EXHIBIT 4.9
EXECUTION VERSION
U.S.$ 150,000,000
CREDIT AGREEMENT
Dated as of March 22, 2005
Among
CERVECERIA Y MALTERIA QUILMES S.A.I.C.A. Y G.
as Borrower
and
THE BRANCH OF CITIBANK N.A.
ESTABLISHED IN THE REPUBLIC OF ARGENTINA
as Lender
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.............................................................................. 1
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions......................................... 12
SECTION 1.03. Accounting Terms................................................................................... 12
ARTICLE II
AMOUNTS AND TERMS OF THE LOAN
SECTION 2.01. The Loan........................................................................................... 12
SECTION 2.02. Notice of Borrowing................................................................................ 12
SECTION 2.03. Repayment of Principal............................................................................. 13
SECTION 2.04. Optional Prepayment With Respect to Tax Matters.................................................... 13
SECTION 2.05. Mandatory Prepayments.............................................................................. 14
SECTION 2.06. Interest........................................................................................... 15
SECTION 2.07. Payments and Computations.......................................................................... 15
SECTION 2.08. Additional Amounts................................................................................. 17
SECTION 2.09. Evidence of Indebtedness........................................................................... 20
ARTICLE III
SECTION 3.01. Conditions Precedent............................................................................... 21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties..................................................................... 21
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.............................................................................. 27
SECTION 5.02. Negative Covenants................................................................................. 30
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.................................................................................. 33
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ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc.................................................................................... 36
SECTION 7.02. Notices, Etc....................................................................................... 36
SECTION 7.03. No Waiver; Remedies................................................................................ 36
SECTION 7.04. Costs and Expenses................................................................................. 36
SECTION 7.05. Waiver of Set-off.................................................................................. 38
SECTION 7.06. Binding Effect..................................................................................... 38
SECTION 7.07. Permitted Assignments.............................................................................. 38
SECTION 7.08. Currency Rate Indemnity............................................................................ 38
SECTION 7.09. Foreign Exchange Restrictions...................................................................... 38
SECTION 7.10. Execution in Counterparts.......................................................................... 39
SECTION 7.11. Jurisdiction, Etc.................................................................................. 39
SECTION 7.12. Waiver of Immunities............................................................................... 40
SECTION 7.13. Governing Law...................................................................................... 40
SECTION 7.14. Waiver of Jury Trial............................................................................... 40
SECTION 7.15. Payment for Consent................................................................................ 40
Exhibit A - Form of Notice of Borrowing
Exhibit B-1 - Form of Promissory Note
Exhibit B-2 - Form of Reconocimiento de Deuda
Exhibit C - Form of Assignment and Acceptance
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CREDIT AGREEMENT
CREDIT AGREEMENT (this "AGREEMENT") dated as of March 22, 2005 among
Cerveceria y Malteria Quilmes S.A.I.C.A. y G., an Argentine sociedad anonima
(the "BORROWER"), and the Branch of Citibank N.A. established in the Republic of
Argentina, as lender (the "LENDER").
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lender extend a loan to the
Borrower in a principal amount not to exceed U.S.$ 150,000,000, the proceeds of
which will be used to prepay certain financial debt of the Borrower, for general
corporate purposes and fees, costs and expenses due pursuant to the Additional
Transaction Documents (as defined below);
(2) On the Issue Date (as defined below) immediately after execution
of this Agreement, (a) the Argentine Beverages Financial Trust, a financial
trust (fideicomiso financiero) organized under the laws of Argentina (the
"TRUST") shall be established, and (ii) the Lender, as grantor of the Trust,
will assign all of its interests in respect of the Loan to ABN AMRO Trust
Company (Argentina) S.A., acting on behalf of the Trust (in such capacity, the
"FINANCIAL TRUSTEE"), pursuant to an Assignment Agreement between the Lender and
the Financial Trustee, substantially in the form of Exhibit C hereto (the
"ASSIGNMENT AGREEMENT"), and (b) the Financial Trustee (in that regard, the
"ISSUER") will issue the Trust Notes (as defined below) pursuant to the
Indenture (as defined below);
(3) From and after the assignment of the Loan pursuant to the
Assignment Agreement, the Financial Trustee will be the Lender for all purposes
hereunder and under the Additional Transaction Documents and the Branch of
Citibank N.A. established in the Republic of Argentina will have no continuing
rights or obligations hereunder or thereunder;
(4) After the assignment of the Loan as described in the Assignment
Agreement, the Financial Trustee will be treated as the Lender for all purposes
hereunder and the Branch of Citibank N.A. established in the Republic of
Argentina will have no continuing rights or obligations thereafter hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree 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):
"ADDITIONAL AMOUNTS" has the meaning specified in Section 2.08(a).
"ADDITIONAL TRANSACTION DOCUMENTS" means the Assignment Agreement,
the Purchase Agreement, the Expense Agreement, and all documents entered
into in connection therewith.
"ADJUSTED EBITDA" means, in respect of any period, operating income
(expense) plus depreciation and amortization determined on a consolidated
basis.
"AFFILIATE" of any specified Person means:
(a) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified Person, or
(b) any other Person who is a director or officer of:
(1) such specified Person,
(2) any Subsidiary of such specified Person, or
(3) any Person described in clause (a) above.
For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
For purposes of Section 4.02(g) only, "Affiliate" shall also mean any
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
shares representing 25% or more of the total voting power of the voting
stock of the Borrower and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"AFFILIATE TRANSACTION" has the meaning specified in Section
5.02(e).
"AMBEV" means the Companhia de Bebidas das Americas - AMBEV, a
Brazilian corporation.
"ARGENTINA" means the Republic of Argentina.
"ARGENTINE GAAP" means generally accepted accounting principles in
Argentina as in effect from time to time.
"ASSIGNMENT AGREEMENT" has the meaning specified in the recital of
parties to this Agreement.
"AUTHORIZED AGENT" has the meaning set forth in Section 7.11(c).
"BAC" means Beverage Associates (BAC) Corp., a corporation organized
under the laws of the British Virgin Islands.
"BOARD OF DIRECTORS" means the board of directors of the Borrower or
any committee thereof, duly authorized to act on behalf of such board.
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"BORROWER" has the meaning specified in the recital of parties to
this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower maintained by
the Borrower with the Lender at Citibank Argentina, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Account No. 0/060379/025, CBU
▇▇▇▇▇▇▇-100000603790254, CUIT 33508358259, or such other account as the
Borrower shall specify in writing to the Lender.
"BUSINESS DAY" means a day other than a Saturday, Sunday or a day of
the year on which banks are required or authorized by law to close in ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
"CAPITAL STOCK" means, with respect to any Person, any shares or
other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants,
options or other interests in the nature of an equity interest in such
Person but excluding any debt security convertible or exchangeable into
such equity interest.
"CHANGE OF CONTROL" means the occurrence of any of the following
events:
(a) if any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group acting
for the purpose of acquiring, holding, voting or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act, other than any one or more of the Permitted Holders, becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of a majority of the total voting
power of the voting stock of the Borrower;
(b) the sale, transfer, assignment, lease, conveyance or other
disposition (other than by way of merger or consolidation), directly
or indirectly, of all or substantially all the assets of the
Borrower;
(c) the approval by the shareholders of the Borrower of any
plan of liquidation or dissolution of the Borrower;
(d) AmBev or any Person or Persons, directly or indirectly
controlling AmBev ceases to hold, directly or indirectly, 39.50% of
the total voting power of the voting stock of the Borrower; or
(e) at any time, the Permitted Holders, together or not with
BAC, shall no longer have the direct or indirect right, whether
through the ownership of capital stock, by means of contractual
rights, or otherwise, to elect a majority of the Board of Directors.
"CHANGE OF CONTROL OFFER" has the meaning set forth in Section
2.05(b).
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"CHANGE OF CONTROL PURCHASE PRICE" has the meaning set forth in
Section 2.05(b).
"CONSOLIDATED NET ASSETS" means the total amount of assets of the
Borrower and its consolidated Subsidiaries (less applicable depreciation,
amortization and other valuation reserves), except to the extent resulting
from the write-ups of capital assets, after deducting therefrom all
current liabilities of the Borrower and its consolidated Subsidiaries
(excluding intercompany items).
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"ENVIRONMENTAL LAW" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the environment, health,
safety or natural resources, including, without limitation, those relating
to the use, handling, transportation, treatment, storage, disposal,
release or discharge of hazardous materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXPENSE AGREEMENT" means the Expense Reimbursement and Indemnity
Agreement dated as of the date hereof between the Borrower and the
Financial Trustee.
"FAIR MARKET VALUE" means, with respect to any assets or property,
the price that could be negotiated in an arm's length free market
transaction, for cash, between a willing seller and a willing buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value shall be determined, except as otherwise
provided, as follows:
(a) if such property has a Fair Market Value equal to or less
than U.S.$10 million, by any Officer, or
(b) if such property has a Fair Market Value in excess of
U.S.$10 million, by an Independent Financial Advisor and evidenced
by a written opinion from such Independent Financial Advisor, dated
within 30 days of the relevant transaction, delivered to the Lender.
"FINANCIAL STATEMENTS" has the meaning set forth in Section 4.01(m).
"FINANCIAL TRUSTEE" has the meaning specified in the recital of
parties to this Agreement.
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"GOVERNMENT AUTHORITIES" has the meaning set forth in Section
4.01(g).
"GUARANTEE" of any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the
purchase or payment of) Indebtedness of such other Person (whether
arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or
otherwise), or
(b) entered into for the purpose of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include:
(1) endorsements for collection or deposit in the
ordinary course of business, or purchaser and customer
arrangements in the ordinary course of business, or
(2) a contractual commitment by one Person to invest in
another Person.
The term "Guarantee" used as a verb has a corresponding meaning. The
term "Guarantor" shall mean any Person Guaranteeing any obligation.
"HEDGE AGREEMENTS" means any interest rate protection agreements,
interest rate swaps, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option
contracts and other similar agreements allowing the Borrower to hedge
financial and operational risk.
"INCUR" means, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (by merger, conversion, exchange or
otherwise), extend, assume, Guarantee or become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to
Argentine GAAP or otherwise, of any such Indebtedness or obligation on the
balance sheet of such Person (and "Incurrence" and "Incurred" shall have
meanings correlative to the foregoing); provided, however, that any
Indebtedness or other obligations of a Person existing at the time such
Person becomes a Subsidiary of another Person (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by
such Subsidiary at the time it becomes such a Subsidiary.
Solely for purposes of determining compliance with Section 5.02(b),
the following will not be deemed to be the Incurrence of Indebtedness:
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(1) amortization of debt discount or the accretion of
principal with respect to a non-interest bearing or other discount
security,
(2) the capitalization of interest that is due and payable at
such time on existing Indebtedness,
(3) the payment of regularly scheduled interest in the form of
additional Indebtedness of the same instrument or the payment of
regularly scheduled dividends on Capital Stock in the form of
additional Capital Stock of the same class and with the same terms,
(4) the obligation to pay a premium in respect of Indebtedness
arising in connection with the issuance of a notice of redemption or
the making of a mandatory offer to purchase such Indebtedness, and
(5) a change in Argentine GAAP that results in an obligation
of such Person that exists at such time, and is not theretofore
classified as Indebtedness, becoming Indebtedness.
"INDEBTEDNESS" of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money;
(b) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (other than trade
accounts payable for which there is no interest due and payable
(other than default interest) according to the terms of such
obligations and which are incurred in the ordinary course of such
Person's business but only if and for so long as the same remain
payable on customary trade terms);
(c) all reimbursement or payment obligations of such Person
with respect to letters of credit, bankers' acceptances, surety
bonds and similar instruments, except for reimbursement or payment
obligations with respect to letters of credit (including trade
letters of credit) securing obligations (other than obligations
described in clause (a) above or clauses (d), (g) or (h) below, but
in the case of obligations under clause (g) or (h) below, solely to
the extent that they are in respect of obligations of the type
described in clause (a) or (d)) entered into in the ordinary course
of business of such Person to the extent such letters of credit are
not drawn upon or, if drawn upon, to the extent such drawing is
reimbursed no later than the fifth business day following receipt by
such Person of a demand for reimbursement;
(d) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property,
assets or businesses;
(e) all indebtedness of such Person created or arising under
any conditional sale or other title retention agreement, or incurred
as financing, in
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either case 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 in which case the amount of such Indebtedness
shall be the lesser of (i) the Fair Market Value of such property at
such date of determination and (ii) the amount of the Indebtedness
secured);
(f) the net amount of obligations of such Person with respect
to Hedge Agreements;
(g) all direct or indirect guaranties in respect of, and all
obligations (contingent or otherwise) of such Person to purchase or
otherwise acquire, or otherwise assure a creditor against loss in
respect of, any indebtedness referred to in clauses (a) through (f)
above; and
(h) all indebtedness referred to in clauses (a) through (g)
above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any
Lien upon or in property (including accounts and contract rights)
owned by such Person (even though such Person has not assumed or
become liable for the payment of such indebtedness in which case the
amount of such Indebtedness shall be the lesser of (i) the Fair
Market Value of the property subject to the Lien at such date of
determination and (ii) the amount of the Indebtedness secured).
"INDEBTEDNESS TO ADJUSTED EBITDA RATIO" means, as of any date of
determination, the ratio of (1) Indebtedness of the Borrower on a
consolidated basis on that date, to (2) Adjusted EBITDA for the then most
recently concluded period of four consecutive fiscal quarters.
"INDEMNIFIED PARTY" has the meaning specified in Section 7.04(b).
"INDENTURE" means the Indenture dated as of March 22, 2005 among the
Issuer, The Bank of New York, as the Trust Notes Trustee, Note
Co-Registrar, New York Paying Agent and Transfer Agent, Banco Rio de la
Plata S.A., as Argentine Paying Agent, Registrar and the Trust Notes
Trustee's Representative in Argentina, and The Bank of New York
(Luxembourg) S.A., as Luxembourg Listing, Paying and Transfer Agent.
"INDEPENDENT FINANCIAL ADVISOR" means an investment banking or
consulting firm of international standing or any third party appraiser of
international standing, provided that such firm or appraiser is not an
Affiliate of the Borrower.
"INTEREST PAYMENT DATE" has the meaning set forth in Section
2.06(c).
"INTEREST RATE" has the meaning set forth in Section 2.06(a).
"ISSUE DATE" means the date on which the Loan is initially issued.
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"ISSUER" has the meaning specified in the recital of parties to this
Agreement.
"LENDER" has the meaning specified in the recital of parties to this
Agreement.
"LENDER'S ACCOUNT" means the account of the Lender as the Lender
shall specify in writing to the Borrower.
"LIEN" means any mortgage, pledge, security interest, aval,
encumbrance, lien or charge of any kind (including, without limitation,
any conditional sale or other title retention agreement or lease in the
nature thereof or any agreement to give any security interest), other than
a title retention agreement in connection with the purchase of goods in
the ordinary course of business.
"LOAN" has the meaning set forth in Section 2.01.
"MATERIAL ADVERSE CHANGE" means any material adverse change on the
business, condition (financial or otherwise), operations, performance,
properties or earnings of the Borrower and its Subsidiaries taken as a
whole.
"MATERIAL ADVERSE EFFECT" means any material adverse effect on the
business, condition (financial or otherwise), operations, performance,
properties or earnings of the Borrower and its Subsidiaries taken as a
whole.
"MATURITY DATE" means March 22, 2012.
"NOTEHOLDERS" means the holders of the Trust Notes.
"OFFERING MEMORANDUM" means the offering memorandum dated March 15,
2005 prepared in connection with the sale of the Trust Notes.
"OFFICER" means any authorized signatory of the Borrower designated
by the Board of Directors.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers,
at least one of whom shall be the principal executive officer or principal
financial officer or principal legal officer of the Borrower, and
delivered to the Lender.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
is reasonably acceptable to the Lender. The counsel may be an employee of
or counsel to the Borrower or the Lender.
"OTHER TAXES" means any stamp, transfer, court or documentary Taxes,
or any excise or property Taxes or similar Taxes imposed by a Taxing
Jurisdiction. For the avoidance of doubt, "Other Taxes" shall not include
any Taxes imposed with respect to income.
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"OUTSTANDING" means with respect to the Loan, as of the date of
determination, the Loan made under this Agreement, except the reduced
portion or portions of the Loan, as provided herein and, except:
(i) any portion of the Loan that was prepaid; and
(ii) any portion of the Loan for which payment, prepayment or
redemption money in the necessary amount has been deposited
with the Financial Trustee, in its capacity as Lender under
this Agreement; provided that notice of such prepayment or
repurchase has been duly given pursuant to this Agreement;
provided, however, that in determining whether the holders of the
requisite principal amount of the Outstanding Loan have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, any
portion of the Loan owned by the Borrower or any Subsidiary or Affiliate
of the Borrower shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Lender shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only the portion of the Loan which the Lender knows to
be so borrowed shall be so disregarded. The portion of the Loan so owned
which has been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Lender the pledgee's right
so to act with respect to such portion of the Loan and that the pledgee is
not the Borrower or any Subsidiary or Affiliate of the Borrower.
"PAYMENT ACCOUNT" means the special purpose non-interest bearing
deposit account that the Trust Notes Trustee shall establish prior to or
on the Issue Date and, until the Trust Notes and all accounts due in
respect thereof have been paid in full, maintain into which all payments
required to be made by the Issuer under or with respect to the Trust Notes
shall be deposited.
"PAYMENT DATE" means any Principal Payment Date, Interest Payment
Date or any date of payment provided for hereunder.
"PERMITTED ASSIGNMENTS" has the meaning specified in Section 7.07.
"PERMITTED HOLDERS" means AmBev and any Person or Persons that,
individually or collectively control, directly or indirectly, AmBev at any
time.
"PERMITTED LIENS" means:
(a) any Lien on any property acquired, constructed or improved
by the Borrower or any of its Subsidiaries after the Issue Date
which is created, incurred or assumed contemporaneously with, or
within 12 months after, that acquisition (or in the case of any such
property constructed or improved, after the completion or
commencement of commercial operation of such property, whichever is
later) to secure or provide for the payment of any part of the
purchase price of such property or the costs of that construction or
improvement (including costs such as escalation, interest during
construction and finance costs); provided that in the case of any
such construction or improvement the Lien shall not apply to any
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other property owned by the Borrower or any of its Subsidiaries,
other than any unimproved real property on which the property so
constructed, or the improvement, is located;
(b) any Lien on any property acquired from a corporation or
any other Person which is merged with or into the Borrower or its
Subsidiaries, or any Lien existing on property of a corporation or
any other Person which existed at the time such corporation becomes
a Subsidiary of the Borrower and, in either case, which is not
created as a result of or in connection with or in anticipation of
any such transaction (unless such Lien was created to secure or
provide for the payment of any part of the purchase price of such
corporation);
(c) Liens existing on the Issue Date not otherwise described
in clauses (a) and (b) above;
(d) any Lien which secures only Indebtedness owing by a
Subsidiary to the Borrower, to one or more Subsidiaries or to the
Borrower and one or more Subsidiaries;
(e) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses (a) through (d) inclusive;
provided that the principal amount of Indebtedness secured thereby
shall not exceed the principal amount of Indebtedness so secured at
the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part
of the property which secured the Lien so extended, renewed or
replaced (plus improvements on such property); and
(f) Liens not otherwise permitted by clauses (a) through (e)
above securing Indebtedness in a principal amount not in excess of
10% of Consolidated Net Assets, as determined based on the
consolidated balance sheet of the Borrower as of the end of the most
recent fiscal quarter for which financial statements have been
provided to the Lender, prior to the date any such Lien shall be
Incurred.
For purposes of this definition, the term "Indebtedness" shall
be deemed to include interest on such Indebtedness.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or any nation or government, any
state, province or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"PERSONAL ASSETS TAX" means the tax established in Argentina
pursuant to the Argentine Law of Tax on Personal Assets No.23,966 (as
amended) and Decree No. 127/1996.
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"PRINCIPAL PAYMENT DATE" has the meaning set forth in Section 2.03.
"PURCHASE AGREEMENT" means the Purchase Agreement dated March 15,
2005 among the Borrower, the Financial Trustee and Citigroup Global
Markets Inc., as the initial purchaser of the Trust Notes.
"RESPONSIBLE OFFICER" means the chief executive officer, chief
financial officer, general manager, associate general manager or
equivalent senior executive officer of the Borrower.
"SALE AND LEASE-BACK TRANSACTION" means any transaction or series of
related transactions pursuant to which the Borrower or any of its
Subsidiaries sells or transfers any property to any Person with the
intention of taking back a lease of such property.
"SPECIFIED PROPERTY" means (i) any manufacturing facility, including
land and buildings and other improvements thereon and equipment located
therein, (ii) any executive offices, administrative buildings, and
research and development facilities, including land and buildings and
other improvements thereon and equipment located therein, and (iii) any
intangible assets, including, without limitation, any brand names,
trademarks, copyrights, patents and similar rights and any income
(licensing or otherwise), proceeds of sale or other revenue therefrom, in
each case of the Borrower or any of its Subsidiaries. For the avoidance of
doubt, "Specified Property" excludes any receivables or cash flow arising
from the sales of goods and services by the Borrower or its Subsidiaries
in the ordinary course of business.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding Capital Stock having
ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time Capital Stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such partnership, joint venture or limited liability
company or (c) the beneficial interest in such trust or estate, is at the
time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"TAXES" means any taxes, levies, imports, duties, assessments, or
other governmental charges of any nature (including penalties, interest
and other liabilities related thereto).
"TAXING JURISDICTION" means Argentina or any other jurisdiction in
which the Borrower is organized or is a resident for tax purposes or from
which payment is made or deemed to be made under or with respect to this
Agreement, the Loan, the Trust Notes or the Indenture, as the case may be,
in each case, any political subdivision or taxing authority or agency
thereof or therein.
"TRUST" has the meaning specified in the recital of parties to this
Agreement.
11
"TRUST NOTES" means the 7.375% Trust Notes due 2012 to be issued by
the Issuer in an initial principal amount of U.S.$ 150,000,000.
"TRUST NOTES TRUSTEE" means The Bank of New York, as the trustee
under the Indenture.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the Additional Transaction Documents in the
computation of periods of time from a specified date to a later specified date,
the word "FROM" means "from and including" and the words "TO" and "UNTIL" each
mean "to but excluding". References in this Agreement or the Additional
Transaction Documents to any agreement or contract "AS AMENDED" shall mean and
be a reference to such agreement or contract as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with its
terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with Argentine
GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE LOAN
SECTION 2.01. The Loan. (a) The Lender agrees, on the terms and
conditions hereinafter set forth, to make a single loan (the "LOAN") to the
Borrower on the Issue Date in an amount of U.S.$ 150,000,000 (the "LOAN
AMOUNT"). The Lender shall, on the Issue Date, credit the Borrower's Account
with the Loan Amount. In the case of Section 2.01(b), the Lender shall credit
the Borrower's Account with the amount in Argentine pesos equivalent to the Loan
Amount at the exchange rate agreed upon with the Borrower in a letter dated as
of the date hereof (the "EXCHANGE RATE"). In both cases, the Loan Amount
credited in the Borrower's Account shall be the Loan Amount minus the aggregate
amount of fees, commissions and expenses due on the Issue Date pursuant to the
Additional Transaction Documents. The Borrower acknowledges and agrees that,
notwithstanding anything herein to the contrary, the principal amount of the
Loan owed as of the Issue Date shall be the Loan Amount. The commitment of the
Lender to make the Loan hereunder shall terminate on the Issue Date immediately
upon the making of the Loan under this Section 2.01. Amounts borrowed under this
Section 2.01 and repaid or prepaid may not be reborrowed.
(b) The Loan shall be denominated in U.S. dollars. Notwithstanding
anything herein to the contrary, if there is any regulatory or legal impediment
to the Loan being disbursed in U.S. dollars as determined by the Lender, the
Lender shall, on the Issue Date, credit the account designated by the Borrower
with an amount equivalent to the amount in Argentine pesos resulting from
converting the amount of the Loan in U.S. dollars to Argentine pesos at the
Exchange Rate.
SECTION 2.02. Notice of Borrowing. The Borrower shall give the
Lender notice of the borrowing in the form attached hereto as Exhibit A. Not
later than 11:00 A.M. New York time on the date specified for the borrowing, the
Lender shall make available the amount of the Loan to such account as the Lender
and the Borrower may agree.
12
SECTION 2.03. Repayment of Principal. Subject to adjustment pursuant
to Sections 2.04 and 2.05, if any, the Borrower shall repay the principal of the
Loan in five annual equal installments commencing on March 22, 2008 and ending
on the Maturity Date (or if such date is not a Business Day, the next succeeding
Business Day following such date) (each a "PRINCIPAL PAYMENT DATE").
SECTION 2.04. Optional Prepayment With Respect to Tax Matters. (a)
The Borrower may at its option prepay at any time prior to maturity in whole but
not in part, upon the compliance with or waiver of the conditions set forth in
Section 2.04(b) below, not less than 30 nor more than 90 days' notice, the Loan
at a prepayment price equal to 100% of the then outstanding aggregate principal
amount thereof, plus accrued and unpaid interest, if any, to the prepayment date
(subject to the right of the Lender on the relevant record date to receive
interest due on the relevant Interest Payment Date) (the "PREPAYMENT PRICE") and
Additional Amounts, if any, to the prepayment date, if as a result of: (i) any
amendment to, or change in, the laws or treaties (or any regulations or rulings
promulgated thereunder) of a Taxing Jurisdiction , or (ii) any amendment to or
change in an official position regarding the application or interpretation of
such laws, treaties, regulations or rulings, which amendment or change becomes
effective on or after the Issue Date (the "RELEVANT DATE"), the Borrower has
become or would become obligated to pay any Additional Amounts or to indemnify
for Taxes imposed on the Lender, Financial Trustee or the Noteholders, as the
case may be, pursuant to Section 2.08(d), and the Borrower determines in its
reasonable business judgment that (a) such obligation cannot be avoided by the
use of reasonable measures available to the Borrower (including, without
limitation, by changing the jurisdiction from which or through which payment is
made, to the extent such change would be a reasonable measure under the given
circumstances and, (b) with respect to Taxes indemnified pursuant to Section
2.08(d), such Taxes are material); provided that:
(1) no such notice of prepayment may be given earlier than 90 days
prior to the earliest date on which the Borrower would be obligated to pay
such Additional Amounts or to indemnify for Taxes pursuant to Section
2.08(d) were a payment in respect of the Loan due and payable, and
(2) at the time such notice is given, such obligation to pay such
Additional Amounts or to indemnify for Taxes pursuant to Section 2.08(d)
remains in effect.
(b) In the event that the Borrower elects to prepay the Loan
pursuant to this Section 2.04, the Borrower must deliver to the Lender:
(i) an Officers' Certificate stating that: (A) the obligation to pay
the Additional Amounts referred to in Section 2.04(a) or to indemnify for
Taxes pursuant to Section 2.08(d) cannot be avoided by the Borrower taking
commercially reasonable measures available to it (which shall not include
changing its jurisdiction of organization or other measures that would
result in material out-of-pocket costs to the Borrower), and (B) the
Borrower is entitled to prepay the Loan pursuant to this Agreement;
(ii) an Opinion of Counsel in the relevant Taxing Jurisdiction to
the effect that: (A) the Borrower has or will become obligated to pay the
Additional Amounts referred to in Section 2.04(a) or to indemnify for
Taxes pursuant to Section 2.08(d) as a result of a change or amendment
described above and (B) all government approvals
13
necessary for the Borrower to effect such prepayment, if any, have been
obtained and are in full force and effect; and
(iii) give notice to the Lender, not less than 30 nor more than 90
days prior to the date scheduled for the prepayment, which notice shall:
(A) be signed by a Responsible Officer of the Borrower, (B) specify the
date the Loan is to be prepaid, (C) state the circumstances giving rise to
the Borrower's entitlement to effect the prepayment, and (D) be
irrevocable.
