Exhibit 10.2
I, MERY ESAYAG, Public Interpreter of the English Language in the Bolivarian
Republic of Venezuela, as per Title published by Official Gazette No 30,807,
dated September 29th, 1975, registered in the Main Public Registry Office of
the Federal District under No 470, page 223 (overleaf), Vol. 3, and in the
First Civil Court of this City on September 18th, 1975, CERTIFY: That the
following is a true translation of the attached document written in Spanish:
"Signed by Lawyer Bianca Galandro. Inpreabogado No44,298. Seventh Notary
Public of the Libertador Municipality of the Federal District. Voucher
No 67,850.
FINANCIAL LEASE AGREEMENT No 199. Between CITIBANK N.A., a corporation
domiciled in Caracas, through entry originally inscribed in the Commercial
Registry kept by the Commerce Courtroom of the Federal District, on date
November 13, 1917, under No 1293, then inscribed before the First Commercial
Registry of the Judicial Circuit of the Federal District and State of Miranda,
on date May 21, 1976, under No 21, Volume 70-A-First, and whose last
amendment to its statutory constitutive document was registered before said
Registry Office on date March 29, 1999, under No 6, Volume 58-A-First,
authorized to operate as an Universal Bank according to the General Law of
Banks and Other Financial Institutions and according to Resolution Number
014-97 of the Superintendence of Banks and Other Financial Institutions
published in Official Gazette of the Republic of Venezuela No 36,137 dated
January 30, 1997, herein represented by Special Attorney Joel Vitrian, a
Venezuelan, of legal age, of this domicile, bearer of Identity Card No
6,910,485, and who acts duly authorized to that effect as evidenced by Power
of Attorney instrument authenticated before the Nineteenth Notary Public of
the Libertador Municipality on date August 110, 1999, written under No
72, Volume 68, of the Books of Authentications kept by said Notarial Office,
(hereinafter "THE LESSOR"), party of the first part, and on the other, by
PANAMCO DE VENEZUELA, S.A., originally constituted under the name of
EMBOTELLADORA COCA-COLA Y HIT DE VENEZUELA, S.A., as per document inscribed at
the Second Commercial Registry of the Judicial Circuit of the Federal District
and State of Miranda, on date September 02, 1996, under No 51, Volume 462-A
Second and that shall change its name to the current one as certified by
document inscribed at the mentioned Second Commercial Registry of the Judicial
Circuit of the Federal District and State of Miranda, on date June 03, 1997,
under No 59, Volume 295-A-Second, said change ratified as certified by
document inscribed under the same Commercial Registry, on date December 16,
1997, under No 37, Volume 572-A-Second, herein represented by citizens
SERGIO ROBLEDA and JOSE LUIS PICHARDO, of Mexican nationality the former and
of Venezuelan the latter, of legal age, domiciled in Caracas and bearers of
Identity Card Numbers 82,272,986 and 6,113,600, respectively, acting as
Vicepresident of Administration and Finances and Director of the Financial
Comptroller respectively, duly authorized for this act by the Board of
Directors of the company in its meeting of date August 30, 2001(hereinafter
"THE LESSEE") it has been agreed to enter into the agreement contained in the
following clauses:
PRELIMINARY STATEMENTS
WHEREAS, THE LESSEE, has stated to THE LESSOR, its irrevocable intention of
entering into a financial Lease Agreement over the foods or equipment selected
by THE LESSEE that are described in each one of the Annexes that in successive
numbers starting with number 1 are attached to this agreement and which to all
legal effects form an integral part of the same, hereafter THE ANNEXES, to be
held and used by THE LESSEE in the conduction of activities typical of trade
and/or industry having selected at its own will and entire satisfaction the
seller of the same;
WHEEAS, THE LESSOR has agreed with THE LESSEE in entering into a Financial
Lease Agreement over the goods or equipment selected by THE LESSEE that are
described in THE ANBNEXES of this agreement, and for such purposes and
according to the instructions and request of THE LESSEE has purchased from the
seller sufficiently identified in THE ANNEXES (hereafter "THE SELLER") said
goods or equipment;
THAT IS THE REASON WHY, THE LESSEE and THE LESSOR in order to regulate in an
express manner the terms and conditions that shall govern the juridical
relation to which the statements of will refer to contained n the preceding
items, have agreed to grant this Financial Lease Agreement (hereinafter the
"CONTRACT") that shall be governed by the clauses next determined:
FIRST: OBJECT OF THE AGREEMENT.
The LESSOR gives as financial lease to THE LESSEE and the latter takes in
financial lease from the LESSOR the goods or equipment hereafter "THE GOODS or
EQUIPMENT" (of its fully identified exclusive ownership in THE ANNEXES to this
AGREEMENT, which duly signed by the parties is accompanied to this document
forming an integral part of the same.
SECOND: DECLARATIONS OF THE LESSEE.
THE LESSEE expressly declares that THE GOODS or EQUIPMENT, subject to the
financial lease have been acquired by THE LESSOR according to the request made
by THE LESSEE for the purposes of its granting in financial lease and wholly
according to the specifications and instructions issued by THE LESSEE for
which the LESSOR shall not be responsible for the suitability of THE GOODS or
EQUIPMENT, their technical and operational conditions, due legal system nor
other conditions including those of their parts and accessories, which remain
at the exclusive risk of THE LESSEE.
THIRD: DELIVERY OF THE GOODS or EQUIPMENT SUBJECT OF THE FINANCIAL LEASE
AGREEMENT.
THE LESSOR declares that it has delivered to THE LESSEE to be retained and
used in financial lease and THE LESSEE declares having received from THE
LESSOR for such purposes THE GOODS or EQUIPMENT subject of this AGREEMENT,
leaving express certification of having received them in perfect state and
conditions of operation to its entire and full satisfaction. Therefore, THE
LESSOR shall have no obligation with THE LESSEE for and by virtue of
contractual or Legal reparation, THE LESSEE assuming all the risks of THE
GOODS or EQUIPMENT, for eviction, defects or sound operation warranties.
