EXHIBIT 10.29
ACCOUNT OPENING AGREEMENT
FOR AN ASSET LINKED TIME DEPOSIT
This ACCOUNT OPENING AGREEMENT dated as of July 18, 2000 (the "Agreement"), is
made between Panamerican Beverages, Inc. (the "Depositor"), and Citibank,
N.A., New York Branch (the "Bank"). The terms of each Deposit made hereunder
shall be governed by this Agreement and a written confirmation
("Confirmation") relating thereto.
SECTION 1. Deposits. (a) The Depositor may from time to time make US Dollar
time deposits with the Bank (each a "Deposit"), which are repayable in US
Dollars; provided, however that if one or more Risk Events occurs or is
continuing within a selected foreign jurisdiction (the "Reference
Jurisdiction"), on any day during the Risk Event Determination Period (as
defined in each Confirmation) the Deposit shall be repayable as set forth in
the relevant Confirmation. Promptly following the date on which the Depositor
agrees with the Bank to make or renew a Deposit (the "Transaction Date"), the
Bank shall send a Confirmation to the Depositor completed to reflect the terms
of such Deposit.
(b) Each Confirmation shall set forth, among other things, (a) the Transaction
Date, (b) US Dollar amount of the Deposit (the "Deposit Amount"), (c) the date
by which the Depositor shall deposit the Deposit Amount with the Bank (the
"Final Placement Date"), (d) the date on which the Deposit matures (the
"Maturity Date"), (e) the rate of interest, if any, which will accrue on the
Deposit Amount (the "Interest Rate"), (f) the amount of principal and interest
the Depositor shall be entitled to receive from the Bank after the maturity of
the Deposit (the "Repayment Amount"), (g) the date on which the Repayment
Amount is to be paid to the Depositor (the "Final Payment Date"), (h) the
Reference Currency, and (i) the Risk Events and the Early Termination Events,
if any. Unless the Depositor, by notice to the Bank given within two Business
Days after the receipt of such Confirmation, objects to the Confirmation such
Confirmation shall be conclusive and binding on the parties, absent manifest
error.
(c) On or prior to the Final Placement Date, the Depositor shall deposit the
Deposit Amount with the Bank and the Bank shall credit such amount to the
account of the Depositor on the date of such deposit. If the Depositor fails
to deposit the Deposit Amount with the Bank on or prior to the Final Placement
Date, the Bank shall have no obligation to the Depositor hereunder with
respect to such Deposit Amount or any purported Deposit (other than to
promptly return the same to the Depositor if and when deposited) and the
Depositor shall compensate the Bank for any loss, cost or expense that the
Bank determines is attributable to the failure to deposit the Deposit Amount
with the Bank by the Final Placement Date.
(d) As used in this Agreement, "Business Day" shall mean a day on which
commercial banks are not required or authorized to close in New York, N.Y. and
the Reference Jurisdiction.
THE BANK SHALL BE THE ONLY ENTITY OBLIGATED TO MAKE PAYMENT TO THE DEPOSITOR IN
ACCORDANCE WITH THE TERMS HEREOF, AND NO OTHER ENTITY, INCLUDING WITHOUT
LIMITATION, ANY AND ALL AFFILIATES OF THE BANK OR OTHER BRANCHES OF CITIBANK,
N.A. SHALL BE SO OBLIGATED.
SECTION 2. Repayment Amount. Except in the event of renewal of a Deposit or
the occurrence of a Risk Event or an Early Termination Event (if applicable)on
any day during the Risk Event Determination Period, on the Final Payment Date
the Bank shall pay to the Depositor the Repayment Amount.
SECTION 3. Payment of the Repayment Amount. Except in the event of renewal of
a Deposit or the occurrence of a Risk Event on any day during the Risk Event
Determination Period, on the Final Payment Date the Bank shall wire transfer
in immediately available funds the Repayment Amount to a US Dollar account
which the Depositor shall have identified to the Bank at least three Business
Days prior to the Final Payment Date.
SECTION 4. Payment of the Repayment Amount upon occurrence of a Risk Event. If
a Risk Event (as defined in the relevant Confirmation) shall have occurred
during the Risk Event Determination Period, then the Bank or a party
designated by the Bank shall pay the Depositor, the Repayment Amount in such
form and to such account as set forth in the relevant Confirmation. Upon
Bank's satisfaction of its obligations to the Depositor pursuant to the terms
of the relevant Confirmation, the obligations of the Bank with respect to any
such Deposit shall be fully satisfied and discharged.
SECTION 5. Acknowledgments of the Depositor. The Depositor acknowledges,
warrants and represents that:
(a) The Depositor (i) is a duly organized and validly existing corporation in
good standing under the laws of jurisdiction of its incorporation, (ii) has
the power and authority to execute, deliver and perform this Agreement and any
relevant Confirmation.
(b) Upon execution of this Agreement and the Confirmation, each such agreement
shall constitute a legal, valid and binding obligation of the Depositor
enforceable in accordance with its terms.
(c) None of the execution, delivery and performance by the Depositor of this
Agreement and the Confirmation and the transactions contemplated thereby will
(i) conflict with any law, statue rule, regulation, order or decree applicable
to the Depositor, (ii) will conflict or with or cause Depositor to be in
breach of any agreement to which Depositor is a party, nor (iii) will violate
any provision of any corporate documents, including the by-laws and articles
of incorporation relating to the Depositor or the Borrower.
(d) The Depositor is a sophisticated investor and any Deposit hereunder is a
suitable investment consistent with its financial and investment objectives;
its financial condition is such that it has no
need for liquidity with respect to any Deposit and no need to dispose of, or
withdraw early, any Deposit or portion thereof to satisfy any existing or
contemplated undertaking or indebtedness; and the aggregate amount deposited
by the Depositor with the Bank is not disproportionate to its net worth, and
that it is able to bear any loss in connection with any Deposit, including the
loss of all or any portion of the Deposit Amount with respect to any Deposit
hereunder.
(e) In making a Deposit hereunder, it has not relied at all upon any advice,
information or recommendation provided by the Bank or any of its affiliates
but has independently considered, after consulting with its own legal,
investment, accounting, regulatory and tax advisors, the benefits and risks of
making a Deposit hereunder.
(f) It is knowledgeable of, or experienced with, the risks of an investment
the payment of which is indexed to non-U.S. currencies or assets denominated
in non-U.S. currencies, which risks include, but are not limited to, (i)
adverse economic, political, legal, accounting and tax matters specific to
such foreign jurisdiction, (ii) laws limiting or controlling foreign trade or
exchange in such foreign trade or exchange in such foreign jurisdictions (for
example, certain foreign jurisdictions have been and may continue to be
subject to trade barriers, exchange controls, managed adjustments in relative
currency values and other similar measures, and such government intervention
may increase risks to investors, including the risk that borrowers may be
unable to meet payment obligations on foreign currency-denominated assets or
may be legally barred from making payments in foreign currency, (iii)
inflation in the relevant foreign jurisdictions, inflation, and rapid
fluctuations in inflation rates have had and may continue to have negative
effects on the economies and markets of such jurisdictions), and (iv) high
volatility of many emerging markets currencies and interest rates.
(g) It has consulted with its own legal, investment, accounting, regulatory
and tax advisors to determine that each Deposit is consistent with any legal
investment restrictions applicable to the Depositor. It understands that upon
the occurrence of a Risk Event it may become the holder of record of any
Reference Obligation relating to any particular Deposit. It has reviewed the
terms of such Reference Obligation and (i) understands the risks relating to a
Deposit linked to such Obligation, and (ii) represents that it is willing and
capable of accepting title to any such Reference Obligation. It is familiar
with the respective jurisdictions of the currencies which may affect the
occurrence of a Risk Event and the calculation of the Repayment Amount (if
any) with respect to any Deposit made hereunder and accepts that the Alternate
Obligations Upon the Declaration of a Risk Event, as set forth in the
Confirmation, may result in a loss of part or all of the principal and
interest payable on the Final Payment Date.
