SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
Report of Foreign Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
For the month of March, 2000
PANAMERICAN BEVERAGES, INC.
(Translation of registrant's name into English)
Blvd. Manuel Avila Camacho, No. 40, 22nd Floor
Col. Lomas de Chapultepec
Del. Miguel Hidalgo
C.P. 11000 Mexico, D.F., Mexico
(Address of principal executive offices)
(Indicate by check mark whether the registrant files or will file
annual reports under cover of Form 20-F or Form 40-F.)
Form 20-F x Form 40-F
--- ---
(Indicate by check mark whether the registrant by furnishing the
information contained in this form is also thereby furnishing the information
to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act
of 1934.)
Yes No x
--- ---
<PAGE>
2
Table of Contents
Page
1. Press Release dated February 22, 2000
1.1 Panamco Reports Fourth Quarter and FullYear 1999 Financial Results..4
2. Miscellaneous Documents
2.1 Credit Agreement dated March 18, 1999..............................15
2.2 Facility Agreement dated January 22, 1999..........................84
2.3 Deposit and Pledge Agreement dated January 22, 1999...............115
2.4 Guarantee and Indemnity Agreement dated January 22, 1999..........132
2.5 Indemnity Agreement dated January 22, 1999.......................143
2.6 Amendment No. 1 to Shareholder Agreement dated November 15, 1999..151
2.7 Amendment No. 1 to the Credit Agreement dated August 30, 1999.....157
Signatures..................................................................165
<PAGE>
FOR IMMEDIATE RELEASE
Contact: Christian Philco
Panamerican Beverages, Inc.
305/856-7100
David Reno/Christina Johnson
Sard Verbinnen & Co.
212/687-8080
PANAMCO REPORTS FOURTH QUARTER AND FULL YEAR
1999 FINANCIAL RESULTS
o Cash Operating Profit (COP) of $385.5 million for the full year 1999;
4Q99 COP of $99.9 million;
o Share of sales increases in all countries;
o Net loss of $59.9 million, or $(0.46) per share (basic and diluted), for
the year includes net foreign exchange losses of $32.7 million related to
currency devaluations, facilities reorganization charges of $35.2
million, and $3.6 million of other expenses due to severe floods in
Venezuela;
o Excluding special charges and the impact of devaluations, the net loss
for the year would have been $(0.03) per share after taxes;
o 4Q99 net loss of $8.4 million, or $(0.06) per share (basic and diluted),
including facilities reorganization charges and other expenses due to the
Venezuelan floods of $28.2 million equivalent to $(0.22) per share or
$(0.15) per share after taxes.
PANAMA CITY, PANAMA, February 22, 2000 - Panamerican Beverages, Inc.
(NYSE: PB), the largest soft drink bottler in Latin America and one of the
world's largest Coca-Cola bottlers with operations in Mexico, Brazil,
Colombia, Venezuela, Costa Rica, Nicaragua and Guatemala, today reported 1999
fourth quarter and full year results.
For the fourth quarter of 1999, Panamco recorded Cash Operating
Profit (operating income plus depreciation, amortization and non-cash
facilities reorganization charges) or COP, of $99.9 million, a 2.6 % decrease
from $102.5 million in the 1998 fourth quarter, mainly as a result of cash
facilities reorganization charges of $3.6 million during the quarter. Net
sales for the 1999 fourth quarter were $635.3 million, down 10.4% from $709.2
million in the 1998 fourth quarter.
Operating income for the quarter was $17.7 million compared with an
operating loss of $3.5 million for the same period in 1998. Total consolidated
unit case sales volume for the fourth quarter increased 1.0% to 307.1 million
unit cases from 304.1 million unit cases in the 1998 quarter. The net
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loss for the 1999 fourth quarter was $8.4 million, or $(0.06) per share (basic
and diluted), compared to net income of $23.3 million, or $0.18 per share
(basic and diluted) in the fourth quarter of 1998. Per share data is based on
129.7 million basic and 129.9 million diluted weighted average shares
outstanding in the fourth quarter of 1999, compared to 129.6 million and 130.5
million, respectively, in the fourth quarter of 1998.
For the full year 1999, COP was $385.5 million, down 17.7% from
$468.6 million in 1998, mainly as a result of lower sales volumes, currency
devaluations in Colombia, Brazil and Guatemala, and cash facilities
reorganization charges of $14.9 million for the year. As a percentage of net
sales, 1999 COP, was 16.0% compared with 16.9% in 1998. Net sales for 1999
were $2.4 billion, down 12.9% from $2.8 billion in 1998. Operating income was
$114.4 million, including facilities reorganization charges of $35.2 million,
compared with $179.7 million in 1998. Facilities reorganization charges
included $14.9 million of cash items related to a workforce reduction of 3,050
people in Brazil and Venezuela, together with $20.3 million of non-cash items,
mainly in connection with the shut down of five soft drink bottling plants in
Venezuela.
The net loss for 1999 was $59.9 million, or $(0.46) per share (basic
and diluted). This included net foreign exchange losses of $32.7 million -
equivalent to $(0.25) per share or $(0.18) per share after taxes - and
facilities reorganization charges and other expenses related to severe floods
in Venezuela in December 1999 totaling $39.6 million - equivalent to $(0.31)
per share or $(0.21) per share after taxes. This compares to net income of
$120.3 million, or $0.93 per share basic and $0.92 diluted earnings per share
in 1998. Per share data is based on 129.7 million basic and 130.0 million
diluted weighted average shares outstanding in 1999, compared to 129.5 million
basic and 130.8 million diluted shares in 1998.
Francisco Sanchez-Loaeza, chairman and chief executive officer of
Panamco, said: "Panamco's 1999 results were impacted by macroeconomic weakness
in Venezuela, Colombia, Brazil and Guatemala, and major currency devaluations
in Colombia, Brazil and Guatemala. While we had no control over these matters,
during the year we sharpened our focus on controlling costs and expenses, and
successfully maintained a strong Cash Operating Margin, which fell only 30
basis points (excluding the cash facilities reorganization charges) in the
face of a 12.9% decline in revenues. I would like to congratulate our
management team, whose dedication and focus enabled us to sustain operating
profitability under extremely adverse circumstances."
Sanchez-Loaeza added: "Cost and expense reductions were not our only
focus during 1999. Our innovative marketing and merchandising activities drove
volume growth in Brazil, Mexico and
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Central America, and we increased our soft drink share of sales in all of our
territories, most notably in Colombia where, with a gain of 5.3 points, we
reached a record high share of sales of 66.7%. In Brazil, our new marketing
strategy reversed double-digit volume declines experienced in 1998 and
resulted in 7.5% volume growth for the year."
Commenting on the growing differences between consumers in each of
Panamco's markets and market segments, Sanchez-Loaeza continued: "While
uniform company-wide marketing initiatives and pricing policies may have
worked in the past when we operated in fewer countries, as we have expanded
over the years, we have found that differences in consumer buying patterns in
each of our markets demand differentiated and more localized marketing
initiatives. We believe that the best way to drive profitable growth in the
future will be through market segmentation, differential pricing and local
branding".
"In addition, we have begun to reassess our distribution and
production systems and strategy to improve our cost structure, and are
focusing on optimizing asset utilization and rationalizing capital
expenditures in order to improve free cash flow. In short, Panamco has
developed a "local marketing/global efficiency" business model, which will
guide operations going forward and which should ensure profitable growth and
superior returns in the years to come. We are confident that we are doing the
right things at the right time for the benefit of our share owners," concluded
Sanchez- Loaeza.
Total consolidated unit case sales volume declined 0.9% in 1999 to
1.16 billion, from 1.17 billion in 1998, and, on a comparable basis (excluding
the Brazilian franchise acquired in September 1998 and the Guatemalan
franchise acquired in April 1998) decreased 2.3%. Consolidated soft drink
sales volume for the period was down 4.4%, reflecting declines of 17.7% in
Colombia and 22.6% in Venezuela, mostly offset by increases of 5.2% in Mexico,
7.5% in Brazil and 11.1% in the Central American region. Consolidated unit
case sales volume of bottled water increased 14.6% to 208.5 million, and unit
case sales volume of beer sold in Brazil, and as of February 1999 in
Venezuela, increased 2.6% to 63.8 million unit cases.
Gross profit as a percentage of net sales, excluding cash facilities
reorganization charges, increased to 50.3% in 1999 from 48.6% in 1998,
primarily driven by cost savings in raw materials in several countries.
Cash Operating Expenses (operating expenses minus depreciation,
amortization and both cash and non-cash facilities reorganization charges)
decreased 6.4% mainly due to the effect of the devaluation of the Brazilian
Real, Colombian Peso and Guatemalan Quetzal, which was partially
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offset by the revaluation of the Mexican Peso, and to tight expense controls
in all franchises during the year.
REGIONAL RESULTS
Mexico
Panamco Mexico, which operates throughout central Mexico, excluding
Mexico City, among other states reported net sales of $794.8 million for the
full year of 1999, an increase of 24.5% compared to 1998. Soft drink net sales
grew 22.9% on volume growth of 5.2% to 270.0, million unit cases.
Water volume grew 23.8% to 136.4, million unit cases, mainly due to
increased coverage in the Company's franchise territories. During the year,
Panamco Mexico increased its already strong soft drink share of sales by 2.0
points to 80.2%.
COP increased 31.1% to $173.5 million, and as a percentage of net
sales, COP was 21.8% in 1999 compared to 20.7% during 1998, mainly as a result
of the factors noted above, as well as lower raw material costs.
Brazil
Panamco Brasil, which operates in the Sao Paulo, Campinas, Santos
and - as of September 1998 - Mato Grosso do Sul (R.O.S.A.) regions of Brazil,
reported full year 1999 net sales of $500.7 million, a decrease of 44.2% from
1998, due mainly to a 49.0% devaluation of the Brazilian Real in 1999. Despite
current economic conditions, unit case sales volume of soft drinks grew 7.5%,
to 235.9 million, or 1.5% (excluding the 17.9 million unit cases contributed
by R.O.S.A.), primarily as a result of Panamco's promotional pricing strategy,
which included among other activities promotional pricing in our different
sales channels during certain periods of the month. Beer volume grew 1.8% to
63.3 million unit cases, and bottled water volume increased 14.3% to 12.7
million unit cases. Panamco Brasil increased its share of sales by 5.2 points
over 1998 and 7.3 points since launching its promotional pricing strategy,
reaching a total soft drink share of sales of 57.4% by year-end in its
franchise territories.
COP for the year was $35.3 million. Excluding cash facilities
reorganization charges of $5.1 million, COP decreased 57.0% to $40.4 million,
or 8.1% of net sales, from 10.5% of net sales in 1998. This decrease was
mainly due to the devaluation of the Brazilian Real, and our promotional
pricing strategy.
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The cash facilities reorganization charges were related mainly to a
workforce reduction of approximately 1,400 people due to the partial shut down
of one of our bottling plants during the year.
Net income attributable to Panamco for 1999 was impacted by
facilities reorganization charges and foreign exchange losses totaling $33.0
million before taxes.
Colombia
Panamco Colombia, which operates throughout Colombia, reported net
sales of $397.0 million for the 1999 full year, down 19.9% from 1998. The
revenue decline was mainly due to a 21.8% devaluation of the Colombian Peso
over the course of the year and to decreases in soft drink and water volumes
of 17.7% and 15.4%, respectively, to 153.9 million and 37.2 million unit
cases. Volume decreases were attributable to the economic recession and
political turmoil.
Despite these conditions, Panamco Colombia continued strengthening
its position in the market, achieving a record high soft drink share of sales
of 66.7% in December 1999, up 5.3 points from December 1998.
COP decreased 39.2% to $73.6 million, or 18.5% of net sales,
compared to 24.4% of net sales in 1998, mainly due to lower sales volume.
Panamco Colombia's net income for the year was impacted by
facilities reorganization charges totaling $1.4 million before taxes.
Venezuela
For the full year of 1999, Panamco Venezuela, which operates
throughout Venezuela, reported net sales of $512.3 million, down 7.0% from
1998. Price increases totaling 13.5% in dollar terms were largely offset by an
18.0% decrease in total sales volume to 177.5 million unit cases, mainly as a
result of difficult economic conditions in the country. Panamco Venezuela's
soft drink share of sales increased 1.3 percentage points during the year,
reaching 70.3% at December 1999.
COP was $69.8 million and excluding cash facilities reorganization
charges of $9.8 million, was $79.6 million, or 15.5% of net sales, compared
with 16.1% of net sales in 1998. The lower COP margin was due mainly to a 17%
salary increase in late May 1999 together with lower sales volumes.
The cash facilities reorganization charges were related to a
workforce reduction of more than 1,650 people resulting from the closing of
five soft drink bottling plants during the year. In addition, the operation
also registered as other expenses a $3.6 million charge resulting from asset
damage due to severe floods, which occurred in December 1999.
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For the 1999 full year, net income attributable to Panamco was
impacted by special charges totaling $33.1 million before taxes.
Central America
Panamco's Central American region, which includes franchises
covering all of Costa Rica and Nicaragua, and half of Guatemala, including
Guatemala City, reported net sales of $212.1 million for the full year of
1999, an increase of 11.4% from $190.4 million in 1998. The increase was
attributable to volume growth of 12.7% to 73.8 million unit cases, partially
offset by a 13.3% devaluation of the Guatemalan Quetzal. Soft drink volume
grew 11.1% to 69.7 million unit cases and water volume was up 61.0% to 3.6
million unit cases. Panamco's share of sales increased to 93.3% in Costa Rica,
43.1% in Guatemala and 84.3% in Nicaragua.
COP increased 18.6% to $45.0 million, or 21.2% of net sales compared
to 19.9% of net sales in 1998, due mainly to lower raw material costs and
other cost savings measures applied in all countries. This was partially
offset by higher selling and administrative expenses in Costa Rica and
Guatemala.
Net income attributable to Panamco for the year was impacted by
foreign exchange losses totaling $3.6 million.
Panamco is the largest soft drink bottler in Latin America and one
of the world's largest bottlers of the soft drink products of The Coca-Cola
Company. The Company produces and distributes substantially all Coca-Cola soft
drink products in its franchise territories in Mexico, Brazil, Colombia,
Venezuela, Costa Rica, Nicaragua and Guatemala, along with bottled water, beer
and other beverages. Panamco is an anchor bottler of The Coca-Cola Company.
Statements made in this press release that are not historical in nature may
include "forward-looking statements" within the meaning of U.S. federal
securities laws. It is important to note that these statements involve a
number of risks, uncertainties and other factors that could cause Panamco's
actual results to differ materially from those included in such
forward-looking statements. Information concerning such factors is contained
in Panamco's Annual Report on Form 20-F for the year ended December 31, 1998,
and other documents subsequently filed by Panamco with the U.S. Securities and
Exchange Commission (the "SEC"), all of which are available from the SEC.
###
[tables follow]
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<TABLE>
<CAPTION>
PANAMERICAN BEVERAGES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Stated in thousands of U.S. dollars, except per share amounts)
( Unaudited )
Three months ended Twelve months ended
December 31, December 31,
------------------------------------ ------------------------------------
1999 1998 1999 1998
-------------- ------------------ ------------------- ---------------
<S> <C> <C> <C> <C>
Net sales $635,345 $709,154 $2,415,817 $2,773,276
Cost of sales, excluding depreciation and 314,413 371,290 1,191,883 1,425,246
amortization -------------- ------------------ ------------------- ---------------
Gross profit 320,932 337,864 1,223,934 1,348,030
Operating expenses:
Selling, general and administrative 217,461 235,324 823,488 879,465
Depreciation and amortization, excluding goodwill 52,933 96,563 214,539 253,112
Amortization of goodwill 9,041 9,432 36,284 35,739
Facilities reorganization charges 23,838 --- 35,172 ---
303,273 341,319 1,109,483 1,168,316
-------------- ------------------ ------------------- ----------------
Operating income (loss) 17,659 (3,455) 114,451 179,714
Interest income (expense), net (30,205) (29,055) (100,110) (85,335)
Other income (expense), net 758 3,820 (39,296) 22,136
Nonrecurring income (expense), net --- 60,486 --- 60,486
--------------- ------------------ ------------------- ----------------
Income (loss) before income taxes (11,788) 31,796 (24,955) 177,001
Income taxes (4,618) 6,985 31,254 51,374
---------------- ------------------ ------------------- ---------------
Income (loss) before minority interest (7,170) 24,811 (56,209) 125,627
Minority interest in earnings of subsidiaries 1,213 1,486 3,695 5,305
---------------- ------------------ ------------------- ---------------
Net (loss) income $(8,383) $23,325 $(59,904) $120,322
================ ================== =================== ===============
Cash Operating Profit $99,903 $102,540 $385,544 $468,565
================ ================== =================== ================
Basic earnings (loss) per share $(0.06) $ 0.18 $(0.46) $ 0.93
================ ================== =================== ===============
Basic weighted average shares
outstanding, in thousands 129,673 129,602 129,683 129,538
================ ================== =================== ===============
Diluted earnings (loss) per share $(0.06) $ 0.18 $(0.46) $ 0.92
================= ================== =================== ==============
Diluted weighted average shares outstanding, in
thousands 129,850 130,524 130,005 130,792
================ ================== =================== ===============
Cash Operating Profit: Operating Income, plus depreciation, amortization of goodwill and non
cash facilities reorganization charges
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PANAMERICAN BEVERAGES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
( Stated in thousands of U.S. dollars )
( Unaudited )
12/31/99 12/31/98 12/31/99 12/31/98
A S S E T S LIABILITIES
<S> <C> <C> <C> <C> <C>
Current assets: Current liabilities:
Cash and equivalents $152,648 $131,152 Bank loans $33,529 $302,063
Accounts receivable,net 133,776 175,008 Current portion of LTD 64,640 55,332
Inventories, net 122,978 149,387 Accounts payable 152,230 207,217
Other 17,648 30,231 Other 130,102 114,076
------------------ ----------------- ---------------- --------------
Total current assets 427,050 485,778 Total current liabilities 380,501 678,688
Long-term liabilities:
Long-term debt 1,249,972 771,267
Other 202,779 193,258
---------------- --------------
Investments 215,129 43,990 Total long-term liabilities 1,452,750 964,525
Fixed assets, net 1,529,239 1,645,199
Goodwill, net 1,292,414 1,347,446 Minority interest 27,974 26,243
Other assets, net 149,290 125,277 Shareholder's equity 1,751,896 1,978,234
---------------- --------------
Total assets $3,613,122 $3,647,690 Total liabilities/equity $3,613,122 $3,647,690
================== ================= ================ ==============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PANAMCO MEXICO
(Dollars in thousands)
( Unaudited )
Three months ended Twelve months ended
December 31 December 31
------------------------------- ------------------------------
1999 1998 1999 1998
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Income statement data:
Net sales $207,926 $160,918 $794,812 $638,481
Cost of sales, excluding depreciation and
amortization 95,625 77,983 374,506 306,124
Gross profit 112,301 82,935 420,306 332,357
Operating expenses:
Selling, general and administrative 65,973 46,763 246,762 199,938
Depreciation and amortization, excluding goodwill 10,002 9,909 37,423 34,287
Amortization of goodwill 742 711 2,933 2,845
Operating income $35,584 $25,552 $133,188 $95,287
============= ============= ============= =============
Net income attributable to Panamco $21,667 $18,331 $82,235 $61,906
Cash Operating Profit $46,328 $36,172 $173,544 $132,419
============= ============= ============= =============
Unit case sales data (in millions):
Soft drinks 66.9 65.1 270.0 256.7
Water 31.8 26.8 136.4 110.6
Other products 0.5 0.4 2.3 1.4
</TABLE>
<TABLE>
<CAPTION>
PANAMCO BRASIL
(Dollars in thousands)
( Unaudited )
Three months ended Twelve months ended
December 31 December 31
------------------------------- ------------------------------
1999 1998 1999 1998
------------- ------------- ------------- -------------
Income statement data:
<S> <C> <C> <C> <C>
Net sales $132,390 $236,529 $500,683 $897,951
Cost of sales, excluding depreciation and
amortization 80,267 148,450 305,935 546,289
Gross profit 52,123 88,079 194,748 351,662
Operating expenses:
Selling, general and administrative 40,491 67,233 154,336 257,610
Depreciation and amortization, excluding goodwill 6,784 47,315 30,823 81,815
Amortization of goodwill 448 865 1,940 1,797
Facilities reorganization charges 2,918 --- 5,142 ---
Operating income (loss) $1,482 $(27,334) $2,507 $10,440
============= ============= ============= =============
Net income (loss) attributable to Panamco $19,635 $8,193 $(16,742) $34,865
Cash Operating Profit $8,714 $20,846 $35,270 $94,052
============= ============= ============= =============
Unit case sales data (in millions):
Soft drinks 67.7 61.0 235.9 219.4
Water 3.5 3.5 12.7 11.1
Beer 20.2 20.3 63.3 62.2
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PANAMCO COLOMBIA
(Dollars in thousands)
( Unaudited )
Three months ended Twelve months ended
December 31 December 31
------------------------------- ------------------------------
1999 1998 1999 1998
------------- ------------- ------------- -------------
Income statement data:
<S> <C> <C> <C> <C>
Net sales $101,049 $123,268 $397,014 $495,812
Cost of sales, excluding depreciation and
amortization 43,920 52,548 175,522 217,817
Gross profit 57,129 70,720 221,492 277,995
Operating expenses:
Selling, general and administrative 38,871 35,970 147,854 156,957
Depreciation and amortization 15,096 17,804 59,178 58,510
Facilities reorganization charges 1,370 --- 1,370 ---
Operating income $1,792 $16,946 $13,090 $62,528
============= ============= ============= =============
Net income attributable to Panamco $150 $19,073 $7,865 $59,880
Cash Operating Profit $18,258 $34,750 $73,638 $121,038
============= ============= ============= =============
Unit case sales data (in millions):
Soft drinks 40.6 44.7 153.9 186.9
Water 7.9 10.0 37.2 44.0
</TABLE>
<TABLE>
<CAPTION>
PANAMCO VENEZUELA
(Dollars in thousands)
( Unaudited )
Three months ended Twelve months ended
December 31 December 31
------------------------------- ------------------------------
1999 1998 1999 1998
------------- ------------- ------------- -------------
Income statement data:
<S> <C> <C> <C> <C>
Net sales $140,079 $138,082 $512,292 $550,677
Cost of sales, excluding depreciation and
amortization 68,444 67,686 236,197 264,187
Gross profit 71,635 70,396 276,095 286,490
Operating expenses:
Selling, general and administrative 51,969 63,997 196,535 198,069
Depreciation and amortization 17,107 17,770 71,156 65,099
Facilities reorganization charges 19,550 --- 28,660 ---
Operating income (loss) $(16,991) $(11,371) $(20,256) $23,322
============= ============= ============= =============
Net income (loss) attributable to Panamco $(28,563) $(873) $(49,974) $28,351
Cash Operating Profit $19,016 $6,399 $69,800 $88,421
============= ============= ============= =============
Unit case sales data (in millions):
Soft drinks 41.2 48.0 151.7 195.9
Water 5.1 4.8 18.4 14.3
Beer 0.2 0.0 0.5 0.0
Other Products 2.1 1.7 6.8 6.3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PANAMCO CENTRAL AMERICA
(Costa Rica, Nicaragua and Guatemala)
(Dollars in thousands)
( Unaudited )
Three months ended Twelve months ended
December 31 December 31
------------------------------- ------------------------------
1999 1998 1999 1998*
------------- ------------- ------------- -------------
Income statement data:
<S> <C> <C> <C> <C>
Net sales $54,959 $50,357 $212,074 $190,355
Cost of sales, excluding depreciation and
amortization 27,215 24,623 100,781 90,829
Gross profit 27,744 25,734 111,293 99,526
Operating expenses:
Selling, general and administrative 16,065 17,046 66,271 61,554
Depreciation and amortization, excluding goodwill 4,399 4,244 17,731 14,751
Amortization of goodwill 63 69 259 288
Operating income $7,217 $4,375 $27,032 $22,933
============= ============= ============= =============
Net income attributable to Panamco $4,467 $3,484 $14,029 $15,485
Cash Operating Profit $11,679 $8,688 $45,022 $37,972
============= ============= ============= =============
Unit case sales data (in millions):
Soft drinks 18.5 16.9 69.7 63.0
Water 0.9 0.7 3.6 2.2
Other products 0.1 0.1 0.6 0.6
* Includes only nine months of Guatemala
</TABLE>
<PAGE>
U.S. $300,000,000
CREDIT AGREEMENT
Dated as of March 18,1999
among
PANAMERICAN BEVERAGES, INC.,
as Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
ING BARING (U.S.) CAPITAL LLC,
as Administrative Agent,
J.P. MORGAN SECURITIES INC.,
as Syndication Agent,
and
BANKBOSTON, N.A.,
as Documentation Agent
Joint Arrangers:
BANCBOSTON ROBERTSON STEPHENS, INC.
BANCO BILBAO VIZCAYA S.A.,
THE CHASE MANHATTAN BANK,
DRESDNER BANK LUXEMBOURG S.A.,
ING BARING (U.S.) CAPITAL LLC,
J.P. MORGAN SECURITIES INC.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01. Certain Defined Terms........................................2
SECTION 1.02. Certain Defined Terms Relating to Environmental
Regulation..............................................17
SECTION 1.03. Computation of Time Periods.................................18
ARTICLE II
AMOUNTS AND TERM OF THE ADVANCES
SECTION 2.01. The Advances................................................18
SECTION 2.02. Making the Advances.........................................18
SECTION 2.03. Repayment; Notes............................................19
SECTION 2.04. Reduction of the Commitments................................20
SECTION 2.05. Prepayments.................................................21
SECTION 2.06. Interest....................................................23
SECTION 2.07. Administrative Agency and Other Fees........................24
SECTION 2.08. Continuations; Interest Rate Determination..................24
SECTION 2.09. Increased Costs, Etc........................................25
SECTION 2.10. Payments and Computations...................................27
SECTION 2.11. Taxes.......................................................28
SECTION 2.12. Sharing of Payments, Etc....................................29
SECTION 2.13. Funding Losses..............................................30
SECTION 2.14. Use of Proceeds.............................................30
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Closing Date and Borrowing.....30
SECTION 3.02. Determinations Under Section 3.01..........................32
SECTION 4.01. Representations and Warranties of the Borrower.............32
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants......................................37
SECTION 5.02. Negative Covenants.........................................40
SECTION 5.03. Reporting Requirement......................................43
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SECTION 5.04. Financial Condition........................................45
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default..........................................45
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action...................................48
SECTION 7.02. Duties and Reliance, Etc...................................48
SECTION 7.03. Administrative Agent and Affiliates........................49
SECTION 7.04. Lender Credit Decision.....................................49
SECTION 7.05. Indemnification............................................49
SECTION 7.06. Successors to Administrative Agent.........................50
SECTION 7.07. Joint Arrangers, Documentation Agent and Syndication
Agent................................................50
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................50
SECTION 8.02. Notices, Etc...............................................51
SECTION 8.03. No Waiver, Remedies........................................51
SECTION 8.04. Costs, Expenses and Indemnification........................51
SECTION 8.05. Right of Set-off...........................................52
SECTION 8.06. Binding Effect.............................................53
SECTION 8.07. Assignments and Participations.............................53
SECTION 8.08. Governing Law..............................................55
SECTION 8.09. Execution in Counterparts..................................55
SECTION 8.10. Confidentiality............................................55
SECTION 8.11. Judgment...................................................56
SECTION 8.12. Consent to Jurisdiction....................................56
SECTION 8.13. WAIVER OF JURY TRIAL.......................................57
SECTION 8.14. Limitation on Liability....................................57
SECTION 8.15. Accounting Terms...........................................58
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 18,1999
(this "Agreement"), is made among Panamerican
Beverages, Inc., a Panamanian corporation (the
"Borrower"), the financial institutions (the
"Lenders") listed on the signature pages hereof and
which may from time to time become parties hereto,
ING Baring (U.S.) Capital LLC ("ING Barings"), as
administrative agent (together with any successors
appointed pursuant to Article VII, the
"Administrative Agent") for the Lenders hereunder,
J.P. Morgan Securities Inc. as syndication agent (the
"Syndication Agent") for the Lenders hereunder, and
BankBoston, N.A. as documentation agent (the
"Documentation Agent") for the Lenders hereunder.
WHEREAS, the Lenders have agreed to lend to the Borrower up to U.S.
$3300,000,000 for general corporate purposes, including (a) the refinancing of
existing indebtedness (particularly the refinancing of the Prior Agreement),
and (b) the funding of acquisitions and working capital needs.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the preamble to
this Agreement.
"Administrative Agent's Account" shall mean account No. 066-297-311
of ING Barings maintained at The Chase Manhattan Bank, N.A. (ABA No. 021-
000-02 1), Att.: for credit to ING Baring U.S. Capital Corporation
Loan/Agency, Ref. Panamco $300MM Facility, or such other account at such
other bank in New York City as the Administrative Agent shall specify
from time to time to the Borrower and the Lenders.
"Advance" has the meaning specified in Section 2.01.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with"). of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the
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2
ownership of Voting Stock, by contract or otherwise; provided, however,
that neither The Coca-Cola Company nor any of its direct or indirect
Subsidiaries shall be considered an Affiliate of the Borrower or any of
its Subsidiaries.
"Agent" means any of the Administrative Agent, the Syndication Agent
and the Documentation Agent.
"Alternate Base Rate" means, on any date, a fluctuating rate of
interest per annum equal to the higher of
(a) the Base Rate; and
(b) the Federal Funds Rate plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate
of interest determined by the Administrative Agent or any Lender in
connection with extensions of credit. Changes in the rate of interest on
that portion of any Advances bearing interest at the Alternate Base Rate
will take effect simultaneously with each change in the Alternate Base
Rate.
"Alternate Base Rate Advances" means Advances bearing the Alternate
Base Rate.
"Applicable Margin" means
(a) in the case of Alternate Base Rate Advances, (i) for the period
from the Closing Date to the date three months after the Closing
Date, 2.125% per annum; and (ii) thereafter, a rate determined by
the Administrative Agent on each Applicable Margin Adjustment Date
equal to the sum of (1) the Applicable Margin for the immediately
preceding period plus (or minus if such amount is negative) such
number of basis points as equals (2) the remainder of (I) the
average of the JP Morgan Index for the 90-day period preceding (but
not including) such Applicable Margin Adjustment Date, minus (II)
the average of the JP Morgan Index for the 90-day period prior to
(but not including) the immediately preceding Applicable Margin
Adjustment Date (or, in the case of the initial Applicable Margin
Adjustment Date, the 90-day period prior to (but not including) the
Closing Date); and
(b) in the case of Eurodollar Rate Advances, (i) for the period from
the Closing Date to the date three months after the Closing Date,
3.125% per annum; and (ii) thereafter, a rate determined by the
Administrative Agent on each Applicable Margin Adjustment Date equal
to the sum of: (1) the Applicable Margin for the immediately
preceding period plus (or minus if such amount is negative) such
number of basis points as equals (2) the remainder of (1) the
average of the JP Morgan Index for the 90-day period preceding (but
not including) such Applicable Margin Adjustment Date, Minus (II)
the average of the JP Morgan Index for the 90-day period prior to
(but not including) the immediately preceding Applicable Margin
Adjustment Date (or, in the case of the initial Applicable Margin
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3
Adjustment Date, the 90-day period prior to (but not including) the
Closing Date);
provided, however, that (A)(x) the Applicable Margin for Alternate Base
Rate Advances shall not exceed 3.750% and shall not be less than 1.375%
and (y) the Applicable Margin for Eurodollar Rate Advances shall not
exceed 4.750% and shall not be less than 2.375%; and (B) if the Borrower
fails to maintain at least two of its three foreign currency long term
credit ratings in one of the four highest rating categories (without
taking into account subratings (e.g., "+" or "-") in each of such
categories) from Standard & Poor's, Moody's or DCR, a supplemental margin
of 0.625% immediately will be added to the then Applicable Margin, and
such supplemental margin will continue to be in effect until such time as
at least two of such credit ratings are restored from Standard & Poor' s,
Moody's or DCR.
"Applicable Margin Adjustment Date" means
(a) in the case of Alternate Base Rate Advances, the date three
months after the Closing Date and, thereafter, the date numerically
corresponding to the preceding such date and falling three months
after such preceding date; and
(b) in the case of Eurodollar Rate Advances, the date three months
after the Closing Date and, for each Interest Period starting after
such three month date, the date two Business Days prior to the start
of such Interest Period.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and the Borrower, in accordance with Section 8.07
and in substantially the form of Exhibit C hereto.
"Base Rate" means the rate of interest from time to time announced
by the Administrative Agent at its principal office in New York City as
its prime commercial lending rate; provided that if the Administrative
Agent shall cease to announce a prime commercial lending rate, then "Base
Rate" shall mean the arithmetic average of the rates of interest publicly
announced by The Chase Manhattan Bank, Citibank, N.A., and Morgan
Guaranty Trust Company of New York (or their respective successors) as
their respective prime commercial lending rates (or, as to any such bank
that does not announce such a rate, such bank's "base" or other rate
determined by the Administrative Agent to be the equivalent rate
announced by such bank), except that, if any such bank shall, for any
period, cease to announce publicly its prime commercial lending (or
equivalent) rate, the Administrative Agent shall, during such period,
determine the "Base Rate" based upon the prime commercial lending (or
equivalent) rates announced publicly by the other such banks.
"Borrower" shall have the meaning specified in the preamble to this
Agreement.
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4
"Borrower" means a borrowing consisting of simultaneous Advances
made by the Lenders.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank market.
"Capitalized Leases" has the meaning specified in clause (e) of the
definition of Debt.
"Change in Control" means:
(a) the failure of the Shareholders (as defined in the Voting Trust
Agreement) parties to the Voting Trust Agreement collectively to:
(i) own, directly or indirectly, on the Closing Date and until
all Obligations owing under this Agreement and the other Loan
Documents are paid in full and all Commitments have expired, at
least a majority of the outstanding Voting Stock of the Borrower on
a fully diluted basis, free and clear of all Liens; or
(ii) control directly or indirectly, whether by the percentage
of ownership of Voting Stock imposed by any applicable law, the
possession of voting power or otherwise, the power to direct the
affairs or control the composition of at least a majority of the
board of directors, management committee, or other equivalent body,
of the Borrower; or
(b) dissolution or termination of the Voting Trust Agreement; or
(c) the failure of TCCC to own (as a result of a sale by TCCC of
such Common Stock described below), directly or indirectly, on the
Closing Date and until all Obligations owing under this Agreement
and other Loan Documents are paid in full and all Commitments have
expired, at least 25% of the outstanding Class B Common Stock of the
Borrower, 22.6% of the outstanding Class A Common Stock of the
Borrower and 100% of the outstanding Class C Preferred Stock of the
Borrower, in each case, on a fully diluted basis, free and clear of
all Liens (it being understood that such percentage mill be reduced
on a proportionate basis in the event of any issuance or sale of
Class A Common Stock or Class B Common Stock in which TCCC does not
acquire its proportionate share); or
(d) any reduction in the number of directors nominated by TCCC to
the Borrower's Board of Directors as compared to the number of such
directors nominated by TCCC as of the date of this Agreement.
"Closing Date" has the meaning specified in Section 3.01.
"Coca-Cola Entity" means TCCC and any Wholly-Owned Subsidiary of
TCCC.
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5
"Commitment" has the meaning specified in Section 2.01 (a).
"Commitment Expiration Date" means the date 10 days after the
Closing Date.
"Compensation Plan" of the Borrower or any Subsidiary thereof means
any program, plan or similar arrangement (other than employment
contracts) relating generally to compensation, pension, employment or
similar arrangements to which the Borrower or such Subsidiary
(individually or in connection with any other Person) may have any
liability.
"Confidential Information" means information furnished by or on
behalf of the Borrower or an Affiliate of the Borrower to any Agent or
any Lender in a writing designated as confidential, but does not include
any such information that (i) is or becomes generally available to the
public or (ii) is or becomes available to such Agent or such Lender from
a source other than the Borrower or an Affiliate of the Borrower other
than as a result of a breach by any Agent or any Lender of its
obligations hereunder.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Debt" means the outstanding principal amount of all
Debt of the Borrower and its Consolidated Subsidiaries.
"Consolidated EBITDA" means, for any period, the sum, without
duplication, of
(a) Consolidated Operating Income for such period,
plus
(b) all depreciation and amortization of assets (including
Intangible Assets) of the Borrower and its Subsidiaries deducted in
determining Consolidated Operating Income for such period.
"Consolidated Net Worth" means, for any date, the Consolidated
stockholders' equity of the Borrower and its Subsidiaries (set forth on
the line "total shareholders' equity" on the Borrower's balance sheet) on
such date.
"Consolidated Operating Income" means, with respect to the Borrower
and its Subsidiaries for any period, the Consolidated operating income
(or loss), before interest, taxes and extraordinary items, of the
Borrower and its Subsidiaries for such period.
"Consolidated Tangible Net Assets" means as of any date, the total
amount of assets of the Borrower and its Subsidiaries, less (i)
Intangible Assets and (ii) appropriate adjustments on account of minority
interests of other Persons holding equity investments in Subsidiaries,
all as reflected on the consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of the fiscal quarter immediately
preceding such date.
<PAGE>
6
"DCR" means Duff & Phelps Credit Rating Co.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services, (c)
all Obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases ("Capitalized Leases"),
(f) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities, (g) all Obligations
of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any capital stock of or other ownership or profit
interest in such Person or any of its Affiliates or any warrants, rights
Or options to acquire such capital stock, (h) all Obligations of such
Person in respect of Hedge Agreements, (i) all Debt of others referred to
in clauses (a) through (h) above guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (i) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss, and (j) all Debt referred to
in clauses (a) through (h) above secured by (or for which the holder of
such Debt has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including, without limitation, accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt; provided, however,
that Debt shall not include trade accounts payable arising in the
ordinary course of business.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Affiliate" means a majority-controlled Affiliate of a
Lender whose name and principal place of business are set forth opposite
such Lender's name on Annex I hereto under the caption "Designated
Affiliates," or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other Affiliate or Affiliates, of such Lender as
such Lender may specify by notice from time to time to the Borrower and
the Administrative Agent.
"Designated Branch" means the branch of a Lender whose name and
location are set forth opposite such Lender's name on Annex I hereto
under the caption "Designated Branches" or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other branch or
branches or other office or
<PAGE>
7
offices of such Lender as such Lender may specify by notice from time to
time to the Borrower and the Administrative Agent.
"Disclosure Schedule" means the Disclosure Schedule set forth as
Annex II hereto.
"Documentation Agent" has the meaning specified in the preamble to
this Agreement.
"Eligible Assignee" means (a) a commercial bank, finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) having total assets in
excess of U.S. $250,000,000 and (b) any Designated Affiliate or
Designated Branch.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the of Governors of the Federal Reserve System, as in effect from time
to time.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the Borrowing, an interest rate per
annum, equal to the rate per annum obtained by dividing (a) the rate per
annum determined by the Administrative Agent based on the rate(s) quoted
on the Reuters Screen LIBO Page at approximately 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period. If
only one rate appears on the Reuters Screen LIBO Page, the rate in clause
(a) above will be such rate, and if two or more rates appear on the
Reuters Screen LIBO Page, the rate in clause (a) above will be the
arithmetic mean of such rates. The Eurodollar Rate for each Interest
Period for each Eurodollar Rate Advance comprising part of the Borrowing
shall be determined by the Administrative Agent.
"Eurodollar Rate Advances" means Advances bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" for any Interest Period for
each Advance comprising part of the Borrowing means the reserve
percentage applicable two Business Days before the first day of such
Interest Period, under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest
rate on Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Debt" means Debt of the Borrower and its Subsidiaries
outstanding on the date hereof.
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8
"Existing Debt Agreement" means any agreement or instrument pursuant
to which any Existing Debt has been issued or incurred.
"Facility" means the aggregate amount of the Commitments.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
1978, as amended from time to time.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"GAAP" means, in the case of the Borrower and its Consolidated
Subsidiaries, generally accepted accounting principles in the United
States consistent with those applied in the preparation of the financial
statements of the Borrower and Consolidated Subsidiaries furnished to the
Lenders prior to the date of this Agreement.
"Governmental Authority" means any federation, nation, state,
sovereign, or government, any federal, supranational, regional, state,
tribal, local or political subdivision, any governmental or
administrative body, instrumentality, department or agency or any court,
tribunal, administrative hearing body, arbitration panel, commission or
any other similar dispute-resolving panel or body, and any other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements designed to hedge against fluctuations in interest rates or
foreign exchange rates.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"ING Barings" has the meaning specified in the preamble to this
Agreement.
"Intangible Assets" means all unamortized debt discount 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 Closing
Date or the date of acquisition, if acquired subsequent to the Closing
Date, and all other items which would be treated as intangibles on the
Consolidated balance sheet Of the Borrower and its Subsidiaries.
<PAGE>
9
"Interest Coverage Ratio" means, for any period, the ratio of (i)
Consolidated EBITDA to (ii) the Consolidated gross interest expense
(including related fees) of the Borrower and its Subsidiaries for such
period.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the Borrowing, the period commencing on (and including) the date
of such Borrowing, and ending on (but excluding) the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on (and including) the last
day of the immediately preceding Interest Period and ending on (but
excluding) the last day of the period selected by the Borrower pursuant
to the provisions below. The duration of each such Interest Period shall
be one or three months, as the Borrower may elect upon notice received by
the Administrative Agent not later than 11:00 a.m. (New York City time)
on the third Business Day prior to the first day of such Interest Period;
provided, however, that:
(a) no Interest Period may end after the Maturity Date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the Borrowing shall be of the same
duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day; provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day;
(d) except with respect to the Interest Periods described in
clause (a) above, whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month; and
(e) all outstanding Advances originally incurred on the same
date shall at all times have the same Interest Period.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clauses (i) and (j) of
the definition of "Debt" in respect of such Person and, in the case of
any permitted Investment in which the company in which such Investment is
made becomes a Subsidiary of the Borrower, the amount of such Investment
shall include the amount of any Debt of such Subsidiary at such time;
provided that the "cash amount" of any Investment shall not be deemed to
include such Debt.
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10
"Joint Arranger" means each of BancBoston Robertson Stephens, Inc.,
Banco Bilbao Vizcaya S.A., The Chase Manhattan Bank, Dresdner Bank
Luxembourg S.A., ING Barings and J.P. Morgan Securities Inc.
"JP Morgan Index" means the JP Morgan Latin Euro (LEI) Spread Index
(which shall be the "blended spread" as shown on screen "JPMX, table 3,
line 10", under the ticker "JPESPRD") quoted at closing on the Bloomberg
System (or such other screen or ticker on such system as may replace such
screen or ticker on such system for displaying the JP Morgan Latin Euro
(LEI) Spread Index) as determined by the Administrative Agent on the
relevant date of determination.
"Lender" means each Lender listed on the signature pages hereof and
each Eligible Assignee that becomes a party hereto pursuant to Section
8.07.
"Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Lending Office" opposite its name on Annex
I hereto or in the Assignment and Acceptance pursuant to which it became
a Lender, or such other office of such Lender as it may from time to time
specify by notice to the Borrower and the Administrative Agent.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means this Agreement, each Note and each other
instrument, agreement, certificate, notice or other document executed
and/or delivered pursuant hereto or thereto or in connection herewith or
therewith.
"Margin Stock" means any "margin stock" or "margin security" as
defined in Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System.
"Material Adverse Change" means a material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties, assets or prospects of the Borrower and its Subsidiaries
taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties, assets or prospects of the Borrower and its Subsidiaries
taken as a whole or (b) the rights and remedies of any Agent or any
Lender under any Loan Document.
"Maturity Conditions" has the meaning specified in Section
2.04(b)(i).
"Maturity Date" means the date that is the third anniversary of the
Closing Date; provided, that if, as of the date numerically corresponding
to the Closing Date falling twenty-eight months after the Closing Date,
the Borrower does not maintain at least two of its three foreign currency
long term credit ratings in one of the four highest rating categories
(without taking into account subratings (e.g. "+" or "-") in each of such
categories) from any two of Standard & Poor's, Moody's or DCR, such date
will automatically be the date numerically
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11
corresponding to the Closing Date falling thirty months after the Closing
Date, without the need for any action by any Lender, any Agent or the
Borrower.
"Mexico" means the United Mexican States.
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset by any Person, the aggregate amount of
cash received from time to time by or on behalf of such Person in
connection with such transaction, after deducting therefrom only (a)
reasonable and customary brokerage commissions, legal fees, finder's fees
and other similar fees and commissions, (b) the amount of taxes payable
in connection with or as a result of such transaction or in connection
with dividends paid to enable the Borrower to pay Net Cash Proceeds to
the Lenders as contemplated herein, and (c) the amount of any Debt
secured by a Lien on such asset that, by the terms of such transaction,
is required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at the
time of receipt of such cash, actually paid to a Person that is not an
Affiliate and are properly attributable to such transaction or to the
asset that is the subject thereof.
"Net Issuance Proceeds" means, with respect to any issuance, sale or
incurrence of any Debt in the international financial markets, the
aggregate amount of cash received from time to time by or on behalf of
such Person after deducting therefrom only (a) placement agents' or
underwriters' commissions, and (b) other reasonable and customary fees
and expenses (including, without limitation, fees and expenses of counsel
and bankers) payable by or on behalf of such Person in connection with
such issuance, sale or incurrence, in each case to the extent, but only
to the extent, that the amounts so deducted are, at the time of receipt
of such cash, actually paid or payable to a Person that is not an
Affiliate and are properly attributable to such transaction or to the
issuance, sale or incurrence that is the subject thereof.
"Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from the
Advance made by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Obligation" means, with respect to any Person, any obligation of
such Person of any kind, including, without limitation, any liability of
such Person on any claim, whether or not the right of any creditor to
payment in respect to such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(e). Without limiting the generality of the foregoing, the
Obligations of the Borrower under the Loan Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees,
reasonable attorneys' fees and disbursements, indemnities and other
amounts payable by the Borrower under any Loan Document and (b) the
obligation to reimburse any
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12
amount in respect of any of the foregoing that any Lender, in its sole
discretion, may elect to pay or advance on behalf of the Borrower in
accordance with the Loan Documents.
"Other Currency" has the meaning specified in Section 8.11 (a).
"Other Taxes" has the meaning specified in Section 2.11 (b).
"Panamco Account" means the account of the Borrower maintained with
Sun Trust Bank, ABA #061000104, Account #800374228, Att.: Nina M.
Waegelin.
"Permitted Liens" means, with respect to any Person:
(a) pledges or deposits by such Person 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 Debt) or leases to
which such Person is a party, or deposits to secure public or
statutory obligations of such Person or deposits of cash or
government bonds to secure performance, surety or appeal bonds to
which such Person is a party or which are otherwise required of such
Person, or deposits as security for contested taxes or import duties
or for the payment of rent or other obligations of like nature, in
each 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 mechanics' Liens, in each case for sums
not yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments 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 the use 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 Debt 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;
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13
(e) Liens existing on or provided for under the terms of
agreements existing on the Closing Date and described in Item
5.02(a) of the Disclosure Schedule;
(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 other property owned by the Borrower
or any of its Subsidiaries;
(g) Liens securing Hedge Agreements so 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 (A) consists only of cash or cash
equivalents, and (B) does not exceed in market value on any date an
amount equal to 1.5% of Consolidated Tangible Net Assets (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 Debt incurred by
any Subsidiary in the ordinary course of business; provided that any
such Debt incurred by any such Subsidiary is subject to the
limitations set forth in Section 5.026)(ii)(E);
(i) Purchase Money Liens;
(j) Liens securing only Debt of a Wholly-Owned Subsidiary of
the Borrower to the Borrower or one or more Wholly-Owned
Subsidiaries of the Borrower;
(k) Liens on any property to secure Debt incurred in connection
with the construction, installation or financing of bottling
facilities financed through Debt issued by a Coca-Cola Entity or any
subsidiary of it;
(l) Liens resulting from the deposit funds or evidences of Debt
in trust for the purpose of defeasing Debt of the Borrower or any of
its Subsidiaries;
(m) legal or equitable encumbrances deemed to exist by reason
of negative pledges or the existence of any litigation or other
legal proceeding and any related lis pendens filing (excluding any
attachment prior to judgment, judgment 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;
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14
(o) Liens on property or shares of stock of 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-ofway or other properties which do no-t in the
aggregate materially adversely affect the value of such properties
or materially impair their use in the operation 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 Debt;
(r) Liens arising in connection with Capitalized Leases in an
aggregate principal amount not to exceed U.S. $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 Debt secured by any Lien referred to in the foregoing clauses
(e) through(l); provided, however, that (i) such new Lien shall be
limited to all or part of the same property that secured the
original Lien (plus improvements on or to such property) and (ii)
the Debt secured by such Lien at such time is not increased to any
amount greater than the sum of (A) the outstanding principal amount
or, if greater, committed amount of the Debt described under clauses
(e) through (l) at the time the original Lien became a Permitted
Lien under this Agreement and (B) any amount necessary to pay any
fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political
subdivision or agency thereof
"Prior Agreement" means the U.S. $160,000,000 Credit Agreement dated
as of March 15, 1999 among the Borrower, the lenders party thereto, ING
Barings as Administrative Agent, J.P. Morgan Securities Inc., as
Syndication Agent and BankBoston, N.A., as Documentation Agent.
"Process Agent" has the meaning specified in Section 8.12(a).
"Purchase Money Lien" means a Lien on property securing Debt
incurred by the Borrower or any of its Subsidiaries to provide funds for
all or any portion
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15
of the cost of acquiring, constructing, altering, expanding, improving or
repairing such property or assets used in connection with such property.
"Register" has the meaning specified in Section 8.12(a).
"Required Lenders" means at any time Lenders owed (or holding in the
aggregate) at least 66 2/3% of the sum of (a) the then-aggregate unpaid
principal amount of the Advances and (b) the then-aggregate unused
Commitments; provided, however, that for purposes of this definition
neither (i) the Borrower, nor any of its Affiliates, if a Lender, nor
(ii) any Lender who has defaulted on any of its obligations hereunder,
shall be included in (x) the Lenders owed such amount of the Advances or
holding such amount of the Commitments or (y) the determination of the
aggregate unpaid principal amount of the Advances or the aggregate unused
Commitments.
"Reuters Screen LIBO Page" means the display of London interbank
offered rates (commonly known as "LIBOW") of major banks for Eurodollar
deposits designated as page "LIBO" on the Reuters Monitor Money Rates
Service (or such other page as may replace the LIBO page for the purpose
of displaying such London interbank offered rates for Eurodollar
deposits).
"Significant Subsidiary" has the meaning specified for a
"significant subsidiary" as defined in Rule 405 under the Securities Act
of 1933, as amended.
"Solvent and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of its liabilities,
including, without limitation, contingent liabilities, (b) the present
fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person
on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or
liabilities beyond its ability to pay as such debts and liabilities
mature, and (d) such Person is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which its
property would constitute an unreasonably small capital.
"Standard & Poor's" means Standard & Poor's Rating Services, a
division of the McGraw-Hill Companies, Inc.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which), directly or indirectly,
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such partnership or joint venture, or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries. References to a Subsidiary, unless otherwise specifically
stated, or the context otherwise requires, shall be reference to a
Subsidiary of the Borrower.
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16
"Taxes" has the meaning specified in Section 2.11 (a).
"TCCC" means The Coca-Cola Company, a Delaware corporation, or any
successor thereto.
"Termination Date" means the earliest of (a) the Maturity Date, (b)
the termination in whole of the Commitments pursuant to Section 2.04 or
6.01, or (c) if no Borrowing has then occurred, the Commitment Expiration
Date.
"United States" and "U.S." each means United States of America.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency.
"Voting Trust Agreement" means the Voting Trust Agreement for
Certain Shares of Panamerican Beverages, Inc., amended and restated as of
April 20, 1993, and as further amended on July 15, 1993, among the
Shareholders parties thereto and the Voting Trustees parties thereto.
"Wholly-Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person if all of the common stock or other similar
equity ownership interests (but not including preferred stock) in such
Subsidiary (other than any directors' qualifying shares or shares issued
to Persons to comply with local laws) is owned directly or indirectly by
such Person.
"Year 2000 Problem" means the inability of computers, as well as
embedded microchips in non-computing devices, to perform properly
date-sensitive functions with respect to certain dates before, on and
after December 31, 1999.
SECTION 1.02. Certain Defined Terms Relating to Environmental
Regulation. 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):
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, notice of non-compliance or
violation, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law or any Environmental Permit,
including without limitation (a) any claim by any Governmental Authority
for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any Environmental Law and (b) any claim by any third
party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or
arising from alleged injury or threat of injury to health, safety or the
environment.
"Environmental Law" means any supranational, federal, national,
state, provincial, tribal, local or municipal law, rule, regulation,
order, writ, judgment,
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17
injunction, decree, determination or award of any Governmental Authority
within or outside the United States relating to or imposing standards of
conduct concerning the environment, health, safety or Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation and radon gas, (b) any
substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," "contaminants" or "pollutants," or words of similar
import, under any Environmental Law, and (c) any other substance,
exposure to which is regulated under any Environmental Law.
SECTION 1.03. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" mean "to but excluding."
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.
(a) Commitments. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make a single advance (each, an
"Advance") to the Borrower on any Business Day during the period from the
Closing Date until the Commitment Expiration Date in an aggregate amount
not to exceed the amount set forth opposite such Lender's name on Annex I
hereto under the caption "Commitment" or, if such Lender has entered into
one or more Assignments and Acceptances, set forth in the Register
maintained by the Administrative Agent pursuant to Section 8.07(c) (such
amount, as reduced pursuant to Section 2.04, being such Lender's
"Commitment"). The Lenders' obligation to make the Advances shall be
subject to Section 3.01.
(b) Lenders Not Permitted or Required to Make Advances. No Lender
shall be permitted or required to make its Advance to the Borrower if,
after giving effect thereto, the aggregate principal amount of all
Advances to the Borrower made by all the Lenders would exceed the
aggregate amount of the Commitments of all Lenders.
SECTION 2.02. Making the Advances.
(a) The Borrowing of Eurodollar Rate Advances shall be made on
notice given by the Borrower to the Administrative Agent not later than
4:00 P.M. (New York City time) on the third Business Day prior to the
date of the proposed Borrowing (the "Notice of Borrowing"). Immediately
following receipt of the Notice of Borrowing, the Administrative Agent
shall give to each Lender notice
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18
thereof by telex or facsimile transmission. The Notice of Borrowing shall
be sent by telex or facsimile transmission, confirmed immediately in
writing, in substantially the form of Exhibit B hereto, specifying
therein (i) the requested date of such Borrowing, (ii) the requested
aggregate amount of such Borrowing, (iii) that such Borrowing will
consist of Eurodollar Rate Advances (or, in the circumstances set forth
in Section 2.09(c) and Section 2.09(d) only, Alternate Base Rate
Advances), and (iv) the Interest Period therefor. The Notice of Borrowing
shall be irrevocable and binding on the Borrower. The Administrative
Agent shall promptly notify each Lender of the applicable interest rate
under Section 2.06. Each Lender shall, before 11:06 A.M. (New York City
time) on the date of such Borrowing, make available for the account of
its Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III,
the Administrative Agent will make such funds available to the Borrower
by crediting the Panamco Account or such account as the Borrower may
designate, in immediately available funds.
(b) Anything in clause (a) above to the contrary notwithstanding,
the Borrower may not (i) request any Borrowing hereunder if the aggregate
amount of such Borrowing is less than U.S. $10,000,000 or an integral
higher multiple of U.S. $ 1,000,000, or (ii) request Eurodollar Rate
Advances for the Borrowing if the obligation of the Lenders to make such
Advances shall then be suspended pursuant to Section 2.09.
(c) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of the Borrowing that such Lender will not
make available to the Administrative Agent such Lender's ratable portion
of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date
of such Borrowing in accordance with clause (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the
date such amount is repaid to the Administrative Agent, at (i) in the
case of the Borrower, the interest rate applicable at such time under
Section 2.06 to Advances comprising such Borrowing and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's Advance as part of the Borrowing for
purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it
as part of the Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of the
Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Advance to be made by such other Lender on the
date of the Borrowing.
SECTION 2.03. Repayment; Notes.
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19
(a) On the Maturity Date, the Borrower shall repay to the
Administrative Agent, for the account of the Lenders, the unpaid
outstanding principal amount of the Advances evidenced by the Notes,
together with all other Obligations of the Borrower due and payable
hereunder, in full in immediately available funds.
(b) The Advance of each Lender to the Borrower shall be evidenced by
a Note payable to the order of such Lender in an amount equal to such
Lender's Advance. Each Lender shall record in its records, and on the
schedule attached to its Note, the date and amount of the Advance made by
such Lender thereunder, each repayment or prepayment thereof, whether
such Advance was a Eurodollar Rate Advance or an Alternate Base Rate
Advance, and, in the case of Eurodollar Rate Advances, the dates on which
the Interest Period for such Advances shall begin and end. The aggregate
unpaid principal amount so recorded shall be rebuttable presumptive
evidence of the principal amount owing and unpaid on such Note. The
failure to so record or any error in so recording any such amount shall
not, however, limit or otherwise affect the obligations of the Borrower
hereunder or under any Note to repay the principal amount of each Advance
together with all interest accruing thereon.
SECTION 2.04. Reduction of the Commitments.
(a) Optional. The Borrower may, upon at least three Business Days'
notice to the Administrative Agent, terminate in whole or reduce ratably
in part the unused portions of the Commitments; provided, however, that
each partial reduction shall be in a minimum aggregate amount of U.S.
$10,000,000 or an integral multiple of U.S. $1,000,000 in excess thereof
or, if the unused portion of the Commitments is less than U.S.
$10,000,000, in the amount of such portion.
(b) Mandatory.
(i) Upon Receipt of Net Issuance Proceeds. If the Borrower
publicly or privately issues, sells or incurs any additional Debt
(other than (x) short-term Debt solely used to finance working
capital or one or more bottling company acquisitions, and (y) Debt
consisting of guarantees by the Borrower of the Debt of any
Subsidiary) in the international financial markets on or before the
Commitment Expiration Date, and there shall exist at that time any
Commitments, the respective Commitments of the Lenders shall, on the
date of such issuance, sale or incurrence, automatically be ratably
reduced permanently in an aggregate amount equal to the amount by
which the cumulative Net Issuance Proceeds therefrom exceeds U.S.
$100,000,000; so long as such Debt (x) is scheduled to mature in
whole and in part after the date six months after the Maturity Date
and (y) is applied to repay or refinance then-outstanding Debt of
the Borrower or any Subsidiary (such conditions in clauses (x) and
(y) being the "Maturily Conditions"); provided that (I) if any such
Debt issued, sold or incurred does not satisfy the Maturity
Conditions, the respective Commitments of the Lenders shall on the
date of such issuance, sale or incurrence, automatically be ratably
reduced permanently in an aggregate amount equal to the cumulative
Net Issuance Proceeds thereof, (II) notwithstanding clause (I)
above, up to U.S. $100,000,000 of such Debt during the term of this
Agreement need not satisfy the Maturity
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20
Conditions so long as (A) such Debt matures in full at least nine
months prior to the Maturity Date and, upon refinancing, such Debt
will satisfy the Maturity Conditions, and (B) the proceeds of such
Debt are applied to one or more bottling company acquisitions or
working capital financing, and (III) if any such Debt issued, sold
or incurred is voluntarily prepaid prior to the Maturity Date, the
respective Commitments of the Lenders shall, on the date of such
prepayment, automatically be ratably reduced permanently in an
aggregate amount equal to the amount of such prepayment.
(ii) Upon Receipt of Net Cash Proceeds. In the event of any
sale, lease, transfer or other disposition of (A) any assets (other
than shares of capital stock of any Subsidiary) of the Borrower or
any of its Subsidiaries (other than sales of inventory, scrap and
by-products in the ordinary course of business and sales of vehicles
or equipment in the ordinary course of business, provided that the
proceeds thereof, in the case of vehicles and equipment, are
promptly reinvested in comparable vehicles and equipment) or (B) any
capital stock of any Subsidiary of the Borrower, in each case on or
before the Commitment Expiration Date, and if there shall exist at
that time any Commitments, the respective Commitments of the Lenders
shall, on the date of such sale, lease, transfer or other
disposition, automatically be ratably reduced permanently in an
aggregate amount equal to the amount by which the cumulative Net
Cash Proceeds of the assets so sold, leased, transferred or
otherwise disposed of under clauses (A) and (B) above exceeds an
amount equal to 4.5% of Consolidated Tangible Net Assets (calculated
as of the end-date of the last quarter for which Consolidated
financial statements have been distributed); provided that, in any
such case under clause (A) or (B) above, (I) in the case of any such
Net Cash Proceeds received by any such Subsidiary that is not a
Wholly-Owned Subsidiary of the Borrower, the respective Commitments
shall be ratably reduced permanently by the proportion of such Net
Cash Proceeds equal to the percentage of capital stock of such
Subsidiary owned directly or indirectly by the Borrower (after
giving effect to any applicable sale of shares of capital stock);
(II) no reduction in Commitments will occur as a result of the Net
Cash Proceeds of any sale, lease, transfer or other disposition by
any Subsidiary to the Borrower or any other Subsidiary or by the
Borrower to any Subsidiary; and (III) at least an amount equal to
2.25% of Consolidated Tangible Net Assets (calculated as of the
end-date of the last quarter for which Consolidated financial
statements have been distributed) of such cumulative Net Cash
Proceeds shall be reinvested promptly in the Borrower or any of its
Subsidiaries (it being understood that if such reinvestment does not
occur, the respective Commitments of the Lenders will be reduced by
an amount equal to all such cumulative Net Cash Proceeds in excess
of an amount equal to 2.25% of Consolidated Tangible Net Assets
(calculated as of the end-date of the last quarter for which
Consolidated financial statements have been distributed)).
SECTION 2.05. Prepayments.
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21
(a) Optional. The Borrower may, upon at least five Business Days'
notice to the Administrative Agent at any time after 60 days from the
Closing Date stating the proposed date and aggregate principal amount of
the prepayment, and, if such notice is given, the Borrower shall, prepay
the outstanding principal amount of the Advances comprising part of the
Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid, without
premium or penalty but subject to breakage costs pursuant to Section
2.13.; provided, however, that each partial prepayment shall be in a
minimum aggregate principal amount of U.S. $10,000,000 or an integral
multiple of U.S. $1,000,000 in excess thereof. Prepayments of Advances
will be without premium or penalty; provided that prepayments of
Eurodollar Rate Advances not made on the last day of the Interest Period
shall be subject to Section 2.13. Any amount prepaid under this Section
2-05(a) may not be reborrowed. All prepayments under this Section 2.05(a)
shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid.
(b) Mandatory.
(i) From Net Issuance Proceeds. The Borrower shall prepay
ratably the outstanding principal amount of the Advances in an
aggregate amount equal to the amount by which the cumulative Net
Issuance Proceeds of any public or private issuance, sale or
incurrence of any additional Debt (other than (x) short-term Debt
solely used to finance working capital or one or more bottling
company acquisitions, and (y) Debt consisting of guarantees by the
Borrower of the Debt of any Subsidiary) in the international
financial markets by the Borrower exceeds U.S. $100,000,000 in 1999
or U.S. $250,000,000 during the term of this Agreement, so long as
such Debt satisfies the Maturity Conditions; provided that (I) if
any such Debt issued, sold or incurred does not satisfy the Maturity
Conditions, 100% of the Net Issuance Proceeds thereof shall be
applied to prepay ratably the outstanding principal amount of the
Advances, (II) notwithstanding clause (I) above, up to U.S.
$100,000,000 of such Debt during the term of this Agreement need not
satisfy the Maturity Conditions so long as (A) such Debt matures in
full at least nine months prior to the Maturity Date and, upon
refinancing, such Debt will satisfy the Maturity Conditions, and (B)
the proceeds of such Debt are applied to one or more bottling
company acquisitions or working capital financing, and (III) if any
such Debt issued, sold or incurred is voluntarily prepaid prior to
the Maturity Date, the Borrower shall prepay ratably the outstanding
principal amount of the Advances in an aggregate amount equal to the
amount of such prepayment.
(ii) From Net Cash Proceeds. The Borrower shall prepay the
outstanding principal amount of the Advances in an aggregate amount
equal to the amount by which the cumulative Net Cash Proceeds from
the sale, lease, transfer or other disposition of (A) any assets
(other than shares of capital stock) of the Borrower or any of its
Subsidiaries (other than sales of inventory, scrap and by-products
in the ordinary course of business and sales of vehicles or
equipment in the ordinary course of business, provided that the
proceeds thereof, in the case of vehicles and
<PAGE>
22
equipment, are promptly reinvested in comparable vehicles and
equipment) or (B) any capital stock of any Subsidiary of the
Borrower exceeds, in the aggregate under both clauses (A) and (B)
above, an amount equal to 4.5% of Consolidated Tangible Net Assets
(calculated as of the end-date of the last quarter for which
Consolidated financial statements have been distributed); provided
that, in any such case under clause (A) or (B) above, (I) in the
case of any such Net Cash Proceeds received by any such Subsidiary
that is not a Wholly-Owned Subsidiary of the Borrower, the amount of
such prepayment shall equal the proportion of such Net Cash Proceeds
that is equal to the percentage of capital stock of such Subsidiary
owned directly or indirectly by the Borrower (after giving effect to
any applicable sale of shares of capital stock); (II) no prepayment
shall be required in respect of Net Cash Proceeds of any sale,
lease, transfer or other disposition of any assets by any Subsidiary
to the Borrower or any other Subsidiary or by the Borrower to any
Subsidiary; and (III) at least an amount equal to 2.25% of
Consolidated Tangible Net Assets (calculated as of the end-date of
the last quarter for which Consolidated financial statements have
been distributed) of such cumulative Net Cash Proceeds shall be
reinvested promptly in the Borrower or any of its Subsidiaries (it
being understood that if such reinvestment does not occur, all such
cumulative Net Cash Proceeds in excess of an amount equal to 2.25%
of Consolidated Tangible Net Assets (calculated as of the end-date
of the last quarter for which Consolidated financial statements have
been distributed) shall be applied to prepay Advances).
(iii) Making of Prepayment. Any prepayment pursuant to this
clause (b) shall be made on the second Business Day (or sooner if
elected by the Borrower) following the date of receipt by the
Borrower of such Net Issuance Proceeds or such Net Cash Proceeds, as
the case may be.
(iv) Accrued Interest. All prepayments under this clause (b)
shall be made together, with accrued interest to the date of such
prepayment on the principal amount prepaid.
(v) Timing of Prepayments. Unless otherwise agreed by the
Required Lenders, any prepayment made pursuant to this clause (b),
shall be subject to Section 2.13.
SECTION 2.06. Interest.
(a) Ordinary Interest. (i) The Borrower shall pay interest on the
unpaid principal amount of each Eurodollar Rate Advance made to it from
the date of such Advance until such principal is paid in full, at a rate
per annurn equal to the sum of (A) the Eurodollar Rate for such Interest
Period for such Advance plus (B) the Applicable Margin, payable in
arrears on the last day of such Interest Period, on the date of any
payment or prepayment of such principal amount and on the Termination
Date.
(ii) The Borrower shall pay interest on the unpaid principal
amount of each Alternate Base Rate Advance made to it from the date
of
<PAGE>
23
such Advance until such principal is paid in full, at a rate per
annurn equal to the sum of (A) the Alternate Base Rate plus (B) the
Applicable Margin, payable in arrears on the last Business Day of
each month, on the date of any payment or prepayment of such
principal amount and on the Termination Date.
(b) Default Interest. Upon the occurrence and during the continuance
of any Event of Default, the Borrower shall pay interest on the unpaid
principal amount of each Advance made to it and on the unpaid amount of
all interest, fees and other amounts payable hereunder that is not paid
when due, payable in arrears on the dates referred to in clause (a) above
and on demand, at a rate per annum equal at all times to 2.0% per annum.
above (x) the rate per annurn required to be paid on Eurodollar Rate
Advances outstanding at the time pursuant to clause (a) above, in the
case of the unpaid principal amount of Eurodollar Rate Advances, and (y)
the rate per annum required to be paid on Alternate Base Rate Advances
outstanding at the time pursuant to clause (a) above, in the case of the
unpaid principal amount of Alternate Base Rate Advances, interest, fees
and such other amounts.
SECTION 2.07. Administrative Agency and Other Fees. (a) The Borrower
agrees to pay to the Administrative Agent, such fees as shall be agreed to in
writing among the Borrower, the Administrative Agent, the Documentation Agent
and the Syndication Agent.
(b) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent, for the account of the Lenders, for the period (including any
portion thereof when any of such Lender's Commitments are suspended by
reason of the Borrower's inability to satisfy any condition of Article
III) from the Closing Date until the Commitment Expiration Date, a
commitment fee at the rate of 1.0% per annurn (calculated on the basis of
a year of 360 days and actual days elapsed) times the amount of such
Lender's Commitment which is available and unused from time to time. Such
commitment fees shall be payable by the Borrower in arrears on the last
Business Day of each calendar quarter and on the Commitment Expiration
Date.
SECTION 2.08. Continuations; Interest Rate Determination.
(a) The Borrower may continue all or any part of any Eurodollar Rate
Advances in a minimum principal amount of U.S. $10,000,000 or a higher
integral multiple of U.S. $1,000,000 (or, if smaller than U.S.
$10,000,000, the entire outstanding balance of all remaining Advances)
into another Eurodollar Rate Advance, by giving written notice thereof to
the Administrative Agent not later than 11:00 A.M. (New York City time)
at least three Business Days prior to the proposed date of such
continuation. Each such notice shall be effective upon receipt by the
Administrative Agent, shall be irrevocable, and shall specify the date
and amount of such continuation, the Advances to be so continued, and the
applicable Interest Period. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof. Each continuation
shall be on a Business Day.
<PAGE>
24
(b) Failing receipt by the Administrative Agent of any notice of
continuation in accordance with clause (a) above, the Borrower shall be
conclusively deemed to have elected to continue all Eurodollar Rate
Advances for an Interest Period of three months.
(c) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by
the Administrative Agent for purposes of Section 2.06(a) or (b).
SECTION 2.09. Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any change in, or
in the interpretation of, any law or regulation or (ii) the need to
comply with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) adopted
or made after the date of this Agreement (except, with respect to both
subclauses (i) and (ii), any law, regulation, guideline or request
addressed in Section 2.11), there shall be any increase in the cost to
any Lender or any Person controlling such Lender of agreeing to make or
making, funding or maintaining Advances, then the Borrower shall from
time to time, upon demand by such Lender (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the
account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided, however, that, before making
any such demand, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
designate a different Lending Office if the making of such a designation
would avoid the need for, or reduce the amount of, such increased cost
and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any
such event, such notice to state, in reasonable detail, the reasons
therefor and the additional amounts required fully to compensate such
Lender for such increased cost or reduced amount; provided, however, that
notice in respect of any additional amounts payable hereunder in respect
of any Interest Period shall not be effective, and no such additional
amounts shall be payable hereunder in respect of such Interest Period,
unless such notice is given not later than the 360th day following the
Maturity Date. No such additional amounts shall be payable hereunder for
increased costs incurred in respect of any period from 90 days after the
date on which such Lender becomes actually aware of such increased cost
to the date on which such Lender delivers notice' of such increased cost.
A certificate as to the amount of such increased cost, submitted to the
Borrower by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that (i) the introduction of or any
change in, or in the interpretation of, any law or regulation or (ii) the
need to comply with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law)
adopted or made after the date hereof affects or would affect the amount
of capital required or expected to be maintained by such Lender or any
Person controlling such Lender and such Lender determines that the amount
of such capital is increased as a result of such Lender's commitment to
lend hereunder and other commitments of this type, then,
<PAGE>
25
upon demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent
for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender in light
of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of
such Lender's commitment to lend hereunder; provided, however, that,
before making any such demand, each Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Lending Office if the making of
such a designation would avoid the need for, or reduce the amount of,
such increase in capital and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender. Such Lender
shall promptly notify the Administrative Agent and the Borrower in
writing of the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amounts
required fully to compensate such Lender for such increased cost or
reduced amount; provided, however, that notice in respect of any
additional amounts payable hereunder in respect of any Interest Period
shall not be effective, and no such additional amounts shall be payable
hereunder in respect of such Interest Period, unless such notice is given
not later than the 360th day following the Maturity Date. No such
additional amounts shall be payable hereunder for increased capital
requirements for any period from 90 days after the date on which such
Lender becomes actually aware of such increased capital requirements to
the date on which such Lender delivers notice of such increased capital
requirements. A certificate as to such amounts submitted to the Borrower
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(c) If, with respect to any Eurodollar Rate Advances, the Lenders
who are owed at least 20% of the then-aggregate unpaid principal amount
thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Eurodollar Rate Advances will not adequately
reflect the cost to such Lenders of making, funding or maintaining their
Eurodollar Rate Advances for such Interest Period, the Administrative
Agent shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each such Eurodollar Rate Advance will automatically, on the last day
of the then-existing Interest Period therefor, convert into an Alternate
Base Rate Advance and (ii) the obligation of the Lenders to make
Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrower that such Lenders have determined that
the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender
or its Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances hereunder, then, on notice thereof and demand therefor by
such Lender to the Borrower through the Administrative Agent, (i) each
Eurodollar Rate Advance of such Lender will automatically, upon such
demand, convert, at the end of the current Interest Period therefor (or
sooner if required by law), into an Alternate Base Rate Advance and (ii)
the obligation of such Lender to make Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower that
such Lender has determined
<PAGE>
26
that the circumstances causing such suspension no longer exist; provided,
however, that, before making any such demand, such Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Lending Office if the
making of such a designation would allow such Lender or its Lending
Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and
would not, in the judgment of such Lender, be otherwise disadvantageous
to such Lender.
SECTION 2.10. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the
Notes not later than 11:00 A.M. (New York City time) on the day when due
in Dollars to the Administrative Agent at the Administrative Agent's
Account in same day funds. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal, interest or fees ratably (other than amounts payable pursuant
to Section 2.09(a), 2.09(b), 2.11 or 2.13) to the Lenders for the account
of their Lending Offices, and like funds relating to the payment of any
other amount payable to any Lender to such Lender for the account of its
Lending Office, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register
pursuant to Section 8.07(d), from and after the effective date of such
Assignment and Acceptance, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in
such payments for periods prior to such effective date directly between
themselves.
(b) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which
the Loan Documents do not specify the Advances to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender
ratably in accordance with such Lender's proportionate shares of the
principal amount of all outstanding Advances, in repayment or prepayment
of such of the outstanding Advances or other Obligations owed to such
Lender as the Administrative Agent shall direct.
(c) All computations of interest based on the Eurodollar Rate or the
Alternate Base Rate shall be made by the Administrative Agent on the
basis of a year of 360 days and 365/66 days, respectively, and for the
actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest is payable. Each
determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall, in such case, be included in the computation of payment of
interest; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar
<PAGE>
27
Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment
in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to
each such Lender on such due date an amount equal to the amount then due
such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Administrative Agent, each such Lender shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date
such Lender repays such amount to the Administrative Agent, at the
Federal Funds Rate.
(f) The Borrower shall make all payments hereunder and under the
Notes regardless of any defense or counterclaim, including, without
limitation, any defense or counterclaim based on any law, rule or policy
which is now or hereafter promulgated by any Governmental Authority or
regulatory body and which may adversely affect the Borrower's obligation
to make, or the right of the holder of any Note to receive, such
payments.
SECTION 2.11. Taxes.
(a) Any and all payments to be made by the Borrower hereunder, under
the Notes, or under any other Loan Document shall be made free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and any Agent,
respectively, franchise taxes, taxes, levies, imposts, deductions,
charges or withholdings (and all liabilities with respect thereto)
imposed on or measured by reference to net income which are imposed on
such Lender or such Agent by (i) the United States of America, (ii) any
political subdivision of the United States or (iii) any foreign
jurisdiction or political subdivision thereof under the laws of which
such Agent or such Lender is organized, or in which such Lender or such
Agent, respectively, has qualified to do or in fact does business (all
such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender or
any Agent, (x) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section) such Lender or
such Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (y) the Borrower
shall make such deductions and (z) the Borrower shall pay the full amount
required to be deducted to the relevant taxing authority or other
authority in accordance with applicable law. Each Agent and every Lender
shall provide to the Borrower such forms and certifications as are
reasonably necessary to avoid or reduce the Borrower's obligation to
deduct Taxes from any payment hereunder; provided that neither any Agent
nor any
<PAGE>
28
Lender shall be required to furnish any such form or certification to the
extent such Person reasonably determines (consistent with its internal
policy and legal and regulatory restrictions) that such action would be
disadvantageous to such Person.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any excise or property taxes or any other
charges or similar levies that arise from any payment made hereunder or
under the Notes or any other Loan Documents or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
or any other Loan Documents (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this
Section) paid by such Lender or such Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto whether or not such Taxes or
Other Taxes were correctly or legally asserted. This indemnification
shall be made within 30 days from the date such Lender or such Agent (as
the case may be) make written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by the
Borrower, the Borrower will furnish to the Administrative Agent, at its
address referred to in Section 8.02, the original or a certified copy of
a receipt evidencing payment thereof (or, if a receipt cannot be obtained
in the applicable jurisdiction, other appropriate evidence of payment
thereof).
(e) Without prejudice to the survival of-any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section shall survive the payment in full of principal
and interest hereunder and under the Notes.
SECTION 2.12. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advance owing to it (other than
pursuant to Section 2.09(a) 2.09(b), 2.11 or 2.13) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, the purchase from such Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such Lender's ratable share of such recovery together
with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section may, to the fullest
extent permitted by law, exercise all its rights of payment (including the
right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
<PAGE>
29
SECTION 2.13. Funding Losses. In the event any Lender shall incur
any loss, cost, or expense (including any loss, cost, or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such Under to make, continue, or maintain any portion of the principal
amount of any Eurodollar Rate Advance), but excluding any loss of any margin
above the Eurodollar Rate, as a result of.
(a) any repayment or prepayment of the principal amount of any
Eurodollar Rate Advances on a date other than the scheduled last day of
the Interest Period applicable thereto;
(b) any Eurodollar Rate Advances not being made in accordance with
the Notice of Borrowing therefor; or
(c) any Eurodollar Rate Advances not being continued for the
Interest Period specified in accordance with the relevant notice
therefor;
then, upon the written notice of such Lender to the Borrower (with a copy to
the Administrative Agent), the Borrower shall, within five days of its receipt
thereof. pay directly to such Lender (for its own account) such amount as will
(in the reasonable determination of such Lender) reimburse such Lender for
such loss, cost or expense. Such written notice (which shall include all
calculations in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) to
refinance Debt under the Prior Agreement and, any remainder, to fund capital
expenditures and for general corporate purposes. The Borrower hereby
authorizes the Administrative Agent to apply the proceeds of the Borrowing
hereunder to repayment of the amount outstanding under the Prior Agreement.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Closing Date and
Borrowing. The obligation of each Lender to make its Advance on the occasion
of the Borrowing is subject to the effectiveness of this Agreement pursuant to
Section 8.06, to satisfaction of the conditions precedent set forth in this
Section 3.01 below (the date on which such effectiveness and these conditions
are satisfied or waived being the "Closing Date"), and to satisfaction of the
condition that the Closing Date shall occur on or prior to March _, 1999. Each
document received by the Administrative Agent and described below shall be
dated the Closing Date (unless otherwise specified), in form and substance
reasonably satisfactory to the Lenders (unless otherwise specified),
accompanied by an English translation thereof if not in English.
(a) The Agents shall have received counterparts of this Agreement
executed by the Borrower and all the Lenders.
(b) The Agents and the Lenders shall have completed a due diligence
investigation of the Borrower and its Subsidiaries with results
satisfactory to the
<PAGE>
30
Agents and the Lenders, and shall have been given such access to the
management, records, books of account, contracts and properties of the
Borrower and its Subsidiaries, and each shall have received such
financial, business and other information regarding the Borrower and its
Subsidiaries, as the Agents and the Lenders shall have reasonably
requested. This condition will be deemed to be satisfied if, by the close
of business, Mexico City time, on March 1, 1999, ING Barings has not
notified the Borrower of the failure of such condition to be satisfied.
(c) There shall not have occurred any material adverse change in any
country in which the Borrower and its Subsidiaries operate, or in the
international loan syndication or financial or capital market conditions
generally from those in effect on the date hereof.
(d) There shall not have occurred any material adverse change in the
condition, financial or otherwise, business, operations, performance,
properties or prospects of the Borrower or any of its Subsidiaries since
December 31, 1998.
(e) The Administrative Agent shall have received a certificate of
the Borrower, in substantially the form of Exhibit D hereto, signed on
behalf of the Borrower by a duly authorized officer or agent of the
Borrower and its Secretary or any Assistant Secretary, together with
certified copies of (i) the resolutions of the Board of Directors of the
Borrower approving the Borrower's execution, delivery, and performance of
the Loan Documents and the transactions contemplated thereby, (ii) all
documents evidencing other necessary corporate action and consents or
approvals of any Governmental Authority, if any, with respect to the Loan
Documents and the transactions contemplated thereby, and (iii) the
constitutional documents of the Borrower.
(f) The Administrative Agent shall have received the Consolidated
audited financial statements of the Borrower and its Subsidiaries as of
December 31, 1998.
(g) The Administrative Agent shall have received the duly executed
Notes payable to the order of the respective Lenders.
(h) The Administrative Agent shall have received an opinion of
Cravath, Swaine & Moore, special New York counsel for the Borrower, in
substantially the form of Exhibit E-I hereto and as to such other matters
as any Lender through the Administrative Agent may reasonably request.
(i) The Administrative Agent shall have received an opinion of
Arias, Fabrega & Fabrega, local counsel to the Borrower in Panama, in
substantially the form of Exhibit E-2 hereto and as to such other matters
as any Lender through the Administrative Agent may reasonably request.
(j) The Administrative Agent shall have received an opinion of
Mayer, Brown & Platt, special New York counsel to the Administrative
Agent, in substantially the form of Exhibit E-3 hereto and as to such
matters as any Lender through the Administrative Agent may reasonably
request.
<PAGE>
31
(k) The Administrative Agent shall have received a letter, in
substantially the form of Exhibit F hereto, confirming the appointment of
CT Corporation System as Process Agent for the Borrower.
(1) The Administrative Agent shall have received such other
certificates, documents and opinions of counsel as any Lender through the
Administrative Agent may reasonably request.
(m) The Borrower shall have paid all accrued fees of the
Administrative Agent (including any such fees as shall be agreed to in
writing pursuant to Section 2.07(a)) and reimbursed the Administrative
Agent for all reasonable out-of-pocket expenses incurred in accordance
with Section 8.04(a)(i).
(n) the following statements shall be true (and the giving of the
Notice of Borrowing and the acceptance by the Borrower of the proceeds of
such Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing such statements are true):
(i) the representation and warranties of the Borrower contained
in each Loan Document and the statements contained in each
certificate delivered pursuant to any Loan Document are correct in
all material respects on and as of the date of such Borrowing,
before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date except to the extent any such representation and warranty
relates solely to an earlier date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
(o) The Facility shall have been rated at least "BBB-" by Standard &
Poor's.
SECTION 3.02. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Administrative Agent specified in accordance with
Section 8.02 shall have received written notice from such Lender prior to the
Borrowing, specifying its objection thereto, and such Lender shall not have
made available to the Administrative Agent such Lender's ratable portion of
such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
<PAGE>
32
(a) The Borrower and each of its Subsidiaries (i) is a corporation
duly organized and validly existing (and, in the case of any such
Subsidiary incorporated under the laws of one of the States comprising
the United States, in good standing) under the laws of its jurisdiction
of formation, (ii) is duly qualified as a foreign corporation in each
other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where failure to so qualify would not have a Material Adverse Effect, and
(iii) has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted and
as proposed to be conducted except where the failure to do so would be
reasonably likely not to result in a Material Adverse Effect on the
Borrower and its Subsidiaries taken as a whole.
(b) Set forth on Item 4.01(b) of the Disclosure Schedule, attached
hereto as Annex II, is a complete and accurate organizational chart for
the Borrower and its Subsidiaries showing as of the Closing Date (as to
each such Subsidiary) (x) the jurisdiction of its incorporation and (y)
the percentage of the outstanding shares of each such class owned
(directly or indirectly) by the Borrower and the number of shares covered
by all outstanding options, warrants, rights of conversion or purchase
and similar rights as at the Closing Date; and the information set forth
therein is correct in all material respects. All of the shares of the
Borrower and each of its Subsidiaries have been validly issued, fully
paid, are non-assessable and are owned by the Borrower or one or more of
its Subsidiaries and such stock ownership is shown on the stock registry
of the relevant Subsidiary issuing such shares free and clear of all
Liens. Except as disclosed in such Item 4.01 (b) of the Disclosure
Schedule, all the shares of outstanding capital stock of all of such
Subsidiaries that the Borrower purports to own as set forth in Item 4.01
(b) of the Disclosure Schedule have been validly issued, are fully paid
and non-assessable and are owned by the Borrower or one or more of its
Subsidiaries free and clear of all Liens.
(c) The execution, delivery and performance by the Borrower of each
Loan Document to which it is or is to be a party, and the consummation of
the transactions contemplated hereby and thereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene the Borrower's constitutional
documents, (ii) violate any law, rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or
award, (iii) except as set forth on Item 4.01(c) of the Disclosure
Schedule, conflict with or result in the breach of, constitute a default
under, or cause or permit any mandatory prepayment or acceleration of the
maturity of, any material contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on or affecting the
Borrower, any of its Subsidiaries or any of their properties or assets,
or (iv) result in or require the creation or imposition of any Lien upon
or with respect to any of the properties or assets of the Borrower or any
of its Subsidiaries. Neither the Borrower nor any of its Subsidiaries is
in violation of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which would be reasonably
likely to result in a Material Adverse Effect.
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33
(d) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority or any other third party is
required for (i) the due execution, delivery, recordation, filing or
performance by the Borrower of any Loan Document to which it is or is to
be a party, or for the consummation of the transactions contemplated
hereby or thereby, or (ii) the exercise by the Administrative Agent or
any Lender of its rights under any Loan Document to which the Borrower is
a party or the remedies provided thereunder.
(e) This Agreement has been, and each Loan Document to which the
Borrower is or is to be a party when delivered hereunder will have been,
duly executed and delivered by the Borrower. This Agreement is, and each
other Loan Document to which the Borrower is or is to be a party when
delivered hereunder will be, the legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization and
similar laws affecting creditors generally and general principles of
equity.
(f) The Borrower and each of its Subsidiaries is in compliance in
all material respects with all applicable laws, rules, regulations and
orders, except where the failure to so comply would not be reasonably
likely to result in a Material Adverse Effect on the Borrower and its
Subsidiaries taken as a whole.
(g) The audited Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1998, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied (in the case of such
Consolidated financial statements) by an opinion of Arthur Andersen &
Co., independent public accountants, copies of which have been furnished
to each Lender, fairly present in all material respects the Consolidated
financial condition of the Borrower and its Subsidiaries as at such dates
and the Consolidated results of the operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with
GAAP applied on a consistent basis.
(h) Since December 31, 1998, there has been no Material Adverse
Change.
(i) (i) All written information (other than projections with respect
to the future financial performance of the Borrower and its Subsidiaries)
heretofore or contemporaneously herewith furnished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement, the other
Loan Documents and the transactions contemplated hereby and thereby is,
and all written information (other than projections with respect to the
future financial performance of the Borrower and its Subsidiaries)
hereafter famished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender pursuant hereto or
in connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or certified,
and none of such information is or will be incomplete by omitting to
state any material fact necessary to make such information not
misleading. All projections with respect to the future financial
performance of the Borrower and its Subsidiaries heretofore or
contemporaneously famished by or on behalf of the Borrower or
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34
any of its Subsidiaries to the Administrative Agent or any Lender have
been, and all such projections hereafter famished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or any
Lender will be, prepared in good faith and represent or will represent
the Borrower's realistic views as to such performance at the time such
projections were prepared.
(j) Except as set forth in Item 4.01(j) of the Disclosure Schedule,
there is no action, suit, investigation, litigation or proceeding
affecting the Borrower or any of its Subsidiaries (and, with respect to
unasserted claims, to the knowledge of the Borrower) (including, but not
limited to, any Environmental Action) pending or threatened before any
court, Governmental Authority or arbitrator that (i) if adversely
determined, would be reasonably likely to result in a Material Adverse
Effect or (ii) would be reasonably likely to adversely affect the
legality, validity or enforceability of this Agreement, the Notes, any
other Loan Document, or the consummation of the transactions contemplated
hereby or thereby.
(k) (i) Neither the Borrower nor any of its Subsidiaries has taken
any action (including any steps to terminate any Compensation Plan), nor
made any omission (including any failure to make any required
contribution to any Compensation Plan), with respect to any Compensation
Plan, in either case which (a) would result in a liability to the
Borrower or any Subsidiary in excess of U.S. $ 1,000,000 (or the
equivalent in any other currency), (b) would give rise to a Lien over any
of its properties, assets, or revenues, or (c) would be reasonably be
likely to result in a Material Adverse Effect; and
(ii) the Borrower and each of its Subsidiaries is in compliance
in all material respects with the regulatory requirements of
applicable law relating to pensions, employee retirement benefits
and social security and has made all payments required to be made
pursuant thereto. Except as set forth in Item 4.01(k) of the
Disclosure Schedule, neither the Borrower nor any of its
Subsidiaries sponsors, or is required to contribute to, any
Compensation Plan, except such Compensation Plans that do not
require funding and that may be terminated by the Borrower or the
applicable Subsidiary, as the case may be, without its incurring any
liability.
(l) Except as set forth in Item 4.01(1) of the Disclosure Schedule,
each of the Borrower and its Subsidiaries has filed all material tax
returns and reports required to be filed, and have paid all material
taxes, assessments, fees and other governmental charges levied or imposed
upon them or their properties, income or assets otherwise due and
payable, except (i) those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP or (ii) where the failure to do so could
not reasonably be expected to have a Material Adverse Effect. There is no
proposed tax assessment against the Borrower or any Subsidiary that,
could reasonably be expected to have a Material Adverse Effect.
(m) (i) Except as set forth in Item 4.01(m) of the Disclosure
Schedule, the operations and properties of the Borrower and each of its
Subsidiaries comply in all material respects with all Environmental Laws,
all materially necessary Environmental Permits have been obtained and are
in effect for the operations
<PAGE>
35
and properties of the Borrower and its Subsidiaries, the Borrower and its
Subsidiaries are in compliance in all material respects with all such
Environmental Permits, except where the failure to comply with or obtain
such Environmental Permits would not be reasonably likely to result in a
Material Adverse Effect and no circumstances exist that could (A) form
the basis of an Environmental Action against the Borrower or any of its
Subsidiaries or any of their properties that would be reasonably likely
-to result in a Material Adverse Effect or (B) cause any such property to
be subject to any material restrictions on ownership, occupancy, use or
transferability under any Environmental Law; and
(ii) Hazardous Materials have not been generated, used,
treated, handled, stored or disposed of on, or released or
transported to or from, any property of the Borrower or any of its
Subsidiaries, except in compliance with all Environmental Laws and
Environmental Permits, and all other wastes generated at any such
properties have been disposed of in compliance with all
Environmental Laws and Environmental Permits and except where the
failure to comply with Environmental Laws or obtain such
Environmental Permits would not be reasonably likely to result in a
Material Adverse Effect.
(n) Neither the Borrower nor any of its Subsidiaries is a party to
any Existing Debt Agreement, indenture, loan or credit agreement or any
lease or other agreement or instrument or subject to any charter or
corporate restriction that materially inhibits the conduct of its
business, as currently operated or as planned.
(o) The Borrower, and each of its Subsidiaries, has reviewed or
caused to be reviewed the areas within its business and operations which
could be adversely affected by, and has developed or is developing, or
has caused to be developed or is causing to be developed a program to
address on a timely basis the Year 2000 Problem and has made or caused to
be made related appropriate inquiry of material suppliers and vendors.
Based on such review and program, the Borrower believes that the Year
2000 Problem will not have a Material Adverse Effect.
(p) Neither the Borrower nor any of its Subsidiaries is an
"investment company" or an "affiliated person" of, or "Promoter" or
"principal underwriter" for, an "investment company" required to be
registered as such within the meaning of the United States Investment
Company Act of 1940, as amended. Neither the making of any Advances, nor
the application of the proceeds of repayment thereof by the Borrower, nor
the consummation of the other transactions contemplated hereby, will
violate any provision of such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(q) Set forth in Item 4.01(q) of the Disclosure Schedule is a
complete and accurate list of all material Existing Debt, as of March 18,
1999, showing as of such date the outstanding principal amount thereof.
No other material Debt has been incurred since such date. Except as shown
in Item 4.01(q) of the Disclosure Schedule, on the date of this
Agreement, there is no Debt owing from the Borrower to any of its
Subsidiaries. The Obligations of the Borrower under the Loan Documents to
which it is a party rank at least pari passu with all other senior,
unsecured Debt of the Borrower.
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36
(r) Neither the Borrower nor any of its property or assets has any
immunity from jurisdiction of any court or from set-off or any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of
the jurisdiction of its incorporation.
(s) The Borrower is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose
of purchasing or carrying Margin Stock. None of the proceeds of any
Advance will be used for the purpose of, or be made available by the
Borrower or any of its Subsidiaries in any manner to any other Person to
enable or assist such Person in, purchasing or carrying Margin Stock.
(t) The Borrower, individually and on a Consolidated basis with its
Subsidiaries, is, and after giving effect to all Advances under the
Facility, will be, Solvent.
(u) The Borrower will use the proceeds of the Advances to refinance
Debt under the Prior Agreement and, any remainder, to fund capital
expenditures and for general corporate purposes.
(v) The Board of Directors of the Borrower adopted by resolution a
dividend policy whereby an amount equal to between 15% and 25% of the
Borrower's Consolidated net income from the previous year will be paid to
shareholders each year, in quarterly distributions, as determined by the
Board of Directors. Such dividend policy remains in effect as of the date
of this Agreement. Pursuant to the Certificate of Designations in effect
as of the date of this Agreement for the Series C Preferred Stock of the
Borrower, any change in the Borrower's policy with respect to dividends
or distributions to shareholders of the Borrower requires the approval of
the holder of the single outstanding share of Series C Preferred Stock.
As of the date of this Agreement, the Borrower does not anticipate any
change in its dividend policy or in the terms of the Certificate of
Designations of the Series C Preferred Stock.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Obligations
under the Loan Documents shall remain unpaid, or any Lender shall have any
Commitment hereunder, the Borrower shall, unless the Required Lenders shall
otherwise consent in writing:
(a) Compliance with Laws, Etc. Except when the failure to do so
would not be reasonably likely to result in a Material Adverse Effect,
comply, and cause each of its Subsidiaries to comply, in all material
respects, with all applicable laws, rules, regulations and orders.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the saint shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon
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37
its property or assets and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained (if required by GAAP), unless
and until any Lien resulting therefrom attaches to its property or assets
and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Except when the failure to
do so would not be reasonably likely to result in a Material Adverse
Effect, comply, and cause each of its Subsidiaries and all lessees and
other Persons occupying its properties to comply, in all material
respects, with all Environmental Laws and Environmental Permits
applicable to its operations and properties; obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any reasonable
investigation, study, sampling and testing, and undertake any reasonable
cleanup, removal, remedial or other action necessary to remove and clean
up all Hazardous Materials from any of its properties, in accordance with
the requirements of all Environmental Laws; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith and
by proper proceedings and appropriate reserves are being maintained with
respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible insurance companies
or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such
Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Except as permitted
under Section 5.02(b), preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises (including, without limitation,
any franchise agreement of the Borrower or any Subsidiary with TCCC or
any Affiliate thereof, which agreements shall be preserved and maintained
in a manner consistent in all material respects with past practice);
provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to preserve any right or franchise, nor shall the
Borrower be required to maintain the corporate existence of any
Subsidiary if the preservation or maintenance thereof is no longer
desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and the failure to preserve any such
right or franchise or maintain the corporate existence of such Subsidiary
would not be reasonably likely to result in a Material Adverse Effect on
the Borrower and its Subsidiaries taken as a whole.
(f) Visitation Rights. At any time during regular business hours
upon prior written notice to and approval of the Borrower (which approval
shall not be unreasonably withheld or delayed) permit any Agent or any
Lender, or any agents or representatives thereof, to examine and make
notes with respect to records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and
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38
any of its Subsidiaries with any of their executive officers or directors
and with their independent certified public accountants.
(g) Keeping of Book. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
GAAP.
(h) Maintenance of Properties, Etc. Except where the failure to do
so would not be reasonably likely to result in a Material Adverse Effect,
maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties and assets that are material to the
conduct of its business in good working order and condition, ordinary
wear and tear excepted.
(i) Transactions with Affiliates.
(i) Conduct, and cause each of its Subsidiaries to conduct, all
transactions otherwise permitted under the Loan Documents with any
of its Subsidiaries (x) in the ordinary course of business in
accordance with past practices or (y) on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
(ii) Conduct, and cause each of its Subsidiaries to conduct,
all transactions otherwise permitted under the Loan Documents with
any of their Affiliates (other than their Subsidiaries) on terms
that are fair and reasonable and no less favorable to the Borrower
or such Subsidiary than it would obtain in a comparable arms-length
transaction with a Person not an Affiliate.
(iii) Prior to the Borrower becoming indebted to any Affiliate
of the Borrower, cause such Affiliate to execute a subordination
agreement in form and substance satisfactory to the Administrative
Agent, subordinating such Debt to be owed to such Affiliate to all
Obligations of the Borrower under the Loan Documents, and thereafter
deliver to the Administrative Agent a copy thereof certified by a
duly authorized officer or agent to be a true and correct copy of
the original.
(j) Compliance with Terms of Leaseholds. Except where the failure to
do so would not be reasonably likely to result in a Material Adverse
Effect, make all payments and otherwise perform in all material respects
all obligations in respect of all material leases of real property and
cause all of its Subsidiaries to do so, and, to the extent material to
the business of the Borrower, keep such leases in full force and effect
and not allow such leases to lapse or be terminated or rights to renew
such leases to be forfeited or canceled.
(k) Sales of Assets. Cause any assets that are, in the aggregate
during the term of this Agreement, material to the Consolidated financial
position of the Borrower, to be sold or otherwise transferred by the
Borrower or any of its Subsidiaries to be so sold or transferred at a
value that shall reasonably approximate their fair market value (it being
understood that "material", for
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39
purposes of this clause (k) only, shall mean an amount equal to, for all
assets during the term of this Agreement, 4.5% of Consolidated Tangible
Net Assets (calculated as of the end-date of the last quarter for which
Consolidated financial statements have been distributed)).
SECTION 5.02. Negative Covenants. So long as any Obligation under
the Loan Documents shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower shall not, without the written consent of the Required
Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties and assets of any
character (including, without limitation, accounts and capital stock)
whether now owned or hereafter acquired or assign, or permit any of its
Subsidiaries to assign, any accounts or other rights to receive revenues,
excluding, however, from the operation of the foregoing restrictions:
(i) Permitted Liens; and
(ii) Liens securing Debt if, after giving pro forma effect to
the incurrence of such Debt (and the receipt and application of the
proceeds thereof) or the securing of outstanding Debt, the sum of
(without duplication) all Debt of the Borrower and its Subsidiaries
secured by Liens (other than Permitted Liens), at the time of
determination would not exceed 10% of Consolidated Tangible Net
Assets.
(b) Mergers, Etc. Merge with or into or consolidate with or into any
Person, or permit any of its Subsidiaries to do so, unless: (i) either
(a) such merger or consolidation is between any of the Borrower's
Subsidiaries and any of the Borrower's other Subsidiaries, (b) the
Borrower shall be the continuing Person in the case of a merger or (c)
the resulting or surviving Person if other than the Borrower (the
"Successor Company") shall expressly assume, by a written agreement,
executed and delivered to the Administrative Agent, in form satisfactory
to the Administrative Agent, all the obligations of the Borrower under
the Loan 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 as a result of such transaction as having been incurred by 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 Administrative Agent an officer's certificate to that
effect; and (iii) except in the case of any merger or consolidation under
clause (i)(a) above: (A) the Borrower shall have delivered to the
Administrative Agent an officer's certificate and an opinion of counsel,
each stating that such consolidation or merger and such written agreement
comply with the Loan Documents and, if such consolidation or merger
results in a Successor Company, that such written agreement constitutes
the legal, valid and binding obligation of the Successor Company,
enforceable against such entity in accordance with its terms, subject to
customary exceptions, and (B) at least two of Standard & Poor's, Moody's
or DCR shall have notified the Administrative Agent in writing that the
proposed merger or consolidation will not result in a withdrawal or
reduction of its credit rating of the Borrower below the lower of the
then existing rating thereof.
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40
(c) Change in Nature of Business. 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 taken as a whole as
carried on at the date of this Agreement.
(d) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit any change in accounting policies or
reporting practices, except as required by GAAP or requested by any
Governmental Authority (and in each case the Borrower will promptly
notify the Administrative Agent and the Lenders of any such change).
(e) Constitutional Documents. Amend, modify or change in any manner
any material term or condition of any constitutional document (including,
without limitation, the Voting Trust Agreement, any other shareholders
agreement or any similar agreement) of the Borrower or any Subsidiary or
take any other action in connection with any constitutional document that
would reasonably be likely to result in a Material Adverse Effect, except
as permitted by Section 5.02(b).
(f) Shareholders' Agreements. Enter into, or permit any of its
Subsidiaries to enter into, any shareholders' agreement (or similar
agreement or arrangement) with any holder of Voting Stock of the Borrower
(other than with TCCC or any Subsidiary thereof or with Venbottling
Holdings, Inc. or with the voting trustees under the Voting Trust
Agreement).
(g) Change in Control. Take, or allow its Subsidiaries to take, any
action that may be reasonably likely to result in a Change in Control.
(h) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any of its assets, including (without limitation)
any shares of capital stock of Subsidiaries and any manufacturing plant
or substantially all assets constituting the business of a division,
branch or other unit operation, except
(i) sales of inventory, scrap and by-products in the ordinary
course of business;
(ii) sales of equipment and vehicles in the ordinary course of
business, provided that the proceeds thereof are promptly reinvested
in comparable equipment or vehicles;
(iii) sales of assets (including, but not limited to, shares of
capital stock of Subsidiaries) of the Borrower or any of its
Subsidiaries, provided that an amount equal to the Net Cash Proceeds
thereof is applied in accordance with and to the extent required
under Section 2.05(b) hereof (or the Commitment reductions pursuant
to Section 2.04(b), as applicable, shall have occurred), and
provided further that at the time of such sale and after giving
effect thereto no Event of Default shall have occurred and be
continuing; and
(iv) sales of assets to Affiliates permitted under Section
5.01(i).
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41
(i) Debt. Create, incur, assume Or suffer to exist any Debt, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist any Debt other than:
(i) in the case of the Borrower,
(A) Debt under the Loan Documents;
(B) the Existing Debt identified in Item 4.01(q) of the
Disclosure Schedule;
(C) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary
course of business consistent in all material
respects with past practices;
(D) any Debt owed by the Borrower to any Subsidiary
incurred in the ordinary course of business
consistent in all material respects with past
practices; provided that all such Debt owed by the
Borrower to any Affiliate of the Borrower shall be
subordinated to all Obligations of the Borrower under
the Loan Documents pursuant to a subordination
agreement in form and substance satisfactory to the
Administrative Agent;
(E) any Debt not otherwise permitted hereunder, provided
that (I) an amount equal to the Net Issuance Proceeds
from the issuance thereof is promptly applied to
reduce the aggregate Commitments and prepay the
Advances to the extent required under Section 2.04(b)
or 2.05(b) hereof; and (II) at the time such Debt is
incurred and after giving effect thereto (and to the
repayment required hereunder) no Event of Default
shall have occurred and be continuing;
(F) any replacement, extension or renewal of any Debt
permitted by subclause (B), (D) or (E) above;
(ii) in the case of any Subsidiary of the Borrower,
(A) the Existing Debt identified in Item 4.01(q) of the
Disclosure Schedule;
(B) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary
course of business consistent in all material
respects with past practices;
(C) any Debt owed by any Subsidiary to any other
Subsidiary or to the Borrower incurred in the
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42
ordinary course of business consistent in all
material respects with past practices;
(D) any Debt of any Subsidiary existing at the time such
Subsidiary becomes a Subsidiary after the Closing
Date unless incurred in anticipation thereof;
(E) any Debt of any Subsidiary not otherwise permitted
hereunder; provided that (I) the aggregate principal
amount of such Debt of all Subsidiaries taken as a
whole, before and after giving effect to any such
incurrence, shall not exceed at any time 35% of the
total Consolidated Debt of the Borrower and its
Subsidiaries, and (II) at the time such Debt is
incurred and after giving effect thereto, no Event of
Default shall have occurred and be continuing; and
(F) any replacement, extension or renewal of any Debt
permitted by subclause (A), (C) or (D) above.
For purposes of determining compliance with the foregoing
covenant, (i) in the event that an item of Debt meets the criteria
of more than one of the types of Debt described above, the Borrower,
in its reasonable discretion, will classify such item of Debt and
only be required to include the amount and type of such Debt in one
of the above clauses and (ii) an item of Debt may be split between
more than one of the applicable types of Debt described above.
SECTION 5.03. Reporting Requirement. So long as any Obligation under
the Loan Documents shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower shall, unless the Required Lenders shall otherwise
consent in writing, furnish to the Lenders:
(a) Default Notice. As soon as possible and in any event within two
days after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Borrower
setting forth details of such Default and the action that the Borrower
has taken and proposes to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any event
within 60 days after the end of each quarter of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding
fiscal year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer of the
Borrower as having been prepared (with respect to such Consolidated
financial statements) in accordance with GAAP, together with a
certificate of such officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is
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43
continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto.
(c) Annual Financials. As soon as available and in any event within
120 days after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its Subsidiaries,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year, and Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for such fiscal year, in each case (with respect to such Consolidated
financial statements) accompanied by an opinion of Arthur Andersen & Co.
or other independent public accountants of recognized standing acceptable
to the Required Lenders, together with (A) a certificate of such
accounting firm to the Lenders stating that in the course of the regular
audit of the business of the Borrower and its Subsidiaries, which audit
was conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no
knowledge that a Default has occurred and is continuing, or if, in the
opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, and (B) a certificate
of the chief financial officer of the Borrower stating that no Default
has occurred and is continuing or, if a default has occurred and is
continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto.
(d) Compensation Plans. As soon as possible and in any event within
five days after the Borrower knows or has reason to know of any action
(including any steps to terminate any Compensation Plan), or any omission
(including any failure to make any required contribution to any
Compensation Plan), with respect to any Compensation Plan, in either case
the result of which (a) could result in the incurrence by the Borrower of
any material liability, fine or penalty, or any material increase in the
contingent liability of the Borrower with respect to any Compensation
Plan, (b) could give rise to a Lien over any of its properties, assets,
or revenues, or (c) would be reasonably likely to result in a Material
Adverse Effect, notice thereof and copies of all documentation relating
thereto.
(e) Material Adverse Change. As soon as possible and in any event
within five days after the Borrower knows or has reason to know of any
Material Adverse Change, or any event or circumstance which might result
in a Material Adverse Change, notice thereof and copies of all
documentation relating thereto.
(f) Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, by or against the Borrower or any
of its Subsidiaries or Affiliates of the type described in Section
4.01(j).
(g) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
that the Borrower sends to its stockholders, and copies of all regular,
periodic and special reports, and all registration statements, that the
Borrower or any of its Subsidiaries files with any securities commission
or similar Governmental Authority or with any national securities
exchange.
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44
(h) Creditor Report. Promptly after the furnishing thereof, copies
of any statement or report furnished to any other holder of the
securities of the Borrower or of any of its Subsidiaries pursuant to the
terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lenders pursuant to any other
clause of this Section 5.03.
(i) Environmental Conditions. Promptly after the occurrence thereof,
notice of any condition or occurrence on any property of the Borrower or
any of its Subsidiaries that results in a material noncompliance by the
Borrower or any of its Subsidiaries with any Environmental Law or
Environmental Permit or could form the basis of an Environmental Action
against the Borrower or any of its Subsidiaries that would be reasonably
likely to result in a Material Adverse Effect.
(j) Other Information. Such other information respecting the
business, financial condition, operations, performance, properties,
assets or prospects of the Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
SECTION 5.04. Financial Condition. So long as any Obligation under
the Loan Documents shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower shall, unless the Required Lenders otherwise consent
in writing:
(a) Interest Coverage Ratio. Maintain an Interest Coverage Ratio
(calculated as of the last day of each fiscal quarter or year, as
reflected in the quarterly or annual financial statements for such fiscal
quarter or year, for the twelve-month period ending on the relevant date
of determination) of not less than 3.0 to 1.
(b) Debt to EBITDA Ratio. Maintain a ratio of Consolidated Debt to
Consolidated EBITDA (calculated as of the last day of each fiscal quarter
or year hereinafter indicated, as reflected in the quarterly or annual
financial statements for such fiscal quarter or year, for the
twelve-month period ending on the relevant date of determination) of not
more than (i) 3.5 to I through the fourth fiscal quarter of 1999, (ii)
3.0 to I through the fourth fiscal quarter of 2000, and (iii) 2.75 to 1
thereafter.
(c) Minimum Net Worth. Maintain at all times a minimum Consolidated
Net Worth of not less than U.S. $1,750,000,000.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any Advance,
or any interest thereon, when due in accordance with the Loan Documents,
or (ii) in the
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45
case of fees or other amounts due in accordance with the Loan Documents,
within five (5) days of the due date thereof-, or
(b) any representation or warranty made by the Borrower (or any of
its officers) under or in connection with any Loan Document shall prove
to have been incorrect in any material respect when made or deemed made;
or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in (i) Section 5.01(k), Section 5.02, 5.03(a) or
(e), Section 5.04 or (ii) Section 5.03(b)-(d) or (f)-(j) if such failure
shall remain unremedied for five (5) days after the Borrower has
knowledge thereof or written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender; or
(d) the Borrower shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for twenty days after
the Borrower has knowledge thereof or written notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender; or
(e) (x) the Borrower or any of its Subsidiaries shall fail to pay
any principal of, premium or interest on any other amount payable in
respect of any Debt that is outstanding in an aggregate principal or
notional amount of at least U.S. $20,000,000 (or the equivalent in
another currency) in the aggregate (but excluding Debt outstanding
hereunder) of the Borrower or such Subsidiary (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or (y) any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Debt, if the effect of such event or condition is to
accelerate the maturity of such Debt or otherwise to cause, or to permit
the holder thereof to cause, such Debt to mature; or (z) any such Debt
shall be declared to be due and payable or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof (other than, in the case of
subclauses (y) and (z) above, any such Debt that has become due and
payable as a result solely of any sale of assets by the Borrower or its
Subsidiaries, provided that such Debt is paid when due from the proceeds
of such sale); or
(f) the Borrower or any Significant Subsidiary shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any of its Significant Subsidiaries seeking to
adjudicate it as a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its property
and, in respect of an
<PAGE>
46
involuntary proceeding instituted against such Person, the same shall
remain unstayed or undismissed for 60 days; or the Borrower or any
Significant Subsidiary shall take any corporate action to authorize any
of the actions set forth above in this clause; or
(g) any judgment or order for the payment of money in excess of U.S.
$20,000,000 (or the equivalent in another currency) which is not covered
by insurance shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have teen
commenced by any creditor upon such judgment or order or (ii) there shall
be any period J of 3 0 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against the
Borrower or any of its Subsidiaries that is reasonably likely to result
in a Material Adverse Effect, and there shall be any period of thirty
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) the Borrower shall have taken any action (including any steps to
terminate any Compensation Plan), or shall have made any omission
(including any failure to make any required contribution to any
Compensation Plan), with respect to any Compensation Plan, which in
either case would (a) result in a liability to the Borrower in excess of
U.S. $1,000,000 (or the equivalent in any other currency), or (b) be
reasonably likely to result in a Material Adverse Effect; or
(j) a Change in Control shall occur; or
(k) any Governmental Authority shall condemn, seize, compulsorily
purchase or expropriate all or a substantial part of the assets and
properties of the Borrower or its Subsidiaries; or
(l) by reason of any material interference by any Governmental
Authority, or otherwise, the Loan Documents, in whole or in part, shall
become invalid, or shall fail to be in full force and effect;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the obligation of each Lender to make its respective Advance
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may,with the consent, of the Required Lenders, by notice to
the Borrower, (x) declare the Notes, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower and (y) take all remedies as may be available
under the Loan Documents or otherwise; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to the Borrower
under the Federal Bankruptcy Code or any similar order or adjudication under
applicable law that would impose a moratorium on or stay of creditor efforts
to collect debts to become effective, (x) the obligation of each Lender to
make its respective Advance shall
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47
automatically be terminated and (y) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement and the
other Loan Documents as are delegated to the Administrative Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Loan Document, the Administrative Agent shall
not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Duties and Reliance, Etc.
(a) Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful
misconduct, or shall have any fiduciary duty to any Lender. Without
limitation of the generality of the foregoing, the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor,
and an Eligible Assignee, as assignee, as provided in Section 8.07; (ii)
may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or
experts; and (iii) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of the Borrower or to inspect
the property (including the books and records) of the Borrower; and (iv)
shall not incur any liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or
writing (which
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48
may be by telegram, telecopy, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
(b) The Administrative Agent (i) does not make any warranty or
representation to any Lender and shall not be responsible to any Lender
for the accuracy or completeness of the Confidential Information,
warranties or representations made in or in connection with the Loan
Documents and (ii) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Loan Document or any other instrument or document
furnished pursuant hereto.
(c) The Administrative Agent has no duties hereunder or under the
other Loan Documents that are not specifically set forth herein or
therein.
SECTION 7.03. Administrative Agent and Affiliates. With respect to
its Commitments, the Advance made by it and the Note issued to it, the
Administrative Agent shall have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it were not
the Administrative Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include the Administrative Agent in its
individual capacity as Lender. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures of,
accept investment banking engagements from and generally engage in any kind of
business with the Borrower, any of its Subsidiaries and any Person who may do
business with or own securities of the Borrower or any of its Subsidiaries,
all as if they were not the Administrative Agent, and without any duty to
account therefor to the Lenders. Each Lender acknowledges that, pursuant to
such activities, the Administrative Agent and its Affiliates may receive
information regarding the Borrower and its Affiliates (including information
that may be subject to confidentiality obligations in favor of the Borrower or
such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. Each Lender agrees to indemnify each
Agent (to the extent not promptly reimbursed by the Borrower), ratably
according to the principal amount of the Note then held by such Lender (or if
no Notes are at the time outstanding, ratably according to the amounts of its
Commitment), from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees and expenses of
counsel) that are actually incurred by or asserted or awarded against such
Agent, in each case arising out of or in connection with or in any way
relating to the Loan Documents or any action taken or omitted by such Agent
under the Loan Documents; provided, however, that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs,
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49
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse each Agent promptly upon demand for such Lender's ratable share of
any costs and expenses payable by the Borrower under Section 8.04, to the
extent that such Agent is not promptly reimbursed for such costs and expenses
by the Borrower.
SECTION 7.06. Successors to Administrative Agent. The Administrative
Agent may at any time assign the rights and obligations hereunder to any of
its Affiliates, provided that the Administrative Agent, or a Person owning a
majority of the capital stock of the Administrative Agent, owns a majority of
the capital stock of such Affiliate, or such Affiliate owns a majority of the
capital stock of the Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Borrower
and may be removed at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders after consultation
with the Borrower shall have the right to appoint a successor Administrative
Agent to the Administrative Agent. If no such successor Administrative Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after such retiring Administrative Agent's
giving of notice of resignation or the Required Lenders' removal of the
retiring Administrative Agent, then such retiring Administrative Agent may, on
behalf of the Lenders after consultation with the Borrower, appoint a
successor Administrative Agent to such Administrative Agent, which shall be an
Eligible Assignee or commercial bank organized under the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least U.S. $250,000,000. Upon the acceptance of any appointment as the
Administrative Agent hereunder by such a successor Administrative Agent, such
successor Administrative Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of such retiring
Administrative Agent, and such retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. After the
Administrative Agent's resignation or removal hereunder as such Administrative
Agent, the provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement.
SECTION 7.07. Joint Arrangers, Documentation Agent and Syndication
Agent. Neither the Joint Arrangers nor the Documentation Agent nor the
Syndication Agent shall have any duties, responsibilities or liabilities under
any Loan Document.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.0 1. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Notes or any other Loan Documents, nor
consent to any departure by the Borrower therefor, shall in any event be
effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (i) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes,
or the number of Lenders, that shall be required for the Lenders or any of
them to take any action
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50
hereunder or under any other Loan Document; (ii) amend this Section 8.01;
(iii) increase the Commitments of the Lenders; (iv) reduce the principal of,
or interest on (including, without limitation, the rate of interest), the
Notes or any fees or other amounts payable hereunder; or (v) postpone the
Maturity Date or any date fixed for any payment of interest on the Notes or
any fees or other amounts payable hereunder; and provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, facsimile
or telex communication) and faxed, telexed or delivered, if to the Borrower,
at its address set forth below its signature on the signature pages hereto; if
to any Lender, at its Lending Office specified opposite its name on Annex I
hereto or in the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Administrative Agent, at its address set forth below its
signature on the signature pages hereto; or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties 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 Administrative Agent. All such notices and
communications, shall, when faxed or telexed, be effective when transmitted by
facsimile or confirmed by telex answerback, respectively, except that notices
and communications to the Administrative Agent pursuant to Article II III or
VII shall not be effective until received by the Administrative Agent. All
such notices and other communications, if not in English, shall be accompanied
by an English translation.
SECTION 8.03. No Waiver, Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note or any other Loan Document shall operate
as a waiver thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein and therein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay on demand (whether or not the
transactions contemplated by this Agreement are consummated) (i) all
reasonable costs and expenses of each Agent in connection with the
preparation, execution, delivery, administration, syndication,
modification and amendment of the Loan Documents, including, without
limitation, (A) all reasonable out-of-pocket due diligence,
transportation, computer, printing, bank meeting, duplication, appraisal,
audit, search, filing and recording fees and expenses and, with the prior
approval of the Borrower, insurance and consultant fees, and (B) the
reasonable fees and expenses of counsel with respect thereto, with
respect to advising them as to their rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with the Borrower or with
other creditors of the Borrower or any of its Subsidiaries arising out of
any Default or any events or circumstances that may give rise to a
Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other
similar proceeding involving creditors' rights generally and any
proceeding ancillary
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51
thereto and (ii) all costs and expenses of the Agents and the Lenders in
connection with the enforcement of the Loan Documents, whether in any
action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally or otherwise (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent and each Lender with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each Agent
and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party")
from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that are actually incurred by or asserted or awarded against any
Indemnified Parry, in each case arising out of or in connection with or
by reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Borrower's use of the proceeds of any Advance,
(ii) the actual or alleged presence of Hazardous Materials on any
property of the Borrower or any of its Subsidiaries or any Environmental
Action relating in any way to the Borrower or any of its Subsidiaries or
(iii) the Facility or Loan Documents or any Indemnified Person's role in
connection therewith, in each case whether or not such investigation,
litigation or proceeding is brought by the Borrower or any of its
Subsidiaries, directors, shareholders or creditors or an Indemnified
Party, whether or not any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated,
except to the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct.
(c) If the Borrower fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel (including the allocated cost of
in-house counsel) and indemnities, such amount may be paid on behalf of
the Borrower by the Administrative Agent or any Lender, in its sole
discretion, and such amount shall be reimbursed by the Borrower.
SECTION 8.05. Right of Set-off. Upon the occurrence and during the
continuance of any payment Event of Default, each Lender is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and otherwise apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
against any and all of the Obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender, irrespective
of whether such Lender shall have made any demand under this Agreement or such
Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section 8.05 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
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52
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative' Agent
and when the Administrative Agent shall have been notified by each Lender that
such Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent, and each Lender and
their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without
the prior written consent of all of the Lenders.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advance owing
to it and the Note held by it); provided, however, that (i) each such
assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations under this Agreement, (ii) except in the case of
an assignment to a Person that, immediately prior to such assignment, was
a Lender or an assignment of all of a Lender's rights and obligations
under this Agreement, the aggregate amount of the Commitment and Advance
of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect
to such assignment) shall in no event be less than U.S. $3,000,000 or a
higher integral multiple of U.S. $1,000,000, (iii) unless the assignment
is to an existing Lender or an Affiliate of the assigning Lender, the
Borrower shall have notified the assigning Lender within five Business
Days of the Borrower's receipt of notice of such assignment of the
Borrower's approval of such assignment (such approval not to be
unreasonably withheld or delayed) and if the Borrower has not notified
the assigning Lender of its approval or disapproval of such assignment by
such date, the Borrower shall be deemed to have given its approval, (iv)
any assignment at any date prior to the date 60 days after the Closing
Date shall be made on the last day of an Interest Period, and (v) the
parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance (such acceptance not to be
withheld if the conditions set forth above in this Section 8.07 are
satisfied) and recording in the Register, an Assignment and Acceptance,
together with any Note subject to such assignment and a processing and
recordation fee of U.S. $3,000. Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in such
Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all
or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows, (i) other
than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation
<PAGE>
53
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Loan Document, or any other instrument or document
furnished pursuant hereto or thereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or any of its Subsidiaries or
with respect to the performance or observance by the Borrower or any of
its Subsidiaries of any of its obligations under this Agreement or any
other Loan Document or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee confirms that it has
received a copy of this Agreement and each other Loan Document, together
with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the Administrative Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such assignee confirms that it is
an Eligible Assignee or an Affiliate of the assignor; (vi) such assignee
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees to be bound by the
terms of this Agreement.
(c) The Administrative Agent shall maintain at its address referred
to in Section 8.02 a copy of each Assignment and Acceptance delivered to
and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of
the Advance owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note subject to such
assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit
C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower. Within five Business Days after its
receipt of such notice, the Borrower (but only if the Borrower has
approved the assignment in accordance with Section 8.07(a), at its own
expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note a new Note payable to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder, a new Note payable to the order of
the assigning Lender
<PAGE>
54
in an amount equal to the Commitment retained by it hereunder. Such new
Note shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.
(e) Each Lender may sell participations in or to all or a portion of
its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advance owing to it
and the Note held by it) to any Eligible Assignee; provided, however,
that (i) such Lender's obligations under this Agreement (including,
without limitation, its Commitments) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Administrative Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve
any amendment pr waiver of any provision of any Loan Document, or any
consent to any departure by the Borrower therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, postpone the
Maturity Date or any date fixed for any payment of interest on the Notes
or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation.
(f) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without
limitation, the Advance owing to it and the Note held by it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
SECTION 8.08. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the internal laws of the State
of New York.
SECTION 8.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.10. Confidentiality. Neither the Administrative Agent nor
any Lender shall disclose any Confidential Information to any Person without
the consent of the Borrower, other than (a) to the Administrative Agent's or
such Lender's officers, directors, employees, agents and advisors to the
extent necessary and to actual or prospective Eligible Assignees and
participants, and then only so long as such Person agrees to keep confidential
such information, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
<PAGE>
55
SECTION 8.11. Judgment.
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under the Notes or any other
Loan Documents in U.S. Dollars into another currency ( the "Other
Currency"), the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent
could purchase U.S. Dollars in New York City on the Business Day
preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due in U.S.
Dollars from it to any Lender or the Administrative Agent hereunder or
under the Note held by such Lender shall, notwithstanding any judgment in
any Other Currency, be discharged only to the extent that, on the
Business Day following receipt by such Lender or the Administrative Agent
(as the case may be) of any sum adjudged to be so due in such Other
Currency such Lender or the Administrative Agent (as the case may be)
may, in accordance with normal banking procedures, purchase U.S. Dollars
with such Other Currency; if the amount of the U.S. Dollars so purchased
is less than the sum originally due to such Lender or the Administrative
Agent (as the case may be) in U.S. Dollars, the Borrower agrees, as a
separate obligation and notwithstanding such judgment, to indemnify such
Lender or the Administrative Agent (as the case may be) against such
loss, and if the amount of the U.S. Dollars so purchased exceeds the sum
originally due to any Lender or the Administrative Agent (as the case may
be) in U.S. Dollars, such Lender or the Administrative Agent (as the case
may be) agrees to remit to the Borrower such excess.
SECTION 8.12. Consent to Jurisdiction.
(a) Each of the Persons parties hereto hereby irrevocably submits to
the jurisdiction of any New York State or Federal court sitting in the
borough of Manhattan in New York City and any appellate court from any
thereof and to the courts of its own corporate domicile with respect to
actions brought against it as a defendant in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document
to which such Person is or is to become a party, and such Person hereby
irrevocably agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or in
such Federal court. Each of the Persons parties hereto hereby irrevocably
waives, to the fullest extent it may effectively do so, any objection it
may now or hereafter have as to the venue of any such action or
proceeding brought in any such court or that such court is an
inconvenient forum. The Borrower hereby irrevocably appoints CT
Corporation System, Inc. (the "Process Agent"), with an office on the
date hereof at 1633 Broadway Avenue, New York, NY 10019, United States,
as its agent to receive on behalf of the Borrower and its property
service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding. Such service may be
made by delivering a copy of such process to the Borrower in care of the
Process Agent at the Process Agent's above address, and the Borrower
hereby irrevocably authorizes and directs the Process Agent to accept
such service on its behalf As an alternative method of service, the
Borrower also irrevocably consents to the service of any and all process
in any such action or proceeding by the mailing of
<PAGE>
56
copies of such process to the Borrower at its address specified in
Section 8.02. The Borrower agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.
(b) Nothing in this Section shall affect the right of any Lender or
any Agent to serve legal process in any other manner permitted by law or
affect the right of any Lender or any Agent to bring any action or
proceeding against the Borrower or its property in the courts of other
jurisdictions.
(c) 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 waives such
immunity in respect of its obligations under this Agreement and the other
Loan Documents to which it is or becomes a party.
(d) Any judicial proceeding by the Borrower against the any Agent or
any Lender involving, directly or indirectly, any matter in any way
arising out of, related to, or connected to any Loan Document shall be
brought only in court in New York, New York, to the extent that
jurisdiction may be effected against such Agent or such Lender in New
York, New York.
SECTION 8.13. WAIVER OF JURY TRIAL. THE BORROWER, EACH AGENT AND
EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
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 ANY OF THE
LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY AGENT OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 8.14. Limitation on Liability. The Borrower hereby waives,
releases and agrees not to sue any Agent or any Lender upon any claim for any
special, indirect, consequential or punitive damages suffered by the Borrower
in connection with, arising out of, or in any way related to the Loan
Documents or the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless it is determined
by a judgment of a court that is binding on such Agent or such Lender, and is
final and not subject to review on appeal, that such damages were the result
of acts or omissions on the part of such Agent or such Lender constituting
gross negligence or willful misconduct.
<PAGE>
57
SECTION 8.15. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP
consistently applied, except as otherwise stated herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agmement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
PANAMERICAN BEVERAGES, INC.
By /s/ Paulo J. Sacchi
------------------------------
Title: Chief Financial Officer
Name Printed: Paulo J. Sacchi
Torre Dresdner Bank
Piso No. 7. Calle 50
Panama City
Panama
Telephone: (012 507) 223-9723
with a copy to:
Blvd. Manuel Avila Camacho No. 40
Piso 22
Col. Lomas de Chapultepec
Del. Miguel Hidalgo
11000 Mexico, D.F.
Mexico
Att.: Paulo J. Sacchi
Carlos Hemindtz
Facsimile: (011 525) 201-6334/6335
Telephone: (011 525) 201-6308/6304
ING BARING (U.S.) CAPITAL LLC,
as Adininistrative Agent and Joint Arranger
By /s/ Vincente M. Leon
------------------------------
Title: Vice President
Name Printed: Vincente M. Leon
135 East 57th Street
New York. New York 10022
Att: Emerging Markets
Facsimile: (212) 593-0566
Telex: TRT 177792
Telephone: (212) 446-1923
with a copy to:
Martha 0. Martinez
Facsimile: (212) 750-8934/486-6341
Telephone: (212) 409-1783
<PAGE>
58
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
as Lender
By /s/ Louisa Maria Ruiz Carlile
------------------------------
Title: Vice President
Name Printed: Louisa Maria Ruiz Carlile
Attention: Latin America Portolio
60 Wall Street
New York, New York 10260-0060
Att.: Luisa Maria R. Carlile/Simon Noble
Facsmile: (212) 648-5487
Telephone: (212) 648-2325
with a copy to:
Edward Wirth
Facsimile: (302) 634-4267
Telephone: (3 02) 634-4273
J.P. MORGAN SECURITIES INC.,
as Syndication Agent and Joint Arranger
By /s/ T.M.T. O'Connor
------------------------------
Title: Vice President
Name Printed: T.M.T. O'Connor
60 Wall Street
New York, New York 10260-0060
Att.: Toby O'Connor
Facsimile: (212) 649-5016
Telephone: (212) 648-0678
BANKBOSTON, N.A.,
as Documentation Agent and Lender
By /s/ Esteban A. Arrando
------------------------------
Title: Vice President
Name Printed: Esteban A. Arrando
100 Federal Street
Boston, MA 02110
Att.: Esteban Arrondo/Juan Navas Sacasa
Facsimile: (617) 434-0601
Telephone: (617) 434-8976/5118
With a copy to:
Tina Karidoyanes
Facsimile: (617) 434-0601
<PAGE>
59
Telephone: (617) 434-3145
BANCBOSTON ROBERTSON STEPHENS, Inc.,
as Joint Arranger
By /s/ Eduardo M. Borges
------------------------------
Title: Vice President
Name Printed: Eduardo M. Borges
100 Federal Street
Boston, MA 02110
Att.: Sit Sel Wei
Facsimile: (617) 434-1631
Telephone: (617) 434-0921
BANCO BILBAO VIZCAYA S.A
As Joint Arranger and Lender
By /s/ Alberto Conde
------------------------------
Title: Vice President
Name Printed: Alberto Conde
By /s/ John Martini
------------------------------
Title: Vice President
Name Printed: John Martini
1345 Avenue of the Americas
45th Floor
New York, NY 10105
Att.: Laura Sacchi/Felipe Macia
Facsimile: (212) 259-2216
Telephone: (212) 728-2390/2392
with a copy to:
Francisco Miguens
Michael Pizzaro
Facsimile: (212) 333-2904
Telephone: (212) 728-1682
THE CHASE MANHATTAN BANK,
as Joint Arranger and Lender
By /s/ Jorge Sosa
------------------------------
Title: Managing Director
Name Printed: Jorge Sosa
270 Park Avcnus
19th Floor
New York, New York 10017
<PAGE>
60
Att.: Joseph Barragan/Roberto Diaz
Facsimile: (212) 270-9496/4550
Telephone: (212) 270-6772/9143
with a copy to:
Stephen Grant
Facsimile: (212) 270-7955
Telephone: (212) 270-3647
DRESDNER BANK LUXEMB0URG S.A.,
as Joint Arranger and Lender
By /s/ Katharina Bauer
------------------------------
Title: Assistant Vice President
Name Printed: Katharina Bauer
By /s/ Dr. A. Glaesner
------------------------------
Title: Adviser
Name Printed: Dr. A. Glaesner
26 rue du Marche aux Herbes
2097 Luxembourg
Facsimile: (011352) 4760-393
Telephone: (011352) 4760-988
with a copy to:
Loan Administration
Facsimile: (011 352) 4760-565
Telephone: (011 352) 4760-1
DRESDNER BANK LATEINAMERIKA AG,
PANAMA BRANCH
By /s/ Bernard Kleinworth
------------------------------
Title: General Manager
Name Printed: Bernard Kleinworth
By /s/ L. De Arango
------------------------------
Title: Assistant Secretary
Name Printed: L. De Arango
Telephone: 206-8280
Torre Dresdner Bank
Calle 50 y 55 Este
Panama 9, Republica de Panama
Att.: Bernd Kleinworth
Lolitin de Arango
Facsimile: (011 507) 206-8109/8279
Telephone: (011 507) 206-8280
<PAGE>
61
ING BANK N.V.,
acting through its Curacao Branch, as Lender
By /s/ W.A.
------------------------------
Title: Assistant General Manager
Name Printed: W. A.
By /s/ H.F.J. ten Holt
------------------------------
Title: Financial Controller
Name Printed: H.F.J. ten Holt
Bosques de Alisios 45B rtp. piso,
Bosques de las Lomas
05120, Mexico D.F.
Att.: Alejandro Aguiler/
Francisco Garcia Mannuzano
Facsimile: (011 525) 259-2701/
(011 525) 259-3718
Telephone: (011 525) 258-2197/
(011 525) 258-2126
with a copy to:
Martha G. Martinez
Facsimile: (212) 750-8934/________
Telephone: (212) 409-1783
COMERICA BANK,
as Lender
By /s/ Shane P. Gadbaw
------------------------------
Title: International Finance Officer
Name Printed: Shane P. Gadbaw
Comerica Bank Tower
500 Woodward Avenue
International Dept. 23rd Floor
Detroit MI 48226-3330
Att.: Shane P. Gadbaw
Facsimile: (313) 222-5466
Telephone: (313) 222-3442
with a copy to:
Deborah Tuccini
Facsimile: (313) 222-7421
Telephone: (313) 222-2975
<PAGE>
62
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Lender
By /s/ Michael Gaudino
------------------------------
Title: Vice President of GE Capital
Name Printed: Michael Gaudino
201 High Ridge Road
Stamford, CT 06927-5100
Att: Jorge Cobos
Facsimile: (011 525) 257-6027
Telephone: (011 525) 257-6249
with a copy to:
Monica Macana
Facsimile: (011 525) 257-6027
Telephone: (011 525) 257-9576
BANQUE NATIONALE DE PARIS, PANAMA
BRANCH,
as Lender
By /s/ Nicolas Piponiot-Laroche
------------------------------
Title: Vice President
Name Printed: Nicolas Piponiot-Laroche
By /s/ Leticia Sang
------------------------------
Title: Credit Officer
Name: Leticia Sang
Edificio Omanco
200 Via Espana
Apartado Aereo 1774
Panama I.R.P.
Att.: Eric de Romance/Francisco Cobo
Facsimile: (011 525) 258-2977/2978
Telephone: (011 525) 258-2921
with a copy to:
Nair Gonzalez
Facsimile: (011 507) 263-6970
Telephone: (011 507) 263-5052
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
as Lender
By /s/ Dan Lee
------------------------------
Title: Vice President
Name Printed: Dan Lee
<PAGE>
63
By /s/ Daniel P. Hitchcock
------------------------------
Title: Associate
Name Printed: Daniel P. Hitchcock
1211 Avenue of the Americas
New York, NY 10036
Att.: Ramon J. Leon/Dan Lee
Facsimile: (212) 952-5955
Telephone: (212) 852-6195/6174
with a copy to:
Phil Greer
Facsimile: (212)7684659
Telephone: (212) 852-6113
LANDESBANK SCHLESWIG-HOLSTEIN
GIROZENTRALS,
as Lender
By /s/ Dr. U. Meyer-Reim
------------------------------
Title: Vice President
Name Printed: Dr. U. Meyer-Reim
By /s/ D. Junge
------------------------------
Title: Assistant Vice President
Name Printed: D. Junge
Martensdamm 6
24114 Kiel
Germany
Att.: Dr. Nikolai Ulrich
Facsimile: (011 49 431) 900-2751
Telephone: (011 49 431) 900-2166
ALLSTATE LIFE INSURANCE COMPANY,
as Leader
By /s/ Jerry D. Zinkula
------------------------------
Title: Authorized Signatory
Name Printed: Jerry D. Zinkula
By /s/ Patricia W. Wilson
------------------------------
Title: Authorized Signatore
Name Printed: Patricia W. Wilson
3075 Sanders Road
Northbrook, IL 60062-7127
Att.: Tom Napholz
Facsimile: (847) 402-3092
Telephone: (847) 402-7835
with a copy to:
<PAGE>
64
Mary Counley
Telecopy: (847) 326-5042
Telephone: (847) 402-7048
CITIBANK MEXICO S.A.,
as Lender
By /s/ Jose M. Urquiza
------------------------------
Title:
Name Printed: Jose M. Urquiza
Reforma 390
Piso 7
Col. Juarez
06695 Mexico, D.F.
Att.: Alejandra del Valle
Facsimile: (011 525) 533-6125
Telephone: (011 525) 229-7375
with a copy to:
Emilia Ponce
Facsimile: (011 525) 533-6125
Telephone: (0 11525) 229-7343
<PAGE>
65
KREDIETBANK S.A. LUXEMBOURGEOISE,
as Lender
By /s/ Vincent Penders
------------------------------
Title: 1er Fonde de Pouvoir
Name Printed: Vincent Penders
By /s/ Philippe van Dooren
------------------------------
Title: 1er Fonde de Pouvoir
Name Printed: Philippe van Dooren
43 Boulevard Royal
L-2955 Luxembourg
Att.: Maarten Van Mechelen
Facsimile: (011 352) 4797-73367
Telephone: (011 352) 4797-3939
with a copy to:
Guillaume De Groot-Herzog
Facsimile: (011 352) 4797-73138
Telephone: (011 352) 4797-3922
HAMBURGISCHE LANDESBANK
GIROZENTRALE
as Lender
By /s/ Peter Mattias
------------------------------
Title: Vice President
Name Printed: Peter Mattias
By /s/ Elke Hamann
------------------------------
Title: Vice President
Name Printed: Elke Hamann
Gerhart-Hauptrnann-Platz 50
20095 Hamburg
Germany
Att.: Dr. Ralf Deutsch
Facsimile: (011 49 40) 3333-1160
Telephone: (011 49 40) 3333-2795
with a copy to:
Peter Matthias
Facsimile: (011 49 40) 3333-3008
Telephone: (011 49 40) 3333-2869
<PAGE>
66
COOPERATIVE CENTPLALE RAIFFEISEN
BOERENLEENBANK B.A., "Rabobank
Nederland", NEW YORK BRANCH,
as Lender
By /s/ Hans F. Breukhoven
------------------------------
Title: Vice President
Name Printed: Hans F. Breukhoven
By /s/
------------------------------
Title:
Name Printed:
245 Park Avenue
New York, NY 10167
Att.: Ellen Tackling/Juan Calderon
Facsimile: (212) 993-0973/
(011 525) 261-0061
Telephone: (212) 916-7856/
(011 525) 261-0028
with a copy to:
Malacia Anderson
Facsimile: (201) 499-5326
Telephone: (201) 299-5321
ARGENTIARIA CAJA POSTAL Y BANCO
HIPOTECARIO S.A., NEW YORK BRANCH,
as Lender
By /s/ Augusto Godoy
------------------------------
Title: General Manager
Name Printed: Augusto Godoy
320 Park Avenue, 20th Floor
New York, New York 10022
Att.: Gerardo Torres/Nurys Maleki
Facsimile: (212) 832-0965/
(212) 755-4211/14
Telephone: (212) 605-9841
<PAGE>
FACILITY AGREEMENT
------------------
between
C.A. Embotelladora Caracas, C.A. Emotelladora Antimano, Hit
de Venezuela, S.A., Embotelladora Carabobo, S.A., C.A.
Embotelladora Lara, Embotelladora Aragua, S.A., Gaseosas
Orientales, S.A., Embotelladora Guarico, S.A., Embotelladora
La Perla, S.A., Embotelladora Caroni, S.A., Embotelladora
Maturin, S.A., Embotelladora Orinoco, S.A., Embotelladora
Guayana, S.A., C.A. Embotelladora Nacional, C.A.
Embotelladora Coro, C.A. Embotelladora Valera, Embotelladora
Barinas, S.A., C.A. Embotelladora Tachira
each as Borrower,
together as Borrowers
and
Hollandsche Bank-Unie N.V.
as Lender
Dated 22 January 1999
NAUTA DUTILH
Amsterdam
<PAGE>
2
This Facility Agreement (as from time to time amended and/or supplemented
hereafter: the "Agreement") is made the 22nd day of January 1999,
between
(1) C.A. Embotelladora Caracas, C.A. Embotelladora Antimano, Hit de
Venezuela, S.A., Embotelladora Carabobo, S.A., C.A. Embotelladora
Lara, Embotelladora Aragua, S.A., Gascosas Orientales, S.A.,
Embotelladora Guarico, S.A., Embotelladora La Perla, S.A.,
Embotelladora Caroni, S.A., Embotelladora Maturin, S.A.,
Embotelladora Orinoco, S.A., Embotelladora Guayana, S.A., C.A.
Embotelladora Nacional, C.A. Embotelladora Coro, C.A. Embotelladora
Valera, Embotelladora Barinas, S.A., C.A. Embotelladora Tachira, all
companies with limited liability duly organized and existing under
the laws of Venezuela, whose registered company seat is in Venezuela,
each as Borrowers, together as Borrowers (the "Borrower", the
"Borrowers") for the purposes of this Agreement all represented by
Panamco de Venezuela S.A. as their attorney-in-fact, a company with
limited liability duly organized and existing under the laws of
Venezuela, whose registered company seat is in Venezuela (the
"Agent");
and
(2) Hollandsche Bank-Unie N.V., a public company with limited liability
duly organized and existing under the laws of the Netherlands, whose
registered company seat is at Amsterdam, the Netherlands, for the
purposes of this Agreement acting through its branch in Rotterdam,
the Netherlands, as lender (the "Lender");
WHEREAS
(A) Upon the terms and subject to the conditions mentioned
hereinafter the Lender has agreed to provide the
Borrowers with a credit facility (the "Facility") for
the purpose of refinancing the existing USD
125,000,000.- (one hundred twenty five million US
Dollars) of debt of the Borrowers with Panamerican
Beverages, Inc., in the maximum amount of USD
125,000,000.-- (one hundred twenty five million US
Dollars) available to the Borrowers upon the terms and
conditions of this Agreement, and the Borrowers are
willing to accept this facility upon the same terms and
conditions;
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3
(B) In order to induce the Lender to provide the Borrowers
with the Facility, ABN AMRO Bank N.V., a public company
with limited liability, duly organized and existing
under the laws of the Netherlands, whose company seat
is at Amsterdam, the Netherlands, for the purposes of
the Guarantee and Indemnity acting through its office
at Rotterdam, the Netherlands, (the "Guarantor") has
entered into a guarantee and indemnity agreement with
the Lender dated 22 January 1999 (the "Guarantee and
Indemnity") pursuant to which the Guarantor shall
guarantee to the Lender the due and proper fulfilment
of the Borrowers' obligations under or in respect of
the Facility;
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Interpretation
1.1 All capitalized terms used herein shall, except where the context
otherwise requires, have the following meanings:
Agreement: This Facility Agreement as from time to
time amended and/or supplemented;
Annual Accounts: In relation to the Borrowers, the
Borrowers' audited consolidated balance
sheet in respect of a financial year of
the Borrowers as of the end of such
financial year and their profit and loss
account for the year then ended together
with the explanatory notes thereto in
accordance with the General Accepted
Accounting Principles of Venezuela
("VGAAP");
Availability Period: The period starting from the Closing
Date and ending on the Commitment
Termination Date;
Closing Date: 22 January 1999;
Committed Amount: The maximum aggregate
<PAGE>
4
principal amount of USD 125,000,000.--
(one hundred twenty five million US
Dollars) which is available to the
Borrowers under the facility;
Commitment Termination
Date: The earliest of: (i)3 (three) years
after the closing date, (ii) the date on
which the Loan shall be immediately due
and payable pursuant to Clause 13.1 or
Clause 13.2, or (iii) any other date on
which the Loan shall be immediately
due and payable, (iv) the date on which
a prepayment in full of the Loan has
been made in accordance with Clause 5;
Currency Restriction: Any directive or instruction of any
Governmental authority, monetary or
other competent body of any state
having jurisdiction over any actions
performed or to be performed under the
Agreement, or the interpretation or any
change therein, or the application of
such directive or instruction, which
would (a) lawfully prohibit the Lender
or the Borrowers from transferring the
Loan and/or any interest due or any
other payment under the Agreement out
of Venezuela, or (b) lawfully prohibit,
prevent or restrict, directly or
indirectly, the conversion or exchange
of the lawful currency of Venezuela
into foreign currency in Venezuela or
the transfer or payment of foreign
<PAGE>
5
currency out of Venezuela (including,
without limitation, by the imposition of
delays or discriminatory rates of
exchange, by adverse affecting the
operations of any means of payment or
by reducing liquidity within a financial
market or system); Drawdown: Any
drawing made or to be made under the
Facility by the Borrowers pursuant to
Clause 3; Event of Default: Any event
which is or may become (with the
passage of time and/or the giving of
notice and/or the making of any
determination) one of those events
specified in Clause 13;
Governmental Authority: (i) Any present or successor government
of Venezuela and any court, ministry or
other central or local governmental,
regulatory or administrative authority,
department, commission, bureau or
agency of Venezuela, including, without
limitation, the central bank or monetary
authority of Venezuela, in each case
which has de iure or de facto control in
all or in part of Venezuela; and
(ii) any supranational international
body or treaty organization of which
Venezuela may be a member from time to
time which issues laws which are
generally implemented or followed in
Venezuela or by
<PAGE>
6
which Venezuela is bound due to its
international obligations.
Interest Payment Date: The last day of each Interest Period;
Interest Period: In relation to a Drawdown, a period of
3 (three) months by reference to which
interest is to be calculated on the
amount of such Drawdown, provided that
if such period would end on a day which
is not a business day it shall be
extended to the next business day,
unless this day falls in the next
calendar month, in which case it shall
be shortened to end on the immediately
preceding business day and that no
Interest Period shall extend beyond the
Commitment Termination Date;
LIBOR: In relation to any period for which an
interest rate is to be determined
hereunder, (i) the interest rate,
expressed as a rate per annum, as
established by the British
Bankers Association as published on the
LIBO-page of the Reuters Monitor Money
Rate Service (or such other page as may
replace the USD page for the purpose
of displaying the London inter-bank
offered rates of leading reference
banks) at 11.00 a.m. London time on the
first day of that period as the London
inter-bank market for USD deposits for
a period similar to that of the period
concerned, or (ii)
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7
if no such offered rate appears on the
Reuters Monitor Money Rate service then
the rate per annum determined by the
Lender to be equal to the arithmetic
mean (rounded upwards, if not already
such a multiple, to the nearest whole
multiple of one-eights of one per cent)
of the rates at which it was offering
to prime banks in the London Inter Bank
Market for deposits in USD and for a
period similar to that of the period
concerned at or about 11.00 a.m. London
time on the relevant day;
Loan: The aggregate amount at any time
outstanding under the Facility;
Margin: 410 basis points per annum;
Repayment Date: The Commitment Termination Date;
Request for Drawdown: a request to draw down hereunder in the
form attached hereto as Schedule I;
USD or US Dollars: The lawful currency of the United States
of America.
1.2 Any reference in this Agreement to:
a "business day" shall be construed as a reference to a day (other
than a Saturday or a Sunday) on which banks are generally open for
business in Venezuela, Panama and the Netherlands;
"indebtedness" includes any obligation (whether incurred as principal
debtor, co-debtor, surety or otherwise) for the payment or repayment
of money, whether present or future, actual or contingent; the
<PAGE>
8
"Lender" shall be construed so as to include its and any successors,
transferees and assigns in accordance with their respective
interests;
a "person" includes any natural person, firm, corporation, business
trust, partnership, joint venture, association, trust, company,
unincorporated organisation, institution, government, state or
agency of a state or subdivision of a state or any association or
partnership (whether or not having separate legal personality) of
two or more of the foregoing, or any other entity;
"tax" includes any present or future tax, levy, impost, duty or
other charge of a similar nature (including, without limitation, any
penalty payable in connection with any failure to pay or any delay
in paying any of the same);
the "winding-up" of a legal person includes the amalgamation,
reconstruction, reorganisation, dissolution ("ontbinding"),
liquidation, merger (including statutory merger ("juridische
fusie")) or consolidation of that legal person, and any equivalent
or analogous procedure under the law of any jurisdiction in which
that legal person is incorporated, domiciled or resident or carries
on business or has assets.
1.3 The headings in this Agreement are inserted for convenience only.
Unless the context requires otherwise, terms defined in the plural
include the singular and vice versa. References to "Clauses" and
"Schedule" are to be construed as references to the clauses of and
schedule to this Agreement.
1.4 Save where the contrary is indicated, any reference in this
Agreement to:
(a) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented;
(b) a law shall be construed as a reference to such law as the same
may have been, or may from time to time be, amended or
re-enacted; and
<PAGE>
9
(c) a time of day shall, except as stated otherwise, be construed
as a reference to Amsterdam time.
2. The Facility
2.1 The Lender undertakes to lend to the Borrowers upon the terms and subject
to the conditions hereof the Committed Amount. Notwithstanding anything
herein to the contrary, the Lender shall not be under any obligation to
lend to the Borrowers any amount exceeding the Committed Amount at any
time.
2.2 The Facility shall be used by the Borrowers for refinancing the USD
125,000,000.- (one hundred twenty five million US Dollars) of debt of the
Borrowers with Panamerican Beverages, Inc.;
2.3 The Committed Amount will be available to the Borrowers to be drawn down
in USD.
2.4 After termination of this Agreement and as long as the Borrowers shall
not have paid to the Lender all amounts due under this Agreement, any and
all obligations of the Borrowers towards the Lender under this Agreement
shall remain in force.
2.5 Each Borrower is jointly and severally liable for the obligations of any
Borrower under or pursuant to this Agreement. Each Borrower hereby
unconditionally guarantees and promises to pay to the Lender the
obligations of any other Borrower under or pursuant to this Agreement.
3. Drawdown
3.1 Subject to the conditions set forth in this Agreement the Borrowers are
allowed to make one Drawdown, 2 (two) weeks after the Closing Date at the
latest.
3.2 When the Borrowers wish to make the Drawdown, they shall give 2 (two)
business days prior notice to the Lender specifying the proposed
Drawdown. Such notice shall state;
(a) the day on which the proposed Drawdown shall he made (which shall be
a business day);
(b) payment instructions thereto.
Such notice shall be irrevocable and the Borrowers shall be obliged to
draw in accordance with such
<PAGE>
10
notice. In case notice is given by telephone, the written confirmation by
the Lender shall be binding.
3.3 The Drawdown will be made on the proposed date for Drawdown, provided
that:
(a) the Lender has received a statement from the Guarantor, in form and
substance acceptable to the Lender, that the Drawdown is covered by
the Guarantee and Indemnity;
(b) no Event of Default as referred to in Clause 13 would occur as a
result of the Drawdown being made;
(c) no Event of Default as referred to in Clause 13 has occurred before
or on the proposed date for Drawdown;
(d) all representations and warranties made in Clause l0 will be correct
in all respects if repeated on the proposed date for Drawdown;
(e) all conditions precedent as referred to in Clause 4 have been met;
and
(f) the aggregate amount drawn down and outstanding under this Facility
will not exceed the Committed Amount.
3.4 If for any reason, excluding any default by the Lender, the proposed
Drawdown is not made hereunder after notice of borrowing therefor has
been given in accordance with Clause 3.2 hereof, the Borrowers will pay
to the Lender such amount as the Bank may certify as necessary to
compensate it for any direct losses or expenses on account of funds
acquired, contracted for or utilized in order to fund the Drawdown.
3.5 The Borrowers shall use monies granted to them under the Facility only
for the purpose defined in Clause 2.2 hereof. Without prejudice to the
foregoing and to the remaining provisions of this Agreement, the Lender
shall not be obliged to inquire as to the application by the Borrowers of
the monies made available to the Borrowers nor shall it be responsible
for such application or the consequences thereof.
3.6 Any payment to be made by the Lender pursuant to the Request for Drawdown
will be made to the account in the
<PAGE>
11
Agent who will represent the Borrowers before the Lender.
4. Conditions Precedent
4.1 The Facility will become available to the Borrowers subject to the
fulfilment to the satisfaction of the Lender of the following conditions
precedent:
(a) receipt by the Lender of each of the Borrowers' up-to-date
memorandum and articles of association or of their other constituent
documents;
(b) receipt by the Lender of a legal opinion issued by the external
counsel, acceptable to the Lender and the Borrowers on terms subject
to conditions acceptable to the Lender;
(c) receipt by the Lender of a tax opinion issued by reputable
Venezuelan tax advisors on terms subject to conditions acceptable by
the Lender;
(d) receipt by the Lender of the Guarantee and Indemnity to be issued by
the Guarantor, subject to the terms and conditions acceptable to the
Lender;
(e) receipt by the Lender of certified true copies of documents, or
other evidence satisfactory to the Lender, constituting or
evidencing any consents, authorisations, licences or approvals of,
or registrations, recordings and filings with any Governmental
Authority required in Venezuela for the execution, delivery, and/or
the performance of this Agreement or for the validity and
enforceability hereof;
(f) receipt by the Lender of a copy, certified as a true copy by the
Borrowers' board of directors, of all actions required to be taken
by Borrowers and their boards of directors approving the execution,
delivery and performance of this Agreement and the terms thereof and
authorising a person or persons to execute this Agreement, the
Request for Drawdown and other notices or documents required in
connection herewith;
(g) receipt by the Lender of evidence of authority and a specimen
signature of the named person or persons having executed (i) this
Agreement and
<PAGE>
12
(ii) the certificate referred to in provision (h)
below on behalf of the Borrowers;
(h) receipt; by the Lender of a certificate of each of the Borrowers
containing a list of names, titles and specimen signatures of the
persons authorised to act on behalf of the Borrowers and who shall
sign any of the documents pursuant to, or in connection with, this
Agreement on behalf of the Borrowers;
(i) the Lender shall have received any other documents which its counsel
may reasonably require;
(j) receipt by the Lender of the Indemnity and the Deposit and Pledge
Agreement, both to be issued by the Panamerican Beverages Inc., a
Panamanian company.
5. Prepayment
5.1 The Borrowers may, if they have given the Lender not less than 5 business
days' written prior notice to that effect, prepay the whole or any part
being an amount or a whole multiple of USD 1,000,000 without any penalty
or cost. Prepayment may only be made on an interest Payment Date for the
Drawdown.
5.2 Any notice of prepayment given by the Borrowers pursuant to Clause 5.1
shall specify this Interest Payment Date upon which such prepayment is to
be made and the amount of such prepayment and shall irrevocably oblige
the Borrower to make such prepayment on such date. Any such prepayment
shall be made together with accrued interest thereon.
5.3 Prepayment in accordance with the provisions of this Clause 5 shall not
cause a penalty or premium to become due by the Borrowers.
6. Interest and Interest Periods
6.1 The Borrowers shall pay the Lender interest on the Loan, which interest
shall be calculated by reference to each Interest Period and at a rate
equal to 3 months LIBOR in relation to the relevant Interest Period plus
the margin. The interest shall be payable in arrears on each Interest
Payment Date.
<PAGE>
13
6.2 The first Interest Period in respect of the Drawdown will commence on the
date on which such Drawdown is made.
6.3 Each subsequent Interest Period will commence forthwith upon the expiry
of the previous relative Interest Period and shall, subject as provided
herein, have a duration of 3 (three) months.
6.4 Interest shall be calculated on the basis of the actual number of days
elapsed and a 360 day year.
6.5 Any amount of interest which shall become due by the Borrowers shall bear
interest as from the day on which it becomes due.
7. Default Interest and Indemnity
If the Borrowers fail to pay any sum (whether of principal, interest,
fees or otherwise) due at any time under this Agreement on the due date
for payment thereof, the Borrowers shall (without prejudice to the right
of the Lender to obtain additional indemnification for all damages
suffered due to the Borrowers' failure and not covered by this Clause)
pay interest on the whole amount which is overdue from the due date
thereof up to and including the date of actual payment at the rate which
is 3 (three) months LIBOR plus the Margin plus 2% (two percent) per
annum. As far as the overdue principal of the Loan is concerned this
interest shall replace the applicable interest calculated in accordance
with Clause 6.1. hereof. For the purpose of calculating this interest
Clause 6.4 hereof shall apply.
8. Repayment
8.1 Subject to the terms of this Agreement, the Borrowers shall repay the
Loan in full on the Repayment Date.
8.2 On the Repayment Date, the Borrowers shall make the amount due available
by payment in USD and to such account and at such time as notified by the
Lender to the Agent.
8.3 All amounts paid by or on behalf of the Borrowers on the Commitment
Termination Date or such other date as provided in this Agreement shall
be applied in settlement of the following items in the following order:
<PAGE>
14
(a) charges, costs, expenses;
(b) compensation and indemnification provided for in this Agreement;
(c) fees;
(d) default interest;
(e) interest; and
(f) principal,
or such other order as the Lender determines and the Agent
may agree.
8.4 Any payment to be made by the Borrowers on a day which is not a business
day shall instead be due on the next business day unless this day falls
in the next calendar month, in which case the due date for payment of
such sum shall be the immediately preceding business-day.
8.5 All payments (whether of principal, interest, fees or otherwise) to be
made by the Borrowers to the Lender hereunder shall be made in full
without the Borrowers being entitled to any set-off or counterclaim and
shall be made free and clear of and without deduction or withholding for
or on account of any present or future income or other taxes, duties,
fees, deductions, withholdings, restrictions or conditions or any nature
whatsoever (other than taxes imposed on or measured by reference to,
income, which are imposed by the Netherlands on the Lender ("Income
Taxes")). However, if at any time any applicable law or regulation
requires any person to make any such deduction or withholding from any
payment under this Agreement then:
(i) the Borrowers will forthwith pay to the Lender, such additional
amounts as will result in the net receipt by the Lender (fee and
clear of any such deductions and withholdings) of the full amount
which it would have received had no such deduction or withholding
been required to be made; and
(ii) the Borrowers will upon demand from the Lender furnish to it (a) a
true copy of the receipt(s) certified by each of the relevant
Borrowers of the relevant taxation or other authorities involved for
all amounts deducted or withheld as aforesaid or (b) in the absence
of such receipt, a certificate of deduction or equivalent evidence
of the relevant deduction or withholding.
8.6 As soon as the Borrowers are aware that any such deduction, withholding
or payment is required (or of any change in any such requirement), they
shall
<PAGE>
15
(i) immediately notify the Lender and (ii) forward within 45 (forty five)
days after such deduction, withholding or payment is made, true copies
certified by each of the relevant Borrowers or the Agent of the official
receipts or other official documentation acceptable to the Lender
evidencing such deduction, withholding or payment.
9. Increased Costs
9.1 If the Lender determines that, as a result of (i) the introduction of or
any change in, or in the interpretation or application of, any law (which
shall for this purpose include, without limitation, any removal or
modification of any exemption currently in force in favor of the Lender
and any treaty at any time in force between Venezuela and the
Netherlands) or (ii) compliance by the Lender with any directive or
instruction of any central bank or other fiscal, monetary or other
authority or any agency of any state or government (including, without
limitation, a directive or instruction which affects the manner in which
the Lender allocates capital resources to its obligations under this
Agreement):
(a) the costs to the Lender of making, maintaining or funding all or any
part of the Facility (or the Drawdown) or any overdue sum is
increased; and/or
(b) the Lender becomes liable to make any payment (not being a payment
of tax on its overall net income) on, or calculated by reference to,
the amount of the Loan made by it hereunder and/or any sum (to be)
received by it hereunder; and/or
(c) the Lender forgoes any interest or other return on, or calculated by
reference to, the amount of any sum (to be) received by it under
this Agreement;
then the Borrowers shall indemnify the Lender on demand against those
increased costs, payment or forgone interest or other return and/or
liabilities and, accordingly, shall from time to time on demand (whenever
made) pay to the Lender such amount as is, in the Lender's reasonable
opinion, necessary to indemnify it.
9.2 Notwithstanding the provisions of Clause 9.1 above, if the Lender
determines that, as a result of the introduction of or any change in, or
in the
<PAGE>
16
interpretation or application of any applicable tax law or regulations
(other than changes in, or in the interpretation of, tax laws or
regulations regarding Income Taxes), including any applicable tax treaty
at any time in force between Venezuela and the Netherlands, its interests
as a lender hereunder are adversely affected, the Lender has the right to
reset the rate of the Margin and/or any fees payable hereunder to an
extent as it, in its reasonable opinion, believes is necessary to fully
compensate the Lender.
9.3 Clause 9.1 shall not apply to any increased costs referred to under 9.1
(a), (b) or (c) above arising in respect of the period ending on the day
falling 60 days after notification of the relevant increased costs is
given to the Borrowers.
9.4 Notwithstanding the provisions of Clause 5.1 of this Agreement, if an
increase of the Margin is implemented by the Lender due to the conditions
set forth on the preceding paragraph, the Borrowers shall have the
option, but not the obligation to prepay all or part of the outstanding
principal and accrued interest thereon at any time within 30 days of such
increase without any penalty or costs if such payment is made on an
Interest Payment date for the Drawdown and with payment of any reasonable
administration costs of the Lender if such payment is not made on an
Interest Payment Date.
10. Representations and warranties
10.1 Each of the Borrowers acknowledges that the Lender has entered into this
Agreement in full reliance on the following statements and represents and
warrants to the Lender that:
(a) Status: they are limited liability companies duly incorporated and
validly existing under the laws of Venezuela, are duly qualified to
do business in such other jurisdictions or nations where, because of
the nature of their activities or properties, such qualification is
required and have the power to carry on the business which they are
currently conducting and to own their properties and other assets;
(b) Authorization: all corporate or other action required to be taken by
such Borrower in order (a) to enable them lawfully to enter into,
exercise their rights and perform and comply with
<PAGE>
17
their obligations under this Agreement to which they are a
party, (b) to ensure that those obligations are valid,
legally binding and enforceable, and (c) to make this
Agreement admissible in evidence in the courts of Venezuela
have been taken;
(c) Obligations binding: the obligations expressed to be assumed by the
Borrowers in this Agreement are legal and valid obligations binding
on it and enforceable in accordance with the terms thereof, subject
to applicable bankruptcy, insolvency, reorganisation and similar
laws affecting creditors generally and all of the Borrowers'
indebtedness under this Agreement is and will at all times be
direct, unconditional and general indebtedness of the Borrowers and
ranks, and will at all times rank, at least pari passu in priority
of payment and in all other respects with all other unsecured and
unsubordinated indebtedness of the Borrowers except such priority of
payments as may be determined by operation of law;
(d) Non-violation of laws and other agreements: the execution of this
Agreement and any other document executed or to be executed
hereunder by the Borrowers and the performance of obligations
hereunder and thereunder and compliance with the provisions hereof
and thereof do not and will not (i) contravene any applicable law or
other regulation or any judgment or authorisations, approvals,
licences or consents to which the Borrowers are subject or the
Borrowers' constitutive documents, or (ii) conflict with, or result
in any breach of any of the terms of, or constitute a default under,
any agreement or other instrument to which the Borrowers are a party
or are subject or by which they or any of their assets are bound
except for contraventions, conflicts or actions which result in a
default or breach that will not have a material adverse effect on
any of the Borrowers' abilities to perform their obligations under
this Agreement;
(e) No immunity from jurisdiction: none of the assets, if any, of the
Borrowers has any right of 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
<PAGE>
18
otherwise) in respect of their obligations under this Agreement in
Venezuela;
(f) Official consents: all consents, licenses, approvals and
authorisations of and all registrations, recordings or filings with
any governmental agency or other instrumentality or official of or
in Venezuela, required in Venezuela with respect to the execution,
delivery, performance, validity and/or enforceability of this
Agreement against the Borrowers in Venezuela have been obtained or,
as the case may be, made on or prior to the date of execution hereof
and are in full force and effect as of the day of execution of this
Agreement except for any consents, licenses, approvals and
authorisations of and all registrations, recordings or filings with
any governmental agency or other instrumentality or official of or
in Venezuela which if not obtained or made would effect any of the
Borrowers abilities to perform their obligations under this
Agreement;
(g) Authorised persons: the person(s) executing and delivering this
Agreement (and whose name(s) and specimen signature(s) have been
submitted to the Lender in accordance with Clause 4(g)) is and shall
be (are respectively) fully authorised to execute the same for and
on behalf of the Borrowers and any single one of the officers of the
Borrowers shown in the certificate issued on behalf of the Borrowers
in accordance with Clause 4(h) and in each updated version thereof
issued on behalf of the Borrowers is authorised as indicated in said
certificate to sign all notices, communications and certificates in
connection with this Agreement;
(h) No Event of Default: no Event of Default has occurred and is
continuing or will occur as a result of the Drawdown made hereunder
nor has any event occurred, which with the giving of notice and/or
lapse of time would constitute an Event of Default;
(i) No cross default: none of the Borrowers are in breach of or in
default under any agreement to an extent or in a manner which has or
which could have a material adverse effect on it or on its ability
to perform its obligations under this Agreement;
<PAGE>
19
(j) Accounts: to the extent applicable, the Annual Accounts of the last
financial year,
(i) have been prepared in accordance with the VGAAP with respect to the
preparation of annual accounts, consistently applied;
(ii) give a true and fair view of the assets and liabilities and of the
net worth, the financial position and results of any of the
Borrowers at the date and for the period indicated;
(k) No Material Adverse Change: since their most recent financial stalements
which ended on December 31, 1997 there has been no material adverse
change in the business or financial condition of any of the Borrowers;
(l) True, complete and accurate information: all the information supplied by
any of the Borrowers to the Lender in connection herewith is true,
complete and accurate in all material respects and none of the Borrowers
are aware of any material facts or circumstances that have not been
disclosed to the Lender which might if disclosed adversely affect the
decision of the Lender to enter into this Agreement on the terms set out
herein;
(m) Litigation: no litigation, arbitration or administrative proceeding has
been instituted or is pending, or, to the best of the Borrowers' belief,
threatened which might have a material adverse effect on them or its
ability to perform its obligations under this Agreement or which
questions the legality, validity, or binding effect of any provision
hereof;
(n) Winding up: none of the Borrowers have taken any corporate action nor
have any steps been taken or legal proceedings been instituted or
threatened against them for its winding-up;
(o) Accord: none of the Borrowers are involved in negotiations with any one
or more of their creditors in relation to readjustment or rescheduling of
their indebtedness or a general assignment for the benefit of their
creditors;
(p) (In)solvency: none of the Borrowers have taken any corporate action nor
have any steps been taken or legal proceedings been instituted or
threatened against them for their entering into a suspension of payments
or for
<PAGE>
20
bankruptcy or for the appointment of a receiver or similar officer of
them or of any or all of their assets;
10.2 Repetition: Each of the representations set out in Clause 10.1 shall be
deemed to be repeated (1) on the date on which the Request for Drawdown
is made and (ii) the first day of each Interest Period, always updated
with respect to the circumstances then subsisting.
11. Covenants
11.1 Each of the Borrowers undertakes that, with effect from the date of this
Agreement until all their liabilities under this Agreement have been
discharged, it shall;
(a) Approvals: obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by all applicable
laws to enable any of the Borrowers to lawfully perform the
obligations expressed to be assumed by them hereunder and to ensure
the legality, validity, enforceability and admissibility in evidence
hereof and thereof pursuant to such laws;
(b) Insurance: maintain insurance policies on and in relation to their
business and assets with reputable insurance companies against such
risks and to the extent usual for companies carrying an a business
such as that carried on by any of the Borrowers and promptly pay all
premiums in respect thereof and deliver to the Lender at their
request copies of all such policies, provided that, if for any
reason any insurance premium has not been paid when due the relevant
Borrower shall have 30 days to pay the full amount due;
(c) Taxes: comply in all respects with all taxation laws in all
jurisdictions in which they are subject to taxation and duly pay all
the taxes due and payable by them except that, to the extent
permitted by applicable law, none of the Borrowers need not pay any
such taxes the payment of which is being contested in good faith and
by proper proceedings, the pending of which operates to prevent the
collection of the same and operates to prevent any realisation in
respect thereof on any property of any of the Borrowers, and against
<PAGE>
21
which any of the Borrowers are maintaining adequate reserves;
(d) Books and records: maintain their corporate books and records and
their accounting books, records and reports relating to their
business and financial condition in good order and as required by
applicable laws;
(e) Corporate existence: preserve and maintain their corporate existence
and not sell, lease or otherwise dispose of its assets other than in
the ordinary course of business or in a way that would have a
material adverse effect on its corporate existence and operations;
(f) Conduct of business: comply with present and future laws, rules,
orders, regulations or requirements (including requirements in the
field of environmental laws and regulations) of any governmental or
other authority applicable to them or their properties and keep all
their properties in their business in good working order and
condition, and maintain all their rights, privileges and franchises
that are necessary or desirable for the orderly and efficient
conduct of their business, and shall conduct their business in an
orderly, efficient and regular manner, except for such
non-compliance which does not have a material adverse effect on the
Borrowers' ability to perform their obligations under this
Agreement;
(g) Further assurances: do all such things and sign or procure the
signing of all such documents as are in the reasonable opinion of
the Lender necessary or desirable to ensure that the Lender obtains
the full benefit of their rights and benefits hereunder.
11.2 Each of the Borrowers undertakes that, from the date of this
Agreement until all their liabilities under this Agreement have been
discharged, they shall not without the consent of the Lender (which
shall not be unreasonably withheld) change the nature of its business
(whether by disposal, acquisition or otherwise.
<PAGE>
22
12. Information
12.1 Each of the Borrowers undertakes that, from the date of this Agreement
until all liabilities under this Agreement have been discharged, it
shall:
(a) as soon as the same become available, but in any event within 180
days after the end of each of their financial years, deliver to the
Lender copies of their Annual Accounts for such financial year,
audited by Arthur Andersen or other independent public accountants
reasonably acceptable to the Lender;
(b) furnish the Lender with such information, documents and records
about the business, financial condition, operations and prospects of
themselves as the Lender may from time to time require;
(c) forthwith notify the Lender of any litigation, arbitral or
administrative proceeding commenced against them which could
reasonably be expected to have a material adverse effect on them or
their ability to perform the obligations under this Agreement;
(d) forthwith inform the Lender of any occurrence (including, without
limitation, any third party claim or liability) of which they become
aware which could have a material adverse effect on them or their
ability to perform their obligations under this Agreement;
(e) forthwith inform the Lender of any occurrence of an Event of
Default.
13. Events of Default
13.1 Upon the occurrence of any of the following events:
(a) Non payment: any Borrower shall fail for whatever reason to pay (i)
any principal, or any interest on the Loan, when due in accordance
with this Agreement, or (ii) in the case of fees or other amounts
due in accordance with this Agreement, within 5 days of the due date
thereof;
(b) Breach of warranty: any representation or warranty made by the
Borrowers under or in connection with this Agreement shall prove to
have
<PAGE>
23
been incorrect and/or misleading in any material respect when made
or deemed made; or
(c) Breach of other obligations: any Borrower shall fail to perform any
other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if such failure shall remain
unremedied for 30 days after such Borrower has knowledge thereof or
written notice thereof shall have been given to such Borrower by the
Bank;
(d) Cross default: any Borrower (x) shall fail to pay any principal of,
premium or interest on any other amount payable in respect of any
debt that is outstanding in an aggregate principal or notional
amount of at least USD 20,000,000 (or the equivalent in any other
currency) (but excluding debt outstanding hereunder) of such
Borrower, when the same becomes due and payable (whether by schedule
maturity, required prepayment, acceleration, demand or otherwise)
and such failure continues after the applicable grace period if any,
specified in the agreement or instrument relating to such debt; or
(y) any other event shall occur or condition shall exist under any
agreement or instrument relation to any such debt, if the effect of
such event or condition is to accelerate the maturity of such debt
or otherwise to cause, or to permit the holder thereof to cause,
such debt to mature; or (z) any such debt shall be declared to be
due and payable or required to be prepaid or redeemed or by any
other reason (other than by a regularly schedule required prepayment
or redemption) purchased or defeased, or an offer to prepay, redeem,
purchase or defease such debt shall be required to be made in each
case prior to the stated maturity thereof; or
(e) Insolvency, Winding up etc.: any Borrower shall generally not pay
its debts as such debts become due, or shall (x) admit in writing
its inability to pay its debts generally, or shall make general
assignment for the benefit of creditors, or any proceedings shall be
instituted by or against any Borrower seeking to adjudicate it as a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
<PAGE>
24
insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial
part of its property and, in respect of an involuntary proceeding
instituted against such Borrower, the same shall remain unstayed or
undismissed for 60 days or any Borrower with principal outstanding
on the Drawdown shall take any corporate action to authorize any of
the actions set forth above in this clause; or
(f) Judgments: any judgment or order for the payment of money in excess
of USD 20,000,000 (or the equivalent in another currency) which is
not covered by insurance, shall be rendered against any Borrower and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be a period
of 60 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g) Consolidation, Merger, Sale of Assets, Etc.: Any of the Borrowers
will, in any single transaction or through a series of transactions,
consolidate, amalgamate or combine with or merge with or into or
directly or indirectly, sell, assign, convey, lease, transfer or
otherwise dispose of all or substantially all of its properties and
assets to any person different from the Borrowers;
(h) Change of Control: Panamerican Beverages Inc. ceases to be the
indirect 100% shareholder in any of the Borrowers; or
(i) Attachment: the whole or a substantial part of any of the Borrowers'
assets is taken in execution or seized by way of security or the
whole or a substantial part of any of the Borrowers' properties is
sold, encumbered, expropriated, confiscated, lost or damaged without
the Lender's prior consent, and such seizure, sale, encumbrance,
expropriation, confiscation, loss or damage has a material adverse
effect on the operator; or
(j) Material Adverse Change: any circumstances arise which, in the
reasonable opinion of the Lender,
<PAGE>
25
give reasonable grounds for belief that any of the Borrowers may
default under paragraph (a); or
(k) Third party guarantees: any circumstances mentioned in paragraphs
(a) through (j) occur in respect of a third party who has provided
the Lender, directly or indirectly, with any type of security for
the Loan, or that party cancels or withdraws that type of security,
or a third party that has provided or promised to provide the
Lender, directly or indirectly, with security for the Loan defaults
in the performance of any obligations; in respect of the security
provided or promised; or
(l) Other circumstances: any circumstance or event whatsoever, including
but not limited to any law, rule, regulation, order, decree or other
measure or action of a Governmental Authority, arises which affects
the legality, validity or enforceability of any obligation of, or
payment by, the Borrowers hereunder, or the ability, power or
authorisation of the Borrowers perform such obligations or make such
payments, whether or not the Borrowers have caused such event or
circumstance, or such event or circumstance is attributable to (in
Dutch: "toerekenbaar aan") the Borrowers, provided that in the event
of a Currency Restriction, no Event of Default shall have deemed to
occur if the Borrowers are able to duly and punctually perform all
obligations under this Agreement;
then:
the Lender may by notice to the Borrowers cancel the Committed Amount,
whereupon the same shall be reduced to zero and/or declare the Loan, the
aggregate amount of interest calculated pursuant to Clause 6, all fees
and any other sum then outstanding under this Agreement immediately due
and payable, whereupon they shall become so due and payable.
13.2 If at any time the Lender determines, in his reasonable opinion, that it
is or will become unlawful or contrary to any directive or instruction of
any central bank or any agency of any state, or contrary to the
interpretation or application of such directive or instruction, for it to
make, fund or allow to remain outstanding all or any part of the Loan or
to perform
<PAGE>
26
its obligations hereunder or for any of the Borrowers to perform its
obligations hereunder, then:
(a) the Lender shall not thereafter be obliged to perform its
obligations under this Agreement and the Committed Amount shall be
reduced to zero; and
(b) the Borrowers shall pay to the Lender on demand the Loan together
with the aggregate amount of interest calculated in accordance with
Clause 6, costs thereon and any and all other sums due hereunder. If
any (part of) such payment is made on a date which is not a
Repayment Date, the Borrowers shall pay to the Lender, at its
request, such amount or amounts as is/are, in the Lender's opinion,
necessary to compensate it for any loss or premium or penalty
incurred by it in respect of funds borrowed by it for the purpose of
maintaining the Loan.
13.3 Promptly upon receipt of notice from the Lender that the Committed Amount
has been or will be reduced in connection with any applicable legal
limit, the Borrowers will within a term reasonably determined by the
Lender, taking into account the interests of the Borrowers, repay to the
Lender the excess, if any, at such time of the Loan over the reduced
Committed Amount, together with any interest accrued but not paid over
such excess up to and including the date of payment.
14. Fees, Costs and Expenses
14.1 The Borrowers agree to pay to the Lender the following fees:
The Borrowers shall reimburse and/or indemnify all legal and, if
necessary, fiscal fees and out-of-pocket expenses (including VAT with
respect to which the Lender is not otherwise entitled to reimbursement
and other taxes) incurred by the Lenders and/or the Guarantor in the
negotiation, preparation, execution, documentation, and Closing Date
within 5 (five) business days after the date of signing of this
Agreement. These expenses also include expenses made in connection with
the protection of the Lender's and/or the Guarantor's rights, or in suing
for, or recovering any sum due to the Lenders and/or the Guarantor under
the Facility Agreement or any opinion or document contemplated hereby;
<PAGE>
27
14.2 Whether or not this Agreement is completed or actually signed or any
payment is made by the Lender to the Borrowers under this Agreement, the
Borrowers shall pay:
(a) on demand, all costs and expenses (including, but not limited to,
legal and accounting fees) incurred by the Lender in connection with
the preparation or negotiation of or entry into this Agreement
and/or any amendment of, supplement to or waiver in respect of, this
Agreement or the Guarantee and Indemnity;
(b) on demand, all costs and expenses (including, but not limited to,
legal and accounting fees) incurred by the Lender in protecting or
enforcing any rights under this Agreement and/or any such amendment,
supplement or waiver; and
(c) promptly, and in any event before any interest or penalty becomes
payable, any stamp, documentary, registration or similar duty or tax
payable in connection with the entry into, performance, enforcement
or admissibility in evidence of this Agreement and/or any such
amendment, supplement or waiver, and shall indemnify the Lender
against any liability with respect to or resulting from any delay in
paying or omission to pay any such duty or tax.
15. Remedies, waivers and amendments
15.1 No failure to exercise, nor any delay in exercising on the part of the
Lender, any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise thereof or the exercise of any other right
or remedy. The rights and remedies provided for herein are cumulative and
not exclusive of any rights or remedies provided by law.
15.2 Any provision of this Agreement may be amended or supplemented only if
the Borrowers and the Lender so agree in writing.
16. Set-Off and waiver of suspension
16.1 The rights of the Lender under this Clause are in addition to other
rights and remedies which the Lender may have.
<PAGE>
28
16.2 The Borrowers hereby waive the right to suspend their performance of
this Agreement for example by invoking any rule of law giving the
Borrowers the right to suspend their performance (opschortingarecht)
such as provided by articles 6:37, 6:52 up to and including 6:57 and
6:262 up to and including 6:264 of the Dutch Civil Code.
17. Assignment
17.1 The Borrowers may not assign part or all of their rights hereunder
without the prior written consent of the Lender.
17.2 The Lender may assign part or all of its rights hereunder without the
consent of the Borrowers being required but will provide them with prior
notice of any assignment. In the case of such an assignment by the
Lender, the Borrowers undertakes to execute all documentation necessary
to expeditiously effect the assignment to the prospectus assignee.
17.3 The Lender may disclose to a potential assignee, or to any person who may
otherwise enter into contractual relations with the Lender in relation to
this Agreement and/or the Guarantee and Indemnity, such information about
the Borrowers as the Lender may reasonably think fit.
18. Partial Invalidity
The illegality, invalidity or unenforceability of any provision of this
Agreement or any part thereof under the law of any jurisdiction shall not
affect its legality, validity or enforceability of any other provision.
Any illegal, invalid or unenforceable provision shall have the effect of
a provision that would be valid, the purpose of which conforms to the
first mentioned provision to such an extent that it must be assumed that
such provision would jurisdiction nor the legality, valid have been
included in this Agreement if the first mentioned provision had been
omitted in view of its illegality, invalidity or unenforceability.
19. Notices
19.1 Unless otherwise specifically provided herein, any notice or other
communication under or in connection with this Agreement shall be in
writing and may be sent by facsimile, by courier or by post and shall be
deemed
<PAGE>
29
to have been received upon delivery when sent by courier service, three
days after despatch when sent by post or upon confirmation of receipt by
the addressee when sent by facsimile.
19.2 A notice by facsimile will be subsequently confirmed promptly in writing.
19.3 For the purposes hereof, the addresses of the Lender and the Borrowers
(until notice of a change thereof is delivered as provided in this
Clause) shall be as specified below:
(a) To the Lender:
Hollandsche Bank-Unie N.V.
Regional Office Rotterdam
Special Products Department
Coolsingel 104 3011 AG ROTTERDAM
The Netherlands
Telefax:
Attn.
(b) To the Borrowers:
Panamco de Venezuela S.A.
4 Transversal, Los Cortijos
de Lourdes, Caracas
Venezuela
Telefax: 582 2036169
Attn.: Chief Financial Officer
With a copy to:
Panamerican Beverages, Inc.
Blvd. Manuel Avila Camacho. No 40. Piso 22
Lomas de Chapultepec
Mexico D.F., Mexico 11000
Telefax: 525 201 6337.
Attn: Chief Financial Officer
20. Counterparts
This Agreement may be signed in any number of counterparts, and by the
parties hereto on separate counterparts, each of which, when so executed,
shall be an original, but all of which taken together shall constitute
one and the same instrument.
21. General Terms and Conditions
The General Terms and Conditions of the Lender, of which the Borrowers
hereby acknowledge to have received
<PAGE>
30
a copy, are applicable between the Lender and the Borrowers. In case of a
conflict between those terms and this Agreement, the provisions of this
Agreement will prevail.
22. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the Netherlands.
23. Jurisdiction
23.1 Each of the parties hereto irrevocably agrees that all disputes arising
out of this Agreement shall be submitted to the competent court of
Amsterdam.
23.2 The submission to the jurisdiction of the court referred to in Clause
23.1 shall not (and shall not be construed so as to) limit the right of
the Lender to institute proceedings against the Borrowers in any other
court of competent jurisdiction nor shall the instituting of proceedings
by the Lender in any one or more jurisdictions preclude the instituting
of proceedings by the Lender in any other jurisdiction, whether
concurrently or not.
<PAGE>
32
24. Language
All correspondence relating to this Agreement shall be made and executed
in the English language.
IN WITNESS WHEREOF the parties hereto have executed this Agreement with effect
as of 22 January 1999.
/s/ Carlos Hernandez-Artigas /s/ J. J. Kole
- ---------------------------- ---------------
Panamco de Venezuela S.A. Hollandsche Bank-Unie N.V.
On behalf of the Borrowers
Name: Carlos Hernandez-Artigas Name: J. J. Kole
Title: Alternate Director Title: Account Manager
/s/ P. P. Boule
---------------
Name: P. P. Boule
Title: Proxy
<PAGE>
DEPOSIT AND PLEDGE AGREEMENT
This Document and Pledge Agreement is made the 22nd day of January 1999 between:
PANAMERICAN BEVERAGES INC., a company with limited liability, duly organised and
existing under the laws of Panama, whose registered company seat is at Panama
City (the "Depositor"),
and
HOLLANDSCHE BANK - UNIE N.V., a public company with limited liability, duly
organised and existing under the laws of the Netherlands, whose registered
company seat is at Amsterdam, the Netherlands, for the purposes of this
Agreement acting through its office at Rotterdam, Netherlands ("HBU"/the
"Lender"),
and
ABN AMRO BANK N.V., a public company with limited liability duly organised and
existing under the laws of the Netherlands, whose registered company seat is at
Amsterdam, the Netherlands, for the purposes of this agreement acting through
its office at Amsterdam, the Netherlands ("ABN AMRO")
WHEREAS:
(A) On 22 January 1999, HBU, as Lender, has entered into an agreement
providing for a credit facility for the purpose of refinancing of the
USD 125,000,000.-- facility of the Borrowers with Panamerican
Beverages, Inc., in an amount up to USD
<PAGE>
2
125,000,000.-- (ONE HUNDRED TWENTY-FIVE MILLION US DOLLARS) (THE
"FACILITY") C.A. EMBOTELLADORA CARACAS, C.A. EMBOTELLADORA ANTIMANO,
HIT DE VENEZUELA, S.A., EMBOTELLADORA CARABOBO, S.A., C.A.
EMBOTELLADORA LARA, EMBOTELLADORA ARAGUA, S.A., GASEOSAS ORIENTALES,
S.A., EMBOTELLADORA GUARICO, S.A., EMBOTELLADORA LA PERLA, S.A.,
EMBOTELLADORA CARONI, S.A., EMBOTELLADORA MATURIN, S.A., EMBOTELLADORA
ORINOCO, S.A., EMBOTELLADORA GUAYANA, S.A., C.A. EMBOTELLADORA
NACIONAL, C.A. EMBOTELLADORA CORO, C.A. EMBOTELLADORA VALERA,
EMBOTELLADORA BARINAS, S.A., C.A. EMBOTELLADORA TACHIRA, all companies
with limited liability, duly organised and existing under the laws of
Venezuela, whose registered company seats are at Venezuela (each a
"Borrower", together the "Borrowers"), for the purposes of the Facility
Agreement all represented by Panamco de Venezuela S.A. as their
attorney-in-fact, a company with limited liability, duly organised and
existing under the laws of Venezuela, whose registered company seat is
at Venezuela, as may be amended from time to time (the "Facility
Agreement");
(B) In order to induce the Lender to provide the Facility to the
Borrowers, ABN AMRO, as Guarantor, has entered into a guarantee and
indemnity agreement with the Lender dated 22 January 1999 (the
"Guarantee and Indemnity") pursuant to which ABN AMRO has inter alia
guaranteed to the Lender the due, proper and punctual fulfilment by
the Borrower of its obligations under or in respect of the Facility
Agreement;
(C) In order to induce ABN AMRO to enter into the Guarantee and Indemnity,
the Depositor on 22 January 1999, has agreed to indemnify ABN AMRO
from and against all costs, liabilities, taxes and losses which ABN
AMRO might incur as a result of a demand under the Guarantee and
Indemnity (the "Indemnity");
<PAGE>
3
(D) The Depositor, HBU and ABN AMRO have further agreed that the Depositor
shall place one or more deposits with HBU and pledge such deposits to
ABN AMRO as a security for the due and proper fulfilment of the
Depositor's obligations under the Indemnity and/or this Agreement;
(E) In anticipation of the execution of the Facility Agreement, the
Guarantee and Indemnity, the Indemnity and this Agreement and upon
request of the Depositor on 22 January 1999 the Deposit Account has
been credited with a Deposit up to USD 125,000,000.-- (one hundred
twenty-five million US Dollars) and the Lender has made available to
the Borrower a Drawdown in the equivalent amount;
(F) HBU, ABN AMRO and the Depositor wish to record the terms and
conditions of such deposits and the pledge thereof as set forth
herein;
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
Capitalised terms used herein (including in the recitals hereof) and
not otherwise defined have the meanings set forth in the Facility
Agreement. In addition, the following terms have the following
meanings:
Agreement:
This Deposit and Pledge Agreement:
Deposit:
Any deposit made (or, as the case may be, to be made) pursuant to
Clause 2 hereof;
Deposit Account:
The account specified in Clause 2.1 hereof;
<PAGE>
4
Deposit Balance:
As at any date, the aggregate credit balance on the Deposit Accounts;
Deposit Claims:
All of the Depositor's claims (in Dutch: "vorderingsrechten") and
other transferable rights existing now and in the future against HBU
with respect to and on account of the Deposit Accounts;
Deposit and Pledge Agreement:
This Deposit and Pledge Agreement;
Deposit and Pledge Form:
A form substantially in the form of Schedule 1 hereto;
Guarantee Fee:
400 basis points per annum:
Interest Period:
In relation to any Deposit, a period by reference to which interest is
to be calculated on such Deposit;
Secured Liabilities:
Any and all liabilities and moneys, whether actual or contingent,
which are now or may at any time hereafter be due, owing or payable
from or by the Depositor to HBU resulting from or in connection with
the Indemnity and/or this Agreement.
<PAGE>
5
2. The Deposit
2.1 Deposit Account
---------------
HBU has agreed to open and maintain an account in the name of the
Depositor, the particulars of which are as follows:
Account Name: Panamerican Beverages Inc, Panama
Account Number: 53.03.88.383
provided that the Depositor in respect of such account has complied, or
shall comply upon first request of HBU with the usual procedures of HBU
with respect to the opening of a bank account in the Netherlands.
2.2 Deposit Amount
--------------
During the term of the Facility Agreement, the Depositor undertakes to
place with HBU, net of any withholding or other taxes, costs and
expenses, Deposits with HBU in USD in an amount of at least 100% of
the equivalent of the Facility. Prior to each Drawdown to be made by
he Borrowers under the Facility the Depositor shall place a Deposit
in an amount of at least 100% of the equivalent of the proposed
Drawdown on the same date, but not later than 10:00 a.m. New York time
on such date and, for the same period as the proposed Drawdown.
2.3 The Deposit shall be placed by the Depositor provided that before the
proposed date of the Deposit, HBU has received a Deposit and Pledge
Form from and duly completed and signed by the Depositor, receipt of
which shall further oblige the Depositor to make the Deposit on the
date stated therein and upon the terms and conditions set forth
therein, both as stipulated by HBU in Clause 2.2 above. Upon the
deposit of the Deposit with HBU in accordance with this Clause 2, the
Deposit shall be credited to the Deposit Account.
<PAGE>
6
2.4 HBU shall only give a statement as referred to in article 3.3(a) of
the Facility Agreement if the Deposit Account has been credited in
accordance with article 2.3 hereof with an amount equal to the
proposed Drawdown and after receipt of the Relevant Deposit and Pledge
Form duly signed and delivered by the Depositor.
3. RESTRICTIVE CONDITIONS
The Depositor expressly acknowledges and agrees with HBU that it shall
have no right to withdraw the Deposit Balance or any portion thereof
or obtain repayment thereof or of any portion thereof except as
expressly provided in this Agreement, and shall at all times maintain
the Deposit Balance with HBU and not take, nor permit to be taken, any
action to withdraw or set off the Deposit Balance or any portion
thereof or otherwise seek repayment thereof or any portion thereof,
except as expressly provided in this Agreement. The Depositor will not
pledge, assign, encumber, transfer or otherwise dispose of any of its
right, title and interest in and to the Deposit Balance or this
Agreement, except as expressly provided herein. Further, the Depositor
shall not permit any limited right (in Dutch "beperkt recht"),
encumbrance, attachment or other lien to exist on the Deposit Balance
or this Agreement, except with the prior written consent of HBU other
than the right of pledge created in this Agreement, and in the event
any such lien shall arise, the Depositor shall promptly cause the same
to be removed, discharged or otherwise bonded to HBU's satisfaction
and shall indemnify HBU on demand against any loss, liability or
expense any of them may incur by reason thereof.
4. INTEREST AND FEE
4.1. HBU shall pay to the Depositor interest on each Deposit on the last day
of each Interest Period relating to such Deposit. The rate of interest
applicable during each
<PAGE>
7
Interest Period relating to such Deposit shall be 3 months LIBOR plus
the Guarantee Fee for the relevant Interest Period.
4.2. INTEREST PERIOD
---------------
In respect of each Deposit, the corresponding Interest Period shall
commence on the date when such Deposit is made and shall have a
duration equal to the Interest Period of the Drawdown under the
Facility Agreement and each subsequent Interest Period in relation to
such Deposit shall commence on the first day of and have a duration
equal to the Drawdown under the Facility Agreement, provided that no
Interest Period shall extend, and no interest shall accrue, after the
Commitment Termination Date.
4.3. Interest shall be calculated on the basis of the actual number of
days elapsed in a 360 day year and shall be payable at the end of each
Interest Period.
4.4 Payment of interest calculated in accordance with Section 4.1 shall
be made to the Deposit Account.
5. Repayment, Prepayment
5.1. Repayments
----------
Notwithstanding anything to the contrary contained in this Agreement,
until the discharge in full of all Secured Liabilities, the Depositor
shall not be entitled to demand and HBU shall not be obliged to (re)pay
the Deposit Balance or any portion thereof, except that the Depositor
may, by two Business Days' prior written notice to HBU, require the
repayment of the amount, if any, by which the Deposit Balance at any
time exceeds the aggregate amount of the Loan and other amounts due
under the Facility Agreement.
<PAGE>
8
5.2. Prepayment
----------
HBU will have the right, exercisable at its sole discretion and based
on the full repayment of the Facility, to repay the Deposit Balance or
any part thereof at the last day of an Interest Period.
6. Payments
6.1 Payment Instructions
--------------------
Subject as otherwise provided in this Agreement, any provisions to be
made by HBU to the Depositor under this Agreement shall be made in
accordance with the written instructions of the Depositor.
6.2 Currency
--------
Any payment in respect of a Deposit made hereunder shall be made
effectively in the currency of such Deposit.
6.3. Business Day Convention
-----------------------
If any payment hereunder is required to be made on a day which is not a
Business Day, such payment shall be due on the next succeeding Business
Day unless such Business Day falls in the next calendar month, in which
case the due date for payment shall be the immediately preceding
Business Day, and any interest amount payable shall be adjusted
accordingly.
7. Taxes, Legality and Changes in Laws
7.1. Withholding Taxes
-----------------
If any deduction or withholding of tax is required by law to be made
from any payment to be made by HBU to the Depositor under this
Agreement, HBU shall pay
<PAGE>
9
the full amount of the deduction or withholding tax to the relevant
taxation or other authorities and notify the Depositor of the amount
so deducted or withheld.
7.2. Indemnify
---------
The Depositor shall indemnify HBU against all costs and expenses,
including taxes, that HBU may incur as a result of a failure to deduct
or withhold any taxes as required by law.
7.3. Legality
--------
Notwithstanding anything herein to the contrary, HBU shall not be
obliged to pay or repay the Depositor if and to the extent and for so
long as such payment or repayment is blocked or suspended by reason of
any law, judicial order or injunction or other legal proceedings
obtained or commenced by any person other than HBU, binding HBU, and
may pay or repay the Deposit Balance as directed by any such law,
order, injunction or proceedings and shall not be liable to the
Depositor for so doing, provided always that HBU shall give notice of
such law, order, injunction, or proceedings to the Depositor and shall,
subject to the Depositor indemnifying HBU against its costs in
connection therewith, take such action legally available to it and
acceptable to HBU as the Depositor may reasonably require in connection
with such blocking, suspension, order, injunction or proceedings.
7.4. Change in laws
--------------
Notwithstanding anything to the contrary herein, if HBU determines
that, as a result of the introduction of or any change in, or in the
interpretation or application of any applicable laws or regulations,
including any tax laws and including any applicable treaty or tax
treaty (other than taxes imposed on or measured by references to,
income, which are imposed by the Netherlands on the Lender) at any time
in force
<PAGE>
10
between Venezuela and the Netherlands or any requirement of any bank,
central bank or other fiscal, monetary or other authority, its
interests hereunder are adversely affected, HBU has the right to reset
the rate of any interest payable hereunder to an extent as it, in its
reasonable opinion believes is necessary to fully compensate HBU.
8. Pledge
8.1. As security for the due and punctual fulfilment of the Secured
Liabilities the Depositor hereby pledges to ABN AMRO, or, as the case
may be, pledges in advance to ABN AMRO, all Deposit Claims, it being
understood, for the avoidance of doubt, that all claims (in Dutch:
"vorderingsrechten") of the Depositor in respect of amounts at any time
credited to the Deposit Account after the date hereof shall
automatically be subject to the right of pledge created hereby from the
time and date of such amounts being so credited. To the extent not
already created hereunder, the pledge of the Deposit Claims shall be
created by the Depositor by means of signing and delivery of the
Deposit and Pledge Form.
8.2. In connection with the provisions of Article 3:236 and 3:94 of the
Netherlands Civil Code HBU hereby acknowledges that it has received
notice of the said pledge.
8.3 The Depositor hereby declares that it is fully acquainted with all
the terms and conditions of the Facility Agreement and waives its
rights under Article 3:251 subsection 1 and, if applicable, 3:234 of
the Netherlands Civil Code.
In the event of failure by the Depositor in the performance of any of
the Secured Liabilities, ABN AMRO will be entitled to enforce its right
of pledge by any means necessary and permitted by law.
<PAGE>
11
9. Representations and Warranties of the Depositor
The Depositor hereby represents and warrants to HBU and ABN AMRO as
follows:
(a) The Depositor is a private company with limited liability, duly
organised and existing under the laws of Panama and has full
power, authority and legal right to enter into this Agreement and
perform its obligations hereunder;
(b) The execution, delivery and performance by the Depositor of this
Agreement have been duly authorised by all necessary action and
will not contravene any applicable law, judgment, governmental
rule, regulation or any order of any court or regulatory body
binding on the Depositor or any provisions of its articles of
association or other constitutive documents and will not result
in the breach of or constitute a default under or require any
consent under any agreement, instrument or document to which it
is a party or by which it or any of its property may be bound or
affected except as shall not have a material adverse effect on
the Depositor's ability to perform its obligations under this
Agreement;
(c) All authorisations, consents, approvals and licenses of, and
filings and registrations with, any governmental authority
required under applicable law or regulations for it to enter into
and perform this Agreement have been obtained and are in full
force and effect except as shall not have a material adverse
effect on Depositor's ability to perform its obligations under
this Agreement;
(d) When executed, this Agreement shall have been duly executed and
delivered on behalf of the Depositor and constitute legal, valid
and binding obligations
<PAGE>
12
of the Depositor, enforceable against the Depositor in accordance
with its terms; and
(e) The Depositor has power (in Dutch: "beschikkingsbevoegd") to
pledge its rights, title and interest in the Deposit Balance;
except as provided in this Agreement there are no liens,
attachments, encumbrances or limited property rights (in Dutch:
"beperkte rechten") in favour of any third parties on or against
its rights, title and interest in the Deposit Balance, nor has it
previously and/or in advance transferred or created, or promised
to transfer or create any liens, encumbrances or limited property
rights on or against its rights, title and interest in the
Deposit Balance to or in favour of any third parties.
10. Evidence
An extract from the books of ABN AMRO or HBU signed by two of its duly
authorised officers, shall constitute conclusive evidence of any sums
due hereunder, under the Facility Agreement or under the Indemnity,
subject, however, to proof to the contrary being furnished.
11. No Waiver
ABN AMRO shall not be required to provide the Depositor with a
statement to the effect that it has waived its right of pledge until
such time as, in their respective opinions, all Secured Liabilities
have been discharged in full.
<PAGE>
13
12. Notices
12.1. Unless otherwise expressly specified or permitted by the terms hereof,
all notices shall be given in writing, or by facsimile. Any such
notice will be deemed to be given as follows:
12.2. A notice by facsimile will be subsequently confirmed promptly
in writing
(a) if in writing, when delivered; and
(b) if in facsimile, when received, but only if at the time of
transmission, a message confirmation is received by the sender.
12.3 The addresses and fascimile number for each party for all notices
under or in connection with this Agreement are:
(a) if to HBU:
Hollandsche Bank-Unie N.V.
Regional Office Rotterdam
Special Products Department
Coolsingel 104
3011 AG Rotterdam
The Netherlands
Telex no.
Fax: +31 10 2820134
Tel: +31 10 2820389
Attn.:
<PAGE>
14
(b) if to the Depositor:
Panamerican Beverages Inc.
Manuel Avila Camacho N(degree) 40
Piso 22, Col. Lomas de Chapultepec
11000 Mexico D.F., Mexico
Fax no. 525 201 6337
Tel no. 525 201 6300
Attn.: Chief Financial Officer
(c) if to ABN AMRO:
ABN AMRO Bank N.V.
Attention: Financial Engineering/Remko de Bie
Foppingadreef 22
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Fax no: 31 20 629 4779
Tel no: 31 20 629 3495
13. Costs
The Depositor agrees to reimburse HBU for all reasonable costs and
expenses incurred by HBU in relation to the entering into and
performance and enforcement of this Agreement, including but not
limited to legal fees.
14. Termination
<PAGE>
15
This Agreement or the obligations of the parties hereunder shall not
terminate until all amounts on deposit hereunder shall have been paid
as required hereby and the Facility Agreement has also been
terminated.
15. Amendments
Amendments to this Agreement are effective only when agreed upon in
writing and when duly signed by both parties. Waivers of any rights or
claims under this Agreement are effective only when confirmed in
writing by the party making such a waiver, in accordance with the
provisions of Clause 12 hereof.
16. Severability
The illegality, invalidity or unenforceability of any provision of
this Agreement under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction, nor the legality, validity or enforceability of any
other provision of this Agreement. Any illegal, invalid or
unenforceable provision shall, to the extent possible, be deemed to
have been replaced by a legal, valid and enforceable provision the
intent of which conforms to the intent of the original provision to
such a degree that it must be assumed that such provision would have
been included in this Agreement if the original provision had been
omitted in view of its illegality, invalidity or unenforceability.
17. Miscellaneous
17.1. Headings used in this Agreement are for ease of reference only
and shall not affect the interpretation of this Agreement.
<PAGE>
16
17.2 This Agreement may be entered into in any number of counterparts,
and by the parties hereto on separate counterparts, each of which,
when so executed, shall be an original, but all of which together
shall constitute one and the same instrument.
18. General Terms and Conditions
The General Terms and Conditions of HBU, of which the Depositor hereby
acknowledges to have received a copy, are applicable between HBU and
the Depositor, except that article 18 does not apply. In case of a
conflict between those terms and this Agreement, the provisions of
this Agreement will prevail.
19. Governing Law and Jurisdiction
19.1. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the Netherlands.
19.2 Jurisdiction
------------
The parties hereto agree for the benefit of HBU that all disputes
arising out of or in connection with this Agreement will be submitted
to the competent court in Amsterdam. The submission to the
jurisdiction of the court referred to in the preceding sentence shall
not (and shall not be construed so as to) limit the right of HBU to
institute proceedings against the Depositor in any other court of
competent jurisdiction nor shall the instituting of proceedings by HBU
in any one or more jurisdictions preclude the instituting of
proceedings by HBU in any other jurisdiction, whether concurrently or
not.
<PAGE>
17
IN WITNESS WHEREOF the parties hereto have executed this Agreement respectively
with effect as of 22 January 1999.
Hollandsche Bank-Unie N.V. Panamerican Beverages Inc.
/s/ P. P. Boute /s/ Paulo J. Sacchi
- -------------------------- -----------------------------------
Name: P. P. Boute Name: Paulo J. Sacchi
Title: Proxy Title: Chief Financial Officer
/s/ J. J. Kole
- --------------------------
Name: J. J. Kole
Title: Account Manager
ABN AMRO Bank N.V.
/s/ R. Y. de Bie
- --------------------------
Name: R. Y. de Bie
Title: Advisor
/s/ M. B. Volger
- --------------------------
Name: M. B. Volger
Title: Advisor
<PAGE>
GUARANTEE AND INDEMNITY
This Guarantee and Indemnity is made the 22nd day of January 1999 between:
ABN AMRO BANK N.V., a public company with limited liability, duly organised
and existing under the laws of the Netherlands, whose registered company seat
is at Amsterdam, the Netherlands (the "Guarantor"),
and
Hollandsche Bank-Unie N.V., a public company with limited liability, duly
organised and existing under the laws of the Netherlands, whose registered
company seat is at Amsterdam, the Netherlands, for the purposes of this
Agreement acting through its office at Rotterdam, the Netherlands ("HBU");
WHEREAS:
(A) On January 22, 1999, HBU has entered into an agreement providing for a
credit facility for the purpose of refinancing of the USD 125,000,000.--
facility of the Borrowers maturing late December 1998 in an amount up to
USD 125,000,000.--(one hundred twenty-five million US Dollars) (the
"Facility") to C.A. Embotelladora Caracas, C.A. Embotelladora Antimano,
Hit de Venezuela, S.A., Embotelladora Carabobo, S.A., C.A. Embotelladora
Lara, Embotelladora Aragua, S.A., Gascosas Orientales, S.A.,
Embotelladora Guarico, S.A., Embotelladora La Perla, S.A., Embotelladora
Caroni, S.A., Embotelladora Maturin, S.A., Embotelladora Orinoco, S.A.,
Embotelladora Guayana, S.A., C.A. Embotelladora Nacional, C.A.
Embotelladora Coro, C.A. Embotelladora Valera, Embotelladora Barinas,
S.A., C.A. Embotelladora Tachir, all companies with limited liability,
duly organised and existing under the laws of Venezuela,
<PAGE>
2
whose registered company seats are at Venezuela, (each a "Borrower",
together the "Borrowers"), for the purposes of the Facility Agreement all
represented by Panamco de Venezuela S.A. as their attorney-in-fact, a
company with limited liability, duly organised and existing under the
laws of Venezuela, whose registered company seat is at Venezuela, as may
be amended from time to time (the "Facility Agreement");
(B) In order to induce HBU to provide the Facility to the Borrower, the
Guarantor has agreed to enter into this Agreement on the terms and
conditions set out below;
(C) In order to induce the Guarantor to enter into this Agreement,
Panamerican Beverages Inc., a company with limited liability, duly
organised and existing under the laws of Panama, whose registered company
seat is at Panama City, Panama (the "Depositor"), has agreed to indemnify
the Guarantor from and against all costs, liabilities, taxes and losses
which the Guarantor might incur as a result of a demand under the
Guarantee and Indemnity (the "Indemnity") to the Guarantor;
(D) The Depositor, the Guarantor and the Lender have further agreed that the
Depositor shall place one or more deposits with the Lender and pledge
such deposits to the Guarantor, the terms and conditions of which
deposits and pledge have been recorded in the deposit and pledge
agreement between the Depositor, the Guarantor and the Lender (the
"Deposit and Pledge Agreement"), as a security for the due and proper
fulfillment of the Depositor's obligations under the Indemnity and/or the
Deposit and Pledge Agreement.
<PAGE>
3
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Interpretation
Capitalised terms used herein (including in the recitals hereof) and not
otherwise defined have the meanings set forth in the Facility Agreement.
In addition, the following terms have the following meanings:
Act of State:
Any law, rule or regulation of Venezuela, or any political subdivision
thereof, or any order, decree, decision, award, directive, instruction,
or other measure, or action of Venezuela or any political subdivision
thereof, or of any Governmental Authority, or the interpretation of any
of the foregoing, and any demand, request, application or other action
filed with any Governmental Authority, or any other court of authority of
competent jurisdiction, which purports or seeks to, or has the effect of:
- terminating, extending, increasing, or otherwise modifying the
Agreement or any provision thereof to the detriment of the Lender; -
expropriating, confiscating or seizing (control over), or changing or
adversely affecting the ownership, control, operation or management of
any of the Borrowers or the Lender, of all or a substantial part of their
business or assets, with or without compensation; or
Agreement:
This Guarantee and Indemnity, as amended from time to time.
Facility Repayment Restriction:
Any Act of State, Currency Restriction or Political Risk Event affecting
the performance of either party's obligations under the Facility
Agreement or the enforceability thereof.
<PAGE>
4
New Money Credit:
Any loan or granting of credit by HBU to or on the credit of (i)
Venezuela, (ii) any Governmental Authority, (iii) any person which is
citizen of, or is organised or exists under the laws of Venezuela or the
majority of the ownership interest of which is owned, directly or
indirectly by Venezuela or any Governmental Authority or (iv) any person
which conducts business in Venezuela ((i) through (iv) jointly the
"Venezuelan Persons"), which loan or grant of credit is made in a foreign
currency pursuant to an agreement or agreements entered into at the
request of Venezuela or any Governmental Authority and HBU and other
holders of foreign currency indebtedness of Venezuelan Persons, but only
to the extent that the amount of such loan or granting of credit is
determined by reference to the Lender's commitment under the Facility
Agreement, advances under the Facility Agreement or to previous New Money
Credits determined by reference to such commitments or advances.
Political Risk Event:
Any type of war, invasion, embargo, rebellion, revolution, riot or
sabotage and any politically motivated work stoppage or slowdown, labour
unrest or violence in Venezuela or any political subdivision thereof.
2. Guarantee
The Guarantor irrevocably and unconditionally guarantees under all
circumstances and subject to the terms of this Agreement to HBU, as
principal and primary obligor and not merely as surety the due, proper
and punctual observance and performance of all the terms and conditions
on the part of the Borrower contained in the Facility Agreement.
Therefore the Guarantor hereby agrees to pay to HBU upon its first
written demand any and every sum or sums of money whether actual or
contingent, which are
<PAGE>
5
according to such demand now or may be at any time hereafter due, owing
or payable from or by the Borrower to HBU resulting from or in connection
with the Facility Agreement, and which shall not have been paid at the
time such demand is made.
3. Indemnity
The Guarantor hereby irrevocably and unconditionally agrees as primary
obligation to indemnify HBU from time to time upon its first written
request all amounts which are according such request owing by the
Borrower to HBU, from and against any and all losses, costs, liabilities
and taxes which might be incurred by HBU as a result of (i) a Facility
Repayment Restriction or (ii) any failure of the Borrower to make due,
proper and punctual payment of all sums payable by it to HBU under and in
accordance with the Facility Agreement including, but not limited to, all
losses, costs, liabilities and taxes which HBU might incur as a result of
the Facility Agreement being or becoming void, voidable, unenforceable or
ineffective as against the Borrower for any reason whatsoever, whether or
not caused by or attributable to (in Dutch: "toerekenbaar aan") the
Borrower and whether or not known to HBU, the amount of such loss being
the amount which HBU would otherwise have been entitled to recover from
the Borrower.
4. New Money Credit Obligation
The Guarantor hereby irrevocably and unconditionally, as its own primary
and independent obligation, agrees, from time to time upon HBU's first
demand, to indemnify HBU for all amounts which, in accordance with the
statement of HBU have been paid by it in order to extend New Money Credit
in its own name or to purchase, if legally permissible, by way of
assignment from HBU such New Money Credit or to purchase from HBU a 100%
participating interest therein, without
<PAGE>
6
recourse except as to title and amount at a price equal to the amount of
the New Money Credit extended by HBU.
In the event HBU, at its discretion, has either extended New Money Credit
in its own name or purchased such New Money Credit by assignment or by
purchase of a 100% participating interest therein, HBU agrees to assign
or transfer to the Guarantor any claim it may have against the relevant
Venezuelan Persons under the New Money Credit, against payment in full by
the Guarantor of all amounts paid or payable by HBU in respect thereof or
otherwise by the Guarantor hereunder.
5. Interest
The Guarantor undertakes to pay interest on any amount demanded of it
under this Agreement from the date of demand until actual payment
(whether before or after judgement) at a rate per annum that is equal to
3 months LIBOR plus 2 percent. Such interest will be compounded monthly
if not paid on demand, but without prejudice to HBU's right to require
payment of such interest.
6. Taxes
All payments to be made by the Guarantor under this Agreement shall be
made without any set-off or counterclaim whatsoever and free and clear of
any deduction or withholding on account of any taxes (other than taxes
imposed on or measured by reference to, income, which are imposed by the
Netherlands on the Lender) or otherwise. If the Guarantor is required by
any law or any competent authority to make any deduction or withholding
(on account of taxes or otherwise) from any payment to be made hereunder,
it shall, together with such payment pay such additional amount as may be
required to ensure that HBU receives (free of any taxes,
<PAGE>
7
other deduction or withholding) the full amount which it would have
received if no such deduction or withholding had been required.
7. Costs, charges and expenses
The Guarantor shall from time to time forthwith on demand pay to or
reimburse HBU for all reasonable cost, charges and expenses (including
legal and other fees on a full indemnity basis) incurred by HBU in
exercising any of its rights or powers under this Agreement, suing for
and recovering any sums due under this Agreement, otherwise preserving or
enforcing its rights under this Agreement, defending any claims brought
against it in respect this Agreement or releasing this Agreement.
8. Consents, waivers and renewals
The Guarantor agrees that HBU may at any time and from time to time,
either before or after the maturity thereof, without further consent of
the Guarantor, but with written notification of such changes to the
Guarantor, extend the time of payment of or renew any of the sum or sums
of money due under the Facility Agreement and may also make any agreement
with the Borrower for the extension, renewal, payment, compromise,
discharge, or release thereof, in whole or in part, or for modification
of the terms thereof or of any agreement between HBU and the Borrower,
without in any way impairing or affecting this Agreement.
9. Continuing Guarantee and Indemnity
This is a continuing Agreement and shall remain in full force and effect
and is binding upon the Guarantor and its successors and assigns until
all amounts due and payable under the Facility Agreement and this
Agreement shall irrevocably have been paid in full.
<PAGE>
8
10. Evidence of debt
Any statement purporting to show an amount or amounts received and the
timing of each such receipt of funds due from the Guarantor under this
Agreement and signed as correct by a duly authorised officer of HBU
shall, in the absence of manifest error, be conclusive evidence of the
amount or amounts so received and the timing thereof.
11. Subrogation and assignment
Notwithstanding anything to the contrary herein the Guarantor shall not
be subrogated in the rights of any claim of HBU against the Borrowers
under the Facility Agreement until all amounts due to HBU hereunder shall
have been paid in full by the Guarantor. To the extent that such
subrogation shall be illegal, invalid or ineffective for any reason
whatsoever, HBU hereby assigns to the Guarantor, as the Guarantor hereby
accepts from HBU the assignment of any claim which HBU at any time may
have against the Borrowers under the Facility Agreement with respect to
any amount so paid by the Guarantor to HBU.
12. Notices
12.1 Unless otherwise specifically provided herein, any notice or other
communications under or in connection with this Agreement shall be in
writing, with a copy to Panamerican Beverages, Inc. and may be sent by
facsimile, by courier or by post and shall be deemed received upon
delivery when sent by courier service, three days after dispatch when
sent by post or upon confirmation of receipt by the addressee when sent
by facsimile.
12.2 A notice by facsimile will be subsequently confirmed promptly by courier
or by post in writing.
<PAGE>
9
12.3 The address and facsimile number for each party for all notices under or
in connection with this Agreement are:
Guarantor:
ABN AMRO Bank N.V.
Attention: Financial Engineering/Remko de Bie
Foppingadreeff 22
P.O. Box 283
1000 EA Amsterdam
The Netherlands
fax no. +31 20 629 4779
tel no. +31 20 629 3495
HBU:
Hollandsche Bank-Unie N.V.
Special Products Department
Coolsingel 104
3011 AG Rotterdam
The Netherlands
telex no.
fax: +31 10 2820134
tel: +31 10 2820389
With a copy of all material notices to:
Panamerican Beverages, Inc.
Manuel Avila Camacho, N(degree) 40
Piso 22, Col. Lomas de Chapultepec
11000 Mexico D.F., Mexico
<PAGE>
10
Tel: 525 201 6300
Fax: 525 201 6337
13. Information
Within 2 (two) business days after the receipt of a Deposit placed by the
Depositor with the Guarantor, the Guarantor shall notify HBU of the
amount and the date of such Deposit.
14. Headings
Headings used in this Agreement are for ease only and shall not affect
the interpretation of this Agreement.
15. Governing Law
This Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of the
Netherlands.
16. Jurisdiction
16.1 Each of the parties hereto irrevocably agrees that all disputes arising
out of this Agreement shall be submitted to the competent court of
Amsterdam.
16.2 The submission to the jurisdiction of the competent court referred to in
Clause 16.1 shall not (and shall not be construed so as to) limit the
right of HBU to institute proceedings against the Guarantor in any other
court of competent jurisdiction nor shall the instituting of proceedings
by HBU in any one or more jurisdictions preclude
<PAGE>
11
the instituting of proceedings by HBU in any other jurisdiction, whether
concurrently or not.
17. Counterparts
This Agreement may be signed in any number of counterparts which taken
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement was signed by the Guarantor and HBU on the
day and year first above written.
Hollandsche Bank Unie N.V. ABN AMRO Bank N.V.
/s/ J. J. Kole /s/ R. Y. de Bie
- -------------------------- -----------------------
Name: J. J. Kole Name: R. Y. de Bie
Title: Account Manager Title: Advisor
/s/ F. W. R. Hamel /s/ M. B. Volger
- -------------------------- -----------------------
Name: F. W. R. Hamel Name: M. B. Volger
Title: Account Manager Title: Advisor
<PAGE>
INDEMNITY
This Indemnity Agreement is made the 22nd day of January 1999 between:
Panamerican Beverages Inc., a company with limited liability, duly organised
and existing under the laws of Panama, whose registered company seat is at
Panama City, Panama (the "Company"),
And
ABN AMRO Bank N.V., a public company with limited liability, duly organised
and existing under the laws of the Netherlands, whose registered company seat
is at Amsterdam, the Netherlands ("ABN AMRO"),
WHEREAS:
(A) On 22 January 1999, Hollandsche Bank-Unie N.V. (the "Lender") has entered
into an agreement providing for a credit facility for the purpose of
refinancing of the USD 125,000,000.-- facility of the Borrowers with
Panamerican Beverages Inc. in an amount up to USD 125,000,000.-- (one
hundred twenty five million US Dollars) (the "Facility"), C.A.
Embotelladora Caracas, C.A. Embotelladora Antimano, Hit de Venezuela,
S.A., Embotelladora Carabobo, S.A., C.A. Embotelladora Lara,
Embotelladora Aragua, S.A., Gaseosas Orientales, S.A., Embotelladora
Guarico, S.A., Embotelladora La Perla, S.A., Embotelladora Caroni, S.A.,
Embotelladora Maturin, S.A., Embotelladora Orinoco, S.A., Embotelladora
Guayana, S.A., C.A. Embotelladora Nacional, C.A. Embotelladora Coro, C.A.
Embotelladora Valera, Embotelladora Barinas, S.A., C.A. Embotelladora
Tachira, all companies with limited liability, duly organised and
existing under the laws of Venezuela, whose registered company seats are
at Venezuela, (each a "Borrower, together the "Borrowers"), for the
purposes of the Facility Agreement all represented by Panamco de
Venezuela S.A. as their attorney-in-fact, a company with limited
liability, duly organised and existing under the laws of Venezuela, whose
registered company seat is at Venezuela, as may be amended from time to
time (the "Facility Agreement");
(B) In order to induce the Lender to provide the Facility to the Borrowers,
ABN AMRO has entered into a guarantee and indemnity agreement with the
Lender dated 22 January 1999 (the "Guarantee and Indemnity") pursuant to
which ABN AMRO has inter alia guaranteed to the Lender the due, proper
and punctual fulfilment by the Borrower of its obligations under or in
respect of the Facility Agreement;
<PAGE>
2
(C) In order to induce ABN AMRO to enter into the Guarantee and Indemnity the
Company on 22 January 1999 has agreed to indemnify ABN AMRO from and
against all costs, liabilities, taxes and losses which ABN AMRO might
incur as a result of a demand under the Guarantee and Indemnity (the
"Indemnity");
(D) The Company and the Lender have agreed that the Company shall place one
or more deposits with the Lender and pledge such deposit(s) to ABN AMRO
as a security for the due and proper fulfilment of the Company's
obligations under the Indemnity;
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Interpretation
Capitalised terms used herein (including in the recitals hereof) and not
otherwise defined have the meanings set forth in the Facility Agreement.
In addition, the following terms have the following meanings:
Agreement:
This Indemnity, as amended from time to time.
New Money Credit:
Any loan or granting of credit by the Lender or, as the case may be, ABN
AMRO to or on the credit of (i) Venezuela, (ii) any Governmental
Authority, (iii) any person which is citizen of, or is organised or
exists under the laws of Venezuela or the majority of the ownership
interest of which is owned, directly or indirectly by Venezuela or any
Governmental Authority or (iv) any person which conducts business in
Venezuela ((i) through (iv) jointly the "Venezuelan Persons"), which loan
or grant of credit is made in a foreign currency pursuant to an agreement
or agreements entered into at the request of Venezuela or any
Governmental Authority and the Lender or, as the case may be, ABN AMRO
and other holders of foreign currency indebtedness of Venezuelan Persons,
but only to the extent that the amount of such loan or granting of credit
is determined by reference to the Lender's commitment under the Facility
Agreement, advances under the Facility Agreement or previous New Money
Credits.
2. Indemnity
The Company hereby irrevocably and unconditionally, as its own primary
and independent obligation, undertakes to indemnify ABN AMRO and hold it
harmless with respect to all payments at any time made by ABN AMRO
pursuant to the Guarantee and Indemnity, and all reasonable legal and
other costs, charges and
<PAGE>
3
expenses of whatever nature incurred by ABN AMRO in connection with its
performance thereunder and to pay to ABN AMRO, without set-off or
counterclaim, upon its first written demand, all amounts stated by ABN
AMRO to be due and owing by the Company to ABN AMRO hereunder, including
interest and other costs.
The Company agrees to pay regardless of any objections by the Borrowers
and regardless of whether any of the financial obligations under the
Facility Agreement or, the Guarantee and Indemnity are or become void,
voidable or unenforceable.
Any amount referred to in the preceding paragraph shall be payable by the
Company by way of indemnity (and not as penalty).
3. New Money Credit Obligation
The Company hereby irrevocably and unconditionally, as its own primary
and independent obligation, undertakes, within five Business Days of
receipt of ABN AMRO's first written notice to indemnify ABN AMRO for all
amounts which, in accordance with the statement of ABN AMRO, have been
paid by it in order to, if legally permissible, extend the New Money
Credit in its own name in lieu of the Lender, or purchase, if legally
permissible, by way of assignment from the Lender such New Money Credit
or purchase from the Lender a 100 % participating interest therein,
without recourse except as to title and amount at a price equal to the
amount of the New Money Credit extended by the Lender. In the event ABN
AMRO, at its discretion, has either extended the New Money Credit in its
own name or purchased by assignment or by purchase of a 100%
participating interest therein without recourse except as to title and
amount at a price equal to the amount of the New Money Credit extended by
the Lender, ABN AMRO agrees to assign or transfer to the Company any
claim it may have against the Venezuelan Persons under the New Money
Credit.
4. Assignment
ABN AMRO agrees to assign to the Company any claim against the Lender
under the Guarantee and Indemnity or the Borrowers under the Facility
Agreement to which ABN AMRO may be legally subrogated, or which may be
assigned by the Lender to ABN AMRO, or which ABN AMRO may otherwise have
against the Borrower or any Venezuelan Person or as a result of any
payment by ABN AMRO pursuant to the Guarantee and Indemnity. ABN AMRO
shall have no obligation to make or co-operate to effect such assignment
until amounts which are or may at any time become due from the Company to
ABN AMRO under this Agreement will have been paid in full, in each case
without deduction or withholding on account of any taxes or otherwise.
<PAGE>
4
The Company shall reimburse any reasonable costs or expenses incurred by
ABN AMRO in connection with such assignment or any action to be taken by
ABN AMRO in respect thereof. ABN AMRO shall have no liability for the
lack of validity, enforceability or effectiveness of its subrogation to
any claim of the Lender against the Borrowers or for any assignment or
other action taken pursuant to this Clause 4.
5. Continuing Indemnity
This is a continuing Agreement and shall remain in full force and effect
and is binding upon the Company and its successors and assigns until all
amounts due and payable under the Facility Agreement, the Guarantee and
Indemnity and this Agreement will irrevocably have been paid in full.
6. Taxes
All payments to be made by the Company under this Agreement shall be made
without any set-off or counterclaim whatsoever and free and clear of any
deduction or withholding on account of any taxes (other than taxes
imposed on or measured by reference to, income, which are imposed by the
Netherlands on the Lender ("Income Taxes")) or otherwise. If the Company
is required by any law or any competent authority to make any deduction
or withholding (on account of taxes, other than Income Taxes or
otherwise) from any payment to be made hereunder, it shall, together with
such payment pay such additional amount as may be required to ensure that
ABN AMRO receives (free of any taxes, other deduction or withholding) the
full amount which it would have received if no such deduction or
withholding had been required.
7. Costs, charges and expenses
The Company shall from time to time forthwith on demand pay to or
reimburse ABN AMRO for all reasonable cost, charges and expenses
(including reasonable legal and other fees on a full indemnity basis)
incurred by ABN AMRO in exercising any of its rights or powers under this
Agreement, suing for and recovering any sums due under this Agreement,
otherwise preserving or enforcing its rights under this Agreement,
defending any claims brought against it in respect of this Agreement or
releasing this Agreement.
8. Evidence of debt
Any statement purporting to show an amount or amounts received and the
timing of each such receipt of funds due from the Company under this
Agreement and signed as correct by two duly authorised officers of ABN
AMRO shall, in the absence of
<PAGE>
5
manifest error, be conclusive evidence of the amount or amounts so
received and the timing thereof.
9. Availability of Defences
The Company acknowledges and agrees that its obligations under this
Agreement are those of a primary obligor and not merely those of a
surety. To the extent the obligations of the Company under and in
connection with this Agreement would be construed by any court as those
of a surety the Company hereby waives all defences afforded to sureties
by law, including but not limited to those provided in article 7:851 up
to and including 7:856 of the Civil Code of the Netherlands.
10. Acknowledgement and General Indemnity
The Company acknowledges and agrees for the benefit of ABN AMRO and, by
way of third party stipulation (in Dutch: "derdenbeding"), for the
benefit of the Lender, that:
(a) neither ABN AMRO nor the Lender is making any representation with
respect to the legality, validity, enforceability or effectiveness
of any of the provisions of the Facility Agreement, the Guarantee
and Indemnity or this Agreement (together the "Operative
Documents"), or any of them or any of the transactions contemplated
thereby;
(b) neither the Lender nor ABN AMRO will have any liability with respect
to any failure or inability of the Borrower or the Company to
realise any tax or other benefit anticipated by either of them from
the Operative Documents, or any of them, or any of the transactions
contemplated thereby; and
(c) the Company will hold each of ABN AMRO and the Lender harmless from,
and promptly upon request indemnify each of them for any loss,
damage, cost or expense that either of them may incur as a result of
(i) the illegality, invalidity, unenforceability or ineffectiveness
of any of the provisions of the Operative Documents, or any of the
transactions contemplated thereby, except to the extent that such
illegality, invalidity, unenforceability or ineffectiveness would
arise solely as a matter of Netherlands law or (ii) the
characterisation of the Facility Agreement as anything other than a
loan facility from a Dutch commercial banking institution to a local
Venezuelan company.
<PAGE>
6
11. Benefit of Indemnity
The Company expressly agrees that it is entering into this Agreement for
the benefit of ABN AMRO. Any assignee of ABN AMRO shall have the benefit
of this Agreement provided that it also assumes ABN AMRO's obligations
under this Agreement and provided that such assignee has assumed ABN
AMRO's obligations under the Guarantee and Indemnity. The Company
irrevocably agrees for the benefit of any such assignee by way of third
party stipulation (in Dutch: "derdenbeding") that such assignee shall be
entitled to exercise all of ABN AMRO's rights under this Agreement as if
such assignee was originally party to this Agreement in lieu of ABN AMRO.
12. Notices
12.1 All notices or other communications under or in connection with this
Indemnity shall be given in writing or by facsimile. Any such notice will
be deemed to be given as follows:
(a) if in writing, when delivered;
(b) if by facsimile, when received, but only if at the time of
transmission, a message confirmation is received by the sender.
12.2 A notice by telex or facsimile will be subsequently confirmed promptly in
writing.
12.3 The address, telexnumber and facsimile number for each party for all
notices under or in connection with this Indemnity are:
ABN AMRO:
ABN AMRO Bank N.V.
Attention: Financial Enginering/Remko de Bie
Foppingadreef 22
P.O. Box 283
1000 EA Amsterdam
The Netherlands
fax no. + 31 20 629 4779
tel no. + 31 20 629 3495
<PAGE>
7
The Company:
Panamerican Beverages Inc.
Manuel Avila Camacho N(degree) 40
Piso 22, Col. Lomas de Chaputepec
11000 Mexico D.F., Mexico
fax no. 525 201 6337
tel no. 525 201 6300
Attn.: Chief Financial Officer
13. Information
ABN AMRO undertakes to inform the Company in writing of any payments,
which the Lender has received from ABN AMRO in connection with the
Guarantee and Indemnity.
14. Headings
Headings used in this Agreement are for ease only and shall not affect
the interpretation of this Agreement.
15. Governing Law; Jurisdiction
15.1 This Indemnity and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of The
Netherlands.
15.2 The Company hereby irrevocably submits to the non-exclusive jurisdiction
of the competent court of Amsterdam with respect to any dispute, which
may arise with respect to this Agreement, or further agreements resulting
therefrom.
15.3 The submission by the Company to the jurisdiction of the competent court
of Amsterdam shall not limit the right of ABN AMRO to take proceedings
against the Company in any other court of competent jurisdiction nor
shall the taking of proceedings in any one or more jurisdictions preclude
the taking of proceedings in any other jurisdiction (whether concurrently
or not) if and to the extent permitted by applicable law.
16. Counterparts
This Agreement may be signed in any number of counterparts which taken
together shall be deemed to constitute one and the same instrument.
<PAGE>
8
17. General Terms and Conditions
The General Terms and Conditions of ABN AMRO, of which the Company hereby
acknowledges to have received a copy, are applicable between ABN AMRO and
the Company. In case of a conflict between those terms and this
Agreement, the provisions of this Agreement will prevail.
IN WITNESS WHEREOF, this Agreement was signed by the Company and ABN AMRO on
the day and year first above written.
Panamerican Beverages, Inc. ABN AMRO Bank N.V.
/s/ Paulo J. Sacchi /s/ R. Y. de Bie
- ---------------------------- ---------------------
Name: Paulo J. Sacchi Name: R. Y. de Bie
Title: Chief Financial Officer Title: Advisor
/s/ M. B. Volger
---------------------
Name: M. B. Volger
Title: Advisor
<PAGE>
AMENDMENT NO. 1 TO SHAREHOLDER AGREEMENT
AMENDMENT NO. 1 dated as of November 15, 1999 (this
"Amendment"), to the Shareholder Agreement dated as of May 9,
1997 (as may be amended, supplemented or modified from time
to time, the "Shareholder Agreement"), between Panamerican
Beverages, Inc., a corporation organized under the laws of
Panama (the "Company") and Venbottling Holdings Inc., a
corporation organized under the laws of Panama (the
"Investor").
WHEREAS, the Company and the Investor entered into
the Shareholder Agreement;
WHEREAS, the Company and the Investor desire to
amend the Shareholder Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises
and the mutual agreements set forth herein and other good and
valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the Company and the Investor agree
as follows:
ARTICLE I
Amendments to the Shareholder Agreement
1. Section 1.1 is hereby amended by inserting the
following at the end of the proviso to the definition of
"Registration Expenses":
", or (z) up to $45,000 related to the preparation
and filing (including confidential submission
thereof) of any registration statement covering any
Registrable Shares (including, but not limited to
the fees and disbursements of the Company's legal
counsel, accountants and advisors), other than the
expenses related to the making of road shows". The
sum of the amounts included in the "Registration
Expenses" (including the amount described in clause
(z) above) plus the amounts referred to in clauses
(x) and (y) hereof are collectively referred to
herein as the "Total Registration Costs."
<PAGE>
2
2. The following proviso is added at the end of
Section 4.5:
"provided, however, that none of the Investor, its
Qualifying Transferees or the Company shall be
required to comply with the provisions of this
Section 4.5 so long as the number of Shares sold by
the Investor or Qualifying Transferee together with
Shares sold by the Investor or Qualifying
Transferee during the preceding six month period
does not exceed (i) one percent of the shares of
Class A common stock of the Company as set forth on
the books of the Company's transfer agent
immediately prior to such sale, or (ii) the average
weekly reported volume of trading in the Class A
common stock on the New York Stock Exchange during
the four calendar weeks preceding such sale. At
such time that the Investor is no longer deemed to
be an Affiliate of the Company, the provisions of
this Section 4.5 shall have no further force and
effect."
3. Section 5.1(a) is hereby amended as follows:
(i) the reference to "45 days" is replaced with "10
days";
(ii) the language in clause (z) of the first
paragraph shall be replaced with the following:
"if the Company confidentially submits (or
otherwise files) a registration statement, which
the Investor subsequently withdraws prior to its
effectiveness, the Investor may not make another
such request within the 60 day period following the
date the Company receives written notice from the
Investor that the Investor withdraws such request".
(iii) the following paragraph shall be inserted
after the first paragraph of Section 5.1.(a):
"The Company will be deemed to have complied
with the requirement that it file a registration
statement with the Commission as set forth in this
Section 5.1 if the Company confidentially submits a
registration statement to the Commission and
otherwise satisfies its obligations set forth
herein. To the extent permitted by applicable law,
the Company, in connection with any request
<PAGE>
3
made by the Investor for registration pursuant this
Section 5.1(a), shall confidentially submit the
registration statement in lieu of making a public
filing thereof. If requested by the Investor, the
Company shall not publicly file (or request the
acceleration of effectiveness of) such registration
statement for a period of up to 90 days following
the date on which the Commission indicates that the
registration statement will not be reviewed, or if
the registration statement has been reviewed, the
date on which the Commission indicates that it has
no further comments on the registration statement
provided, however, that the Company shall be
entitled at all times to make all filings or take
other actions it deems necessary or appropriate
under the Securities Exchange Act of 1934".
(iv) the phrase "and, if the Investor pays the
Registration Expenses in connection therewith, the Investor
may require the Company to treat the request attributable to
such Withdrawn Registration or Withdrawn Request as not
occurring" in the last clause of the second paragraph of
Section 5.1(a) shall be replaced in its entirety by "and, if
the Investor pays the Total Registration Costs in connection
therewith, the Investor may require the Company to treat one
request attributable to a Withdrawn Registration or Withdrawn
Request as not occurring."
(v) the following paragraph shall be inserted after
the second paragraph of Section 5.1(a):
"If the Investor does not instruct the Company
in writing to request acceleration of the
effectiveness of any registration statement that
the Company has filed (or confidentially submitted)
at the request of the Investor within 60 days of
the date on which the Commission either indicates
that it will not review the registration statement
or it has no further comments, the registration
statement will be deemed withdrawn by the Investor
in accordance with the provisions of this Section
5.1 and the Investor shall pay (or reimburse the
Company for) such amounts as required by the
Section 5.1(c), as amended".
4. Section 5.1(b)(ii) is hereby amended to replace
the reference to "90 days" with "60 days".
<PAGE>
4
5. Section 5.1(c) is hereby amended by adding the
following paragraph to such Section:
"The Investor shall pay (or reimburse the
Company for) all expenses specified in the proviso
of the definition of "Registration Expenses" in
Section 1.1 in connection with any Demand
Registration, except that the expenses specified in
clause (z) shall be payable by the Investor only to
the extent attributable to shares of stock offered
by the Investor. In addition, (i) if the Investor
makes a fourth registration request from the date
of this Amendment No. 1, the Investor shall pay (or
reimburse the Company for) up to $80,000 of the
Registration Expenses incurred in connection with
such registration that would otherwise be payable
by the Company (including the $45,000 payable
pursuant to clause (z) of proviso to the definition
of Registration Expenses), and (ii) if the Investor
makes a fifth registration request from the date of
this Amendment No. 1, the Investor shall pay (or
reimburse the Company for) the Total Registration
Costs in connection with such registration".
6. Section 5.3(a)(ii) is hereby amended to replace
the first reference to "90 days" in the first clause with "60
days".
7. Section 5.3(a) is hereby amended by adding the
following:
"(ix) in connection with an underwritten offering
pursuant to Section 5.1, the Company will be
prepared to begin making road show presentations
within 15 days following the later of the date on
which (i) the Commission indicates that it will not
review the registration statement or that it has no
further comments on the registration statement, if
it has reviewed such registration statement, and
(ii) the Company receives a written instruction
from the Investor and the managing underwriter that
the Investor and the managing underwriter intend to
begin the road show in connection with the
Registrable Shares covered by the registration
statement immediately after such 15 day period.
Nothing herein shall be construed to require the
Company to begin making road show presentations
until the registration statement has been publicly
filed with the Commission in accordance with the
terms of this Article V."
<PAGE>
5
ARTICLE II
Miscellaneous
1. Except as specifically amended hereby, the
Shareholder Agreement shall remain in full force and effect.
After the date hereof, any reference to the Shareholder
Agreement shall mean the Shareholder Agreement as amended
hereby.
2. The parties hereto agree that:
(i) pursuant to the provisions of Section 5.1(a),
as amended, the registration statement confidentially
submitted by the Company with the Commission on August 2,
1999, (the "August 2 Registration Statement") in accordance
with the Investor's request received on May 18, 1999, is
hereby withdrawn by the Investor;
(ii) notwithstanding anything forgoing to the
contrary, the Investor will not be liable for the amount set
forth in clause (z) of the proviso to amended Section 1.1 of
the Shareholder Agreement in connection with the August 2
Registration Statement; however, the Investor will be liable
for any other amounts otherwise due under the Shareholder
Agreement; and
(iii) from the date hereof, the Investor will only
be entitled to make five additional registration requests
pursuant to the terms of the Shareholder Agreement.
3. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the
Shareholder Agreement.
4. This Amendment shall be effective as of May 18,
1999.
5. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES OF SUCH
STATE.
6. Counterparts. This Amendment may be executed in
one or more, all of which together shall be considered one
and the same agreement, and shall become effective when one
more of such counterparts have been signed by each party and
delivered to the other party. Delivery of a signature page of
this Amendment by telecopy shall be effective as delivery of
a manually executed counterpart of this Amendment.
<PAGE>
6
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their respective
authorized representatives as of the day and year first
written above.
PANAMERICAN BEVERAGES, INC.,
by /s/ Paulo J. Sacchi
------------------------------
Name: Paulo J. Sacchi
Title: Chief Financial Officer
VENBOTTLING HOLDINGS, INC.
by /s/ Gustavo A. Cisneros
------------------------------
Name: Gustavo A. Cisneros
Title:
<PAGE>
AMENDMENT NO. 1 dated as of August 30, 1999 (this
"Amendment"), to the Credit Agreement dated as of March
18, 1999 (as may be amended, supplemented or modified from
time to time, the "Credit Agreement"), among Panamerican
Beverages, Inc., a Panamanian corporation (the
"Borrower"), the lenders named therein (the "Lenders"),
ING Baring (U.S.) Capital LLC, as administrative agent (in
such capacity, the "Administrative Agent") for the
Lenders, J.P. Morgan Securities Inc. as syndication agent
(the "Syndication Agent") for the Lenders, and Bank Boston
N.A., as documentation agent (the "Documentation Agent")
for the Lenders.
A. Pursuant to the Credit Agreement, the Lenders 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 Borrower has requested that, pursuant to Section 8.01 of the
Credit Agreement, the Required Lenders agree to amend certain provisions of
the Credit Agreement as provided herein.
C. The Required Lenders are willing so to amend the Credit Agreement
pursuant to the terms and subject to the conditions set forth herein.
D. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
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. Amendments. Section 1.01 of the Credit Agreement is
hereby amended by inserting the following:
(a) definition in the appropriate alphabetical order:
"Back-to-Back Loan" means Debt of any Subsidiary owed to a third
party that is fully collateralized by the proceeds of Debt incurred
by the Borrower.
(b) proviso at the end of the definition of "Consolidated Debt":
<PAGE>
2
"provided, however, that Debt of the Borrower's Consolidated
Subsidiaries shall not include any Debt, of any Subsidiary to the
extent, but only to the extent, that such Debt, (i) is held by the
Borrower, whether in the form of a loan, participation interest or
other instrument evidencing indebtedness or other Obligation of the
Subsidiary so long as material enforcement, waiver or amendment
decision regarding such Debt may be taken only by the Borrower, or
(ii) represents a Back-to-Back Loan"
(c) proviso as the end of the definition of "Interest Coverage
Ratio"
provided, however, the calculation of the Interest Coverage Ratio
shall not include any interest on any Debt of any Subsidiary, to the
extent that such Debt (i) is owed by a Subsidiary to the Borrower,
whether in the form of a loan, participation interest or other
instrument evidencing indebtedness or other Obligation of the
Subsidiary so long as material enforcement, waiver or amendment
decision regarding such Debt may be taken only by the Borrower, or
(ii) represents a Back- to-Back Loan"
SECTION 2. Representations and Warranties. The Borrower represents
and warrants to the Administrative Agent, to the Syndication Agent, the
Documentation Agent and to each of the Lenders that:
(a) This Amendment has been duly authorized, executed and
delivered by the Borrower 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 Article IV of the Credit
Agreement 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.
<PAGE>
3
(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 as of March 18, 1999 when the Administrative Agent shall have
received counterparts of this Amendment that, when taken together, bear the
signatures of the Borrower and the Required Lenders.
SECTION 4. Credit Agreement. Except as specifically amended hereby,
the Credit Agreement 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 Credit Agreement shall mean the Credit Agreement
as amended hereby.
SECTION 5. Loan Document. This Amendment shall be a Loan Document
for all purposes.
SECTION 6. Effective Time. This Amendment shall be effective as of
March 18, 1999.
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 Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Mayer,
Brown & Platt, counsel for the Administrative Agent.
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.
<PAGE>
4
PANAMERICAN BEVERAGES, INC.,
by /s/ Paulo J. Sacchi
-----------------------------------
Name: Paulo J. Sacchi
Title: Chief Financial Officer
ING BARING (U.S.) CAPITAL LLC,
individually and as Administrative
Agent,
by /s/ Michele M. Mangan
-----------------------------------
Name: Michele M. Mangan
Title: Vice President
J.P. MORGAN SECURITIES INC.,
individually and as Syndication
Agent,
by /s/ TMT O'Connor
-----------------------------------
Name: TMT O'Connor
Title: Vice President
BANK BOSTON N.A.,
individually and as Documentation
Agent,
by /s/ Esteban A. Arrando
-----------------------------------
Name: Esteban A. Arrando
Title: Vice President
<PAGE>
5
SIGNATURE PAGE TO
AMENDMENT NO. 1 AND
WAIVER DATED AS OF
August 30, 1999
To Approve the Amendment:
Name of Institution Morgan Guaranty Trust Company of
New York
---------------------------------------
by
---------------------------------------
Name:
Title:
Name of Institution BancBoston Robertson Stephens, Inc.
------------------------------------------
by
/s/ Maria Lagos /s/ Manuel Sanchez
---------------------------------------
Name: Maria Lagos Manuel Sanchez
Title: Vice President Vice President
Name of Institution Banco Bilbao Vizcaya S.A.
------------------------------------------
by
---------------------------------------
Name:
Title:
Name of Institution The Chase Manhattan Bank
------------------------------------------
by
/s/ Joseph Barragan
---------------------------------------
Name: Joseph Barragan
Title: Managing Director
<PAGE>
6
Name of Institution Dresdner Bank Luxembourg S.A.
------------------------------------------
by
---------------------------------------
Name:
Title:
Name of Institution Dresdner Bank Lateinamerika AG,
Panama Branch
------------------------------------------
by
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Name:
Title:
Name of Institution ING BANK N.V., acting through its
Curacao Branch
------------------------------------------
by
/s/ R.W. Linok W.P.J. ten Holt
---------------------------------------
Name: R.W. Linok W.P.J. ten Holt
Title: Risk Manager Financial Control
Name of Institution Comerica Bank
------------------------------------------
by
---------------------------------------
Name:
Title:
Name of Institution General Electric Capital Corporation
------------------------------------------
by
/s/ James C. Ugern
---------------------------------------
Name: James C. Ugern
Title:
<PAGE>
7
Name of Institution Banque Nationale de Paris,
Panama Branch
------------------------------------------
by
/s/ Mair Gonzalez Leticia Sang
---------------------------------------
Name: Mair Gonzalez Leticia Sang
Title: Vice President Credit Officer
Name of Institution Westdeutsche Landesbank Girozentrale,
New York Branch
------------------------------------------
by
/s/ Robert D. Wagner
---------------------------------------
Name: Robert D. Wagner
Title: Vice President
Name of Institution Landesbank Schleswig-Holstein
Girozentrale
------------------------------------------
by
---------------------------------------
Name:
Title:
Name of Institution Allstate Life Insurance Company
------------------------------------------
by
---------------------------------------
Name:
Title:
Name of Institution Allstate Insurance Company
------------------------------------------
by
---------------------------------------
Name:
Title:
<PAGE>
8
Name of Institution Citibank Mexico S.A.
------------------------------------------
by
/s/ Jose Maria Urquiza
---------------------------------------
Name: Jose Maria Urquiza
Title: Vice President
Name of Institution Kredietbank S.A. Luxembourgeoise
------------------------------------------
by
/s/Garing van Otolgers Vincent Penders
------------------------------------------
Name: Garing van Otolgers Vincent Penders
Title: Senior Service Manager
Name of Institution Hamburgische Landesbank Girozentrale
------------------------------------------
by
---------------------------------------
Name:
Title:
Name of Institution Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank
Nederland", New York Branch
------------------------------------------
by
/s/ Michael V.M. van der Voort
---------------------------------------
Name: Michael V.M. van der Voort
Title: Vice President
Name of Institution Argentaria Caja Postal y Banco
Hipotecario S.A., New York Branch
------------------------------------------
by
/s/ Augusto Godoy
---------------------------------------
Name: Augusto Godoy
Title: General Manager
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Panamerican Beverages, Inc.
(Registrant)
by: /s/ Paulo J. Sacchi
-------------------------------
Name: Paulo J. Sacchi
Title: Senior Vice President-
Finance and Treasurer
Date: March 17, 2000