(c) After the notice described in clause (b)(iii) of this Section
2.04 has been delivered, the Borrower shall be required to prepay the Loan
in accordance with such notice.
(d) No prepayment under this Section 2.04 shall be effective unless
and until the Lender shall have received the prepaid amount payable in
same day funds. Unless the Borrower defaults payment of the Prepayment
Price, on or after the prepayment date for the Loan, interest will cease
to accrue on the Loan called for prepayment.
(e) The amount due under the Trust Notes will be reduced accordingly
upon a prepayment under this Section 2.04.
SECTION 2.05. Mandatory Prepayments. (a) Mandatory Prepayment Upon
Acceleration. Subject to Section 6.01 (including any rescission permitted
thereunder), upon any acceleration of the amounts due under the Loan during the
existence of an Event of Default pursuant to Section 6.01, the Borrower shall
immediately repay the then outstanding aggregate principal amount of the Loan,
together with all accrued and unpaid interest and all other amounts then due
thereon, or with respect thereto.
(b) Mandatory Offer to Purchase Trust Notes Upon a Change of
Control. (i) Upon the occurrence of a Change of Control, the Borrower shall make
an offer to purchase all of the Trust Notes pursuant to the offer described
below (the "CHANGE OF CONTROL OFFER") at a price (the "CHANGE OF CONTROL
PURCHASE PRICE") equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the purchase date (subject to the right of
Noteholders of record on the relevant record date to receive interest due on the
relevant interest payment date).
(ii) Within 30 days following any Change of Control, the Borrower
shall send, by first-class mail, with a copy to the Financial Trustee and
the Trust Notes Trustee, to each holder of Trust Notes pursuant to the
terms of the Trust Notes Indenture, a notice stating:
(1) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to this Section 2.05(b) and
that all Trust Notes timely tendered will be accepted for payment;
(2) the Change of Control Purchase Price and the purchase
date, which shall be, subject to any contrary requirements of
applicable law, a Business Day no earlier than 30 days nor later
than 60 days from the date such notice is mailed;
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(3) the circumstances and relevant facts regarding the Change
of Control; and
(4) the procedures that the Noteholders must follow in order
to tender their Trust Notes (or portions thereof) for payment, and
the procedures that the Noteholders must follow in order to withdraw
an election to tender Trust Notes (or portions thereof) for payment.
(iii) The Borrower will not be required to make a Change of Control
Offer following a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth in this Agreement applicable to a Change of
Control Offer made by the Borrower and purchases all Trust Notes validly
tendered and not withdrawn under such Change of Control Offer.
(iv) The Borrower will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of the Trust Notes
pursuant to a Change of Control Offer. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of this
Section 2.05, the Borrower will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations
under this Section 2.05 by virtue of such compliance.
(v) The Change of Control Purchase Price will be deposited by the
Borrower directly into the Payment Account.
(vi) Any Trust Notes purchased in a Change of Control Offer may be
delivered to the Lender in satisfaction of an equal amount of Loan amount
Outstanding.
SECTION 2.06. Interest. (a) Scheduled Interest. The outstanding
principal amount of the Loan will bear interest at the rate of 7.375% per year
(the "INTEREST RATE").
(b) Default on Principal or Interest. If the Borrower fails to make
any payment of principal or interest, or any other payment on or in respect of
the Loan, on or before its due date as specified in this Agreement or as
notified to the Borrower in accordance herewith, such overdue amount shall bear
interest at the rate of one percent (1%) per annum over and above the Interest
Rate from the date such payment became due until the date of actual payment (as
well after as before judgment).
(c) Interest on the Loan will be payable in arrears on March 22 and
September 22 of each year, commencing on September 22, 2005 (each an "INTEREST
PAYMENT DATE"); provided (i) that interest accrued pursuant to Section 2.06(b)
shall be payable on demand and (ii) subject to Section 2.04(a), upon any
repayment or prepayment of principal of the Loan, interest accrued on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment.
SECTION 2.07. Payments and Computations. (a) The Borrower shall make
each payment hereunder, irrespective of any counterclaim, set-off defense or
other right that the Borrower may have against the Lender or any other Person,
whether in connection with a
15
transaction contemplated in this Agreement or any unrelated transaction, two
Business Days prior to the applicable Payment Date in same day funds in U.S.
dollars or such other coin or currency of the United States that as at such
Payment Date is legal tender for the payment of public and private debts.
(b) Notwithstanding anything herein to the contrary, if, two
Business Days prior to any Payment Date there is any regulatory or legal
impediment for the Borrower to purchase U.S. dollars in the free exchange market
(▇▇▇▇▇▇▇ Unico y Libre de Cambios) in Argentina to repay the Loan in U.S.
dollars, the Borrower shall, on such Payment Date, credit the Lender's Account
with an amount in Argentine pesos (or any other legal tender of Argentina on
such Payment Date) resulting from converting the amount of the relevant payment
in U.S. Dollars to Argentine pesos so that the amount resulting from such
conversion is sufficient to cover any and all amounts due in U.S. Dollars on
such Payment Date and simultaneously deliver to the Lender written instructions
for the Lender to exchange the Argentine pesos deposited by the Borrower into
U.S. dollars. In this event, the Borrower shall deposit the amounts due and
notify the Lender with sufficient time to allow the Lender to effect the
exchange of Argentine pesos into U.S. dollars on the same date.
(c) All such payments shall be made to the Lender at the Lender's
Account. Any payments (i) received by the Lender after the time provided in this
Section 2.07 or (ii) delivered pursuant to Section 2.07(b) without sufficient
time to allow the Lender to effect the exchange of Argentine pesos into U.S.
dollars on the same date, may, in the discretion of the Lender, be deemed to
have been received on the next succeeding Business Day for purposes of
calculating interest thereon.
(d) In the event the Lender determines on the date payment is made
by the Borrower pursuant to this Section 2.07, that the funds deposited in
Argentine pesos pursuant to Section 2.07(b) above do not satisfy all amounts
becoming due on such Payment Date, the Lender shall give prompt notice by
facsimile to the Borrower (i) stating that there are insufficient amounts to
satisfy payment hereunder and/or under the Trust Notes on the immediately
succeeding Payment Date, and (ii) specifying all amounts due and payable on such
Payment Date and the funds then available for the payment thereof.
(e) Upon the receipt of notice from the Lender pursuant to Section
2.07(d), the Borrower shall immediately deposit directly in the Payment Account
not later than 3:00 P.M. (Buenos Aires time), at least one Business Day prior to
the related Payment Date, an amount in U.S. dollars, in immediately available
funds sufficient to cover the difference between the amounts due and payable on
such Payment Date and the funds then available for the payment thereof, as
detailed in the notice sent by the Lender to the Borrower pursuant to Section
2.07(d).
(f) If, after notifying the Borrower pursuant to Section 2.07(d),
the Borrower does not make the payment in accordance with Section 2.07(e), the
Lender shall immediately notify the Trust Notes Trustee of the non-payment by
the Borrower of the amounts due hereunder.
(g) All computations of interest shall be made by the Lender on the
basis of a 360-day year of twelve 30-day months, in each case for the actual
number of days (including the
16
first day but excluding the last day) occurring in the period for which such
interest is payable. Each determination by the Lender of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(h) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest.
(i) The Borrower's obligation to make any payment hereunder shall
not be discharged until the Financial Trustee shall have made the related
payment in U.S. dollars to the Trust Notes Trustee under the Indenture.
SECTION 2.08. Additional Amounts. (a) Except as required by law or
by the official interpretation or administration thereof, the Borrower will make
any and all payments under this Agreement free and clear of and without
withholding or deduction for any and all present or future Taxes imposed or
levied by a Taxing Jurisdiction. If the Borrower is required by law to withhold
or deduct any such Taxes (including, without limitation, Personal Assets Taxes)
from any payment made under, or with respect to, the Loan, except as provided
below in Section 2.08(b), the sum payable by the Borrower shall be increased by
additional amounts ("ADDITIONAL AMOUNTS") as may be necessary so that after the
Borrower has made all required withholdings and deductions (including
withholdings and deductions applicable to additional sums payable under this
Section 2.08), (i) the Lender receives an amount not less than the sum it would
have received had no such withholdings and deductions been made, (ii) the
Borrower shall make all such withholdings and deductions and (iii) the Borrower
shall pay the full amount withheld or deducted to the relevant Taxing
Jurisdiction in accordance with applicable law. The Borrower further agrees
that, in the event the Financial Trustee is required by law to withhold or
deduct any such Taxes (including, without limitation, Personal Assets Taxes)
from any payment made under, or with respect to, the Trust Notes, it will pay
and/or reimburse, as the case may be, the Financial Trustee, as Lender, for such
Additional Amounts as may be necessary so that the net amount received by the
Noteholders (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Noteholders would have received if such
Taxes had not been required to be withheld or deducted.
(b) Notwithstanding Section 2.08(a), the Borrower will not be
obligated to make any payment pursuant to Section 2.08(a) or (d) in connection
with any Tax that is, or is imposed due to, any of the following (and for the
avoidance of doubt, the term "Additional Amounts" shall not include any such
amounts):
(i) any Taxes that would not have been so imposed but for the
existence of any present or former connection between the Lender or a
Noteholder (or between a fiduciary, settlor, beneficiary, member or
shareholder of such Noteholder, if such Noteholder is an estate, a trust,
a partnership or limited liability company or a corporation), as the case
may be, and the relevant Taxing Jurisdiction, including, without
limitation, such Noteholder (or such fiduciary, settlor, beneficiary,
member or shareholder) being or having been a citizen or resident of the
Taxing Jurisdiction or having been engaged in a trade or business or
present in a Taxing Jurisdiction or having, or having had a permanent
establishment in a Taxing Jurisdiction other than the mere
17
receipt of such payment or the ownership or holding of or the execution,
delivery or enforcement of this Agreement or the Trust Notes, as the case
may be;
(ii) any estate, inheritance, gift, sales, transfer, capital gains,
excise, personal property or similar Taxes (except the Personal Assets
Tax);
(iii) any Taxes that would not have been so imposed but for the
presentation of this Agreement or any note or other debt instrument issued
under this Agreement (where presentation is required) or the Trust Notes,
as the case may be, for payment on a date more than 30 days after the date
on which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever is later;
(iv) any Taxes that would not have been so imposed but for the
failure to file a declaration of non-residence or any other claim or
filing for exemption to which it is entitled; provided that (A) such
declaration of non-residence or other claim or filing for exemption is
required by the applicable law of the Taxing Jurisdiction as a
precondition to such exemption, (B) complying with such requirements would
not be materially more onerous (in form, in procedure or in the substance
of information disclosed) to the Lender or to such Noteholder than
complying with the comparable information or other reporting requirements
imposed under U.S. tax law, regulations and administrative practice, and
(C) at least 30 days prior to the first payment date with respect to which
such declaration of non-residence or other claim or filing for exemption
is required under the applicable law of the Taxing Jurisdiction, notice
has been given by the Borrower to the Lender or the Noteholders, as
applicable, that a declaration of non-residence or other claim or filing
for exemption is required to be made;
(v) any withholding or deduction imposed on a payment that is
required to be made pursuant to the European Union Directive on the
taxation of savings income (the "DIRECTIVE") implementing the conclusions
of the European Council of Economic and Finance Ministers (ECOFIN) meeting
on June 3, 2003, or any law implementing or complying with, or introduced
in order to conform to, such Directive;
(vi) any Taxes required to be withheld by any paying agent from any
payment of the principal of, or interest on any Trust Note, if such Tax
results from the presentation of any Trust Note for payment in a Member
State of the European Union and the payment can be made without such
withholding or deduction by the presentation of the Trust Note to another
paying agent in a Member State of the European Union;
(vii) any Taxes payable otherwise than by withholding or deduction
from payments on or in respect of any Trust Note; or
(viii) in the case of any combination of the items listed above;
nor will Additional Amounts be paid with respect to any Taxes imposed on a
payment to a Noteholder, if such Noteholder is a fiduciary, a partnership, a
limited liability company or other than the sole beneficial owner of that
payment to the extent that payment would be required by the laws of a Taxing
Jurisdiction (or any political subdivision thereof) to be included in the
income, for tax purposes, of a beneficiary or settler with respect to the
fiduciary, a member of
18
that partnership, an interestholder in a limited liability company or a
beneficial owner and such Taxes would not have been imposed on such payment had
such person been the sole beneficial owner of the Trust Notes.
(c) Notwithstanding Section 2.08(b)(ii), in addition, the Borrower
agrees to pay or reimburse, as applicable, any Other Taxes from the execution or
initial delivery of this Agreement, the Indenture or the Trust Notes or any
other document or instrument in relation thereto and the enforcement thereof
following the occurrence and during the continuance of any Default, and will
indemnify the Lender or the Financial Trustee, as the case may be, for any such
Taxes paid by the Lender, the Financial Trustee or the Noteholders,
respectively; provided, however, that such Other Taxes cannot be avoided by the
reasonable use of measures available to the Lender, Financial Trustee or
Noteholders, as the case may be.
(d) Without duplication of any amounts paid under this Agreement
with respect to Additional Amounts, Other Taxes or otherwise, the Borrower will,
upon the written request of the Lender or the Financial Trustee, indemnify and
hold harmless and reimburse the Lender or the Financial Trustee, to the extent
the Borrower has not directly made the required payments pursuant to the terms
of this covenant, for the amount of any Taxes imposed by a Taxing Jurisdiction
(other than any such Taxes for which the Lender, the Financial Trustee or the
Noteholders would not have been entitled to receive Additional Amounts pursuant
to any of the conditions described in Section 2.08(b), with the exception of
Section 2.08(b)(vii)) so imposed on, and paid by, the Lender, the Financial
Trustee or the Noteholders, as a result of any payment made by the Borrower
under or with respect to this Agreement or by the Financial Trustee under or
with respect to the Trust Notes, as the case may be, so that the net amount
received by the Lender or by the Noteholders under the Indenture, as the case
may be, after such reimbursement would not be less than the net amount the
Lender or the Noteholders, as holders of the Trust Notes, would have received if
such Taxes would not have been imposed or levied and so paid. This
indemnification shall be made within 30 days from the date the Lender or the
Financial Trustee, as the case may be, makes written demand therefor; provided
that such written request must be made no later than 30 days after the date when
such Taxes are imposed or levied.
(e) The Borrower will (1)(i) make such withholding or deduction and
(ii) remit the full amount deducted or withheld to the relevant Taxing
Jurisdiction in accordance with applicable law or (2) reimburse the Financial
Trustee, acting on behalf of the Trust. The Borrower will use all reasonable
efforts to obtain certified copies of tax receipts evidencing the payment of any
Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes
and will furnish such certified copies to the Financial Trustee, in its capacity
as Lender, within 30 days after the date the payment of any Taxes so deducted or
so withheld is due pursuant to applicable law or, if such tax receipts are not
reasonably available to the Borrower, furnish such other documentation that
provides reasonable evidence of such payment by the Borrower pursuant to this
Section 2.08. At least 30 days prior to each date on which any payment under or
with respect to this Agreement is due and payable (unless such obligation to pay
Additional Amounts arises shortly before or after the 30th day prior to such
date, in which case it shall be promptly thereafter), if the Borrower is
obligated to pay Additional Amounts with respect to such payment, the Borrower
will deliver to the Lender an Officers' Certificate stating that Additional
Amounts will be payable, the amounts so payable and setting forth such other
information necessary to pay such Additional Amounts to the Lender on the
payment date. Each
19
such Officers' Certificate shall be relied upon until receipt of a further
Officers' Certificate addressing such matters.
(f) The Borrower undertakes that, if European Union Council
Directive 2003/48/EC or any other Directive implementing the conclusions of the
ECOFIN Council meeting of 26 and 27 November 2000 or any law implementing or
complying with, or introduced in order to conform to, such Directive is brought
into force, it will ensure that it maintains a paying agent in a European Union
Member State that will not be obliged to withhold or deduct Tax pursuant to the
Directive.
(g) All references to principal, premium, interest, or other amounts
payable under this Agreement shall be deemed to include any Additional Amounts
(or other additional payments) payable by the Borrower under this Section 2.08
or otherwise with respect to this Agreement. The foregoing obligations in this
Section 2.08 shall survive any termination, defeasance or discharge of this
Agreement or the Trust Notes and shall apply equally to any Taxing Jurisdiction
with respect to any successor Person to the Borrower or to the Financial
Trustee, as the case may be.
(i) In the event the Borrower pays any Personal Assets Tax in
respect of the Loan or the Trust Notes, the Borrower hereby waives any right it
may have under Argentine law to seek reimbursement (whether by way of
foreclosing the Loan, by deduction from payments of principal of or interest on
the Loan or otherwise) from the Lender or the Financial Trustee of any such
amounts paid.
SECTION 2.09. Evidence of Indebtedness. The Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
Indebtedness of the Borrower to the Lender resulting from the Loan owing to the
Lender from time to time, including the amounts of principal and interest
payable and paid to the Lender from time to time hereunder. The accounts
maintained pursuant to this Section 2.09 shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of the Lender to maintain such accounts or any error therein shall not
in any manner affect the obligation of the Borrower to repay the Loan in
accordance with the terms of this Agreement. The Borrower shall, at the date the
Loan is made, execute and deliver to the Lender, a promissory note in the form
attached hereto as Exhibit B-1, together with a reconocimiento de deuda, in the
form attached hereto as Exhibit B-2 or in forms otherwise acceptable to the
Lender, payable to the order of the Lender in a principal amount equal to the
amount owed to the Lender. The Lender agrees that, notwithstanding the
simultaneous existence of the Trust Notes and the Loan, it is not entitled to,
and shall not seek to, recover in the aggregate any amount in excess of the
unpaid amounts owing to it under this Agreement. The Lender agrees that if at
any time it should recover any amount in excess of the unpaid amount owing to it
under this Agreement, it shall promptly return such excess amount to the
Borrower. The Lender further agrees that, notwithstanding the execution of the
promissory note and the reconocimiento de deuda by the Borrower, the Lender
shall not maintain at any time simultaneous actions under both instruments.
20
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent. The obligation of the Lender to
make the Loan hereunder shall be subject to the following conditions precedent,
each of which shall have been satisfied or waived by the Lender:
(a) As of the Issue Date, this Agreement shall have been duly
executed by each of the parties hereto.
(b) The promissory note and the reconocimiento de deuda, in
accordance with Section 2.09 hereof, shall have been executed by a duly
authorized Officer and duly notarized by an Argentine public notary and
delivered to the Lender.
(c) Anything in this Agreement to the contrary notwithstanding, the
Lender shall not have any obligation to make the Loan hereunder except to the
extent the Lender has actually received, or shall be simultaneously receiving,
at the place and in the manner provided therein, the proceeds from the sale of
the Trust Notes pursuant to the assignment transaction provided for in the
Assignment Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Borrower
represents and warrants to the Lender as of the Issue Date as follows:
(a) The Borrower is duly incorporated and is validly existing as a
sociedad anonima in good standing under the laws of the Republic of
Argentina, and each of its Subsidiaries is duly organized and is validly
existing in good standing (to the extent applicable) under the laws of the
jurisdiction in which it is organized. The Borrower has the full corporate
power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Offering
Memorandum and to enter into and perform its obligations, as applicable,
under the Additional Transaction Documents to which it is a party, and (to
the extent applicable) is duly qualified to do business as a foreign
corporation under the laws of each jurisdiction which requires such
qualification except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect.
(b) All of the outstanding shares of capital stock of the Borrower
have been duly and validly authorized and issued and are fully paid and
nonassessable and, except as disclosed in the Offering Memorandum or as
could not reasonably be expected to have a Material Adverse Effect, all of
the outstanding shares of capital stock, of the Borrower are free and
clear of any security interest or any other security interests, claims,
liens or encumbrances.
21
(c) All of the outstanding shares of capital stock, if any, of each
of the Borrower's Subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable and, except as disclosed in
the Offering Memorandum, all outstanding shares of capital stock of the
Subsidiaries are owned by the Borrower either directly or through
majority-owned Subsidiaries, free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
(d) The capitalization of the Borrower is as set forth in the
Offering Memorandum.
(e) This Agreement has been duly authorized, executed and delivered
by the Borrower, and, assuming due authorization, execution and delivery
thereof by the Lender, constitutes a legal, valid and binding agreement of
the Borrower, enforceable against the Borrower in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity.
(f) The Expense Agreement has been duly authorized, executed and
delivered by the Borrower, and, assuming due authorization, execution and
delivery thereof by the Financial Trustee, constitutes a legal, valid and
binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity.
(g) No consent, approval, authorization, filing with or order of any
court or governmental agency or other regulatory authority or body having
jurisdiction over any of the Borrower or any of its properties or assets
in Argentina or elsewhere ("GOVERNMENT AUTHORITIES") is required for the
execution, delivery or performance by the Borrower of any of its
obligations under any of this Agreement or the Additional Transaction
Documents to which it is a party in the manner contemplated in the
Offering Memorandum, including, without limitation, making any of the
applicable payments required to be made after the date hereof under or in
respect of this Agreement or such Additional Transaction Documents.
(h) The Borrower is not in violation of its organizational
documents, and none of the execution and delivery of any of the Additional
Transaction Documents, the consummation of any of the transactions
described or contemplated therein, or the fulfillment of the terms thereof
will conflict with, or give rise to any right to accelerate the maturity
or require the prepayment, repurchase or redemption of any indebtedness
under, or result in a breach or violation or imposition of any Lien upon
any property or assets of the Borrower pursuant to, (i) the charter,
by-laws or comparable organizational documents of the Borrower, (ii) the
terms of any material indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other material agreement, obligation,
condition, covenant or instrument to which the Borrower is a party or
bound or to which any of its property or assets is subject or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
the Borrower.
22
(i) The historical financial statements of the Borrower included in
the Offering Memorandum, together with the related notes, have been
prepared in accordance with the accounting policies and practices
contained in Argentine GAAP applied on a consistent basis throughout the
periods involved (except as otherwise noted therein) and present fairly in
all material respects the financial condition, results of operations and
cash flows of the Borrower as of the dates and for the periods indicated;
the summary and selected financial data set forth under the captions
"Summary Financial and Other Information," "Selected Financial and Other
Information" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in the Offering Memorandum fairly
present in all material respects, on the basis stated in the Offering
Memorandum, the information included therein; and, except as set forth or
contemplated in the Offering Memorandum, since the later of September 30,
2004 and the respective dates as of which information is given in the
Offering Memorandum, there has been no Material Adverse Change.
(j) Except as set forth or contemplated in the Offering Memorandum,
since the respective dates as of which information is given in the
Offering Memorandum, the Borrower has not entered into any transaction or
agreement (whether or not in the ordinary course of business) which could
reasonably be expected to have a Material Adverse Effect.
(k) Except as set forth or contemplated in the Offering Memorandum
or as could not reasonably be expected, in the aggregate, to have a
Material Adverse Effect, no action, suit or proceeding by or before any
Government Authority involving the Borrower or any of its Subsidiaries or
their property or assets is pending or, to the best knowledge of the
Borrower, threatened, involving or in any way relating to any of the
Additional Transaction Documents or the transactions contemplated therein.
Except as set forth or contemplated in the Offering Memorandum, neither of
the Borrower nor any of its Subsidiaries is in default with respect to any
applicable statute, rule, writ, injunction, decree, order or regulation of
any Government Authority having jurisdiction over such Person which could
reasonably be expected to have a Material Adverse Effect.
(l) The Borrower and its Subsidiaries have good and marketable title
to all of their properties and assets, owns or leases all such properties
and assets as are both described in the Offering Memorandum and are
necessary to the conduct of their operations as presently conducted and
all such properties and assets are free and clear of any Liens except, in
the case of any of the foregoing, such as could not reasonably be expected
to have a Material Adverse Effect. All leases and subleases material to
the business of the Borrower under which the Borrower holds properties, as
described in the Offering Memorandum, are in full force and effect; and
the Borrower has not had any notice that any material claim of any sort
has been asserted by anyone adverse to the Borrower's rights under any
leases or subleases mentioned above, or affecting or questioning the
rights thereof to the continued possession of the leased or subleased
premises under any such lease or sublease.
(m) Price Waterhouse & Co., who certified the financial statements
of the Borrower and delivered their report with respect to the Borrower's
audited consolidated
23
financial statements as of June 30, 2003 and 2004 and for each of the
three years ended June 30, 2002, 2003 and 2004 and the unaudited interim
consolidated financial statements as of September 30, 2003 and 2004 and
for the three months ended September 30, 2003 and 2004 (together, the
"FINANCIAL STATEMENTS") included in the Offering Memorandum, are
independent public accountants within the meaning of Rule 101 of the Code
of Professional Conduct of the American Institute of Certified Public
Accountants and are certified public accountants with respect to the
Borrower under the standards established by the local authorities in
Argentina.
(n) No labor problem or dispute with the employees of the Borrower
or any of its Subsidiaries exists or, to the knowledge of the Borrower, is
threatened or imminent, in each case to the extent that such problem or
dispute could reasonably be expected to have a Material Adverse Effect.
(o) The Borrower and its Subsidiaries have filed or caused to be
filed all material tax returns required to be filed, and have paid all
material taxes shown to be due and payable on said returns or on any
material assessments made against such Persons or any of their respective
properties and all other material taxes, assessments, fees or other
charges imposed on such Persons or any of their respective properties by,
any Government Authority (other than those the amount or validity of which
is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with generally accepted
accounting principles have been provided on the books of such person); and
no tax liens or liens with respect to any such assessments, fees or other
charges have been filed and no claims are being asserted with respect to
any such taxes, assessments, fees or other charges.
(p) The Borrower and its Subsidiaries maintain insurance with
financially sound and reputable insurance companies against such losses
and risks and in such amounts as is customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations; and neither of the Borrower nor any of its Subsidiaries thereof
has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(q) No Subsidiary of the Borrower is currently contractually
prohibited, directly or indirectly, from paying any dividends to the
Borrower, from making any other distribution on such Subsidiary's capital
stock, from repaying to the Borrower any loans or advances to such
Subsidiary from the Borrower or from transferring any of such Subsidiary's
property or assets to the Borrower or any other Subsidiary of the
Borrower, except in connection with the consummation of the transactions
contemplated in the Offering Memorandum.
(r) The Borrower and its Subsidiaries (i) have made all declarations
and filings with and possess all licenses, certificates, permits,
concessions and other authorizations issued by Government Authorities and
(ii) neither the Borrower nor any of its Subsidiaries has received notice
or has knowledge of any limitation, restriction,
24
requirement, without limitation, any revocation or modification (actual,
pending or threatened) of any such license, certificate, permit,
concessions or authorization or has any reason to believe that any such
license, certificate, permit, concessions or authorization will not be
renewed, except, in respect of the matters contemplated in clauses (i) and
(ii), to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
(s) The Borrower and its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in accordance with Argentine
GAAP and to maintain asset accountability, (iii) access to assets is
permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(t) Except as set forth in the Offering Memorandum, the Borrower and
its Subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local Environmental Laws, (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under the applicable Environmental Laws to conduct their
respective businesses and (iii) have not received written notice of any
actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, except for any aggregate noncompliance or actual or
potential liabilities in respect of the matters contemplated in clauses
(i), (ii) and (iii) above reasonably could not be expected to have a
Material Adverse Effect.
(u) In the ordinary course of its business, the Borrower reviews as
necessary the effect of Environmental Laws on its business, operations and
properties and its respective Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws, or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis
of such review, the Borrower has reasonably concluded that such associated
costs and liabilities could not, singly or in the aggregate, have a
Material Adverse Effect.
(v) The Borrower and its Subsidiaries own, possess, license or have
other rights to use, on reasonable terms, all patents, patent
applications, trade and service marks, trade and service ▇▇▇▇
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property necessary
for the conduct of the business of the Borrower as now conducted or as
described in the Offering Memorandum to be conducted by them and neither
the Borrower nor any of its Subsidiaries has received any written notice
of infringement or of conflict with asserted rights of others with respect
to any of the foregoing which, singly or in the aggregate, if
25
the subject of an unfavorable decision, ruling or funding, could
reasonably be expected to result in any Material Adverse Effect.
(w) To ensure the legality, validity, enforceability or
admissibility into evidence of this Agreement, the Additional Transaction
Documents or any other documents executed thereunder, it is not necessary
that any such document be filed or recorded with any court or other
authority in Argentina (other than such authorizations or filings that
have already been obtained or made, as applicable), or that any stamp or
similar tax be paid in Argentina on or in respect of any such document.
(x) The Borrower is subject to civil and commercial law in respect
of its obligations hereunder and under the Additional Transaction
Documents and neither the Borrower, nor is any of its properties, assets
or revenues is subject to any right of immunity under Argentine, United
States federal law or New York law from (i) any legal action, suit or
proceeding, (ii) the giving of any relief in any such legal action, suit
or proceeding, (iii) set-off or counterclaim, (iv) the jurisdiction of any
Argentine, State of New York or United States federal court, (v) service
of process, attachment upon or prior to judgment, or attachment in aid of
execution of judgment, or (vi) execution of a judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement
of a judgment, in any such court with respect to its obligations,
liabilities or any other matter under or arising out of or in connection
herewith.
(y) Both presently and immediately after giving effect to the
transactions contemplated hereunder, the Borrower (i) is and will be able
to pay any of its debts as they become due and (ii) is not insolvent as
defined under applicable Argentine bankruptcy, insolvency or similar law.
(z) There are no Argentine taxes on or by virtue of the execution or
delivery of any of the Additional Transaction Documents by any of the
parties thereto or any other document to be furnished hereunder or
thereunder or the consummation of any of the transactions described
therein. Except as described in the Offering Memorandum (or as may relate
to payments due by the Borrower under any of the Additional Transaction
Documents to which it is a party), payments to be made by the Borrower or
any other party to any of the Additional Transaction Documents pursuant to
such documents will not be subject to taxes (not including taxes imposed
on net income) of the United States, Argentina, or any other jurisdiction
from which payments are made by the Borrower or any other party to any of
the Additional Transaction Documents. There are no stamp or other issuance
or transfer taxes or duties or other similar fees or charges imposed by
the United States or Argentina that are required to be paid in connection
with the execution and delivery of any of the Additional Transaction
Documents or the consummation of any of the other transactions described
therein.
26
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. (a) Provision of Financial
Statements. The Borrower shall furnish or cause to be furnished to the Lender
the following information:
(i) an annual compliance statement as to the performance of the
Borrower of its obligations under this Agreement and as to any Default in
such performance;
(ii) annual reports of the Borrower in Spanish, and a free
translation to English thereof, which shall include audited fiscal
year-end consolidated financial statements prepared in conformity with
Argentine GAAP and substantially in the form prescribed by Argentine
regulatory authorities (whether or not the Borrower is a public reporting
company at the time), together with a report of Price Waterhouse & Co. or
another independent public accounting firm of recognized international
standing, not later than 120 days after the end of the most recently
completed fiscal year;
(iii) quarterly reports of the Borrower in Spanish, and a free
translation to English thereof, which shall include unaudited interim
consolidated financial statements prepared in conformity with Argentine
GAAP and substantially in the form prescribed by Argentine regulatory
authorities (whether or not the Borrower is a public reporting company at
the time), together with a limited review report prepared by Price
Waterhouse & Co. or another independent accounting firm of recognized
international standing, not later than 70 days after the end of the most
recently completed fiscal quarter (unless the end of such fiscal quarter
is also the end of a fiscal year);
(iv) notices in English of all shareholders' meetings and other
material public reports and public communications, if any, that are
distributed by the Borrower to its shareholders generally or required to
be filed by the Borrower with any public stock exchange or securities
regulatory authority in Argentina or elsewhere.
(v) The Lender shall, not later than two (2) Business Days upon
receipt of any such information set forth in clauses (i) to (iv) above, send to
the Buenos Aires Stock Exchange any such documentation so that it may be
available to the Noteholders.
(b) Performance of Obligations. The Borrower shall duly and
punctually pay all amounts owed by it and comply with all its other obligations
under the applicable terms of this Agreement and the Additional Transaction
Documents in accordance with the terms hereof and thereof.
(c) Maintenance of Corporate Existence. The Borrower shall, and
shall cause each of its Subsidiaries to, maintain in effect its corporate
existence and all registrations necessary therefor and take all reasonable
actions to maintain all rights, privileges, titles to property, franchises,
concessions and the like necessary or desirable in the normal conduct of its
business, activities or operations; provided, however, that this Section 5.01(c)
shall not require the Borrower or any of its Subsidiaries to maintain any such
right, privilege, title to property or franchise or the like or require the
Borrower to preserve the corporate existence of any
27
Subsidiary, if (i) such action is permitted under Section 5.02(e) or (ii) the
failure to do so does not, and could not reasonably be expected to, have a
Material Adverse Effect or have a material adverse effect on the rights of the
Lender hereunder or under any Additional Transaction Document to which the
Borrower is a party; provided further that any actions taken in connection with
the compliance by the Borrower, or any of its Subsidiaries, with any resolution
adopted by Argentina's antitrust authorities in connection with the approval of
the alliance between AmBev and the Borrower that would result in the sale,
conveyance, transfer or disposition of any rights, privileges, titles to
property, franchises, concessions and the like that would affect the corporate
existence of any entity, shall not contravene the terms of this Section 5.01(c).
(d) Maintenance of Properties. The Borrower shall, and shall cause
each of its Subsidiaries to, keep all its property used or useful in the conduct
of its business in good working order and condition, ordinary wear and tear
excepted; provided, however, that this Section 5.01(d) shall not require the
Borrower or any of its Subsidiaries to maintain any such right, privilege, title
to property or franchise if the failure to do so does not, and could not
reasonably be expected, to have a Material Adverse Effect or have a material
adverse effect on the rights of the Lender or under any Additional Transaction
Document to which the Borrower is a party; provided further that any actions
taken in connection with the compliance by the Borrower, or any of its
Subsidiaries, of any resolution adopted by Argentina's antitrust authorities in
connection with the approval of the alliance between AmBev and the Borrower and
that would result in the sale, conveyance, transfer or disposition of any such
property, shall not contravene the terms of this Section 5.01(d).
(e) Compliance with Laws. The Borrower shall comply, and shall cause
each of its Subsidiaries to comply, with all applicable laws, rules,
regulations, orders and directives of any Government Authority having
jurisdiction over the Borrower, the Borrower's businesses or any of the
transactions contemplated herein, except where the failure so to comply could
not reasonably be expected to have a Material Adverse Effect or have a material
adverse effect on the rights of the Lender hereunder.
(f) Maintenance of Government Approvals. The Borrower shall, and
shall cause each of its Subsidiaries to, duly obtain and maintain in full force
and effect all governmental approvals, consents or licenses of any Government
Authority under the laws of Argentina or any other jurisdiction having
jurisdiction over the Borrower necessary in all cases for the Borrower or its
Subsidiaries to perform its obligations under the Additional Transaction
Documents to which it is a party (including, without limitation, any
authorization required to obtain and transfer U.S. dollars or any other currency
which at that time is legal tender in the United States, out of Argentina in
connection with this Agreement) or for the validity or enforceability thereof,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect or have a material adverse effect on the rights of the
Lender hereunder.
(g) Payments of Taxes and Other Claims. The Borrower shall, and
shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all Taxes levied or
imposed upon the Borrower or such Subsidiary, as the case may be, and (ii) all
lawful claims for labor, materials and supplies which, if unpaid,
28
might by law become a Lien upon the property of the Borrower or such Subsidiary,
as the case may be; provided, however, that neither the Borrower nor any
Subsidiary shall be required to pay or discharge or cause to be paid or
discharged any such Tax or claim (x) the amount, applicability or validity of
which is being contested in good faith and, if appropriate, by appropriate legal
proceedings, and for which adequate reserves, if applicable, have been
established on the financial statements of the Borrower or such Subsidiary, as
applicable, or (y) where the failure to do so does not and could not reasonably
be expected to have a Material Adverse Effect or a material adverse effect on
the rights of the Lender under this Agreement or any Additional Transaction
Document.
(h) Maintenance of Insurance. The Borrower shall, and shall cause
each of its Subsidiaries to, maintain insurance with financially sound and
reputable insurance companies in such amounts and covering such risks as is
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
(i) Maintenance of Books and Records. The Borrower shall, and shall
cause each of its Subsidiaries to, maintain books, accounts and records in
accordance with Argentine GAAP, unless (i) it is otherwise doing so under U.S.
generally accepted accounting principles in accordance with its status as a
foreign private issuer under U.S. law or otherwise or (ii) in the case of such
Subsidiaries, under generally accepted accounting principles in the jurisdiction
where each such Subsidiary is organized.
(j) Maintenance of Office or Agency. The Borrower shall maintain an
office or agency in the Borough of Manhattan, The City of New York, where
notices to and demands upon the Borrower in respect of this Agreement may be
served.
(k) Ranking. The Borrower shall ensure that the Loan shall
constitute general unsecured and unsubordinated Indebtedness of the Borrower and
shall rank pari passu with all other present and future unsecured and
unsubordinated Indebtedness of the Borrower (other than obligations preferred by
statute, by operation of law or pursuant to arrangements among holders of such
Indebtedness Outstanding on the Issue Date) that are not, by their terms,
expressly subordinated in right of payment to the obligations of the Borrower
under this Agreement.
(l) Notice of Certain Events. The Borrower shall give notice to the
Lender, as soon as is practicable and in any event within ten days after a
Responsible Officer becomes aware or should reasonably become aware, of the
occurrence of any Default, accompanied by a certificate of a Responsible Officer
setting forth the details of such Default and stating what action that the
Borrower has taken or proposes to take with respect thereto. Any notice given by
the Borrower to the Lender pursuant to this paragraph (l) shall, not later than
two (2) Business Days after receipt thereof, be sent by the Lender to the Buenos
Aires Stock Exchange so that it may be available to the Noteholders.
(m) Further Actions. The Borrower shall, at its own cost and
expense, and shall cause its Subsidiaries to, at their own cost and expense,
satisfy any condition or take any action (including the obtaining or effecting
of any necessary consent, approval, authorization, exemption, filing, license,
order, recording or registration) at any time required, as may be necessary or
as the Lender may reasonably request, in accordance with applicable laws and/or
29
regulations, to be taken, fulfilled or done in order (i) to enable the Borrower
to lawfully enter into, exercise its rights and perform and comply with its
obligations under this Agreement and each of the Additional Transaction
Documents to which it is a party, (ii) to ensure that the Borrower's obligations
under this Agreement and each of the Additional Transaction Documents to which
it is a party are legally binding and enforceable, (iii) to make this Agreement
and each of the Additional Transaction Documents to which it is a party
admissible in evidence in the courts of the State of New York or Argentina, (iv)
to enable the Lender to exercise and enforce its rights under and carry out the
terms, provisions and purposes of this Agreement and each of the Additional
Transaction Documents to which it is a party, (v) to take any and all action
necessary to preserve the enforceability of, and maintain the Lender's rights
under this Agreement and each of the Additional Transaction Documents to which
it is a party and (vi) to assist the Lender in its performance of its
obligations under this Agreement and each of the Additional Transaction
Documents to which it is a party. The Borrower acknowledges that the Financial
Trustee will pledge all of its right, title and interest in the Credit Agreement
and the Loan, including any promissory note or reconocimiento de deuda delivered
by the Borrower thereunder to the Trust Notes Trustee for the benefit of the
Noteholders and the Borrower hereby agrees to take all actions reasonably
requested by the Lender to perfect such Lien.
SECTION 5.02. Negative Covenants. (a) Liens. The Borrower shall not,
nor shall it cause or permit any of its Subsidiaries, to Incur any Indebtedness
secured by a Lien upon any Specified Property now owned or hereafter acquired,
without making effective provision for all amounts due under the this Agreement
to be directly secured equally and ratably pursuant to a perfected Lien with
(or, if the obligation or liability to be secured by such Lien is subordinated
in right of payment to the Loan, prior to) the obligation or liability secured
by such Lien, except for Permitted Liens.
(b) Indebtedness. The Borrower shall not, nor shall it permit any of
its Subsidiaries to, directly or indirectly, Incur any Indebtedness unless, on
the date of such Incurrence and after giving effect thereto, (A) no Default
shall have occurred and be continuing and (b) the Indebtedness to Adjusted
EBITDA Ratio at the date of such Incurrence, calculated on a pro forma basis to
take into account the Incurrence of the Indebtedness proposed to be Incurred, is
no more than 3.0 to 1.0.
(c) Consolidations, Merger, Sale or Conveyance. The Borrower shall
not, nor shall it permit any of its Subsidiaries, in one or a series of
transactions, to consolidate or amalgamate with or merge with or into or sell,
convey, lease or transfer all or substantially all of its respective properties
or assets to any Person (other than a Subsidiary of the Borrower) permit any
Person (other than a Subsidiary of the Borrower) to merge with or into it
unless:
(i) if the Borrower is a party to such transaction, either the
Borrower is the continuing entity or the Person formed by such
consolidation or into which the Borrower is merged or that acquired or
leased such property or assets of the Borrower will be a company organized
and validly existing under the laws of Argentina or the United States;
(ii) the successor company (jointly and severally with the Borrower
unless the Borrower shall have ceased to exist as part of such merger,
consolidation or amalgamation) agrees to indemnify the Lender against any
Tax thereafter imposed on the
30
Lender solely as a consequence of such consolidation, merger, conveyance,
transfer or lease with respect to the payment of principal of, or interest
on, the Loan;
(iii) immediately after giving effect to the transaction, no Default
shall have occurred and be continuing;
(iv) the Borrower shall have delivered to the Lender an Officers'
Certificate and an Opinion of Counsel, each stating that the transaction
and the acknowledgment or amendment agreement, if applicable, comply with
the terms of this Agreement and that all conditions precedent provided for
in this Agreement and relating to such transaction have been complied with
(or waived in accordance with Section 7.01);
(v) immediately after giving effect to the transaction or series of
transactions on a pro forma basis, the Borrower or its Subsidiary, as
applicable, or the surviving entity, as the case may be, shall be able to
Incur at least U.S.$1.00 of additional Indebtedness without violating
Section 5.02(b).
(vi) Notwithstanding anything to the contrary in the foregoing, so
long as no Default shall have occurred and be continuing at the time of
such proposed transaction or would result therefrom:
(A) the Borrower may merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of assets to a
Subsidiary of the Borrower in cases when the Borrower is the
surviving entity in such transaction and such transaction would not
have a Material Adverse Effect on the Borrower and its Subsidiaries
taken as a whole, it being understood that if the Borrower is not
the surviving entity, the Borrower shall be required to comply with
the requirements set forth in the previous paragraph; or
(B) any Subsidiary of the Borrower may merge or consolidate
with or into, or convey, transfer, lease or otherwise dispose of
assets to, any Person (other than the Borrower or any of its
Subsidiaries or Affiliates) in cases when such transaction would not
have a Material Adverse Effect on the Borrower and its Subsidiaries
taken as a whole; or
(C) any Subsidiary of the Borrower may merge or consolidate
with or into, or convey, transfer, lease or otherwise dispose of
assets to, any other direct or indirect Subsidiary of the Borrower;
or
(D) any Subsidiary of the Borrower may liquidate or dissolve
if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower, and would not
result in a Material Adverse Effect on the Borrower and its
Subsidiaries taken as a whole and if such liquidation or dissolution
is part of a corporate reorganization of the Borrower.
(vii) Notwithstanding the foregoing, neither this Section nor any
other provision in this Agreement shall restrict or prohibit any
transactions relating to the compliance by the Borrower, its Affiliates or
any of its Subsidiaries of any resolution
31
adopted by Argentina's antitrust authorities in connection with the
approval of the alliance between AmBev and the Borrower as described in
the Offering Memorandum.
(d) Sale and Lease-Back Transactions. The Borrower shall not, and
shall not permit any of its Subsidiaries to, enter into any Sale and Lease-Back
Transaction with respect to any Specified Property (other than (i) transactions
providing for a lease term, including any renewal, of not more than three years
and (ii) transactions between the Borrower and any of its Subsidiaries or
between the Borrower's Subsidiaries), unless the Borrower or that Subsidiary
shall apply or cause to be applied, in the case of a sale or transfer for cash,
an amount equal to the net proceeds thereof and, in the case of a sale or
transfer otherwise than for cash, an amount equal to the Fair Market Value of
the Specified Property so leased, to the retirement, within 12 months after the
effective date of the Sale and Lease-Back Transaction, of Indebtedness of the
Borrower ranking at least pari passu with the Loan and owing to a person other
than the Borrower or any of its Subsidiaries or to the construction or
improvement of real property or personal property used by the Borrower or any of
its Subsidiaries in the ordinary course of business or Indebtedness of a
Subsidiary of the Borrower.
(e) Transactions with Affiliates. (i) The Borrower shall not, nor
shall it permit any of its Subsidiaries to, enter into or carry out (or agree to
enter into or carry out) any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service,
with any Affiliate (an "AFFILIATE TRANSACTION") unless such transaction:
(A) is otherwise not prohibited under this Agreement; and
(B) is upon terms no less favorable to the Borrower or such
Subsidiary than would be obtained in a comparable arm's length transaction
with a Person or entity that is not an Affiliate.
(ii) The foregoing restrictions will not limit and shall not apply
to: (A) any transaction solely between or among the Borrower or any Subsidiary
thereof so long as the consummation of any such transaction could not reasonably
be expected to have a Material Adverse Effect or a material adverse effect on
the rights of the Lender; and (B) any transaction arising under any agreement,
contract, instrument or arrangement in existence on the Issue Date and any
modifications, extension or renewals thereto that are not materially less
favorable, taken as a whole, to the Lender in any material respect than such
agreement, contract or instrument or arrangement as in effect on the Issue Date.
(f) Use of Proceeds. The Borrower shall use the net proceeds from
the Loan solely to refinance its Indebtedness as described in the "Use of
Proceeds" and "Capitalization" sections in the Offering Memorandum.
32
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. Each of the following constitutes
an Event of Default:
(a) (i) the Borrower shall fail to pay all or any portion of the
principal amount of, or premium, if any, on the Loan when the same becomes
due and payable, or the Financial Trustee shall fail to pay any or any
portion of the principal amount of, or premium, if any, on the Trust Notes
when the same becomes due and payable, in each case whether at a scheduled
Principal Payment Date, at maturity or upon acceleration, prepayment,
optional prepayment, required prepayment or otherwise, when the same shall
become due and in the place of payment and currency of payment originally
agreed;
(b) (i) the Borrower shall fail to pay any interest or other amount
(including Additional Amounts) on or with respect to the Loan or (ii) the
Financial Trustee shall fail to pay any interest or other amount
(including Additional Amounts) on or with respect to the Trust Notes when
the same becomes due and payable, in each case within 30 days after the
due date thereof and in the place of payment and currency of payment
originally agreed (excluding any premium or other amount payable in
respect of the principal amount of the Loan or the Trust Notes, as the
case may be, upon any prepayment, which shall be subject to clause (a) of
this Section 6.01);
(c) failure by the Borrower to comply, or to ensure that its
Subsidiaries comply, or any of such Subsidiaries shall fail to comply, to
the extent applicable, as if they were direct parties thereto (whether or
not the Borrower is able to ensure such compliance) with Section 5.02(c);
(d) the Borrower shall fail to comply (or to cause its Subsidiaries
to comply), to the extent applicable, as if they were direct parties
thereto (whether or not either of the Borrower is able to ensure such
compliance) with any of the covenants or agreements set forth in this
Agreement or the Additional Transaction Documents to which it is a party
(other than as contemplated in clauses (a), (b) and (c) of this Section
6.01) and such failure continues for 60 days after receipt by the Borrower
from the Lender of written notice thereof (which notice shall specify the
Default, demand that it be remedied and state that it is a "Notice of
Default");
(e) the Borrower shall (i) default in the payment of principal of,
premium or interest on, any note, bond, coupon or other instrument
evidencing Indebtedness for money borrowed in an amount equal to or in
excess of U.S.$25 million (or its foreign currency equivalent at the
time), when and as the same shall become due and payable, if such default
shall continue for more than the period of grace, if any, originally
applicable thereto and the time for payment of such amount has not been
effectively extended, or (ii) default in the observance of any other terms
and conditions relating to any such Indebtedness for money borrowed or
raised, if the effect of such default is to cause such Indebtedness to
become due prior to its maturity;
33
(f) one or more final and non-appealable judgments or orders for the
payment of money in excess of U.S.$25 million (or its equivalent in any
other currency), either individually or in the aggregate for all such
final judgments or orders, shall be rendered against the Borrower or any
of its respective properties and shall not be paid or discharged, and
there shall have been a period of 45 days following entry of such final
judgment or order;
(g) the Borrower shall fail to make an offer to repurchase the Trust
Notes pursuant to Section 2.05(b);
(h) (i) the Borrower shall commence any case, proceeding or other
action (x) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (y) seeking appointment of a receiver, trustee, sindico, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or the Borrower shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against the
Borrower, any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of sixty days; or (iii) there shall
be commenced against the Borrower, any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief in excess of U.S.$25
million (or its equivalent in any other currency) which shall not have
been vacated, discharged, or stayed or bonded pending appeal within sixty
days from the entry thereof; or (iv) the Borrower shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
the Borrower shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due;
(i) all or a material portion of the property of the Borrower and
its Subsidiaries taken as a whole shall be condemned, seized or otherwise
appropriated, or custody of such property shall be assumed by any
Government Authority, or the Borrower and its Subsidiaries taken as a
whole shall be prevented from exercising normal control over all or a
material part of their collective property and such default is not
remedied in the 30 days after it occurs;
(j) any document executed in connection with the Loan (including,
without limitation, this Agreement and the Additional Transaction
Documents) shall be challenged by (x) any of the parties thereto (or any
such party shall deny or disaffirm any of its obligations thereunder) or
(y) any other Person, by means of judicial or administrative action
seeking to invalidate or declare unenforceable the agreements listed above
or any Lien relating thereto granted in favor of the Lender at any time or
any of the rights of the Lender thereunder or the Borrower, and any
government authority shall have taken any injunctive relief or any other
action in response thereto which in the case of
34
challenge by any Person (other than the Borrower) is materially adverse to
the rights of the Lender or other parties to, or beneficiaries of, the
Additional Transaction Documents; provided, however, that the Borrower or
any other party to the Additional Transaction Documents shall be unable to
obtain a reversal on such injunctive relief or shall be unable to achieve
the discontinuation of any other actions described above 90 days after the
granting of such injunctive relief or the commencement of such actions;
(k) this Agreement or any Additional Transaction Document shall be
invalidated or declared unenforceable , to the extent it is materially
adverse to the rights of the Lender or other parties to, or beneficiaries
of, the Additional Transaction Documents; or
(l) any provision of the documents executed in connection with the
Loan (including, without limitation, this Agreement and the Additional
Transaction Documents) shall for any reason cease to be valid and binding
on or enforceable against any party thereto in accordance with its terms,
or the assets subject thereto or any Liens created in favor of the Lender
shall become unperfected or no longer constitute a security interest in
the assets covered thereby, or any judicial action shall prevent or delay
the performance or observance by the Borrower of any of their respective
material obligations under such documents, in any such case, which shall
have a Material Adverse Effect or a material adverse effect on the rights
of the Lender or the other parties to the Additional Transaction
Documents.
Upon the occurrence and during the continuance of any Event of
Default, other than an Event of Default as described in (h) or (i) above, if the
Trust Notes have been accelerated in accordance with their terms, the Lender
shall, by notice to the Borrower, declare the principal of the Loan, all
interest thereon and all other amounts payable hereunder and thereunder to be
forthwith due and payable, whereupon the principal of the Loan, 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 expressly waived by the Borrower; provided, however, that any time after a
declaration of acceleration has occurred and before a judgment for payment of
the money due has been obtained by the Lender, the Lender may, by written notice
to the Borrower, rescind and annul such declaration and its consequences if the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; provided, however, that in the case of an Event of
Default described in (h) or (i) above, the principal of the Loan, all such
interest and all such other amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are expressly waived by the Borrower.
A Default under clause (d) is not an Event of Default until the
Lender notifies the Borrower in writing of the Default and the Borrower does not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Borrower shall deliver to the Lender, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event that on the date of such
35
notice with the giving of notice or the lapse of time or both would become an
Event of Default, its status and what action the Borrower is taking or proposes
to take with respect thereto.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Lender (and, in the case of an amendment, the Borrower), and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
SECTION 7.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and telegraphed, telecopied, telexed or delivered, if to
the Borrower, at its address at 12 de Octubre y ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (telefax: +54 11
4349-1858); if to the Branch of Citibank N.A. established in the Republic of
Argentina, as the initial Lender, at its address at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Scosceria (telefax: +54 11
4329-1029); if to the Financial Trustee, in its capacity as the Lender, at its
address at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇(▇), ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (telefax: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇); or, as to any party,
at such other address as shall be designated by such party in a written notice
to the other parties. All such notices and other communications shall, when
delivered by reputable courier service, telegraphed, telecopied or telexed, be
effective when deposited with a reputable courier service, delivered to the
telegraph company, transmitted by telecopier or confirmed by telex answerback,
respectively. Delivery by telecopier of an executed counterpart of any amendment
or waiver of any provision of this Agreement or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of an original
executed counterpart thereof.
SECTION 7.03. No Waiver; Remedies. No failure on the part of the
Lender to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 7.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all costs and expenses of the Lender in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement and the Additional Transaction Documents (including, without
limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for the Lender with respect thereto, with respect to
advising the Lender as to their rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under this Agreement and the
Additional Transaction Documents, with respect to negotiations with the
36
Borrower or any of its Subsidiaries or with other creditors of the Borrower or
any of its Subsidiaries arising out of any Event of Default or any events or
circumstances that may give rise to an Event of Default and with respect to
presenting claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally and
any proceeding ancillary thereto) and (ii) all costs and expenses of the Lender
in connection with the enforcement of this Agreement and the Additional
Transaction Documents, whether in any action, suit or litigation, or any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally (including, without limitation, the reasonable fees and expenses of
counsel with respect thereto). The total aggregate amount of cost and expenses
payable by the Borrower under this Section 7.04 shall be limited to the amount
agreed upon between the Borrower and the Lender.
(b) The Borrower agrees to indemnify, defend and save and hold
harmless the Lender and each of its Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "INDEMNIFIED PARTY") from
and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
the actual or proposed use of the proceeds of the Loan, this Agreement and the
Additional Transaction Documents or any of the transactions contemplated
thereby, except to the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 7.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by the Lender, its directors, shareholders or creditors or an Indemnified Party,
whether or not any Indemnified Party is otherwise a party thereto and whether or
not the Transaction is consummated. The Borrower also agrees not to assert any
claim against the Lender or any of its Affiliates, or any of their respective
officers, directors, employees, agents and advisors, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of or
otherwise relating to the actual or proposed use of the proceeds of the Loan,
this Agreement and the Additional Transaction Documents or any of the
transactions contemplated thereby.
(c) If the Borrower fails to pay when due any costs, expenses or
other amounts payable by it under this Agreement and the Additional Transaction
Documents, including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of the Borrower by the Lender, in
its sole discretion.
(d) Without duplication of any amount required to be paid by the
Borrower under Section 2.08, the Borrower hereby agrees to indemnify the
Financial Trustee (i) in its capacity as Lender hereunder for all Taxes (other
than those described in Section 2.08(b)(iii) or (iv)); and (ii) in its capacity
as Issuer, under the Trust Notes Indenture, for all Taxes (other than those
described in Section 2.08(b)), in each case regardless of whether such Taxes are
imposed on or owing by (x) the Trust or (y) the Financial Trustee.
37
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder or any Additional Transaction Documents to which it is a
party, the agreements and obligations of the Borrower contained in Section 2.08
and this Section 7.04 shall survive the payment in full of principal, interest
and all other amounts payable hereunder or under any Additional Transaction
Document.
SECTION 7.05. Waiver of Set-off. The Lender waives any right of
setoff, counterclaim, deduction, diminution or abatement based upon any claim it
may have against the Borrower under this Agreement or under any Additional
Transaction Document.
SECTION 7.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Lender and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Lender and
their respective successors and permitted assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lender.
SECTION 7.07. Permitted Assignments. The Lender may not assign its
rights and obligations under this Agreement, the Expense Agreement or any other
Additional Transaction Document to any Person, except that (a) the Branch of
Citibank N.A. established in the Republic of Argentina, as the initial Lender,
shall, on the Issue Date immediately after execution hereof, assign its rights
and obligations hereunder the other Additional Transaction Documents to the
Financial Trustee as provided under the Assignment Agreement; provided, however,
that such assignment shall comply with the terms of Section 72 of Argentine Law
No. 24,441 and (b) upon the occurrence and during the continuance of an Event of
Default, the Financial Trustee may assign its rights and obligations hereunder
and under the Expense Agreement and the other Additional Transaction Documents,
in each case in its capacity as the Lender, to the Trust Notes Trustee on behalf
of the Noteholders.
SECTION 7.08. Currency Rate Indemnity. The Borrower agrees that, if
a judgment or order made by any court for the payment of any amount in respect
of any of its obligations under, or with respect to, this Agreement or the Loan
is expressed in a currency other than U.S. dollars, the Borrower will indemnify
the Lender against any deficiency arising from any variation in rates of
exchange between the date as of which the denomination currency is notionally
converted into the judgment currency for the purposes of the judgment or order
and the date of actual payment. This indemnity will constitute a separate and
independent obligation from the Lender's other obligations under this Agreement,
will give rise to a separate and independent cause of action, will apply
irrespective of any waiver of any other provision hereunder granted from time to
time and will continue in full force and effect notwithstanding any judgment or
order for a liquidated sum or sums in respect of amounts due in respect of the
Loan or under any such judgment or order.
SECTION 7.09. Foreign Exchange Restrictions. In the event of any
foreign exchange restriction or prohibition in Argentina, the Borrower shall
make any and all payments in respect of interest on or principal of the Loan, to
the extent permitted by applicable law, in U.S. dollars by:
38
(i) purchasing, with pesos (or other legal currency of ▇▇▇▇▇▇▇▇▇),
"▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇" or other public
securities issued by Argentina and payable in U.S. dollars, and selling
such instruments outside of Argentina for U.S. dollars; or
(ii) any other legal mechanism for the acquisition of U.S. dollars
in any exchange market.
All costs and Taxes in connection with the transactions described
above shall be borne by the Borrower. The Borrower's payment obligations under
the Loan may only be deemed satisfied and discharged upon receipt by the
Borrower of the U.S. dollar amounts obtained through the transactions specified
in Clause (i) or (ii) above necessary to satisfy the relevant amount owing on
the Loan.
SECTION 7.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 7.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States sitting in the Borough of Manhattan in ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or any of the
Additional Transaction Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the fullest extent permitted by law, in such Federal court. Each of the parties
hereto 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. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Additional Transaction Documents in the courts
of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the
Additional Transaction Documents to which it is a party in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) The Borrower has appointed CT Corporation System, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its authorized agent (the "AUTHORIZED
AGENT") upon whom process may be served in any suit, action or proceeding
arising out of or based upon this
39
Agreement or the transactions contemplated herein which may be instituted in any
state or federal court in The City of New York, New York, by the Lender, the
directors, officers, employees and agents of the Lender, or by any person who
controls any of the Lender, and expressly accepts the jurisdiction of any such
court in respect of any such suit, action or proceeding. The Borrower hereby
represents and warrants that the Authorized Agent has accepted such appointment
and has agreed to act as said agent for service of process, and the Borrower
agrees to take any and all action, including the filing of any and all documents
that may be necessary to continue such appointment in full force and effect as
aforesaid. Subject to applicable law, service of process upon the Authorized
Agent shall be deemed, in every respect, effective service of process upon the
Borrower.
SECTION 7.12. Waiver of Immunities. To the extent that the Borrower
may in any jurisdiction claim for itself or its assets immunity from a suit,
execution, attachment, whether in aid of execution, before judgment or
otherwise, or other legal process in connection with this Agreement or the
Additional Transaction Documents and to the extent that in any jurisdiction
there may be immunity attributed to the Borrower or its assets, whether or not
claimed, the Borrower irrevocably agrees with the Lender, not to claim, and
irrevocably waives, the immunity to the full extent permitted by law.
SECTION 7.13. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 7.14. Waiver of Jury Trial. Each of the Borrower and the
Lender irrevocably waives all right to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of this Agreement, the Additional Transaction Documents, the
Loan, or the actions of the Lender in the negotiation, administration,
performance or enforcement hereof or thereof.
SECTION 7.15. Payment for Consent. If the Borrower or any of its
Subsidiaries shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to the Lender for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Agreement, such consideration shall be offered to be paid to
the Lender and to each holder of the Trust Notes that so consents, waives or
agrees to amend such terms or provisions in the time frame set forth in
solicitation documents relating to such consent, waiver or amendment.
[Remainder of Page Intentionally Left Blank]
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CERVECERIA Y MALTERIA QUILMES
S.A.I.C.A. Y G.,
as Borrower
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
BRANCH OF CITIBANK N.A.
ESTABLISHED IN THE REPUBLIC
OF ARGENTINA,
as Lender
By /s/ Ronaldo Strazzolini
----------------------------
Name: Ronaldo Strazzolini
Title:
EXHIBIT A
FORM OF
NOTICE OF BORROWING
[Date]
Branch of Citibank N.A.
established in the Republic of ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Scosceria
Ladies and Gentlemen:
The undersigned, Cerveceria y Malteria Quilmes S.A.I.C.A. y G., an
Argentine corporation (the "Borrower"), refers to the Credit Agreement, dated as
of [ ], 2005 (as amended from time to time, the "Credit Agreement," the terms
defined therein being used herein as therein defined), among the Borrower and
the Lender, we hereby give notice, irrevocably, pursuant to Section 2.02 of the
Credit Agreement, that we request the borrowing of the Loan under the Credit
Agreement, and in that connection we set forth below the information relating to
the borrowing (the "Proposed Borrowing") as required by Section 2.02 of the
Credit Agreement:
(i) The Issue Date of the Proposed Borrowing is ___________, 2005.
(ii) The aggregate principal amount of the Proposed Borrowing is
U.S.$_______________.
We hereby certify that the following statements are true on the date
hereof, and shall be true on the Issue Date:
(A) The representations and warranties of the Borrower contained in
the Credit Agreement and in the Additional Transaction Documents to which it is
a party are correct in all material respects on and as of the date of the
Proposed Borrowing before and after giving effect to such Proposed Borrowing and
to the application of the proceeds therefrom, as though made on and as of such
date (other than any such representations and warranties that, by their terms,
refer to a specific date other than the date of such Proposed Borrowing, in
which case as of such specific date); and
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of the
proceeds thereof.
A-1
Very truly yours,
CERVECERIA Y MALTERIA QUILMES
S.A.I.C.A. Y G., as the Borrower under
the Credit Agreement
By _____________________________
Name:
Title:
EXHIBIT B-1
FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, Cerveceria y Malteria Quilmes
S.A.I.C.A. y G., an Argentine corporation (the "BORROWER"), HEREBY PROMISES TO
PAY to the order of _________________________ (the "LENDER") the principal
amount of the Advance (as defined below) owing to the Lender by the Borrower
pursuant to the Credit Agreement dated as of ________ (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; terms defined therein, unless otherwise defined herein, being used
herein as therein defined) between the Borrower and the Lender, on the dates and
in the amounts specified in the Credit Agreement.
The Borrower also promises to pay to the Lender interest on the
unpaid principal amount the Advance from the date such Advance is made to the
Borrower until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable to the Lender at the
Lender's Account in same day funds in U.S. dollars or such other coin or
currency of the United States that as at such date of payment is legal tender
for the payment of public and private debts. The Advance owing to the Lender by
the Borrower and the maturity thereof, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto, which is part of this Promissory
Note; provided, however, that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
under this Promissory Note.
This Promissory Note is one of the notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of a single advance (the "ADVANCE") by
the Lender to the Borrower in an amount not to exceed the U.S. dollar amount
first above mentioned, the indebtedness of the Borrower resulting from such
Advance being evidenced by this Promissory Note, and (ii) contains provisions
permitting the acceleration of the maturity of the Advance upon occurrence and
during the continuance of an Event of Default and also for prepayments of the
Advance prior to the maturity thereof upon the terms and conditions therein
specified.
CERVECERIA y MALTERIA QUILMES
S.A.I.C.A. y G.
By ______________________________
Name:
Title:
B-1
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF UNPAID NOTATION
AMOUNT OF PRINCIPAL PAID PRINCIPAL MADE
DATE ADVANCE OR PREPAID BALANCE BY
------------ ------------- ---------------- ------------- -------------
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
____________ _____________ ________________ _____________ _____________
▇-▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Ciudad Autonoma de Buenos Aires, [__] de [____] de 2005.
Por el presente CERVECERIA Y MALTERIA QUILMES S.A.I.C.A. Y G. (la
"Deudora") RECONOCE ADEUDAR a [_____], con domicilio en la calle [_____], (el
"Acreedor"), en virtud del [Contrato de Prestamo en Dolares] suscripto por la
Deudora y el Acreedor con fecha [__] de [____] de 2005 (el "Contrato de
Prestamo") el monto en Dolares Estadounidenses de [US$ __________ (dolares
estadounidenses [____])] (el "Capital"), el cual devengara intereses
compensatorios y punitorios y resultara pagadero, de conformidad a los terminos
y condiciones que se indican a continuacion:
1. El Capital sera amortizado en 5 (cinco) cuotas anuales, iguales y
consecutivas comenzando dichos pagos el [____] de [____] de [____] y terminando
los mismos el [___] de [___] de [____] (las "Fechas de Pago de Capital").
2. Asimismo, el Capital devengara intereses a una tasa nominal anual
equivalente al [__]% desde la fecha de suscripcion del presente Reconocimiento
de Deuda (los "Intereses Compensatorios").
2.1 Los Intereses Compensatorios seran abonados los ▇▇▇▇
[____] de [____] y [____] de [____] de cada ano comenzando dichos pagos el
[______] de [______] de [______] y concluyendo los mismos el [______] de
[____] de [____] (las "Fechas de Pago de Intereses" y junto con las Fechas
de Pago de Capital, las "Fechas de Pago").
2.2 Los Intereses Compensatorios seran calculados y computados
sobre la base de un ano de 360 (trescientos sesenta) ▇▇▇▇ con 12 (doce)
meses de 30 (treinta) ▇▇▇▇ cada uno.
3. En el supuesto en que la Deudora no concretase cualquier pago de
capital y/o intereses segun lo dispuesto en el presente Reconocimiento de Deuda,
se aplicara respecto de dichos montos debidos e impagos y por sobre el Interes
Compensatorio, desde la fecha en que dicho pago debiera ▇▇ ▇▇▇▇▇ sido realizado
hasta la fecha del efectivo pago, un interes punitorio equivalente al [1%] (uno
por ciento) anual (el "Interes Punitorio"). Dicho Interes Punitorio, se
devengara y sera pagadero en cada Fecha de Pago posterior al incumplimiento
salvo que el mismo haya sido previamente cancelado.
4. Todas las sumas adeudadas por la Deudora en virtud del presente
Reconocimiento de Deuda deberan ser abonadas exclusivamente en Dolares
Estadounidenses billete. Si en una Fecha de Pago existiere cualquier restriccion
o prohibicion para acceder ▇▇ ▇▇▇▇▇▇▇ Unico y Libre de Cambios de la Republica
Argentina para abonar las sumas ▇▇▇▇▇▇▇ ▇▇▇▇ el presente en Dolares
Estadounidenses, la Deudora podra, en tal Fecha de Pago, abonar cualquier suma
adeudada en tal fecha en Pesos (o la moneda que sea en ese momento de curso
B-3
legal en la Republica Argentina) mediante la conversion del monto relevante
adeudado en Dolares Estadounidenses a Pesos de modo tal que la suma resultante
sea suficiente para cubrir cualquier monto adeudado en Dolares Estadounidenses
en tal Fecha de Pago.
Todos los impuestos, costos, comisiones y gastos relacionados con la
conversion descripta mas arriba deberan ser soportados exclusivamente y en su
totalidad por la Deudora. Las obligaciones de pago de la Deudora establecidas en
el presente Reconocimiento de Deuda solo se tendran por canceladas con la
recepcion por parte del Acreedor de Dolares Estadounidenses necesarios para
satisfacer los montos debidos segun lo dispuesto en el presente Reconocimiento
de Deuda obtenidos a traves de la operacion descripta.
5. La firma del presente Reconocimiento de Deuda no importa quita, espera,
novacion ni cualquier otra situacion que permita presumir por parte del
Acreedor, renuncia o menoscabo, total o parcial, de sus derechos y/o garantias y
cualquier otro derecho que surja del Contrato de Prestamo.
6. Los pagos aqui detallados seran efectuados, en las fechas previstas, mediante
transferencia bancaria a la cuenta bancaria [_____] a nombre de [______], o la
que en el futuro indique [______] a la Deudora por escrito.
7. La falta de pago de cualquier suma que deba ser abonada por la Deudora,
colocara a esta automaticamente en ▇▇▇▇, ▇▇▇▇▇ derecho al Acreedor sin necesidad
de interpelacion judicial o extrajudicial alguna, a considerar la deuda total
detallada en el encabezamiento del presente Reconocimiento de Deuda como de
plazo vencido, haciendose exigible el total de la misma con mas los Intereses
Compensatorios e Intereses Punitorios que correspondan hasta la fecha de la
cancelacion definitiva, con mas los honorarios legales, costos, ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
gastos resultantes, como asi tambien el pago de cualquier otra suma que, por
cualquier causa o concepto, corresponda ser abonada o entregada al Acreedor en
virtud del presente Reconocimiento de Deuda, pudiendose en consecuencia ejecutar
el presente Reconocimiento de Deuda a partir del momento en que la Deudora se
encuentre en ▇▇▇▇.
8. Los plazos establecidos para la amortizacion del Capital segun se detallan en
el presente se consideraran caducos y de plazo vencido y seran acelerados, con
los efectos descriptos en el punto 8 precedente, en el supuesto en que ocurriera
algun supuesto de incumplimiento de los previstos en la Clausula [5.01] del
Contrato de Prestamo.
9. Todos los montos adeudados bajo el presente, seran pagados libres de
deducciones por impuestos, tasas, gastos, derechos o retenciones, presentes o
futuros, de cualquier naturaleza o tipo, e impuestos por cualquier autoridad
impositiva de la Republica Argentina o de cualquier otra jurisdiccion en la cual
la Deudora se encuentre constituida a los efectos impositivos o donde los pagos
bajo el presente deban de ser realizados. Dichos impuestos, tasas, gastos,
derechos o retenciones, en caso de ser aplicables, deberan ser pagados
exclusivamente por, y seran a cargo de, la ▇▇▇▇▇▇▇.
▇▇. ▇▇ ▇▇▇▇▇▇▇ constituye domicilio en [________________].
B-4
11. A todo evento se reconoce que este Reconocimiento de Deuda confiere al
Acreedor la accion procesal ejecutiva en los terminos y con el alcance de los
arts. 520, 523 y concordantes del Codigo Procesal Civil y Comercial de la
Nacion.
12. ▇▇ ▇▇▇ aplicable al presente titulo sera la de la Republica Argentina. A
todos los efectos legales derivados del mismo, la Deudora se somete irrevocable,
firme e incondicionalmente a la jurisdiccion y competente de los Tribunales
Ordinarios en lo Comercial de la Ciudad de Buenos Aires, renunciando a cualquier
otro fuero o jurisdiccion que le pudiera corresponder.
13. Todas las notificaciones que ▇▇ ▇▇▇▇▇ cursar a la Deudora, ▇▇▇▇ judiciales o
extrajudiciales, seran remitidas al domicilio constituida por la misma en el
presente, sin poder modificarlo fuera de la circunscripcion de la Capital
Federal, destacandose que cualquier cambio de domicilio ▇▇▇▇▇▇ ser notificado al
Acredor en forma fehaciente y en tiempo oportuno, bajo apercibimiento de tenerlo
por notificado en el aqui constituido.
14. La presente declaracion y compromiso por parte de la Deudora se formula de
modo irrevocable y se considera aceptada por el Acreedor.
15. El presente titulo es suscripto por la Deudora ante un escribano publico
debidamente matriculado, el cual (i) certifica la firma del firmante del
presente, como asi tambien sus facultades para otorgar el presente, y (ii)
registra dicha certificacion en su protocolo notarial, a los efectos de dotar al
presente del caracter de titulo ejecutivo en los terminos del articulo 523,
inciso 2do. del Codigo Procesal Civil y Comercial de la Nacion.
CERVECERIA Y MALTERIA QUILMES S.A.I.C.A. Y G.
POR____________________
TITULO:
NOMBRE:
DOCUMENTO:
DOMICILIO:
B-5
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of March 22, 2005
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; the terms defined therein, unless otherwise
defined herein, being used herein as therein defined) between Cerveceria y
Malteria Quilmes S.A.I.C.A. y G., an Argentine corporation (the "BORROWER") and
The Branch of Citibank N.A. established in the Republic of Argentina (the
"LENDER"). Terms used herein and not otherwise defined shall have the meanings
assigned to them in the Credit Agreement.
The "Assignor" referred to on Schedule 1 hereto (the "ASSIGNOR") and
the "Assignee" referred to on Schedule 1 hereto (each, an "ASSIGNEE") agree with
respect to all information relating to it and its assignment hereunder and on
Schedule 1 hereto as follows:
(1) Such Assignor hereby sells and assigns, without recourse except
as to the representations and warranties made by it herein, to such Assignee,
and such Assignee hereby purchases and assumes from such Assignor, a 100%
interest in and to such Assignor's rights and obligations under the Credit
Agreement and any Additional Transaction Document as of the date hereof of all
outstanding rights and obligations under the Credit Agreement. After giving
effect to such sale and assignment, the amount of the Loan owing to such
Assignee will be as set forth on Schedule 1 hereto.
(2) Such Assignor (i) represents and warrants that its name set
forth on Schedule 1 hereto is its legal name, that it is the legal and
beneficial owner of the interest or interests being assigned by it hereunder and
that such interest or interests are free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Credit Agreement or any Additional Transaction Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, the Credit Agreement or any Additional
Transaction Documents or any other instrument or document furnished pursuant
thereto, except for the representations and warranties given by the Assignor
under Section 8.2 of the Financial Trust Agreement, dated March 15, 2005, by and
between ABN AMRO Trust Company (Argentina) S.A., as financial trustee and the
Assignor, as trustor; and (iii) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any Additional Transaction Documents or any other instrument
or document furnished pursuant thereto.
(3) Such Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(a) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will,
C-1
independently and without reliance upon the Assignor and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement;
(iii) represents and warrants that its name set forth on Schedule 1 hereto is
its legal name; and (iv) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender.
(4) The effective date for this Assignment and Acceptance (the
"EFFECTIVE DATE") shall be the date of acceptance hereof by the Lender, unless
otherwise specified on Schedule 1 hereto.
(5) As of the Effective Date, (i) such Assignee shall be a party to
the Credit Agreement and have all the rights and obligations of the Lender
thereunder and (ii) such Assignor shall relinquish its rights and be fully
released from its obligations under the Credit Agreement shall cease to be a
party to the Credit Agreement.
(6) This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
(7) This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Assignment and Acceptance by telecopier shall be effective
as delivery of an original executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
C-2
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
ASSIGNOR:
Percentage interest assigned 100 %
Outstanding principal amount of
Advance assigned $ 150,000,000
ASSIGNEE:
Percentage interest assumed 100 %
Outstanding principal amount of
Advance assumed $ 150,000,000
Effective Date:
__________ ___, _____
ASSIGNOR
_________________________, as Assignor
[Type or print legal name of Assignor]
By ______________________________
Title:
Dated: _________ __, ____
ASSIGNEE
_________________________, as Assignee
[Type or print legal name of Assignee]
By ______________________________
Title:
Dated: _________ __, ____
ENGLISH TRANSLATION OF ORIGINAL SPANISH VERSION
EXHIBIT B-2
ACKNOWLEDGMENT OF DEBT FORM
City of Buenos Aires, [__] [__], 2005
With this document, CERVECERIA Y MALTERIA QUILMES S.A.I.C.A. Y G. (the "Debtor")
ACKNOWLEDGES ITS DEBT to [_____], whose address is [_______] (the " Creditor"),
on the basis of the [Loan Agreement in Dollars] executed by the Debtor and the
Creditor dated [__] [____], 2005 ( the "Loan Agreement") in the amount in United
States dollars of [USD__________ (United States dollars[_____])] (the
"Capital"), which will accrue compensatory interest and penalties, and will be
payable according to the terms and conditions below:
1. The Capital will be amortized in 5 (five) annual payments that are equal
and consecutive, with payments beginning on [___] [___], [____] and ending on
[___] [___], [____] (the "Capital Payment Dates").
2. In addition, the Capital will accrue interest at a nominal annual rate
equivalent to [__]% starting from the date of the execution of this
Acknowledgement of Debt (the "Compensatory Interest").
2.1 The Compensatory Interest will be paid on the [___], [___] and
[____] days of each year, with the payments beginning on [___] [___],
[____] and ending on [___] [___], [____] (the "Interest Payment Dates,"
and, together with the Capital Payment Dates, the "Payment Dates").
2.2 The Compensatory Interest will be calculated and computed on
the basis of a year of 360 (three hundred sixty) days, with 12 (twelve)
months of 30 (thirty) days each.
3. In the event that the Debtor fails to make any single payment of capital
and/or interest as provided in this Acknowledgment of Debt, starting from the
date upon which the payment should have been made to the actual payment date,
those due and unpaid amounts will be subject to a penalty interest, in addition
to the Compensatory Interest, equivalent to [1%] (one percent) annually (the
"Penalty Interest"). Such Penalty Interest will be due and payable on each
Payment Date subsequent to the default unless the latter has been discharged
previously.
4. All the amounts owed by the Debtor on the basis of this Acknowledgment of
Debt must be paid exclusively in United States dollar currency. If, at the
Payment Date, there exists any restriction or prohibition of access to the
Exchange Market of the Republic of Argentina for payment of the amounts owed
pursuant to this document in United States
dollars, the Debtor may, on that Payment Date, pay any amount owed on that date
in pesos (or the currency that is current legal tender in the Republic of
Argentina at that time) by means of converting the particular amount owed in
United States dollars into pesos so that the resulting amount is sufficient to
cover any amount owed in United States dollars on that Payment Date.
All taxes, costs, commissions and expenses related to the conversion described
above must be the sole and exclusive responsibility of the Debtor. The payment
obligations of the Debtor established in this Acknowledgment of Debt will be
deemed discharged only upon the receipt by the Creditor of United States dollars
sufficient to pay the amounts owed according to the provisions of this
Acknowledgment of Debt, obtained by means of the transaction described.
5. The execution of this Acknowledgment of Debt does not represent release,
grace period, novation or any other condition that makes it possible to assume
that there is any waiver or reduction, total or partial, on the part of the
Creditor of its rights and/or guarantees and any other right that arises from
the Loan Agreement.
6. The payments detailed herein will be made on the dates specified, by means
of a bank transfer to bank account [________] in the name of [______], or to the
account that [______] may indicate in writing to the Debtor in the future.
7. The Debtor's failure to pay any amount is an automatic event of default,
giving the Creditor, without the need of any judicial or extrajudicial
intervention, the right to consider the total debt described in the heading of
this Debt Acknowledgment as due, making it possible to demand the total of the
debt plus the Compensatory Interest and the Penalty Interest that may apply up
to the date of the final payment, in addition to legal fees, costs, court costs
and other expenses that arise, as well as the payment of any other amount that,
for any cause or reason, should be paid or delivered to the Creditor on the
basis of this Acknowledgment of Debt, and, as a result, may execute this
Acknowledgment of Debt starting at the time of the Debtor's default.
8. The terms established for the amortization of the Capital, as described in
this document, will be considered to have expired and terminated and will be
accelerated, with the results described in paragraph 8 above, in the event of
any breach of the provisions of Clause [5.01] of the Loan Agreement.
9. All amounts owed under this Agreement will be paid free of any deductions
for taxes, assessments, expenses, duties or withholding, present or future, of
any nature or type, and taxes for any tax collection authority of the Republic
of Argentina or any other jurisdiction in which the Debtor is established for
tax purposes or where the payments under this Agreement must be made. Such
taxes, assessments, expenses, duties or withholding, if applicable, must be paid
exclusively by, and will be the sole responsibility of, the Debtor.
10. The Debtor declares that its legal address is [___________].
11. This Acknowledgment of Debt is considered to grant the Creditor, in any
event, the right to executory action as provided in Articles 520, 523 and
corresponding articles of the Civil and Commercial Procedural Code of Argentina.
12. This Agreement will be governed by the laws of the Republic of Argentina.
The Debtor, for all legal purposes relating to this document, submits itself
irrevocably, in a binding manner and unconditionally, to the jurisdiction and
authority of the Ordinary Commercial Courts of the City of Buenos Aires, waiving
any other forum or jurisdiction to which it may be entitled.
13. All notices that must be sent to the Debtor, whether judicial or
extrajudicial, will be sent to the legal address provided by it herein, which
may not be modified outside of the jurisdiction of the Federal Capital. It
should be noted that any change of address must be communicated to the Creditor
promptly and in a reliable form, and it is deemed notified at the address
established herein.
14. This declaration and commitment by the Debtor is irrevocable and is
considered accepted by the Creditor.
15. This document is signed by the Debtor before a duly registered public
notary, who (i) certifies the signature of the signatory to this document, as
well as his legal power to execute it; and (ii) records this certificate in his
notarial record book, for the purposes of constituting this document as
executable pursuant to Article 523, paragraph 2 of the Civil and Commercial
Procedural Code of Argentina.
CERVECERIA Y MALTERIA QUILMES S.A.I.C.A. Y G.
BY: _____________________
TITLE:
NAME:
DOCUMENT:
ADDRESS: