U.S. $45,125,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 19, 2001
among
PANAMCO DE VENEZUELA S.A.
as Borrower,
PANAMERICAN BEVERAGES, INC.,
as Guarantor,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
BANCO BILBAO VIZCAYA ARGENTARIA S.A., NEW YORK BRANCH,
as Administrative Agent,
and
BBVA SECURITIES INC.
and
WACHOVIA SECURITIES, INC.,
as Arrangers
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS..........................................1
SECTION 1.01 Certain Defined Terms...................................1
SECTION 1.02 Certain Defined Terms Relating to Environmental
Regulation............................................14
SECTION 1.03 Computation of Time Periods.............................15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES.........................................15
SECTION 2.01 The Advances............................................15
SECTION 2.02 Making the New Advances.................................15
SECTION 2.03 Notes...................................................16
SECTION 2.04 Prepayments.............................................17
SECTION 2.05 Interest................................................17
SECTION 2.06 Fees....................................................18
SECTION 2.07 Continuations, Interest Rate Determination..............18
SECTION 2.08 Increased Costs, Etc....................................18
SECTION 2.09 Payments and Computations...............................20
SECTION 2.10 Taxes...................................................21
SECTION 2.11 Sharing of Payments, Etc................................22
SECTION 2.12 Funding Losses..........................................23
SECTION 2.13 Use of Proceeds.........................................23
ARTICLE III
CONDITIONS PRECEDENT......................................................24
SECTION 3.01 Conditions Precedent to Effectiveness of
Amendment and Restatement.............................24
SECTION 3.02 Conditions Precedent to the Borrowing...................26
SECTION 3.03 Determinations Under Section 3.01 and 3.02..............26
ARTICLE IV
REPRESENTATIONS AND WARRANTIES............................................27
SECTION 4.01 Representations and Warranties of the Borrower..........27
(i)
Page
SECTION 4.02 Representations and Warranties of the Guarantor.........29
ARTICLE V
COVENANTS OF THE BORROWER AND THE GUARANTOR...............................33
SECTION 5.01 Affirmative Covenants...................................33
SECTION 5.02 Negative Covenants......................................36
SECTION 5.03 Reporting Requirements..................................38
SECTION 5.04 Financial Condition.....................................40
ARTICLE VI
EVENTS OF DEFAULT.........................................................40
SECTION 6.01 Events of Default.......................................40
ARTICLE VII
GUARANTY 43
SECTION 7.01 The Guaranteed Obligations..............................43
SECTION 7.02 Continuing Obligation...................................44
SECTION 7.03 No Discharge............................................44
SECTION 7.04 Tolling of Statute of Limitations.......................44
SECTION 7.05 Bankruptcy..............................................45
SECTION 7.06 Independent Obligation..................................45
SECTION 7.07 Authorization...........................................45
SECTION 7.08 Reliance................................................46
SECTION 7.09. Subordination..........................................46
SECTION 7.10 Waiver..................................................46
SECTION 7.11 Nature of Liability.....................................47
SECTION 7.12 Subrogation.............................................47
ARTICLE VIII
THE ADMINISTRATIVE AGENT..................................................48
SECTION 8.01 Authorization and Action................................48
SECTION 8.02 Duties and Reliance, Etc................................48
SECTION 8.03 Administrative Agent and Affiliates.....................49
SECTION 8.04 Lender Credit Decision..................................49
SECTION 8.05 Indemnification.........................................49
SECTION 8.06 Successors to Administrative Agent......................50
SECTION 8.07 Arrangers...............................................50
(ii)
Page
ARTICLE IX
MISCELLANEOUS.............................................................51
SECTION 9.01 Amendments, Etc.........................................51
SECTION 9.02 Notices, Etc............................................51
SECTION 9.03 No Waiver, Remedies.....................................51
SECTION 9.04 Costs, Expenses and Indemnification.....................52
SECTION 9.05 Right of Set-off........................................53
SECTION 9.06 Binding Effect..........................................53
SECTION 9.07 Assignments and Participations..........................53
SECTION 9.08 Governing Law...........................................55
SECTION 9.09 Execution in Counterparts...............................56
SECTION 9.10 Confidentiality.........................................56
SECTION 9.11 Judgment................................................56
SECTION 9.12 Consent to Jurisdiction.................................56
SECTION 9.13 Survival................................................57
SECTION 9.14 WAIVER OF JURY TRIAL....................................58
SECTION 9.15 Limitation on Liability.................................58
SECTION 9.16 Accounting Terms........................................58
ANNEX I - Lending Offices, Designated Branches and Advances
ANNEX II - Lending Offices, Designated Branches and Commitments
ANNEX III - Disclosure Schedule
EXHIBIT A - Note
EXHIBIT B - Notice of Borrowing
EXHIBIT C - Form of Assignment and Acceptance EXHIBIT D-1 - Form of
Officer's Certificate for the Borrower EXHIBIT D-2 - Form of
Officer's Certificate for the Guarantor EXHIBIT E-1 - Form of Opinion
of New York Counsel to the Borrower and
the Guarantor
EXHIBIT E-2 - Form of Opinion of Venezuelan Counsel to the Borrower
EXHIBIT E-3 - Form of Opinion of Panamanian Counsel to the Guarantor
EXHIBIT F - Consent Letter from Agent for Service of Process
(iii)
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 19, 2001 (this "Agreement"), is made among Panamco de Venezuela S.A., a Venezuelan corporation (the "Borrower"), Panamerican Beverages, Inc., a Panamanian corporation (the "Guarantor"), the financial institutions (the "Lenders") listed on the signature pages hereof and which may from time to time become parties hereto, Banco Bilbao Vizcaya Argentaria S.A., New York Branch ("BBVA"), a duly authorized branch of a banking corporation organized under the laws of the Kingdom of Spain, as administrative agent (together with any successors appointed pursuant to Article VIII, the "Administrative Agent") for the Lenders hereunder, and BBVA Securities Inc., a New York corporation, and Wachovia Securities, Inc., a North Carolina corporation, as arrangers (each, an "Arranger" and collectively, the "Arrangers").
WHEREAS, the Borrower (through its predecessors in interest, Embotelladora Carabobo, S.A., Gaseosas Orientales, S.A., Embotelladora Maturin, S.A. and C.A. Embotelladora Nacional, each of which was merged with and into the Borrower as of November 1, 1999), the Guarantor, the 1999 Lenders (as hereinafter defined), the Administrative Agent and BBVA Securities Inc. entered into the Credit Agreement, dated as of July 16, 1999, amended pursuant to Amendment No. 1 dated as of September 30, 1999, Amendment No. 2 dated March 31, 2000, and Amendment No. 3 dated as of November 14, 2000 (as amended, the "Prior Agreement"), pursuant to which the Borrower incurred advances from the 1999 Lenders, of which an aggregate principal amount of $20,125,000 is outstanding as of the date hereof;
WHEREAS, the Borrower, the Guarantor and the Lenders have agreed to amend and restate the Prior Agreement upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree that the Prior Agreement is hereby amended and restated on and as of the Restatement Effective Date (as hereinafter defined) as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the preamble to this Agreement.
"Administrative Agent's Account" shall mean account No. 36005487 of BBVA maintained at Citibank, N.A., New York (ABA No. 021000089), Att: Loan Administration, or such other account at such other bank in New York City as the Administrative Agent shall specify from time to time to the Borrower and the Lenders.
"Advance" shall mean (i) each Advance made by the 1999 Lenders to the Borrower under the Prior Agreement and outstanding as of the date hereof, as set forth opposite each 1999 Lender's name on Annex I hereto under the caption "Advances" or, if such Lender has entered into one or more Assignments and Acceptances, set forth in the Register maintained by the Administrative Agent pursuant to Section 9.07(c) and/or (ii) each Advance made to the Borrower by the 2001 Lenders, if any, pursuant to Section 2.01(b).
"Affiliate" means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term "control" (including the terms "controlling," "controlled by" and "under common control with") of a Person means the possession, direct or indirect, of the power to vote 5% or more of the Voting Stock of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise; provided, however, that neither TCCC nor any of its direct or indirect Subsidiaries shall be considered an Affiliate of the Borrower, the Guarantor or any of their respective Subsidiaries.
"Agreement" shall have the meaning specified in the preamble to this Agreement.
"Applicable Margin" means (i) for the period from the Restatement Effective Date to the date that is the second anniversary of the Restatement Effective Date, 1.75% per annum, (ii) for the period from the second anniversary of the Restatement Effective Date to the Maturity Date, 2.00% per annum.
"Arranger" shall have the meaning specified in the preamble to this Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent and the Borrower, in accordance with Section 9.07 and in substantially the form of Exhibit C hereto.
"Back-to-Back Loan" means Debt of any Subsidiary owed to a third party that is fully collateralized by the proceeds of Debt incurred by the Guarantor.
"BBVA" shall have the meaning specified in the preamble to this Agreement.
"Borrower" shall have the meaning specified in the preamble to this Agreement.
"Borrowing" means the borrowing consisting of simultaneous Advances made by the 2001 Lenders.
"Borrowing Date" means the date on which the Borrowing hereunder occurs.
"Business Day" means a day of the year on which banks are not required or authorized to close in New York City and, if the applicable Business Day relates to any Advances, on which dealings are carried on in the London interbank market.
"Capitalized Leases" has the meaning specified in clause (e) of the definition of Debt.
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"Change in Control" means:
(a) the failure of the Shareholders (as defined in the Voting Trust Agreement) parties to the Voting Trust Agreement collectively to:
(i) own, directly or indirectly, on the Restatement
Effective Date and until all Obligations owing under this
Agreement and the other Loan Documents are paid in full and all
Commitments have expired, at least a majority of the outstanding
Voting Stock of the Guarantor on a fully diluted basis, free and
clear of all Liens; or
(ii) control directly or indirectly, whether by the
percentage of ownership of Voting Stock imposed by any applicable
law, the possession of voting power or otherwise, the power to
direct the affairs or control the composition of at least a
majority of the board of directors, management committee, or
other equivalent body, of the Guarantor; or
(b) dissolution or termination of the Voting Trust Agreement; or
(c) the failure of TCCC to own (as a result of a sale by TCCC of such Common Stock described below), directly or indirectly, on the Restatement Effective Date and until all Obligations owing under this Agreement and other Loan Documents are paid in full, at least 25% of the outstanding Class B Common Stock of the Guarantor, 22.6% of the outstanding Class A Common Stock of the Guarantor and 100% of the, outstanding Class C Preferred Stock of the Guarantor, in each case, on a fully diluted basis, free and clear of all Liens (it being understood that such percentage will be reduced on a proportionate basis in the event of any issuance or sale of Class A Common Stock or Class B Common Stock in which TCCC does not acquire its proportionate share); or
(d) any reduction in the number of directors nominated by TCCC to the Guarantor's Board of Directors as compared to the number of such directors nominated by TCCC as of the date of this Agreement.
"Coca-Cola Entity" means TCCC and any Wholly-Owned Subsidiary of TCCC.
"Commitment" has the meaning specified in Section 2.01(b), and as set forth opposite each 2001 Lender's name on Annex II hereto under the caption "Commitments" or, if such Lender has entered into one or more Assignments and Acceptances, set forth in the Register maintained by the Administrative Agent pursuant to Section 9.07(c)..
"Commitment Expiration Date" means the date 10 days after the Restatement Effective Date.
"Compensation Plan" of the Guarantor or any Subsidiary thereof means any program, plan or similar arrangement (other than employment contracts) relating generally to compensation, pension, employment or similar arrangements to which the Guarantor or such Subsidiary (individually or in connection with any other Person) may have any liability.
3
"Confidential Information" means information furnished by or on behalf of the Borrower, the Guarantor or their respective Affiliates to the Administrative Agent or any Lender in a writing designated as confidential, but does not include any such information that (i) is or becomes generally available to the public or (ii) is or becomes available to the Administrative Agent or such Lender from a source other than the Borrower, the Guarantor or their respective Affiliates other than as a result of a breach by the Administrative Agent or any Lender of its obligations hereunder.
"Consolidated" refers to the consolidation of accounts in accordance with GAAP.
"Consolidated Debt" means the outstanding principal amount of all Debt of any Person and its Consolidated Subsidiaries; provided, however, that Debt of the Guarantor's Consolidated Subsidiaries shall not include any Debt of any Subsidiary to the extent, but only to the extent, that such Debt, (i) is held by the Guarantor, whether in the form of a loan, participating interest or other instrument evidencing indebtedness or other Obligation of the Subsidiary so long as material enforcement, waiver or amendment decision regarding such Debt may be taken only by the Guarantor, or (ii) represents a Back-to-Back Loan.
"Consolidated EBITDA" means, for any period, the sum, without duplication, of
(a) Consolidated Operating Income for such period,
plus
(b) all depreciation and amortization of assets (including Intangible Assets) of any Person and its Subsidiaries deducted in determining Consolidated Operating Income for such period.
"Consolidated Net Worth" means, for any date, the Consolidated stockholders' equity of the Guarantor and its Subsidiaries (set forth on the line "total shareholders' equity" on the Guarantor's balance sheet) on such date.
"Consolidated Operating Income" means, with respect to any Person and its Subsidiaries for any period, the Consolidated operating income (or loss), before interest, taxes and extraordinary items, of such Person and its Subsidiaries for such period.
"Consolidated Tangible Net Assets" means as of any date, the total amount of assets of the Guarantor and its Subsidiaries, less (i) Intangible Assets and (ii) appropriate adjustments on account of minority interests of other Persons holding equity investments in Subsidiaries, all as reflected on the consolidated balance sheet of the Guarantor and its Subsidiaries as of the end of the fiscal quarter immediately preceding such date.
"DCR" means Duff & Phelps Credit Rating Co. ---
"Debt" of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all Obligations of such Person for the deferred purchase price of property or services, (c) all Obligations of such Person evidenced by notes, bonds, debentures or other similar
4
instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases ("Capitalized Leases"), (f) all Obligations, contingent or otherwise, of such Person under acceptance, letter of credit or similar facilities, (g) all Obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any capital stock of or other ownership or profit interest in such Person or any of its Affiliates or any warrants, rights or options to acquire such capital stock, (h) all Obligations of such Person in respect of Hedge Agreements, (i) all Debt of others referred to in clauses (a) through (h) above guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (i) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (iii) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (iv) otherwise to assure a creditor against loss, and (j) all Debt referred to in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt; provided, however, that Debt shall not include trade accounts payable arising in the ordinary course of business.
"Default" means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
"Designated Affiliate" means a majority-controlled Affiliate of a Lender whose name and principal place of business are set forth opposite such Lender's name on Annex I or Annex II hereto under the caption "Designated Affiliates," or in the Assignment and Acceptance pursuant to which it became a Lender, or such other Affiliate or Affiliates of such Lender as such Lender may specify by notice from time to time to the Borrower and the Administrative Agent.
"Designated Branch" means the branch of a Lender whose name and location are set forth opposite such Lender's name on Annex I or Annex II hereto under the caption "Designated Branches" or in the Assignment and Acceptance pursuant to which it became a Lender, or such other branch or branches or other office or offices of such Lender as such Lender may specify by notice from time to time to the Borrower and the Administrative Agent.
"Disclosure Schedule" means the Disclosure Schedule set forth as Annex III hereto.
"Dollar" means freely transferable lawful money of the United States.
5
"Eligible Assignee" means (a) a commercial bank, finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust or other entity) having total assets in excess of U.S.$250,000,000 and (b) any Designated Affiliate or Designated Branch.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for any Interest Period, an interest rate per annum equal to the rate per annum obtained by dividing (a) the rate per annum determined by the Administrative Agent based on the rate(s) quoted on the Reuters Screen LIBO Page at approximately 11:00 A.M. (London time) two Business Days before the first day of such Interest Period for a period equal to such Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period. If only one rate appears on the Reuters Screen LIBO Page, the rate in clause (a) above will be such rate, and if two or more rates appear on the Reuters Screen LIBO Page, the rate in clause (a) above will be the arithmetic mean of such rates. The Eurodollar Rate for each Interest Period shall be determined by the Administrative Agent.
"Eurodollar Rate Reserve Percentage" for any Interest Period for each Advance means the reserve percentage applicable two Business Days before the first day of such Interest Period, under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Advances is determined) having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 6.01.
"Existing Debt" means Debt of the Guarantor and its Subsidiaries outstanding on the date hereof.
"Existing Debt Agreement" means any agreement or instrument pursuant to which any Existing Debt has been issued or incurred.
"Facility" means the aggregate amount of the Advances and the Commitments.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of 1978, as amended from time to time.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received
6
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles in the United States consistent with those applied in the preparation of the financial statements furnished to the Lenders prior to the date of this Agreement.
"Governmental Authority" means any federation, nation, state, sovereign, or government, any federal, supranational, regional, state, tribal, local or political subdivision, any governmental or administrative body, instrumentality, department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission or any other similar dispute-resolving panel or body, and any other entity exercising executive, legislative, judicial, regulatory or administrative functions of government.
"Guaranteed Obligations" has the meaning specified in Section 7.01(a).
"Guarantor" has the meaning specified in the preamble to this Agreement.
"Guaranty" shall mean the guaranty set forth in Article 7.
"Hedge Agreements" means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap a
