EXHIBIT 2.5
AGREEMENT REGARDING THE INSURANCE POLICY
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FOR EXPROPRIATION AND CURRENCY INCONVERTIBILITY
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This Agreement Regarding the Insurance Policy for Expropriation and
Currency Inconvertibility, dated as of September 18, 2003 (the "Agreement"),
is entered into by and among (i) The Bank of New York, not in its individual
capacity, but solely in its capacity as trustee under the Indenture (as
defined below) (the "Insured"), (ii) Companhia de Bebidas das Americas (the
"Guarantor"), (iii) Companhia Brasileira de Bebidas (the "Issuer") and (iv)
Steadfast Insurance Company (the "Underwriter"). The Insured, the Guarantor,
the Underwriter and the Issuer are herein referred to collectively as the
"Parties."
RECITALS
A. The Parties contemplate that the Issuer will issue and sell
certain Insured Notes (the "Insured Notes") to a number of institutional
investors (the "Noteholders").
B. In connection with the issuance and sale of the Insured Notes,
the Insured and the Issuer will enter into a trust indenture (the
"Indenture"), dated as of September 18, 2003, providing for the issuance of
the Insured Notes.
C. In order to guaranty the payment of the Insured Notes, the
Guarantor will issue a guaranty (the "Guaranty"), dated as of September 18,
2003, providing for the guaranty by the Foreign Enterprise of the Issuer's
payment obligation under the Indenture.
D. In connection with the execution and delivery of the Indenture,
the Underwriter has issued an Insurance Policy for Expropriation and Currency
Inconvertibility (Policy No. 38-14-578), dated as of September 18, 2003
(which, together with the Declarations thereto, constitutes the "Insurance
Policy"), the beneficiary of which is the Insured, for the benefit of the
Noteholders.
E. The Parties wish to set forth herein certain agreements in
connection with the Insurance Policy.
AGREEMENTS
The Parties, with the intention of being legally bound, agree as
follows:
1. DEFINED TERMS.
Capitalized terms used in this Agreement and not otherwise defined
have the meaning assigned to such terms in the Insurance Policy (as defined
below).
2. REPRESENTATIONS, WARRANTIES AND/OR COVENANTS BY THE GUARANTOR AND THE
ISSUER.
(a) The Guarantor represents, warrants and/or covenants that:
(1) all written information that the Guarantor has
provided to the Insured in connection with the Application for
Insurance is true and correct as of the date on which it was
delivered to the Insured and that no material information
related to such Application for Insurance has been or will be
withheld;
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(2) it has or will obtain all such valid licenses and
permits as required by law in order for it to enter into and
perform its obligations under the Guaranty and will make all
applications as required by law to extend, renew or modify such
licenses to comply with any new requirement promulgated during
the Policy Period;
(3) it will, after consulting with the Insurer, (i) take
all reasonable steps to avoid or minimize any Loss (other than
any Loss where Compensation is excluded or excludable under the
terms of Article V of the Insurance Policy); (ii) cooperate
fully with the Underwriter in the investigation of any Claim,
the resolution of any potential Claim situation and the pursuit
of any Claim salvage; and (iii) not enter into any agreement
concerning a Loss or potential Loss without the Underwriter's
prior written consent. In addition, the Guarantor will (i)
pursue all reasonable diplomatic, legal, administrative,
judicial and other legal means which may be reasonably
available to minimize or recover any Loss, and (ii) preserve
any legal, judicial and administrative remedies applicable to
any Claim and furnish reasonable assistance in maintaining any
rights or property transferred to the Underwriter; and
(4) all information to be provided by the Guarantor
(including any information provided in any statements, reports,
or applications), either directly or through the Insured, in
connection with any Claim or potential Claim under the
Insurance Policy will, to the Guarantor's knowledge, be true
and correct in all material respects and the Guarantor shall
not knowingly conceal any material fact, including, in
connection with any such Claim or potential Claim.
(b) The Issuer represents, warrants and/or covenants that:
(1) all written information that the Issuer has provided
to the Insured in connection with the Application for Insurance
is true and correct as of the date on which it was delivered to
the Insured and that no material information related to such
Application for Insurance has been or will be withheld;
(2) it has or will obtain all such valid licenses and
permits as required by law in order for it to enter into and
perform its obligations under the Indenture and will make all
applications as required by law to extend, renew or modify such
licenses to comply with any new requirement promulgated during
the Policy Period;
(3) it will, after consulting with the Insurer, (i) take
all reasonable steps to avoid or minimize any Loss (other than
any Loss where Compensation is excluded or excludable under the
terms of Article V of the Insurance Policy); (ii) cooperate
fully with the Underwriter in the investigation of any Claim,
the resolution of any potential Claim situation and the pursuit
of any Claim salvage; and (iii) not enter into any agreement
concerning a Loss or potential Loss without the Underwriter's
prior written consent. In addition, the Issuer will (i) pursue
all reasonable diplomatic, legal, administrative, judicial and
other legal means which may be reasonably available to minimize
or recover any Loss, and (ii) preserve any legal, judicial and
administrative remedies applicable to any Claim and furnish
reasonable assistance in maintaining any rights or property
transferred to the Underwriter; and
(4) all information to be provided by the Issuer
(including any information provided in any statements, reports,
or applications), either directly or through the Insured, in
connection with any Claim or potential Claim under the
Insurance Policy will, to the
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Issuer's knowledge, be true and correct in all material respects and
the Issuer shall not knowingly conceal any material fact, in
connection with any such Claim or potential Claim.
(c) Each of the Parties hereby acknowledge that in the case of any
material breaches or misrepresentations of either the Guarantor, in
the case of (a) above, or the Issuer, in the case of (b) above, the
Underwriter may void the Insurance Policy, retain the premium paid
therefor and refuse to compensate the Insured for any Loss.
3. DELEGATION OF INSURED'S DUTIES AND OBLIGATIONS.
The Insured hereby delegates to each of the Issuer and the Guarantor
and each of the Issuer and the Guarantor hereby accepts all duties and
obligations of the Insured under the Insurance Policy (the "Delegated
Obligations"), excluding however, any obligation (i) to apply for the
Insurance Policy; (ii) related to the submission of a Claim pursuant to
Section 7.1 (a) of the Insurance Policy; (iii) not to disclose the details of
the Insurance Policy, as provided for in Section 8.7 of the Insurance Policy;
(iv) not to cause an exclusion under Article V of the Insurance Policy,
insofar as such exclusion would result from an act or omission by the Insured;
(v) related to limitations on the assignment, amendment or waiver of the
Insurance Policy or any provision thereunder, as provided for in Sections 8.2
and 8.4 of the Insurance Policy; and (vi) to maintain and allow the
examination of any records related to the Insurance Policy, as provided for in
Section 8.9 of the Insurance Policy. The Insured agrees not to take any
action, or omit to take any action, that might result in the cancellation of
the Insurance Policy without the express written approval of the Issuer and
the Guarantor. In the event that the Insured takes any action, or omits to
take any action, that might result in the cancellation of the Insurance
Policy, the Insured agrees to undertake to replace the Insurer and the
Insurance Policy with another policy providing equal benefits. The Insured
shall bear the additional fees and expenses associated with this replacement.
The Underwriter hereby agrees to accept performance by each of the
Issuer and the Guarantor of the duties and obligations of the Insured under
the Insurance Policy as provided for herein. The Underwriter hereby
acknowledges that the information contained in the Application for Insurance
has been provided to the Insured by each of the Issuer and the Guarantor.
4. ACCEPTANCE OF TERMS AND CONDITIONS OF THE INSURANCE POLICY.
The Parties hereby acknowledge that the Insurance Policy has certain
terms and conditions that refer to the Guarantor and the Issuer and the
compliance by the Guarantor and the Issuer with certain terms and conditions
of the Insurance Policy. The Guarantor and the Issuer hereby independently
agree to perform and comply with all such terms and conditions in the
Insurance Policy that call for or require any such compliance or performance
by the Guarantor and the Issuer. The Parties hereby acknowledge and agree that
the failure to comply or perform any such terms and conditions of the
Insurance Policy may result in, among other consequences, the breach of this
Agreement and the cancellation of the Insurance Policy or an exclusion of a
Claim thereunder.
The Guarantor and the Issuer hereby agree to and accept all the
terms and conditions of the Insurance Policy, including but not limited to all
duties and obligations which have been expressly referred to as duties and
obligations on the Guarantor and the Issuer thereunder, which duties and
obligations it hereby agrees to perform.
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5. ASSIGNMENT, SUBROGATION AND PAYMENT.
(a) Contemporaneous with any Compensation payment under the
Insurance Policy, in addition to any assignments required under Section 7.4 of
the Insurance Policy and subject to the limitation that any such assignment by
the Insured shall not be in an amount greater than the amount of Compensation
payable by the Underwriter, the Guarantor and the Issuer shall assign to the
Underwriter, and the Underwriter shall be subrogated to, all of the Issuer's
and the Guarantor's rights under the Transaction Documents in respect of the
Loss for which the Compensation is to be paid and all of the Issuer's and the
Guarantor's rights of recovery against any person or organization in respect
of the Loss. The above assignment and subrogation shall be made in proportion
to the amount of Loss for which Compensation is to be paid. All such
assignments shall be free and clear of all claims, defenses, counterclaims,
rights of setoff and other encumbrances, except for those defenses relating to
the Political Risk Event. Notwithstanding any payments made to the Noteholders
from the Reserve Account in connection with an Unfunded Insured Payment, the
Guarantor and/or the Issuer shall not be released from its obligation to make
Insured Payments (or any part thereof) that are the subject of a Claim. The
Guarantor and the Issuer shall execute and deliver all instruments and
documents and do whatever is necessary to secure such rights for the
Underwriter. The Guarantor and the Issuer shall do nothing to materially
prejudice the Underwriter's rights.
(b) In connection with a Claim under Currency Inconvertibility, as a
condition for any Compensation payment, in addition to the assignments
required in 5(a) above, but only to the extent that the Insurer has not
otherwise taken assignments of the right to receive funds in accordance with
the terms of Section 5(a) or has otherwise received funds in respect of any
Compensation paid, the Guarantor and/or the Issuer shall, if required by the
Underwriter, assign and deliver to the Underwriter, by draft, subject to
collection, or, at the Underwriter's option, in cash, the inconvertible Local
Currency (the amount of which shall be determined by reference to the
Reference Rate of Exchange on the Date of Loss) or nontransferable Policy
Currency that is the subject of the Claim. If the Guarantor and/or the Issuer
is unable legally to deliver such currency to the Underwriter, then, in
addition to the assignment requirements of Section 5(a) above, the Guarantor
and/or the Issuer shall assign to the Underwriter right, title and interest in
such currency. The Insured, the Guarantor, or the Issuer shall not be required
to assign to the Underwriter an amount of Local Currency or Policy Currency
greater than the amount of Compensation payable by the Underwriter.
6. INDEMNIFICATIONS.
The Guarantor and the Issuer agree to indemnify and hold harmless
the Noteholders and the Insured and any of its directors, officers, agents or
employees (each such indemnified person, an "Indemnified Party") from and
against any and all liabilities, obligations, losses, damages, penalties,
judgments, costs, expenses or disbursements of any kind whatsoever that may be
imposed on or incurred by, or asserted against, such Indemnified Party in any
way relating to or arising out of (i) any action taken or omitted to be taken
by such Indemnified Party under this Agreement or the Insurance Policy
(including, without limitation, any action taken or omitted to be taken before
the date hereof by such Indemnified Party in preparation for acting
thereunder), or (ii) any action taken or omitted to be taken by the Guarantor
and the Issuer under this Agreement or the Insurance Policy, provided that the
Guarantor and the Issuer shall not be liable for any portion of any such
amount resulting from (i) the gross negligence or willful misconduct of such
Indemnified Party, or (ii) an exclusion by the Underwriter under Article V of
the Insurance Policy which is caused by the Indemnified Party. This section
shall survive the termination of the Insurance Policy and this Agreement or
the resignation or removal of the Insured.
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7. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire agreement among the Parties
with respect to the matters contemplated herein and supersedes all prior oral
and written agreements, memoranda, understandings and undertakings between the
Parties relating to the subject matter of this Agreement. This Agreement shall
not alter the terms of the Insurance Policy, and to the extent that provisions
of this Agreement are in conflict or inconsistent with the provisions of the
Insurance Policy, the provisions of the Insurance Policy shall govern. This
Agreement or any provision hereof may not be modified, amended, altered or
supplemented except by a written instrument executed and delivered by each of
the Parties.
8. SEVERABILITY.
If any provision of this Agreement shall be declared illegal,
invalid or unenforceable in any jurisdiction, then such provision shall be
deemed to be severable from this Agreement (to the extent permitted by law),
and in any event such illegality, invalidity or unenforceability shall not
affect the remainder hereof.
9. NOTICES.
All communications and notices to be given hereunder shall be in
English and shall be made in writing sent by courier or delivered by hand or
facsimile with receipt acknowledged. Such communications and notices shall be
sent to the addresses and to the attention of the persons specified below, or
to such other address or to the attention of such other person as any of the
Parties shall notify to the other Party or Parties, as the case may be.
If to the Insured:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Finance Unit
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Guarantor:
Companhia de Bebidas das Americas - AMBEV
Rua Xx. Xxxxxx Xxxx xx Xxxxxx, 1017,
4(degree) andar
04530-001 Sao Paulo, S.P.
Brazil
Telephone: (00 00) 0000-0000
Facsimile: (00 00) 0000-0000
Attention: Xxxxxx Xxxxxx Xxxxx
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If to the Issuer:
Companhia Brasileira de Bebidas
Rua Xx. Xxxxxx Xxxx xx Xxxxxx, 1017,
4o andar
04530-001 Sao Paulo, S.P.
Brazil
Telephone: (00 00) 0000-0000
Facsimile: (00 00) 0000-0000
Attention: Xxxxxx Xxxxxx Xxxxx
If to the Underwriter:
Steadfast Insurance Company
c/o Zurich Emerging Markets Solutions
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
Copies of all notices given hereunder shall be delivered by the
Guarantor, immediately following such delivery or receipt by the Guarantor, to
Xxxxx'x Investor Services, Standard & Poor's, and Fitch at their respective
addresses below:
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Latin American ABS Monitoring
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Latin American Structured Finance
Fitch, Inc.
00 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Latin American Structure Surveillance
All notices or other communications given hereunder shall be deemed
to be effective when actually received. All communications and notices
relating to the Guarantor's rights and obligations under the Insurance Policy,
including but not limited to the Delegated Obligations, shall be given to the
Guarantor as specified in this Section 9. In addition, the Underwriter shall
provide copies to the Guarantor of all communications and notices sent to the
Insured under the Insurance Policy, when such communications and notices are
made.
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10. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11. SURVIVAL RIGHTS.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective legal representatives, successors, transferees
and assigns.
12. CHOICE OF LAW.
Any issue relating to the construction, validity or performance of
this Agreement shall be governed by, read and construed in accordance with
the laws of the State of New York, in the United States of America.
13. DISPUTES AND ARBITRATION.
(a) Any dispute, controversy or claim arising out of, relating to,
or in connection with this Agreement shall be finally settled by
arbitration. The arbitration shall be conducted in accordance with the
International Rules of the American Arbitration Association in effect at
the time of the arbitration. The seat of the arbitration shall be New
York, New York, United States of America, and shall be conducted in
English.
(b) The arbitration shall be conducted by three arbitrators. The
claimant initiating the arbitration shall appoint an arbitrator in its
initial request for arbitration. The respondent shall appoint an
arbitrator and so notify the claimant in writing within 45 days of its
receipt of the request for arbitration. The first two arbitrators
appointed in accordance with this provision shall appoint a third
arbitrator within 45 days after the respondent has notified the claimant
of the appointment of its arbitrator. The third arbitrator shall serve as
chairperson of the arbitration.
(c) The arbitral award shall be in writing, state the reasons for
the award, and be final and binding on the Parties. Judgment upon the
award may be entered by any court having jurisdiction over the relevant
party or asset.
14. MODIFICATIONS TO TRANSACTION DOCUMENTS
The Insured, the Issuer and the Guarantor shall not materially
modify the Transaction Documents (including, but not limited to, modifying the
repayment terms of the Insured Notes), without the prior written consent of
the Underwriter (which consent shall not be withheld unreasonably), except
such modifications and amendments which (i) do not change materially the
Underwriter's rights and obligations, (ii) do not change materially any rights
and obligations to which the Underwriter may be subrogated to in the event of
a Claim, or (iii) do not change materially the risk to which the Insured is
exposed and that are covered under the Insurance Policy.
15. CONCERNING THE INSURED
(a) This Agreement is entered into by the Insured, acting not
individually or personally, but solely as Trustee under the Indenture, in
the exercise of the powers and authority conferred on and vested in the
Trustee under the Indenture.
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(b) The undertakings and agreements herein made on the part of the
Insured are made and intended not as personal undertakings and agreements
by the Insured, but are made and intended for the purpose of binding only
the property held in trust pursuant to the Indenture.
(c) Nothing herein contained shall be construed as creating any
liability on the Insured, individually or personally, to perform any
covenant either expressed or implied herein, all such liability, if any,
being expressly waived by the Parties and by any person claiming by, or
through, or under such Party.
(d) Under no circumstances shall the Insured be personally liable to
the Underwriter for the payment of any indebtedness or expenses of the
Issuer or the Guarantor or be liable to the Underwriter for the breach or
failure of any obligation or covenant made or undertaken by the Insured
hereunder.
16. EXECUTION IN COUNTERPARTS
This Agreement 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 Agreement by telefax shall be effective as delivery of an
original executed counterpart of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the Parties as of the date first
above written.
THE BANK OF NEW YORK, not in its
individual capacity, but solely as
indenture trustee
By:
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Name:
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Title:
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COMPANHIA DE BEBIDAS DAS AMERICAS -
AMBEV
By:
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Name:
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Title:
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By:
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Name:
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Title:
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COMPANHIA BRASILEIRA DE BEBIDAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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STEADFAST INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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WITNESSES:
1. /s/ Witness
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Name:
2. /s/ Witness
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Name:
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the Parties as of the date first
above written.
THE BANK OF NEW YORK, not in its
individual capacity, but solely as
indenture trustee
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Vice President
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COMPANHIA DE BEBIDAS DAS AMERICAS
- AMBEV
By:
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Name:
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Title:
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By:
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Name:
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Title:
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COMPANHIA BRASILEIRA DE BEBIDAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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STEADFAST INSURANCE COMPANY
By:
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Name:
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Title:
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WITNESSES:
1.
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Name:
2.
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Name:
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the Parties as of the date first
above written.
THE BANK OF NEW YORK, not in its
individual capacity, but solely as
indenture trustee
By:
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Name:
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Title:
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COMPANHIA DE BEBIDAS DAS AMERICAS
- AMBEV
By: /s/ Xxxx Xxxxxx Xxxxxxxx Xxxxx Xxxxx
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Name: Xxxx Xxxxxx Xxxxxxxx Xxxxx Xxxxx
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Title: Officer
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By: /s/ Xxxxxx Xxxxx xx Xxxxx
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Name: Xxxxxx Xxxxx xx Xxxxx
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Title: Officer
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COMPANHIA BRASILEIRA DE BEBIDAS
By: /s/ Xxxx Xxxxxx Xxxxxxxx Xxxxx Xxxxx
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Name: Xxxx Xxxxxx Xxxxxxxx Xxxxx Xxxxx
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Title: Officer
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By: /s/ Xxxxxx Xxxxx xx Xxxxx
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Name: Xxxxxx Xxxxx xx Xxxxx
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Title: Officer
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STEADFAST INSURANCE COMPANY
By:
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Name:
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Title:
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WITNESSES:
1. /s/ Witness
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Name:
2. /s/ Witness
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Name:
Washington )
) ss:
District of Columbia )
On this 17 day of September 2003 before me, a notary public within and
for said county, personally appeared Xxxxxx X. Xxxxxxx, to me personally
known who being duly sworn, did say that he is a Vice-President, of
Steadfast Insurance Company, one of the persons described in and which
executed the foregoing instrument, and acknowledges said instrument to be
the free act and deed of said corporation.
On this 17 day of September 2003, before me personally came Xxx Xxxx and
Xxxxxx Xxxxxx 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 - April 14, 0000
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On this 18th day of September, 2003 before me, a notary public within and
for said county, personally appeared Xxxxxx Xxxxxxx, to me personally
known who being duly sworn, did say that he is a Vice President, 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.
/s/ Xxxxx Xx
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Notary Public
COMMISSION EXPIRES
[Notarial Seal]