EXHIBIT 10.76
GUARANTY
GUARANTY, dated as of December 16, 2002, made by PANAMERICAN
BEVERAGES, INC., a corporation organized and existing under the laws of the
Republic of Panama (the "Guarantor"), in favor of Citigroup Inc. and each
subsidiary or affiliate thereof (including Citibank, N.A. and each of its
branches wherever located) ("Citigroup").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and to induce INARCO INTERNATIONAL BANK,
N.V. to enter into the Promissory Note dated as of December 16, 2002 (as
amended, supplemented and otherwise modified from time to time, the
Promissory Note) with PANAMCO DE VENEZUELA, S.A. (the "Borrower"), the
Guarantor agrees as follows:
1. Guaranty. The Guarantor unconditionally guarantees the punctual
payment when due, whether upon maturity, by acceleration or otherwise, of
all obligations (now or hereafter existing) of the Borrower under the
Promissory Note, whether for principal, interest, fees, expenses or
otherwise, in each case strictly in accordance with the terms thereof (all
such obligations being the "Obligations"); provided that the Guarantor's
maximum liability under this Guaranty with respect to that portion of the
Obligations consisting of principal will not exceed Thirty Three Million
Dollars of the United States of America (US$33,000,000). If the Borrower
fails to pay any Obligation in full when due (whether at stated maturity,
by acceleration or otherwise), the Guarantor will promptly pay the same to
Citigroup. The Guarantor will also pay to Citigroup any and all expenses
(including without limitation, reasonable legal fees and expenses) incurred
by Citigroup in enforcing its rights under this Guaranty. This Guaranty is
a guaranty of payment and not merely of collection.
2. Guaranty Absolute. The Guarantor's liability under this Guaranty is
unconditional irrespective of (i) any illegality, lack of validity or
enforceability of any Obligation, (ii) any amendment, modification, waiver
or consent to departure from the terms of any Obligation, including any
renewal or extension of the time or change of the manner or place of
payment, (iii) any exchange, substitution, release, non-perfection or
impairment of any collateral securing payment of any Obligation, (iv) any
change in the corporate existence, structure or ownership of the Borrower,
or any insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower or its assets or any resulting release or discharge
of any Obligation, (v) the existence of any claim, set-off or other rights
that the Guarantor may have at any time against the Borrower, Citigroup, or
any other corporation or person, whether in connection herewith or any
unrelated transactions, provided that nothing herein will prevent the
assertion of any such claim by separate suit or compulsory counterclaim,
(vi) any law, regulation, decree or order of any jurisdiction, or any other
event, affecting any term of any Obligation or Citigroup's rights with
respect thereto, including, without limitation: (A) the application of any
such law, regulation, decree or order, including any prior approval, which
would prevent the exchange of a Non-USD Currency (as hereinafter defined)
for U.S. Dollars or the remittance of funds outside of such jurisdiction or
the unavailability of U.S. Dollars in any legal exchange market in such
jurisdiction in accordance with normal commercial practice; or (B) a
declaration of banking moratorium or any suspension of payments by banks in
such jurisdiction or the imposition by such jurisdiction or any
governmental authority thereof of any moratorium on, the required
rescheduling or restructuring of, or required approval of payments on, any
indebtedness in such jurisdiction; or (C) any expropriation, confiscation,
nationalization or requisition by such country or any governmental
authority that directly or indirectly deprives the companies in such
jurisdiction of any payment obligation under any Obligations; or (D) any
war (whether or not declared), insurrection, revolution, hostile act, civil
strife or similar events occurring in such jurisdiction which has the same
effect as the events described in clause (A), (B) or (C) above (in each of
the cases contemplated in clauses (A) through (D) above, to the extent
occurring or existing on or at any time after the date of this Guaranty),
and (vii) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by
Citigroup that might otherwise constitute a defense available to, or a
legal or equitable discharge of, the Borrower or the Guarantor or any other
guarantor or surety.
Without limiting the generality of the foregoing, with respect to any
Obligations that, in accordance with the express terms of any agreement
pursuant to which such Obligations were created, were denominated in U.S.
Dollars or any currency other than the Venezuelan bolivar, the Guarantor
guarantees that it shall pay Citigroup strictly in accordance with the
express terms of such agreement, including in the amounts and in the
currency expressly agreed to thereunder, irrespective of and without giving
effect to any Venezuelan laws in effect from time to time, or any order,
decree or regulation in Venezuela.
It is the intent of this Section 2 that the Guarantor's obligations
hereunder are and shall be absolute and unconditional under any and all
circumstances.
3. Waiver. The Guarantor waives promptness, diligence, notice of
acceptance, notice of dishonor and any other notice with respect to any
Obligation and this Guaranty and any requirement that Citigroup exercise
any right or take any action against the Borrower or any collateral
security or credit support.
4. Reinstatement. This Guaranty will continue to be effective or be
reinstated, as the case may be, if at any time any payment of any
Obligation is rescinded or must otherwise be returned by Citigroup upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, all
as though such payment had not been made.
5. Subrogation. The Guarantor will not assert, enforce or otherwise
exercise any rights which it may acquire by way of subrogation under this
Guaranty, by any payment made hereunder or otherwise, until payment in full
of the Obligations and the termination of any and all agreements under
which Citigroup is committed to provide extensions of credit.
6. Taxes. Any and all payments by the Guarantor hereunder will be made
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding income or franchise taxes
imposed on Citigroup's net income by the jurisdiction under the laws of
which Citigroup is organized or any political subdivision thereof or by the
jurisdiction of Citigroup's lending office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being "Taxes"). If the Guarantor is required
by law to deduct any Taxes from or in respect of any sum payable hereunder
(i) the sum payable will be increased as may be necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section) Citigroup will receive an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Guarantor will make such deductions, and (iii) the Guarantor
will pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law. In addition, the
Guarantor will pay any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies that arise from
any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Guaranty or the Obligations ("Other
Taxes"). The Guarantor will promptly furnish to Citigroup the original or a
certified copy of a receipt evidencing payment thereof. The Guarantor will
indemnify Citigroup for the full amount of Taxes or Other Taxes paid by
Citigroup 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, within 45 days of
Citigroup's request therefor. Without prejudice to the survival of any
other agreement contained herein, the Guarantor's agreements and
obligations contained in this Section will survive the payment in full of
the Obligations, principal and interest hereunder and any termination of
this Guaranty.
2
7. Place and Currency of Payment. If any Obligation is payable in U.S.
Dollars, the Guarantor will make payment hereunder to Citigroup in U.S.
Dollars at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. If any Obligation is
payable in a currency other than U.S. Dollars (a "Non-USD Currency") and/or
at a place other than the United States, and such payment is not made as
and when agreed, the Guarantor will, upon Citigroup's request, either (i)
make payment in such Non-USD Currency and at the place where such
Obligation is payable, or (ii) pay Citigroup in U.S. Dollars at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. In the event of a payment pursuant to clause
(ii) above, the Guarantor will pay Citigroup the equivalent of the amount
of such Obligation in U.S. Dollars calculated at the rate of exchange at
which, in accordance with normal banking procedures, Citigroup may buy such
Non-USD Currency in New York, New York on the date the Guarantor makes such
payment; provided, however, that the foregoing provisions of this sentence
shall not apply to any payments hereunder in respect of Obligations that
have been re-denominated into a Non-USD Currency as a result of the
application of any law, order, decree or regulation in any jurisdiction
other than the United States, which Obligations shall, for purposes of this
Guaranty, be deemed to remain denominated in U.S. Dollars and payable to
Citigroup in accordance with the first sentence of this Section 7.
8. Set-Off. If the Guarantor fails to pay any of its obligations
hereunder when due and payable, Citigroup is authorized at any time and
from time to time, 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 Citigroup to or for the Guarantor's
credit or account against any and all of the Obligations, whether or not
Citigroup has made any demand under this Guaranty. Citigroup will promptly
notify the Guarantor after any such set-off and application, provided that
the failure to give such notice will not affect the validity of such
set-off and application. Citigroup's rights under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that Citigroup may have.
9. Representations and Warranties. The Guarantor represents and
warrants that: (i) the execution, delivery and performance by the Guarantor
of this Guaranty are within its corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (x) its charter or
by-laws or (y) any law or any contractual restriction binding on or
affecting the Guarantor or any entity that controls it, (ii) no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery and performance by the
Guarantor of this Guaranty, and (iii) this Guaranty has been duly executed
and delivered by the Guarantor and is its legal, valid and binding
obligation, enforceable against the Guarantor in accordance with its terms.
