Exhibit 10.39
(TRANSLATION)
LOAN AGREEMENT ENTERED INTO BY AND BETWEEN:
I. ING BANK (MEXICO), S.A., INSTITUCION DE BANCA MULTIPLE, ING BARING GRUPO
FINANCIERO (MEXICO), S.A. DE C.V., HEREINAFTER THE "BANK" HEREBY
REPRESENTED BY ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ AND
II. PANAMERICAN BEVERAGES, INC. HEREINAFTER "THE BORROWER", HEREBY REPRESENTED
BY ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
III. WITH THE APPEARANCE OF PANAMCO MEXICO, S.A. DE C.V. AND PANAMCO GOLFO, S.A.
DE C.V. HEREINAFTER THE "JOINT OBLIGORS AND GUARANTORS" HEREBY REPRESENTED
BY MESSRS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Pursuant to the following representations and clauses:
REPRESENTATIONS
I. THE BANK REPRESENTS THROUGH ITS REPRESENTATIVE:
1. That it is a stock company (sociedad anonima) duly organized and existing
under the Mexican laws and authorized to operate as a multi-service bank,
therefore it is vested with the required powers of attorney for the execution
of, and compliance with, this agreement.
2. That its representatives have been conferred sufficient power and authority
to appear in its name and stead in the execution and performance of this
agreement and that such powers and authority have not been revoked in any manner
whatsoever.
II. BORROWER REPRESENTS THROUGH ITS REPRESENTATIVE:
1. That it is a company duly organized and existing under the laws of the
Republic of Panama and that its representative has been granted sufficient power
and authority to enter into this agreement and that such powers have not been
limited or amended in any manner whatsoever.
2. That its corporate purposes includes the possibility of entering into the
kind of transactions contemplated in this Agreement pursuant to the Borrower's
by-laws as presently in effect, therefore this agreement is not in contravention
of any of the provisions of said by-laws and it is authorized for execution
thereof pursuant to the power vested in it according to the competent corporate
bodies.
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3. That it has provided the Bank with the information and documents that
faithfully reflect the financial, accounting, legal and administrative condition
of the company, and that the same served as the basis for execution of this
agreement and to obtain the authorization of the loan subject matter hereof and
as of this day, such information and documentation has not been changed or
modified in any manner whatsoever.
III. THE JOINT OBLIGORS AND GUARANTORS REPRESENT THROUGH THEIR REPRESENTATIVES.
1. That they are companies duly organized and existing under the laws of Mexico
and their representatives have been granted sufficient power and authority to
represent them herein, and that such powers and authority have not been limited
or amended in any manner whatsoever.
2. That the corporate purpose of each one of them includes the possibility of
entering into the kind of transactions contemplated hereunder, as evidenced by
their corporate by-laws as presently in effect; therefore this agreement does
not contravene any of the provisions of their corporate by-laws and has been
authorized by the competent corporate bodies.
3. That given their corporate, financial, administrative and legal relationship
with the Borrower, it is their interest to be part of this agreement and become
the Borrower's joint obligors and guarantors before the Bank with respect to the
performance of all their obligations hereunder and therefore; they wish to
become joint obligors and subscribe, as Guarantors, to the promissory note or
notes to be issued to cover the advances of the loan subject matter hereof.
IV. THE PARTIES REPRESENT:
That they acknowledge the authority vested therein and the full force and effect
of the provisions, representations and meanings in this Agreement.
Pursuant to the foregoing, the parties hereby grant the following:
CLAUSES
FIRST. PURPOSE. By means of this agreement the Bank grants to the Borrower a
Loan up to the amount of MXP 465,000,000.00 (Four hundred and sixty five million
Pesos Mexican Currency) (hereinafter the "Loan").
The abovementioned principal does not include interest, delinquent interest,
fees, accessories and other expenses to be paid by the Borrower to the Bank
hereunder.
SECOND. DRAWDOWN. Borrower shall drawdown the credit on December 18, 2001
through a transfer of funds by the Bank to the Investment Account No. 572-1
(Five seven two dash one) held with Banco Nacional de Mexico, S.A., Institucion
de Banca Multiple,
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Grupo Financiero Banamex, branch 660 (six hundred and sixty) in Mexico, Distrito
Federal, in the name of Ing Bank (Mexico), S.A., Institucion de Banca Multiple,
ING Baing Grupo Financiero (Mexico), S.A., de C.V, to credit contract No. 2486
(two thousand four hundred and eighty six) held by the Borrower. At the request
of the Bank, the Borrower subscribes in the name of the Bank a Promissory Note
covering such drawdown, in terms of Article 170 of the General Law of Negotiable
Instruments and Credit Transactions and this Agreement.
THIRD. USE OF THE CREDIT. The Borrower shall use the Loan proceeds precisely for
corporate purposes of a general nature.
FOURTH. INTEREST AND FEES. Ordinary Interest. The Borrower shall pay to the
Bank, during the term hereof, an ordinary interest on the outstanding principal
amount of Loan to be computed at a rate equivalent to the TIIE Rate (as defined
below) plus the Margin (as defined below).
Borrower shall pay an ordinary interest on the outstanding principal amount of
the Loan on each Interest Payment Date (as this term is defined below) from the
date of the Drawdown, pursuant to Clause Second above, until the Final Payment
Date (as this term is defined below).
Should any Interest Payment Date be not a Business Day, the payment shall be
made on the immediately preceding Business Day. For the purposes of this
Agreement the following terms shall have the following meaning:
"Business Day" means any day other than Saturday, Sunday or a holiday in which
the main offices of credit institutions in Mexico are opened to the public for
banking transactions.
"Interests Payment Date" means, with regard to the Loan, the last day of each
Interest Period;
"Final Payment Date" means the due date of the term hereof, exactly on December
16, 2003.
"Margin" means seventy-five (75) base points;
"Interest Period" means, with respect to the Loan, each 28 (twenty-eight)
calendar days that will serve as the basis for computing the Loan interest
caused by the outstanding principal amount; provided however that (i) the first
Interest Period shall commence on the date of the Borrowing and shall end
exactly twenty-eight (28) calendar days thereafter, (ii) the following Interest
Periods shall commence on the last day of the immediately preceding Interest
Period and shall end twenty-eight (28) calendar days thereafter, and (iii) any
Interest Period in effect on the Final Payment Date shall end exactly on that
Date;
"TIIE Rate" shall mean the equilibrium interbanking interest rate for the 28
(twenty-eight) day term, or if the end of said period shall fall on a day which
is not a Business Day, for the 26-, 27-, 29- or 31-day term as determined by
Banco de Mexico and published in the Official Gazette of the Federation, on the
business day immediately preceding the date of
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commencement of each Interest Period. In case the interest rate for any of the
above referred Interest Periods shall not be determined by Banco de Mexico, for
the purposes of this Promissory Note any rate in substitution of the "TIIE Rate"
shall be considered as such when it is so made known by Banco de Mexico.
"Delinquent Interest". If Borrower shall not pay timely any amount due to the
Bank pursuant to this Agreement, exception made of interest, such amount shall
accrue delinquent interest from due date until final payment, such interest
shall be accrued on a daily basis and shall be paid on demand at a rate
equivalent to the sum obtained by multiplying the applicable ordinary interest
rate for each day in delay by one point five (1.5) times. For the purpose of
computing delinquent interests, should the delinquency survive after the Final
Payment Date, the last Interest Period shall be considered to end upon payment
of all debts that the Borrower may have incurred hereunder.
For the calculation of ordinary interest for each Interest Period, the
applicable interest rate per annum shall be divided into three hundred and sixty
(360) the result of which shall be multiplied by the number of calendar days
comprised by the relevant Interest Period, including the drawdown date but
excluding the payment day. The resulting rate shall be multiplied by the
outstanding balance which result shall be the amount of interest that the
Borrower must pay to the Bank for each Interest Period.
For the calculation of delinquent interest, the applicable delinquent interest
rate shall be divided into three hundred and sixty (360) the result of which
shall be applied to all past due outstanding amounts and shall be the delinquent
interest for each day that the Borrower shall pay pursuant to this Agreement.
Upfront Fee. Borrower shall pay the Bank an upfront fee in the amount of MXP
$465,000.00 (Four hundred and sixty five thousand Pesos, Mexican Currency) plus
the corresponding Value Added Tax, to be paid by Borrower to the Bank no later
than January 7, 2002.
FIFTH. PAYMENT OF PRINCIPAL AND TERM. The Borrower shall pay to the Bank the
outstanding balance of the Loan effective on June 4, 2002, in four (4) equal
consecutive payments pursuant to the amortization table set forth in EXHIBIT "A"
hereto. Such payments of principal shall be made exactly on the dates set forth
in EXHIBIT "A".
In case a Payment Date is not in a Business Day, the payment shall be made on
the immediately preceding Business Day.
At all events, there shall be no pending payment on behalf of Borrower of
principal or any of the accessories thereof by the Final Payment Date.
Borrower may make advance total or partial payments exclusively on the Interest
Payment Dates without a prepayment fee, by giving prior notice in writing to the
Bank at least five calendar days in advance. The minimum amount of any advanced
payment shall be MXP $25,000,000.00 (twenty five million Pesos, Mexican
Currency) or any multiple thereof.
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SIXTH. PAYMENT PLACE AND CONDITIONS. All amounts payable by Borrower to the Bank
pursuant to this Agreement, including, but not limited to, the principal and
interest of the Loan, shall be paid on the dates scheduled without need of a
previous demand and to the Bank's satisfaction, in freely transferable and
available Mexican Pesos. Such payments shall be made to check account No.
▇▇▇▇▇▇▇-7 (one two eight two nine six seven dash seven) with BBVA Bancomer,
branch 119, branch 001 in the name of ING Bank (Mexico), S.A., Institucion de
Banca Multiple, ING Baring Grupo Financiero (Mexico), S.A. de C.V., or in any
other place that the Bank may notify the Borrower in writing at least ten (10)
days in advance of the relevant payment date.
All payments to be made Agreement hereunder that are due on a day other than a
Business Day, shall be made on agreed date immediately preceding Business Day..
The Bank shall apply all amounts received in payment by the Borrower as follows:
(i) expenses, duties and taxes that are incurred in the formalization of this
Agreement and its guarantees; (ii) collection and enforcement expenses, if any;
(iii) counsel's fees in case of enforcement; (iv) delinquent interest; (v)
ordinary interest and, (vi) principal.
SEVENTH. TAXES. The Borrower shall pay to the Bank all principal amounts plus
interest and other payable amounts pursuant to this Agreement, free and clear
from any deduction, charge or any other tax liability imposed on such amounts
now or in the future, payable in any Mexican jurisdiction.
EIGHTH. CREDIT NEGOTIATION. The Bank is expressly authorized to assign or
otherwise negotiate the Loan and the Note or Notes, even before the maturity
hereof, pursuant to the terms and conditions set forth in Article 299 and other
applicable provisions of the General Law of Negotiable Instruments and Credit
Transactions.
The Borrower shall not assign or otherwise negotiate any of the rights and
obligations hereof, except with the prior written consent of the Bank.
NINTH. AFFIRMATIVE AND NEGATIVE COVENANTS. Until full payment of the principal,
interest and other amounts indebted by the Borrower, both the Borrower and the
Joint Obligors and Guarantors shall comply with the following covenants, except
as otherwise approved by the Bank in writing:
a) Comply with any payment obligations deriving from any loan with the Bank.
b) Quarterly Financial Statements. Provide the Bank, within sixty (60) calendar
days after the end of each fiscal quarter, with individual and consolidated
internal financial statements (balance sheet, profits and loss statements,
statements of changes in financial condition and cash flow) duly signed by the
relevant financial officer in charge and/or the financial director, stating that
such financial statements reasonably reflect the condition of the company,
subject to auditing adjustments.
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c) Annual Financial Statements. Provide the bank with the annual individual and
consolidated financial statements (balance sheet, profits and loss statements,
statements of changes in financial condition and cash flow) duly audited by an
external firm of public accountants previously accepted by the Bank, within one
hundred and twenty (120) calendar days following the closing of the fiscal year.
