EXHIBIT 10.27
JPY
CREDIT AGREEMENT*
between
PANAMCO DE VENEZUELA, S.A.
as Borrower,
INARCO INTERNATIONAL BANK, N.V.
as Bank,
and
PANAMERICAN BEVERAGES, INC.
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Dated as of July 18, 2000
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.......................1
1.1 Defined Terms ..................................................1
1.2 Principles of Construction.......................................5
SECTION 2. AMOUNT AND TERMS OF CREDIT........................................5
2.1 The Loan ..................................................5
2.2 Notice of Borrowing..............................................6
2.3 Disbursement of Funds............................................6
2.4 Notes ..................................................6
2.5 Interest ..................................................6
2.6 Interest Payment Date............................................7
2.7 Increased Costs, Illegality, etc.................................7
2.8 Compensation ..................................................8
2.9 Change of Applicable Lending Office..............................8
SECTION 3. FEES 8
3.1 Fees ..................................................8
SECTION 4. PREPAYMENTS AND ASSIGNMENTS: PAYMENTS.............................8
4.1 Voluntary Prepayments............................................8
4.2 Mandatory Assignment ............................................8
4.3 Repayments .................................................8
4.4 Method and Place of Payment......................................9
4.5 Net Payments .................................................9
4.6 Breakage Fee.....................................................9
SECTION 5. CONDITIONS PRECEDENT.............................................10
5.1 Execution of Agreement; Notes...................................10
5.2 No Default; Representations and Warranties......................10
5.3 Notice of Borrowing.............................................10
5.4 Opinion of Counsel..............................................10
5.5 Corporate Documents; Proceedings................................10
5.6 Appointment Letter..............................................10
5.7 Absence of a Material Adverse Change............................10
5.8 Financial Statements............................................10
5.9 Approvals .................................................11
5.10 Litigation and other Proceedings...............................11
5.11 Payments .................................................11
5.12 Market Conditions, etc.........................................11
5.13 Due Diligence .................................................11
5.14 Ownership of Shares............................................11
5.15 Assignment Agreement...........................................11
5.16 Instructions ................................................11
(ii)
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.......................12
6.1 Corporate Status................................................12
6.2 Corporate Power and Authority...................................12
6.3 No Violation .................................................12
6.4 Governmental Approvals..........................................12
6.5 Financial Statements; Financial Condition; Undisclosed
Liabilities; etc..............................................12
6.6 Litigation .................................................12
6.7 True and Complete Disclosure....................................13
6.8 Use of Proceeds; Margin Regulations.............................13
6.9 Tax Returns and Payments........................................13
6.10 Compliance With Statutes.......................................13
6.11 Investment Company Act.........................................13
6.12 Labor Relations................................................13
6.13 Patents, Licenses, Franchises and Formulas.....................13
6.14 Taxes and Withholding..........................................13
6.15 No Immunity .................................................14
6.16 Pari Passu Ranking.............................................14
6.17 Validity .................................................14
6.18 Absence of Material Adverse Change.............................14
SECTION 7. AFFIRMATIVE COVENANTS............................................14
7.1 Information Covenants...........................................14
7.2 Books, Records and Inspections..................................15
7.3 Maintenance of Property Insurance...............................15
7.4 Corporate Franchises............................................15
7.5 Compliance with Statutes, etc...................................15
7.6 Performance of Obligations......................................15
7.7 Ownership of Shares and Management..............................15
SECTION 8. NEGATIVE COVENANTS...............................................16
8.1 Liens .................................................16
8.2 Consolidation, Merger, Sale of Assets, etc......................18
8.3 Transactions with Affiliates....................................18
8.4 Minimun Shareholders Equity.....................................18
8.5 Limitation on; Modifications of Certificate of
Incorporation, By-Laws........................................18
8.6 Change in Nature of Business....................................18
8.7 Financial Covenants.............................................18
SECTION 9. EVENTS OF DEFAULT................................................18
9.1 Payments .................................................18
9.2 Representations, etc............................................19
9.3 Covenants .................................................19
9.4 Default Under Other Agreements..................................19
9.5 Bankruptcy and Insolvency.......................................19
9.6 Monetary Judgments..............................................19
9.7 Non-monetary Judgments..........................................19
9.8 Pari Passu Ranking..............................................19
9.9 Governmental Approvals and Comments.............................19
9.10 Occurrence of Material Adverse Change..........................20
9.11 Governmental Action or Event of Sovereign Risk.................20
9.12 Swap Agreements................................................20
(iii)
SECTION 10. MISCELLANEOUS...................................................20
10.1 Payment of Expenses, Indemnification, etc......................20
10.2 Right of Set-off...............................................21
10.3 Notices .................................................22
10.4 Assignment; Benefit of Agreement...............................22
10.5 No Waiver; Remedies Cumulative.................................22
10.6 Calculations; Computations.....................................22
10.7 Governing Law; Submission to Jurisdiction; Venue...............22
10.8 Obligation to Make Payments in Yen.............................23
10.9 Counterparts .................................................23
10.10 Effectiveness.................................................23
10.11 Headings Descriptive..........................................23
10.12 Amendment or Waiver...........................................23
10.13 Survival .................................................23
10.14 Waiver of Immunity............................................23
10.15 Waiver of Jury Trial..........................................23
SCHEDULE I Interest Payment DateTable
SCHEDULE II Labor Relations Disclosure Schedule
EXHIBIT A Notice of Borrowing
EXHIBIT B Note
EXHIBIT C Form of Opinion of Venezuelan Counsel to
the Borrower
EXHIBIT D Officers' Certificate of the Borrower
EXHIBIT E Consent Letter
EXHIBIT F Form of Assignment Letter
(iv)
CREDIT AGREEMENT (the "Credit Agreement"), dated as of July 18,
2000, among Panamco de Venezuela, S.A. (the "Borrower"), a corporation
organized and existing under the laws of Venezuela, Inarco International Bank,
N.V. (the "Bank") a financial institution organized and existing under the
laws of Aruba, Dutch West Indies (D.W.I.), and Panamerican Beverages, Inc. a
corporation organized and existing under the laws of the Republic of Panama.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Bank is willing to make available to the Borrower the credit
facility provided for herein;
WHEREAS, the Borrower desires to refinance its one hundred twenty
million Dollars (US$ 120,000,000) credit facility entered with Hollandesche
Bank Unie.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS,
PROVISIONS AND COVENANTS CONTAINED HEREIN THE PARTIES HERETO AGREE AS FOLLOWS
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.
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1.1 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):
"Account Opening Agreement" shall mean, the ACCOUNT OPENING
AGREEMENT for an asset linked time deposit, dated as of July 18, 2000, made
between Panamerican Beverages, Inc., and Citibank, N.A.
"Affiliate" shall mean, with respect to any Person, any other Person
(other than an individual) directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person; provided,
however, an Affiliate of the Borrower shall include any Person that directly
or indirectly owns more than 5% of the Borrower and any officer or director of
the Borrower or any such Person. A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power to direct
or cause the direction of the management and policies of such other Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Lending Office" means, with respect to the Bank, the
office of such Bank specified opposite its name on the signature page hereof
or in the Assignment and Acceptance pursuant to which it became a Bank, or
such other office of such Bank may from time to time specify to the Borrower
and the Agent.
"Aruba" shall mean Aruba Dutch West Indies (DWI).
"Assignment Agreement" shall mean the agreement in the form attached
hereto in EXHIBIT F.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement and any successors in interest or assigns.
"Bank's Account" means the account of Citibank, N.A. Aruba
maintained by Citibank, N.A., in its Tokyo, Japan Branch (account number 022
0000000).
"Bolivares" or "Bs." shall mean the lawful currency of Venezuela.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean the borrowing of the Loan from the Bank on a
given date.
"Borrowing Date" shall mean the date on which the initial Borrowing
occurs.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall
be in New York City or Aruba or Caracas, Venezuela a legal holiday or a day on
which banking institutions are authorized or required by law or other
government action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
the Loan, any day which is a Business Day described in clause (i) above.
"Cash Equivalents" shall mean, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) time deposits and
certificates of deposit and bankers' acceptances of any commercial bank having
a long-term unsecured debt rating of at least "A" or the equivalent thereof
from Standard & Poor's, a division of the McGraw Hill companies ("Standard &
Poor's"), or "A2" or the equivalent thereof from Xxxxx'x Investors Services,
Inc., with maturities of not more than six months from the date of acquisition
by such Person, (iii) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in
clause (ii) above, (iv) commercial paper issued by any Person rated at least
A-1 or the equivalent thereof by Standard & Poor's or at least P-1 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. and maturing not more
than six months after the date of acquisition by such Person and (v)
investments in money market funds substantially all the assets of which are
comprised of securities of the types described in clauses (i) through (iv)
above.
"Citibank, N.A." shall mean Citibank, N.A. New York.
"Commitment" shall mean for the Bank, at any time, the amount set
forth opposite such Bank's name on the signature page hereof under the heading
"Commitment".
"Consolidated" shall mean the consolidation of accounts in
accordance with U.S. GAAP.
"Consolidated Tangible Net Assets of Panamerican Beverages, Inc.
shall mean as of any date, the total amount of assets of Panamerican
Beverages, Inc. and its Subsidiaries, less (i) Intangible Assets and (ii)
appropriate adjustments on account of minority interest of other Persons
holding equity investments in Subsidiaries, all as reflected on the
consolidated balance sheet of Panamerican Beverages, Inc. and its Subsidiaries
as of the end of the fiscal quarter immediately preceding such date.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of any such primary obligation or (y) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the holder of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss
in respect thereof; provided, however, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
(2)
"Credit Documents" shall mean this Agreement, the Note, the
Assignment Agreement and the Swap Agreements, the Credit Agreement dated as of
the date hereof among Panamco de Venezuela, S.A., Inarco International Bank
N.V. and Panamerican Beverages, Inc. for the principal amount of
US$20,000,000; and the Account Opening Agreement for an Asset Linked Time
Deposit.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Disclosure Schedule" shall mean the Disclosure Schedule set forth
as Schedule II hereto.
"Dollars", "U.S.$" and the sign "$" shall each mean freely
transferable lawful currency of the United States.
"Effective Date" shall have the meaning provided in Section 10.10.
"Event of Default" shall have the meaning provided in Section 9.
"Event of Sovereign Risk" shall mean the failure by the Central Bank
of the Republic of Venezuela or any successor thereto as the central bank or
monetary authority of the Republic of Venezuela to approve to the extent
legally required or permit the exchange of, Bolivars for Yen, or any other
action of any other governmental authority in Venezuela (including the
promulgation, operation or enforcement of any law, act, decree, regulation,
ordinance, order, policy, or determination, or modification or change in the
interpretation of any of the foregoing) or any event in the Republic of
Venezuela, that has the effect of preventing or restricting such exchange or
the transfer of any funds outside of Venezuela, or Yen are unavailable in any
legal exchange market thereof in Venezuela in accordance with normal
commercial practice.
"Existing Indebtedness" shall mean Debt of the Borrower and its
Subsidiaries outstanding on the date hereof.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.1.
"Holding Company of the Borrower" shall mean Embotelladora Coca-Cola
y Hit de Venezuela, S.A., a corporation organized and existing under the law
of Panama.
"Indebtedness" shall mean, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the face amount of all letters of credit issued for the account
of such Person and all drafts drawn thereunder, (iii) all liabilities secured
by any Lien on any property owned by such Person, whether or not such
liabilities have been assumed by such Person, (iv) the aggregate amount
required to be capitalized in accordance with U.S. GAAP under leases under
which such Person is the lessee and (v) all Contingent Obligations of such
Person.
"Intangible Assets" shall mean all unamortized debt discounts and
expense, unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, write-ups of assets over their carrying value
at the end of the last fiscal quarter ended prior to the date of this
Agreement or the date of acquisition, if acquired subsequent to the date of
this Agreement, and all other items which would be treated as intangibles on
the Consolidated balance sheet of the Panamerican Beverages, Inc. and its
Subsidiaries.
"Interest Payment Date" shall have the meaning provided in Section
2.6.
"Interest Period" has the meaning specified in Section 2.5.
"Interest Rate" shall have the meaning provided in Section 2.5 (a).
(3)
"Japanese Yen", "Yen" and the sign "JPY" shall each mean freely
transferable lawful currency of the Kingdom of Japan.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall have the meaning provided in Section 2.1.
"Margin Stock" shall have the meaning provided in Regulation U of
the Board of Governors of the Federal Reserve System.
"Material Adverse Change" shall mean any material adverse change in
the business, condition (financial or otherwise), operations, assets,
revenues, performance, properties or prospects of the Borrower, Panamerican
Beverages, Inc., the Holding Company of the Borrower and its Subsidiaries
taken as a whole.
"Material Adverse Effect" shall mean with respect to the Borrower,
the Holding Company of the Borrower, and any Person, any material adverse
effect on (a) the business, condition (financial or otherwise), operations,
assets, revenues, performance or properties of such Person, the Borrower or
the Holding Company of the Borrower, (b) the rights or remedies of the Bank
under this Agreement, any Note or any other Credit Document, (c) the ability
of the Borrower, the Holding Company of the Borrower or any Person to perform
its obligations under this Agreement, any Note or any other Credit Document or
(d) the ability of the Borrower, the Holding Company of the Borrower or any
other party to any Credit Document or any Person to perform its obligations
under any Credit Document to which it is a party.
"Maturity Date" shall mean the date which is exactly 3 years after
the Borrowing Date.
"Note" shall have the meaning provided in Section 2.4.
"Notice of Borrowing" shall have the meaning provided in Section
2.2.
"Notice Office" shall mean the office of the Bank located at Arulex
Center, Punta Brabo, Oranjestad, Aruba, Netherlands Antilles, or such other
office as the Bank may hereafter designate in writing as such to the other
parties hereto.
"Obligations" shall mean all present and future obligations,
liabilities and other amounts owing to the Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Panama" shall mean the Republic of Panama.
"Permitted Liens" shall have the meaning provided in Section 8.1.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, limited liability company, trust or other
entity or enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Process Agent" shall mean CT Corporation System, presently located
at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Purchase Money Lien" shall mean a Lien on property securing
Indebtedness incurred by the Borrower or any of its Subsidiaries to provide
funds for all or a portion of the cost of acquiring, constructing, altering,
expanding, improving or repairing such property or assets used in connection
with such property.
(4)
"Regulation D, G, T, U or X" shall mean Regulation D, G, T, U or X
of the Board of Governors of the Federal Reserve System as from time to time
in effect and any successor to all or a portion thereof establishing reserve
requirements.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned or controlled by such
Person and/or one or more Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Subsidiaries of such Person has more than a 15% beneficial
or equity interest at the time.
"Swap Agreements" shall mean the cross-currency swaps executed by
the Borrower and Citibank, N.A. or any Affiliate from time to time providing
currency and interest rate coverage necessary to pay the Loan as set forth
hereto. Definitions contained in Section 9.12 will have the meaning ascribed
in the Swap Agreements which are incorporated into this Agreement by
reference.
"Taxes" shall have the meaning provided in Section 4.5.
"Total Commitment" shall mean, at any time, the sum of the
Commitment of the Bank.
"United States" and "U.S." shall each mean the United States of
America.
"U.S. GAAP" shall mean generally accepted accounting principles in
the U.S. consistently applied during a relevant period.
"Venezuela" shall mean the Bolivarian Republic of Venezuela.
"Venezuelan GAAP" shall mean generally accepted account principles
in Venezuela consistently applied during a relevant period.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
1.2 Principles of Construction.
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(a) All references to sections, schedules and exhibits are to
sections, schedules and exhibits in or to this Agreement unless otherwise
specified. The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
(b) All accounting terms not specifically defined herein shall be
construed in accordance with U.S. GAAP in conformity with those used in the
preparation of the financial statements referred to in the second sentence of
Section 6.5.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
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2.1 The Loan. Subject to and upon the terms and conditions set forth
herein, the Bank agrees to make a single advance, (such advance being the
"Loan") to the Borrower on any date on or before July 26, 2000 in an amount in
yen equal to the Commitment.
(5)
2.2 Notice of Borrowing.
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(a) When the Borrower desires to make the Borrowing hereunder
according to Section 2.1, it shall give the Bank at its Notice Office on the
Business Day of the proposed borrowing of the Loan prior notice of the Loan to
be made hereunder, provided that any such notice shall be deemed to have been
given on a certain day only if given before 12:00 P.M. (New York time) on such
day. Such notice ("Notice of Borrowing") shall be substantially in the form of
Exhibit A and otherwise in form and substance satisfactory to the Bank,
appropriately completed to specify the aggregate principal amount of the Loan
to be made pursuant to such Borrowing and the date of such Borrowing (which
shall be a Business Day on or before July 26, 2000).
(b) The Notice of Borrowing shall be irrevocable and binding on the
Borrower. The Borrower shall indemnify the Bank against any loss, cost or
expense incurred by the Bank as a result of any failure to fulfill on or
before the date specified in any Notice of Borrowing the applicable conditions
set forth in Section 5, including without limitation any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by the Bank to fund the Loan to be made by the Bank as part of
a Loan when the Loan, as a result of such failure, is not made on such date.
2.3 Disbursement of Funds. Subject to the terms and conditions
hereof, and provided that the Borrower has furnished proper instructions to
the Bank no later than 4:00 P.M. (New York time) on the date specified in the
Notice of Borrowing and that the Borrower has completed all conditions
precedent provided in Section 5 hereof, the Bank will make available, the
Borrowing requested to be made on such date, in Yen and in immediately
available funds net of fees and costs payable to the Bank, to the order of the
Borrower pursuant to wire instructions provided to the Bank by the Borrower.
2.4 Notes. The Borrower's obligation to pay the principal of, and
interest on, the Loan made by the Bank shall be evidenced by a promissory note
duly executed and delivered by the Borrower substantially in the form of
Exhibit B with blanks appropriately completed in conformity herewith (the
"Note"). The Note issued to the Bank shall (i) be payable to the order of the
Bank and be dated on the Borrowing Date, (ii) be in a stated principal amount
equal to the Loan and be payable in the principal amount of the Loan evidenced
thereby, (iii) mature, with respect to the Loan evidenced thereby, on the
Maturity Date, (iv) bear interest as provided in the appropriate clause of
Section 2.5 in respect of the Loan, evidenced thereby and (v) be entitled to
the benefits of this Agreement.
2.5 Interest.
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(a) The Borrower agrees to pay interest in respect of the unpaid
principal amount of the Loan from the date the proceeds thereof are made
available to the Borrower until the maturity thereof (whether by acceleration
or otherwise) at the prevailing LIBOR plus 3.55% (the "Margin").
"LIBOR" shall mean the rate of interest per annum at which deposits
in Yen are offered by the principal office of Citibank, N.A. in London,
England, to prime banks in the London Interbank Market at 11:00 am (London
time) two Business Days before the first day of each Interest Period for a
period equal to such Interest Period for approximately equal amounts for such
Interest Period. Interest shall be paid at the end of each Interest Period.
"Interest Period" means the period of time used to calculate interest,
beginning on the date the Loan is disbursed and ending on the first Interest
Payment Date and each subsequent periods; provided that, if an Interest Period
ends on a day which is not a Business Day it shall be extended to the next
Business Day, unless it falls on the next calendar month in which case it
shall be reduced to the next preceding Business Day.
(b) Overdue principal and, to the extent permitted by law, overdue
interest in respect of the Loan and any other overdue amount payable by the
Borrower hereunder or under any other Credit Document shall bear interest at a
rate which is equal to 2 % above the rate per annum required for the period
pursuant to Sections 2.5 (a) and (c). Such interest to accrue on a daily basis
from the date such principal or interest was due with such interest to be
payable on demand.
(6)
(c) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of the Loan, on the each Interest Payment Date and (ii) on any
prepayment of the Loan (on the amount prepaid), on the prepayment date, and
(iii) at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
2.6 Interest Payment Dates. The dates on which interest on the Loan
shall be payable as established in Schedule I (each being an "Interest Payment
Date").
2.7 Increased Costs, Illegality, etc.
--------------------------------
(a) In the event that the Bank shall have determined (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto):
(i) at any time, that the Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to the Loan because of (x) any change since the date of this Agreement in
any applicable law or governmental rule, regulation, order or request
(whether or not having the force of law) or in the interpretation or
administration thereof and including the introduction of any new law or
governmental rule, regulation, order or request, such as, for example,
but not limited to, (A) a change in the basis of taxation of payments to
the Bank or its Applicable Lending Office of the principal of or interest
on the Notes or any other amounts payable hereunder (except for changes
in the rate of tax on, or determined by reference to, the net income or
profits of the Bank or its Applicable Lending Office imposed by the
jurisdiction in which its principal office or Applicable Lending Office
is located) or (B) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Interest Rate, and/or (y) other
circumstances affecting the Bank or the interbank Eurodollar market, or
the position of the Bank in such market; or
(ii) at any time, that the making or continuance of the Loan has
been made (x) unlawful by any law or governmental rule, regulation or
order, having jurisdiction either in Aruba, Venezuela or New York, (y)
impossible by compliance by the Bank with any governmental request
(whether or not having force of law) or (z) impracticable as a result of
a contingency occurring after the date of this Agreement which materially
and adversely affects the Bank's cost of funds;
then, and in any such event, the Bank shall promptly give notice thereof (by
telephone confirmed in writing) to the Borrower. Thereafter (x) in the case of
clause (i) above, the Borrower shall pay to the Bank, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as the Bank in its sole
discretion shall determine) as shall be required to compensate the Bank for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to the Bank, showing the
basis for the calculation thereof, submitted to the Borrower by the Bank
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (y) in the case of clause (ii) above, take one of the
actions specified in Section 2.7(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that the Loan is affected by the circumstances
described in Section 2.7(a)(i) or (ii), the Borrower may (and in the case of a
Loan affected by the circumstances described in Section 2.7(ii) shall either
(i) if the affected Loan is then being made initially, cancel said Borrowing
by giving the Bank notice by telephone (confirmed in writing) of the
cancellation pursuant to Section 2.7(a)(i) or (ii), or (ii) if the affected
Loan is then outstanding, upon at least three Business Days' written notice to
the Bank, repay the Loan (subject, however, to Section 2.8).
(c) If the Bank determines at any time that any applicable law or
governmental rule, regulation, order or request (whether or not having the
force of law) concerning capital adequacy, or any change in interpretation or
administration thereof by any governmental authority, central bank or
comparable agency, will have the effect of increasing the amount of capital
required or expected to be maintained by the Bank based on the existence of
the Bank's Commitment hereunder or its obligations hereunder, then the
Borrower shall pay to the Bank, upon its written demand therefor, such
additional amounts as shall be required to compensate the Bank for the
increased cost to the Bank as a result of such increase of capital. In
determining such additional amounts, the Bank will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
(7)
provided that the Bank's determination of compensation owing under this
Section 2.7(c) shall, absent manifest error, be final and conclusive and
binding on all the parties hereto. The Bank, upon determining that any
additional amounts will be payable pursuant to this Section 2.7(c), will give
prompt written notice thereof to the Borrower, which notice shall show the
basis for calculation of such additional amounts, although the failure to give
any such notice shall not release or diminish any of the Borrower's
obligations to pay additional amounts pursuant to this Section 2.7(c).
2.8 Compensation. The Borrower shall compensate the Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation and shall, absent manifest error, be final and conclusive and
binding on all the parties hereto), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by the Bank to fund its Loan) which the Bank may sustain: (i)
if for any reason (other than a default by the Bank) a Borrowing of the Loan
does not occur on a date specified therefor in a Notice of Borrowing (whether
or not withdrawn by the Borrower or deemed rescinded pursuant to Section
2.7(a)); (ii) if any repayment (including any prepayment made pursuant to
Section 4) occurs on a date which is not the Interest Payment Date with
respect thereto (iii) if any prepayment of the Loan is not made on any date
specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay the Loan when
required by the terms of this Agreement or the Note or (y) any action taken
pursuant to Section 2.7(b).
2.9 Change of Applicable Lending Office. The Bank agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.7(a)(i)
or (ii), 2.7(c), or 4.5 with respect to the Bank, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy, legal and
regulatory considerations of the Bank) to designate another Applicable Lending
Office, provided that such designation is made on such terms that such Bank
and its Applicable Lending Office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such section. Nothing in this Section 2.9 shall
affect or postpone any of the obligations of the Borrower or the right of the
Bank provided in Section 2.7 or 4.5.
SECTION 3. FEES.
----
3.1 Fees.
----
(a) Arrangement Fee. The Borrower shall pay to the Bank an
arrangement fee for the amount of $300,000 on the Borrowing Date.
SECTION 4. PREPAYMENTS AND ASSIGMENTS; PAYMENTS.
------------------------------------
4.1 Voluntary Prepayments. The Borrower shall have the right to
prepay the Loan, on any Interest Payment Date after the Borrowing Date on the
following terms and conditions: (i) the Borrower shall give the Bank at its
Notice Office at least 15 Business Days' prior notice of its intent to prepay
the outstanding principal amount of the Loan in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided that (x) each partial prepayment shall be in an
aggregate principal amount of the equivalent in Yen as of such date to US$
10,000,000 or an integral multiple of the equivalent in Yen as of such date to
US$ 1,000,000 in excess thereof; (ii) prepayments of the Loan made pursuant to
this Section 4.1 may only be made on an Interest Payment Date applicable
thereto; provided that if payments are made on a date other than an Interest
Payment Date, the Borrower shall pay the premium penalty set forth in Section
4.6 of this Agreement, and (iii) the Borrower shall pay any other amounts when
due under this Agreement.
4.2 Mandatory Assignment. In the event of an occurrence of an Event
of Default, the Bank shall automatically and without further action or notice
of any kind transfer and assign all of its interest hereunder to Panamerican
Beverages, Inc. pursuant to the Assignment Agreement executed and delivered by
Panamerican Beverages, Inc. on the date hereof pursuant to Section 5.15.
4.3 Repayments. The Borrower agrees to repay the Loan in Yen on the
Maturity Date.
(8)
4.4 Method and Place of Payment.
---------------------------
(a) Except as otherwise specifically provided herein, all payments under
this Agreement or the Note shall be made to the Bank not later than 11:00 A.M.
(New York time) on the date when due and shall be made in Yen in immediately
available funds in the Bank's Account.
(b) Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during
such extension.
4.5 Net Payments. All payments made by the Borrower hereunder or
under the Note will be made without setoff, counterclaim or other defense. All
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by
Venezuela or any other jurisdiction or by any political subdivision or taxing
authority thereof or therein (but excluding, except as provided below, any tax
imposed on or measured by the net income of a Bank pursuant to the laws of the
jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the principal office or Applicable Lending Office of such
Bank is located and all interest, penalties or similar liabilities with
respect thereto (collectively, "Taxes"). The Borrower shall also reimburse the
Bank, upon the written request of the Bank, for taxes imposed on or measured
by the net income of the Bank pursuant to the laws of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) in which the
principal office or Applicable Lending Office of the Bank is located as the
Bank shall determine are payable by such Bank in respect of amounts paid to or
on behalf of such Bank pursuant to the preceding sentence. If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes to
the relevant tax authorities and to pay to the Bank such additional amounts as
may be necessary so that every payment of all amounts due hereunder or under
any Note, after withholding or deduction for or on account of any Taxes
(including deductions or withholdings applicable to the additional amounts
payable under this Section 4), will not be less than the amount provided for
herein or in such Note. The Borrower will furnish to the Bank within 45 days
after the date the payment of any Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing such payment by the Borrower. The
Borrower will indemnify and hold harmless the Bank, and reimburse the Bank
upon its written request, for the amount of any Taxes so levied or imposed and
paid by the Bank.
4.6 Breakage Fee. The Borrower shall pay a breakage fee as premium
or penalty in case of any prepayment of the Loan made pursuant to Section 4.1,
such fee to be paid as follows:
(JPYLIBOR1 + Penalty - JPYLIBOR2)* D/360
P* ----------------------------------------
(1 + JPYLIBOR2* D/360)
Where:
P = JPY Principal Amount of the Loan.
JPYLIBOR1 = 6-mo JPY LIBOR BBA for the current Calculation Period.
JPYLIBOR2 = JPY LIBOR BBA for the tenor equal to D.
D = the remaining number of days in the respective Calculation Period.
Calculation
Period = a period between two subsequent interest payment dates scheduled
under this Credit Agreement.
Penalty = determined according to the following schedule:
(a) in the event the Borrower prepays the Loan within 730 days
following the disbursement date of the Loan, 0.10%;
(9)
(b) in the event the Borrower prepays the Loan following the
730th day following the disbursement date of the Loan, 0.00%.
If the amount calculated according to the formula above is (i) a positive
amount, the Borrower shall pay to the Bank such amount, and (ii) a negative
amount, the Bank shall pay to the Borrower the absolute value of such amount.
SECTION 5. CONDITIONS PRECEDENT.
--------------------
The obligation of the Bank to make the Loan is subject to the
satisfaction, in the reasonable judgment of the Bank, of the following
conditions:
5.1 Execution of Agreement; Notes. The Effective Date shall have
occurred and there shall have been delivered to the Bank the Agreement and the
Note executed by the Borrower in the amount, maturity and as otherwise
provided herein.
5.2 No Default; Representations and Warranties. At the time of the
Borrowing Date (and after giving effect thereto) (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct
in all material respects with the same effect as though such representations
and warranties had been made on and as of the Borrowing Date.
5.3 Notice of Borrowing. The Bank shall have received a Notice of
Borrowing with respect thereto meeting the requirements of Section 2.2.
5.4 Opinion of Counsel. On the Borrowing Date, the Bank shall have
received from Venezuelan, New York and Panamanian counsel to the Borrower and
Panamerican Beverages, Inc., an opinion addressed to the Bank and dated on the
Borrowing Date covering the matters set forth in Exhibit C and such other
matters incident to the transactions contemplated herein as the Bank may
reasonably request.
5.5 Corporate Documents; Proceedings.
--------------------------------
(a) On the Borrowing Date, the Bank shall have received a
certificate, dated the Borrowing Date, signed by a duly authorized officer or
agent of the Borrower, in the form of Exhibit D with appropriate insertions,
together with copies of the organizational documents, By-Laws, board of
directors approvals and resolutions of the Borrower referred to in such
certificate.
(b) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated in this Agreement
and the other Credit Documents shall be satisfactory in form and substance to
the Bank, and the Bank shall have received all information and copies of all
documents and papers, including records of corporate proceedings and
governmental approvals, if any, which the Bank reasonably may have requested
in connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
5.6 Appointment Letter. The Bank shall have received a letter from
the Process Agent substantially in the form of Exhibit E, indicating its
consent to its appointment by the Borrower as its agent to receive service of
process.
5.7 Absence of a Material Adverse Change. There shall have occurred
no Material Adverse Change since January 2, 2000, or any material adverse
change in the political, economic or financial condition of Venezuela since
the date hereof.
5.8 Financial Statements. The Bank or any of its Affiliates shall
have received a copy of the financial statements and balance sheets of the
Borrower and the Holding Company of the Borrower, dated as of December 31,
1999, and the related statements of income, statements of changes in
shareholders' equity and statements of cash flows of the Borrower for the
period ended on such date.
(10)
5.9 Approvals. If applicable, the Borrower shall have provided
evidence satisfactory to the Bank in all respects that all government and
third party comments and approvals required in connection with (i) the
execution, delivery and performance of each of the Credit Documents and (ii)
the legality, validity, binding effect and enforceability of any and all such
Credit Documents, have been obtained, including, without limitation, exchange
control approvals and any other necessary consents required or advisable from
Venezuela or the Venezuelan Central Bank or any other governmental authority.
5.10 Litigation and other Proceedings. No litigation, action, suit,
investigation, claim or proceeding by any governmental authority or any Person
shall be pending or threatened with respect to this Agreement or any other
Credit Document, the transactions contemplated hereby, or with respect to any
agreement to which the Borrower is a party which would reasonably be expected
to have a Material Adverse Effect on the Borrower or which purports to affect
the legality, validity or enforceability of any Credit Document or the
consummation of the transactions contemplated hereby and thereby.
5.11 Payments. All fees and other amounts required to be paid or
deposited on or prior to the Borrowing Date under this Agreement, the mandate
letter and the other Credit Documents shall have been paid and deposited for
the benefit of the Bank, to the extent then due.
5.12 Market Conditions, etc. There shall not have occurred any
Material Adverse Change, in the United States of America, Venezuela, Aruba or
in its international financial, political, legal or economic conditions, or
currency exchange rates or exchange controls applicable to the Dollar or the
Bolivar, in the reasonable judgment of the Bank.
5.13 Due Diligence. The Bank shall have completed a due diligence
investigation of the Borrower, and with results, satisfactory to the Bank and
nothing shall have come to the attention of the Bank during the course of such
due diligence investigation which leads the Bank to conclude that it should
not proceed with the transaction.
5.14 Ownership of Shares. Evidence satisfactory to the Bank that as
of the Borrowing Date the Holding Company of the Borrower is indirect owner of
100% of the capital stock of the Borrower. The Borrower shall be required to
provide such documents, instruments and undertakings as may be required in the
reasonable discretion of the Bank to satisfactorily establish that the
requirements of this Section 5.14 shall be fulfilled within the time limits
set forth herein.
5.15 Assignment Agreement. The Bank shall have received counterparts
of the Assignment Agreement duly executed by Panamerican Beverages, Inc. and
the Borrower as of the date hereof.
5.16 Instructions. The Bank shall have received the instructions
authorizing Hollandesche Bank Unie to credit directly and irrevocably on
behalf of Panamerican Beverages, Inc. for an amount of US$ 100,000,000
according to the terms and set forth in the Account Opening Agreement.
The acceptance of the benefits of the Borrowing shall constitute a
representation and warranty by the Borrower to the Bank that all the
conditions specified in Section 5 exist as of that time. All the Notes,
certificates, legal opinions and other documents and papers referred to in
this Section 5, unless otherwise specified, shall be delivered to the Bank at
its Notice Office and, except for the Notes, in sufficient counterparts for
each party hereto and shall be satisfactory in form and substance to the Bank.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
------------------------------------------
In order to induce the Bank to enter into this Agreement and to make
the Loan, the Borrower makes the following representations, warranties and
agreements as of the Effective Date and as of the Borrowing Date, which shall
survive the execution and delivery of this Agreement and the Note and the
making of the Loan:
6.1 Corporate Status. The Borrower (i) is a duly organized and
validly existing corporation in good standing under the laws of the
jurisdiction of its incorporation, (ii) has the power and authority to own its
(11)
property and assets and to transact the business in which it is engaged and
consummate the transactions contemplated by the Credit Documents (iii) is duly
qualified and authorized to do business in each jurisdiction where the
ownership, leasing or operation of property or the conduct of its business
requires such qualification.
6.2 Corporate Power and Authority. The Borrower has the corporate
power to execute, deliver and perform the terms and provisions of each of the
Credit Documents to which it is party and has taken all necessary corporate
action to authorize the execution, delivery and performance by it of each of
such Credit Documents. The Borrower has, or in the case of the Credit
Documents other than this Agreement, by the Effective Date will have, duly
executed and delivered each of the Credit Documents to which it is party, and
each of such Credit Documents constitutes or, in the case of each such other
Credit Document when executed and delivered, will constitute, its legal, valid
and binding obligation enforceable in accordance with its terms.
6.3 No Violation. Neither the execution, delivery or performance by
the Borrower of the Credit Documents to which it is a party, nor compliance by
it with the terms and provisions thereof, nor the use of the proceeds of the
Loan (i) will contravene any provision of any law, statute, rule or regulation
or any order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
the Borrower pursuant to the terms of any indenture, mortgage, deed of trust,
credit agreement, loan agreement or any other agreement, contract or
instrument to which the Borrower is a party or by which it or any of its
property or assets is bound or to which it may be subject or (iii) will
violate any provision of the organizational documents or By-Laws of the
Borrower.
6.4 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the Effective Date), or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with, (i) the
execution, delivery and performance of any Credit Document to which the
Borrower is a party or (ii) the legality, validity, binding effect or
enforceability of any such Credit Document.
6.5 Financial Statements; Financial Condition; Undisclosed
Liabilities; etc.
------------------------------------------------------
(a) The audited statements of financial condition of the Holding
Company of the Borrower and the non-audited statements financial condition of
the Borrower (which are prepared in Venezuelan GAAP) at December 31, 1999, and
the related statements of income and retained earnings and changes in
financial position of the Holding Company of the Borrower and the Borrower for
December 31,1999, furnished to the Bank present fairly the condition of the
Holding Company of the Borrower at the date of such statements of financial
condition and results of the operations of the Borrower for such date. All
such financial statements except any and all financial information distributed
by the Borrower have been prepared in accordance with U.S. GAAP. Since
December 31, 1999, there has been no Material Adverse Change on the Borrower
or the Holding Company of the Borrower.
(b) Except as fully reflected in the financial statements delivered
pursuant to Section 6.5(a), there were as of the Effective Date no liabilities
or obligations with respect to the Borrower of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether or not due) which,
either individually or in aggregate, would be material to the Borrower. As of
the Effective Date the Borrower does not know of any basis for the assertion
against the Borrower of any liability or obligation of any nature whatsoever
that is not fully reflected in the financial statements delivered pursuant to
Section 6.5(a) which, either individually or in the aggregate, could have a
Material Adverse Effect on the Borrower.
6.6 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of the Borrower, threatened (i) with respect to this
Agreement or any Credit Document (ii) with respect to any of the transactions
contemplated hereby or (iii) that are reasonably likely to have a Material
Adverse Effect on the Borrower.
6.7 True and Complete Disclosure. All factual information (taken as
a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or the Holding Company of the Borrower in writing to the Bank or its
Affiliates (including, without limitation, all information contained in the
Credit Documents) for
(12)
purposes of or in connection with this Agreement or any transaction
contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of the Borrower in writing to the
Bank or its Affiliates will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any fact necessary to make such information (taken as a
whole) not misleading at such time in light of the circumstances under which
such information was provided.
6.8 Use of Proceeds; Margin Regulations. All proceeds of the Loan
shall be used by the Borrower for the sole purpose of repaying the US$
120,000,000 credit agreement with Hollandesche Bank Unie referred to in the
Witnesseth section. No part of the proceeds of the Loan will be used by the
Borrower to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock. Neither the making
of any Loan nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System.
6.9 Tax Returns and Payments. The Borrower has filed all tax returns
required to be filed by it and has paid all income taxes payable by it which
have become due pursuant to such tax returns and all other taxes and
assessments payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith and for which adequate
reserves have been established. The Borrower has paid, or has provided
adequate reserves (in the good faith judgment of the management of the
Borrower) for the payment of, all federal and state income taxes applicable
for all prior fiscal years and for the current fiscal year to the date hereof.
6.10 Compliance with Statutes, etc. The Borrower is in compliance
with all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies of Venezuela, Aruba, 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 compliances
as would not, in the aggregate, have a Material Adverse Effect on the
Borrower.
6.11 Investment Company Act. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
6.12 Labor Relations. Except as set forth in the Disclosure Schedule
attached hereto as Schedule II, the Borrower is not engaged in any unfair
labor practice that could have a Material Adverse Effect on the Borrower.
There is (i) no significant unfair labor practice complaint pending against
the Borrower or, to the best knowledge of the Borrower, threatened against it,
and no significant grievance or significant arbitration proceeding arising out
of or under any collective bargaining agreement is so pending against the
Borrower or, to the best knowledge of the Borrower, threatened against it,
(ii) no significant strike, labor dispute, slowdown or stoppage pending
against the Borrower or, to the best knowledge of the Borrower, threatened
against the Borrower, and (iii) to the best knowledge of the Borrower, no
union representation question existing with respect to the employees of the
Borrower and, to the best knowledge of the Borrower, no union organizing
activities are taking place, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate) such
as could not have a Material Adverse Effect on the Borrower.
6.13 Patents, Licenses, Franchises and Formulas. The Borrower owns
all the patents, trademarks, permits, service marks, trade names, copyrights,
licenses, franchises and formulas, or rights with respect to the foregoing,
and has obtained assignments of all leases and other rights of whatever
nature, necessary for the present conduct of its business, without any known
conflict with the rights of others which, or the failure to obtain which, as
the case may be, would result in a Material Adverse Effect on the Borrower.
6.14 Taxes and Withholding. No income, stamp or other taxes (other
than the 4.95% withholding tax with respect to Venezuela to be applied on
interest payments, or taxes which are measured by, net income or net profits)
or levies, imposts, deductions, charges, compulsory loans or withholdings
whatsoever are, under applicable law in Venezuela or Panama as of the
Effective Date, imposed, assessed, levied or collected in Venezuela or Panama,
or any political subdivision or taxing authority thereof or therein either (i)
on or by virtue of the execution or delivery of any Credit Document or (ii) on
any payment to be made by it pursuant to any Credit Document.
(13)
6.15 No Immunity. The Borrower is subject to civil and commercial
law with respect to its obligations hereunder, and the execution, delivery and
performance by it of its obligations under each Credit Document to which it is
a party constitute private and commercial acts (jure gestionis acts) rather
than public or governmental acts (jure imperii acts). None of it or any of its
properties has any immunity from jurisdiction of any court or from set-off or
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under the
laws of Venezuela or any other jurisdiction.
6.16 Pari Passu Ranking. The obligations of the Borrower under this
Agreement, the Note and any other Credit Documents to which the Borrower is a
party constitute the direct, unconditional and unsubordinated obligations of
the Borrower and will rank pari passu in priority of payment and in all other
respects with all other Indebtedness of the Borrower.
6.17 Validity. Each Credit Document is in proper legal form under
the laws of Venezuela, or Panama, New York and Aruba for the enforcement
thereof against it under the law of such jurisdictions; and to ensure the
legality, validity, enforceability or admissibility in evidence of each such
Credit Document in Venezuela, or Panama, New York and Aruba it is not
necessary that such Credit Document or any other document be filed or recorded
with any court or other authority in Venezuela, or Panama, New York or Aruba
or that any stamp or similar tax be paid on or in respect of any Credit
Document.
6.18 Absence of Material Adverse Change. At the time the Borrower
executes this Agreement and on the Borrowing Date, neither the Borrower nor
the Holding Company of the Borrower has experienced any Material Adverse
Change since the date of the financial statements delivered by them to the
Bank pursuant to Section 5.8.
SECTION 7. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees
that on and after the Effective Date and until the Total Commitment 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 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 of the
Borrower and the Holding Company of the Borrower, quarterly balance sheets and
the related statements of income of Borrower and the Holding Company of the
Borrower and statements of cash flow of the Borrower (which are prepared in
Venezuelan GAAP) and the Holding Company of the Borrower for the period ended
on such date;
(b) Annual Financial Statements. Within 120 days after the close of
each fiscal year of the Holding Company of the Borrower and the Borrower,
audited statements of financial condition of the Holding Company of the
Borrower and non-audited statements of financial condition of the Borrower
(which are prepared in Venezuelan 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 Holding Company of the Borrower 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 Holding Company of the Borrower, 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 Borrower and of the Holding Company of the
Borrower 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.
(14)
(d) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after an officer of the Borrower 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 (y) with respect to any Credit Document and (iii)
any other event which is likely to have a Material Adverse Effect on the
Borrower.
(e) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other information and reports, if any, which
the Borrower shall send to any of its security holders or file with any
national securities exchange in Venezuela or any other Venezuelan governmental
agencies.
(f) Other Information. From time to time, such other information or
documents (financial or otherwise) as the Bank may reasonably request.
7.2 Books, Records and Inspections. Each the Borrower and the
Holding Company of the Borrower 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 record and account in
Venezuelan GAAP) and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. The Borrower will
permit officers and designated representatives of the Bank to visit and
inspect, under guidance of officers of the Borrower any of the properties of
the Borrower and to examine the books of record and account the Borrower and
discuss the affairs, finances and accounts of the Borrower 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. The Borrower 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 its property, and (iii) furnish to the Bank, upon
written request, full information as to the insurance carried.
7.4 Corporate Franchises. The Borrower 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 patents; provided,
however, that nothing in this Section 7.4 shall prevent the withdrawal by the
Borrower of its qualification as a foreign corporation in any jurisdiction
where such withdrawal could not have a Material Adverse Effect on the
Borrower.
7.5 Compliance with Statutes, etc. The Borrower 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.
7.6 Performance of Obligations. The Borrower and the Holding Company
of the Borrower 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 and the Holding Company of the Borrower.
7.7 Ownership of Shares and Management. 100% of the capital stock of
the Borrower shall be indirectly owned by Panamerican Beverages, Inc. The
Borrower 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.
SECTION 8. NEGATIVE COVENANTS.
------------------
The Borrower covenants and agrees that on and after the Effective
Date and until the Loan and the Note, together with interest, Fees and all
other Obligations incurred hereunder and thereunder, are paid in full:
(15)
8.1 Liens. The Borrower will not create, incur, assume or suffer to
exist any Lien upon or with respect to any property or assets (real or
personal, tangible or intangible) of the Borrower 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;
(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;
(16)
(j) Liens securing only indebtedness of a Subsidiary of the
Borrower to the Borrower or one or more Subsidiaries of the
Borrower;
(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 The
Coca-Coca Company or any subsidiary of it;
(l) 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 the
Borrower 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
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
(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 became 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 Panamerican Beverages,
Inc.
(17)
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 biding
obligation of the Successor Company, enforceable against such entity in
accordance with its terms, subject to customary exceptions.
8.3 Transactions with Affiliates. The Borrower will not enter into
any transaction or series of related transactions, whether or not in the
ordinary course of business, with any Affiliate of the Borrower, other than on
terms and conditions substantially as favorable to the Borrower as would be
obtainable by the Borrower at the time in a comparable arm's-length
transaction with a Person other than an Affiliate.
8.4 Minimum Shareholders Equity. The Borrower will not permit a
decrease or reduction of its shareholders equity as of the Effective Date at
any time during any period the Loan is outstanding without the prior written
consent of the Bank.
8.5 Limitation on; Modifications of the Borrower's Certificate of
Incorporation and By-Laws. The Borrower and Panamerican Beverages, Inc. 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 it has taken any other action in connection with any constitutional
document that would reasonably by likely to result in Material Adverse Effect.
8.6 Change in Nature of Business. The Borrower 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 its Subsidiaries as carried out on the date of this Agreement.
8.7 Financial Covenants. The Borrower and its Affiliates shall not
incur or suffer to exist any Indebtedness in an aggregate amount greater than
US$250,000,000.
SECTION 9. EVENTS OF DEFAULT.
-----------------
Upon the occurrence of any of the following specified events (each
an "Event of Default"):
9.1 Payments. The Borrower shall (i) default, and such default shall
continue unremedied for two or more days, in the payment when due of any
principal of or any interest on the Loan or any Note or any Fees or (ii)
default and such default shall continue unremedied for five (5) or more days
after written notice thereof delivered to the Borrower on any other amounts
owing hereunder or under the Note; or
9.2 Representations, etc. Any representation, warranty or statement
made by or on behalf of the Borrower herein or in any other Credit Document or
in any certificate delivered pursuant hereto or thereto shall prove to be
incorrect or untrue in any material respect on the date as of which made or
deemed made; or
9.3 Covenants. The Borrower shall (i) default in the due performance
or observance by it of any term, covenant or agreement contained in Sections 7
or 8 of this Agreement or (ii) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in
Sections 9.1 and 9.2 and clause
(18)
(i) of this Section 9.3) contained in this Agreement and such default shall
continue unremedied for a period of 20 days after written notice to the
Borrower by the Bank; or
9.4 Default Under Other Agreements. The Borrower shall (i) default
in any payment of any Indebtedness (other than the Notes) in the aggregate
equal or greater than US$ 20,000,000 beyond the period of grace (not to exceed
30 days), if any, 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 (other than the Notes) 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 excersises its rights of acceleration; or any Indebtedness of the
Borrower or Panamerican Beverages, Inc. 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
9.5 Bankruptcy and Insolvency. Either the Borrower or Panamerican
Beverages, Inc. shall generally not pay its or their debts as such debts
become due, or shall admit in writing its or their inability to pay its debts
generally or shall make a general assignment in favor of its creditors; or any
proceeding is commenced against the Borrower, and the proceeding is not
controverted within 10 days, or is not dismissed within 30 days, after
commencement of the case; or a custodian or trustee or receiver is appointed
for, or takes charge of, all or substantially all of the property of the
Borrower or the Borrower commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of Venezuela or any
other jurisdiction whether now or hereafter in effect relating to the
Borrower; or there is commenced against the Borrower any such proceeding which
remains undismissed for a period of 30 days, or the Borrower is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any
such case or proceeding is entered; or the Borrower suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 30 days; or any corporate
action is taken by the Borrower for the purpose of effecting any of the
foregoing; or
9.6 Monetary Judgments. One or more judgments or decrees shall be
entered against the Borrower involving in the aggregate a liability (not paid
or fully covered by insurance) of US$20,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged or stayed or
bonded pending appeal within 60 days after the entry thereof; or
9.7 Non-monetary Judgments. Any non-monetary judgment or order shall
be rendered against the Borrower that could reasonably be expected to have a
Material Adverse Effect, and there shall be any period of 60 consecutive days
during which such judgment or order shall not have been vacated, discharged or
stayed or bonded pending appeal; or
9.8 Pari Passu Ranking. The obligations of the Borrower under the
Credit Documents shall fail to rank at least pari passu with all other
unsecured Indebtedness of the Borrower; or
9.9 Governmental Approvals and Comments. Any governmental or other
consent, license, approval or authorization which is now or may in the future
be necessary or appropriate under any applicable law or regulation for the
execution, delivery or performance by the Borrower of any Credit Document to
which it is a party or to make any such agreement or instrument legal, valid,
enforceable and admissible in evidence shall not be obtained or shall be
withdrawn, revoked or modified or shall cease to be in full force and effect
or shall be modified in any manner which would have a Material Adverse Effect
on the rights or remedies of the Bank; or
9.10 Occurrence of Material Adverse Change. The Bank shall
determine, in its good faith, reasonable judgment, that a Material Adverse
Change shall have occurred; or
(19)
9.11 Governmental Action or Event of Sovereign Risk.
----------------------------------------------
(a) Either (i) any authority asserting or exercising governmental or
police powers in Venezuela, or any other applicable jurisdiction shall take
any action, including a general moratorium, canceling, suspending or deferring
the obligation of the Borrower to pay any amount of principal or interest
payable under this Agreement, the Note, or any other Credit Document or
preventing or hindering the fulfillment by any Person of the Obligations, or
having an effect on the currency in which such Person may pay its obligations
under this Agreement or the Note or any other Credit Document or on the
availability of foreign currencies in exchange for other Venezuelan currency
or otherwise or (ii) any such Person shall, voluntarily or involuntarily,
participate or take any action to participate in any facility or exercise
involving the rescheduling of any of such Person's debts or restructuring of
the currency in which such Person may pay its or his obligations; provided,
however, that upon occurrence of the event described above or and Event of
Sovereign Risk the Borrower shall identify within fifteen (15) business days
from such date a related company or Affiliate acceptable to the Bank which
shall assume all the payment obligations set forth in this Agreement (the
"Payor"). Upon assumption by the Payor of the payment obligations set forth in
the Agreement within the period stated above, the Payor unconditionally
accepts to pay the Loan in Yen in accordance with the terms and conditions set
forth hereto. The Event of Default described in this Section 9.11 (a) shall be
effectively verified only if the Payor shall default in the payment of the
obligations assumed by the Borrower as set forth in this Agreement;
(b) Any authority asserting or exercising governmental or police
powers in Venezuela or any Person acting or purporting to act under such
authority shall have taken any action to condemn, seize or appropriate, or to
assume custody or control of, all or any substantial part of the property of
the Borrower;
9.12 Swap Agreements. If (i) with respect to Tranche A of the cross
currency swap transaction with Trade date July 18, 2000 under the terms of the
Confirmation dated as of July 19, 2000 (the "Confimation") between Citibank,
N.A. and the Borrower, a Sovereign Risk Event under the Swap Agreements has
occurred and has been declared and not been cured within the period provided
for in the section of the Confirmation relating to Tranche A entitled
"Obligations upon Occurrence of Sovereign Risk Event", or (ii) an Event of
Default under the Swap Agreements has occurred under the terms of the swap
transaction described in the Confirmation (for the avoidance of doubt, the
terms of the swap transaction referred to in this clause (ii) includes both
Tranche A and Tranche B to the extent that either or both is still
outstanding), or (iii) with respect to the time deposit ("Time Deposit")
described in the Confirmation ("Time Deposit Confirmation") to the Account
Opening Agreement dated as of July 18, 2000 by and between Panamerican
Beverages, Inc. and Citibank, N.A., a Risk Event has occurred with respect to
the Time Deposit and, in the case of a Sovereign Risk Event as defined in the
Time Deposit Confirmation, has not been cured within the period provided for
in such Time Deposit Confirmation;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Bank shall by written notice to the
Borrower, take any or all of the following actions, without prejudice to the
rights of the Bank or the holder of any Note to enforce its claims against the
Borrower (provided, that, if an Event of Default specified in Section 9.5
shall occur with respect to the Borrower, the result which would occur upon
the giving of written notice by the Bank to the Borrower as specified in
clauses (i) and (ii) below shall occur automatically without the giving of any
such notice): (i) declare the Total Commitment terminated, whereupon the
Commitment of the Bank shall forthwith terminate immediately and any
Commitment Commission and Arrangement Fee shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of the Loan and the Notes and all
Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower;
(iii) exercise any other rights available under the Credit Documents or other
document or instrument entered into in connection therewith or under
applicable law.
SECTION 10. MISCELLANEOUS.
-------------
10.1 Payment of Expenses, Indemnification, etc. The Borrower shall:
(i) whether or not the transactions herein contemplated are consummated, pay
all reasonable out-of-pocket costs and expenses (x) of the Bank in connection
with the preparation, execution and delivery of this Agreement and the other
Credit Documents and the documents and instruments referred to herein and
therein and any amendment, waiver or consent relating hereto or thereto and
(y) of the Bank in connection with the enforcement of this Agreement and the
other Credit
(20)
Documents and the documents and instruments referred to herein and therein
(including, without limitation, the reasonable fees and disbursements of
counsel for the Bank); (ii) pay and hold the Bank harmless from and against
any and all present and future stamp and other similar taxes with respect to
the foregoing matters and save the Bank harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iii)
indemnify the Bank, its officers, directors, employees, representatives,
attorneys and agents from, and hold each of them harmless against, any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not the Bank is a
party thereto) related to the entering into and/or performance of this
Agreement or any other Credit Document or the use of the proceeds of the Loan
hereunder or the consummation of any transactions contemplated herein or in
any other Credit Document, including, without limitation, the reasonable fees
and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding (but excluding any such
liabilities, obligations, losses, to the extent incurred by reason of the
gross negligence or willful misconduct of the Bank, its officers, directors,
employees, representatives, attorneys or agents).
10.2 Right of Set-off. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, to the extent permitted by law upon the occurrence and
continuance of an Event of Default, the Bank is hereby authorized at any time
or from time to time, without presentment, demand, protest or other notice of
any kind to the Borrower, the Holding Company of the Borrower or to any other
Person, any such notice being hereby expressly waived, to set-off and to
appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by the Bank, its Affiliates or related
companies (including, without limitation, by branches, agencies, related
entities or Affiliates of the Bank wherever located) to or for the credit or
the account of the Borrower or the Holding Company of the Borrower against and
on account of the Obligations and liabilities of the Borrower, the Holding
Company of the Borrower to the Bank under this Agreement or under any of the
other Credit Documents, including, without limitation, all claims of any
nature or description arising out of or connected with this Agreement or any
other Credit Document, irrespective of whether or not the Bank shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured.
10.3 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed by
special courier or certified mail, telexed, cabled, or faxed followed by
certified mail or special courier or delivered: if to the Borrower, at its
address specified opposite its signature below; if to the Bank, at its Notice
Office; or, as to the Borrower or the Bank, at such other address as shall be
designated by such party in a written notice to the other parties hereto and,
as to each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Bank. All such notices and
communications shall, when mailed, telexed, facsimiled, or cabled or sent by
special courier, be effective when delivered to the, cable company or special
courier, as the case may be, or sent by telex or facsimile, except that
notices and communications to the Bank shall not be effective until received
by either the Bank or the Borrower, as the case may be. The Borrower shall
notify the Holding Company of the Borrower as of any Event of Default by the
same means.
10.4 Assignment; Benefit of Agreement. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, that the
Borrower may not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Bank, except as provided for in
Section 4.2. of this Agreement and, provided further, that, although the Bank
may transfer or assign the Loan to any of its Subsidiaries or Affiliates or
related entities or third parties and may transfer, assign or grant
participations in its rights hereunder and under the Notes, the Bank shall
remain a "Bank" for all purposes hereunder and, except for transfers or
assignments to the Bank's Subsidiaries or Affiliates or related entities, the
transferee, assignee or participant, as the case may be, shall not constitute
a "Bank" hereunder and, provided further, that no Bank shall transfer, grant
or assign any participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement. In the case of any such
participation, the participant shall not have any rights under this Agreement
or any of the other Credit Documents (the participant's rights against such
Bank in respect of such participation to be those set forth in the agreement
executed by the Bank in favor of the participant relating thereto) and all
amounts payable by the Borrower hereunder shall be determined
(21)
as if the Bank had not sold such participation, except that the participant
shall be entitled to the benefits of Sections 2.5, 2.7, 2.8 and 4.5 of this
Agreement to the extent that the Bank would be entitled to such benefits if
the participation had not been transferred, granted or assigned.
10.5 No Waiver; Remedies Cumulative. No failure or delay on the part
of the Bank or the holder of any Note in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of
dealing between the Borrower and the Bank or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Credit Document expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the Bank
or the holder of any Note would otherwise have. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the
rights of the Bank or the holder of any Note to any other or further action in
any circumstances without notice or demand.
10.6 Calculations; Computations. (a) The financial statements to be
furnished to the Bank pursuant hereto shall be made and prepared in accordance
with U.S. GAAP consistently applied throughout the periods involved (except as
set forth in the Notes thereto or as otherwise disclosed in writing by the
Borrower to the Bank); provided, however, that, except as otherwise
specifically provided herein, all computations determining compliance with
Section 8 shall utilize accounting principles and policies in conformity with
those used to prepare the historical financial statements delivered to the
Bank pursuant to Section 6.5(a).
(b) All computations of interest and Fees hereunder shall be made on
the basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or Fees are payable.
10.7 Governing Law; Submission to Jurisdiction; Venue.
------------------------------------------------
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS.
Any legal action or proceeding against the Borrower with respect to this
Agreement or any other Credit Document may be brought in the courts of the
State of New York or of the United States for the Southern District of New
York, and, by execution and delivery of this Agreement, the Borrower hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts. The
Borrower hereby irrevocably designates, appoints and empowers the Process
Agent, as its designee, appointee and agent to receive, accept and acknowledge
for and on its behalf, and in respect of its property, service of any and all
legal process, summons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee, appointee and agent
shall cease to be available to act as such, the Borrower agrees to designate a
new designee, appointee and agent in New York City on the terms and for the
purposes of this provision satisfactory to the Bank. The Borrower further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the
Borrower at its address set forth opposite its signature below, such service
to become effective 30 days after such mailing. Nothing herein shall affect
the right of the Bank or the holder of any Note to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement or
any other Credit Document brought in the courts referred to in clause (a)
above and hereby further irrevocably waives and agrees not to plead or claim
in any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
10.8 Obligation to Make Payments in Yen. The obligation of the
Borrower to make payment in Japanese Yen of the principal of and interest on
the Note and any other amounts due hereunder or under any other Credit Document
to the Bank's Account as provided in Section 4.4 shall not be discharged or
satisfied by any
(22)
tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any currency other than Yen, except to the extent such tender
or recovery shall result in the actual receipt in the Bank's Account of the
full amount of Yen expressed to be payable in respect of the principal of and
interest on the Note and all other amounts due hereunder or under any other
Credit Document. The obligation of the Borrower to make payments in Yen as
aforesaid shall be enforceable as an alternative or additional cause of action
for the purpose of recovery in Yen of the amount, if any, by which such actual
receipt shall fall short of the full amount of Yen expressed to be payable in
respect of the principal of and interest on the Notes and any other amounts
due under any other Credit Document, and shall not be affected by judgment
being obtained for any other sums due under this Agreement or under any other
Credit Document.
10.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Bank.
10.10 Effectiveness. This Agreement shall become effective on the
date (the "Effective Date") on which the Borrower and the Bank shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Bank. The Bank will give the Borrower prompt written
notice of the occurrence of the Effective Date.
10.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
10.12 Amendment or Waiver. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the Bank; provided, however, that no such change,
waiver, discharge or termination shall, without the consent of the Bank, (i)
extend the final maturity of any Loan or Note, or reduce the rate or extend
the time of payment of interest or Fees thereon, or reduce the principal
amount thereof, or increase the Commitment of any Bank over the amount thereof
then in effect (it being understood that a waiver of any Default or Event of
Default or of a mandatory reduction in the Total Commitment shall not
constitute a change in the terms of any Commitment of the Bank), (ii) amend,
modify or waive any provision of this Section 10.12 or Sections 10.1, 10.2,
10.4, or 10.6(b) or (iii) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement.
10.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 2.7, 2.8, 4.5 and 10.1 shall survive the execution and
delivery of this Agreement and the Notes and the making and repayment of the
Loan.
10.14 Waiver of Immunity. To the extent that the Borrower 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 hereby irrevocably and unconditionally
waives such immunity in respect of its obligations under the Agreement and the
Notes and, without limiting the generality of the foregoing, agrees that the
waivers set forth in this Section 10.14 shall have the fullest scope permitted
under the Foreign Sovereign Immunities Act of 1976 of the United States and
are intended to be irrevocable for purposes of such act.
10.15 Waiver of Jury Trial. EACH OF THE BORROWER AND THE BANK HEREBY
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 AGREEMENT OR THE NOTES OR THE ACTIONS OF THE BANK OR ITS
AFFILIATES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
(23)
(24)
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
The Borrower:
------------
PANAMCO DE VENEZUELA S.A 4ta. Transversal de los Xxxxxxxx xx Xxxxxxx Xxx
Xxxxxx, Xxxxxxx 0000 - Xxxxxxxxx. Telephone: (000) 000-0000; Telecopy: (582)
203-6453
By
-----------------------------
Name:
---------------------------
Title:
---------------------------
PANAMERICAN BEVERAGES, INC.
By
-----------------------------
Name:
---------------------------
Title:
---------------------------
Commitment: Yen 10,815,000,000.00 The Bank:
--------
Applicable Lending Office: INARCO INTERNATIONAL BANK N.V.
Arulex Center
Punta Brabo
Oranjestad, Aruba
Netherlands, Antilles
Attn: Xxxxxxx Xxxxxxxx
Telecopy No. (297) 886711 By:
Telephone No. ------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Attorney-in-Fact
(25)
Schedule I
INTEREST PAYMENT DATES
----------------------
January 26, 2001
July 26, 2001
January 28, 2002
July 26, 2002
January 26, 2003
July 28, 2003
(26)
Schedule II
Section 6.12 (iii)
None, except that in August of 1999 and June of 2000, a group of
independent distributors of the Borrower (the "Independent Distributors")
organized certain strikes and stoppages in certain of the bottling plants and
distribution centers operated by the Borrower and also threatened to organize
strikes and stoppages in other bottling plants and distribution centers
operated by the Borrower.
In September of 1999, the Independent Distributors commenced a
proceeding to incorporate a union of independent distributors. Since the
incorporation process began, the Borrower has vigorously opposed its formation
through all available legal channels, being as of the date hereof unsuccessful
to obtain a favorable decision. In February 2000, the Borrower presented a
nullity recourse against the union incorporation solicitation, and made a
preliminary injunction request (based on the violation of certain
constitutional rights of the Borrower) before the Venezuelan Supreme Court. A
decision on the injunction request should be obtained during the coming weeks
and a final decision of the nullity recourse should be issued by the Supreme
Court within the next 12 to 16 months.
If the Borrower's opposition is unsuccessful, the Independent Distributors
could among other things, demand the negotiation of a collective bargaining
agreement, which could translate into the recognition by the Borrower of
certain labor rights. It could also be subject to face several claims and
demands on an individual basis (from each of the Independent Distributors) for
the payment of certain labor and severance rights.
(27)
EXHIBIT A
NOTICE OF BORROWING
July 24, 2000
Inarco International Bank, N.V.
Arulex Center
Punta Brabo
Oranjestad, Aruba
Netherlands Antilles
Attention: Xxxxxxx Xxxxxxxx
Ladies and Gentlemen:
The undersigned, Panamco de Venezuela, S.A., refers to the Credit
Agreement, dated as of July 18, 2000 (as amended from time to time, the
"Credit Agreement," the terms defined therein being used herein as therein
defined), among the undersigned, Panamerican Beverages, Inc. and you, as the
Bank, and hereby gives you notice, irrevocably, pursuant to Section 2.2 of the
Credit Agreement, that the undersigned hereby requests a Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.2 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is July 26, 2000.
(ii) The aggregate principal amount of the Proposed Borrowing is Yen
10,815,000,000.00 .
(iii) The Proposed Borrowing is to consist of a variable Interest
Rate Loan.
(iv) The initial and each subsequent Interest Payment Date for the
Proposed Borrowing is established in Schedule I of the Credit Agreement.
Please transfer the Proposed Borrowing as follows:
--------------------------------------------------
[to be completed].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section 6 of the
Credit Agreement are correct, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds thereof, as though made on
and as of such date; and
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of the
proceeds thereof.
Very truly yours,
Exhibit A
Page 2
PANAMCO DE VENEZUELA, S.A..
By:
---------------------------
Name:
-------------------------
(2)
Exhibit B
FORM OF PROMISSORY NOTE
YEN New York, New York
July 18, 2000
FOR VALUE RECEIVED, Panamco de Venezuela, S.A., a corporation
organized and existing under the laws of the Republic of Venezuela (the
"Borrower"), hereby promises to pay to the order of INARCO INTERNATIONAL BANK,
N.V. (the "Bank"), in lawful money of the Kingdom of Japan in immediately
available funds, at the account number 022 0000000 of Citibank, N.A. Aruba at
Citibank, N.A., Tokyo, Japan, Branch for the principal sum of Ten Thousand
Eight Hundred Fifteen Million Yen (YEN 10,815,000,000) on July 28, 2003.
The principal amount hereof shall earn interest at the prevailing
LIBOR plus 3.55% (the "Margin")."LIBOR" shall mean the rate of interest per
annum at which deposits in Yen are offered by the principal office of
Citibank, N.A. in London, England, to prime banks in the London Interbank
Market at 11:00 am (London time) two Business Days before the first day of
each Interest Period for a period equal to such Interest Period for
approximately equal amounts for such Interest Period. Interest shall be paid
at the end of each Interest Period. "Interest Period" means the period of time
used to calculate interest, beginning on the date the Loan is disbursed and
ending on the first Interest Payment Date and each subsequent periods;
provided that, if an Interest Period ends on a day which is not a Business Day
it shall be extended to the next Business Day, unless it falls on the next
calendar month in which case it shall be reduced to the next preceding
Business Day. "Business Day" shall mean any day except Saturday, Sunday and
any day which shall be in New York City or Aruba or Caracas, Venezuela a legal
holiday or a day on which banking institutions are authorized or required by
law or other government action to close.
Interest shall be payable on the following dates ("Interest Payment
Dates"):
January 26, 2001
July 26, 2001
January 28, 2002
July 26, 2002
January 27, 2003
July 28, 2003
If the principal amount hereof is not fully paid at maturity, the
unpaid balance thereof shall earn penalty interest at the rate of 2% per annum
above the Interest Rate then in effect calculated from the maturity date until
payment in full. Such interest to accrue on a daily basis from the date such
principal or interest was due with such interest to be payable on demand.
Interest hereunder shall be calculated on the actual number of
calendar days elapsed on a year of 360 days.
EXHIBIT B
Page 2
The principal amount hereof and interest thereon shall be payable in
lawful currency of the Kingdom of Japan and in same day funds or any other
funds which at the time of payment shall be customary for the settlement of
International transactions in Yen, at the office of the Bank at Citibank N.A.
Tokyo, Japan, Branch, free and clear of and without deduction for any and all
charges and withholdings and all liabilities with respect thereto excluding
income and franchise taxes of Venezuela, Aruba, Panama and the United States
of America.
The Borrower hereof covenants to pay all taxes, levies, imposts,
duties, charges and withholdings imposed by any authority of the United
States, Venezuela, Aruba, Panama or any other jurisdiction on the principal
sum hereof and interest thereon before any penalties or surcharges are payable
in connection thereto and further covenants to deliver to the Bank within 15
days from the date such taxes, levies, imposts, duties, charges and
withholdings become due and payable the appropriate documentation evidencing
payment thereof.
In the case this Note or the rights hereunder are negotiated, the
Bank is authorized by the Borrower to disclose general financial information
about the Borrower to the person the Bank sells, transfers, or participates
this Note or the rights hereunder.
This Note is the Note referred to in the Credit Agreement dated as
of July 18, 2000 (as amended, the "Credit Agreement") among the Borrower, the
Bank and Panamerican Beverages, Inc. Capitalized terms use but not defined
herein have the meanings set forth in the Credit Agreement. The Credit
Agreement contains, among other provisions, events of default which permit the
Bank to accelerate the payment hereof.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note. This Note shall be construed in
accordance with and be governed by the law of the State of New York.
PANAMCO DE VENEZUELA, S.A..
By:
--------------------------
Name:
------------------------
Title:
------------------------
(2)
Exhibit C
FORM OF OPINION OF VENEZUELAN COUNSEL TO
THE BORROWER
July 18, 2000
To the Bank party to
the Credit Agreement dated as of July 18, 2000
between Panamco de Venezuela, S.A. (the "Borrower") and
INARCO INTERNATIONAL BANK, N.V. as the Bank
Re: Credit Agreement between Panamco de Venezuela, S.A. and Inarco
International Bank, N.V.
Ladies and Gentlemen:
We have acted as Venezuelan counsel for the Borrower in connection
with the preparation, execution and delivery of the Credit Agreement dated as
of July 18, 2000 (the "Credit Agreement"), ISDA Master Agreement between
Citibank, N.A. and Panamco de Venezuela, S.A., the Schedule to the Master
Agreement dated as of the date hereof, the Confirmation of USD/JPY
Cross-Currency Swap, and the Confirmation VEB/JPY Cross-Currency Swap between
the Borrower and Citibank N.A., the Notes, (collectively, the "Credit
Documents"). Unless otherwise defined herein, terms defined in the Credit
Agreement Document are used herein as therein defined.
In that connection, we have examined:
(1) The Credit Documents.
(2) The documents furnished by the Borrower pursuant to Section 5 of
the Credit Agreement.
(3) The current Articles of Incorporation-By-laws (Documento
Constitutivo-Estatutario) of the Borrower and all amendments thereto (in each
case, the "Charter").
(4) Such other documents, agreements and instruments, and such
treaties, laws, rules, regulations, orders, decrees, writs, judgments, awards,
injunctions, and the like, as we have deemed necessary as a basis for the
opinions hereinafter expressed.
We have assumed the due execution and delivery, pursuant to due
authorization, of the Credit Documents by the Bank. We are attorneys admitted
to practice in Venezuela and we express no opinion as to any other laws other
than the laws of Venezuela.
Based upon the foregoing and upon such legal considerations as we
have deemed relevant, we are of the opinion that:
1. The Borrower is a corporation duly organized, validly existing
under the laws of Venezuela and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
2. The Borrower has full corporate power and authority to enter
into, deliver and perform its obligations under each Credit Documents to which
it is a party and to consummate each of the transactions contemplated therein,
and has taken all necessary corporate action to authorize the execution,
delivery and performance by it of such Credit Documents; and each Credit
Documents has been, or upon execution thereof by the attorney-in-fact named
therein shall be, duly executed and delivered by the parties thereto and shall
be the legal, valid and binding obligation of each party thereto, enforceable
against such party in accordance with the terms of
Exhibit C
Page 2
such Credit Document, except as enforcement may be limited by insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
affecting the enforcement of creditors' rights generally.
3. The execution, delivery and performance by the Borrower of the
Credit Documents to which they are a party and the consummation of the
transaction contemplated thereby, do not and will not conflict with any law,
rule, regulation or decree applicable to such party (Including, without
limitation, any foreign exchange or other regulatory requirements in effect in
Venezuela) or the Charter of such party or conflict or result in the breach of
any document or instrument binding on such party.
4. No order, license, consent, authorization or approval of, or
exemption by, or notice to or registration with, any governmental authority or
regulatory body, and no filing, recording, publication or registration in any
public office or any other place, is required in connection with the
execution, delivery and performance by the Borrower of any Credit Document or
for the legality, validity, binding effect or enforceability thereof.
5. There is no tax, levy, impost, deduction, charge or withholding
imposed by Venezuela or any political subdivision thereof either (i) on or by
virtue of the execution or delivery of the Credit Documents or any other
document to be furnished thereunder or (ii) on any payment to be made by the
Borrower pursuant to the Credit Documents except for the applicable income tax
levied on interest paid to financial institutions incorporated and domiciled
outside Venezuela, at a flat rate of 4.95%, which must be totally withheld at
source upon payment.
6. The Borrower is subject to civil and commercial law with respect
to obligations under the Credit Documents to which it is a party, and the
execution, delivery and the performance of each party of each Credit Document
which it is a party constitute private and commercial acts (juris imperii
acts). The Borrower nor any of its property has any immunity from jurisdiction
of any court or from set-off or any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) under the laws of Venezuela.
7. Obligations of the Borrower under each Credit Document to which
it is a party 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.
8. The Credit Documents are in proper legal form under the laws of
Venezuela for the enforcement thereof against the Borrower under the laws of
Venezuela except that for the enforcement thereof in the courts of Venezuela
an official translation to Spanish of the Loan Documents which are not
executed in the Spanish Language by a public interpreter duly certified by the
Venezuelan Ministry of Justice would be required to be submitted to the courts
and/or other governmental authorities in Venezuela in which an enforcement
action thereon is brought; and to ensure the legality, validity,
enforceability or admissibility in evidence of the Credit Documents in
Venezuela, it is not necessary that the Credit Documents or any other document
be filed or recorded with any court or other authority in Venezuela, or that
any stamp or similar tax be paid on or in respect of the Credit Documents.
9. In any action or proceeding arising out of or relating to the
Credit Documents in any court in Venezuela, such court would recognize and
give effect to the provisions of Section 10.7 of the Credit Agreement wherein
the Borrower agrees that the Credit Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York,
United States of America.
10. It is not necessary under the laws of Venezuela (A) in order to
enable any party to exercise or enforce its rights under the Credit Documents
or (B) by reason of any such person being or becoming a party to the Credit
Documents or the performance by such party of its obligations thereunder, that
any such person by licensed, qualified or otherwise entitled to carry on
business in Venezuela, nor will any such performance violate any laws
applicable in Venezuela.
11. The provision in the Credit Agreement as to the submission nor
the Borrower to the jurisdiction of the United States federal and New York
State courts sitting in the City and State of New York, in any action under
the Credit Documents, are each valid, binding and enforceable under Venezuelan
law; and judgments obtained under the Credit Documents in any such
jurisdiction shall be enforceable in Venezuela, including, without
(2)
Exhibit C
Page 3
limitation, any final judgment for payment of money rendered by any such
court. We wish to bring to your attention that although court cases state that
a foreign judgment by a court whose jurisdiction is based solely on submission
thereto by the parties would not be enforceable in a Venezuelan court if none
of the Parties thereto were citizens, residents or domiciliaries of the State
in which the foreign court sits, it is our opinion that such judgment would be
enforceable in Venezuela in those cases in respect of which article 318 of the
Xxxxxxxxxx Code does not apply as an international treaty. Such Code is not
binding between Venezuela and the United States of America.
12. A final conclusive judgment for the payment of money rendered by
any New York State or federal court sitting in the City and State of New York
in respect of any Credit Document would be recognized in the courts of
Venezuela and such court would enforce such judgment without any retrial or
re-examination of the merits of the original action only if such judgment has
been confirmed by Venezuelan Supreme Court of Justice through an exequatur
judgment. Such exequatur judgment would be obtained provided that:
(a) Venezuelan court judgment are enforceable in the
jurisdiction in which the foreign judgment was rendered without a
review of the merits;
(b) The foreign judgment does not relate to real property
located in Venezuela;
(c) The foreign judgment has been rendered by a court of
competent jurisdiction, and does not relate to subject matter in
respect of which Venezuela is solely entitled to assert jurisdiction
under Venezuelan law;
(d) Proper service of process was made upon the parties
pursuant to the laws of the country in which the judgment was
rendered and the country in which such service of process was made,
with sufficient time accorded to the defendants to defend the case;
(e) The foreign judgment does not contain provisions deemed
contrary to Venezuelan public policy or public law, or conflict with
a final decision rendered by a Venezuelan court. The enforcement of
a foreign judgment relating to the Loan Agreement would not be
contrary to the law or public policy of Venezuela;
(f) The foreign judgment is res judicata under the laws of the
State in which it was rendered; and
(g) The foreign judgment concerns only matters of private law.
The application for exequatur judgment shall include the
legalized foreign judgment duly translated into Spanish by a public
interpreter duly certified by the Venezuelan Ministry of Justice.
13. The Bank is not and will not be deemed domiciled or resident in
Venezuela, for tax purposes or carrying on a business in Venezuela, solely by
reason of the execution, delivery, performance or enforcement of the Credit
Documents.
The opinions expressed above are limited to the law of Venezuela and
we do not express any opinion herein concerning any other law.
This opinion is delivered to you solely for your benefit and the
benefit of the Bank under the Credit Agreement from time to time in accordance
with the terms and conditions of the Credit Agreement (provided that this
opinion speaks solely as of the date hereof) and this opinion may not be
furnished to, quoted or relied upon by any other person or entity for any
purpose without my written consent.
Sincerely,
Similar opinions will be received form New York and Panamanian counsel to the
Borrower.
(3)
Exhibit C
Page 4
(4)
EXHIBIT D
PANAMCO DE VENEZUELA, S.A..
Officers' Certificate
I, the undersigned, Chief Financial Officer of Panamco de Venezuela,
S.A., a corporation organized and existing under the laws of Venezuela (the
"Borrower"), DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 5.5(a) of the
Credit Agreement, dated as of July 18, 2000, between the Borrower and the Bank
(such Credit Agreement, as in effect on the date of this Certificate, being
herein called the "Credit Agreement"). Unless otherwise defined herein
capitalized terms used in this Certificate have the meanings assigned to those
terms in the Credit Agreement.
2. The persons named below have been duly elected, have duly
qualified as and at all times since [-----------------] (to and including date
hereof) have been officers of the Borrower, holding the respective offices
below set opposite their names, and the signatures below set opposite their
names are their genuine signatures.
Name Office Signature
---- ------ ---------
[-------------] [-------------] [-------------]
[-------------] [-------------] [-------------]
[-------------] [-------------] [-------------]
3. Attached hereto as Exhibit A is a copy of the organizational
documents (Documento Constitutivo-Estatuario) of the Borrower as filed in the
[-----------------] on [-----------------], 19[--], together with all
amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the
By-Laws of the Borrower as in effect on [---------], together with all
amendments thereto adopted through the date hereof.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Borrower at a
meeting on [--------------], at which a quorum was present and acting
throughout, which resolutions have not been revoked, modified, amended or
rescinded and are still in full force and effect. Except as attached hereto as
Exhibit C, no resolutions have been adopted by the Board of Directors of the
Borrower which deal with the execution, delivery or performance of any of the
Credit Documents.
6. On the date hereof, the representations and warranties contained
in Section 6 of the Credit Agreement are true and correct, both before and
after giving effect to each Borrowing to be incurred on the date hereof and
the application of the proceeds thereof.
7. On the date hereof, no Default or Event of Default has occurred
and is continuing or would result from the Borrowings to be incurred on the
date hereof or from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation of the
Borrower or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this [----]day of
[--------------], 2000.
PANAMCO DE VENEZUELA, S.A.
Exhibit D
Page 2
-------------------------------
Name:
Title:
(2)
Exhibit E
July 18, 2000
To Inarco International Bank, N.V.
Ladies and Gentlemen:
Reference is made to (i) the Credit Agreement, dated as of July 18,
2000, between PANAMCO DE VENEZUELA, S.A. (the "Borrower") and the Bank named
therein (as modified, supplemented or amended from time to time, the "Credit
Agreement"). Unless otherwise defined herein, all capitalized terms used
herein and defined in the Credit Agreement are used herein as therein.
The Borrower pursuant to Section 5.6 of the Credit Agreement, has
irrevocably designated and appointed the undersigned, CT Corporation System
with offices currently located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as its authorized agent to receive for and on its behalf service of process in
any legal action or proceeding with respect to the Credit Agreement, or any
other Credit Document in the courts of the State of New York or of the United
States of America for the Southern District of New York.
The undersigned hereby informs you that it irrevocably accepts such
appointment as Process Agent as set forth in Section 5.6 of the Credit
Agreement, and agrees with you that the undersigned (i) shall inform the Bank
promptly in writing of any change of its address in New York City, (ii) shall
notify the Bank of any termination of any of the agency relationships created
pursuant to Section 5.6 of the Credit Agreement, (iii) shall perform its
obligations as such Process Agent in accordance with the provisions of Section
5.6 of the Credit Agreement, and (iv) shall forward promptly to the Borrower
any legal process received by the undersigned in its capacity as Process
Agent.
As Process Agent, the undersigned, and its successor or successors,
agree to discharge the above-mentioned obligations and will not refuse
fulfillment of such obligations under Section 5.6 of the Credit Agreement.
Very truly yours,
CT Corporation System
By
--------------------------------
Title:
EXHIBIT F
Form of Assignment Agreement
ASSIGNMENT AGREEMENT
Reference is made to the Credit Agreement dated as of July 18, 2000 (as
amended and in effect on the date hereof, the "Credit Agreement"), among
Panamco de Venezuela, S.A., the Bank named therein and Panamerican Beverages,
Inc. Terms defined in the Credit Agreement are used herein with the same
meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment date set forth on the reverse hereof, the
interest set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including the
interest set forth on the reverse hereof in the commitment of the Assignor on
the Assignment date and Loan owing to the Assignor which are outstanding on
the Assignment Date, together with unpaid interest accrued on the assigned
Loan to the Assignment Date, and the amount, if any, set forth on the reverse
hereof of the fees accrued to the Assignment Date for the account of the
Assignor. The Assignee hereby acknowledges receipt of a copy of the Credit
Agreement together with such other documentation and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment Agreement. From and after the Assignment Date (i) the Assignee
shall be a party to and be bound by the provisions of the Credit Agreement
and, to the extent of the interest assigned by this Assignment Agreement, have
the rights an obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent of the interest assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement. The Assignee further confirms that it will, independently and
without reliance on the Assignor or any Bank, and based on such documents and
information as it deems appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement.
This Assignment Agreement shall automatically become effective upon the
determination by the Bank that any Event of Default under the Credit Agreement
has occurred, without further action or notice of any kind by the Bank or the
Assignor, as the case may be. The determination by the Bank that an Event of
Default has occurred shall be conclusive for all purposes absent manifest
error. The Assignee further expressly acknowledges that an Event of Default
under the Credit Agreement has occurred and may be continuing.
This Assignment Agreement shall be governed by and construed in
accordance with the Laws of the State of New York.
Date of Assignment:
Legal Name of Assignor: Citibank N.A.
Legal Name of Assignee: Panamerican Beverages Inc.
Assignee's Address for Notices: Panamerican Beverages Inc.
Xxxxx Xxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxx
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned of Loan:
Principal Amount of Assigned Interest: $
--------------------------------------------
The terms set forth above and on the reverse side hereof are hereby agreed to:
------------------------------------------------------------------------------
(2)
CITIBANK N.A., as Assignor
By:
-------------------------------
Name:
Title:
PANAMERICAN BEVERAGES INC.., as Assignee
By:
-------------------------------
Name:
Title:
The undersigned hereby consent to the within assignment:
--------------------------------------------------------
PANAMCO DE VENEZUELA, S.A.
By:
-------------------------------
Name:
Title:
