EXHIBIT 10.28
JPY
CREDIT AGREEMENT*
between
PANAMCO DE VENEZUELA, S.A.
as Borrower
INARCO INTERNATIONAL BANK, N.V.
as Bank,
and
PANAMERICAN BEVERAGES, INC.
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Dated as of July 18, 2000
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION..............1
1.1 Defined Terms...........................................1
1.2 Principles of Construction..............................6
SECTION 2. AMOUNT AND TERMS OF CREDIT...............................6
2.1 The Loan................................................6
2.2 Notice of Borrowing.....................................6
2.3 Disbursement of Funds...................................7
2.4 Notes...................................................7
2.5 Interest................................................7
2.6 Interest Payment Dates..................................7
2.7 Increased Costs, Illegality, etc........................8
2.8 Compensation............................................9
2.9 Change of Applicable Lending Office.....................9
SECTION 3. FEES.....................................................9
3.1 Fees .................................................. 9
SECTION 4. PREPAYMENTS AND ASSIGNMENTS: PAYMENTS....................9
4.1 Voluntary Prepayments...................................9
4.2 Repayments...............................................9
4.3 Method and Place of Payment.............................9
4.4 Net Payments ...........................................9
4.5 Breakage Fee ...........................................10
SECTION 5. CONDITIONS PRECEDENT....................................10
5.1 Execution of Agreement; Notes..........................11
5.2 No Default; Representations and Warranties.............11
5.3 Notice of Borrowing....................................11
5.4 Opinion of Counsel.....................................11
5.5 Corporate Documents; Proceedings.......................11
5.6 Appointment Letter.....................................11
5.7 Absence of a Material Adverse Change...................11
5.8 Financial Statements...................................11
5.9 Approvals..............................................11
5.10 Litigation and other Proceedings......................11
5.11 Payments..............................................12
5.12 Market Conditions, etc................................12
5.13 Due Diligence.........................................12
5.14 Ownership of Shares...................................12
5.15 Instructions..........................................12
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS..............12
6.1 Corporate Status.......................................12
6.2 Corporate Power and Authority..........................12
6.3 No Violation...........................................13
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6.4 Governmental Approvals.................................13
6.5 Financial Statements; Financial Condition;
Undisclosed Liabilities; etc.........................13
6.6 Litigation.............................................13
6.7 True and Complete Disclosure...........................13
6.8 Use of Proceeds; Margin Regulations....................13
6.9 Tax Returns and Payments...............................14
6.10 Compliance With
Statutes............................................14
6.11 Investment Company
Act...............................................14
6.12 Labor Relations.......................................14
6.13 Patents, Licenses, Franchises and Formulas............14
6.14 Taxes and Withholding.................................14
6.15 No Immunity...........................................14
6.16 Pari Passu Ranking....................................15
6.17 Validity..............................................15
6.18 Absence of Material Adverse Change....................15
SECTION 7. AFFIRMATIVE COVENANTS...................................15
7.1 Information Covenants..................................16
7.2 Books, Records and Inspections.........................16
7.3 Maintenance of Property Insurance......................16
7.4 Corporate Franchises...................................16
7.5 Compliance with Statutes, etc..........................16
7.6 Performance of Obligations.............................16
7.7 Ownership of Shares and Management.....................16
7.8 Change in Control......................................16
SECTION 8. NEGATIVE COVENANTS......................................17
8.1 Liens..................................................17
8.2 Consolidation, Merger, Sale of Assets, etc.............19
8.3 Transactions with Affiliates...........................19
8.4 Minimun Shareholders Equity............................19
8.5 Limitation on and Modifications of
Certificate of Incorporation, By-Laws..................19
8.6 Change in Nature of Business...........................19
8.7 Financial Covenants....................................19
SECTION 9. GUARANTY ................................................19
9.1 The Guaranty...........................................19
9.2 Maximum Liability.......................................20
9.3 Terms of the Guaranty ..................................20
9.4 Waiver of Notice.......................................21
9.5 Continuing Guaranty....................................21
SECTION 10. EVENTS OF DEFAULT.....................................21
10.1 Payments..............................................21
10.2 Representations, etc..................................21
10.3 Covenants.............................................22
10.4 Default Under Other Agreements........................22
10.5 Bankruptcy and Insolvency.............................22
10.6 Monetary Judgments....................................22
10.7 Non-monetary Judgments................................22
10.8 Pari Passu Ranking....................................22
10.9 Governmental Approvals and Comments...................22
10.10 Occurrence of Material Adverse Change................23
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9.11 Governmental Action or Event of Sovereign Risk........23
9.12 Swap Agreements.......................................23
SECTION 11. MISCELLANEOUS...........................................24
11.1 Payment of Expenses, Indemnification, etc.............24
11.2 Right of Set-off......................................24
11.3 Notices...............................................24
11.4 Assignment; Benefit of Agreement......................24
11.5 No Waiver; Remedies Cumulative........................25
11.6 Calculations; Computations............................25
11.7 Governing Law; Submission to Jurisdiction; Venue......25
11.8 Obligation to Make Payments in Yen....................26
11.9 Counterparts..........................................26
11.10 Effectiveness........................................26
11.11 Headings Descriptive.................................26
11.12 Amendment or Waiver..................................26
11.13 Survival.............................................26
11.14 Waiver of Immunity...................................26
11.15 Waiver of Jury Trial.................................27
SCHEDULE I Interest Payment DateTable
SCHEDULE II Labor Relations Disclosure Schedule EXHIBIT A Notice of Borrowing EXHIBIT B Note EXHIBIT C Form of Opinion of Venezuelan Counsel to
the Borrower and the Guarantor
EXHIBIT D Officers' Certificate of the Borrower EXHIBIT E Consent Letter EXHIBIT F Form of Assignment Letter
CREDIT AGREEMENT (the "Credit Agreement"), dated as of July 18, 2000, among Panamco de Venezuela, S.A. (the "Borrower"), a corporation organized and existing under the laws of Venezuela, and Inarco International Bank, N.V. (the "Bank") a financial institution organized and existing under the laws of Aruba, Dutch West Indies (D.W.I.) and Panamerican Beverages, Inc. (the "Guarantor") a corporation organized under the laws of the Republic of Panama.
W I T N E S S E T H :
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WHEREAS, subject to and upon the terms and conditions herein set forth, the Bank is willing to make available to the Borrower the credit facility provided for herein;
WHEREAS, the Borrower desires to refinance its one hundred twenty million Dollars (US$ 120,000,000) credit facility entered with Hollandesche Bank Unie.
WHEREAS, the Guarantor is willing to guaranty all obligations of the Borrower under this Credit Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS, PROVISIONS AND COVENANTS CONTAINED HEREIN THE PARTIES HERETO AGREE AS FOLLOWS:
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.
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1.1 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):
"Account Opening Agreement" shall mean, the ACCOUNT OPENING AGREEMENT for an asset linked time deposit, dated as of July 18, 2000, made between Panamerican Beverages, Inc., and Citibank N.A.
"Affiliate" shall mean, with respect to any Person, any other Person (other than an individual) directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person; provided, however, an Affiliate of the Borrower shall include any Person that directly or indirectly owns more than 5% of the Borrower and any officer or director of the Borrower or any such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified, supplemented or amended from time to time.
"Applicable Lending Office" means, with respect to any Bank, the office of such Bank specified opposite its name on the signature page hereof or in the Assignment Agreement pursuant to which it became a Bank, or such other office of such Bank may from time to time specify to the Borrower and the Agent.
"Aruba" shall mean Aruba Dutch West Indies (DWI).
"Assignment Agreement" shall mean the agreement in the form attached hereto as EXHIBIT F.
"Bank" shall have the meaning provided in the first paragraph of this Agreement and any successor in interest or permitted assign.
"Bank's Account" means the account of Citibank, N.A. Aruba Branch maintained by Citibank N.A., in its Tokyo, Japan Branch (account number 022 1576403).
"Bolivares" or "Bs." shall mean the lawful currency of Venezuela.
"Borrower" shall have the meaning provided in the first paragraph of this Agreement.
"Borrowing" shall mean the borrowing of the Loan from the Bank on a given date.
"Borrowing Date" shall mean the date on which the initial Borrowing occurs.
"Business Day" shall mean (i) for all purposes other than as covered by clause (ii) below, any day except Saturday, Sunday and any day which shall be in New York City or Aruba or Caracas, Venezuela a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, the Loan, any day which is a Business Day described in clause (i) above.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than six months from the date of acquisition, (ii) time deposits and certificates of deposit and bankers' acceptances of any commercial bank having a long-term unsecured debt rating of at least "A" or the equivalent thereof from Standard & Poor's, a division of the McGraw Hill companies ("Standard & Poor's"), or "A2" or the equivalent thereof from Moody's Investors Services, Inc., with maturities of not more than six months from the date of acquisition by such Person, (iii) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by any Person rated at least A-1 or the equivalent thereof by Standard & Poor's or at least P-1 or the equivalent thereof by Moody's Investors Service, Inc. and maturing not more than six months after the date of acquisition by such Person and (v) investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (i) through (iv) above.
"Change in Control" shall mean:
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 Borrowing Date and
until all Obligations owing under this Agreement and
other Credit Documents are paid in full and all
Commitments have expired, at least a majority of the
outstanding Voting Stock of the Borrower 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 Borrower; 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 Borrowing Date and until all Obligations owing under
this Agreement and other Credit Documents are paid in full
and all Commitments have expired, at least 20% of the
outstanding Class B Common Stock of the Borrower, 22.6% of
the outstanding Class A Common Stock of the Borrower and
100% of the outstanding Class C Preferred Stock of the
Borrower, 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 Borrower's Board of Directors as compared to the
number of such directors nominated by TCCC as of the date of
this Agreement.
"Citibank, N.A." shall mean Citibank, N.A. New York.
"Commitment" shall mean for the Bank, at any time, the amount set forth opposite the Bank's name on the signature page hereof under the heading "Commitment".
"Consolidated" shall mean the consolidation of accounts in accordance with U.S. GAAP.
"Consolidated Tangible Net Assets of the Guarantor" shall mean 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 interest 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 Guarantor and its Subsidiaries as of the end of the fiscal quarter immediately preceding such date.
"Contingent Obligation" shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the holder of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Note, the Swap Agreements, the Credit Agreement dated as of the date hereof among Panamco de Venezuela, Inarco International Bank N.V. and Panamerican Beverages, Inc. for the principal amount of U.S.$100,000,000, and the Account Opening Agreement for an Asset Linked Time Deposit.
"Default" shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.
"Disclosure Schedule" shall mean the Disclosure Schedule set forth as Schedule II hereto.
"Dollars", "U.S.$" and the sign "$" shall each mean freely transferable lawful currency of the United States.
"Effective Date" shall have the meaning provided in Section 11.10.
"Event of Default" shall have the meaning provided in Section 10.
"Event of Sovereign Risk" shall mean the failure by the Central Bank of the Bolivarian Republic of Venezuela or any successor thereto as the central bank or monetary authority of the Bolivarian Republic of Venezuela to approve to the extent legally required or permit the exchange of, Bolivares for Yen, or any other action of any other governmental authority in Venezuela (including the promulgation, operation or enforcement of any law, act, decree, regulation, ordinance, order, policy, or determination, or modification or change in the interpretation of any of the foregoing) or any event in the Bolivarian Republic of Venezuela, that has the effect of preventing or restricting such exchange or the transfer of any funds outside of Venezuela, or Yen are unavailable in any legal exchange market thereof in Venezuela in accordance with normal commercial practice.
"Fees" shall mean all amounts payable pursuant to or referred to in Section 3.1.
"Guarantor" shall mean Panamerican Beverages, Inc., a corporation organized and existing under the law of the Republic of Panama.
"Guaranty" means the guaranty contained in Section 9 granted by the Guarantor in favor of the Bank in order to guarantee the obligations of the Borrower under this Agreement.
"Holding Company of the Borrower" shall mean Embotelladora Coca-Cola y Hit de Venezuela, S.A., a corporation organized and existing under the law of Panama.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services, (ii) the face amount of all letters of credit issued for the account of such Person and all drafts drawn thereunder, (iii) all liabilities secured by any Lien on any property owned by such Person, whether or not such liabilities have been assumed by such Person, (iv) the aggregate amount required to be capitalized in accordance with U.S. GAAP under leases under which such Person is the lessee and (v) all Contingent Obligations of such Person.
"Intangible Assets" shall mean all unamortized debt discounts and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, write-ups of assets over their carrying value at the end of the last fiscal quarter ended prior to the date of this Agreement or the date of acquisition, if acquired subsequent to the date of this Agreement, and all other items which would be treated as intangibles on the Consolidated balance sheet of the Guarantor and its Subsidiaries.
"Interest Payment Date" shall have the meaning provided in Section 2.6. "Interest Rate" shall have the meaning provided in Section 2.5(a).
"Interest Period" has the meaning set forth in Section 2.5.
"Japanese Yen, "Yen" and the sign "JPY" shall each mean freely transferable lawful currency of the Kingdom of Japan.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing).
"Loan" shall have the meaning provided in Section 2.1.
"Margin Stock" shall have the meaning provided in Regulation U of the Board of Governors of the Federal Reserve System.
"Material Adverse Change" shall mean any material adverse change in the business, condition (financial or otherwise), operations, assets, revenues, performance, properties or prospects of the Borrower, the Guarantor and its Subsidiaries taken as a whole.
"Material Adverse Effect" shall mean with respect to the Borrower, the Guarantor, and any Person, any material adverse effect on (a) the business, condition (financial or otherwise), operations, assets, revenues, performance or properties of such Person, the Borrower or the Guarantor, (b) the rights or remedies of the Bank under this Agreement, any Note or any other Credit Document, (c) the ability of the Borrower, the Guarantor or any Person to perform its obligations under this Agreement, any Note or any other Credit Document or (d) the ability of the Borrower, the Guarantor or any other party to any Credit Document or any Person to perform its obligations under any Credit Document to which it is a party.
"Maturity Date" shall mean the date which is exactly 3 years after the Borrowing Date.
"Note" shall have the meaning provided in Section 2.4.
"Notice of Borrowing" shall have the meaning provided in Section 2.2.
"Notice Office" shall mean the office of the Bank located at Arulex Center, Punta Brabo, Oranjestad, Aruba, Netherlands Antilles, or such other office as the Bank may hereafter designate in writing as such to the other parties hereto.
"Obligations" shall mean all present and future obligations, liabilities and other amounts owing to the Bank pursuant to the terms of this Agreement or any other Credit Document.
"Panama" shall mean the Republic of Panama.
"Permitted Liens" shall have the meaning provided in Section 8.1.
"Person" shall mean any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other entity or enterprise or any government or political subdivision or any agency, department or instrumentality thereof.
"Process Agent" shall mean CT Corporation System, presently located at 111 Eighth Avenue, New York, New York 10011.
"Purchase Money Lien" shall mean a Lien on property securing Indebtedness incurred by the Borrower or any of its Subsidiaries to provide funds for all or a portion of the cost of acquiring, constructing, altering, expanding, improving or repairing such property or assets used in connection with such property.
"Regulation D, G, T, U or X" shall mean Regulation D, G, T, U or X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of suc