The foregoing documents musts be signed by the corresponding officer in charge
of the finances and/or the financial director, stating that such financial
statements reasonably reflect the condition of the company.
d) Certificate of Compliance. To provide the Bank with, jointly with the
quarterly and annual financial statements referred to in clause b) and c) above,
a certificate signed by the relevant officer in charge of finances and/or the
financial director, stating that as of the date of the financial statements, the
Borrower and the Joint Obligor and Guarantor have complied with all their
obligations hereunder and no Event of Default has occurred, or otherwise stating
the measures to be adopted to cure such Event of Default.
e) Additional information. To provide the Bank with:
I. Prompt notice in writing, and in no event after ten (10) calendar days from
the occurrence of any event that may affect or affects and impairs the
current financial situation of its business, or the occurrence of any Event
of Default as provided herein, accompanied by a detailed statement of such
event and the measures or actions intended to cure the same.
II. Prompt notice in writing, and in no event after fifteen (15) calendar days
from the acknowledgment of the existence of any lawsuit or proceeding
before any governmental body or labor dispute, provided it may affect or
may potentially adversely affect its financial position.
III. The required information to determine the Borrower's credit capacity
referred to its business and/or it subsidiaries and its financial situation
whenever requested by the Bank.
f) Licenses, Authorizations, etc. Keep in full force and effect, obtain and
renew any license, authorization and approvals now or hereinafter required for
them to comply with their obligations hereunder, and to comply with any
applicable law, regulations and standards of any governmental body, the
non-compliance of which could materially and adversely affect their capacity to
meet their obligations hereunder. Also, to immediately pay any debts on taxes or
contributions to the Mexican Institute of Social Security, the Retirement
Savings System and to the Mexican Institute of Housing Funding "INFONAVIT",
except for such payments being contested in good faith through the proper
proceedings and if the corresponding reserves or guarantees pursuant to the
applicable laws have been made.
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g) Maintenance of Assets. Make such investments as may be required in order to
maintain the company's assets or to replace them, and make the necessary repairs
and enhancements for such purpose, in order to preserve their plants and
facilities in the best working condition.
h) Insurance. Maintain such insurance as may be required to cover the fixed
assets of their companies and subsidiaries against such risks that are usual to
the business, in such amounts that will suffice to repair or replace them in the
event of casualty.
i) Inspection Rights. Permit the Bank's designees the visit to, and inspection
of, their businesses and give them access to such data or documents related to
the Loan; provided however, that a previous request in writing is made five (5)
Business Days in advance.
j. Expenses Pay or reimburse, within thirty (30) calendar days from the
execution hereof, any cost in respect of this Agreement, including but not
limited to, fees of counsels and other advisors for preparing legal documents,
any costs incurred in formalizing this Agreement before a commercial notary
public, and costs derived from the payment of dues and contributions incurred in
the registration with the corresponding Public Registries, as well as any other
similar expenses.
k) Leverage. Joint Obligors and Guarantors and their subsidiaries in a
consolidated basis shall maintain, during the term of this Agreement, (i) a
Financial Debt (a debt causing the payment of interest) to EBITDAPS (earnings
before interest, taxes, depreciation, amortization and profit sharing) ratio no
greater than three (3) times, and (ii) a Financial Debt to net worth ratio not
greater than one point two (1.2) times) For this purpose, the Financial Debt and
the net worth shall be determined based on the Borrower's last report, while
EBITDAPS shall be determined on the basis of the accumulation of the last four
(4) quarterly periods.
I) Hedge. The Joint Obligor and Guarantor and their subsidiaries, in a
consolidated basis, shall maintain during the term of this Loan, an EBITDAPS to
paid financial expenses (it being understood as such the payments made in
respect of the Financial Debt) ratio of no less than three (3) times. For this
purpose, EBITDAPS and financial expenses shall be determined on the basis of the
accumulation of the four (4) last quarterly periods.
II) Change of Line of Business . No change in the Borrower's, Joint Obligor and
Guarantor's' line of business shall be made without the Bank's prior
authorization in writing and they shall remain as ongoing concerns.
m) Dissolution. Neither the Borrower nor the Joint Obligors and Guarantors may
be subject to dissolution or liquidation procedures.
n) Change of Shareholders. No change in equity interests can be made, if the
consequence of such a change is that the Borrower, the Joint Obligors and
Guarantors, their subsidiaries, or the administration thereof shall loss their
present direct or indirect control over the Borrower. For the purpose hereof, it
will be deemed that an entity "has control" over another, if the first one has
direct or indirect power to determine the other's direction or administration
and policies,
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as a consequence of the interests held by such party, or due to a contractual
provision or otherwise.
n) Encumbrances. Without the Bank's prior authorization in writing, no mortgage,
pledge or any other encumbrance whatsoever may be created or be in existence on
the current or future fixed assets of the Joint Obligors or Guarantors, by any
authorized assignee of the Borrower pursuant to Clause Eight and/or such
assignee's subsidiaries, except for any encumbrances created over the current
fixed assets the amount of which shall not exceed ten per cent (10%) of the
tangible assets value (such tangible assets being defined as the total fixed
assets less goodwill). To obtain any future funding, the fixed assets acquired
with such funding may be pledged or encumbered in any manner whatsoever. The
Joint Obligors and Guarantors, any authorized assignee of the Borrower pursuant
to Clause Eighth hereunder, and such assignee's subsidiaries may substitute
pledges and other security interests with their creditors if the value of such
new guarantees shall not exceed the value of the securities being substituted.
For the purpose of this obligation, Joint Obligors and Guarantors certify that
no encumbrance of their property is currently existing.
o) Split-off, Merger or Transfer of Interests. Without the Bank's prior
authorization in writing, none of the Borrowers or Joint Obligor and Guarantor's
subsidiaries may be split-off, merged or transferred, except if (i) such a
split-off, merger or transfer shall result in the relevant subsidiary to remain
an Affiliate of the Borrower or the Joint Obligors and Guarantors, and (ii) the
sale of Maseri ▇▇ ▇▇▇▇, ▇.▇. de C.V and Industria Metalica ▇▇ ▇▇▇▇, ▇.▇. de C.V.
to third parties. For the purposes hereof, an "Affiliate" is any individual,
business, company, joint-venture, trust or any other entity or organization that
controls, or is controlled by, or under the control of the entity in question.
p) Dividends. Without the Bank's prior authorization in writing, no dividends
can be decreed by the Joint Obligors and Guarantors or anyone of Borrower's
authorized assignees pursuant to Clause Eighth, if they have not complied with
their obligations hereunder, or if such decree may result in the contravention
hereof or any other contract with a third party then in effect.
q) Sale of Trademarks. Without the Bank's prior authorization in writing, the
Joint Obligors and Guarantors or anyone of Borrower's authorized assignee
pursuant to Clause Eighth shall not sell their trademarks and shall preserve
their trademark distribution franchises held by each of them as of the date
hereof. Nevertheless, both the Joint Obligors and Guarantors as well as anyone
of the Borrower's authorized assignee pursuant to clause Eighth may sell their
registered trademarks to any Affiliate, unless they contravene any of their
obligations hereunder. For the purposes hereof, a list of the trademarks owned
by the Joint Obligors and Guarantors is attached hereto as Exhibit "B" in
evidence of their rights pursuant to license agreements.
r) Preferential Terms on Securities and Payment Flows. Without the Bank's prior
authorization in writing, the Joint Obligors and Guarantors or any of the
Borrower's authorized assignee pursuant to Clause Eighth shall not grant any
preferential terms on securities or flow of payments subordinating the Bank's
position.
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s) Granting of Loans and Securities. Without the Bank's prior authorization in
writing, the Joint Obligors and Guarantors or any of the Borrower's authorized
assignee pursuant to Clause Eighth shall not, (i) grant loans or securities to
any third parties other than their subsidiaries or affiliates; and (ii) grant
loans or securities to subsidiaries or affiliates other than in the normal
course of business.
t) Cash flow: Without the Bank's prior authorization in writing, the Joint
Obligors and Guarantors or any of Borrower's authorized assignee pursuant to
Clause Eighth shall not compromise their cash flow in favor of third parties.
u) Amendment of the Bancomer Loan. Without the Bank's prior authorization in
writing, the Borrower and the Joint Obligors and Guarantors shall not amend the
loan agreement referred to in Clause Twelfth hereof, except to substitute a
debtor in which any of the Joint Obligors and Guarantors shall become the main
obligor.
If any Joint Obligor and Guarantor or any of Borrower's authorized assignee
pursuant to Clause Eight shall incur a debt in breach of the obligations
provided in preceding clauses r), s) and t) the relevant debt shall become
subordinated to the preferential position granted to the Bank hereunder.
TENTH. EVENTS OF DEFAULT. The term to pay the Loan or the accessories thereof
may be terminated in advance in case of occurrence of the following events (each
of which shall be an "Event of Default"):
1. If creditor shall not timely and fully pay any past due advance of the
principal amount, accrued interest, fees, cost or expenses as a result of
this instrument and related to the Loan;
2. If any Mexican or foreign institution shall declare the acceleration of any
payment obligations as a result of a Borrower's or Joint Obligors and
Guarantors' default to their present and future obligations, including
transactions traded among the public at large; provided however, that (i)
such payment obligations shall exceed USD$ 20,000,000.00 (twenty million
dollars, legal tender of the United States of America) o its equivalent in
Mexican currency, or (ii) the actions taken by the creditor are to the
Bank's disadvantage in respect to this Credit's collection;
3. If Borrower or any Joint Obligor and Guarantor shall cease to pay without
cause any tax obligation, contributions to the Mexican Institute of Social
Security, the INFONAVIT or the Retirement Savings Systems (or a
contribution to the corresponding Retirement Fund Administrators, if any)
except when making the corresponding reserves and the payments thereto are
being contested in good faith; or if the Borrower, any of the Joint
Obligors and Guarantors and/or their subsidiaries shall be declared on
strike or intervened, and their payment capacity shall be at risk, or in
case of any conflicts that may adversely affect the good operation of the
Borrower or any of the Joint Obligors and Guarantors and/or their
subsidiaries, except whenever said conflicts are contested in good faith
and the relevant reserves have been made;
4. If Borrower, any of the Joint Obligors and Guarantors and their
subsidiaries shall not deliver the information required hereunder, provided
such default shall not be not cured within five (5) Business Day from the
date of notification;
5. If any of the Borrower or any of the Joint Obligors and Guarantors' assets
are seized by a judicial, administrative or other authority, the value of
which exceeds USD$ 20,000,000.00 (Twenty million Dollars, legal tender of
the United States of America) or its equivalent in Mexican currency;
6. If a proceeding shall be brought by or against the Borrower or any of the
Joint Obligors and Guarantors in order to have them adjudged in bankruptcy;
7. If Borrower or any of its Joint Obligors and Guarantors be adjudged the
payment of an amount exceeding or equal to USD$20,000,000.00 (Twenty
million dollars, legal tender of the United States of America) or its
equivalent in Mexican currency and there were no reserves theretofore or
any remedy of appeal or other proceeding against such judgment;
8. If Borrower or any of its Joint Obligors and Guarantors shall not comply
with its payment obligations on the Financial Debt for an amount exceeding
USD $20,000,000.00 (Twenty million dollars, legal tender of the United
States of America) its equivalent in any another currency in respect of any
debt under any other agreements, notes or other instruments covering
Financial Debt, or if such debt is accelerated by the corresponding
creditors;
9. If Creditor or any of the Joint Obligors and Guarantors decrees the payment
of dividends while the Borrower is in default in the payment of fees,
interest, principal and/or any other costs referred to the Loan, or if any
of the Joint Obligors and Guarantors is in default with respect to any of
the financial ratios set forth in paragraphs k) and l) of Clause Ninth
hereunder, or if as the result of the dividends paid, the Borrower or the
Joint Obligors and Guarantors shall fail to comply with any of their
commitments hereunder;
10. If for any Interest Period it is determined that the interest rate cannot
be defined, and/or the basis for the funding cost shall not reflect the
manner in which the Loan is maintained and/or funded, without prejudice of
the right of the parties to enter into an amendment agreement,
11. If any of the Joint Obligors and Guarantors shall split-off or merge,
thereby affecting their corporate structure and financial good standing in
such a way that the financial ratios established in paragraphs k) and l) of
Clause Ninth hereunder are not complied with,
12. If Borrower shall incur in an event of default under the loan referred to
in Clause Twelfth.
13. If Borrower shall not comply with any of its obligations hereunder.
If any of the above mentioned Events of Default shall occur, the Bank may
accelerate the term for payment of the Loan and other accessories set forth
herein and the Borrower shall pay the Bank forthwith the total amount of such
Loan as well as all other outstanding amounts hereunder, in which case, any
promissory note or notes subscribed by the Borrower shall become immediately due
and payable.
ELEVENTH. JOINT OBLIGOR AND GUARANTOR. Panamco Mexico, S.A. de C.V. and Panamco
Golfo, S.A. de C.V. are hereby constituted joint obligors with the Borrower with
respect to any and all obligations deriving from this Agreement attributable to
the Borrower to the benefit of the Bank, in terms of the joint liability set
forth in Articles 1987 and 1988 of the Civil Code for the Federal District.
This joint liability includes the total payment of the Loan's principal plus the
payment of interest, fees and other related accessories that may arise
therefrom.
In addition, the Joint Obligors undertake to subscribe, as Guarantors, the
promissory note or notes that evidence the drawdowns of the Loan subject matter
of this Agreement.
TWELFTH. THE BANCOMER CREDIT. The parties acknowledge that concurrently with the
execution of this Agreement, the Borrower and the Joint Obligors and Guarantors
have executed a loan agreement with BBVA Bancomer, S.A. Institucion de Banca
Muliple, Grupo Financiero BBVA Bancomer up to the amount of MXP 465,000,000
(Four hundred and seventy five million pesos Mexican Currency) (hereinafter the
"Bancomer Loan".)
The parties agree that the Loan subject matter of this Agreement and the
Bancomer Loan shall have the same priority.
THIRTEENTH. NOTICES. Any communication to be given among the parties hereto
shall be given in writing by registered mail return receipt requested, and
addressed to the corresponding party, in an unquestionable manner, to the
following addresses of the parties:
IF TO THE BANK: Bosques de Alisos ▇▇. ▇▇-▇, ▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ las ▇▇▇▇▇, ▇.▇. 05120
Delegacion ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Mexico, Distrito Federal
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IF THE BORROWER: Torre ▇▇▇▇▇▇▇ Bank
Calle 50, Piso 7
▇.▇. ▇▇-▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ de Panama
IF TO JOINT OBLIGORS AND
GUARANTORS: Blvd. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇ ▇▇
▇▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Distrito Federal
Any change in the Borrower or the Joint Obligors and Guarantors' addresses must
be notified to the Bank in writing, return receipt requested, at least ten (10)
calendar days in advance to the effectiveness of said change. Otherwise, all
notices or any other judicial or extra judicial notices given to the addresses
set forth herein shall be considered as validly made for all legal effects that
may apply.
FOURTEENTH. EXPENSES. The Borrower shall pay to the Bank, (i) any and all costs,
expenses, notaries and brokerage fees, taxes and all the necessary
protocolization, formalization and registry duties for the execution hereunder
and, as the case may be, for the creation and maintenance of the guarantees as
agreed hereunder, and (ii) all such costs, expenses and legal fees as may be
incurred by Bank in the event a legal action is initiated as a result of this
Agreement or any other instrument executed thereunder.
FIFTEENTH. CREDIT INFORMATION. Borrower expressly represents that it has
knowledge that the companies supplying credit information are aimed at providing
such services on the credit transactions of credit institutions with individuals
and companies, therefore Borrower has no inconvenience and agrees that the Bank
may provide information referred to this Loan to one or more of the above
mentioned companies.
Also, Borrower hereby expressly authorizes the Bank, if deemed convenient at any
time, to request information on the Borrower's creditworthiness from the above
mentioned companies.
Borrower waives any right to initiate any legal proceeding against the Bank that
may arise as the result of the Banks making use of the authority vested to it
herein.
SIXTEENTH. SET-OFF. In the event that Borrower must pay the Bank, at any time,
any sum pursuant to this instrument and Borrower shall fail to comply with such
payment obligation, Borrower hereby irrevocably authorizes the Bank, to the
extent authorized by statute, to debit any of the Borrower's deposit and/or
account with the Bank (including, but not limited to, demand deposits or,
savings, term, demand, provisional or final accounts; investment accounts of
whatever nature, with special inclusion of the amounts that the Bank's trustee
division maintains in the name of the Borrower pursuant to any investment
contract) and to set-off any debt the Borrower may have with the Bank regardless
of the reason, up to an
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amount that is equal to the amount indebted to the Bank, without need of any
requirement, notice or demand whatsoever.
The Bank shall notify the Borrower, as soon as practicable, of any charge or
set-off it may have made in accordance with this clause, provided however that
the absence of such notice shall not affect in any other manner the validity of
such charge or set-off. The Banks right pursuant to this clause is in addition
of any other right (including other set-off rights) that the Bank might have.
SEVENTEENTH. NOTICE OF TERMINATION OF COMMITMENT. It is expressly agreed that
the Bank has the right to terminate the commitment hereunder on an unilateral
basis at any time whatsoever pursuant to Article 294 of the General Law of
Negotiable Instruments and Credit Transactions, by means of a notice in writing
to the Borrower.
EIGHTEENTH. DISCLOSURE OF TERMS AND CONDITIONS. Except as provided in Clause
Fifth, the terms and conditions hereunder cannot be made known to the public
without the prior consent of the parties; without prejudice of the requirements
of competent authorities and of the obligations such parties may be subject to
under applicable laws.
NINETEENTH, JURISDICTION AND APPLICABLE LAW. For the interpretation of, and
compliance with, this Agreement the parties submit themselves to the applicable
laws, and to the jurisdiction of the competent courts of Mexico City, Federal
District, expressly waiving hereby, any other jurisdiction that may correspond
to them in view of their present or future domiciles, or otherwise.
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In witness whereof, the parties hereto have caused this Agreement to be executed
in four counterparts, one counterpart for each party, in Mexico City, Federal
District, on December 18, 2001.
THE BANK
ING BANK (MEXICO), S.A.,
INSTITUCION DE BANCA MULTIPLE
ING BARING GRUPO FINANCIERO (MEXICO), S.A. DE C.V.
Represented by:
(Illegible signature)
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE BORROWER
PANAMERICAN BEVERAGES, INC.
Represented by:
(Illegible signature)
Paulo J. Saachi
JOINT OBLIGORS AND GUARANTORS
PANAMCO MEXICO, S.A. DE C.V.
Represented by:
(Illegible signature) (Illegible signature)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
PANAMCO GOLFO, S.A. DE C.V.
Represented by:
(Illegible signature) (Illegible signature)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT "A"
AMORTIZATIONS TABLE
----------------------------------------------------------------------------
PAYMENT DATE PRINCIPAL AMOUNT TO BE PAID
----------------------------------------------------------------------------
June 4, 2002 MXP$116,250,000.00
----------------------------------------------------------------------------
December 17, 2002 MXP $116,250,000.00
----------------------------------------------------------------------------
June 3, 2003 MXP $116,250,000.00
----------------------------------------------------------------------------
December 16, 2003 MXP $116,250,000.00
----------------------------------------------------------------------------
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EXHIBIT "B"
TRADEMARKS
I. Trademarks under the Coca-Cola Company license
1. Coca-Cola
2. Coca-Cola Light
3. Fanta
4. Sprite
5. Sprite Light
6. Fresca
7. Lift
8. Delaware Punch
9. Chispa
10. Fruitopia
11. Senzao
12. Powerade
13. Quatro
14. Beat
15. Sonfil
II. Trademarks owned y Panamco Mexico, S.A. de C.V. or its subsidiaries:
1. Risco
2. Keloco
3. Plastesha
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