10. Continuing Guaranty. This is a continuing guaranty and applies to
all Obligations whenever arising. This Guaranty is irrevocable and will
remain in full force and effect until the payment in full of the
Obligations and all amounts payable hereunder and the termination of all of
the agreements relating to the Obligations.
11. Amendments, Etc. No amendment or waiver of any provision of this
Guaranty, and no consent to departure by the Guarantor herefrom, will in
any event be effective unless the same is in writing and signed by
Citibank, N.A., on behalf of Citigroup, and then such waiver or consent
will be effective only in the specific instance and for the specific
purpose for which given.
12. Addresses. All notices and other communications provided for
hereunder will be in writing (including telecopier communication), and
mailed, telecopied or delivered to it, if to the Guarantor, at its address
at Torre Dredsner Bank, Piso 0, Xxxxx 00, Xxxxxx Xxxx, Xxxxxxxx of Panama.
Facsimil: (000) 000-0000, Attention: Chief Financial Officer, and if to
Citigroup, at its address at Arulex Center, Punta Brabo, Oranjestad, Aruba,
Fax.: (297) 886711, Attention: Xxxx Xxxxx Xxxxxxx, or, as to either party,
at such other address as is designated by such party in a written notice to
the other party. All such notices and other communications will, when
mailed or telecopied, be effective when deposited in the mails or
telecopied, respectively.
3
13. Guarantor's Credit Decision, Etc. The Guarantor has, independently
and without reliance on Citigroup and based on such documents and
information as the Guarantor has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty. The Guarantor has
adequate means to obtain from the Borrower on a continuing basis
information concerning the financial condition, operations and business of
the Borrower, and the Guarantor is not relying on Citigroup to provide such
information now or in the future. The Guarantor acknowledges that it will
receive substantial direct and indirect benefit from the extensions of
credit contemplated by this Guaranty.
14. Judgment. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder in U.S. Dollars into a
Non-USD Currency, the Guarantor agrees that the rate of exchange used will
be that at which, in accordance with normal banking procedures, Citigroup
could purchase U.S. Dollars with such Non-USD Currency on the business day
preceding that on which final judgment is given. The obligation of the
Guarantor in respect of any sum due hereunder will, notwithstanding any
judgment in a Non-USD Currency, be discharged only to the extent that on
the date the Guarantor makes payment to Citigroup of any sum adjudged to be
so due in such Non-USD Currency, Citigroup may, in accordance with normal
banking procedures, purchase U.S. Dollars with such Non-USD Currency; if
the U.S. Dollars so purchased are less than the sum originally due to
Citigroup in U.S. Dollars, the Guarantor agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify Citigroup against such
loss, and if the U.S. Dollars so purchased exceed the sum originally due to
Citigroup in U.S. Dollars, Citigroup agrees to remit to the Guarantor such
excess.
15. Governing Law. This Guaranty shall be governed by, and construed
in accordance with, the law of the State of New York.
16. Consent to Jurisdiction, Etc. The Guarantor irrevocably (i)
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 Guaranty or the Obligations, (ii) agrees that all
claims in respect of such action or proceeding may be heard and determined
in such New York State court or in such Federal court, (iii) 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 (iv) 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 Guarantor at
Panamerican Beverages, Inc., c/o Panamco L.L.C. 000 Xxxxxxxxx Xxx, 0xx
Xxxxx, Xxxxx, Xxxxxxx 00000. Attention: Chief Financial Officer. A final
judgment in any such action or proceeding will be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing herein will affect Citigroup's right to
serve legal process in any other manner permitted by law or affect
Citigroup's right to bring any action or proceeding against the Guarantor
or its property in the courts of other jurisdictions. To the extent that
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 Guarantor
irrevocably waives such immunity in respect of its obligations under this
Guaranty.
17. WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY
OR CITIGROUP'S ACTIONS IN THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT
HEREOF.
Panamerican Beverages Inc.
By /s/ Xxxxxxx Xxxxxxx
____________________________
Name: Xxxxxxx Xxxxxxx
Title: Vice President, Chief Financial
Officer & Treasurer
