Exhibit 10.3
PROMISSORY NOTE
US$ 6,500,000.00 Dated: September 14, 2001
- ---------------- -------------------------
FOR VALUE RECEIVED, the undersigned, Panamco de Nicaragua, S.A. a corporation
(sociedad anonima) organized and existing under the laws of the Republic of
Nicaragua (The "Borrower"), HEREBY PROMISES TO PAY to the order of Citibank
N.A., - International Banking Facility of a United States national banking
association (the "Bank"), the principal sum of SIX MILLION FIVE HUNDRED
THOUSAND EXACTLY in United States Dollars (US$6,500,000.00) on September 13,
2002 (the "Maturity Date").
The principal amount of this Promissory Note shall be due and payable on the
Maturity Date, accrued interest is payable quarterly.
The Borrower promises to pay interest on the unpaid principal amount hereof
until such principal amount is paid in full at an interest rate per annum
equal at all times to 1.05% per annum above, but on any overdue principal
amount hereof 2.0% per annum, above LIBOR (as hereinafter defined). LIBOR
means, in respect of a particular date and payment, the rate per annum at
which U.S. dollar deposits, in the amount of such payment and with a maturity
of 90 days, are or would be offered by the London branch of Citibank , N.A.
interbank market as of approximately 11:00 A.M., London time.
Such interest shall be due and payable quarterly. Computations of interest
shall be made by the Bank on the basis of a year of 365 days for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest is payable. In no event shall the
interest charged hereunder exceed the maximum interest rate allowed by
applicable law. The Borrower shall make each payment under this Note in same
day funds no later then 12:00 noon (New York, N.Y. time) on the day when due
in lawful money of the United States of America (in freely transferable United
States dollars) to the Bank at the address of Citibank N.A. at 111 Wall
Street, New York, N.Y. 10043 U.S.A. (or such other address as the Bank may
hereafter designate).
The Borrower may, upon five business days' notice to the Bank, prepay this
Note in whole or in part on any business day; provided, however, that if the
prepayment is partial (x) the minimum amount of any such prepayment shall be
$500,000.00 or any larger multiple thereof and (y) such prepayment is made
together with accrued interest and any break-funding amounts due pursuant to
Section 6(b).
1. TAXES
(a) Any and all payments made hereunder shall be made free and clear of and
without deduction for any present or future taxes, levies, imposts,
deductions, charges, or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on net income and all income and franchise
taxes of the United States and any political subdivisions thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
1
If any Taxes are required by law to be deducted from or in respect of any sum
payable hereunder, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable
to additional sums payable under this Section 1) the Bank receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future documentary
stamp or intangible taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Note or advances hereunder (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify the Bank for the full amount of Taxes or Other
Taxes (including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 1) paid by the Bank and any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within 30 days from
the date the Bank makes written demand therefor.
(d) Within 45 days after the date of any payment of Taxes, the Borrower will
furnish to the Bank the original or a certified copy of a receipt evidencing
payment thereof. If no Taxes are payable in respect of any payment, the
Borrower will furnish to the Bank a certificate from each appropriate taxing
authority, or an opinion of counsel acceptable to the Bank, in either case
stating that such payment is exempt from or not subject to Taxes.
(e) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in
subsections (a) through (d) above shall survive the payment in full of
principal and interest hereunder.
2. DEFAULT
If any or the following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any installment of principal of, or
interest on, this Note when due; or
(b) The Borrower (or any of them) shall fail to perform or observe any other
term, covenant or agreement contained in this Note or any agreement securing
it on its part to be performed or observed and any such failure shall remain
unremedied for 10 days after written notice thereof shall have been given to
the Borrower (or any of them) by the Bank; or
(c) An Event of Default or default shall occur under any agreement securing
this Note executed by a third party; or
2
(d) The Borrower (or any of them) or any of its subsidiaries shall fail to pay
any indebtedness in excess of twenty million United States Dollars (US$
20,000,000.00) (but excluding any such indebtedness evidenced by this Note) of
the Borrower (or any of them) or such subsidiary (as the case may be), or any
interest or premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such indebtedness; or any default under any agreement
or instrument securing or otherwise relating to any such indebtedness, or any
other event, shall occur and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such
default or event is to accelerate, or to permit the acceleration of, the
maturity of such indebtedness; or any such indebtedness shall be declared to
be due and payable, or required to be prepaid (other than by a regularly
schedule required prepayment), prior to the stated maturity thereof; or
(e) The Borrower (or any of them) or any of its subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower (or any of them) or any of its subsidiaries seeking to adjudicate
it a bankrupt or insolvent,or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the appointment of
a receiver, trustee, or other similar official for it or for any substantial
part of its property; or the Borrower (or any of them) or any of its
subsidiaries shall take any corporate action to authorize any of the actions
set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of twenty million
United States Dollars (US$ 20,000,000.00 (or its equivalent in another
currency) shall be rendered against the Borrower (or any of them) or any of
its subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be
any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(g) Any governmental authority or any person or entity acting or purporting to
act under governmental authority shall have taken any action to condemn, seize
or appropriate, or to assume custody or control of, all or any substantial
part of the property of the Borrower (or any of them) or of any of its
subsidiaries, or shall have taken any action to displace the management of the
Borrower (or any of them) or of any of its subsidiaries or to curtail its
authority in the conduct of the business of the Borrower or of any of its
subsidiaries; then, and in any such event, the Bank may, by notice to the
Borrower (or any of them), declare this Note, all interest thereon and all
other amounts payable under this Note to be forthwith due and payable,
whereupon this Note, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower.
