EXHIBIT 10.32
JOINDER AGREEMENT
JOINDER AGREEMENT (this "Agreement"), dated as of November 24,
2000, among PANAMERICAN BEVERAGES, INC., a corporation organized under the
laws of Panama (the "Borrower"), ING BARING (U.S.) CAPITAL LLC, as
Administrative Agent under the Credit Agreement (as defined below), and HUA
NAN COMMERCIAL BANK LTD., NEW YORK AGENCY, as (the "New Lender"). Unless
otherwise defined herein, the terms used herein and defined in the Credit
Agreement referred to below shall be used herein as therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, and the Administrative Agent
are parties to that certain Amended and Restated Credit Agreement, dated as
of November 21, 2000 (as amended, modified or supplemented from time to
time, the "Credit Agreement"), pursuant to which the 2000 Lenders made
Advances to the Borrower in the principal amount of U.S.$126,333,333.35;
and
WHEREAS, pursuant to Section 8.01 of the Credit Agreement, the
New Lender desires to make an Advance in the principal amount of U.S.
$10,000,000 and acquire the rights and obligations of a Lender under the
Credit Agreement and the other Loan Documents;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. The New Lender hereby irrevocably commits to advance on the
Joinder Date in accordance with the terms hereof and the Credit Agreement,
without recourse and without representation or warranty (except as
expressly provided herein), the principal amount of U.S. $10,000,000 (the
"New Advance") and, upon the making of such New Advance shall assume all
rights and obligations of a Lender under the Credit Agreement and the other
Loan Documents in respect of the New Advance. The Lenders' pro rata shares
of the aggregate principal amount of the Advances outstanding under the
Credit Agreement and the Notes following the consummation of the
transactions contemplated hereby are reflected on Schedule 1.
2. (a) No later than 12:00 noon (New York time) on November 29,
2000 (the "Joinder Date"), the New Lender shall transfer to the
Administrative Agent's Account in U.S. Dollars and in immediately available
funds an amount equal to the New Advance, pursuant to the wire instructions
provided in Schedule 2 hereto in exchange for a duly executed Note from the
Borrower, substantially in the form of Exhibit A hereto, payable to the
order of the New Lender. From and after the Joinder Date and the transfer
by the New Lender of the amount required to be transferred pursuant to the
foregoing sentence, the New Lender shall be a party to the Credit Agreement
as a "Lender" and, to the extent of its New Advance, shall have the rights
and obligations of a "Lender" under the Credit Agreement and the other Loan
Documents, in each such case as if originally named therein as a Lender,
and shall be bound by the provisions thereof.
(b) From and after the Joinder Date, the Administrative Agent
shall make all payments in respect of the New Advance (including payments
of principal, interest, fees and other amounts) to the New Lender to the
extent such amounts accrue after the Joinder Date. The New Lender and the
Borrower hereby acknowledge and agree that the initial Interest Period
applicable to the New Advance shall end on February 22, 2001.
3. The Administrative Agent:
(a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, the
other Loan Documents, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or the other Loan
Documents, except that it has not created any adverse claim upon the New
Advance and the New Advance is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no
responsibility with respect to the solvency or financial condition of the
Borrower or the performance or observance by the Borrower or of any of its
respective obligations under the Credit Agreement or the other Loan
Documents; and
(c) requests that the Borrower deliver to the Administrative
Agent Notes payable to the New Lender in the amount of the New Advance as
of the Joinder Date.
4. The New Lender:
(a) represents and warrants that it is legally authorized to
enter into this Agreement;
(b) confirms that it has received a copy of the Credit Agreement
and each other Loan Document and such other documents and financial and
other information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Agreement and become a party to
the Credit Agreement;
(c) agrees that it will, independently and without reliance upon
the Administrative Agent, 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 the Credit Agreement and the
other Loan Documents;
(d) appoints and authorizes the Administrative Agent to take such
action, as agent, on its behalf and to exercise such powers and discretion
under the Credit Agreement and the other Loan Documents as are granted or
delegated to the Administrative Agent by the terms thereof, together with
such powers as are incidental thereto; and
(e) agrees that as of the Joinder Date it will be bound by the
provisions of the Credit Agreement and the other Loan Documents and will
perform in accordance with its terms all the obligations which by the terms
of the Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender to the same extent as if originally a party
thereto.
5. The Borrower and the Administrative Agent hereby consent to
the transfer of the New Advance pursuant hereto and to the New Lender
becoming a party to the Credit Agreement as of the Joinder Date.
6. From and after the Joinder Date, the Lending Office of the New
Lender and the location for notices and other communications required or
permitted to made to the New Lender under the Credit Agreement and the
other Loan Documents shall be as set forth on Schedule 3 hereto, unless and
until the New Lender provides written notice of any change thereof in the
manner provided in the Credit Agreement.
7. (a) This Agreement may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against
which enforcement of such change, waiver, discharge or termination is
sought.
(b) This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of the
parties hereto.
(c) This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the laws
of the State of New York, United States of America.
(d) This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
when so executed and delivered shall be deemed an original, and all of
which when taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be executed and delivered by its duly authorized officer as of
the date first above written.
PANAMERICAN BEVERAGES, INC., as Borrower
By:
Name:
Title:
ING BARING (U.S.) CAPITAL LLC,
as Administrative Agent
By:
Name:
Title:
HUA NAN COMMERCIAL BANK, LTD.,
NEW YORK AGENCY, as New Lender
By:
Name:
Title:
EXHIBIT A
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NOTE
U.S. $ Dated: November , 2000
FOR VALUE RECEIVED, the undersigned, Panamerican Beverages, Inc.,
a Panamanian corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of (the "Lender"), on the Maturity
Date (as the term is defined in the Amended and Restated Credit Agreement
hereinafter referred to) the principal sum of
UNITED STATES DOLLARS ($ ) or, if
less, the aggregate unpaid principal amount of all Advances (as defined in
the Amended and Restated Credit Agreement) shown on the schedule attached
hereto (and any continuation thereof) made by the Lender to the Borrower
pursuant to the Amended and Restated Credit Agreement referred to below.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times,
as are specified in the Amended and Restated Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to ING Baring (U.S.) Capital LLC, as
Administrative Agent, in same day funds. Each Advance owing to the Lender
by the Borrower and the maturity thereof, and all payments made on account
of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto, which is part of
this Note.
This promissory note is one of the Notes referred to in, and is
entitled to the benefits of, the Amended and Restated Credit Agreement
dated as of November 21, 2000 (the "Amended and Restated Credit Agreement")
among the Borrower, the Lender, certain other Lenders parties thereto, and
ING Baring (U.S.) Capital LLC, as Administrative Agent. The Amended and
Restated Credit Agreement, among other things, (i) provides for the making
of advances (individually, an "Advance" and collectively, the "Advances")
by the Lender to the Borrower in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Advance being
evidenced by this Note, and (ii) contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events and also
for prepayments on account of principal hereof prior to the maturity hereof
upon the terms and conditions therein specified.
Exhibit A
Page 2
PANAMERICAN BEVERAGES, INC.
By:
-------------------------------
Title:
Name: