Exhibit 10.44
(TRANSLATION)
Exhibit 1 to the Acknowledgment of Debt and Obligor
Substitution Agreement entered into by and among
Panamco Mexico, S.A. de C.V.,
Panamco Golfo, S.A. de C.V., BBVA Bancomer, S.A., Institucion de Banca Multiple,
Grupo Financiero BBVA Bancomer,
dated December 18, 2001
LOAN AGREEMENT ENTERED INTO BY AND BETWEEN:
I. BBVA BANCOMER, S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA
BANCOMER, HEREINAFTER THE "BANK" HEREBY REPRESENTED BY MESSRS ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ THIERRY AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AND
II. PANAMCO GOLFO, S.A. DE C.V.,. HEREINAFTER "THE BORROWER", OR "PANAMCO
GOLFO", HEREBY REPRESENTED BY ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇;
III. WITH THE APPEARANCE OF PANAMCO MEXICO, S.A. DE C.V. HEREINAFTER THE "JOINT
OBLIGOR AND GUARANTOR" HEREBY REPRESENTED BY MESSRS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Pursuant to the following representations and clauses:
BACKGROUND
A. On December 18, 2001, the Bank and Panamerican Beverages, Inc. (hereinafter
"Panamco Holding") entered into a loan agreement in the amount of
MXP$465,000,000.00 (Four hundred and sixty five million Pesos, Mexican
currency) available from that date on. Panamco Mexico and Panamco Golfo
were the joint obligors and guarantors in the above mentioned instrument.
B. Also, on December 18, 2001, but effective as of December 28, 2001, Panamco
Holding, Panamco Mexico, Panamco Golfo and the Bank entered into an
Acknowledgement of Debt and Obligor Substitution Agreement, by means of
which (i) Panamco Mexico assumed all the Panamco Holding's obligations
under the Loan mentioned in the preceding paragraph A, effective as of
December 28, 2001; (ii) Panamco Golfo remained the joint obligor and
guarantor; and (iii) Panamco Mexico undertook to assume the joint obligor
and guarantor obligations,
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under identical terms and conditions as agreed in the above preceding
paragraph A, if the Bank authorizes the assignment of the Panamco Mexico
obligations as of December 28, 2001.
C. Finally, on December 18, 2001, but effective as of December 28, 2001,
Panamco Mexico, Panamco Golfo and the Bank enter into an Acknowledgment of
Debt and Obligor Substitution Agreement, by means of which (i) Panamco
Golfo assumed all Panamco Mexico's obligations acquired as of December 28,
2001,under the Agreement referred to in the preceding paragraph B; and (ii)
Panamco Mexico assumed all the joint obligor and guarantor's obligations of
Panamco Golfo, under identical terms and conditions as agreed in the loan
agreement referred to in the preceding paragraph A.
D. In the foregoing terms, Panamco Golfo, Panamco Mexico and the Bank wish to
subscribe this agreement to reflect the terms and conditions to which they
will be bound as of December 28, 2001.
Pursuant to the following representations and clauses:
REPRESENTATIONS
I. THE BANK DECLARES THROUGH ITS REPRESENTATIVE :
1. That it is a stock company (sociedad anonima) duly organized and existing
under the Mexican laws and authorized to operate as a multi-service bank,
therefore it is vested with the required powers of attorney for the execution
of, and compliance with, this agreement.
2. That its representatives have been conferred sufficient power and authority
to appear in its name and stead in the execution and performance of this
agreement and that such powers and authority have not been revoked in any manner
whatsoever.
II. BORROWER DECLARES THROUGH ITS REPRESENTATIVE:
1.- That it is a company duly organized and existing under the laws of Mexico
and that its representative has been granted sufficient power and authority to
enter into this agreement and that such powers have not been limited or amended
in any manner whatsoever.
2. That its corporate purposes includes the possibility of entering into the
kind of transactions contemplated in this Agreement pursuant to the Borrower's
by-laws as presently in effect, therefore this agreement is not in contravention
of any of the provisions of said by-laws and it is authorized for execution
thereof pursuant to the power vested in it according to the competent corporate
bodies.
3. That it has provided the Bank with the information and documents that
faithfully reflect the financial, accounting, legal and administrative condition
of the company, and that
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the same served as the basis for execution of this agreement and to obtain the
authorization of the loan subject matter hereof and as of this day, such
information and documentation has not been changed or modified in any manner
whatsoever.
III. THE JOINT OBLIGOR AND GUARANTOR REPRESENT THROUGH THEIR REPRESENTATIVES.
1. That it is a company duly organized and existing under the laws of Mexico and
its representatives have been granted sufficient power and authority to
represent it herein, and that such powers and authority have not been limited or
amended in any manner whatsoever.
2. That its corporate purpose includes the possibility of entering into the kind
of transaction contemplated hereunder, as evidenced by its corporate by-laws as
presently in effect; therefore this agreement does not contravene any of the
provisions of their corporate by-laws and has been authorized by the competent
corporate bodies.
3. That given their corporate, financial, administrative and legal relationship
with the Borrower, it is its interest to be part of this agreement and become
the Borrower's joint obligor and guarantor before the Bank with respect to the
performance of all their obligations hereunder and therefore; they wish to
become joint obligor and subscribe, as Guarantors, to the promissory note or
notes to be issued to cover the advances of the loan subject matter hereof.
IV. THE PARTIES REPRESENT:
That they acknowledge the authority vested therein and the full force and effect
of the provisions, representations and meanings in this Agreement.
Pursuant to the foregoing, the parties hereby grant the following:
CLAUSES
FIRST. PURPOSE. By means of this agreement the Bank grants to the Borrower a
Loan up to the amount of MXP 465,000,000.00 (Four hundred and sixty five million
Pesos Mexican Currency) (hereinafter the "Loan").
The abovementioned principal does not include interest, delinquent interest,
fees, accessories and other expenses to be paid by the Borrower to the Bank
hereunder.
SECOND. DRAWDOWN. It is hereby certified that in accordance with the background
chapter hereof, Panamco Holding has drawn the full amount of the Loan on
December 18, 2001, by means of drawing the amount credited to Bank to Account
No. 0110024465 (zero, one, one, zero, zero two, four, four, six, five) with the
understanding that according to the directions of Panamco Holding, the Bank
bought Dollars, currency of legal tender of the United States of America, at the
exchange rate prevailing in its financial institution, and
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transferred such amount to the Borrower's account with the Sun Trust Bank of
Atlanta, Georgia, United States of America. the Borrower subscribed in the name
of the Bank a Promissory Note covering such drawdown. On December 28, 2001, the
Bank shall cancel and return the above mentioned promissory note to Panamco
Holding, against the subscription and delivery by the Borrower to the Bank of
one or several promissory notes in the name of the Bank to evidence such
drawdown; the promissory note or notes to be subscribed by the Borrower shall be
in terms of Article 170 of the General Law of Negotiable Instruments and Credit
Transactions and this Agreement.
THIRD. USE OF THE CREDIT. The Borrower shall use the Loan proceeds precisely for
corporate purposes of a general nature.
FOURTH. INTEREST AND FEES. Ordinary Interest. The Borrower shall pay to the
Bank, during the term hereof, an ordinary interest on the outstanding principal
amount of Loan to be computed at a rate equivalent to the TIIE Rate (as defined
below) plus the Margin (as defined below).
Borrower shall pay an ordinary interest on the outstanding principal amount of
the Loan on each Interest Payment Date (as this term is defined below) from the
date of the drawdown, pursuant to Clause Second above, until the Final Payment
Date (as this term is defined below).
Should any Interest Payment Date be not a Business Day, the payment shall be
made on the immediately preceding Business Day.
For the purposes of this Agreement the following terms shall have the following
meaning:
"Business Day" means any day other than Saturday, Sunday or a holiday in which
the main offices of credit institutions in Mexico are opened to the public for
banking transactions.
"Interests Payment Date" means, with regard to the Loan, the last day of each
Interest Period;
"Final Payment Date" means the due date of the term hereof, exactly on December
16, 2003.
"Margin" means seventy-five (75) base points;
"Interest Period" means, with respect to the Loan, each 28 (twenty-eight)
calendar days that will serve as the basis for computing the Loan interest
caused by the outstanding principal amount; provided however that (i) the first
Interest Period shall commence on the date of the drawdown and shall end exactly
twenty-eight (28) calendar days thereafter, (ii) the following Interest Periods
shall commence on the last day of the immediately preceding Interest Period and
shall end twenty-eight (28) calendar days thereafter, and (iii) any Interest
Period in effect on the Final Payment Date shall end exactly on that Date;
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"TIIE Rate" shall mean the equilibrium interbanking interest rate for the 28
(twenty-eight) day term, or if the end of said period shall fall on a day which
is not a Business Day, for the 26-, 27-, 29 or 31-day term as determined by
Banco de Mexico and published in the Official Gazette of the Federation, on the
business day immediately preceding the date of commencement of each Interest
Period. In case the interest rate for any of the above referred Interest Periods
shall not be determined by Banco de Mexico, for the purposes of this Promissory
Note any rate in substitution of the "TIIE Rate" shall be considered as such
when it is so made known by Banco de Mexico.
"Delinquent Interest". If Borrower shall not pay timely any amount due to the
Bank pursuant to this Agreement, exception made of interest, such amount shall
accrue delinquent interest from due date until final payment, such interest
shall be accrued on a daily basis and shall be paid on demand at a rate
equivalent to the sum obtained by multiplying the applicable ordinary interest
rate for each day in delay by one point five (1.5) times. For the purpose of
computing delinquent interests, should the delinquency survive after the Final
Payment Date, the last Interest Period shall be considered to end upon payment
of all debts that the Borrower may have incurred hereunder.
For the calculation of ordinary interest for each Interest Period, the
applicable interest rate per annum shall be divided into three hundred and sixty
(360) the result of which shall be multiplied by the number of calendar days
comprised by the relevant Interest Period, including the drawdown date but
excluding the payment day. The resulting rate shall be multiplied by the
outstanding balance which result shall be the amount of interest that the
Borrower must pay to the Bank for each Interest Period.
For the calculation of delinquent interest, the applicable delinquent interest
rate shall be divided into three hundred and sixty (360) the result of which
shall be applied to all past due outstanding amounts and shall be the delinquent
interest for each day that the Borrower shall pay pursuant to this Agreement.
Upfront Fee. Borrower shall pay the Bank an upfront fee in the amount of MXP
$465,000.00 (Four hundred and sixty five thousand Pesos, Mexican Currency) as a
result of the original Loan to Panamco Holding as described in the Background
chapter hereof plus the corresponding Value Added Tax, to be paid by Borrower to
the Bank no later than January 7, 2002.
FIFTH. PAYMENT OF PRINCIPAL AND TERM. The Borrower shall pay to the Bank the
outstanding balance of the Loan effective on June 4, 2002, in four (4) equal
consecutive payments pursuant to the amortization table set forth in EXHIBIT "A"
hereto. Such payments of principal shall be made exactly on the dates set forth
in EXHIBIT "A".
In case a Payment Date is not in a Business Day, the payment shall be made on
the immediately preceding Business Day.
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At all events, there shall be no pending payment on behalf of Borrower of
principal or any of the accessories thereof by the Final Payment Date.
Borrower may make advance total or partial payments exclusively on the Interest
Payment Dates without a prepayment fee, by giving prior notice in writing to the
Bank at least five calendar days in advance. The minimum amount of any advanced
payment shall be MXP $25,000,000.00 (twenty five million Pesos, Mexican
Currency) or any multiple thereof.
SIXTH. PAYMENT PLACE AND CONDITIONS. All amounts payable by Borrower to the Bank
pursuant to this Agreement, including, but not limited to, the principal and
interest of the Loan, shall be paid on the dates scheduled without need of a
previous demand and to the Bank's satisfaction, in freely transferable and
available Mexican Pesos and in same day funds. Payments shall be made in any of
the Bank branches located at the Bank's domicile set forth in Clause Thirteenth
below, or in any other place that the Bank may notify the Borrower in writing at
least ten (10) days in advance of the relevant payment date.
All payments to be made Agreement hereunder that are due on a day other than a
Business Day, shall be made on agreed date immediately preceding Business Day..
The Bank shall apply all amounts received in payment by the Borrower as follows:
(i) expenses, duties and taxes that are incurred in the formalization of this
Agreement and its guarantees; (ii) collection and enforcement expenses, if any;
(iii) counsel's fees in case of enforcement; (iv) delinquent interest; (v)
ordinary interest and, (vi) principal.
SEVENTH. TAXES. The Borrower shall pay to the Bank all principal amounts plus
interest and other payable amounts pursuant to this Agreement, free and clear
from any deduction, charge or any other tax liability imposed on such amounts
now or in the future, payable in any Mexican jurisdiction.
EIGHTH. CREDIT NEGOTIATION. The Bank is expressly authorized to assign or
otherwise negotiate the Loan and the Note or Notes, even before the maturity
hereof, pursuant to the terms and conditions set forth in Article 299 and other
applicable provisions of the General Law of Negotiable Instruments and Credit
Transactions.
The Borrower shall not assign or otherwise negotiate any of the rights and
obligations hereof, except with the prior written consent of the Bank.
NINTH. AFFIRMATIVE AND NEGATIVE COVENANTS. Until full payment of the principal,
interest and other amounts indebted by the Borrower, both the Borrower and the
Joint Obligors and Guarantors shall comply with the following covenants, except
as otherwise approved by the Bank in writing:
a) Comply with any payment obligations deriving from any loan with the Bank.
b) Quarterly Financial Statements. Provide the Bank, within sixty (60) calendar
days after the end of each fiscal quarter, with individual and consolidated
internal financial statements
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(balance sheet, profits and loss statements, statements of changes in financial
condition and cash flow) duly signed by the relevant financial officer in charge
and/or the financial director, stating that such financial statements reasonably
reflect the condition of the company, subject to auditing adjustments.
c) Annual Financial Statements. Provide the bank with the annual individual and
consolidated financial statements (balance sheet, profits and loss statements,
statements of changes in financial condition and cash flow) duly audited by an
external firm of public accountants previously accepted by the Bank, within one
hundred and twenty (120) calendar days following the closing of the fiscal year.
The foregoing documents musts be signed by he corresponding officer in charge of
the finances and/or the financial director, stating that such financial
statements reasonably reflect the condition of the company.
d) Certificate of Compliance. To provide the Bank with, jointly with the
quarterly and annual financial statements referred to in clause b) and c) above,
a certificate signed by the relevant officer in charge of finances and/or the
financial director, stating that as of the date of the financial statements, the
Borrower and the Joint Obligor and Guarantor have complied with all their
obligations hereunder and no Event of Default has occurred, or otherwise stating
the measures to be adopted to cure such Event of Default.
e) Additional information. To provide the Bank with:
I. Prompt notice in writing, and in no event after ten (10) calendar days from
the occurrence of any event that may affect or affects and impairs the
current financial situation of its business, or the occurrence of any Event
of Default as provided herein, accompanied by a detailed statement of such
event and the measures or actions intended to cure the same.
II. Prompt notice in writing, and in no event after fifteen (15) calendar days
from the acknowledgment of the existence of any lawsuit or proceeding
before any governmental body or labor dispute, provided it may affect or
may potentially adversely affect its financial position.
III. The required information to determine the Borrower's credit capacity
referred to its business and/or it subsidiaries and its financial situation
whenever requested by the Bank.
f) Licenses, Authorizations, etc. Keep in full force and effect, obtain and
renew any license, authorization and approvals now or hereinafter required for
them to comply with their obligations hereunder, and to comply with any
applicable law, regulations and standards of any governmental body, the
non-compliance of which could materially and adversely affect their capacity to
meet their obligations hereunder. Also, to immediately pay any debts on taxes or
contributions to the Mexican Institute of Social Security, the Retirement
Savings System and to the Mexican Institute of Housing Funding "INFONAVIT",
except for such
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payments being contested in good faith through the proper proceedings and if the
corresponding reserves or guarantees pursuant to the applicable laws have been
made.
g) Maintenance of Assets. Make such investments as may be required in order to
maintain the company's assets or to replace them, and make the necessary repairs
and enhancements for such purpose, in order to preserve their plants and
facilities in the best working condition.
h) Insurance. Maintain such insurance as may be required to cover the fixed
assets of their companies and subsidiaries against such risks that are usual to
the business, in such amounts that will suffice to repair or replace them in the
event of casualty.
i) Inspection Rights. Permit the Bank's designees the visit to, and inspection
of, their businesses and give them access to such data or documents related to
the Loan; provided however, that a previous request in writing is made five (5)
Business Days in advance.
j. Expenses Pay or reimburse, within thirty (30) calendar days from the
execution hereof, any cost in respect of this Agreement, including but not
limited to, fees of counsels and other advisors for preparing legal documents,
any costs incurred in formalizing this Agreement before a commercial notary
public, and costs derived from the payment of dues and contributions incurred in
the registration with the corresponding Public Registries, as well as any other
similar expenses.
k) Leverage. Joint Obligor and Guarantor and its subsidiaries in a consolidated
basis shall maintain, during the term of this Agreement, (i) a Financial Debt (a
debt causing the payment of interest) to EBITDAPS (earnings before interest,
taxes, depreciation, amortization and profit sharing) ratio no greater than
three (3) times, and (ii) a Financial Debt to net worth ratio not greater than
one point two (1.2) times) For this purpose, the Financial Debt and the net
worth shall be determined based on the Borrower's last report, while EBITDAPS
shall be determined on the basis of the accumulation of the last four (4)
quarterly periods.
I) Hedge. The Joint Obligor and Guarantor and their subsidiaries, in a
consolidated basis, shall maintain during the term of this Loan, an EBITDAPS to
paid financial expenses (it being understood as such the payments made in
respect of the Financial Debt) ratio of no less than three (3) times. For this
purpose, EBITDAPS and financial expenses shall be determined on the basis of the
accumulation of the four (4) last quarterly periods.
II) Change of Line of Business . No change in the Borrower's, Joint Obligor and
Guarantor's line of business shall be made without the Bank's prior
authorization in writing and they shall remain as ongoing concerns.
m) Dissolution. Neither the Borrower nor the Joint Obligor and Guarantor may be
subject to dissolution or liquidation procedures.
n) Change of Shareholders. No change in equity interests can be made, if the
consequence of such a change is that the Borrower, the Joint Obligor and
Guarantor, their subsidiaries, or the
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administration thereof shall loss their present direct or indirect control over
the Borrower. For the purpose hereof, it will be deemed that an entity "has
control" over another, if the first one has direct or indirect power to
determine the other's direction or administration and policies, as a consequence
of the interests held by such party, or due to a contractual provision or
otherwise.
n) Encumbrances. Without the Bank's prior authorization in writing, no mortgage,
pledge or any other encumbrance whatsoever may be created or be in existence on
the current or future fixed assets of the Joint Obligor and Guarantors, by any
authorized assignee of the Borrower pursuant to Clause Eight and/or such
assignee's subsidiaries, except for any encumbrances created over the current
fixed assets the amount of which shall not exceed ten per cent (10%) of the
tangible assets value (such tangible assets being defined as the total fixed
assets less goodwill). To obtain any future funding, the fixed assets acquired
with such funding may be pledged or encumbered in any manner whatsoever. The
Borrower, the Joint Obligor and Guarantor, and any Borrower's subsidiary may
substitute pledges and other security interests with their creditors if the
value of such new guarantees shall not exceed the value of the securities being
substituted. For the purpose of this obligation, Joint Obligor and Gurantors
certifies that no encumbrance of its property is currently existing.
o) Split-off, Merger or Transfer of Interests. Without the Bank's prior
authorization in writing, none of the Borrower or Joint Obligor and Guarantor's
subsidiaries may be split-off, merged or transferred, except if (i) such a
split-off, merger or transfer shall result in the relevant subsidiary to remain
an Affiliate of the Borrower or the Joint Obligor and Guarantor, and (ii) the
sale of Maseri ▇▇ ▇▇▇▇, ▇.▇. de C.V and Industria Metalica ▇▇ ▇▇▇▇, ▇.▇. de C.V.
to third parties. For the purposes hereof, an "Affiliate" is any individual,
business, company, joint-venture, trust or any other entity or organization that
controls, or is controlled by, or under the control of the entity in question.
p) Dividends. Without the Bank's prior authorization in writing, no dividends
can be decreed by the Borrower or the Joint Obligor and Guarantor, if they have
not complied with their obligations hereunder, or if such decree may result in
the contravention hereof or any other contract with a third party then in
effect.
q) Sale of Trademarks. Without the Bank's prior authorization in writing,
neither the Borrower nor the Joint Obligors and Guarantors shall sell their
trademarks and shall preserve their trademark distribution franchises held by
each of them as of the date hereof. Nevertheless they may sell their registered
trademarks to any Affiliate, unless they contravene any of their obligations
hereunder. For the purposes hereof, a list of the trademarks owned by the Joint
Obligor and Guarantor is attached hereto as Exhibit "B" in evidence of its
rights pursuant to license agreements.
r) Preferential Terms on Securities and Payment Flows. Without the Bank's prior
authorization in writing, neither the Borrower or Joint Obligors and Guarantors
shall grant any preferential terms on securities or flow of payments
subordinating the Bank's position.
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s) Granting of Loans and Securities. Without the Bank's prior authorization in
writing, neither the Borrower or the Joint Obligor and Guarantor shall (i) grant
loans or securities to any third parties other than their subsidiaries or
affiliates; and (ii) grant loans or securities to subsidiaries or affiliates
other than in the normal course of business.
t) Cash flow: Without the Bank's prior authorization in writing, neither the
Borrower nor the Joint Obligor and Guarantor shall compromise their cash flow in
favor of third parties.
u) Amendment of the ING Loan. Without the Bank's prior authorization in writing,
neither the Borrower nor the Joint Obligor and Guarantor shall amend the loan
agreement referred to in Clause Twelfth hereof.
v) Limit of Indebtedness. Without the Bank's prior authorization in writing, the
Borrower shall not incur in additional indebtedness in amounts exceeding
USD$25,000,000.00 (twenty five million Dollars, legal tender of the United
States of America) with the understanding that (i) for each payment of the
principal sum made by the Borrower pursuant to Claus Fifth, the limit set forth
hereof shall be increased in the same amount of such payment of principal; and
(ii) to the purposes of this paragraph u) it shall be not considered an
"additional indebtedness" of the loan referred to in Clause Twelfth.
w) Delivery of Corporate Documents. No later than December 28, 2001, Borrower
must deliver to the Bank a duly notarized and apostilled transcript of the
following:
(i) The Panamco Holding's Articles of Incorporation, as amended.
(ii) The Panamco Holding-s By-laws, as amended.
(iii)The Panamco Holding's Board of Director's minutes of November 9,
2001, by means of which it was resolved, among some other issues, the
contracting of the Loan hereof; and
(iv) The Panamco Holding's Incumbency Certificate stating the powers with
which the Borrower executes this Agreement.
If the Borrower or the Joint Obligor and Guarantor shall incur a debt in breach
of the obligations provided in preceding clauses r), s) t) and v) the relevant
debt shall become subordinated to the preferential position granted to the Bank
hereunder.
TENTH. EVENTS OF DEFAULT. The term to pay the Loan or the accessories thereof
may be terminated in advance in case of occurrence of the following events (each
of which shall be an "Event of Default"):
1. If creditor shall not timely and fully pay any past due advance of the
principal amount, accrued interest, fees, cost or expenses as a result of
this instrument and related to the Loan;
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2. If any Mexican or foreign institution shall declare the acceleration of any
payment obligations as a result of a Borrower's or Joint Obligor and
Guarantor's default to its present and future obligations, including
transactions traded among the public at large; provided however, that (i)
such payment obligations shall exceed USD$ 20,000,000.00 (twenty million
dollars, legal tender of the United States of America) o its equivalent in
Mexican currency, or (ii) the actions taken by the creditor are to the
Bank's disadvantage in respect to this Credit's collection;
3. If Borrower or any Joint Obligor and Guarantor shall cease to pay without
cause any tax obligation, contributions to the Mexican Institute of Social
Security, the INFONAVIT or the Retirement Savings Systems (or a
contribution to the corresponding Retirement Fund Administrators, if any)
except when making the corresponding reserves and the payments thereto are
being contested in good faith; or if the Borrower, any of the Joint Obligor
and Guarantor and/or their subsidiaries shall be declared on strike or
intervened, and their payment capacity shall be at risk, or in case of any
conflicts that may adversely affect the good operation of the Borrower or
the Joint Obligor and Guarantor and/or their subsidiaries, except whenever
said conflicts are contested in good faith and the relevant reserves have
been made;
4. If Borrower, the Joint Obligor and Guarantor and their subsidiaries shall
not deliver the information required hereunder, provided such default shall
not be not cured within five (5) Business Day from the date of
notification;
5. If any of the Borrower or the Joint Obligor and Guarantor's assets are
seized by a judicial, administrative or other authority, the value of which
exceeds USD$ 20,000,000.00 (Twenty million Dollars, legal tender of the
United States of America) or its equivalent in Mexican currency;
6. If a proceeding shall be brought by or against the Borrower or the Joint
Obligor and Guarantor in order to have them adjudged in bankruptcy;
7. If Borrower or the Joint Obligor and Guarantor be adjudged the payment of
an amount exceeding or equal to USD$20,000,000.00 (Twenty million dollars,
legal tender of the United States of America) or its equivalent in Mexican
currency and there were no reserves theretofore or any remedy of appeal or
other proceeding against such judgment;
8. If Borrower or the Joint Obligor and Guarantor shall not comply with its
payment obligations on the Financial Debt for an amount exceeding USD
$20,000,000.00 (Twenty million dollars, legal tender of the United States
of America) its equivalent in any another currency in respect of any debt
under any other agreements, notes or other instruments covering Financial
Debt, or if such debt is accelerated by the corresponding creditors;
9. If Creditor or the Joint Obligor and Guarantor decrees the payment of
dividends while the Borrower is in default in the payment of fees,
interest, principal and/or any other
costs referred to the Loan, or if the Joint Obligor and Guarantor is in
default with respect to any of the financial ratios set forth in paragraphs
k) and l) of Clause Ninth hereunder, or if as the result of the dividends
paid, the Borrower or the Joint Obligor and Guarantor shall fail to comply
with any of its commitments hereunder;
10. If for any Interest Period it is determined that the interest rate cannot
be defined, and/or the basis for the funding cost shall not reflect the
manner in which the Loan is maintained and/or funded, without prejudice of
the right of the parties to enter into an amendment agreement,
11. If any of the Joint Obligor and Guarantor shall split-off or merge, thereby
affecting its corporate structure and financial good standing in such a way
that the financial ratios established in paragraphs k) and l) of Clause
Ninth hereunder are not complied with,
12. If Borrower shall incur in an event of default under the loan referred to
in Clause Twelfth. or
13. If by December 28, 2001, Borrower has not delivered to the Bank a written
opinion of an authorized counsel admitted for practice in the Republic in
Panama, certifying that:
a) Panamco Holding is duly organized under the laws of the Republic of
Panama;
b) Panamco Holding's by-laws do not include any provision that hinders
the Panamco Holding from executing the Agreement referred to in
paragraph A of the Background chapter hereunder;
c) The Panamco Holding's execution hereunder is not in violation of any
public order provision in the Republic of Panama,
d) Panamco Holding has obtained all the authorizations required by its
corporate bodies for the execution of the Agreement referred to in
paragraph A of the Background chapter hereunder; and
e) The Panamco Holding's representative executing the Agreement referred
to in paragraph A of the Background chapter hereof and the promissory
note to evidence the Loan drawdown thereunder, had been granted
sufficient powers to do so,
14 If Borrower shall not comply with any of its obligations hereunder.
If any of the above mentioned Events of Default shall occur, the Bank may
accelerate the term for payment of the Loan and other accessories set forth
herein and the Borrower shall pay the Bank forthwith the total amount of such
Loan as well as all other outstanding amounts hereunder, in which case, any
promissory note or notes subscribed by the Borrower shall become immediately due
and payable.
12
ELEVENTH. JOINT OBLIGOR AND GUARANTOR. Panamco Mexico, S.A. de C.V. is hereby
constituted joint obligor with the Borrower with respect to any and all
obligations deriving from this Agreement attributable to the Borrower to the
benefit of the Bank, in terms of the joint liability set forth in Articles 1987
and 1988 of the Civil Code for the Federal District.
This joint liability includes the total payment of the Loan's principal plus the
payment of interest, fees and other related accessories that may arise
therefrom.
In addition, the Joint Obligor undertakes to subscribe, as Guarantor, the
promissory note or notes that evidence the drawdowns of the Loan subject matter
of this Agreement.
TWELFTH. THE ING CREDIT. The parties acknowledge that on December 28, 2001,
Panamco Golfo shall assume the Panamco Holding's obligations and Panamco Mexico
shall become the Joint Obligor and Guarantor under the loan agreement with ING
Bank (Mexico), S.A., Institucion de Banca Muliple, ING Baring Grupo Financiero
(Mexico), S.A. de C.V. in the amount of MXP 465,000,000 (Four hundred and
seventy five million pesos Mexican Currency) (hereinafter the "ING Loan".)
The parties agree that the Loan subject matter of this Agreement and the ING
Loan shall have the same priority.
THIRTEENTH. NOTICES. Any communication to be given among the parties hereto
shall be given in writing by registered mail return receipt requested, and
addressed to the corresponding party, in an unquestionable manner, to the
following addresses of the parties:
IF TO THE BANK: ▇▇▇▇▇▇ Urales ▇▇. ▇▇▇, ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ de Chapultepec, C.P. 11000,
Delegacion ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Mexico, Distrito Federal
IF THE BORROWER: Blvd. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇ ▇▇
▇▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, C.P. 11000
Delegacion ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mexico, Distrito Federal
IF TO JOINT OBLIGORS AND
GUARANTORS: Blvd. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇ ▇▇
▇▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, CC.P. 11000
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇
Any change in the Borrower's or the Joint Obligor and Guarantors' addresses must
be notified to the Bank in writing, return receipt requested, at least ten (10)
calendar days in advance to the effectiveness of said change. Otherwise, all
notices or any other judicial or extra judicial notices given to the addresses
set forth herein shall be considered as validly made for all legal effects that
may apply.
FOURTEENTH. EXPENSES. The Borrower shall pay to the Bank, (i) any and all costs,
expenses, notaries and brokerage fees, taxes and all the necessary
protocolization, formalization and registry duties for the execution hereunder
and, as the case may be, for the creation and maintenance of the guarantees as
agreed hereunder, and (ii) all such costs, expenses and legal fees as may be
incurred by Bank in the event a legal action is initiated as a result of this
Agreement or any other instrument executed thereunder.
FIFTEENTH. CREDIT INFORMATION. Borrower expressly represents that it has
knowledge that the companies supplying credit information are aimed at providing
such services on the credit transactions of credit institutions with individuals
and companies, therefore Borrower has no inconvenience and agrees that the Bank
may provide information referred to this Loan to one or more of the above
mentioned companies.
Also, Borrower hereby expressly authorizes the Bank, if deemed convenient at any
time, to request information on the Borrower's creditworthiness from the above
mentioned companies.
Borrower waives any right to initiate any legal proceeding against the Bank that
may arise as the result of the Banks making use of the authority vested to it
herein.
SIXTEENTH. SET-OFF. In the event that Borrower must pay the Bank, at any time,
any sum pursuant to this instrument and Borrower shall fail to comply with such
payment obligation, Borrower hereby irrevocably authorizes the Bank, to the
extent authorized by statute, to debit any of the Borrower's deposit and/or
account with the Bank (including, but not limited to, demand deposits or,
savings, term, demand, provisional or final accounts; investment accounts of
whatever nature, with special inclusion of the amounts that the Bank's trustee
division maintains in the name of the Borrower pursuant to any investment
contract) and to set-off any debt the Borrower may have with the Bank regardless
of the reason, up to an amount that is equal to the amount indebted to the Bank,
without need of any requirement, notice or demand whatsoever.
The Bank shall notify the Borrower, as soon as practicable, of any charge or
set-off it may have made in accordance with this clause, provided however that
the absence of such notice shall not affect in any other manner the validity of
such charge or set-off. The Banks right pursuant to this clause is in addition
of any other right (including other set-off rights) that the Bank might have.
SEVENTEENTH. NOTICE OF TERMINATION OF COMMITMENT. It is expressly agreed that
the Bank has the right to terminate the commitment hereunder on an unilateral
14
basis at any time whatsoever pursuant to Article 294 of the General Law of
Negotiable Instruments and Credit Transactions, by means of a notice in writing
to the Borrower.
EIGHTEENTH. DISCLOSURE OF TERMS AND CONDITIONS. Except as provided in Clause
Fifth, the terms and conditions hereunder cannot be made known to the public
without the prior consent of the parties; without prejudice of the requirements
of competent authorities and of the obligations such parties may be subject to
under applicable laws.
NINETEENTH. EFFECTIVENESS. This Agreement reflects the terms and conditions
under which the parties are bound as of December 28, 2001, as a result of the
agreements referred to in paragraphs B and C of the Background chapter hereof.
In the foregoing terms, this agreement shall be in effect as of December 28,
2001 and shall substitute and supersede the agreement described in paragraph A
of the Background chapter hereof, but it shall not imply a renewal of the
obligations therefrom.
TWENTIETH. JURISDICTION AND APPLICABLE LAW. For the interpretation of, and
compliance with, this Agreement the parties submit themselves to the applicable
laws, and to the jurisdiction of the competent courts of Mexico City, Federal
District, expressly waiving hereby, any other jurisdiction that may correspond
to them in view of their present or future domiciles, or otherwise.
In witness whereof, the parties hereto have caused this Agreement to be executed
in three counterparts, one counterpart for each party, in Mexico City, Federal
District, on December 18, 2001, for all legal effects to become effective on
December 28, 2001.
THE BANK
BBVA BANCOMER, S.A.,
INSTITUCION DE BANCA MULTIPLE
GRUPO FINANCIERO BBVA BANCOMER
Represented by:
(Illegible signature) (Illegible signature)
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Thierry ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE BORROWER
PANAMCO GOLFO, S.A. DE C.V.
Represented by:
(Illegible signature) (Illegible signature)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
JOINT OBLIGOR AND GUARANTOR
PANAMCO MEXICO, S.A. DE C.V.
Represented by:
(Illegible signature) (Illegible signature)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
15
EXHIBIT "A"
AMORTIZATIONS TABLE
-----------------------------------------------------------------------
PAYMENT DATE PRINCIPAL AMOUNT TO BE PAID
-----------------------------------------------------------------------
June 4, 2002 MXP$116,250,000.00
-----------------------------------------------------------------------
December 17, 2002 MXP $116,250,000.00
-----------------------------------------------------------------------
June 3, 2003 MXP $116,250,000.00
-----------------------------------------------------------------------
December 16, 2003 MXP $116,250,000.00
-----------------------------------------------------------------------
16
EXHIBIT "B"
TRADEMARKS
I. Trademarks under the Coca-Cola Company license
1. Coca-Cola
2. Coca-Cola Light
3. Fanta
4. Sprite
5. Sprite Light
6. Fresca
7. Lift
8. Delaware Punch
9. Chispa
10. Fruitopia
11. Senzao
12. Powerade
13. Quatro
14. Beat
15. Sonfil
II. Trademarks owned y Panamco Mexico, S.A. de C.V. or its subsidiaries:
1. Risco
2. Keloco
3. Plastesha
17