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Without prejudice of the above, THE LESSEE must demand from THE SELLER the
legally corresponding reparation and sound operation warranties. In such
events, THE LESSOR shall assign to THE LESSEE the shares corresponding to it
as purchaser of THE GOODS or EQUIPMENT and THE LESSEE binds itself to accept
said assignment.
FOURTH: IDENTIFICATION OF THE OWNERSHIP OF THE GOODS or EQUIPMENT.
THE LESSEE expressly binds itself with THE LESSOR in placing and maintaining
in THE GOODS or EQUIPMENT a plate or decal certifying in a clear and precise
manner that THE LESSOR is the owner of THE GOODS or EQUIPMENT and that the
same are under a financial lease system in favor of THE LESSEE. THE LESSOR,
this latter being entitled to order them to be fixed if THE LESSEE fails to
comply with its obligation, shall provide these plates or decals. In the event
of loss or destruction of the same, THE LESSEE shall give immediate notice to
THE LESSOR in order that it proceeds to their restoration. THE GOODS or
EQUIPMENT cannot be considered under any circumstance as real property by
destination.
FIFTH: DURATION OF THE LEASE.
The duration of the lease of THE GOODS or EQUIPMENT subject of this AGREEMENT
shall be the one specified under THE ANNEXES.
SIXTH: RENT RATES.
The monthly rent rates of THE GOODS or EQUIPMENT shall be fixed and calculated
as determined by THE ANNEXES of this AGREEMENT. THE LESSEE shall pay the
monthly lease rates at the time and manner indicated by THE ANNEXES of this
AGREEMENT:
SEVENTH: THE INTEREST RATE.
The rate of interests that shall govern the determination of the monthly rate
of financial lease that must be paid by THE LESSEE to THE LESSOR is the one
specified under the fifth clause of THE ANNEXES.
EIGHTH: PENALLTY IN THE EVENT OF DEFAULT.
THE LESSEE expressly agrees with THE LESSOR that in the assumption of timely
default in the payment of any of the monthly lease rates, it shall pay to THE
LESSOR, for the concept of Compensation of the damages that said delay would
have caused to THE LESSOR, interest for delayed payment at a yearly rate
equivalent to the applicable interest rate as provided by the preceding Clause
plus an additional three percent (3%) for each one of the days of default
incurred by THE LESSEE.
NINTH: RISKS.
THE LESSEE expressly agrees with THE LESSOR that during the life of this
AGREEMENT, all the operation and functioning risks of the leased GOODS or
EQUIPMENT shall be on the exclusive account of THE LESSEE. Therefore, THE
LESSOR shall not be liable for any damages, including without being limited
to, consequential damages and loss of profits that could be caused to THE
LESSEE by virtue of defects or other flaws, even for hidden defects of THE
GOODS or EQUIPMENT.
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Also, THE LESSEE expressly agrees in that any damages that may be derived
under any circumstance on occasion of the tenancy and use of the leased GOODS
or EQUIPMENT, as well as any damages that could be caused to third parties or
to the goods of third partied by THE GOODS or EQUIPMENT, according to that
stipulated by the General Law of Banks and other Financial Institutions shall
be on its exclusive and own responsibility. Without detriment of the above,
THE LESSOR may assign to THE LESSEE, who binds itself to accept said
assignment, all the rights and shares corresponding to THE LESSOR for the
defense of the integrity of the leased GOODS or EQUIPMENT, it being understood
that THE LESSOR under no event may be deemed as responsible, nor assume any
risk, for the results of said actions or exercises of the rights of defense
and other consequences that may be caused by virtue of files, suits or claims
related with THE GOODS or EQUIPMENT, their use or tenancy, that shall be on
the exclusive account of THE LESSEE. Also on the exclusive account of THE
LESSEE shall be the risks of reversion, expropriation, confiscation and
eviction, it being understood that under said assumptions in respect to THE
GOODS or EQUIPMENT subject of the AGREEMENT, THE LESSOR may terminate the
financial lease and declare THE AGREEMENT resolved as a matter of law
demanding to THE LESSEE the payment of all the expired and unpaid rental
payments up to the current date and additionally the payment of the value of
THE GOODS or EQUIPMENT according to the book value of THE LESSOR, and under no
event may THE LESSEE claim to THE LESSOR nothing for such a concept nor for
any other concept derived from the AGREEMENT. It is expressly agreed that in
the event of expropriation THE LESSOR shall deduct from the amounts that must
be paid by THE LESSEE, the amounts that it has actually received to its
satisfaction from the governmental entity that has performed the
expropriation.
TENTH: ABSENCE OF DEFENSE IN THE PAYMENT OR NONFULFILLMENT OF OTHER
OBLIGATIONS, FOR THE EXISTENCE OF CLAIMS OR DEFECTS.
THE LESSEE expressly agrees with THE LESSOR that under no event it may
challenge THE LESSOR as defenses for the timely payment of the lease rates nor
for the compliance of its other obligations under this ACGREEMENT, the
existence or actions, suits or claims of any kind against third parties
related with the leased THE GOODS or EQUIPMENT, nor for the existence of flaws
or defects, including hidden defects that affect or may affect the use or
destinations that THE LESSEE confers to THE GOODS or EQUIPMENT according to
this AGREEMENT.
ELEVENTH: COSTS, EXPENSES AND TAXES
All the costs, expenses and charges of any nature that may affect or be caused
on occasion of the ownership, use and tenancy of the leased GOODS or EQUIPMENT
shall be on the exclusive account of THE LESSEE.
In the event that THE LESSOR would have to incur in any cost, expense or
charge of any nature for the concept of ownership of THE LESSOR and/or tenancy
and use of the leased GOODS or EQUIPMENT on the part of THE LESSEE, the latter
expressly agrees to
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reimburse to THE LESSOR the amounts paid for such concepts, at the first
requirement made by THE LESSOR.
Also all the taxes, duties and other fiscal contributions shall be on the
exclusive account of THE LESSEE, those that affect the leased GOODS or
EQUIPMENT, or that may affect them during the life of this AGREEMENT, as well
as any applicable taxes, duties and other fiscal contributions and by virtue
of the tenancy and use of the leased GOODS or EQUIPMENT including any payment
demanded from any fiscal or tax authority to THE LESSOR for the concept of
Revaluation of the Assets. Only on account of THE LESSOR shall be the Income
Tax that might by cause on the occasion of this financial lease AGREEMENT.
Also, on account of THE LESSEE shall be all the installation expenses of THE
GOODS or EQUIPMENT in the place indicated in the NINTH clause of THE ANNEXES
of this AGREEMENT, as well as the expenses of dismantling, transportation, new
installation and any other expense incurred upon in the event of moving,
attributable or not to THE LESSEE.
TWELFTH: PROHIBITION OF SUB-LEASING OR ASSIGNING THE RIGHTS OVER THE GOODS OR
EQUIPMENT AND DELEGATION OF OBLIGATIONS.
THE LESSEE expressly agrees that under no event nor circumstance it may
sub-lease or assign or transfer in any other manner the rights of tenancy and
use of the leased GOODS or EQUIPMENT under this AGREEMENT, nor delegate the
obligations for which it is responsible in favor of third parties without the
express written authorization to such an affect of THE LESSOR, except that it
may assign the use or tenancy to third parties with which THE LESSEE maintains
business relations (such as its concessionaires, transporters, etc.).
THE LESSOR may assign or transfer in any time during the life of this
agreement, wholly or partially, its rights without the need of authorization
of THE LESSEE in favor of another or of other institutions authorized to carry
out lease operations, as well as to give them as guarantee, regardless of the
manner arranged for it.
THIRTEENTH: PROHIBITION OF TRANSFERING OWNERSHIP OR MORTGAGING.
THE LESSEE expressly agrees that under no circumstance it may transfer or
dispose of, mortgage or affect THE GOODS or EQUIPMENT that have been granted
to it in financial lease by THE LESSOR.
FOURTEENTH: TENANCY AND USE OF THE GOODS OR EQUIPMENT.
THE LESSEE expressly agrees with THE LESSOR, in using and
maintaining the leased GOODS or EQUIPMENT with the diligence of a good head of
a family and in solely giving it the normal and proper use corresponding to
them according to their nature.
FIFTEENTH: MAINTENANCE OF THE GOODS or EQUIPMENT.
All the expenses and charges caused by the adequate maintenance of
the leased GOODS or EQUIPMENT shall be on the excusive account of THE LESSEE,
in order to guarantee that the same shall be in perfect conditions of
operation and functioning.
Therefore, THE LESSEE binds itself to hire on its account, the maintenance
service of the leased GOODS or EQUIPMENT with a company satisfactory to THE
LESSOR or an
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authorized maintenance center in order to guarantee the proper functioning and
conservation of the same, all in accordance with the provisions set forth by
the manufacturer's standards. Said maintenance service shall be made
constantly, whenever necessary in the time required as per the catalogs and
manuals supplied by the vendor and/or manufacturer of the leased GOODS or
EQUIPMENT.
Also, the following guidelines shall by of compulsory compliance by THE
LESSEE:
1. To know and make use of the guarantees granted to the leased GOODS or
EQUIPMENT, concerning to repairs, supply of spare parts, defects and other
applicable ones.
2. To comply with all the demands, recommendations and controls indicted in
the respective manuals or by the personnel of the authorized centers of
maintenance and service.
3. To instruct its personnel in order that they use the leased GOODS or
EQUIPMENT with due care and diligence, operating them with all the cautions
to avoid faults or injuries and damages to third parties.
SIXTEENTH: REPAIRS.
All major or minor repairs to be made to the leased GOODS or EQUIPMENT shall
be on the exclusive account of THE LESSEE that shall be carried out in
Workshops authorized by THE LESSOR. THE LESSOR shall nor be liable nor assume
any obligation with THE LESSEE as a consequence of the time elapsed to
undertake and execute such repairs and therefore, THE LESSEE shall have
nothing to claim for and by virtue of the term in which it was hindered or
prevented from utilizing THE GOODS or EQUIPMENT and of any other consequences
that they cause, being such circumstances at its sole risk and exclusive
account.
Any spare part installed by THE LESSEE at THE GOODS or EQUIPMENT or any
replacement of parts made in the same shall be made with original pieces and
shall become the ownership of THE LESSOR without THE LESSOR being bound to
reimburse to THE LESSEE the cost of the same nor THE LESSEE intend to separate
and rake said spare parts or pieces at the expiration of the CONTRACT. THE
LESSEE cannot without prior written consent granted by THE LESSOR modify,
alter, adapt or install spare parts or accessories to THE GOODS or EQUIPMENT
if the installation or adaptation changes the original function that must be
performed by THE GOODS or EQUIPMENT or change the use for which they are
normally intended.
SEVENTEENTH: INSURANCE COVERAGE.
THE LESSEE expressly agrees with THE LESSOR in subscribing and maintaining in
force during the entire life of this AGREEMENT at its sole and exclusive
expense, a Civil Liability Insurance Policy that covers the leased GOODS or
EQUIPMENT.
THE LESSEE expressly agrees with THE LESSOR in sending to THE LESSOR as soon
as it has been delivered by the Insurance Company, an original or certified
copy of the contracted Civil Liability Insurance Policy and of the receipt
issued as certification of the payment of the respective premium.
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Also, at any time during the life of this CONTRACT, THE LESSOR may, if it
determines the absence of coverage, hire and pay on account of THE LESSEE the
required Civil Liability Insurance Policy, remaining THE LESSEE bound, at the
first request made by THE LESSOR, to reimburse to THE LESSOR, said amounts
thus paid thereby as well as any additional expenses or charges in which THE
LESSOR has incurred upon to comply on account of THE LESSEE with the
circumstances herein foreseen.
EIGHTEENTH: RIGHT OF INSPECTION.
THE LESSOR reserves to itself the right of demanding the exhibition and
performing the inspection of the leased GOODS or EQUIPMENT whenever it deems
convenient and necessary during the life of this AGREEMENT in order to certify
the compliance on the art of THE LESSEE of the proper use and destination of
THE GOODS or EQUIPMENT, as well as of its maintenance and repair obligations.
In any case, THE LESSOR shall seek to request the exhibition and to realize
said inspections at times when they do not adversely interrupt nor harm the
conduction of the activities of THE LESSEE.
NINETEENTH: LOCATION OF THE GOODS or EQUIPMENT.
THE LESSEE expressly agrees with THE LESSOR in maintaining during the entire
life of this AGREEMENT THE GOODS or EQUIPMENT at the location specified in THE
ANNEXES to this agreement and in not moving them to a different place, without
the written authorization of THE LESSOR to that effect. Also, it declares that
THE GOODS or EQUIPMENT shall remain at all times, perfectly separated from the
other property of THE LESSEE. If one or more property were automotive, so that
they may move with their own means from one place to another, or when due to
that special nature its operating capacity is precisely its mobilization. THE
LESSEE binds itself to report once every six months to THE LESSOR, the exact
place in which they are found.
TWENTIETH: ADDITIONAL OBLIGATIONS OF THE LESSEE.
THE LESSEE also assumes the following obligations:
1) To obtain and maintain in force at its sole and exclusive expenses, all the
Licenses, Permits, Registrations and other certifications and authorizations
that according to the effective Legal Norms or Rules (both National as well as
State of Municipal) were required or necessary for the tenancies, use and
enjoyment of THE GOODS or EQUIPMENT;
2) To pay all the taxes, duties and other fiscal contributions (both National
as well as State of Municipal), that encumber or affect or that may encumber
or affect the property, the tenancy, the use and enjoyment o THE GOODS or
EQUIPMENT;
3) To pay all the expenses, costs and charges of any nature, directly or
indirectly derived from the performance and compliance or execution of this
ASAGREEMEHNT, including (but not limited only to these), the expenses of
judicial or extrajudicial collection of any amounts owed by THE LESSEE in
relation with this AGREEMENT, lawyers' fees, as well as any expenses and cost
related with the termination of this AGREMENT;
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4) To immediately report to THE LESSOR in the quickest way any harmful,
damaging incident or any fact or actions of which THE LESSEE has knowledge and
that affects or may affect THE GOODS or EQUIPMENT or the property that THE
LESSOR has in respect to the same and;
5) To send to THE LESSOR at the first requirement made, the financial and
corporate information what is requested, being of particular importance any
modifications to the Articles of Incorporation and Bylaws Document and the
financial information made by the Balance Sheet and Profit and Loss Statement
of THE LESSEE at each close of the financial period.
TWENTY-FIRST: OBLIGATION OF NOTICE OF LOSS.
THE LESSEE binds itself to notify THE LESSOR the occurrence of any loss that
affects the leased GOODS or EQUIPMENT or that may affect them, within
forty-eight (48) hours following to the occurrence of said event. It shall
also give notice of the loss to the Insurance Company within the period
established by the respective Civil Liability Insurance Policy. In the event
of any loss that implies partial destruction or total perishing of THE GOODS
or EQUIPMENT that provided by Article 1588 of the Civil Code of the Bolivarian
Republic of Venezuela shall not prevail, but the following rules shall be
followed:
1) If there is partial destruction and the Insurance Company pays on
a timely basis the amounts necessary to repair the damage, THE LESSEE cannot
demand the resolution of the AGREEMENT nor the decrease of the rental
payments, that shall be independently and normally paid during the time of the
duration of the repair;
2) If there is partial destruction and the Insurance
Company for any circumstance refuses to pay for the amount of the repair, THE
LESSEE must repair the leased GOODS or EQUIPMENT at its own expense without
being entitled to demand neither a decrease of the lease payment nor variation
of the stipulations of this AGREEMENT;
3) If their is total perishing of THE GOODS or EQUIPMENT THE LESSEE cannot
demand either the resolution of the AGREMENT nor a decrease of the monthly
lease payments, which shall be paid normally, except that THE LESSOR demands
to THE LESSEE the payment of the amounts owed for the concept of due monthly
lease payments unpaid up to said date and the value of the destructed GOODS or
EQUIPMENT as indicated by the books of THE LESSOR, corresponding to the
portion of the lost THE GOODS or EQUIPMENT, in which case THE LESSOR shall
recalculate the amount of monthly lease payments, the residual value and the
amounts for the concept of penalty for damages referred to by the ANNEXES of
this AGREEMENT.
TWENTY-SECOND: EVENTS OF DEFAULT AND TERMINATION OF AGREEMENT FOR FAILURE OF
PERFORMANCE.
THE LESSEE expressly agrees with THE LESSOR that under the assumption that THE
LESSEE incurs upon any of the events of default next specifies (hereinafter
"EVENTS OF DEFAULT") independently fro the causes or circumstances by virtue
of which said EVENTS OF DEFAULT occur. THE LESSOR may terminate this AGREEMENT
for failure of performance of THE LESSEE demanding the redelivery of THE GOODS
or EQUIPMENT
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taking possession of the same, THE LESSEE remaining under the obligation to
pay to THE LESSOR all the amounts owed up to the date and those that may be
owed and payable by THE LESSEE under the AGREEMENT, considering all said
quantities as overdue, being immediately demandable and payable without the
need of any other requirement, for the concept of compensation of the damages
caused to THE LESSOR by virtue of default and the termination of the
AGREEMENT.
For the purposes foreseen by this Clause, EVENTS OF DEFAULT shall
be the following:
1) The lack of payment by THE LESSEE of one or more financial lease payments
at the time in which they must be paid according to the provisions of this
AGREEMENT and its ANNEXES;
2) If THE LESSEE fails to comply with its obligation of contracting and
maintaining in force the Civil Liability Insurance Policy of the leased GOODS
or EQUIPMENT under the terms and conditions foreseen by this AGREEMENT, or
does not pay the premium at the time in which it is demanded;
3) THE LESSEE does not comply with its obligation of maintaining and using THE
GOODS or EQUIPMENT with the diligence of a good head of a family or does not
comply with its obligation of providing maintenance and services to THE GOODS
or EQUIPMENT as stipulated by this AGREEMENT;
4) If THE LESSEE fails to comply with its obligation of protection and custody
of THE GOODS or EQUIPMENT at the place foreseen according to the provisions of
this AGREEMENT;
5) The alienation or encumbrance of THE GOODS or EQUIPMENT, or any
unsuccessful action tending to such an alienation or encumbrance on the part
of THE LESSEE or if the sublease or assignment of the use and tenancy of the
leased GOODS or EQUIPMENT by THE LESSEE by any means or circumstances, except
that it may assign the use or tenancy to third parties with which THE LESSEE
maintains business relations (such as its concessionaires, transporters,
etc.);
6) The discontinuance of payments of THE LESSEE, or the request of THE LESSEE
of the benefit o arrears of the judicial declaration of bankruptcy of THE
LESSEE or the request made through any means by THE LESSEE of a friendly
arrangement or extrajudicial agreement of restructuring of debt or extension
of time of the payment of its obligations, or the appointment by THE LESSEE of
a special administrator or any other action of similar kind with comparable
consequences to the foregoing filed by or followed against THE LESSEE;
7) The dissolution or liquidation of THE LESSEE or the discontinuance of its
business for any juridical or de facto cause;
8) The attachment or seizure of THE GOODS or EQUIPMENT by virtue of a judicial
action filed by third parties or any other juridical action that affects the
tenancy or the use of THE GOODS or EQUIPMENT by THE LESSEE or the property of
THE LESSO, including but not limited to, the reversion, the confiscation,
expropriation, eviction or any other action of
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deprivation or limitative effect over the rights of ownership, tenancy and use
of THE GOODS or EQUIPMENT;
9) The occurrence or putting into practice of an adverse change in the
financial situation of THE LESSEE that provides sufficient circumstantial
evidence at the criterion of THE LESSOR of a possible default on the part of
THE LESSEE of its obligations foreseen by this AGREEMENT;
10) The default by THE LESSEE in the payment of its obligations greater than
Twenty Million Dollars of the United States of America (US$20,000,000.00) with
third parties at the agreed contractual time, that enables under the
contractual provisions with such third parties to demand in advance under loss
of the benefit of the perm, the payment of the owed obligations even if not
declared nor demanded by its creditor or creditors;
11) The default by THE LESSEE in the payment of amounts greater than Twenty
Million Dollars of the United States of America (US$20,000,000.00) that were
demanded by virtue of a final decision or another judicial order or the
nonfulfillment of any o6ther orders and obligations to which it was subject to
and by virtue of a final decision of judicial order of any juridical nature,
that at the criterion of THE LESSOR constitutes an undesired risk in its
condition of creditor;
12) The default on the part of THE LESSEE of any other obligations of its
responsibility according to the provisions of this agreement other than those
foreseen as case of defaults established by the foregoing numbers "1", "2",
"3", "4" and "5". In each and every one of the above mentioned CASES OF
DEFAULT, THE LESSOR shall demand from THE LESSEE, the redelivery of the leased
GOODS or EQUIPMENT, and declares as a matter of law the termination of this
AGREEMENT, this without detriment of the judicial action for resolution of the
AGREEMENT and other rights corresponding to it according to this AGREEMENT and
the applicable laws.
TWENTY-THIRD: PURCHASE OPTION.
THE LESSOR grants to THE LESSEE a purchase option over the leased GOODS or
EQUIPMENT who may only exercise it under the terms and conditions indicated by
THE ANNEXES of this AGREEMENT.
TWENTY-FOURTH: RETURN OF THE GOODS or EQUIPMENT.
THE LESSEE expressly agrees, that in the event that the same fails to exercise
the purchase option foreseen by the preceding Clause, it must deliver to THE
LESSOR immediately, without need of requirement or any other formality the
leased GOODS or EQUIPMENT in sound maintenance, service and operational
conditions, all as per the provisions of this AGREEMENT, and at the place
indicated by THE LESSOR.
TWENTY-FIFTH: EXCLUSIVE DOMICILE:
The parties expressly agree in that for all purposes, derived and consequences
of this AGREEMENT the special and exclusive domicile is the City of Caracas,
to the jurisdiction of
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whose competent Courts THE LESSEE and THE LESSOR expressly declare to submit
themselves.
TWENTY-SIXTH: AUTHORIZATION OF COMPENSATION.
THE LESSEE expressly agrees with THE LESSSOR that at any time during the life
of this AGREEMENT, THE LESSOR may compensate any amounts owed by THE LESSEE,
for and by virtue of any of the provisions contained by this AGREEMENT,
against any amount demandable to THE LESSOR for sight or time deposits in any
savings, checking, time placements accounts and investments of any nature of
THE LESSEE with THE LESSOR, said compensation taking place immediately as soon
as THE LESSOR makes it applicable without need of prior notice to THE LESSEE
nor any requirement or other formality.
TWENTY-SEVENTH: EXCLUSIVITY CITIBANK VENEZUELA.
Citibank, N.A., VENEZUELA Branch, solely and exclusively assumes the
obligations acquired by virtue of this agreement. It is agreed between the
parties of this agreement that the compliance of the obligations derived from
the same, are subject to the laws, decrees, resolutions and administrative
actions issued by the Bolivarian Republic of Venezuela by the competent
governmental authorities. Also, the compliance of said obligations shall be
subject to the non-occurrence of actions of was, civil uprisings, acts of God
or force majeure, or any other event outside of the control of Citibank, N.A.,
Venezuela Branch that limits their compliance.
TWENTY-EIGHTH: FINAL PROVISION.
Two (2) copies are made to the same tenor and to a single effect in Caracas at
the date of its authentication by Notary Public."
The above is a true translation of the attached original document, in witness
whereof I have set my hand and affixed my seal in Caracas on this 12th day of
the month of October 2001.
Mery Esayag
I.C.V-1,845,588
GUARANTY AGREEMENT
This Guaranty (the "Guaranty Agreement") dated as of September 5, 2001, is
made by Panamerican Beverages, Inc., a corporation organized and existing
under the laws of the Republic of Panama (the "Guarantor"), in favor of
Citibank N.A. a subsidiary organized and existing under the laws of Bolivarian
Republic of Venezuela (the "Bank").
WHEREAS, the Bank will enter into a financial lease agreement (the "Lease
Agreement") with Panamco de Venezuela, S.A. (the "Lessee") in the amount of
US$5 Million, provided the Guarantor furnish its guaranty of the obligations
(as hereinafter defined) of the Lessee to the Bank, and
WHEREAS, the Guarantor is willing to guaranty all the obligations of the
Lessee under the Lease Agreement;
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantor hereby agrees as follows:
SECTION 1. The Guarantor hereby unconditionally and irrevocably guarantees and
promises to pay to the Bank on demand any and all obligations of the Lessee
under the Lease Agreement an agrees to pay any and all out-of-pocket costs and
expenses and reasonable fees and disbursements of counsel (including the
allocated costs of staff counsel) incurred by the Bank in enforcing any rights
under this Guaranty Agreement. The word "Obligations" is used herein in it
most comprehensive sense and includes all obligations and liabilities of the
Lessee to the Bank under any loan agreement, promissory notes or other
instruments to which the Borrower is a party, whether absolute of contingent,
liquidated or unliquidated, for principal, interest, fees, indemnities, costs
and expenses and all other amounts payable under or in connection with the
Lease Agreement.
SECTION 2. (a) The Guarantor's obligations hereunder are those of a primary
obligor, and not merely a surety, and are independent of the Obligations. A
separate action or actions may be brought against the Guarantor whether and
action in brought against the Lessee or any other obligor in respect of the
Obligations or whether the Lessee or any other obligor in respect of the
Obligations is joined in any such action or actions.
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(b) The obligations of the Guarantor under this Guaranty Agreement are
absolute and unconditional, and the Guarantor guarantees that the Obligations
will be paid in full on demand when due (whether at stated maturity, by
required prepayment, by acceleration, on demand otherwise) in accordance with
the terms of this Guaranty Agreement, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Bank with respect thereto or any other circumstance
which might otherwise constitute a defense available to, or a legal or
equitable discharge of, a guarantor.
(c) This Guaranty shall in all respects remain in full force and effect
(notwithstanding, without limitation, the dissolution, liquidation,
bankruptcy, insolvency or reorganization of the Lessee or any other obligor in
respect of the Obligation), unless and until all of the Obligations have been
finally paid in full.
(d) This Guaranty shall in all respects continue in full force and effect
or shall be reinstated, as the case may be, if at any time payment, in whole
or in part, of any of the Obligations is rescinded or must otherwise be
restored or returned for any reason, including, without limitation, because of
any change in the corporate existence or structure or ownership o the Lessee
or because the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Lessee or any other obligor in respect of the
Obligations or upon or as result of the appointment of a custodian, receiver,
trustee or other officer with similar power with respect to the Lessee or any
such other obligor or any such other obligor or any material part of its
assets, or otherwise, all as though such payment had not been made. If an
event permitting the acceleration shall at such time be prevented by reason of
the pendency against the Lessee of a case of proceeding under any bankruptcy
or insolvency law, the Guarantor agrees that, for purposes of this Guaranty
Agreement and its obligations hereunder, the Obligations shall be deemed to
have been accelerated and the Guarantor shall forthwith pay such Obligations,
and the other obligations hereunder, without any further notice or demand.
(e) Without limiting the foregoing, the Guarantor authorizes the Bank,
without notice or demand and without affecting the Guarantor's liability
hereunder, from time to time to (i) renew, extend, accelerated, compromise,
settle restructure, refinance, refund or otherwise change the amount and time
for payment of the Obligations, or otherwise change the terms of the
Obligations or any part thereof; (ii) take and hold security for the payment
of this Guaranty Agreement of the Obligations or the obligations of other
obligors in respect of the Obligations and enforce any such security, (iii)
apply such security and direct the order or manner of sale thereof or sell,
exchange, release, compromise, settle, waive or surrender any such security,
and (iv) take, hold, exchange, release, compromise, settle,
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amend or waive, or consent to the departure from the terms of, any guaranty or
other agreement relating to the obligations of any other obligor in respect of
the Obligations. The Bank shall have no obligation to perfect, secure, protect
or insure any collateral agreement or any collateral and the Guarantor's
liability hereunder shall not be affected by the non-perfection, invalidity or
unenforceability of any collateral or collateral agreement.
(f) Notwithstanding any payments made by the Guarantor hereunder, the
Guarantor shall not be entitled to be subrogated to any of the rights of the
Bank against the Lessee or any other person or to any collateral or other
rights or interests held of the payment of the Obligations of the Guarantor
hereunder have been finally paid in full. If the Guarantor shall receive any
payment on account of any subrogation rights at any time when all the
Obligations and the Guarantor's obligations hereunder shall not have been paid
in full, any amount so paid will be held in trust by the Guarantor and
promptly turned over to the Bank to be applied first to the Obligations until
paid in full and thereafter to the Guarantor's obligations hereunder.
(g) Guarantor's liability under this Guaranty Agreement shall be
unconditional irrespective of (i) any exchange, release or non-perfection of
any collateral securing payment of any Obligations, (ii) the existence of any
claim, set-off or other rights which we may have at any time against the
Lessee, the Guarantor, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim, (iii)
any statute of limitation, (iv) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge of the
Lessee or the Guarantor, other than the payment in full of the Obligations and
(v) an occurrence of an Event of Sovereign Risk, as such term is defined
below.
(h) The Guarantor unconditionally waives any right to require the Bank to
(i) proceed against the Lessee or any other obligor in respect of the
Obligations, (ii) proceed against or exhaust any security held directly or
indirectly on account of the Obligations, or (iii) pursue any other remedy in
the Bank's powers whatsoever Guarantor unconditionally waives any defense
arising by reason of any disability or other legal or equitable defense of the
Lessee by reason of the cessation from any cause whatsoever of the liability
of the Borrower other than final payment in full in cash of the Obligations.
The Guarantor waives all diligence, presentments, protest, notices of protest,
notices of dishonor, notices of non-payment, acceptance and notices of
acceptance of this Guaranty Agreement.
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(i) All payments by Guarantor hereunder shall be made in freely
transferable United States Dollars in same day funds free and clear of all
taxes or other deductions levied or assessed by any domestic or foreign
governmental entity. Such payments shall be made without set-off or
counterclaim and free and clear of and without deduction or withholding for or
on account of any present or future taxes, levies, imposts, duties or other
charges of whatsoever nature impose, levied, assessed, collected or required
to be withheld by any government or political subdivision or taxing authority
thereof. In the event that Guarantor shall be compelled by law to make any
such deduction, then it shall pay such additional amounts as may be necessary
to ensure that the net amount received by the Bank shall equal the amount it
would have received if such withholding would not have been made, and
Guarantor shall furnish copies of the receipts evidencing that such taxes have
been paid within 30 days after such taxes are due.
For the purpose hereof an "Event of Sovereign Risk" means any of the
following:
(a) any war (whether or not declared), revolution, insurrection, civil
strife or hostile acts,
(b) the promulgation, operation or enforcement of any law, act, decree,
regulation or other similar event, ordinance, order, policy or
determination (herein, a "Venezuelan Law"), or any modification of
or change in the interpretation of any Venezuelan Law, by any
National Governmental Authority (as herein defined), including
without limitation the imposition of any moratorium on, required
rescheduling of, or required approval of the payment of any
indebtedness,
(c) the failure or refusal by the Central Bank of Venezuela (or other
government authorities of Venezuela with comparable jurisdiction) to
exchange, or to approve or permit the exchange of, the then-lawful
currency of Venezuela for Dollars, or any other action of any
National Governmental Authority that has the effect of prohibiting
or restricting such exchange or the transfer of funds outside
Venezuela,
(d) the unavailability of Dollars in the exchange market therefor in
Venezuela in accordance with normal commercial practice for the
purpose of transactions such as the transactions contemplated
herein,
(e) any expropriation, confiscation, requisition, nationalization, or
other action by any other branch or affiliate of Citibank, N.A. in
Venezuela, of its ownership or control of the benefits of all or a
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substantial portion of its assets located in Venezuela or the
revenues attributable thereto,
(f) a declaration of banking moratorium or any suspension of payments by
banks in Venezuela, or the imposition by any National Government
Authority of any moratorium on, required rescheduling of, or
approval of, the payment of any indebtedness in Venezuela,
(g) any disruption in the bank payments system which prevents the Lessee
from paying Dollars in the manner contemplated by the Lease
Agreement, or
(h) any suspension, relinquishment or termination of the operations of
the Lessee, any other branch or affiliate of Citibank, N.A. in
Venezuela, or a result of any event of the kinds referred to in
clauses (a)-(g) above or as the result of the threat of any such
event.
"National Governmental Authority" means, at any time, the government of the
Bolivarian Republic of Venezuela or any political subdivision thereof or any
other office, agency or instrumentality thereof, including the Central Bank of
Venezuela or any successor thereto, or any other authority asserting
governmental, military or political power of any kind at such time in
Venezuela, whether or not such authority is recognized as a de facto or de
jure government.
SECTION 3. The Guarantor hereby waives (i) notice of acceptance of this
Guaranty and of any extension of credit by the Bank to the Lessee; (ii)
presentment and demand for payment of any of the Obligation; (iii) protest and
notice of dishonor or default to the Guarantor or to any other party with
respect to any of the Obligations; any (iv) all other notices to which the
Guarantor might otherwise be entitled.
SECTION 4. This is a continuing guaranty and shall (i) remain in full force
and effect until the Bank shall have received written notice form the
Guarantor that has been revoked, but any such notice shall not release the
Guarantor from any liability as to any Obligation or the Guarantor's
obligations hereunder (including any contingent liability) existing at the
time of such notice (ii) be binding upon the Guarantor and the Guarantor's
successors and assigns, and (iii) insure to the benefit of , and be
enforceable by, the Bank and the Bank's successors, transferees and assigns.
Without limiting the generality of the foregoing clause (iii), the Bank may
assign or otherwise transfer all or any portion of the Bank's rights and
obligations to any other person or entity, and such other person or entity
shall thereupon become vested with all the benefits thereof granted to the
Bank herein or otherwise.
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SECTION 5. The liability of the Guarantor under this Guaranty Agreement shall
be limited to obligations which do not exceed the sum of Five Million Dollars,
United States Dollars US$ 5 Million for principal together with all interest,
fees, and other costs and expenses relating to or arising out of the
Obligations.
SECTION 6. Representations and Warranties. The Guarantor represents and
warrants that:
(a) Existence and Power. The Guarantor is a corporation duly incorporated
and validly existing under the laws of the Republic of Panama and has all
requisite power and authority to own its property and to carry on its business
as now conducted.
(b) Authority. The Guarantor has full power and authority to enter into,
execute, deliver and carry out the terms of this Guaranty Agreement and to
incur the obligations provided for herein, all of which have been duly
authorized by all proper and necessary action and are in full compliance with
the Guarantor's Articles of Incorporation and By-laws.
(c) Authority of Officers. The officers of the Guarantor who are
executing this Guaranty Agreement are properly in office and are duly
authorized to execute the same.
(d) Binding Agreement. This Guaranty Agreement constitutes the legal,
valid and binding obligation of the Guarantor enforceable against it in
accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditor's rights generally.
(e) Litigation. There are no actions, suits or arbitration proceedings
pending or, to the knowledge of the Guarantor, threatened against the
Guarantor, at law or in equity, which, individually or in the aggregate, if
adversely determined, would materially adversely affect the financial
condition of the Guarantor or materially impair the ability of the Guarantor
to perform its obligations under this Guaranty Agreement.
(f) No Conflicting Law or Agreements. The execution, delivery and
performance by the Guarantor of this Guaranty Agreement; (i) do not violate
any provision of the Articles of Incorporation or By-laws of the Guarantor;
(ii) do not violate any order, decree or judgment, or any provision of any
statute, rule or regulation applicable to or binding on the Guarantor or
affecting any of its property; and (iii) do not violate or conflict with,
result in a breach of or constitute
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(with notice or lapse of time or both) a default under, any mortgage,
indenture, contract or other agreement to which the Guarantor is a party, or
by which any of its property is bound.
SECTION 7. Miscellaneous:
(a) All notices, requests and other communications to any party hereunder
shall be in writing and shall be given to such party at its address set forth
below or such other address as such party may hereafter specify by notice to
the other party:
If to the Guarantor: Panamerican Beverages, Inc.
Torre Dresdner Bank
Piso No. 7, Calle 50
Panama City - Republic of Panama
Telecopy: (507) 223-8308
Attention: Chief Financial Officer
If to the Bank:
c/o Citibank Mexico S.A.
390 Reforma Piso 7
Colonial Juarez
Mexico D.F. 06695
Telecopy: (525) 533-6125
Attention: Relationship Manager
Each such notice, request or other communication may be sent by
international courier addressed as aforesaid and shall be effective upon
delivery evidenced by the receipt or declaration of the courier, or by
facsimile transmission to the telecopiers indicated above, which shall be
effective as of the time so telecommunicated.
(b) No Waivers. No failure or delay by the Bank in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
(c) Payment of Expenses. The Guarantor will, at its own cost and expense,
execute and deliver to the Bank all such documents, instruments, and
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agreements and do all such acts and things as may be reasonably requisite in
the opinion of the Bank, to enable the Bank to exercise and enforce its rights
hereunder.
(d) Severability. In case any one or more of the provisions contained in
this Guaranty Agreement should be declared invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
(e) Governing Law. This Guaranty Agreement and the rights and obligations
of the Guarantor and the Bank hereunder shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York, without
giving effect to principles of conflicts of laws.
(f) Submission to Jurisdiction. Guarantor irrevocably agrees that any
legal action arising out of or relating to this Guaranty Agreement may be
instituted in the United States District Court for the southern District of
New York or the courts of the State of New York, United States, in the City of
New York, Borough of Manhattan and the Guarantor irrevocably submits to the
exclusive jurisdiction of such courts in any such action or proceeding and
waives any other jurisdiction to which it may be entitled by reason of its
present or future domicile. Guarantor irrevocably waives to the fullest extent
permitted by law, any objection which it may or hereafter have to the laying
of the venue of any such suit, action or proceeding brought in any such court
and any claim that any such action or proceeding brought in such a court has
been brought in an inconvenient forum. The Guarantor agrees to the extent
permitted by applicable laws of the State of New York and the Republic of
Panama, that a final judgment against it in any such legal action or
proceeding shall be conclusive and may be enforced in any other jurisdiction
within or outside the United States by suit on the judgment, a certified or
exemplified copy of which judgment shall be conclusive evidence thereof. By
accepting this Guaranty Agreement, the Bank also submits to the jurisdiction
of the above named New York State courts.
(g) Waiver of Sovereign Immunity. Guarantor acknowledges and agrees that
the Lease Agreement is commercial in nature rather than governmental or
public, and further acknowledges and agrees that neither the Lessee nor
Guarantor are entitled to any right or immunity on the grounds of sovereignty
or otherwise with respect to any legal action or proceeding arising out of
relating to the Lease Agreement or this Guaranty Agreement. Guarantor, in
respect of itself and its properties and revenues expressly and irrevocably
waives any such right of immunity or claim thereto which may now or hereafter
exist (including any immunity from any legal process, from the jurisdiction of
any court, from execution upon a judgment and from attachment prior to
judgment or in aid of
8
execution) and agrees not to assert any such right or
claim in any such action or proceeding, whether in the United States or
otherwise.
(h) Captions. Captions contained in this Guaranty Agreement are for
convenience of reference only and shall not limit or define the provisions of
this Guaranty Agreement or affect the interpretation or construction thereof.
IN WITNESS WHEREOF, the Guarantor have caused this Guaranty Agreement to be
executed by its officers thereunto duly authorized, as of the date first above
written.
PANAMERICAN BEVERAGES, INC.
By:
-----------------------
Name:
Title: