EXHIBIT 2.3
GUARANTY
Dated as of September 18, 2003
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..................................................2
SECTION 2. Guaranty....................................................10
SECTION 3. Guaranty Absolute...........................................10
SECTION 4. Suspension of Principal Payments............................12
SECTION 5. Independent Obligation......................................12
SECTION 6. Waivers and Acknowledgments.................................13
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...................................................17
SECTION 11. Amendments, etc.............................................24
SECTION 12. Notices, Etc................................................24
SECTION 13. No Waiver; Remedies.........................................24
SECTION 14. Indemnification.............................................25
SECTION 15. Subordination...............................................25
SECTION 16. Continuing Agreement; Assignment of Rights Under the
Indenture and the Notes.....................................26
SECTION 17. Currency Rate Indemnity.....................................26
SECTION 18. Governing Law; Jurisdiction; Waiver of Immunity, Etc........27
SECTION 19. Execution in Counterparts...................................29
SECTION 20. Pledge of Interest in Accounts..............................29
SECTION 21. Entire Agreement............................................29
GUARANTY
GUARANTY (this "Guaranty"), dated as of September 18, 2003, 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 September 18,
2003 (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 8.75% Notes due 2013 under the Indenture (the "Initial
Notes");
WHEREAS, pursuant to the Registration Rights Agreement (the
"Registration Rights Agreement"), dated September 18, 2003 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 Noteholders.
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 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 (sociedade anonima) or limited liability company
(sociedade limitada), such corporation's conselho de administracao and
diretoria, or such limited liability company's administrador(es).
"Brazilian GAAP" means the generally accepted accounting practices
adopted 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(c).
"Closing Date" means September 18, 2003.
"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
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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).
"Electronic Registration" has the meaning specified in Section 9(c).
"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 Initial 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" means the Offering Memorandum dated September 11,
2003 prepared by the Issuer and the Guarantor in connection with the issuance
and sale of the Initial Notes.
"Fitch" means Fitch, Inc.
"Governmental Approval" means any authorization, consent, approval,
order, license, franchise, ruling, permit, certification, waiver, exemption,
filing or registration by or with any Governmental Authority (including,
without limitation, environmental approvals, zoning variances, special
exceptions and non-conforming uses) relating to the execution, delivery or
performance of any Transaction Document.
"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.
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"Guarantor" has the meaning specified in the preamble of this
Guaranty.
"Guarantor 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.
"Guarantor 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
Guarantor 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, Guarantor
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.
"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" means "Currency Inconvertibility" as such
term is defined 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 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
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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 (vi) 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 Citigroup Global Markets Inc. and X.X.
Xxxxxx Securities Inc., acting as such pursuant to the Purchase Agreement.
"Insurance Policy" means the Insurance Policy for Expropriation and
Currency Inconvertibility, dated as of September 18, 2003, between the Insurer
and the Trustee, as amended or modified from time to time in accordance with
the terms thereof.
"Insurance Policy Application" means the application for the
Insurance Policy submitted by the Trustee to the Insurer on September 18,
2003.
"Insurance Side Agreement" means the Agreement Regarding the
Insurance Policy for Expropriation and Currency Inconvertibility dated as of
September 18, 2003, 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.
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"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 The Bank of New York (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 direct or indirect Subsidiary of the
Guarantor with total assets of more than U.S.$200,000,000 (or its equivalent
in another currency) as set forth on the consolidated financial statements of
the Guarantor as of the end of the most recent fiscal year.
"Moody's" means Xxxxx'x 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.
"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.
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"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.
"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
September 11, 2003, among the Guarantor, the Issuer and the Initial
Purchasers.
"Registration Rights Agreement" has the meaning specified in the
preamble to this Guaranty.
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"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.
"Reserve Account" has the meaning specified in the Indenture.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"S&P" means Standard & Poor's.
"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 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)(i)(A).
"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 Indenture, the
Notes, the Insurance Policy, this Guaranty, the Registration Rights Agreement,
the Insurance Side Agreement, the Insurance Policy Application, each Letter of
Credit, the application for listing of the Notes with the Luxembourg Stock
Exchange and the DTC Letter of Representations completed by the Issuer and the
Trustee in connection with the Notes.
"Trustee" has the meaning specified in the preamble of this
Guaranty.
"United States" or "U.S." 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
8
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, Brazilian GAAP;
(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.
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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 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 of 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
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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
Indenture and the Notes as a result of 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
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(xi) any Inconvertibility Event or Expropriation Event, whether or
not such event is known to the Guarantor or the Trustee.
(b) 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 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
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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.
(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 366, 821, 827, 830, 835, 837,
838 and 839 of the Brazilian Civil 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
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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 Guarantor 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 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 or withheld 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) Tax Indemnification. 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 of a Taxing Jurisdiction
(other than any such Taxes with respect to Excluded Additional Amounts for
which the Noteholder would not have been entitled to receive Additional
Amounts pursuant to any of the conditions described in Section 2.16(a) of
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the Indenture) so 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.
(e) Foreign Law. If the Trustees or a Noteholder is entitled to an
exemption from or reduction of 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 (e) 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.
(f) All references in this Guaranty to principal, interest, and
other amounts payable hereunder shall be deemed to include references to any
Additional Amounts payable under this Section 8 with respect to such
principal, interest, or other amounts. The foregoing obligations shall survive
any termination, defeasance or discharge of the Notes and the Indenture.
(g) If the Guarantor shall at any time be required to pay Additional
Amounts to Noteholders pursuant to the terms of this Guaranty, the Guarantor
will use its reasonable endeavors to obtain an exemption from the payment of
(or otherwise avoid the obligation to pay) the Tax which has resulted in the
requirement that it pay such Additional Amounts.
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
15
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 this 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 (except for the registration with the
Central Bank of the schedule of payments (esquema de pagamentos) relating to
the Notes to permit remittance of U.S. Dollars from Brazil for payment on each
due date of principal and interest in respect of the Notes through the
Brazilian commercial exchange rate market, which shall be obtained after the
Closing Date) 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 this Guaranty or
any other Transaction Document 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 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,
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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 of the other Transaction Documents 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 the like 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 to conduct properly 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 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 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 Governmental 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 each of the other Transaction Documents to which it is
a party (including, without limitation, any authorization required to obtain
and transfer U.S. dollars or any other currency, which at that time is legal
tender in the United States, out of Brazil, in connection with
17
this Guaranty) or the validity or enforceability of any thereof, except where
the failure to do so would not 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 and its Subsidiaries reasonably believe 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 locations 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 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
18
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, however, that if
an Inconvertibility Event or an Expropriation Event has occurred in the five
Business Days preceding a Payment Date that limits or restricts the ability of
the Guarantor to convert Reais into U.S. dollars or transfer U.S. dollars
outside of Brazil in satisfaction of its obligations under the Transaction
Documents, the Guarantor shall give notice of such event promptly and in any
event not later than the Business Day prior to such Payment Date; and 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 net sales 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 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
19
(E) the Guarantor has delivered notice of such transaction to
Xxxxx'x, 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 as 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 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 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
that 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 Guarantor
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;
20
(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, 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 Guarantor 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);
(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 Guarantor 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
21
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
Guarantor Sale and Lease-Back Transaction with respect to any Guarantor
Specified Property, unless either:
(i) the Guarantor or that Subsidiary would be entitled pursuant to
the provisions of Section 10(o) above (including any exception to the
restrictions set forth therein) to issue, assume or guarantee
Indebtedness secured by a Lien on such Guarantor 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 Guarantor
Specified Property so leased, to the retirement, within 12 months after
the effective date of the Guarantor Sale and Lease-Back Transaction, of
any of the Guarantor's Indebtedness ranking at least pari passu with this
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 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
22
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,
satisfy any condition or take any action (including the obtaining or effecting
of any necessary consent, approval, authorization, exemption, filing, license,
order, recording or registration) at any time required, as may be necessary or
as the Trustee may reasonably request, in accordance with applicable Laws 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 Transaction Documents to which it is
a party (ii) ensure that the Guarantor's obligations under this Guaranty and
each of the other Transaction Documents to which it is a party are legally
binding and enforceable, (iii) make this Guaranty and each of the other
Transaction Documents to which it is a party 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 each of the other Transaction Documents, and (vi) assist the
Trustee in the Trustee's performance of its obligations under this Guaranty
and each of 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
23
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 Companhia de Bebidas das Americas-AMBEV, Edificio Corporate Park,
Xxx Xx. Xxxxxx Xxxx xx Xxxxxx, 0000, 4(degree) andar, 00000-000, Xxx Xxxxx,
XX, Xxxxxx, Attention: Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxx Xxxxx Xxxx (telefax:
(00-00) 0000-0000 and (00-00) 0000-0000), if to the Trustee, at The Bank of
New York, 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000, Telephone: (212)
000-0000, Telecopier: (000) 000-0000, 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 Xxxxx'x Investors Service, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Xxxxx Xxxxxx, Latin American ABS
Monitoring, to S&P at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxx, Latin American Structured Finance and to Fitch at 00 X. Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Latin American Structured
Surveillance. All such notices and other communications shall, when telecopied
be effective when transmitted. Delivery by telecopier of 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 Xxxxxxxx Xxxxxx, 0X Xxxxxxxxx, X-0000 Xxxxxxxxxxxxx, G.D.,
Luxembourg, 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.
24
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 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
25
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 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
26
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 at 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.
(b) The Guarantor hereby irrevocably and unconditionally submits to
the nonexclusive jurisdiction of any court of the State of New York or any
United States Federal court sitting in Xxx Xxxx xx Xxx Xxxx, Xxx Xxxx, Xxxxxx
Xxxxxx, 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 court of the State of New
York or, to the extent permitted by law, in such Federal court. The Guarantor
irrevocably waives, to the fullest extent permitted by law, any objection to
any suit, action, or proceeding that may be brought in connection with this
Guaranty in such courts whether on the grounds of venue, residence or domicile
or on the ground that any such suit, action or proceeding has been brought in
an inconvenient forum. The Guarantor agrees that a final judgment in any such
suit, 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
27
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 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 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 Xxx Xxxx Xxxxx xxxxx xx Xxxxxx
Xxxxxx Federal court sitting in Xxx Xxxx xx Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx
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 12 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 HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OF THE
TRANSACTION DOCUMENTS OR THE ACTIONS OF ANY NOTEHOLDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
(e) 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.
28
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 1431 et
seq. and 1451 et seq. of the Brazilian Civil Code, and hereby grants to the
Trustee (for the benefit of the Noteholders) a security interest in all of its
rights, title and interest (if any) in (i) the Insurance Policy, (ii) each
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 received,
receivable or 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 reasonably require,
including (i) delivering Opinions of Counsel in form and substance acceptable
to the Trustee, as to the grant and perfection of the foregoing security
interests, and (ii) providing for the registration of this Guaranty with the
competent Brazilian Registry of Deeds and Documents (Registro de Titulos e
Documentos).
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.
29
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:
00
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 ______________________, to me
personally known who being duly sworn, did say that 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 18th day of September, 2003, 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
Edificio Corporate Park
Xxx Xx. Xxxxxx Xxxx xx Xxxxxx 0000, 4(degree) andar
00000-000, Xxx Xxxxx, XX, Xxxxxx
Attention: Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxx Xxxxx Xxxx
Companhia Brasileira de Bebidas
-------------------------------
Dear Sirs:
Reference is made to that certain Indenture (the "Indenture") dated
September 18, 2003 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 September 18, 2003 between the Trustee
and Companhia de Bebidas das Americas-AMBEV ("AMBEV") pursuant to which AMBEV
has undertaken to provide the holders of CBB's 8.75% Notes due 2013 (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 The Bank of New York, 000
Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopier:
(000) 000-0000 (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