3
3. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES
(a) The Borrower hereby irrevocably submits to the jurisdiction of any New
York State or Federal court sitting in New York County, New York over any
action or proceeding arising out of or relating to this Note. The Borrower
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of any such action or
proceeding. The Borrower hereby irrevocably appoints ______________. (the
"Process Agent"), with an office on the date hereof at ____________________,
as its agent to receive on behalf of the Borrower and its property service of
copies of the summons and complaint and any other process which may be served
in any such action or proceeding. As an alternative method of service, the
Borrower also irrevocable consents to the service of any and all process in
any such action or proceeding by the mailing of a copy of such process to the
Borrower at its address as set forth below.
The Borrower agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Nothing in this Section 3 shall affect the right of the Bank to serve
legal process in any other manner permitted by law or affect the right of the
bank to bring any action or proceeding against the borrower (or any of them)
or its property in the courts of other jurisdictions.
(c) To the extent that the Borrower (or any of them) has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment in aid of execution, attachment
prior to judgment, execution or otherwise) with respect to itself or its
property, the Borrower hereby irrevocably waives such immunity in respect of
its obligations under this Note.
4. RIGHT OF SETOFF
The Bank is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by the Bank, any branch of Citibank
N.A. or any subsidiary or affiliate of Citibank N.A.or for the credit or the
account of the Borrower (or any of them) against any and all of the
obligations of the borrower now or hereafter existing under this Note,
irrespective of whether or not the Bank shall have made any demand under this
Note and although such obligations may be unmatured. The Bank agrees promptly
to notify the Borrower after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff
and application. The rights of the Bank under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which the Bank may have.
5. JUDGMENT
(a) If for the purposes of obtaining judgment in any court it is necessary to
convert a sum due hereunder in United States dollars into another currency,
the parties hereto agree, to the fullest extent permitted by law, that the
rate of exchange used shall be that at which in accordance with
4
normal banking procedures the Bank could purchase United States dollars with
such other currency on the business day preceding that on which final judgment
is given.
(b) The obligation of the Borrower in respect of any sum due from it to the
Bank hereunder shall,notwithstanding any judgment in a currency other than
United States dollars, be discharged only to the extent that on the business
day following receipt by the Bank of any sum adjudged to be due hereunder in
such other currency, the Bank may in accordance with normal banking procedures
purchase United States dollars with such other currency; if the United Stated
dollars so purchased are less than the sum originally due to the Bank in
United States dollars, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Bank against such loss,
and if the United States dollars so purchased exceed the sum originally due to
the Bank in United States dollars, the Bank agrees to remit to the Borrower
(or any of them) such excess.
6.COSTS AND EXPENSES
(a) The Borrower agrees to pay on demand all losses, costs and expenses, if
any (including reasonable counsel fees and expenses whether in connection with
a trial, appeals or otherwise), in connection with the enforcement of this
Note, including losses, costs and expenses sustained by the Bank as a result
of an Event of Default.
(b) The Borrower shall pay to the Bank, upon the request of the Bank, such
amount or amounts as shall be sufficient (in the reasonable opinion of the
Bank, absent manifest error) to compensate it for any loss, cost or expense
related to the breakage of LIBOR attributable to any prepayment of this
Promissory Note
7. JOINT AND SEVERAL LIABILITY; PRONOUNS
If this Note is signed by two or more persons or entities, each of such
persons or entities shall be jointly and severally liable for the Borrower's
obligations under it, the release of one or more such persons or entities
shall not affect the obligations and liabilities of the others, the term "the
Borrower" shall mean all such persons or entities and the term" the Borrower
(or any of them)" shall mean any one or more of such persons or entities. If
appropriate, each neuter pronoun shall be read as a masculine or feminine
pronoun and each singular pronoun as a plural pronoun.
8. GOVERNING LAW
This note shall be governed by, and construed in accordance with, the laws of
The State of New York, United States of America.
9. COMPLETION OF INSTRUMENT
The Borrower hereby irrevocably authorizes the Bank, if this Note is delivered
to the Bank undated, to complete the appropriate blank at the head of this
Note with a date that is the earlier of the date this Note is delivered to the
Bank and the date any obligation intended to be evidenced hereby is first
created, or, if it is delivered with elements essential to its being an
instrument not completed, to make whatever appropriate insertions are
necessary to make this Note an instrument.
5
10. CERTAIN WAIVERS
The Borrower hereby waives presentment for payment, demand, notice of dishonor
and protest of this Note.
11. WAIVER OF JURY TRIAL
The Borrower and the Bank each hereby irrevocably waive all right to trial by
jury in any action, proceeding or counterclaim arising out of or relating to
this Note.
IN WITNESS WHEREOF, the Borrower has executed this Note as of the day and year
first above written.
ADDRESSES:
Panamco de Nicaragua , S.A.
Km. 41/2 Carretera Norte Frente a la
Direccion General de Ingresos
Managua, Nicaragua
PANAMCO DE NICARAGUA, S.A.
(Typed or printed name of organization)
---------------------------------------
By:(Signature of officer/representative)
6
CITIBANK, N.A.
INTERNATIONAL BANKING FACILITY (IBF)
------------------------------------
STATEMENT OF ELIGIBILITY
------------------------
Panamco de Nicaragua, S.A., a nonbank entity located outside the United
States, understands that it is the policy of the Board of Governors of the
Federal Reserve System that deposits received by international banking
facilities may be used only to support the non-U.S. operations of a depositor
(or its foreign affiliates) located outside the United States and that
extensions of credit by international banking facilities may be used only to
finance non-U.S. operations of a customer (or its foreign affiliates) located
outside the U.S.
Paulo J. Sacchi (Customer's authorized signer), acknowledges that funds it
deposits with the IBF of Citibank, N.A. will be used solely in support of its
non-U.S. operations, or that of its foreign affiliates, and that the proceeds
of its borrowings from the IBF will be used solely to finance its operations
outside the United States, or that of its foreign affiliates.
__________________________________
(Authorized Signature and Stamp)
ID#
_________________________________
(Date)
7
GUARANTY AGREEMENT
This Guaranty (the "Guaranty Agreement") dated as of September 14, 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 - International Banking Facility an international banking
facility of a United States national banking association (the "Bank").
WHEREAS, the Bank will enter into a credit agreement (the "Credit
Agreement") with Panamco de Nicaragua, S.A. (the "Borrower") in the amount of
Six Million Five Hundred United States Dollars (US$ 6,500,000.00), provided
the Guarantor furnish its guaranty of the obligations (as hereinafter defined)
of the Borrower to the Bank, and
WHEREAS, the Guarantor is willing to guaranty all the obligations of the
Borrower under the Credit 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 Borrower
under the Credit 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
Borrower to the Bank under the Credit Agreement 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 Credit 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 Borrower or any other obligor in respect of the
Obligations or whether the Borrower or any other obligor in respect of the
Obligations is joined in any such action or actions.
1
(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 Borrower 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 of the
Borrower 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 Borrower 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 Borrower 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
2
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, 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 Borrower 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
Borrower, 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
Borrower 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 Borrower 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
Borrower 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.
3
(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 45 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 "Nicaraguan Law"), or any modification of
or change in the interpretation of any Nicaraguan 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 Nicaragua (or other
government authorities of Nicaragua with comparable jurisdiction) to
exchange, or to approve or permit the exchange of, the then-lawful
currency of Nicaragua 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
Nicaragua,
(d) the unavailability of Dollars in the exchange market therefor in
Nicaragua 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
4
Nicaragua, of its ownership or control of the benefits of all or a
substantial portion of its assets located in Nicaragua or the
revenues attributable thereto,
(f) a declaration of banking moratorium or any suspension of payments by
banks in Nicaragua, or the imposition by any National Government
Authority of any moratorium on, required rescheduling of, or
approval of, the payment of any indebtedness in Nicaragua,
(g) any disruption in the bank payments system which prevents the
Borrower from paying Dollars in the manner contemplated by the
Credit Agreement, or
(h) any suspension, relinquishment or termination of the operations of
the Borrower, any other branch or affiliate of Citibank, N.A. in
Nicaragua, 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
Republic of Nicaragua or any political subdivision thereof or any other
office, agency or instrumentality thereof, including the Central Bank of
Nicaragua or any successor thereto, or any other authority asserting
governmental, military or political power of any kind at such time in
Nicaragua, 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 Borrower; (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
5
thereupon become vested with all the benefits thereof granted to the Bank
herein or otherwise.
SECTION 5. The liability of the Guarantor under this Guaranty Agreement shall
be limited to obligations which do not exceed the sum of Six Million Five
Hundred Thousand Dollars (US$ 6,500,000.00) for principal plus 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 officer of the Guarantor who is executing
this Guaranty Agreement is properly in office and is 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
6
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 (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.
7
(c) Payment of Expenses. The Guarantor will, at its own cost and
expense, execute and deliver to the Bank all such documents,
instruments, and 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 Credit Agreement is commercial in nature rather than
governmental or public, and further acknowledges and agrees that
neither the Borrower 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 Credit
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
8
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 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.
[Intentionally Left Blank]
9
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: Paulo J. Sacchi
Title: Senior Vice President-Finance & Treasurer