Exhibit 4.3
GUARANTY
Dated as of December 19, 2001
Between
COMPANHIA DE BEBIDAS DAS AMERICAS-AMBEV
as Guarantor,
and
THE BANK OF NEW YORK, as
Trustee for the Noteholders
Referred to Herein
TABLE OF CONTENTS
PAGE
SECTION 1. Definitions.........................................................1
SECTION 2. Guaranty ...........................................................9
SECTION 3. Guaranty Absolute..................................................10
SECTION 4. Suspension of Principal Payments...................................11
SECTION 5. Independent Obligation.............................................12
SECTION 6. Waivers and Acknowledgments........................................12
SECTION 7. Claims Against the Issuer..........................................13
SECTION 8. Payments Free and Clear of Taxes, Etc..............................14
SECTION 9. Representations and Warranties.....................................15
SECTION 10. Covenants..........................................................16
SECTION 11. Amendments, etc....................................................23
SECTION 12. Notices, Etc.......................................................23
SECTION 13. No Waiver; Remedies................................................24
SECTION 14. Indemnification....................................................24
SECTION 15. Subordination......................................................24
SECTION 16. Continuing Agreement; Assignment of Rights Under the Indenture and
the Notes..........................................................25
SECTION 17. Currency Rate Indemnity............................................26
SECTION 18. Governing Law; Jurisdiction; Waiver of Immunity, Etc...............26
SECTION 19. Execution in Counterparts..........................................27
SECTION 20. Pledge of Interest in Accounts.....................................28
SECTION 21. Entire Agreement...................................................28
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GUARANTY
GUARANTY (this "
GUARANTY"), dated as of December 19, 2001, between
COMPANHIA DE BEBIDAS DAS AMERICAS-AMBEV (the "GUARANTOR"), a SOCIEDADE ANONIMA
organized and existing under the laws of the Federative Republic of Brazil
("BRAZIL"), and THE BANK OF
NEW YORK, as trustee for the holders of the Notes
issued pursuant to the Indenture (as defined below) (the "TRUSTEE").
WITNESSETH:
WHEREAS, Companhia Brasileira de Bebidas, a SOCIEDADE ANONIMA
organized under the laws of Brazil and a majority-owned subsidiary of the
Guarantor (the "ISSUER"), has entered into an Indenture dated December 19, 2001
(the "INDENTURE") with the Trustee;
WHEREAS, the Issuer has duly authorized the issuance of its notes in
such principal amount or amounts as may from time to time be authorized in
accordance with the Indenture and is, on the date hereof, issuing
U.S.$500,000,000 of its 10 1/2% Notes Due 2011 under the Indenture (the "INITIAL
NOTES");
WHEREAS, pursuant to the Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT"), dated December 19, 2001 among the Issuer, the
Guarantor and the Initial Purchasers, the Issuer and the Guarantor have agreed
to register the Initial Notes under the Securities Act and to effect an exchange
offer pursuant to which the Issuer will issue Exchange Notes (as defined herein)
in exchange for the Initial Notes;
WHEREAS, the Guarantor is willing to enter into this
Guaranty in order
to provide the holders of the Initial Notes and the Exchange Notes (together,
the "NOTES" and the holders thereof being "NOTEHOLDERS") with an irrevocable and
unconditional
guaranty that, if the Issuer shall fail to make any required
payment of principal, interest or other amounts due in respect of the Notes and
the Indenture, the Guarantor will pay any such amounts whether at stated
maturity, or earlier or later by acceleration or otherwise;
WHEREAS, the Guarantor agrees that it will derive substantial direct
and indirect benefits from the issuance of the Notes by the Issuer;
WHEREAS, it is a condition precedent to the issuance of the Notes that
the Guarantor shall have executed this
Guaranty.
WHEREAS, each of the parties hereto is entering into this
Guaranty for
the benefit of the other party and for the equal and ratable benefit of the
holders of the Notes.
NOW, THEREFORE, the Guarantor and the Trustee hereby agree as follows:
SECTION 1. DEFINITIONS. (a) As used herein the following capitalized
terms shall have the following meanings:
"ADDITIONAL AMOUNTS" has the meaning set forth in Section 8(a).
"AFFILIATE" with respect to any Person, means any other Person,
subject to the requirements of the Trust Indenture Act, that, directly or
indirectly, controls, is controlled by or is under common control with such
Person; it being understood that for purposes of this definition, the term
"CONTROL" (including the terms "CONTROLLING," "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") of a Person shall mean the possession, direct or indirect, of the
power to vote 10% or more of the equity or similar voting interests of such
Person or to direct or cause the direction of the management and policies of
such Person, whether through the ownership of such interests, by contract or
otherwise.
"AUTHORIZED REPRESENTATIVE" of the Guarantor or any other Person means
the person or persons authorized to act on behalf of such entity by its chief
executive officer, president, chief operating officer, chief financial officer
or any vice president or its Board of Directors or any other governing body of
such entity.
"BANKRUPTCY LAW" has the meaning specified in Section 15(a).
"BOARD OF DIRECTORS", when used with respect to a corporation, means
either the board of directors of such corporation or any committee of that board
duly authorized to act for it, and when used with respect to a limited liability
company, partnership or other entity other than a corporation, any Person or
body authorized by the organizational documents or by the voting equity owners
of such entity to act for them including, in the case of a Brazilian
corporation, such corporation's CONSELHO DE ADMINISTRACAO and the DIRETORIA.
"BRAZILIAN GAAP" means the generally accepted accounting principles in
Brazil determined in accordance with the Brazilian corporate law.
"BUSINESS DAY" means any day except a Saturday, a Sunday or a legal
holiday or a day on which banking institutions (including, without limitation,
the members of the Federal Reserve System) are authorized or required by law,
regulation or executive order to close in The City of
New York or Brazil.
"CENTRAL BANK" has the meaning specified in Section 9(d).
"CLOSING DATE" means December 19, 2001.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets of
the Guarantor and its consolidated Subsidiaries, (less applicable depreciation,
amortization and other valuation reserves), except to the extent resulting from
write-ups of capital assets, after deducting therefrom (i) all current
liabilities of the Guarantor and its consolidated Subsidiaries (excluding
intercompany items) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent financial statements delivered by the Guarantor to the
Trustee pursuant to this Guaranty.
"DEFAULT" has the meaning set forth in the Indenture.
"DENOMINATION CURRENCY" has the meaning specified in Section 17(b).
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"ELECTRONIC REGISTRATION" has the meaning specified in Section 9(d).
"EVENT OF DEFAULT" has the meaning specified in the Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" means the securities registered, in accordance with
the terms of the Registration Rights Agreement, with the United States
Securities and Exchange Commission under the Securities Act, with identical
terms as the Notes (except restrictions on transfer).
"EXCHANGE OFFER" means an offer by the Issuer, pursuant to the
Registration Rights Agreement, to holders of the Initial Notes to issue and
deliver to such holders, in exchange for their Initial Notes, a like aggregate
principal amount of Exchange Notes registered under the Securities Act.
"EXCLUDED ADDITIONAL AMOUNTS" has the meaning specified in the
Indenture.
"EXPECTED MATURITY DATE" has the meaning specified in the Indenture.
"EXPROPRIATION EVENT" has the meaning specified in the Insurance
Policy.
"FINAL MEMORANDUM" mean the Offering Memorandum dated December 12,
2001 prepared by the Issuer and the Guarantor in connection with the issuance
and sale of the Notes.
"FITCH" shall mean Fitch, Inc.
"GOVERNMENTAL AUTHORITY" means any regulatory, administrative or other
legal body, any court, tribunal or authority or any public legal entity or
public agency of Brazil, the United States of America or any other jurisdictions
whether created by federal, provincial or local government, or any other legal
entity now existing or hereafter created, or now or hereafter controlled,
directly or indirectly, by any public legal entity or public agency of any of
the foregoing.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section 2.
"GUARANTOR" has the meaning specified in the preamble of this
Guaranty.
"HEDGE AGREEMENTS" means 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.
"INCONVERTIBILITY EVENT" has the meaning set forth in the Insurance
Policy.
"INDEBTEDNESS" of any Person means, without duplication,
(i) indebtedness of such Person for borrowed money;
(ii) 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
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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);
(iii) 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 (i) above or (iv), (vii)
or (viii) below) 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);
(iv) 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;
(v) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in 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);
(vi) all net obligations of such Person with respect to Hedge
Agreements;
(vii) 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 (i) through (v) above; and
(viii) all indebtedness referred to in clauses (i) through (vii) 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.
"INDEMNIFIED PARTY" has the meaning specified in Section 14.
"INDENTURE" has the meaning specified in the preamble to this
Guaranty.
"INITIAL PURCHASERS" means UBS Warburg LLC, Banc of America Securities
LLC, ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney, Inc., acting as such under the Purchase Agreement.
"INSURANCE POLICY" means the Insurance Policy for Expropriation and
Currency Inconvertibility, dated as of December 19, 2001, between the Insurer
and the Trustee, as amended or modified from time to time in accordance with the
terms thereof.
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"INSURANCE POLICY APPLICATION" means the application for the Insurance
Policy submitted by the Trustee to the Insurer on December 19, 2001.
"INSURANCE SIDE AGREEMENT" means the Agreement Regarding the Insurance
Policy for Expropriation and Currency Inconvertibility dated as of December 19,
2001, by and among the Trustee, the Insurer, the Issuer and the Guarantor, as
amended or modified from time to time in accordance with the terms thereof.
"INSURER" means Steadfast Insurance Company, a Delaware insurance
company and a wholly owned Subsidiary of Zurich American Insurance Company, an
insurance company organized under the laws of the State of
New York.
"ISSUER" has the meaning set forth in the preamble to this Guaranty.
"JUDGMENT CURRENCY" has the meaning specified in Section 17(b).
"LAW" means any constitutional provision, law, statute, rule,
regulation, ordinance, treaty, order, decree, judgment, decision, certificate,
holding, injunction, enforceable at law or in equity, along with the
interpretation and administration thereof by any Governmental Authority charged
with the interpretation or administration thereof.
"LETTER OF CREDIT" has the meaning specified in the Indenture.
"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).
"LUXEMBOURG PAYING AGENT" means Deutsche Bank Luxembourg S.A. as the
Luxembourg Paying Agent under the Indenture.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
condition (financial or otherwise), results of operation, or prospects of either
of the Guarantor and its Subsidiaries, taken as a whole, (b) the ability of the
Guarantor to perform its material obligations under this Guaranty or any other
Transaction Document, or (c) the rights of the Trustee, acting on behalf of the
holders of the Notes, or such holders, under any of the Transaction Documents.
"MATERIAL SUBSIDIARY" means any Subsidiary of the Guarantor with total
assets of more than U.S.$ 200,000,000 (or its equivalent in another currency) as
reflected on the most recent consolidated financial statements of the Guarantor.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NOTE RATE" has the meaning specified in the Indenture.
"NOTEHOLDERS" has the meaning specified in the preamble of this
Guaranty.
"NOTES" has the meaning specified in the preamble of this Guaranty.
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"OFFICER'S CERTIFICATE" means a certificate of an Authorized
Representative of the Guarantor containing, in respect of each certificate
furnished with respect to a particular condition, covenant or provision of this
Guaranty:
(i) a statement that an Authorized Representative of the Guarantor
has read such covenant, condition or provision;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, such
examination or investigation has been made as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant, condition or provision has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition, covenant or provision has been complied with.
"OFFICIAL LENDER" means (a) any Brazilian governmental financial
institution, agency or development bank (or any other bank or financial
institution representing or acting as agent for any of such institutions,
agencies or banks), including, without limitation, Banco Nacional de
Desenvolvimento Economico e Social and the related system, (b) any multilateral
or foreign governmental financial institution, agency or development bank (or
any other bank or financial institution representing or acting as agent for any
such institutions, agencies or banks), including, without limitation, the World
Bank, the International Finance Corporation and the Inter-American Development
Bank and (c) any Governmental Authority of jurisdictions where the Guarantor or
any of its Subsidiaries conducts business (or any bank or financial institutions
representing or acting as agent for such Governmental Authority).
"OPINION OF COUNSEL" means a written opinion of counsel from any
Person either expressly referred to herein or otherwise reasonably satisfactory
to the Trustee which may include, without limitation, counsel for the Guarantor,
whether or not such counsel is an employee of the Guarantor, which opinion
contains:
(i) a statement that each individual signing such certificate or
opinion has read such covenant, condition or provision;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, such
examination or investigation has been made as is necessary to enable such
individual to express an informed opinion as to whether or not such covenant,
condition or provision has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition, covenant or provision has been complied with.
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"PAYMENT ACCOUNT" has the meaning set forth in the Indenture.
"PERMITTED INVESTMENT" has the meaning set forth in the Indenture.
"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.
"POST PETITION INTEREST" has the meaning specified in Section 15(b).
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of December
12, 2001, among the Guarantor, the Issuer and the Initial Purchasers.
"REGISTRATION RIGHTS AGREEMENT" has the meaning specified in the
preamble to this Guaranty.
"RESERVE ACCOUNT" has the meaning specified in the Indenture.
"REIMBURSEMENT AGREEMENT" means any reimbursement agreement entered
into by the Guarantor, the Issuer and/or any of their respective Affiliates in
connection with the Letter of Credit.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SALE AND LEASE-BACK TRANSACTION" means any transaction or series of
related transactions pursuant to which the Guarantor or any of its Subsidiaries
sells or transfers any property to any Person with the intention of taking back
a lease of such property.
"S&P" means Standard & Poor's.
"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, in each case of the Issuer or any of its
Subsidiaries, 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.
For the avoidance of doubt, Specified Property excludes any receivables or cash
flow arising from the sales of goods and services by the Guarantor in the
ordinary course of business
"SUBORDINATED OBLIGATIONS" has the meaning specified in Section 15.
"SUBSIDIARY" means, as to any Person, a corporation, company,
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors (or similar governing
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body) of such corporation, company, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "SUBSIDIARY" or to "SUBSIDIARIES" in
this Guaranty shall refer to a Subsidiary or Subsidiaries of the Guarantor.
"SUCCESSOR COMPANY" has the meaning specified in Section 10(n)(ii).
"SUSPENSION OF PAYMENT" has the meaning specified in Section 4.
"TAX" has the meaning specified in the Indenture.
"TAXING JURISDICTION" has the meaning specified in the Indenture.
"TERMINATION DATE" has the meaning specified in Section 7.
"TRANSACTION DOCUMENTS" means, collectively, the Notes, the Indenture,
the Insurance Policy, this Guaranty, the Registration Rights Agreement, the
Insurance Side Agreement, the Insurance Policy Application, the Letter of Credit
and the Reimbursement Agreement.
"TRUSTEE" has the meaning specified in the preamble of this Guaranty.
"UNITED STATES" means the United States of America.
"U.S. GAAP" means generally accepted accounting principles in effect
in the United States applied on a basis consistent with the principles, methods,
procedures and practices employed in the preparation of the Issuer's audited
financial statements, including, without limitation, those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession.
(b) CONSTRUCTION. For all purposes of this Guaranty (and for all
purposes of any other Transaction Document or any other instrument or agreement
that incorporates provisions of this Guaranty by reference), except as otherwise
expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(ii) except as otherwise expressly provided herein, (A) all
accounting terms used herein shall be interpreted, (B) all financial
statements and all certificates and reports as to financial matters
required to be delivered to the Trustee hereunder shall be prepared and (C)
all calculations made for the purposes of determining compliance with this
Guaranty shall (except as otherwise expressly provided herein) be made in
accordance with, or by application of, U.S. GAAP;
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(iii) all references in this Guaranty (including the Appendices and
Schedules hereto) to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and other
subdivisions of this Guaranty;
(iv) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Guaranty as a whole and not to any particular
Article, Section or other subdivision;
(v) unless the context clearly indicates otherwise, pronouns having
a masculine or feminine gender shall be deemed to include the other;
(vi) unless otherwise expressly specified, any agreement, contract
or document defined or referred to herein shall mean such agreement,
contract or document as in effect as of the date hereof, as the same may
thereafter be amended, supplemented or otherwise modified from time to time
in accordance with the terms of this Guaranty and the other Transaction
Documents and shall include any agreement, contract, instrument or document
in substitution or replacement of any of the foregoing entered into in
accordance with the terms of this Guaranty and the other Transaction
Documents;
(vii) any reference to any Person shall include its permitted
successors and assigns in accordance with the terms of this Guaranty and
the other Transaction Documents including, in the case of any Governmental
Authority, any Person succeeding to its functions and capacities; and
(viii) unless the context clearly requires otherwise, references to
"Law" or to any particular Law shall include Laws or such particular Law as
in effect at each, every and any of the times in question, including any
amendments, replacements, supplements, extensions, modifications,
consolidations, restatements, revisions or reenactments thereto or thereof,
and whether or not in effect at the date of this Guaranty.
SECTION 2. GUARANTY. (a) The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the due and punctual payment when
due, whether at the Expected Maturity Date (as the same may be extended as
permitted in the Indenture), or earlier or later by acceleration or otherwise,
of all obligations of the Issuer now or hereafter existing under the Indenture
and the Notes, whether for principal, interest, make-whole premium, fees,
indemnities, costs, expenses or otherwise (such obligations being the
"GUARANTEED OBLIGATIONS"), and the Guarantor agrees to pay any and all expenses
(including reasonable and documented counsel fees and expenses) incurred by the
Trustee or any Noteholder in enforcing any rights under this Guaranty with
respect to such Guaranteed Obligations. Without limiting the generality of the
foregoing, the Guarantor's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by the Issuer to the
Trustee or any Noteholder under the Indenture and the Notes but for the fact
that they are unenforceable or not allowable due to the existence of a
bankruptcy, insolvency, reorganization or similar proceeding involving the
Issuer.
(b) In the event that the Issuer does not make payments to the Trustee
of all or any portion of the Guaranteed Obligations, upon receipt of notice of
such non-payment by the
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Trustee in substantially the form of Exhibit A hereto, the Guarantor will make
immediate payment to the Trustee of any such amount or portion of the Guaranteed
Obligations owing or payable under the Indenture and the Notes. Such notice
shall specify the amount or amounts under the Indenture and the Notes that were
not paid on the date that such amounts were required to be paid under the terms
of the Indenture and the Notes.
(c) The obligation of the Guarantor under this Guaranty shall be
absolute and unconditional upon receipt by it of the notice contemplated herein
absent manifest error. The Guarantor shall not be relieved of its obligations
hereunder unless and until the Trustee shall have indefeasibly received all
amounts required to be paid by the Guarantor hereunder (and any Event of Default
under the Indenture has been cured); PROVIDED, HOWEVER that the Guarantor's
payment obligations to the Trustee hereunder shall not be satisfied as a result
of any transfer funds (as provided under the Indenture) to the Payment Account
from funds on deposit in the Reserve Account or amounts paid by the Insurer
under the Insurance Policy, to the extent that the Insurer is or may be
subrogated to any right to receive such amounts or any such payment obligations
in connection with a claim for such amounts under the Insurance Policy. All
amounts payable by the Guarantor hereunder shall be payable in U.S. dollars and
in immediately available funds to the Trustee.
SECTION 3. GUARANTY ABSOLUTE. (a) The Guarantor's obligation under
this Guaranty are absolute and unconditional regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Noteholder under its Notes or the Indenture. The
obligations of the Guarantor under or in respect of this Guaranty are
independent of the Guaranteed Obligations or any other obligations of the
Issuer, the Issuer's Subsidiaries or the Guarantor's Subsidiaries under or in
respect of the Indenture and the Notes or any other document or agreement, and a
separate action or actions may be brought and prosecuted against the Guarantor
to enforce this Guaranty, irrespective of whether any action is brought against
the Issuer or whether the Issuer is joined in any such action or actions. The
liability of the Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and the Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(i) any lack of validity or enforceability of any of the
Transaction Documents;
(ii) any provision of applicable law or regulation purporting to
prohibit the payment by the Guarantor of any amount payable by it under
this Guaranty;
(iii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
obligations of any other person or entity under or in respect of the
Transaction Documents, or any other amendment or waiver of or any consent
to departure from any Transaction Document, including, without limitation,
any increase in the obligations of the Issuer under the
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Indenture and the Notes as a result from the extension of additional
credit, any rescheduling of the Issuer's obligations under the Notes of the
Indenture or otherwise;
(iv) any taking, release or amendment or waiver of, or consent to
departure from, any other guaranty or agreement similar in function to this
Guaranty, for all or any of the obligations of the Issuer under the
Indenture or the Notes;
(v) any manner of sale or other disposition of any assets of any
Noteholder;
(vi) any change, restructuring or termination of the corporate
structure or existence of the Issuer or the Guarantor or any Subsidiary
thereof or any change in the name, purposes, business, capital stock
(including ownership thereof) or constitutive documents of the Issuer or
the Guarantor;
(vii) any failure of the Trustee to disclose to the Guarantor any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Issuer or any of
its Subsidiaries (the Guarantor hereby waiving any duty on the part of the
Trustee or any Noteholders to disclose such information);
(viii) the failure of any other person or entity to execute or deliver
any other guaranty or agreement or the release or reduction of liability of
any other guarantor or surety with respect to the Indenture;
(ix) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Trustee or any Noteholder that might otherwise
constitute a defense available to, or a discharge of, the Issuer or the
Guarantor or any other party;
(x) any claim of set-off or other right which the Guarantor may
have at any time against the Issuer or the Trustee, whether in connection
with this transaction or with any unrelated transaction; or
(xi) any Inconvertibility Event or Expropriation Event, whether or
not such event is known to the Guarantor or the Trustee.
(xii) This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by any Noteholder or
any other person or entity upon the insolvency, bankruptcy or
reorganization of the Issuer or the Guarantor or otherwise, all as though
such payment had not been made.
SECTION 4. SUSPENSION OF PRINCIPAL PAYMENTS. (a) If, at any time prior
to the effectiveness of the voluntary cancellation of the Insurance Policy at
the option of the Issuer in accordance with the terms and procedures set forth
in the Indenture, the Guarantor is obligated to make any payments of principal
under this Guaranty, the Guarantor shall be permitted to suspend or defer (such
suspension or deferral a "SUSPENSION OF PAYMENT") paying amounts in respect of
principal due under this Guaranty to the extent that it is not able to satisfy
such obligations from
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funds available to it outside of Brazil if but only if its obligation to make
such payment (i) arises solely as a result of the insolvency or similar events
involving the Issuer, any Material Subsidiary thereof or any Material Subsidiary
of the Guarantor and (ii) arises during the occurrence and continuation of an
Inconvertibility Event or an Expropriation Event.
(b) A Suspension of Payment shall last from the date the payment
becomes due until the earliest to occur of (i) twenty-four calendar months from
such date; (ii) the latest date for which funds are available in the Reserve
Account or available under the Letter of Credit and under the Insurance Policy
to pay interest on the Notes and (iii) 30 calendar days after the date on which
such Inconvertibility Event or Expropriation Event has ended.
(c) Upon the cessation of a Suspension of Payment, the Guarantor shall
be obligated to pay that portion of the Guaranteed Obligations representing
outstanding principal and other amounts due on or with respect to the Notes.
(d) The Guarantor shall be obligated to pay interest (and all other
amounts due in respect of the Notes) on the outstanding but unpaid principal
amount of the Notes on each day that would otherwise be a payment date under the
Indenture and the Notes during the entire period during which there shall be a
Suspension of Payment at a rate equal to the Note Rate.
(e) Notwithstanding the foregoing, if at any time a Default or Event
of Default of the type specified in Sections 7.1(g), (h), (i), (j) or (k) of the
Indenture occurs in relation to the Guarantor, all of the Guarantor's
obligations under this Guaranty shall be immediately due and payable without any
notice to the Guarantor or the Issuer.
SECTION 5. INDEPENDENT OBLIGATION. The obligations of the Guarantor
hereunder are independent of the Issuer's obligations under the Notes and the
Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to
enforce payment under the Indenture and the Notes, without in any way affecting
or impairing the liability of the Guarantor hereunder. The Trustee shall not be
obligated to exhaust recourse or remedies against the Issuer to recover payments
required to be made under the Indenture nor take any other action against the
Issuer or, under any agreement, purchase any security which the Trustee may hold
before being entitled to payment from the Guarantor of all amounts contemplated
in Section 2 hereof owed hereunder or proceed against or have resort to any
balance of any deposit account or credit on the books of the Trustee in favor of
the Issuer or in favor of the Guarantor. Without limiting the generality of the
foregoing, the Trustee shall have the right to bring a suit directly against the
Guarantor, either prior or subsequent to or concurrently with any lawsuit
against, or without bringing suit against, the Issuer.
SECTION 6. WAIVERS AND ACKNOWLEDGMENTS. (a) The Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Trustee, on behalf of the Noteholders, protect, secure, perfect or insure any
Lien or any property subject thereto or exhaust any right, power or remedy or
take any action against the Issuer or any other Person.
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(b) The Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to the Guaranteed Obligations, whether the same is
existing now or in the future.
