to the expiry of this Agreement, the
creditor's rights derived from this Agreement the Original Loan.
7.5 Counterparts. This Agreement shall be executed in 3 (three) separate
counterparts. Each one of said counterparts shall be deemed an original
for any and all pertinent effects.
7.6 Waiver. The fault by any of the parties hereto in the exercise of any of
the rights contemplated in this Agreement shall under no circumstance be
deemed as a waiver of said rights, nor the individual or partial exercise
by any of the parties of any right derived from this Agreement shall
preclude any other right, power or privilege.
7.7 Fees and Expenses. The Substitute Obligor shall pay, on the date of
execution hereof, or forthwith at the written request of ING without need
of judicial requirement, as the case may be, any and all expenses derived
from the preparation, performance and execution of this Agreement,
including, but not limited to, any and all expenses, fees and commissions
attributable to ING's legal counsels.
7.8 Disclosure of Terms and Conditions. Except as provided in the Original
Loan, the terms and conditions of this operation and the Original Loan
shall not be made public unless consented to by the parties; the above
without prejudice of the requirements which may be made by the competent
authorities and the obligations attributable to the parties under
applicable laws.
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7.9 Applicable Law and Jurisdiction. The parties expressly covenant that this
Agreement shall be governed by the laws of Mexico. For the interpretation
of, and compliance with, this Agreement, the parties submit to the
jurisdiction and competence of the courts of the City of Mexico, Federal
District and expressly waive any other jurisdiction they may be subject
to by reason of their present or future domiciles.
The parties, being aware of the contents of this Agreement, have executed it
in the City of Mexico, Federal District on the eighteenth day of December in
the year two thousand and one, to take effect on the twenty-eight day of
December in the year two thousand and one.
The Original Obligor
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(an illegible signature)
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PANAMERICAN BEVERAGES, INC.
Represented by: Xxxxx X. Xxxxxx
The Substitute Obligor
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(an illegible signature)
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PANAMCO MEXICO, S. A. DE C. V.
Represented by: Xxxxxxxx Xxxxxxx Xxxx and
Xxxxxxx Xxxxx Xxxxxxx
The Jont Obligor and Guarantor
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(an illegible signature)
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PANAMCO GOLFO, S. A. DE C. V.
Represented by: Xxxxxxxx Xxxxxxx Xxxx and
Xxxxxxx Xxxxx Xxxxxxx
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ING
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(an illegible signature)
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ING BANK (MEXICO), S. A.,
INSTITUCION DE BANCA MULTIPLE
ING BARING GRUPO FINANCIERO (MEXICO)
S. A. DE C. V.
Represented by: Xxxxx Xxxx Xxxxxxx Xxxxxx
Witnesses
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(an illegible signature)
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(1) Xxxxxx X. xx Xxxxxxx Xxxxxx
(an illegible signature)
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(2) Xxxx Xxx Guzman C.
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