CONFIRMING TERM BY THE PARTIES OF THE
CLOSING DATE
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By this Confirming Term ("Term"), and according to clause 2.3 of the
Contract, the parties COMERCIO E INDUSTRIAS BRASILEIRAS COINBRA S.A. ("Coinbra")
and FHS EASTCO DO BRASIL LTDA. ("Eastco") declare that the Preceding Conditions
foreseen in Claus 2.2 of the Lease and Other Agreements Contract, signed by
Xxxxxxx and EastCo on November 21st, 2002 (The "Contract") were duly met,
according to the following:
1. Coinbra declares that:
a) Has approved the content of the Attachments included in the
Contract on this date:
b) Has established a branch within the same industrial business
indicated in Clause 1.1 of the Contract signed with EastCo and
obtained the respective registers, licenses, operation
authorizations, and other legal requirements necessary for its
regular operation;
c) Has accepted the terms of the inspection report certifying the
conditions of Asset conservation and maintenance
d) Has terminated the Industrialization Contract signed with
EastCo.
2. EastCo , by its turn, declares that:
a) Has filed and presented to Coinbra the voucher of payment of
the 2nd parcel of Creditor Arrangement, made within legal
term;
b) Has obtained the formal consent of those creditors, which
contracts were requiring such consent as a condition for its
accomplishment, according to Attachment 2.2.1(b) of the
Contract;
c) Has reached an agreement with the creditors listed on
Attachment 2.2.(c) or made them to waive their credits;
d) Has approved the content of the Attachments included in this
Contract.
e) Has changed the address of its branch within the industrial
business indicated in Clause 1.1 to another locality;
f) Has accepted the terms of the inspection report certifying the
conditions of Asset conservation and maintenance;
g) Has agreed with the conditions of insurance contracted by
Coinbra, which policy is included in the Contract under
Attachment 2.2.2(e);
h) Has terminated the Industrialization Contract signed with
Coinbra;
i) All the statements and warranties given to Coinbra by EastCo
and/or its partners on account of this Contract are true,
correct and in force on this date; and
j) Has dismissed its employees listed in Attachment 1.7 of the
Contract, having paid all the indemnities of dismissal due to
them, as to make feasible the hiring by given to Coinbra of
those employees in whom it was interested.
3. As to the insurance policy mentioned in item 2(g) above, it is
consigned by the Parties that the contracted policy does not include
expressly Eastco as its beneficiary. Nevertheless, the Parties
confirm the terms of Clause 4.4 of the Contract, assuming Coinbra
the compromise to pay to Eastco, within au to 3 (three) days after
the receipt, the indemnity contracted in case of total or partial
casualty with any Asset. Xxxxxxx also assumes the commitment to
renew the insurance referred to, under the approved form, during and
up to the term of validity of the Contract.
4. Considering that the Preceding Conditions foreseen in Clauses 2.2.1
and 2.2.2 were duly accomplished by the Parties, these establish the
date of signature of the present instrument as the Closing Date.
5. Considering the disposed in item 4 above, the Parties declare that:
a) The Assets are being delivered on this date on the same
conditions found at their previous inspection, mentioned in
Clause 1.2 of the Contract, and the inspection report,
included in Attachment 1.2 thereof, is being presented on this
date, certifying the corresponding conservation and
maintenance status;
b) All the Attachments to this Contract are being initialized on
this date, as if they were initialized on the date of Contract
execution, according to the agreed upon by the Parties;
c) On December 20th, 2002 has been signed the 1st Additional Term
to the Contract of Lease and Other Agreements, by means of
which the parties agree that EastCo will dismiss the employees
listed ion Attachment 1.7 of the Contract, even if, on that
occasion, all the condition for the Closing of the Contract
have not been accomplished yet;
d) On this date, there is signed the 2nd Additional Term to the
Contract of Lease and Other Agreements that, among other
provisions, alters the Clause 3.1 thereof, which establishes
the date and form of lease payment due to EastCo by Conibra.
e) The warehouse stock items that, according to the agreed upon
by the Parties, will not stay at Coinbra, must be removed by
EastCo from the industrial setting where they are now, till
February 20th, 2003.
Sao Paulo, January 21st, 2003
COMERCIO E INDUSTRIAS BRASILEIRAS COINBRA S.A.
(Signed) by (Illegible) (Signed) by (Illegible)
Position: Dirtector Position: Director
F.S.H EASTCO DO BRASIL LTDA.
(Signed) by Xxxxxxx Xxxxxx (Signed) by Xxxxxx Xxxxxx
Position: Managing Partner Position: Manager
LEASE AND OTHER AGREEMENTS
CONTRACT
--------------------------------------------------------------------------------
between
--------------------------------------------------------------------------------
COMERCIO E INDUSTRIAS BRASILEIRAS COINBRA S.A.
--------------------------------------------------------------------------------
and
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F.H.S. EastCo FO BRASIL LTDA.
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November 21st, 2002
LEASE AND OTHER AGREEMENTS CONTRACT
This LEASE AND OTHER AGREEMENTS CONTRACT (From now on called the
"Contract") is being celebrated on this November 21st, 2002, by and between,
from one side,
I. COMERCIO E INDUSTRIAS BRASILEIRAS COINBRA S.A., a Business Corporation, with
its headquarters in the City of Sao Paulo, State of Sao Paulo, Brazil, at
Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx, Xx. 0000, 00xx floor, registered at the National
Register of Corporations (CNPJ/MF) under No. 47.067.525/0001 - 08, with its
Articles of Incorporation filed at the Board of Trade of Sao Paulo ("JUCESP")
under No. 94.344, on the session of 09.19.84 and NIRE N. 00.000.000.000, at this
act duly represented according to its Articles of Incorporation (from now on
called "Coinbra"), and
II. F.H.S. Eastco DO BRASIL LTDA., a Limited Liability Company by Quotas, with
headquarters in the City of Sao Paulo, State of Sao Paulo, Brazil, at Xxx
Xxxxxx, Xx. 000, 0xx xxxxx, xxxxx 00, registered at the National Register of
Corporations (CNPJ/MF) under No. 00.633.118/0001-57, with its Articles of
Incorporation filed at the Board of Trade of Sao Paulo ("JUCESP") under NIRE No.
35.213.108.185, on session of 06.02.95, at this act duly represented in
accordance with its Articles of Incorporation (from now on called "Eastco");
And also,
III. F.H.S. Holding B.V., a Corporation established and existing is accordance
with Nederland's laws. With its headquarters in Xxxxxxxxxxx, Xx. 000/XX,
Xxxxxxxxx, Nederland, at this act represented by its attorney, Xx. Xxxxxx
Xxxxxx, Brazilian citizen, married, coffee broker, holder of Identification Card
R.G. 2.592.196-SSP/SP, registered at CPF/MF) under No. 000.000.000-00, resident
and domiciled in the City of Sao Paulo, at Xxx Xxxx Xxxxxx, 0000, 0xx xxxxx,
xxx. 62;
IV. XXXXXXX XXXXXX, Brazilian citizen, married, coffee broker, holder of I.D.
Card R.G. No. 8.586.248, registered at CPF/MF under No. 000.000.000-00,and his
wife resident and domiciled in the City of Sao Paulo, at Xxx Xxxx Xxxxxx, 0000,
0xx xxxxx, xxx. 62;
(F.H.S. Holding B.V. and XXXXXXX XXXXXX as quota-partners of Eastco, from now on
named jointly as "Consenting Interveners").
PREAMBLE
A. Whereas Eastco has as its main activity the industrialization of coffee, xxxx
xxxxxx etc., through its industrial business localized in the County of
Cruzeiro, State of Sao Paulo, at Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxx, 0000,
Downtown, registered at CNPJ under No. 00.633.11.118/0002-38;
B. Whereas Coinbra already is a borrower of coffee industrialization services
rendered by Eastco at the industrial business referred to above, according to
the Industrialization Contract closed between the Parties on April 12th, 2001,
as amended between the Parties on November 1st, 2002 (the "Industrialization
Contract"), and that Coinbra is interested in leasing the assets that constitute
it for industrialization of coffee, mate, barley, among other products of its
property or of third parties;
C. Whereas Eastco is interested in leasing the assets that compose its
industrial business mentioned above, so as to provide a better utilization of
these assets and the consequent generation of values;
D. Whereas the "Consenting Interveners" are quota holders, jointly, of 100% of
representative quotas of Eastco shared capital, and is also interested in
performing with Coinbra the operation involving the totality of Eastco's
operational Assets.
Coinbra and Eastco (from now on called jointly as "Parties"), decide to
celebrate this Contract that will be governed by the following clauses and
conditions:
I. Lease
1.1.- Object of Lease. By means of this Contract, Xxxxxx assumes the obligation
to lease to Coinbra, on the Closing Date (as defined below), in irrevocable
character, and subject to the accomplishment of conditions established in Clause
2.2 below, the assets that compose its industrial business localized in the
county of Cruzeiro, State of Sao Paulo, at Xxxxxxx Xxxxxxxxxxx Xxxxxxx Xxxxxx,
0000, Downtown, registered at CNPJ under No. 00.633.11.118/0002-38 (the
"Assets"), as described in Attachment 1.1 hereto.
1.2.- Eastco assumes the obligation to deliver to Coinbra, on the Closing Date
(as defined below), in using conditions for the purpose established, as they
were on the date of signature hereof. The effective conservation state of the
Assets on the Closing Date will be stated in a Inspection Report to be performed
by a specialized firm, contracted by common agreement between the Parties, which
copy will be initialized by the Parties and will be attached hereto as
Attachment 1.2.
1.3.- The accessory parts, such as warehouse stock, workshop tools, equipment in
general and office equipment, are listed in Attachment 1.3. On the Closing Date,
the Parties will sign a delivery and receiving term of these accessory parts,
confirming or altering the disposed in the referred to Attachment 1.3.
1.3.1.- In case of warehouse stock referred to in Clause above, Eastco may
sell it to Coinbra, according to a common agreement between the Parties as
to its price. If no agreement is reached between the Parties till the
Closing Date as to the price of the warehouse stock, this will stay at
Coinbra, and must be returned to Eastco at the end of the term of this
lease, in the same amount and conditions.
1.4.- Coinbra will open a branch with its title, at the address indicated in
Clause 1.1 above, being from now on authorized to fix announcements, posters or
any other identification signs of Coinbra, observing the applicable legislation.
Coinbra and/or any company from its economic group, are authorized to establish
one or more branches within the property referred to.
1.5.- Coinbra will pass to operate the Assets from the Closing date on (as
defined below). Eastco will be bound by this to perform the necessary
maintenance of the Assets till its transfer to Coinbra.
1.6.- After the Closing Date (as defined below), Xxxxxxx assumes the obligation
to observe and to pay, on the corresponding due dates, the taxes incident on
every Asset during the period of validity of this Contracts, as well as every
rates and public prices related to the consumption of power, water and sewage.
1.7.- On the Closing Date, and after having checked the accomplishment of all
other conditions listed in Clause 2.2 below, Eastco will dismiss all the
employees linked to the industrial business object of this Contract, and must
evidence to Coinbra the payment of all the money due by force of law. It will be
at the discretion of Coinbra to hire any employees that were busy before at the
industrial business of Eastco. For reference purposes, the employees currently
linked to the business referred to are listed in Attachment 1.7.
1.7.1.- Eastco asserts that will be accounting for any labor or social
welfare contingency that may survive after the Closing Date, related with
employees who had worked for Eastco during the period before this
negotiation, releasing Coinbra from any responsibility of that nature,
observing the disposed in Clauses 6.7 and 6.8 below.
II.- THE LEASE VALIDITY
2.1.- This Contract will on force from the date of its signature on, till the
end of the Assets lease, by any of the forms foreseen in this Contract.
2.1.1.- The Assets lease period will begin on the data on which Eastco
will transfer to Coinbra the holding of leased Assets (the "Closing Date")
and will terminate in plenary right 48 (forty-eight) months after that
event. The Closing Date will occur after the accomplishment of the
conditions listed below.
2.2.- Conditions for Closing Date. The Closing Date is conditioned to the
accomplishment of the following conditions:
2.2.1.- Preceding Conditions:
a) presentation, by Xxxxxx, of payment proof of the 2nd parcel of
covenant, made within legal term;
b) obtaining by Xxxxxx of the formal consenting of those
creditors whose contracts require that consent as a condition
for the accomplishment, by Xxxxxx, of this Contract. The
complete list of contracts and creditors if included in
Attachment 2.2.1(b);
c) obtaining the agreements signed or proofs of waivers of the
credits with the creditors listed in Attachment 2.2.1(c);
2.2.2.- Additional Conditions: Since the preceding conditions, listed in
Clause 2.2.1, were met, the Parties assume the obligation to meet the
following conditions:
a) inclusion of the Attachments within this Contract, which
content has been approved and initialized by the Patries.
b) alteration, by deliberation of the corresponding quota holder
partners, of the Eastco branch address in the industrial
business indicated in Clause 1.1 above to other locality, and
the establishment, by Coinbra of a branch of the same
industrial business and the obtaining of the corresponding
registers, licenses, operation authorizations and other legal
requirements necessary for its regular operation;
c) as to the technical inspection report of Assets referred to in
Clause 1.1 above, the Parties (i) must agree on the
contracting of a firm that will prepare the report; (ii) the
effective delivery of the Asset inspection report, certifying
its conservation and maintenance conditions on the delivery
occasion; and (iii) the formal accepting, by the Parties, of
the terms of the inspection report;
d) signing, by the Parties, of the delivery and receiving term of
the goods referred to in Clause 1.3 above, confirming or
changing the disposition in Attachment 1.3; e) agreement
between the Parties as to the conditions of insurance to be
contracted by Coinbra with a validity from the Closing Date
on, which policy will integrate the present Contract as
Attachment 2.2.2(g);
f) accounts settlement and the consequent termination of the
Parties of Industrialization Contract;
g) that all the statements and warranties that Eastco and/or its
partners render to Coinbra on account of this Contract, are
true and correct and are in force on the Closing Date; and
h) since all the conditions listed above are met, that the Eastco
employees listed in Attachment 1.7, as referred to in Clause
1.7 above, are duly dismissed and all the indemnification
amounts have been paid, so as to make feasible the
contracting, by Xxxxxxx, of those employees in whom it is
interested;
2.3.- The Closing Date will be determined by the Parties trough the signature of
the document which draft is included in Attachment 2.3, certifying that all the
Conditions for the Closing Date, listed in Clauses 2.2.1 and 2.2.2 above were
met. No one of the Parties may deny, without justification, to sign the said
document, as all the conditions have been met.
2.3.1 - It is agreed that between the parties that the Closing Date may
not occur at a term over 60 (sixty) days from the date of execution of
this Contract.
2.4.- When the term of this Contract has elapsed, Xxxxxxx assumes the obligation
to restitute to Eastco the possession of the Assets in the same state as it has
received them, according to the inspection report referred to in Clause 1.2
above, except for the natural wear. With the aim to certify the conditions of
the Assets, a new report must be prepared by the firm contracted to perform it,
to be selected among those listed in Attachment 2.4. The said report,
initialized by the Parties and the integrating part of this Contract will bind
the Parties.
2.4.1.- Xxxxxx may not refuse to accept the Assets, if the report of
restitution evidences that these are being returned by Coinbra in
conditions of Clause 2.4.
2.5.- This contract will be extended if, till the end of the lease period,
Coinbra earns credits against Eastco, deriving from this Contract and which were
not paid by Eastco according to Clauses 3.1.1, 3.4 and 6.4.1 below.
2.5.1.- The extension formalization will be accomplished through a
notification from Coinbra to Eastco, establishing the extending, as well
as the amounts involved. The term of extending corresponds to that
necessary for a total compensation of Xxxxxxx's credit against Xxxxxx,
according to the conditions established herein.
2.5.2.- With the purpose of calculation of the term of extending the lease
of the Assets, all the credits collected by Coinbra against Eastco
according to Clauses 3.4 and 6.4.1, within the lease term, must be
calculated and converted in a term of additional lease, considering for
that the amount of lease on the data of the effective occurring of the
contingency.
2.5.3.- The extension term of the Asset lease will correspond to the
double of the term found according to Clause 2.5.2. During the extension
term, Coinbra will pay 50% (fifty percent) of the amount of lease referred
to in Clause 3.1 below, up to the total compensation to Coinbra of the
corresponding credits.
III.- PRICE AND PAYMENT FORM
3.1.- By the present Contract, Coinbra must pay to Eastco, from the Closing Date
on, the monthly amount of R$ 192,000.00 (one hundred and two thousand reais) to
be paid on the first working day of the month following the end of the reference
month. The amount of lease will be adjusted yearly by the accumulated IGP-M
(FGV), as of the date of the signature of this Contract.
3.1.1.- The Parties agree that will be granted to Coinbra the right to
compensate, from the values due to Eastco on account of Clause 3.1, the
eventual credits that Coinbra may come to retain against Eastco, deriving
from the Industrialization Contract.
3.2.- The payments due by Coinbra according to the paragraphs of Clause 3.1
above, will be paid through bank deposit, on the following current account:
o BANCO BRADESCO S.A.
AGENCIA 2904-1
CONTA CORRENTE 1600-4
3.2.1.- If there is any change of this current account referred to in
Clause 3.2, Coinbra must notify Coinbra in writing, within a term of up to
5 (five) days before the effective payment.
3.2.2.- The deposit voucher that should come to be made by Coinbra will
function as the settlement receipt to Coinbra of its obligations.
3.2.3.- Eastco must prove to Coinbra that it is up-to-date with its
obligations with the creditors listed in Attachment 2.2.1(c), within 5
(five) days after the effective payment. If there is no such prove or
payment, Coinbra may, at its discretion, but will not be obliged to,
perform the payment of a part of lease directly to any one of the Eastco
creditors as to not impact this Contract.
3.3.- The lease payment out of terms and conditions foreseen in Clause 3.1 above
will subject Coinbra to a delay fine equivalent to 0,1% (zero point one percent)
per day of delay, incident over the open debt, till the maximum limit of 10%
(ten percent), and interest on arrears of 1% (one percent) per month.
3.4.- The Parties agree, by means of this Contract that (i) any amounts due by
Eastco to Coinbra by force of this Contract, or (ii) the values that Coinbra may
be collected in any form or that is will be obliged to settle, that are
resulting from obligations originally of Eastco's liability, including but not
limited to labor, social welfare or civil obligations, will be indemnified by
Eastco to Coinbra, according to Clauses 2.5 and 2.5.1 above.
IV.- ASSET MAINTENANCE, REFORM AND USE
4.1.- Coinbra will assume the responsibility, from the Closing Date on, by the
preservation, as well as by the preventive or corrective maintenance of the
Assets.
4.2.- Eastco may inspect at any time the Assets and its facilities, performing
the inspections by previously and explicitly authorized agents, by means of
communication with Coinbra, with minimum priority of 5 (five) days, except in
cases of proved emergency, on which there is no need of previous communication.
4.3.- Coinbra will accomplish from the Closing Date on, the necessary
improvements related to the Assets, addressed in Clause 3.1.1 and listed in
Attachment 3.1.1(b).
4.3.1.- By means of joint agreement between the Parties, other
meliorations necessary or convenient and not indicated in Attachment
3.1.1.(b) may be preformed, being the responsibility for the costs
originated from the meliorations negotiated between the Parties.
4.3.2.- If Xxxxxx does not agree with the performance of any melioration
that Coinbra , at its discretion, considers necessary or convenient, it
may perform that melioration on its own account.
4.3.3.- In case of any assumption describer above, Coinbra will have the
right, at the end of lease, to remove any machine, equipment or facility,
of any kind, which cost has been paid by it, since it comes to maintain
the facilities in conditions that are equivalent to those on which they
were received, according to the inspection report referred to in Clause
1.2 above.
4.4.- Coinbra will have to contract insurance for the Assets, from the Closing
Date on, observing the disposition of Clause 2.2(e) above. The value of the
indemnification established on the policy must be agreed upon by the Parties,
having Coinbra as its beneficiary. In case of casualty involving any one of the
Assets, that results in its total or partial loss, the indemnification due to
Eastco will be restricted to that contracted by Coinbra by joint agreement with
Eastco, according to the policy referred to in the same clause, and will be paid
to Eastco and Coinbra will not be responsible for any payment of any additional
amount due to the loss of the Asset.
V. STATEMENTS AND WARRANTIES OF Eastco
Coinbra , jointly and solitarily with the Consenting Interveners, give to
Coinbra the following statements and warranties, which will be considered
automatically renewed on the Closing Date. The statements and warranties
currently provided refer exclusively to Eastco operations, object of this
Contract, especially the Assets. The Attachments, objects of this Clause, must
be updated by Xxxxxx, when this is the case, on the Closing Date.
5.1.- Shareholder condition. Eastco is duly established and exists validly under
Brazilian laws, having the business power to possess its assets and to perform
its activities as they are performed currently. No one of the Consenting
Interveners, Eastco quota holders, has any asset, tangible or intangible, that
may be used in Asset operation. There is no shareholder or quota holder
agreements to which the Consenting Interveners and/or Eastco may be linked and
may hinder the present Contract. A true and legal copy of Xxxxxx's Articles of
Incorporation in force on that date, is attached to hereto as Attachment 5.1.
5.2.- Shareholder Authority. Attachment 5.2 includes a complete list of all the
Eastco quota holders. The Consenting Interveners state hereby that they have
legal right, power and authority to celebrate this Contract. The formalization
of this Contract, as well as transaction conclusion awarded herein, were duly
authorized by all the Eastco necessary acts, and this Contract is a legal, valid
and binding obligation as to Eastco and each one of Consenting Interveners,
feasible against them, according to its terms. There is no process in progress
where there is questioned or put in doubt the right and authority of Consenting
Interveners for performing the operations and transactions object of this
Contract.
5.3.- Restrictions. The execution of this Contract and the conclusion of the
hereby contemplated transactions will not constitute a conflict, or result in
breach or will originate a termination right, or will speed-up its
accomplishment, required by any mandate, authorization of public power body,
license or any other agreement or permission to which the Consenting Interveners
be subject or are part of. There is no action, process or pending investigation
against Eastco or the Consenting Interveners that may legally hinder the
conclusion of any transaction contemplated by this Contract.
5.4.- Existence of Not Declared Liabilities. All the liabilities of Eastco
related to Assets are described in Attachment 5.4 to this Contract.
5.5.- Movable Assets; Operations and Ability; Asset Conditions. All the Assets,
including machines, equipment and fleet, as well as the facilities and lands
belonging to Eastco form all the assets necessary for industrialization of
products that are currently industrialized by Eastco, as listed in Attachment
5.5(a). All the assets are in condition of operation and maintenance, as
described in the inspection report included in Attachment 1.2 and are object of
adequate periodical inspections, according to its manufacturers specifications
and recommendations. The Attachment 5.5(b) contains spreadsheets describing the
Asset current operational capacity. Xxxxxx also states that, in accordance with
the legislation in force at the time of signature of this Contract, the real
estate, buildings and facilities that care composing the Assets that are object
of this Contract, are in accordance with administrative rules and regulations,
or any other federal, state or local laws, and with all applicable legal and
administrative procedures.
5.6.- Business Normal Course. Eastco declares that it has conducted its
operations within the Business Normal Course. For the purpose of this Clause,
the expression "Business Normal Course" means the normal course of business
consistent with Eastco's past habits and practices generally accepted. As to its
operations and Assets, Eastco states that:
a) did not incur in any obligation or liability (fixed or
contingent), nor did celebrated any transaction that was not
within the Business Normal Course;
b) did not mortgage or encumber any Asset, besides of liens
described in Attachment 5.6 (b);
c) did not sell or transfer any one of the Assets;
d) did not waive to any material right or of relevant value;
e) did not involve itself in any labor question that has given
rise or may give rise to an effect substantially adverse as to
the operation or as to its financial status;
f) did not suffer any damage or destruction, covered or not by
insurance, that may affect the Assets substantially and
adversely.
5.7.- Goods Ownership. Eastco Has legal property, able to be commercialized, of
all the Assets considered in this operation, according to the described in
Clause 1.1 above, free of any kind of liability, charge, mortgage, pledge or
lien, except the goods encumbered by force of contracts included in Attachment
5.6(b) referred to above.
5.8.- Contracts and Commitments. The Attachment 5.8 includes a list of all the
contracts e other agreements or commitments in which Eastco takes part,
concerning specifically the Assets (from now on called "Contract List"). Except
for the related with the content of Attachment 5.8, Xxxxxx does not make part
nor is linked to any instrument:
a) celebrated out of Business Normal Course;
b) that establishes labor relationship, which may cause work
ending or employee dismissal, counselor, service, employer
organization, noc-competitor or confidentiality contract;
c) which may originate bonus obligations, deferred remuneration,
profit sharing, stock purchase option, stock ownership
purchase, hospitalization, insurance or another plan or
agreement that provides benefits to the employee;
d) of collective negotiation or another labor contract;
e) of lease related to any chattel or real state, as lessor or
lessee;
f) of resale, manufacturer representation distributor,
franchising, licensing, or commercial representation contract;
g) of contract or commitment for investment in capital goods;
h) of association or joint venture agreement related to the Asset
operation;
i) of mortgage, pawn, charges, conditioned sales contracts,
warranty contracts, factoring, and other similar contracts
related to any Asset, except those described in Attachment
6.6(b);
j) of contract or agreement in which the Asset use or
exploitation are restricted in any manner;
k) of licensing, including, without becoming a limitation,
licenses related with any intellectual properties;
l) of transport or storing service rendering that has been, at
any time, breached or defaulted;
5.9.- Insurance: Eastco declairs that, by its sole decision and risk, does not
have any insurance policies in force as to the Assets.
5.10.- Asset Operational Costs. Eastco declairs that the costs listed in
Attachment 5.10 correspond to all costs incurred at Asset operation, including
the costs of (i) inductrialization; (ii) product storage; (iii) payroll, and
(iv) Asset maintenance and conservation.
5.11.- Licenses. Adherence to Law. Except for the listed in Attachment 5.11(a),
Eastco has all the permissions, licenses and authorizations necessary or
required by the legal entities related to Assets within the legal requirements
(the "Licenses"). All the Eastco Licenses related to the conduction of its
business and to the Asset operation are listed in Attachment 5.11(b), are in
plain force and effect, being fit and no notification has been received as to
termination, canceling or waiver to any one of those permissions, licenses or
authorizations. Eastco in not infringing any of the licenses granted to it on
account of this Contract.
5.12.- Toxic Materials. Eastco does not use in any one of its Assets or in its
operations any hazardous, harmful or toxic material, according to the definition
in applicable Brazilian legislation. Except for the listed in Attachment 5.12,
Eastco did not suffer any environmental or safety inspection at its facilities
during the last 5 (five) years. The set of licenses and permissions listed in
Attachment 5.11 constitute all the licenses and permissions necessary for
conducting the Eastco businesses.
5.13.- Environmental Issues. Except for the included in Attachments 5.12 and
5.13, there is no (a) any pending government process or investigation against
Eastco originated by or related with environmental issues at any court,
tribunal, or governmental body; (b) any summons, question, administrative rule,
order or notification on a actual law, decree, standard, regulation, permission
or order breach by or against Eastco related to environmental issues; or (c) any
burden originated from or related with environmental issues, or any governmental
actions that result in imposing any charge or penalty as to the lands where are
localized the Assets object of this Contract. There is no condition
circumstance, and has not occurred any act of omission related to Assets, or
that affects them, or that may in any form result in investigation, peritory
action, judicial action or controlling action, alleging offense or disobeying of
any environmental law or regulation.
5.14.- Workers' Union Activity. During the last 3 (three) years, there has not
been any activity, nor there exist presently any activity in progress or
imminent, of Eastco knowledge, by its employees, or by any union, that may
configure a thread against Eastco of any collective action against it, and no
strike, work interruption or labor problems has occurred involving Eastco
employees during this period.
5.11.- Employees, Benefits and Labor Questions. Eastco is in accordance with
every labor laws and conventions or applicable collective agreements, respecting
the its employee rights, usual labor practices, wages, hours of working, and
workers' safety and health, except for the contained in Attachment 5.11(a).
Attachment 5.11(b) presents (a) name, position, current gross remuneration rate,
date and the value of the last wages adjustment of each one of the actual Eastco
employees; (b) any general increase granted from this year collective bargain
on, in the value of the remuneration paid to Xxxxxx's wage earners and those
remunerated by hour worked; and (c) all the loans and advances presently pendent
(but not the advances for routine travels) accomplished by Eastco to any
employee, as well as its accrual status. All the benefits offered to Eastco
employees, including but without limiting to, all pension benefits and
retirements that exceed the statutory or regulation obligations of Brazil.
Except by the claims listed in Attachment 5.15(c) , there is no pendent process,
both individual and collective, nor revindications terminated, pendent or
eminent, referred to last 3 (three) years, related to actual employees or
already dismissed by Eastco, aiming labor right payments or indemnification for
any lesion, incapacity or illness originating from their work at Eastco. There
is no strike, labor claim, individual or collective, an intentional decrease of
production, or pendent or eminent paralyzing against Eastco, including issues
related to profit and result distribution to employees and no claim or
arbitration process resulting from collective conventions or agreements, which
may cause a substantially adverse effect on the business, is pendent or in a
eminent state of, against Eastco. There did not occur any accidents within the
last 3 (three) years involving Eastco employees or service performers.
5.16.- Taxes and Contributions. Eastco does not make part of any agreement to
extend the term of payment of taxes or contributions. Except for when the
processes related to the Attachment 5.16, Xxxxxx does not make part of any
action or process filing and tax or contribution collecting related to Assets
established by any government authority, nor have received notification about
any request for that establishing and collection. For purposes of this Clause,
the terms "taxes" and "contributions" will have the same meaning as the
established by standards and regulations of the national taxation system.
5.17.- Statement Accuracy. Neither information included in statements,
warranties or agreements of Eastco and Consenting Interveners of this Contract
(including its Attachments) include any false in fact statement, or fails to
report any necessary fact so that the statements contained herein, considering
the circumstances under which they were prepared, may not be deceiving. All the
documents provided by Eastco to Coinbra are true, complete and legitimated
copies of documents that they intend to declare.
VI.- ADDITIONAL WARRANTIES
6.1.- Eastco states herewith the obligation to maintain itself in operation as
well as to keep the Asset ownership object of this Contract, for a term of 6
(six) years, from this date on.
6.2.- The Parties and each one of the Consenting Interveners state and warrant
to the other Party that they are entering this Contract in good faith, and will
do their best in order to meet, within the established terms, all the conditions
referred to herein, for which they are responsible.
6.3.- Eastco does not respond solidarily or subsidiarily for any tax, labor,
social welfare, commercial, environmental or any other kind of obligations,
originated by activities performed by Eastco especially as to facilities where
the Assets are localized and by employees or third parties contracted by it.
Eastco will remain entirely responsible for any tax, labor, social welfare,
commercial, environmental or any other kind of obligation, related or not to the
operation of the industrial business up to the Closing Date, and will be
completely responsible for obligations of any kind resulting from the activity
it will perform after the celebration of this Contract, through the same or
other establishments of its ownership.
6.3.1.- The responsibility of Eastco, object of Clause 6.3 includes the
obligations resulting from activities performed by it, as well as from
activities performed, within the industrial business where are localized
the Assets, by other companies with which Eastco has maintained
partnership, contractual or any other kind of link.
6.3.2.- Eastco obliges itself to notify Eastco on any irregular
actions/facts practiced/ occurred before the Closing Day, and which
responsibility is Eastco's, and that will occur after the Closing Day.
6.4.- Eastco Indemnification and Responsibilities. Having in view that Xxxxxxx
will not assume any obligation or liability of Eastco's responsibility, even if
they are precedent to the Closing Day, of civil, commercial, tax, labor, social
welfare, penal or environmental nature, Eastco and the Consenting Interveners
agree in indemnifying Coinbra (and/or its subsidiaries, company of the same
economic group or successors) by the totality of losses suffered effectively by
them, resulting from:
a) actions or facts performed and/or in a certain form caused by
Eastco, by means of its employees, service renderers or managenrs.
b) breach of any statement or warranty given by Xxxxxx and by
Consenting Interveners, contained herein or in any other document
forwarded in accordance to this Contract.
c) breach of any Eastco's or Consenting Interveners pact or agreement,
resulting from this Contract; or
d) loss that Coinbra comes to suffer originated from obligations, acts
or facts of Eastco, that occurred after the Closing Date,
independently of their nature.
6.4.1.- The Parties agree, by means if this Contract, that any amounts due
by Eastco to Coinbra, inclusively due to the disposed in Clause 6.4 above,
will be indemnified according to Clauses 2.5 through 2.5.3 above.
6.4.2.- Coinbra may make use of clearing inclusively in cases in which
Eastco fails to pay, at any time during the validity of this Contract, any
debt of any nature, collected or past due, that may impair or thread the
Asset operation, by Coinbra, or which it may be obliged to pay. Coinbra
will also have the right to compensation in cases when it is hindered to
deposit in court the amounts collected from Eastco in judicial processes
that, by any form, may come to impair or result in negative consequences
to the Asset operation by Coinbra.
6.5.- Coinbra Indemnification and Responsibilities. Xxxxxxx agrees to indemnify
Eastco for the losses it has effectively suffered, resulting from:
a) breach of any pact or agreement of Coinbra, originated by this
Contract; or
b) loss that Eastco may come to suffer afterwards, at the end of
the lease, caused by tax, labor or social welfare obligations,
originated from from Coinbra's activities performed during the
period of validity of this Contract.
6.6.- Supervenience of Statements, Warranties and Indemnification. All the
statements, warranties, agreements and obligations to indemnify, stipulated in
this Contract will stay in force for the term of prescription and decadence of
obligations object of this Contract, or legal prescriptions of actions related
to it.
6.7.- As to litigations, trials, requirements or inspections of any nature,
started after the Closing Date, involving Coinbra, which responsibility belongs
to Eastco according to Clause 6.3 above, pay attention to the following:
6.7.1.- Coinbra will notify Eastco in writing, within a term never
superior to 1/3 of the term established for the defense or practice of the
respective act.
6.7.2.- In case of inspection or requirement, it is immediately allowed to
Eastco to follow-up the work of the corresponding authorities.
6.7.3.- In case of administrative or judicial process of any nature, which
is of exclusive responsibility of Eastco, it is Eastco's responsibility
the contracting and nominating of lawyer(s) for the conduction of the
case. In this case, every losses and expenses arising from the trial will
be on the exclusive account of Xxxxxx.
6.7.4.- In case of urgency, Coinbra is authorized to nominate the lawyer
for performing the urgent measures that will be necessary, informing
immediately Eastco, and Eastco will be responsible for the corresponding
cost, since it is reasonable and in accordance with the market practices.
6.7.5.- Eventual warranties of administrative or judicial deposits
necessary for preserving Coinbra's interests and businesses in face of any
litigation, trial, process or requirements, will be of entire
responsibility of Eastco. If Eastco fails to make the administrative or
judicial deposit referred to, Coinbra will be allowed to do that, case in
which will be applied the disposition in Clause 6.4.2 above.
VII.- TERMINATION AND EXPRESSED RESOOLUTIVE CLAUSE
7.1.- This Contract may be terminated in the following situations:
a) by Xxxxxxx, in the assumption of Eastco's failure to meet the
Conditions for the Closing Date foreseen in Clauses 2.2.1 and
2.2.2 above.; or
b) at conditions that the Parties will establish by common
agreement, in writing, or
c) by Xxxxxxx, in case of any condemnation of any Asset that
hinders the effective Asset operation by Coinbra; or
d) by Xxxxxxx, in case of public body requirement, including the
environmental or sanitation, concerning any one of the Assets, of an
amount that exceeds 6 month of lease, which accomplishment will
make, at Coinbra's discretion, anti-economic the activity developed,
excepting the assumption that Eastco, on its discretion, decides to
meet, at its own expenses, that requirement.
e) by Xxxxxxx, if any Asset is taken to auction due to the execution of
any of Eastco's obligations;
f) by any one of the Parties, in occurring a request or decrement of
bankruptcy, liquidation, both judicial and extra-judicial, or
dissolution in any form or motive, of the other Party, and also in
case of protest of titles of responsibility of the latest, which may
represent a thread or exposure of its financial situation and comes,
by any form, to impact the good progress of this Contract or cause
damage or loss to the other Party;
g) by Xxxxxxx, in occurring a casualty at any of the assets, that comes
to make unfeasible the operation of the industrial business;
h) by any one of the Parties, if the other Party comes to breach this
Contract, failing to cure this default within the term of 30
(thirty) days from the receipt the notification sent by the innocent
party, indicating the contractual failure commited.
7.1.1.- This Contract will be considered as resolved in plain right in the
assumption of occurring a judicial sentence in the process of creditor
arrangement, addressed in Clause 2.2.2(a), considering null or invalid the
lease, object of this Contract.
7.2.- Effects of Termination and Resolution.
7.2.1.- In the assumption of this Contract termination, due the occurrence of
the disposed in Clauses 7.1 (a) and 7.1.(b) above, or in case of resolution due
to the provisions of Clauses 7.1.1 above, all the obligations of the Parties,
object of this Contract, will be considered extinct by plain right, The
termination of the Industrialization Contract will not impair any Coinbra's
right originated from the Industrialization Contract, including, but not limited
to, the credits existing according to referred to in Clause 3.1.1.(a) above. The
Industrialization Contract will remain in force for the term of validity
foreseen in it, according to its terms and conditions.
7.2.2.- In the assumption of termination of this Contract due to the disposed in
Clauses 7.1 (b) through (h) above, all the obligations of the Parties will be
considered as extinct by plain right, and Xxxxxxx must restore the Assets
possession to Eastco according to Clause 2.4 above.
7.2.3.- In the assumption of termination of this Contract due to the disposed in
Clauses 7.1 (e), (f) or (h) above, it will be excepted to the innocent party the
right of claim of eventual damages and losses caused to it by the termination.
7.2.4.- In occurring any of the assumptions listed in Clauses 7.1 or 7.1.1
above, the Parties must, in good faith, take all the measures that may become
necessary for the Parties to return to the same situation in which they were
immediately before the Closing Day.
7.2.4.1.- In occurring any one of the termination assumptions listed in
Clause 7.1 above, Eastco must indemnify Coinbra for the eventual amounts
advanced to it on account of this Contract, adjusted according to IGP-M
(FGV), increased by the percentage of 12% (twelve percent) per year.
7.2.4.2.- The Party that has given cause to the termination of this
Contract will pay a fine equivalent to 10% (ten percent) of due leases and
yet past due, excepting the right of indemnification of the Party that is
feeling injured.
VIII.- CONFIDENTIALITY
8.1.- Each Party will keep, in confidentiality, all the information obtained in
relationship to this Contract and to the Industrialization Contract, related to
the other Party, which are not, otherwise, of public knowledge, known or
developed independently, nor received from a third party, that Is not bound by a
confidentiality obligation, nor of public domain by means of any default by the
receiving Party. The divulging of terms and conditions of this Contract or of
the Industrialization Contract to companies of agricultural products processing
and merchandizing sector depends on previous consenting of the other Party.
8.2.- In case of this Contract termination, all the documents (including its
copies) that one of the Parties has obtained from any other party due to this
Contract, must be returned to the corresponding party. Each Party will avoid the
disclosure, maintaining the terms and conditions of this Contract, and those of
the Industrialization Contract, in confidentiality, including, but not limited
to, the consideration to be paid under this Contract, except if the disclosure
of this information is necessary or interesting for the conclusion of
transactions awarded hereby required by any governmental authority, or with
consent of all the other parties present.
IX.- GENERAL DISPOSITIONS
9.1.- The Parties state, by means of this Contract that the Industrialization
Contract is automatically terminated, giving Eastco to Coinbra tha most ample,
general and irrevocable quittance of Coinbra's obligations resulting from that
Contract, for not claiming any more for any motive.
9.2.- This Contract constitutes an extra-judicial executive title, according to
Article 585, paragraph II of the Civil Process Code, admitting specific
execution.
9.3.- Eventual tolerance of the Parties as to violation of any of the clauses
and conditions of this Contract will be always understood as mere liberality,
without constituting innovation or precedent that nay be evoked at any title,
nor loss of prerogative to require the total accomplishment of the obligations
defined therein, that may be altered only by joint agreement and in writing.
9.4.- This Contract is executed in an irrevocable character, binding the heirs
and successors of the parties to any title, and will remain in force even in
case of alienation or transfer of Assets, independently of the purpose, (except
if occurring any one of the situations of Clauses 7.1 and 7.1.1. above), being
the eventual purchasers bound to respect its clauses and conditions in all their
terms.
9.5.- It is agreed from now on, the register of this Contract at the Real Estate
Register Offices qualified for registering all properties that constitute the
Assets, being Coinbra responsible for the payment of notarial emoluments due for
certifying the register . If, for any reason, undesired by the Parties, it would
be impossible to register this Contract at the corresponding Registers of
competent jurisdictions, the Parties agree to emend this Contract so as to meet
these requirements, in order to register within the term of 30 (thirty) days
after its execution.
9.6.- This Contract, jointly with all its attachments, form the whole agreement
between the Parties, replacing any preceding agreements between the Parties. No
modification of this Contract will be binding, except if it is done in writing,
signed by a duly authorized representative of each Party.
9.7.- The titles of clauses of this Contract serve exclusively for reference
purposes, and will not affect, by no way, the meaning or interpretation of this
Contract.
9.8.- Independently from the conclusion or not of the transactions awarded
hereby, the Parties must de accounted for the corresponding expenses.
9.9.- Coinbta and Eastco must consult each other as to the terms, schedules and
form of any divulging to employees, customers, suppliers or the press, or also
as to the present Contract or any question related to operation assigned by this
instrument, as soon as it is signed. It is forbidden any kind of divulging,
except the terms agreed upon. Are exceptions to this rule, even without
agreement, any statement or disclosure that is required by law, or required
according to the requirements of regulatory bodies. In this case, such statement
or disclosure will have the extension necessary for meeting the minimum
requirements imposed to the executing party.
9.10. - If, at any moment after the date of signature of this Contract, any
provision will be considered, by any court of competent jurisdiction, as
illegal, null, or unfeasible, the provision in question will not impair or
affect in any form, the other provisions of this Contract, which will remain in
plain force and effect, being the Parts responsibility to find, by joint
agreement, juridically valid means able to restore the contractual balance, in
which the ineffectiveness or unfeasibility might have affected, in order to
meet, in the most possible extension the original pretension of the Parties.
9.11.- Any notice that must be forwarded by any Party to another, under this
Contract, will be made in writing, becoming effective on the occasion of its
receiving, if delivered by registered air-mail or by fax confirmed by sending
the original by registered air-mail, to the Party at the address indicated
below, or at another address, as this party may assign by means of a written
notice, according the provisions of this Clause. If any of the Parties will
change the address for notification purposes, it must send to the other Party a
previous written communication about the new address, as well as the date on
which it will anter into force.
To Coinbra:
Comercio e Industria Brasileira Coinbra S/A
Av. Xxxxxxxxxx Xxxxx Xxxx, 1355 - 14(0) andar
CEP. 01452-919 - Sao Paulo, SP/Brasil
At.: Sr. Xxxxxxxx X. xx Xxxxxx
Xx. Xxxxxxx Xxxxx
Fax. (00) 0000-0000
To Eastco:
F.H.S. Eastco DO BRASIL LTDA.
Rua Cotoxo, 611, 6(0) andar, Conj. 63
CEP. 05021-000 - Sao Paulo, SP /Brasil
At.: Sr. Xxxxxxx Xxxxxx
Xxxx. Xxxxxxxxx xx Xxxxx
Fax. (00) 0000-0000
9.12.- This Contract will be governed, interpreted and imposed in conformity
with Brazilian legislation, and any litigation originating from it will be
settled at the Forum of the City of Sao Paulo, Brazil.
9.13.- The rights and appeals of the Parties as to this Contract are cumulative
and not alternative. Not even an omission or any delay of anyone of the Parties
as to exercise of any right, power or prerogative, under this Contract, may
transform itself into a waiver of the right, power or prerogative, nor any
simple or partial exercising of any right, power or prerogative will impede any
other exercise of another right, power or prerogative. The maximum extension
allowed by applicable law, (a) no petition to a right originated from this
Contract may be denied by any Party, entirely or partially, based on a waiver to
a petition or right, except if it is in writing and signed by the other Party;
(b) no waiver that may be filed by one of the Parties will apply, except at the
specific jurisdiction to which it has been delivered; (c) no notice or demand as
to one of the Parties will be considered a waiver to any obligation, or to the
right of this Party to file this notice or demand, to give continuity to an
additional action without notice or demand, as provided by this Contract.
9.14.- The corresponding rights and obligations of the Parties, according to
this Contract, may not be ceded by Coinbra or by Eastco to third parties,
directly or indirectly, without the written previous consent by the other Party;
excepting, however, that Coinbra may cede this Contract, as a whole or
partially, to any of its subsidiaries or companies of the same economic group,
by means of a previous written notice to Eastco, the case in which Coinbra will
continue to be responsible jointly with the new assignee for its obligations.
IN WHITNESS WHEREOFF, the Parties have duly executed this Contract of
Lease and Other Agreements, on the day first indicated above, in 2 (two) copies
of equal content and form, in presence of two witnesses signed below.
COMERCIO E INDUSTRIAL BRASILEIRAS COINBRA
(Signed) by Xxxxxxxx X. xx Xxxxxx (Signed) by Xxxxxxx Xxxxxx
Position: Director Position: Director
F.H.S. Eastco DO BRASIL LTDA.
(Signed) by Xxxxxxx Xxxxxx (Signed) by Xxxxxx Xxxxxx
Position: Managing Partner Position: Manager.
Consenting Interveners:
F.H.S. HOLDING B.V.
(Signed) by Xxxxxx Xxxxxx
Position: Attorney
XXXXXXX XXXXXX
(signature)
Withesses:
1. (Signature) 2. (Signature)
Name: Xxxxx Xxxxxxxx X. Xxxxxxx Name: Xxxxxx Xxxxx Jacyntho
XX. N.o 16527032 RG, 18588.000 - SSP/SP
Exped,Body: SSP/SP CPF: 000.000.000-00
CPF/MF: 062.753,418-07
LEASE AND OTHER AGREEMENTS CONTRACT
celebrated between
COMERCIO E INDUSTRIAL BRASILEIRAS Coinbra S.A
and
F.H.S. Eastco DO BRASIL LTDA.
ATTACHMENT LIST
--------------------------------------------------------------------------------
Attachment 1.1 o Description and document related to Assets that
compose the industrial business of Eastco, object
of this Contract
Attachment 1.2 o Initial Inspection Report of Assets
Attachment 1.3 o List of accessory parts of Eastco - warehouse
stock, workshop tools equipment in general, office
equipment
Attachment 1.7 o List of employees attached to Eastco
Attachment 2.2.2(a) o List of speaking documents for the conclusion of
works of Due Diligence of Coinbra
Attachment 2.2.1 (b) o List of creditors/contracts in relationship to
which Xxxxxx must obtain previous consenting for
Contract accomplishing
Attachment 2.2.1.(c) o List of Creditors
Attachment 2.2.2.(g) o Asset insurance policy to be contracted by Conibra
on the Closing Day
Attachment 2.3 o Confirming term of the Parties that the Preceding
Conditions were met
Attachment 3.1.1.(b) o List of investments that Coinbra will come to
accomplish at the industrial business
Attachment 5.1 o Copy of Eastco Articles of Incorporation
Attachment 5.2 o List of all Eastco quota holders and their
respective shares
Attachment 5.4 o List of Eastco liabilities related to Assets
Attachment 5.5.(a) o List of all Assets necessary for industrialization
Attachment 5.5.(b) o Spreadsheet describing the annual operating
capacity of Assets
Attachment 5.6.(b) o List of all Assets on which there is any liability
or lien
Attachment 5.8 o List of all Eastco Contracts and Commitments in
force related to Assets
Attachment 5.10. o Costs of System operation
Attachment 5.11.(a) o List of talking Licenses related to Assets
Attachment 5.12 o List of Eastco environmental inspections / filings
Attachment 5.13. o List of infractions/processes in
progress/penalties related to environmental
obligations
Attachment 5.15.(a) o Labor claim related to Eastco employees
Attachment 5.15.(b) o List of Eastco employees
Attachment 5.17.(c) o List of labor claims during the last 3(three)
years
Attachment 5.16 o List of tax actions and filings of Eastco0
PRIVATE INSTRUMENT OF DISSOLUTION OF THE CONTRACT OF LEASE AND OTHER AGREEMENTS
OF 11.21.2002
By means of this private document, on one side,
COMERCIO E INDUSTRIAS BRASILEIRAS COINBRA S.A., a Business Corporation, with its
headquarters in the City of Sao Paulo, State of Sao Paulo, Brazil, at Xxxxxxx
Xxxxxxxxxx Xxxxx Xxxx, Xx. 0000, 00xx floor, registered at the National Register
of Corporations (CNPJ/MF) under No. 47.067.525/0001 - 08, with its Articles of
Incorporation filed at the Board of Trade of Sao Paulo ("JUCESP") under No.
94.344, on the session of 09.19.84 and NIRE N. 00.000.000.000, at this act duly
represented according to its Articles of Incorporation (from now on called
"Coinbra"), and
On the other side,
F.H.S. Eastco DO BRASIL LTDA., a Limited Liability Company, with headquarters in
the City of Sao Paulo, State of Sao Paulo, Brazil, at Xxx Xxxxxx, Xx. 000, 0xx
xxxxx, xxxxx 00, registered at the National Register of Corporations (CNPJ/MF)
under No. 00.633.118/0001-57, with its Articles of Incorporation filed at the
Board of Trade of Sao Paulo ("JUCESP") under NIRE No. 35.213.108.185, on session
of 06.02.95, at this act duly represented in accordance with its Articles of
Incorporation by its managing partner, Xx. Xxxxxxx Xxxxxx, Brasilian, married,
coffee broker, holder of ID Card No. 8.586.248, registerd at the CPF/MF under
No. 000.000.000-00, and his wife, resident and domiciled in the City of Sao
Paulo, at Xxx Xxxx Xxxxxx, 0000, 0xx xxxxx, xxx. 62 (from now on called
"Eastco");
And, also:
F.H.S. Holding B.V., a Corporation established and existing is accordance with
Nederland's laws, with its headquarters in Xxxxxxxxxxx, Xx. 000/XX, Xxxxxxxxx,
Xxxxxxxxx, at this act represented by its attorney, Xx. Xxxxxxxxx xx Xxxxx,
Brazilian citizen, single, business administrator, holder of Identification Card
R.G. 9.307140-1 SSP/SP, registered at CNPJ/MF) under No. 892.853.958-31, with
business address at Xxx Xxxxxx, 000, xxxxx 00, Xxx Xxxxx, XX;
XXXXXXX XXXXXX, Brazilian citizen, married, coffee broker, holder of I.D. Card
R.G. No. 8.586.248, registered at CPF/MF under No. 000.000.000-00,and his wife
resident and domiciled in the City of Sao Paulo, at Xxx Xxxx Xxxxxx, 0000, 0xx
xxxxx, xxx. 62;
(F.H.S. Holding B.V. and XXXXXXX XXXXXX as quota-partners of Eastco, from now on
named jointly as "Consenting Interveners").
PREAMBLE
WHEREAS , on November 21st, 2002, Xxxxxx and Coinbra (from now on called
"Parties") have celebrated the Contract of Lease and Other Agreements (from now
on called "Contract"), by which Xxxxxx has assumed the obligation to cede to
Coinbra, in lease, on the Closing Date, the Assets;
WHEARAS, the Contract has been amended on December 20th, 2002, on January
21st, 2003 and October 20th, 2003;
WHEREAS, according to Clause 2.1.1 of the Contract and Confirming Term by
the Parties of the Closing Date, the validity of the Contract corresponding to
the period between January 21st, 2003 and January 20th, 2007;
WHEREAS, Xxxxxxx has the interest to return the Assets to Eastco,
dissolving immediately the Contract, according to Article 472 of the Civil Code;
WHERAS, Xxxxxx accepts to receive the Assets and do dissolve the Contract,
on the conditions foreseen in this document;
WHEREAS, Xxxxxx has previously certified to this document the adequateness
and conformity of the Assets ceded for lease, according to the established in
Clause 2.4 of the Contract, as well as the existence of Assets, in the same
estate, quantity and conditions foreseen in Attachments 1.1, 1.2 and 1.3 of the
Contract, except exclusively the equipment foreseen in item 2.1 of Delivery
Term, which integrates this document as its Attachment 2.1.1.
The Parties, with the expressed consent of the Consenting Interveners,
decide to execute the Private Document of Dissolution of the Contract
("Dissolution"), that will be governed by the following clauses and
conditions:
I. DEFINITIONS.
1.1. The terms and expressions presented in this document have the meaning as
they had in the Contract, except if a new definitions is provided within this
document.
II. OBJECT.
2.1. By means of this instrument, the Parties adjust the dissolution of the
Contract, according to article 472 of Civil Code, that occurs according to this
instrument.
2.1.1. This dissolution and the corresponding return of Assets to Eastco
are being configured on this date, through signature, by the Parties, of
this instrument and Term of Asset Delivery (from now on "Delivery Term"),
that passes to integrate this document as its Attachment 2.1.1.
2.1.2. Xxxxxx, immediately awards Xx. Xxxxxxxxx xx Xxxxx with xxxxxx to
represent it at the execution of the Delivery Term; Coimbra, immediately
awards Mr. Xxxxxxxxx Xxxxxxxxx xx Xxxxxxx with xxxxxx to sign the Delivery
Term.
III. RETURN OF ASSETS
3.1. The Parties, through its attorneys foreseen in Clause 2.1.2, met at the
industrial setting leased under the Contract, have formalized this Dissolution
and return of Assets, by means of signature of this document and of the Delivery
Term, mentioned in Clause 3.2.1 below.
3.2.Xxxxxx assumes the obligation of, within the term of 30 (thirty) days from
the date of this document, to take all the measures necessary for the transfer
to its name:
(a) all the consumption accounts pertinent to the industrial business now
returned, such as electric power, water capturing/consumption, etc.
(b) all the licenses pertinent to the industrial business now returned
ans/or to the activities developed therein;
3.2.1. Without any prejudice to the provided in clause 2.3, Xxxxxxx will
pay the power bill that will be measured on April 7th, 2005. All the power
bills posterior to that date will be accounted by Xxxxxx.
3.2.2. From the date of this document on, all the consumption bills
pertinent to Assets, as well as the IPTU incident on the properties that
compose the industrial business now returned, will run on the exclusive
account of Eastco.
3.2.3. Coinbra will perform the payment the final wages of "Helpseg"
company, in the amount of R$10,000.00 (ten thousand reais), within the
term of 2 (two) working days from the date of business license of the
industrial business where ale localized the Assets, to be issued by the
Municipal Prefecture of Cruziero.
3.2.4. Xxxxxxx assumes the obligation of, always when requested in writing
by Xxxxxx, to spend its best efforts in order to help the latest with the
transfer of accounts and licenses addressed in clause 3.1 above, providing
copies of documents and information available.
3.3. Coinbra assumes the obligation of taking all the measures necessary to the
register of this Contract dissolution, at the margin of register of the real
estate where is localized the industrial business now returned, within the term
of 30 (thirty) days counted from the date of signature of this dissolution.
IV. COINBRA'S OBLIGATIONS
4.1.Coinbra accomplishes, with this act, or will accomplish, as the case is, the
following obligations:
a) payment to Eastco, on that occasion, of R$1,623,879.00 (one million,
six hundred and twenty-three thousand, eight hundred and seventy-nine reais), by
means of two checks issued by Xxxxxxx, one in the amount of R$1,613,879.00 (one
million, six hundred and thirty thousand, eight hundred and seventy-nine Reais)
and the other of R$10,000.00 (ten thousand reais);
b) delivery to Eastco of the solvable coffee mentioned in Attachment 4.1
(b) (From now on, "Coffee"), according to quantities and specifications included
therein, at the warehouse sited in the County of Xxxxx, State of Sao Paulo, at
Xxx Xxxx Xxxxxxx, 000-C, within the term of 3 (three) working days from the
signature of this document.
4.1.1. Coinbra assumes the obligation also to transfer to Eastco, within
the term of 3 (three) working days from the date of signature of this
document, the equipment listed in Attachment 4.1.1. The equipment at issue
will be kept within the Eastco's industrial business, now returned, where
it is currently installed.
4.2. Eastco acknowledges the receipt of the checks mentioned in paragraph "a" of
clause 4.1 above, and awards Coinbra, automatically, with the most comprehensive
and irrevocable quittance as to the receipt of R$ 1,623,879.00 (one million, six
hundred twenty-three thousand, eight hundred seventy-nine reais), by means of
complete clearing of the check at issue.
4.2.1 The lack of clearing of the checks mentioned in paragraph "a",
clause 4.1, above and/or accomplishment of the obligations foreseen in
paragraph "b", clause 4.1 and/or in clause 4.1.1., in accordance with the
terms disposed therein, will turn this dissolution without effect, what
will generate automatic consequences: (i) automatic rescission of this
document; (ii) continuity of validity of the Contract; (iii) transfer of
the Asset ownership to Coinbra; and (iv) the return of the Parties to the
"status quo" before the signature of this document.
V. QUITTANCE OF THE LEASE CONTRACT
5.1. Since the lease due on the first day of March of 2005 has been already paid
by Xxxxxxx, accomplishing the obligations set forth in Clauses 4.1 and 4.1.1
above, no other amount will be due by Coinbra to Eastco, under this Contract ,
prevailing only the obligations assumed by Coinbra in this document. Clearing
the check referred to in paragraph "a", clause 4.1, accomplished the obligations
set forth in paragraph "b", clause 4.1 and items 2.1 and 2.1.3 of the Delivery
Term, the Parties will consider themselves as automatically quitted, in most
comprehensive, general and irrevocable form, as to the obligations they have
assumed under this Contract, as well as under any other commercial and/or
juridical relationship maintained between the Parties, between these and the
companies of the Parties' economic groups and between these and its partners,
administrators and/or representatives, to never claim on any purpose.
VI. RESPONSIBILITY OF THE PARTIES.
6.1.Coinbra responds for any litigations, processes or requirements of tax,
labor or environmental nature (from now on called generically "Requirements")
against Eastco or its successor, materialized after the dissolution operation of
the Contract ( "Dissolution Date"), if they result from (i) actions performed by
Xxxxxxx, (ii) omissions committed by Coinbra, and in any case, occurred during
the validity of the Contract.
0.0.Xx assumption of arising of any Requirements after the Dissolution Date,
involving Eastco or its successor, and if they are of responsibility of Coinbra,
according to Clause 6.1 above, Eastco will notify Coinbra, in writing, according
to Clause 7.8 below, within the term never inferior to 1/3 of the term
established for the defense or practice of the corresponding act, from the date
of notice or acknowledge of the act by Eastco or its successor.
6.2.1. Having Coinbra received the notification addressed in Clause 6.2,
the following will occur:
a) Xxxxxxx will indicato to Xxxxxx , in writing, whether it intends or not
to discuss the Requirement;
b) if it intends to discuss the requirement, Coinbra: (i) will nominate a
lawyer to whom Xxxxxx, immediately awards the power of attorney sufficient to
represent it in the case; and (ii) will maintain Eastco exempt of any
liabilities originated from the requirement, adopting all the measures necessary
for the suspension of respective liabilities, including, if necessary, by means
of judicial deposit of the corresponding amount.
c) if it does not intend to discuss the requirement, Coinbra will take the
measures for the payment of the corresponding amount, keeping Eastco exempt of
any loss or onus resulting from the requirement.
6.2.2. As to the inspection, Coinbra is immediately authorized through a
nominated representative, to follow-up the work of respective authorities,
and Eastco must grant free access and to make available to the Coinbra
representative all the information and documents pertinent to the
inspection.
6.2.3. Eastco will co-operate with the defense on processes mentioned in
Clause 6.2.1 (b), rendering all the help required by the lawyer contracted
by Xxxxxxx, including, but without being limited by, the furnishing of
books, papers, documents and information it has available and that are
necessary, useful or relevant for the defense, everything always within
the shortest term possible.
0.0.Xx case of administrative or judicial process of any nature, which
responsibility pertains partially to Coinbra and partially to Eastco, Coinbra
and Eastco must endeavour to, by common agreement, contract the same jawyer for
sponsoring the cause, case in which the respective fees may be shared
proportionally to the responsibility of each part of the process.
6.3.1. Assuming that Xxxxxxx and Xxxxxx will not reach an agreement for
contractin the same lawyer, each one may contract its own lawyer, in which
case each party will account for the totality of fees of the lawyer it
contracts.
6.3.2. Except for the case set forth in Clause 6.3.1, all and any
liabilities and expenses resulting from administrative or judicial process
of any nature, which responsibility pertains to Coinbra and Eastco,
according to Clause 6.3 above, including as to administrative and judicial
deposits, will be on the account of both parties, proportionally to the
respective responsibilities.
6.4. In any assumption of payment, by any one of the parties, of amounts of the
other party', responsibility, due to judicial sentence judged, the judicial or
administrative deposit, process costs and/or payment within the term of 10 (ten)
days from the date of respective request of reimbursement, joined by the
corresponding vouchers.
6.4.1 In assuming that Coinbra will pay to or reimburse Eastco or its
successor on account of administrative or judicial deposits mentioned in
Clause 6.4, Eastco will nominate a lawyer in order to proceed the survey
of administrative or judicial deposits and to transfer the found amounts,
increased by due adjustment. In assuming of the lawyer(s) responsible for
the process conduction does nor transfer the amounts found directly to
Coinbra, for any reason, Eastco must pay to Coinbra the corresponding
amounts within the term of 10 (ten) days from its actual receipt.
6.5.Coinbra assumes the obligation to provide, within the term of 30 (thirty)
days after the date of Delivery Term, the regularization, removal or rescission
of registers and/or formalizations performed in order to regularize the
operation of the leased industrial business and related with inscriptions,
licenses, or authorizations from federal, state or local governmental bodies, or
any other agreements or provisions of public or private companies.
VII. GENERAL DISPOSITIONS
7.1. This dissolution constitutes a extra-judicial executive title, according to
Article 585, paragraph II of Civil Process Code, admitting specific execution.
7.2 Eventual tolerance of the Parties as to violation of any clause or condition
of this dissolution will be understood as mere liberality, without constituting
a novelty or precedent that may bi invoked at any title, nor the loss of
prerogative to require the plain accomplishment of obligation herein defined,
that may be altered only by joint agreement and made in writing.
7.3. This rescission is executed in irrevocable and irretreatable character,
binding the heirs and successors of the Parties at any title.
7.4.This rescision, jointly with all the Attachments, form the integral
agreement of the Parties, replacing all precedent agreements between the
Parties. No modification of this Rescission will be binding, except if done in
writing, is signed by a duly authorized representative of each Party.
7.5.The titles of clauses of this rescission serve exclusively as reference and
will not affect, by no means, its meaning and interpretation.
7.6.Independently from the conclusion or not of the transactions awarded by this
document, the Parties must account for its respective expenses.
7.7.If, at any moment after the signature date of this dissolution and the
respective Delivery Term, considered as a whole, any of the dispositions thereof
come to be considered illegal, null or unachievable, by any court of competent
jurisdiction, this particular disposition should not impair or affect in any way
the other dispositions of this dissolution and of the Delivery Term, which will
stay in plain force and effect, being responsibility of the Parties to find
valid and feasible judicial means, able to restore the contractual balance, that
has been affected by the said ineffectiveness or unachievability, the original
pretension of the Parties.
7.8.Any notice that must be delivered by any Party to the other, under
this Dissolution will be done in writing, becoming effective on the
occasion of its receiving if delivered by registered air-mail or by fax,
confirmed by sending of the original by registered air-mail, to the Party
at the address indicated below, or at another address, as the Party may
designate, in writing, through a note, according to dispositions of this
Clause. If any of the Parties shall alter its address for notice purposes,
it must send to the other Party a written notice about the new address,
and the date on which it enters into force.
To Coinbra:
Comercio e Industria Brasileira Coinbra S/A
Av. Brigadeiro Faria Lima. 1355 - 14(0) andar
CEP: 014552-919 - Sao Paulo, SP/Brasil
At.: Sr. Xxxxxx X. Xxxxx / Sr. Xxxxxxxx Xxxxxxx Xxxxx
Fax. (00) 0000-0000
To Eastco:
F.H.S. Eastco DO BRASIL LTDA.
Rua Cotoxo, 611, 6(0) andar, Conj. 63
CEP: 05021-000 - Sao Paulo, SP/Brasil
At,: Sr. Xxxxxxx Xxxxxx / Srta. Xxxxxxxxx xx Xxxxx
Fax. (00) 0000-0000
7.9.Besides of the obligations set forth in clauses 4.1 and 4.1.1 above, and in
items 2.1 and 2.1.3. of the Delivery Term, no other value or obligation will be
due by Coinbra to Eastco on account of this Dissolution or any other cause.
7.10. This Contract will be governed, interpreted and imposed in conformity with
Brazilian legislation, and any litigations originated by it will be settled at
the forum of the Capital of the State of Sao Paulo, Brazil.
IN WHITNESS WHEREOFF, the Parties have duly signed this Contract of Lease and
Other Agreements, on the date indicated first thereon, in 4 (four) copies of
equal content and form, in presence of two witnesses, who have signed below.
Cruzeiro, March 31st, 2005
COMERCIO E INDUSTRIA BRASILEIRA COINBRA S/A
(Signed) (Signed)
for Xxxxxxxxx Xxxxxxxxx xx Xxxxxxx for Xxxxxxxxx Xxxxxxx Xxxx
F.H.S. Eastco DO BRASIL LTDA.
(Signed)
This page is na integrant part of Dissolution of the Private Contract of Lease
and Other Agreements of 11.21.2002
Consenting Interveners
F.C.S. HOLDING B.V. XXXXXX XXXXXX
(Signed) (Signed)
by Xxxxxxxxx xx Xxxxx
Witnesses:
1. (Signed) 2. (Signed)
--------------- ---------------
Name: Xxxxx X.X. Xxxxx Name: Illegible
CPF.: 000.000.000-00 CPF 000.000.000-00
PRIVATE INSTRUMENT OF DISSOLUTION OF THE CONTRACT OF LEASE AND OTHER AGREEMENTS
OF 11.21.2002
Attachment 2.1.1
Asset Delivery Term
By means of this private document, on one side,
COMERCIO E INDUSTRIAS BRASILEIRAS COINBRA S.A., a Business Corporation, with its
headquarters in the City of Sao Paulo, State of Sao Paulo, Brazil, at Xxxxxxx
Xxxxxxxxxx Xxxxx Xxxx, Xx. 0000, 00xx floor, registered at the National Register
of Corporations (CNPJ/MF) under No. 47.067.525/0001 - 08, with its Articles of
Incorporation filed at the Board of Trade of Sao Paulo ("JUCESP") under No.
94.344, on the session of 09.19.84 and NIRE N. 00.000.000.000, at this act duly
represented according to its Articles of Incorporation (from now on called
"Coinbra"), and
On the other side,
F.H.S. Eastco DO BRASIL LTDA., a Limited Liability Company, by quotas, with
headquarters in the City of Sao Paulo, State of Sao Paulo, Brazil, at Xxx
Xxxxxx, Xx. 000, 0xx xxxxx, xxxxx 00, registered at the National Register of
Corporations (CNPJ/MF) under No. 00.633.118/0001-57, with its Articles of
Incorporation filed at the Board of Trade of Sao Paulo ("JUCESP") under NIRE No.
35.213.108.185, on session of 06.02.95, at this act represented iby its Attorney
that has signed this document (from now on called "Eastco");
Have entered into this Term of Asset Delivery, which will be governed by the
following clauses and conditions:
1. The terms and expressions contained in this document have the same meaning
that has been assigned to them in Contract of Lease and Other Agreements,
celebrated between Coinbra and Eastco on November 21st, 2002 (from now on called
"Contract") and/or in Dissolution of Contract of Lease and Other Agreements,
celebrated between Coinbra and Eastco on the same date, (from now on,
"Dissolution").
2. Xxxxxx declares that has inspected thoroughly, on this date, all the Assets,
which are in conformity with the disposed in Clause 2.4 of the Contract, except,
exclusively, the equipment listed in item 2.1 below.
2.1. The only goods that compose the Assets and are not in good operational
conditions are (i) two coffee tractors of Lilla brand. Model COA480, (ii) a Yale
stacker, (iii) a coffee mill and its respective feeder, (iv) two separating
centrifuges, models BRPX309 and BRPX207 and (v) a agglomerator sieve.
2.1.1 The equipment set forth in item 2.1 above are subject to maintenance
and will be reinstalled in the industrial business, presently returned,
according to the folloving dates:
a) the equipment listed in sub items (ii), (iii), (iv) and (v) of item 2.1
above, will have its maintenance and reinstalling concluded up to April 8th,
2005;
b) the equipment listed in sub item (i) of item 2,1 above will have its
maintenance and reinstalling concluded up to April 21st, 2005.
2.1.1.1. On April 8th, 2005, Xxxxxxx and Xxxxxx, through the
representatives listed in clause 2.1.2 of the Dissolution will meet
at the industrial business now being returned, woth the purpose to
inspect the equipment listed in sub items (ii), (iii), (iv) and (v),
of item 2.1 above and for formalizing its regular restitution.
2.1.1.2. On April 21st, 2005, Coinbra and Eastco, by means of its
representatives listed in clause 2.1.2 of the Dissolution will meet
in the industrial business now returned, with the purpose to inspect
the equipment listed in sub item (i) of the item 2.1 above and
formalizing its regular restitution
2.1.2.1. Eastco will allow to the representatives indicated by
Coinbra free access to the industrial business, now being returned,
with the purpose of performing the maintenance and reinstalling,
mentioned in item 2.1.1.above.
2.1.3. Eastco will follow-up the performance of the disposed in item
2.1.1.and mist indicate to Xxxxxxx , immediately and in writing, any
eventual incorrect ion.
3. Eastco will receive in this moment, the keys of the industrial business that
compose the Assets, with a regular transmission to it of plain, smooth and
pacific ownership of the Assets, except of the equipment listed in item 2.1
above.
4. On account of the signature of this instrument, the Parties award themselves
the most complete, general and irrevocable quitting as to the accomplishment of
all the obligations they have contracted under this Contract, so no one may make
any claim of any nature.
5. By means of signature thereof, the Contract is considered dissolved,
according to Article 472 of Civil Code, with the consequent extinction of all
the obligations of the Parties set forth in clauses 4.1 and 4.1.1 if the
Dissolution.
In witness whereof, and having consented with the content of the document, the
parties sign it in 4 (four) copies of equal content and form, in presence two
witnesses.
Cruzeiro, March 31st. 2005.
COMERCIO E INDUSTRIAS BRASILEIRAS COINBRA S.A
Signed by Xxxxxxxxx Xxxxxxxxx xx Xxxxxxx
F.H.S. Eastco DO BRASIL
Signed by Valkiria da Kunha
Vitnesses:
1. (signed) 2. (signed)
Signed by Xxxxx X.X. Xxxxx (Illegible).
Dissolution of Contract of Lease and Other Agreements Attachment 4.1(b)
Powdered Soluble Coffee
--------------------------------------------------------------------------------------------------------------
Quantity Weight Boxes Total Weight
SD-101 307,358 100% arabica
--------------------------------------------------------------------------------------------------------------
Reprocessing
--------------------------------------------------------------------------------------------------------------
SD 139 30 145 4.350 70% robusta + 30% barley
reprocessing 40 1,349 53,960 Product stone-paved in boxes
Glasses 100g 2,4 4,156 9.974 Product stone-paved in glasses
Glasses 50g 1,2 2,488 2,986 Product stone-paved in glasses
Glasses 50g 1,2 3 4 Production surplus
Braz Roasted
Glasses 50g SD 1,2 1115 1,338 Production surplus
Glasses 100g 2,4 556 1,334 Production surplus
Valencia
Glasses 100g 1,2 437 524 Production surplus
Glasses 100g 2,4 450 1,080 Production surplus
CDC0S1 20 66 2.415 Production surplus
Agglomerated
AG-253 40 1,351 54,040 100% arabica
Dissolution of Contract of Lease and Other Agreements Attachment 4.1.1
Quantity Description
1 Induction sealer
1 Labeler JPJ
1 Air Compressor Xxxxx
1 Air drier (compressed air)
2 Dispenser (feeder) Jocar
2 Scale check weight
2 Looping with feeder table of tin
2 Vacuum Renailer Orenga
2 Vacuum pump
2 Feeder table of tin
3 Labeler ARV
1 Threader ARV
1 Dispenser (feeder) Multiline
1 Feeder table (machine) of glass ARV