(h) THE DEPOSITOR FULLY UNDERSTANDS THAT THE BANK'S OBLIGATIONS HEREUNDER ARE
THE OBLIGATIONS OF CITIBANK, N.A., ONLY AND THAT SUCH OBLIGATIONS ARE NEITHER
GUARANTEED BY, NOR THE OBLIGATIONS OF, ANY BRANCH OF CITIBANK, N.A. OR ANY OF
ITS AFFILIATES; PROVIDED, HOWEVER, THAT IN CASE OF PAYMENTS IN REFERENCE
CURRENCY (IF APPLICABLE), A BRANCH OR AN AFFILIATE OF CITIBANK, N.A. MAY BE
OBLIGATED TO MAKE A PAYMENT HEREUNDER. IT FULLY UNDERSTANDS THAT SUCH
OBLIGATIONS ARE INSURED BY THE UNITED STATES FEDERAL
DEPOSIT INSURANCE CORPORATION ONLY UP TO THE AMOUNTS PROVIDED BY LAW AND THAT
SUCH DEPOSITS INVOLVE RISKS INCLUDING POSSIBLE LOSS OF ALL OR A PORTION OF THE
DEPOSIT AMOUNT PLUS INTEREST DUE THEREON.
(i) THE DEPOSITOR ALSO ACKNOWLEDGES AND ACCEPTS THAT IF A RISK EVENT SHALL
OCCUR OR CONTINUE ON ANY DAY DURING THE RISK EVENT DETERMINATION PERIOD IN
LIEU OF THE REPAYMENT AMOUNT, CITIBANK, N.A. SHALL FOLLOW PROCEDURES DESCRIBED
IN THE CONFIRMATION UNDER THE SECTION "ALTERNATE OBLIGATIONS UPON OCCURRENCE
OF A RISK EVENT."
SECTION 6. Illegality; Impossibility. Except with respect to the provisions of
Section 4, in the event that the Bank shall have determined in good faith that
its performance under this Agreement with respect to any Deposit (a) shall
have become unlawful on or prior to the Maturity Date in whole or in part as a
result of compliance in good faith by the Bank with any applicable law, rule,
regulation, judgment, order or directive of any governmental, administrative,
legislative or judicial authority or (b) shall, on or prior to the Maturity
Date, have become impossible to perform as a result of any cause occurring or
condition commencing after the Transaction Date for such Deposit that is
beyond the control of the Bank and that did not result from the gross
negligence or willful misconduct of the Bank, then the Bank shall give notice
thereof to the Depositor, and the Bank and the Depositor shall promptly
negotiate in good faith with a view to finding a satisfactory alternative
method of payment or performance to avoid such illegality or impossibility on
or prior to the Maturity Date. If at the end of a period of 30 days after the
giving of such notice (or such shorter period as may end on the Maturity Date)
the Bank and the Depositor have not agreed upon such a satisfactory
alternative method, either the Bank or the Depositor may terminate the
affected Deposit within 30 days thereafter by designating a Business Day on or
prior to the Final Payment Date on which the portion of the Deposit Amount
with respect to such Deposit shall be withdrawn in US Dollars to the fullest
extent it is legally permissible to do so, with interest at a rate determined
by the Bank with reference to amounts received by the Bank with respect to
funds which are the subject of this Deposit. In the event it becomes illegal
under the laws of the Bahamas or otherwise impossible due to events in the
Bahamas beyond the Bank's control for the Bank to pay the Repayment Amount on
the Final Payment Date (or such other payment date as is specified in this
Section 6), such payment obligations shall be suspended until such date as
such payment can be made. Upon termination of such suspension, the Repayment
Amount shall be paid with interest at a rate determined by the Bank with
reference to amounts received by the Bank with respect to funds which are the
subject of this Deposit.
SECTION 7. Set-off. Each party to this Agreement agrees that, upon the
insolvency of Depositor or any of its Affiliates or the default of Depositor
or any of its Affiliates ("Party X") under any transaction with the other
party hereto or any of such other party's Affiliates (such other party or any
of its Affiliates, a "Non-Defaulting Party"), each Non-Defaulting Party may,
to the extent permitted by law without prior notice to Party X: (a) liquidate
any transaction between Party X and any Non-Defaulting Party (which
liquidation may include the conversion of amounts denominated in multiple
currencies into a single currency if deemed necessary or desirable by the
Non-Defaulting Party), (b) reduce any amounts due and owing to Party X under
any transaction between Party X and any Non-Defaulting Party by setting off
against such amounts any amounts due and owing to a Non-Defaulting Party by
Party X or any of Party X's Affiliates, and (c) treat all security for, and
all amounts due and owing to Party X under, any transaction between Party X
and any Non-Defaulting Party as security for all transactions between Party X
or any of Party X's Affiliates and any Non-Defaulting Party; provided,
however, that the exercise of the remedies described in clauses (a), (b) and
(c) above (or in any other similar provision in any agreement between the
parties) shall be deemed to occur immediately subsequent to, but independent
of, the exercise of any netting, liquidation, set-off or other similar
provision contained in any master agreement between the parties; provided
further that each provision and agreement hereof shall be treated as
independent from any other provision or agreement herein and shall be
enforceable notwithstanding the unenforceability of any such other provision
or agreement.
