EXECUTION COPY EXHIBIT 10.62
AMENDMENT NO. 1 dated as of December 19, 2002 (this
"Amendment"), to the US$ 10,000,000.00 Guaranty dated as of
August 19, 2002 (as may be further amended, supplemented or
modified from time to time, the "Guaranty"), made by
Panamerican Beverages, Inc., a Panamanian corporation (the
"Guarantor"), in favor of Banco Santander Central Hispano,
S.A. (the "Bank") in consideration of a US$ 10,000,000.00
loan (the "Facility") made by the Bank to Panamco de
Venezuela, S.A. (the "Borrower") on August 19, 2002
A. Pursuant to the Facility, the Bank have extended credit to the
Borrower, and have agreed to extend credit to the Borrower, in each case
pursuant to the terms and subject to the conditions set forth therein.
B. The Guarantor in order to induce the Bank to extend credit
under the Facility agreed and issued the Guaranty pursuant to the terms and
subject to the conditions set forth therein.
C. The Guarantor have requested that, pursuant to Section 14 of
the Guaranty, the Bank agrees to amend certain provisions of the Guaranty
as provided herein.
D. The Bank is willing so to amend the Guaranty pursuant to the
terms and subject to the conditions set forth herein.
E. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Guaranty.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendment. Section 10(a) of the Guaranty is hereby deleted
and replaced by the following Section 10(a):
Covenants. The Guarantor covenants as follows:
(a) Incorporation by Reference. The Guarantor will comply with and be bound by
the covenant provisions set forth in Section 5 of the Syndicated Facility
during the term of the Facility. The covenants under section 5 of the
Syndicated Facility,
together with the related definitions, as in effect on the date hereof are
hereby incorporated herein by reference (mutandis mutandis) for the benefit of
the Bank and shall continue for the purposes of this section 10 regardless of
any amendment of, or any consent to any deviation from or other modification
of the Syndicated Facility. If there is (x) any repayment in full of the
loans, and termination of the commitments, under the Syndicated Facility, or
(y) the termination of the Syndicated Facility prior to the Maturity Date of
the Facility, then the Guarantor and the Bank shall negotiate in good faith
mutually agreeable covenants with which the Guarantor shall comply hereunder
to replace the covenants set forth in section 5 of the Syndicated Facility. As
used herein, the term "Syndicated Facility" means the U.S.$130,000,000 Second
Amended and Restated Credit Agreement entered into by the Guarantor and the
banks listed therein on October 29, 2001, as amended on November 20, 2002,
pursuant to an amendment agreement entered by and among the Guarantor and the
banks listed therein.
SECTION 2. Representations and Warranties. The Guarantor represent
and warrant to the Bank that:
(a) This Amendment has been duly authorized, executed and
delivered by Guarantor and constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(b) Before and after giving effect to this Amendment, the
representations and warranties set forth in Section 9 of the
Guaranty are true and correct in all material respects with the
same effect as if made on the date hereof, except to the extent
such representations and warranties expressly relate to an
earlier date.
(c) Before and after giving effect to this Amendment, no
event of default or default has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Amendment shall
become effective when the Bank shall have received counterparts of this
Amendment that, when taken together, bear the signatures of the Guarantor
and the Bank.
SECTION 4. Guaranty. Except as specifically amended hereby, the
Guaranty shall continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof. After the date
hereof, any reference to the Guaranty shall mean the Guaranty as amended
hereby.
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SECTION 5. Facility Document. This Amendment shall be a Facility
Document for all purposes.
SECTION 6. Effective Time. This Amendment shall be effective as
of December 19, 2002.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Amendment may be executed in
counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 9. Expenses. The Guarantor agrees to reimburse the Bank
for its out-of-pocket expenses in connection with this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the day
and year first written above.
PANAMERICAN BEVERAGES, INC.
As the Guarantor
by
/s/ Xxxxxx Xxxxxxxxx-Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx-Xxxxxxx
Title: VP, General Counsel & Secretary
BANCO SANTANDER CENTRAL HISPANO, S.A.
As the Bank
by
/s/ Xxxxxxx X. Testeman
-------------------------------------
Name: Xxxxxxx X. Testeman
Title: General Manager
by
/s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Deputy General Manager
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