(c) The Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by any Noteholder or the Trustee on behalf of the Noteholders that in
any manner impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or indemnification rights
of the Guarantor or other rights of the Guarantor to proceed against the Issuer
or any other person or entity and (ii) any defense based on any right of set-off
or counterclaim against or in respect of the Guaranteed Obligations of the
Guarantor hereunder.
(d) The Guarantor hereby unconditionally and irrevocably waives any
duty on the part of the Trustee or any Noteholder to disclose to the Guarantor
any matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Issuer now
or hereafter known by the Trustee or any Noteholder, as applicable.
(e) The Guarantor hereby unconditionally and irrevocably waives the
benefits to which it is entitled under Articles 1006, 1485, 1491, 1494, 1499,
1500, 1502, 1503 and 1504 of the Brazilian Civil Code, Articles 261 and 262 of
the Brazilian Commercial Code, and Article 595 of the Brazilian Code of Civil
Procedure.
SECTION 7. CLAIMS AGAINST THE ISSUER. The Guarantor hereby
unconditionally and irrevocably agrees not to exercise any rights that it may
now have or hereafter acquire against the Issuer or any other guarantor that
arise from the existence, payment, performance or enforcement of the Guaranteed
Obligations under or in respect of this Guaranty or any other Transaction
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
enforce any rights to payments in respect of the Guaranteed Obligations, or to
participate in any claim or remedy of the Trustee, on behalf of the Noteholders,
against the Issuer or any other person, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Issuer or any other
person, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or right,
unless and until all of the Guaranteed Obligations and all other amounts payable
under this Guaranty shall have been paid in full in cash. If any amount shall be
paid to the Guarantor in violation of the immediately preceding sentence at any
time prior to the later of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and (b) the date
on which all of the obligations of the Issuer under the Indenture and the Notes
have been discharged in full (the later of such dates being, the "TERMINATION
DATE"), such amount shall be received and held by the Trustee in trust for the
benefit of the Noteholders, shall be segregated from other property and funds of
the Guarantor and shall forthwith be paid or delivered to the Trustee in the
same form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of the Indenture. If (i) the Guarantor shall make payment to any Noteholder or
the Trustee, on behalf of the Noteholders, of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this
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Guaranty shall have been paid in full in cash and (iii) the Termination Date
shall have occurred, then the Trustee, on behalf of the Noteholders, will, at
the Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by the
Guarantor pursuant to this Guaranty.
SECTION 8. PAYMENTS FREE AND CLEAR OF TAXES, ETC. (a) Any and all
payments by or on account of any obligation of the Guarantor hereunder or under
any other Transaction Document shall be made free and clear of and without
deduction for any Taxes imposed, levied, collected, withheld or assessed by,
within or on behalf of any Taxing Jurisdiction, unless such withholding or
deduction is required by law. In that event, the Guarantor shall pay such
additional amounts (the "ADDITIONAL AMOUNTS") as may be necessary to ensure that
the amounts received by the Noteholders or the Trustee, as the case may be,
after such withholding or deduction shall equal the respective amounts that
would have been receivable in respect of this Guaranty, in the case of the
Noteholders, or pursuant to Section 8.5 of the Indenture, in the case of the
Trustee, in the absence of such withholding or deduction. The Guarantor shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law. The Guarantor will not, however, pay any
Excluded Additional Amounts.
(b) PAYMENT OF OTHER TAXES BY THE GUARANTOR. The Guarantor shall
promptly pay when due any present or future stamp, court or documentary taxes or
any other excise or property taxes, charges or similar levies that arise in a
Taxing Jurisdiction from the execution, delivery, enforcement or registration of
this Guaranty. The Guarantor shall indemnify and make whole the Noteholders for
any present or future stamp court or documentary taxes or any other excise or
property taxes, charges or similar levies payable by the Guarantor as provided
in this clause (b) paid by such Noteholders.
(c) The Guarantor will, upon written request of any Noteholder or
beneficial owner of a Note, indemnify and hold harmless and reimburse such
Noteholder for the amount of taxes, duties, assessments or other governmental
charges of a Taxing Jurisdiction so levied or imposed and paid by such
Noteholder as a result of payments made under or with respect to this Guaranty,
so that the net amount received by such Noteholder after such reimbursement
would not be less than the net amount the Noteholder would have received if such
Taxes of such Taxing Jurisdiction would not have been imposed or levied.
(d) EVIDENCE OF PAYMENTS. Upon written request from the Trustee, the
Guarantor will deliver to the Trustee, within five Business Days after the
delivery of such written request, certified copies of Tax receipts or, if such
copies are not available, documentation reasonably satisfactory to the Trustee
evidencing the payment of any such Taxes due pursuant to applicable law. Upon
written request of the Noteholders to the Trustee, copies of such receipts or
other documentation, as the case may be, will be made available to the
Noteholder. At least ten Business Days prior to each date on which any payment
under or with respect to this Guaranty is due and payable, if the Guarantor is
obligated to pay Taxes with respect to such payment, the Guarantor will deliver
to the Trustee an Officer's Certificate stating that Taxes will be payable, the
amounts so payable and setting forth such other information as the Trustee shall
reasonably request for tax purposes.
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(e) FOREIGN LAW. If the Trustees or a Noteholder is entitled to an
exemption from or reduction of Indemnified Taxes, with respect to payments under
this Guaranty, the Trustee or such Noteholder (as applicable) shall provide to
the Guarantor, as reasonably requested by the Guarantor (who shall provide the
Trustee or the Noteholder, as the case may be, the relevant documentation, forms
and instructions prescribed by applicable law), such documentation as will
permit payments under this Guaranty to be made without withholding or at a
reduced rate; PROVIDED, HOWEVER, if any documentation or form referred to in
this subsection (f) required the disclosure of information that the Trustee or
the Noteholder, as the case may be, reasonably considers to be confidential, the
Trustee or such Noteholder shall give notice thereof to the Guarantor and shall
not be obligated to include in such documentation or form such confidential
information.
SECTION 9. REPRESENTATIONS AND WARRANTIES. The Guarantor makes the
following representations and warranties to the Trustee, on behalf of the
Noteholders, all of which shall survive the execution and delivery of this
Guaranty:
(a) The Guarantor has been duly organized and is validly existing as a
SOCIEDADE ANONIMA in good standing under the laws of Brazil. The Guarantor is
licensed (if and to the extent necessary) and has the full corporate power and
authority to enter into and perform its obligations under this Guaranty and the
other Transaction Documents to which it is a party.
(b) This Guaranty has been duly authorized, executed and delivered by
the Guarantor; each of this Guaranty, the Insurance Side Agreement and the
Registration Rights Agreement and each other document executed and delivered in
connection therewith to which the Guarantor is party has been duly authorized
and, assuming due authorization, execution and delivery thereof by each other
party to those Transaction Documents (other than the Guarantor), when executed
and delivered by the Guarantor, will constitute a legal, valid and binding
agreement of the Guarantor, enforceable against the Guarantor in accordance with
its terms (subject, as to the enforcement of remedies, 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).
(c) No consent, approval, authorization, filing with or order of any
Governmental Authority is required for the execution, delivery or performance by
the Guarantor of any of its obligations under any of the Guaranty, including,
without limitation, making any of the applicable payments required to be made on
or after the date hereof under or in respect of any of the Transaction Documents
other than (A) any such authorization, approval, action, notice or filing which
has been obtained or made, as the case may be, prior to the date hereof and is
in full force and effect on the date hereof, including the electronic
registration (the "ELECTRONIC REGISTRATION") with the Brazilian Central Bank
(the "CENTRAL BANK") that has been previously obtained and is in full force and
effect on the date hereof and (B) any further authorization from the Central
Bank in order to enable the Issuer and the Guarantor to make remittances from
Brazil in U.S. dollars to make payments under the Notes, the Indenture and the
Guaranty or any other Transaction Documents not specifically covered by the
Electronic Registration (including payments made after 120 days from their
originally scheduled due date and payments in different conditions as a result
of the issuance of the Exchange Notes) or to make payments specifically
15
covered by the Electronic Registration earlier than their respective due dates,
whether upon acceleration or otherwise.
(d) The Guarantor is currently not in violation of its charter,
by-laws or comparable organizational documents; neither the issuance and sale of
the Notes, the execution and delivery of any of the Transaction Documents nor
the consummation of any of the transactions described or contemplated therein,
nor 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, charge or encumbrance upon any property or assets of the
Guarantor or any of its subsidiaries pursuant to, (i) their respective charter,
by-laws or comparable organizational documents, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which they are
a party or bound or to which any of their property or assets is subject or (iii)
any statute, law, rule, regulation, judgment, order or decree applicable to
them, except in the case of clauses (ii) or (iii) such as could not reasonably
be expected to have a Material Adverse Effect.
SECTION 10. COVENANTS
For so long as the Notes remain outstanding or any amount remains
unpaid on the Notes and the Indenture, the Guarantor will, and will cause each
of its Subsidiaries to, comply with the terms and covenants set forth below
(except as otherwise provided in a duly authorized amendment to this Guaranty as
provided herein):
(a) PERFORMANCE OF OBLIGATIONS. The Guarantor shall pay all amounts
owed by it and comply with all its other obligations under the terms of this
Guaranty and each other Transaction Document entered into in connection
therewith to which it is a party in accordance with the terms thereof.
(b) MAINTENANCE OF CORPORATE EXISTENCE. The Guarantor will, and will
cause each of its Subsidiaries to, (i) maintain in effect its corporate
existence and all registrations necessary therefor except as otherwise permitted
by Section 10(n) and (ii) 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 that this Section 10(b) shall not require the Guarantor to maintain or
cause any Subsidiary thereof to maintain any such right, privilege, title to
property or franchise or require the Guarantor to preserve the corporate
existence of any Subsidiary, if the failure to do so does not, and will not,
have a Material Adverse Effect.
(c) MAINTENANCE OF PROPERTIES. The Guarantor will, and will cause each
of its Subsidiaries to, maintain and keep in good condition, repair and working
order (normal wear and tear excepted) all properties used or useful in the
conduct of its or its Subsidiaries businesses, and will, and will cause each of
its Subsidiaries to, make all necessary repairs, renewals, replacements and
improvements thereof, all as in the judgment of the Guarantor shall be necessary
properly to conduct at all times the business carried on in connection
therewith; PROVIDED, that this Section 10(c) shall not require the Guarantor to
maintain or cause any
16
Subsidiary thereof to maintain any such right, privilege and title to property
or franchise if the failure to do so does not, and will not, have a Material
Adverse Effect.
(d) COMPLIANCE WITH LAWS. The Guarantor will comply, and will cause
its Subsidiaries to comply, at all times in all material respects with all
applicable Laws, rules, regulations, orders and directives of any Governmental
Authority having jurisdiction over the Guarantor and each Subsidiary thereof or
their businesses or any of the transactions contemplated herein, except where
the failure so to comply would not have a Material Adverse Effect.
(e) MAINTENANCE OF GOVERNMENT APPROVALS. The Guarantor will, and will
cause its Subsidiaries to, duly obtain and maintain in full force and effect all
approvals, consents or licenses of any Governmental Authority which are
necessary under the laws of Brazil or any other jurisdiction having jurisdiction
over the Guarantor and each Subsidiary thereof or necessary in all cases for the
Guarantor to perform its obligations under this Guaranty and the other
Transaction Documents (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 Brazil, in connection with this
Guaranty) or the validity or enforceability of any thereof, except where the
failure to do so would have a Material Adverse Effect.
(f) PAYMENTS OF TAXES AND OTHER CLAIMS. The Guarantor will, and will
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, assessments
and governmental charges levied or imposed upon the Guarantor or such
Subsidiary, as the case may be, and (ii) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Guarantor or such Subsidiary, as the case may be; PROVIDED, HOWEVER, that
this Section 10(f) shall not require the Guarantor to, or cause any Subsidiary
thereof to, pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith and, if appropriate, by appropriate legal proceedings,
or where the failure to do so would not have a Material Adverse Effect.
(g) MAINTENANCE OF OWNERSHIP OF THE ISSUER. For so long as any Notes
are outstanding, the Guarantor will retain no less than 51% direct or indirect
ownership of the outstanding voting and economic interests (equity or otherwise)
of and in the Issuer.
(h) MAINTENANCE OF INSURANCE. The Guarantor will, and will cause each
of its Subsidiaries to maintain insurance with insurance companies that the
Guarantor reasonably believes to be financially sound, in such amounts and
covering such risks as are usually covered by companies engaged in similar
businesses and owning and/or operating properties or facilities similar to those
owned and/or operated by the Guarantor or its Subsidiaries, as the case may be,
in the same general location in which the Guarantor and its subsidiaries own
and/or operate their properties or facilities.
(i) MAINTENANCE OF BOOKS AND RECORDS. The Guarantor shall, and shall
cause each of its Subsidiaries to maintain books, accounts and records in
accordance with Brazilian GAAP, unless it is otherwise doing so under U.S. GAAP
in accordance with its status as a
17
foreign private issuer under the Securities Act, and in the case of its
Subsidiaries, under generally accepted accounting principles in the jurisdiction
where each such Subsidiary is organized.
(j) MAINTENANCE OF OFFICE OR AGENCY. So long as any of the Notes are
outstanding, the Guarantor will maintain in the Borough of Manhattan, The City
of
New York, an office or agency where notices to and demands upon the Guarantor
in respect of this Guaranty may be served, and the Guarantor will not change the
designation of such office without prior notice to the Trustee and designation
of a replacement office in the same general location.
(k) RANKING. The Guarantor will ensure at all times that its
obligations under this Guaranty will constitute the general unsecured and
unsubordinated obligations of the Guarantor and will rank PARI PASSU, without
any preferences among themselves, with all other present and future unsecured
and unsubordinated obligations of the Guarantor (other than obligations
preferred by statute or by operation of law) that are not, by their terms,
expressly subordinated in right of payment to the obligations of the Guarantor
under this Guaranty.
(l) NOTICE OF DEFAULTS. The Guarantor will give notice to the Trustee,
as soon as is practicable and in any event within ten calendar days after the
Guarantor becomes aware, or should reasonably become aware, of the occurrence of
any Default or any Event of Default, accompanied by a certificate of a
responsible officer of the Guarantor setting forth the details thereof and
stating what action that the Guarantor proposes to take with respect thereto.
(m) NOTICE OF EXPROPRIATION OR INCONVERTIBILITY EVENTS. The Guarantor
will give notice to the Trustee, as soon as is practicable and in any event
within five Business Days after the Guarantor becomes aware of any action taken
by the Brazilian government that could give rise to an Expropriation Event or an
Inconvertibility Event; PROVIDED that if the Guarantor is prevented, by an
Expropriation Event or Inconvertibility Event, from converting reais to U.S.
dollars or transferring U.S. dollars outside of Brazil in satisfaction of its
obligations hereunder, the Guarantor shall promptly (but in any event not later
than 9:00 a.m. (
New York time) on the Business Day immediately succeeding the
Guarantor's discovery thereof) notify the Trustee of such Expropriation Event or
Inconvertibility Event; PROVIDED FURTHER, that if any of such events occurs on a
Payment Date, the Guarantor shall give notice of such event no later than on
such payment date.
(n) LIMITATION ON CONSOLIDATION, MERGER, SALE OR CONVEYANCE. (i) The
Guarantor will not, in one or a series of transactions, consolidate or
amalgamate with or merge into any corporation or convey, lease or transfer all
or substantially all of its properties, assets or revenues to any Person (other
than a direct or indirect Subsidiary of the Guarantor) or permit any Person
(other than a direct or indirect Subsidiary of the Guarantor) to merge with or
into it unless:
(A) either the Guarantor is the continuing entity or the Person
formed by such consolidation or into which the Guarantor is merged or that
acquired or leased such property or assets of the Guarantor (the "Successor
Company") will be a company organized and validly existing under the laws
of Brazil or the United States and shall assume (jointly and severally with
the Guarantor unless the Guarantor shall have ceased to exist as part of
such merger, consolidation or amalgamation), by an amendment to this
18
Guaranty (the form and substance of which shall be previously approved by
the Trustee), all of the Guarantor's obligations under this Guaranty;
(B) the Successor Company (jointly and severally with the Guarantor
unless the Guarantor shall have ceased to exist as part of such merger,
consolidation or amalgamation) agrees to indemnify each Noteholder against
any tax, assessment or governmental charge thereafter imposed on such
Noteholder solely as a consequence of such consolidation, merger,
conveyance, transfer or lease with respect to the payment of principal of,
or interest on, the Notes pursuant to this Guaranty;
(C) immediately after giving effect to the transaction, no Event of
Default, and no Default has occurred and is continuing;
(D) the Guarantor has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that the transaction
and the amendment to this Guaranty, if applicable, comply with the terms of
this Guaranty and that all conditions precedent provided for in this
Guaranty and relating to such transaction have been complied with; and
(E) the Guarantor has delivered notice of such transaction to
▇▇▇▇▇'▇, Fitch and S&P (which notice shall contain a description of such
merger, consolidation or conveyance).
(ii) Notwithstanding anything to the contrary in the foregoing, so
long as no Default or Event of Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom:
(A) the Guarantor may merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of assets to a direct or indirect
Subsidiary of the Guarantor in cases when the Guarantor is the surviving
entity in such transaction and such transaction would not have a material
adverse effect on the Guarantor and its Subsidiaries taken a whole, it
being understood that if the Guarantor is not the surviving entity, the
Guarantor shall be required to comply with the requirements set forth in
clause (i) above; or
(B) any direct or indirect Subsidiary of the Guarantor may merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose
of assets to, any Person (other than the Guarantor or any of its
Subsidiaries or affiliates) in cases when such transaction would not have a
material adverse effect on the Guarantor and its Subsidiaries taken as a
whole; or
(C) any direct or indirect Subsidiary of the Guarantor 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 Guarantor; or
(D) any direct or indirect Subsidiary of the Guarantor may
liquidate or dissolve if the Guarantor determines in good faith that such
liquidation or dissolution is in the best interests of the Guarantor, and
would not result in a material adverse effect on
19
the Guarantor and its Subsidiaries taken as a whole and if such liquidation
or dissolution is part of a corporate reorganization of the Guarantor.
(E) For the purpose of this Section 10(n)(ii), the term
"Subsidiary" shall also include any corporation, company, partnership or
other entity of which the Guarantor owns shares of stock or other ownership
interests have the ordinary voting power to elect at least 50% of the Board
of Directors (or similar governing body) of such corporation, company,
partnership or other entity, or the Guarantor, directly or indirectly
through one or more intermediaries, otherwise shares equal control of such
corporation, company, partnership or other entity with another Person.
(o) LIMITATION ON LIENS. (i) The Guarantor will not, and will not
cause or permit any of its Subsidiaries to, issue, assume or guarantee any
Indebtedness, if that Indebtedness is secured by a Lien upon any Specified
Property now owned or hereafter acquired, unless, together with the issuance,
assumption or guarantee of such Indebtedness, the Notes shall be secured equally
and ratably with (or prior to) such Indebtedness.
(ii) The foregoing restriction shall not apply to:
(A) any Lien in existence on the Closing Date;
(B) any Lien on any property acquired, constructed or improved by
the Guarantor or any of its Subsidiaries after the date of the Indenture
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, HOWEVER, that in
the case of any such construction or improvement the Lien shall not apply
to any other property owned by the Guarantor or any of its Subsidiaries,
other than any unimproved real property on which the property so
constructed, or the improvement, is located;
(C) any Lien on Specified Property which secures Indebtedness owing
to an Official Lender;
(D) any Lien on any property existing at the time of its
acquisition and which is not created as a result of or in connection with
or in anticipation of that acquisition (unless such Lien was created to
secure or provide for the payment of any part of the purchase price of that
property);
(E) any Lien on any property acquired from a corporation or any
other Person which is merged with or into the Guarantor 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 Guarantor 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);
20
(F) any Lien which secures only Indebtedness owing by any of the
Guarantor's Subsidiaries, to one or more of the Guarantor's Subsidiaries or
to the Guarantor and one or more of the Guarantor's Subsidiaries;
(G) 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 (F) 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
(H) any Lien of the Guarantor or any of its Subsidiaries that does
not fall within paragraphs (A) through (G) above and that secures an
aggregate amount of Indebtedness which, when aggregated with Indebtedness
secured by all other Liens of the Guarantor and its Subsidiaries permitted
under this paragraph (H) (together with any Sale and Lease-Back Transaction
that would otherwise be prohibited by the provisions of this Guaranty
described below in Section 10(p) and inclusive of any comparable Liens
permitted to be created by the Issuer and its Subsidiaries pursuant to the
Indenture at any time does not exceed 10% of Consolidated Net Tangible
Assets at the time any such Indebtedness is issued, assumed or guaranteed
by the Guarantor or any of its Subsidiaries or at the time any such Lien is
entered into.
(p) LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. The Guarantor
will not, and will not permit any of its Subsidiaries to, enter into any Sale
and Lease-Back Transaction with respect to any Specified Property, unless
either:
(i) the Guarantor or that Subsidiary would be entitled pursuant to
the provisions of Section 10(o) above to issue, assume or guarantee
Indebtedness secured by a Lien on such Specified Property without equally
and ratably securing the Notes, or
(ii) the Guarantor 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 any of the Guarantor's
Indebtedness ranking at least PARI PASSU with the Guaranty and owing to a
Person other than the Guarantor or any of its Subsidiaries or to the
construction or improvement of real property or personal property used by
the Guarantor or any of its Subsidiaries in the ordinary course of
business. These restrictions will not apply to transactions providing for a
lease term, including any renewal, of not more than three years, and
transactions between the Guarantor and any or its Subsidiaries or between
the Guarantor's Subsidiaries.
(q) TRANSACTIONS WITH AFFILIATES. The Guarantor shall not, and shall
not permit any of its Subsidiaries to, enter into or carry out (or agree to
enter into or carry out) any transaction or arrangement with any Affiliate,
except for any transaction or arrangement entered
21
into or carried out on terms no less favorable to the Guarantor or such
Subsidiary than those which could have been obtained on an arm's-length basis
with a Person that is not an Affiliate; PROVIDED HOWEVER, that the foregoing
shall not apply to transactions (i) between the Guarantor and the Issuer or (ii)
between or among the Guarantor, the Issuer and/or any of their respective
Subsidiaries not involving any other Person so long as consummation of any such
transaction will not have a Material Adverse Effect.
(r) PROVISION OF FINANCIAL STATEMENTS AND REPORTS. (i) The
Guarantor will provide to the Trustee, in English or accompanied by an English
translation thereof, (A) as soon as available and in any case within 60 calendar
days after the end of each fiscal quarter (other than the fourth quarter), its
unaudited and consolidated balance sheet and statement of income calculated in
accordance with Brazilian GAAP and accompanied by a report thereon by an
independent public accountant of recognized international standing (unless the
Guarantor is preparing interim financial statements under U.S. GAAP for purposes
of filings under the United States securities laws, in which case this clause
(A) shall be deemed to apply to U.S. GAAP rather than Brazilian GAAP and such
financial statements shall be delivered as soon as available and in any case
within 90 calendar days after the end of the fiscal quarter) and (B) as soon as
available and in any case within 180 calendar days after the end of each fiscal
year, its audited and consolidated balance sheet and statement of income
calculated in accordance with U.S. GAAP or in accordance with Brazilian GAAP,
together with a reconciliation to U.S. GAAP in accordance with the rules and
regulations of the United States securities laws, and either case accompanied by
a report thereon by an independent public accountant of recognized international
standing.
(ii) The Guarantor will provide, together with each of the financial
statements delivered hereunder, an Officer's Certificate stating that a review
of the Guarantor's activities has been made during the period covered by such
financial statements with a view to determining whether the Guarantor has kept,
observed, performed and fulfilled its covenants and agreements under this
Guaranty and that no Event of Default has occurred during such period.
(iii) In addition, the Guarantor will furnish to the Trustee copies
of all financial statements and financial reports, promptly upon such statements
and reports being publicly available, filed by the Guarantor with the SEC or
published or otherwise made publicly available in Brazil, the United States or
elsewhere, and in any case within 15 calendar days of such statements and
reports becoming available.
(iv) The Guarantor shall provide to the Trustee such other financial
data as the Trustee may reasonably request to ascertain compliance by the
Guarantor and its Subsidiaries of their obligations under this Guaranty and the
other Transaction Documents.
(s) FURTHER ACTIONS. The Guarantor will, at its own cost and
expense, and will cause its Subsidiaries to, at their own cost and expense, take
any action, 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, in the
reasonable opinion of the Trustee, in accordance with applicable Laws (as
applicable) to be taken, fulfilled or done in order to (i) enable the Guarantor
to lawfully enter into, exercise its rights and perform and comply with its
obligations under this Guaranty and each of the other
22
Transaction Documents, as the case may be, (ii) ensure that the Guarantor's
obligations under this Guaranty and each of the other Transaction Documents are
legally binding and enforceable, (iii) make this Guaranty and each of the other
Transaction Documents admissible in evidence in the courts of the State of
New
York or Brazil, (iv) enable the Trustee to the exercise and enforce its rights
under and carry out the terms, obligations, provisions and purposes of this
Guaranty and each of the other Transaction Documents, (v) take any and all
action necessary to preserve the enforceability of, and maintain the Trustee's
rights under this Guaranty and the other Transaction Documents, including,
without limitation, refraining from taking any action that reasonably can be
expected to have an adverse effect on the enforceability of, or any of the
Trustee's rights under, this Guaranty and the other Transaction Documents, and
(vi) assist the Trustee in the Trustee's performance of its obligations under
this Guaranty and the other Transaction Documents.
(t) AVAILABLE INFORMATION. For as long as the Notes are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, the
Guarantor will, to the extent required, furnish to any Noteholder of a Note
issued under Rule 144A, or to any prospective purchaser designated by such
Noteholder, upon request of such Noteholder, financial and other information
described in paragraph (d)(4) of Rule 144A with respect to the Guarantor and the
Issuer to the extent required in order to permit such Noteholder to comply with
Rule 144A (as amended from time to time and including any successor provision)
with respect to any resale of such Note, UNLESS, at the time of such request,
the Issuer is subject to the reporting requirements of Section 13 or Section
15(d) of the Exchange Act or is exempt from such requirements pursuant to Rule
12g3-2(b) under the Exchange Act (as amended from time to time and including any
successor provision) and no such information about the Issuer or the Guarantor
is otherwise required pursuant to Rule 144A.
SECTION 11. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Guaranty and no consent to any departure by the Guarantor therefrom
shall in any event be effective unless the same shall be in writing and signed
by the Trustee and the Guarantor, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 12. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic or telecopy)
and mailed, telecopied or delivered by hand to it, if to the Guarantor,
addressed to it at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ - ▇▇▇▇▇ F, 6(0) andar,
05804-900 Sao Paulo, Sao Paulo, Brazil, Telephone: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇ and (55-11)
3741-6863, Telecopier: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇ and (▇▇-▇▇) ▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Martins and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, if to the Trustee, at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: Global Finance Unit or, as to any party, at such
other address as shall be designated by such party in a written notice to each
other party. The Trustee shall forward promptly copies of all notices and other
communications given or received hereunder or under any of the Transaction
Documents to Moody's at ▇▇▇▇▇'▇ Investor Service, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, Attention: Latin American ABS Monitoring, to S&P at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and to Fitch at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇. All such notices and other communications shall, when telecopied be
effective when transmitted. Delivery by telecopier of
23
an executed counterpart of a signature page to any amendment or waiver of any
provision of this Guaranty shall be effective as delivery of an original
executed counterpart thereof.
Copies of all written information provided by the Guarantor under the
terms hereof, including without limitation all such written information and
financial statements provided to the Trustee under Section 10 hereof, shall be
sent to the Luxembourg Paying Agent by first class mail at its offices at ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, or such other address as shall be
designated by the Luxembourg Paying Agent to the Trustee and the Guarantor.
SECTION 13. NO WAIVER; REMEDIES. No failure on the part of the Trustee
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 right hereunder
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 14. INDEMNIFICATION. (a) Without limitation on any other
obligations of the Guarantor or remedies of the Trustee under this Guaranty, the
Guarantor shall, to the fullest extent permitted by law, indemnify, defend and
save and hold harmless the Trustee and its 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
connection with or as a result of any failure of any Guaranteed Obligation to be
the legal, valid and binding obligations of the Guarantor enforceable against it
in accordance with their terms.
(b) The Guarantor hereby also agrees that none of the Indemnified
Parties shall have any liability (whether direct or indirect, in contract, tort
or otherwise) to the Guarantor or any of its Affiliates or any of their
respective officers, directors, employees, agents and advisors, and the
Guarantor hereby agrees not to assert any claim against any Indemnified Party on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Transaction Documents or any
of the transactions contemplated by the Transaction Documents.
(c) Without prejudice to the survival of any of the other agreements
of the Guarantor under this Guaranty or any of the other Transaction Documents,
the agreements and obligations of the Guarantor contained in Sections 2 and 3
(with respect to the payment of all other amounts owed under the Indenture),
Section 9 and this Section 14 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this
agreement.
SECTION 15. SUBORDINATION. To the extent that the Guarantor is
required to make any payment hereunder, the Guarantor hereby subordinates, to
the fullest extent allowed by applicable laws, any and all debts, liabilities
and other payment or financial or payment obligations (except for dividends
already declared on the date the Guarantor is required to make any payments by
the Issuer but not actually paid to the Guarantor) owed by the Issuer to the
Guarantor, (the "SUBORDINATED OBLIGATIONS") to the Guaranteed Obligations and
agrees that it
24
shall not require the Issuer to make any payments in respect thereof to the
extent and in the manner hereinafter set forth in this Section 15:
(a) PROHIBITED PAYMENTS, ETC. Except during the continuance of a
Default or Event of Default (including the commencement and continuation of
any proceeding under any applicable bankruptcy, insolvency, receivership or
similar law now or hereafter in effect relating to the Issuer (each such
law, a "BANKRUPTCY LAW")), the Guarantor may receive any payments from the
Issuer on account of the Subordinated Obligations. After the occurrence and
during the continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to the
Issuer), however, unless the Trustee otherwise agrees, the Guarantor shall
not demand, accept or take any action to collect any payment on account of
the Subordinated Obligations.
(b) PRIOR PAYMENT OF GUARANTEED OBLIGATIONS. In any proceeding under
any Bankruptcy Law relating to the Issuer, the Guarantor agrees that the
Trustee, on behalf of the Noteholders, shall be entitled to receive payment
in full in cash of all Guaranteed Obligations (including all interest and
expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such
proceeding ("POST PETITION INTEREST")) before the Guarantor receives
payment of any Subordinated Obligations.
(c) TURN-OVER. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to the Issuer), the Guarantor shall, if
the Trustee, on behalf of the Noteholders, so requests, collect, enforce
and receive payments on account of the Subordinated Obligations as trustee
for the Trustee and deliver such payments to the Trustee, on behalf of the
Noteholders, on account of the Guaranteed Obligations (including all Post
Petition Interest), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any manner
the liability of the Guarantor under the other provisions of this Guaranty.
(d) TRUSTEE AUTHORIZATION. After the occurrence and during the
continuance of any Default (including the commencement and continuation of
any proceeding under any Bankruptcy Law relating to any of the Issuer, any
Material Subsidiary thereof or any Material Subsidiary of the Guarantor),
the Trustee, at the direction of the Noteholders or otherwise, is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of the Guarantor, to collect and enforce, and
to submit claims in respect of, Subordinated Obligations and to apply any
amounts received thereon to the Guaranteed Obligations (including any and
all Post Petition Interest), and (ii) to require the Guarantor (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Trustee for application to the Guaranteed Obligations (including any and
all Post Petition Interest).
SECTION 16. CONTINUING AGREEMENT; ASSIGNMENT OF RIGHTS UNDER THE
INDENTURE AND THE NOTES. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the later of (i) the repayment in full by
the Issuer of all amounts due and owing under the Indenture with respect to the
Notes and (ii) the repayment in full of all Guaranteed
25
Obligations and all other amounts payable under this Guaranty, (b) be binding
upon the Guarantor, its successors and assigns and (c) inure to the benefit of
and be enforceable by the Trustee, on behalf of Noteholders, and their
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, any Noteholder may assign or
otherwise transfer all or any portion of its rights and obligations under the
Indenture (including, without limitation, the Note or Notes held by it) to any
other person or entity, and such other person or entity shall thereupon become
vested with all the benefits in respect thereof granted to such Noteholder
herein or otherwise, in each case as and to the extent provided in the
Indenture. The Guarantor shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of all of the
Noteholders.
SECTION 17. CURRENCY RATE INDEMNITY. (a) The Guarantor shall (to the
extent lawful) indemnify the Trustee and the Noteholders and keep them
indemnified against:
(i) in the case of nonpayment by the Guarantor of any amount due to
the Trustee, on behalf of the Noteholders, under this Guaranty any loss or
damage incurred by any of them arising by reason of any variation between
the rates of exchange used for the purposes of calculating the amount due
under a judgment or order in respect thereof and those prevailing at the
date of actual payment by the Guarantor; and
(ii) any deficiency arising or resulting from any variation in rates
of exchange between (i) the date as of which the local currency equivalent
of the amounts due or contingently due under this Guaranty or in respect of
the Notes is calculated for the purposes of any bankruptcy, insolvency or
liquidation of the Guarantor, and (ii) the final date for ascertaining the
amount of claims in such bankruptcy, insolvency or liquidation. The amount
of such deficiency shall be deemed not to be increased or reduced by any
variation in rates of exchange occurring between the said final date and
the date of any bankruptcy, insolvency or liquidation or any distribution
of assets in connection therewith.
(b) The Guarantor agrees that, if a judgment or order given or made by
any court for the payment of any amount in respect of its obligations hereunder
is expressed in a currency (the "JUDGMENT CURRENCY") other than U.S. dollars
(the "DENOMINATION CURRENCY"), it will indemnify the relevant Noteholder against
any deficiency arising or resulting from any variation in rates of exchange
between the date as of which the amount in the Denomination Currency is
notionally converted into the amount in the Judgment Currency for the purposes
of such judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and independent
obligations of the Guarantor from its obligations hereunder, will give rise to
separate and independent causes of action, will apply irrespective of any
indulgence 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 relevant Note or under any such judgment or order.
SECTION 18. GOVERNING LAW; JURISDICTION; WAIVER OF IMMUNITY, ETC.(a)
This Guaranty shall be governed by, and construed in accordance with, the laws
of the State of
New York.
26
(b) The Guarantor 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 of America sitting in
New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or any of the other Transaction Documents to
which it is or is to be a party, or for recognition or enforcement of any
judgment, and the Guarantor 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 extent permitted by law,
in such federal court. The Guarantor 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 Guaranty or any other Transaction Document shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty or any other Transaction Document in the courts of any
jurisdiction.
(c) The Guarantor hereby irrevocably appoints and empowers CT
Corporation System, at its offices located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ as its authorized agent (the "Process Agent") to accept and
acknowledge for and on its behalf and on behalf of its property service of any
and all legal process, summons, notices and documents which may be served in any
such suit, action or proceedings in any New York State court or United States
federal court sitting in the State of New York in the Borough of Manhattan and
any appellate court from any thereof, which service may be made on such
designee, appointee and agent in accordance with legal procedures prescribed for
such courts. The Guarantor will take any and all action necessary to continue
such designation in full force and effect and to advise the Trustee of any
change of address of such Process Agent; should such Process Agent become
unavailable for this purpose for any reason, the Guarantor will promptly and
irrevocably designate a new Process Agent within New York, New York, which will
agree to act as such, with the powers and for the purposes specified in this
subsection (c). The Guarantor irrevocably consents and agrees to the service and
any and all legal process, summons, notices and documents out of any of the
aforesaid courts in any such action, suit or proceeding by hand delivery, to it
at its address set forth in Section 14.3 or to any other address of which it
shall have given notice pursuant to Section 12 or to its Process Agent. Service
upon the Guarantor or the Process Agent as provided for herein will, to the
fullest extent permitted by law, constitute valid and effective personal service
upon it and the failure of the Process Agent to give any notice of such service
to the Guarantor shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
(d) The Guarantor 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 Guaranty or any of the other Transaction
Documents to which it is or is to be a party in any New York State or federal
court. The Guarantor hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court.
(e) THE GUARANTOR HEREBY 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
27
ANY OF THE TRANSACTION DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY NOTEHOLDER
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
(f) This Guaranty and any other documents delivered pursuant hereto,
and any actions taken hereunder, constitute commercial acts by the Guarantor.
The Guarantor irrevocably and unconditionally and to the fullest extent
permitted by law, waives, and agrees not to plead or claim, any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) for itself of any of its property, assets or revenues wherever
located with respect to its obligations, liabilities or any other matter under
or arising out of or in connection with this Guaranty or any document delivered
pursuant hereto, in each case for the benefit of each assigns, it being intended
that the foregoing waiver and agreement will be effective , irrevocable and not
subject to withdrawal in any and all jurisdiction, and, without limiting the
generality of the foregoing, agrees that the waivers set forth in this
subsection (f) shall have the fullest scope permitted under the United States
Foreign Sovereign Immunities Act of 1976 and are intended to be irrevocable for
the purposes of such act.
SECTION 19. EXECUTION IN COUNTERPARTS. This Guaranty and each
amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties thereto 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 Guaranty by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty.
SECTION 20. PLEDGE OF INTEREST IN ACCOUNTS. The Guarantor hereby
pledges to the Trustee (for the benefit of the Noteholders), which such pledge,
for purposes of Brazilian law, is made pursuant to article 768 ET SEQ. of the
Brazilian Civil Code, all of its interest (if any) in (i) the Insurance Policy,
(ii) the Letter of Credit, (iii) the Payment Account, (iv) the Reserve Account,
(v) all Permitted Investments obtained with proceeds of the Reserve Account or
the Payment Account, (vi) all monies or funds from time to time on deposit in
the Reserve Account or the Payment Account, and (vii) all proceeds of any of the
foregoing. The Guarantor agrees to take all such action as is necessary or as
the Trustee may require, including delivering Opinions of Counsel in form and
substance acceptable to the Trustee, as to the grant and perfection of the
foregoing security interests
SECTION 21. ENTIRE AGREEMENT. This Guaranty, together with the
Indenture, the Notes, the Insurance Policy, the Registration Rights Agreement
and the Insurance Side Agreement, sets forth the entire agreement of the parties
hereto with respect to the subject matter hereof.
28
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
ACKNOWLEDGED:
THE BANK OF NEW YORK, as Trustee and not
in its individual capacity
By:
--------------------------------
Name:
Title:
WITNESSES:
1.
-----------------------------
Name:
2.
-----------------------------
Name:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss:
COUNTY OF NEW YORK )
On this 19th day of December, 2001 before me, a notary public within and for
said county, personally appeared ______________________, to me personally known
who being duly sworn, did say that they he is a ________________, of The Bank of
New York, a person described in and which executed the foregoing instrument, and
acknowledges said instrument to be the free act and deed of said corporation.
On this 19th day of December, 2001, before me personally came _________________
and ________________ to me personally known, who being by me sworn, did depose
and say that they signed their names to the foregoing instrument as witnesses.
--------------------------------
Notary Public
COMMISSION EXPIRES
[Notarial Seal]
EXHIBIT A
FORM OF NON-PAYMENT NOTICE
[Date]
VIA FACSIMILE
Companhia de Bebidas das Americas-AMBEV
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ - ▇▇▇▇▇ ▇, ▇ ▇▇▇. andar
05804-900 Sao Paulo, Sao Paulo
Brazil
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Martins
Manager of Financial Operations
COMPANHIA BRASILEIRA DE BEBIDAS
Dear Sirs:
Reference is made to that certain Indenture (the "Indenture") dated
December 19, 2001 between Companhia Brasileira de Bebidas ("CBB") and The Bank
of New York, as trustee (the "Trustee"). Reference is also made to that certain
Guaranty (the "Guaranty") dated December 19, 2001 between the Trustee and
Companhia de Bebidas das Americas-AMBEV ("AMBEV") pursuant to which AMBEV has
undertaken to provide the holders of CBB's 10 1/2% Notes due December, 2011 (the
"Notes") with an irrevocable and unconditional guaranty of CBB's obligations
with respect to the Notes. Capitalized terms not defined herein shall have the
meanings set forth in the Guaranty.
By this notice, the undersigned, acting on behalf of the holders of
the Notes, hereby advises you as follows:
1. On [date], CBB was obligated to make a payment of [principal]
[interest] [other amounts under the Indenture] in an amount
equal to U.S.$ __________ in respect of [principal] [interest]
[other amounts due under the Indenture] (the "Overdue Amount").
2. Pursuant to the Guaranty, you are obligated to immediately pay
the Overdue Amount to the Trustee, on behalf of the holders of
the Notes.
3. Pursuant to the Guaranty, you are hereby directed to pay the
Overdue Amount to the Trustee, on behalf of the holders of the
Notes, in respect of your obligations under the Guaranty.
4. You are hereby requested to pay the Overdue Amount to the
Payment Account established under the Indenture (Account No.
______) immediately upon receipt of this notice.
5. AMBEV is requested to acknowledge receipt of this notice by
countersigning in the space provided below and returning a copy
to the same at the address provided in the Guaranty with a copy
by facsimile to the Trustee at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ (Attention:
Global Finance Unit).
THE BANK OF NEW YORK, as
Trustee
By:
---------------------------
Name:
Title:
ACKNOWLEDGED & AGREED
COMPANHIA DE BEBIDAS DAS AMERICAS-AMBEV
By:
---------------------------
Name:
Title:
Date:
2