SECTION 8. Transfer.
(a) The Depositor may not sell, assign, transfer, pledge, hypothecate or
otherwise dispose of (other than an involuntary disposition occurring from
operation of law) any of its rights or obligations hereunder or with respect
to any Deposit hereunder except with the prior written consent of the Bank,
and any such sale, assignment, transfer, pledge, hypothecation or other
disposition may only be effected by the recordation thereof on the books and
records of the Bank. The Depositor shall pay or reimburse the Bank for paying
any taxes and governmental charges payable in connection with any such sale,
assignment, transfer, pledge, hypothecation or other disposition.
(b) This Agreement shall be binding upon the Bank and the Depositor and their
respective successors and permitted assigns.
SECTION 9. Amendment, Etc. This Agreement may not be amended, waived or
otherwise modified except by an instrument in writing signed by the party
against whom the amendment, waiver or other modification is sought to be
enforced.
SECTION 10. Miscellaneous.
(a) Duration and Termination. The Bank or the Depositor may terminate this
Agreement at any time by written notice to the counterparty at least two
Business Days before the date on which termination is to be effective;
provided that for Deposits still outstanding, this Agreement shall continue to
be effective until their respective payments as provided herein.
(b) GOVERNING LAW. THIS AGREEMENT AND EACH DEPOSIT (INCLUDING WITHOUT
LIMITATION, THE INTERPRETATION OF THE TERMS OF THE RIGHTS, DUTIES AND
OBLIGATIONS OF THE BANK UNDER THIS AGREEMENT AND EACH DEPOSIT ISSUED HEREUNDER
AND THE CALCULATION OF THE REPAYMENT AMOUNT REFERRED TO THEREIN) SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS
(c) JURISDICTION AND SUBMISSION. THE BANK AND THE DEPOSITOR EACH HEREBY
IRREVOCABLY: (I) SUBMITS TO THE JURISDICTION OF THE COURTS OF COMPETENT
JURISDICTION SITTING IN NEW YORK CITY IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING HERETO; (II) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING; AND (III) WAIVES ANY RIGHTS TO DEMAND TRIAL BY JURY.
(d) Notices. Unless otherwise expressly provided herein, any notice or other
communication hereunder from the Depositor to the Bank shall be in writing and
shall be deemed to be given and effective upon delivery thereof. All notices
and other communications under this Agreement shall be in writing and
addressed as follows:
If to the Bank: If to the Depositor:
Citibank, N.A Panamerican Beverages Inc.
390 Greenwich Street Torre Dresdner Bank, 7th
Floor 4th Floor Panama City, Panama
New York, NY 10013
Attn. Attn. Chief Financial Officer
Valentina Antill Phone: (507) 223-8723
Emerging Markets Derivatives Fax: (507) 223-8308
And Structured Products
Phone: (212) 723-6059
Fax: (212) 723-8649
or in such other manner or to such other address as may from time to time be
designated by the intended recipient by written notice to the other party.
Without limiting the foregoing requirement that any notice or other
communication hereunder from the Depositor to the Bank shall be in writing,
the Bank may rely, and shall be fully protected in acting or refraining from
acting, upon any oral notice or other communication given by any individual
that the Bank reasonably believes in good faith to be the Depositor or a
person or entity authorized to give such notice or other communication on
behalf of the Depositor.
On or prior to the execution of this Agreement, the Depositor has delivered to
the Bank specimen signatures of the representatives of the Depositor who are
authorized to give notices and instructions with respect to this Agreement.
The Bank may conclusively rely on such certificate until the Bank receives
written notice from the Depositor to the contrary.
(e) Entire Agreement. This Agreement sets forth all of the promises,
covenants, agreements, conditions and understandings between the Bank and the
Depositor with respect to the subject matter hereof, and supersede all prior
and contemporaneous agreements and undertakings, inducements or conditions,
express or implied, oral or written.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered as of the date and year first above written.
Citibank, N.A. Panamerican Beverages, Inc.
By: By:
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Name: Valentina Antill Name:
Title: Vice President Title:
Date: Date: