Exhibit 4.6
AGREEMENT REGARDING THE INSURANCE POLICY
FOR EXPROPRIATION AND CURRENCY INCONVERTIBILITY
This Agreement Regarding the Insurance Policy for Expropriation and
Currency Inconvertibility, dated as of December 19, 2001 (the "AGREEMENT"), is
entered into by and among (i) The Bank of New York, not in its individual
capacity, but solely in its capacity as trustee under the Indenture (as defined
below) (the "INSURED"), (ii) Companhia de Bebidas das Americas (the
"GUARANTOR"), (iii) Steadfast Insurance Company (the "UNDERWRITER") and (iv)
Companhia Brasileira de Bebidas CBB (the "ISSUER"). The Insured, the Guarantor,
the Underwriter and the Issuer are herein referred to collectively to as the
"PARTIES."
RECITALS
A. The Parties contemplate that the Issuer will issue and sell
certain Insured Notes (the "INSURED NOTES") to a number of institutional
investors (the "NOTEHOLDERS").
B. In connection with the issuance and sale of the Insured Notes,
the Insured and the Issuer will enter into a trust indenture (the "INDENTURE"),
dated as of December 19, 2001, providing for the issuance of the Insured Notes.
C. In order to guaranty the payment of the Insured Notes, the
Guarantor will issue a guaranty (the "Guaranty"), dated as of December 19, 2001,
providing for the guaranty by the Foreign Enterprise of the Issuer's payment
obligation under the Indenture.
D. In connection with the execution and delivery of the Indenture,
the Underwriter has issued an Insurance Policy for Expropriation and Currency
Inconvertibility (Policy No. 37-48-604), dated as of December 19, 2001 (which,
together with the Declarations thereto, constitutes the "Insurance Policy"), the
beneficiary of which is the Insured, for the benefit of the Noteholders.
E. The Parties wish to set forth herein certain agreements in
connection with the Insurance Policy.
AGREEMENTS
The Parties, with the intention of being legally bound, agree as
follows:
1. DEFINED TERMS.
Capitalized terms used in this Agreement and not otherwise defined have the
meaning assigned to such terms in the Insurance Policy (as defined below).
2. REPRESENTATIONS, WARRANTIES AND/OR COVENANTS BY THE GUARANTOR AND THE
ISSUER.
(a) The Guarantor represents, warrants and/or covenants that:
(1) all written information that the Guarantor has provided to
the Insured in connection with the Application for Insurance is true
and correct as of the date on which it was delivered to the Insured
and that no material information related to such Application for
Insurance has been or will be withheld;
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(2) it has or will obtain all such valid licenses and permits as
required by law in order for it to enter into and perform its
obligations under the Guaranty and will make all applications as
required by law to extend, renew or modify such licenses to comply
with any new requirement promulgated during the Policy Period;
(3) it will, after consulting with the Insurer, (i) take all
reasonable steps to avoid or minimize any Loss (other than any Loss
where Compensation is excluded or excludable under the terms of
Article V of the Insurance Policy); (ii) cooperate fully with the
Underwriter in the investigation of any Claim, the resolution of any
potential Claim situation and the pursuit of any Claim salvage; and
(iii) not enter into any agreement concerning a Loss or potential Loss
without the Underwriter's prior written consent. In addition, the
Guarantor will (i) pursue all reasonable diplomatic, legal,
administrative, judicial and other legal means which may be reasonably
available to minimize or recover any Loss, and (ii) preserve any
legal, judicial and administrative remedies applicable to any Claim
and furnish reasonable assistance in maintaining any rights or
property transferred to the Underwriter; and
(4) all information to be provided by the Guarantor (including
any information provided in any statements, reports, or applications),
either directly or through the Insured, in connection with any Claim
or potential Claim under the Insurance Policy will, to the Guarantor's
knowledge, be true and correct in all material respects and the
Guarantor shall not knowingly conceal any material fact, including, in
connection with any such Claim or potential Claim.
(b) The Issuer represents, warrants and/or covenants that:
(1) all written information that the Issuer has provided to the
Insured in connection with the Application for Insurance is true and
correct as of the date on which it was delivered to the Insured and
that no material information related to such Application for Insurance
has been or will be withheld;
(2) it has or will obtain all such valid licenses and permits as
required by law in order for it to enter into and perform its
obligations under the Indenture and will make all applications as
required by law to extend, renew or modify such licenses to comply
with any new requirement promulgated during the Policy Period;
(3) it will, after consulting with the Insurer, (i) take all
reasonable steps to avoid or minimize any Loss (other than any Loss
where Compensation is excluded or excludable under the terms of
Article V of the Insurance Policy); (ii) cooperate fully with the
Underwriter in the investigation of any Claim, the resolution of any
potential Claim situation and the pursuit of any Claim salvage; and
(iii) not enter into any agreement concerning a Loss or potential Loss
without the Underwriter's prior written consent. In addition, the
Issuer will (i) pursue all reasonable diplomatic, legal,
administrative, judicial and other legal means which may be reasonably
available to minimize or recover any Loss, and (ii) preserve any
legal, judicial and administrative remedies applicable to any Claim
and furnish reasonable assistance in maintaining any rights or
property transferred to the Underwriter; and
(4) all information to be provided by the Issuer (including any
information provided in any statements, reports, or applications),
either directly or through the Insured, in connection with any Claim
or potential Claim under the Insurance Policy will, to the
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Issuer's knowledge, be true and correct in all material respects and
the Issuer shall not knowingly conceal any material fact, in
connection with any such Claim or potential Claim.
(c) Each of the Parties hereby acknowledge that in the case of any
material breaches or misrepresentations of either the Guarantor, in
the case of (a) above, or the Issuer, in the case of (b) above, the
Underwriter may void the Insurance Policy, retain the premium paid
therefore and refuse to compensate the Insured for any Loss.
3. DELEGATION OF INSURED'S DUTIES AND OBLIGATIONS.
The Insured hereby delegates to each of the Issuer and the Guarantor and
each of the Issuer and the Guarantor hereby accepts all duties and obligations
of the Insured under the Insurance Policy (the "DELEGATED OBLIGATIONS"),
EXCLUDING, HOWEVER, any obligation (i) to apply for the Insurance Policy; (ii)
related to the submission of a Claim pursuant to Section 7.1(a) of the Insurance
Policy; (iii) not to disclose the details of the Insurance Policy, as provided
for in Section 8.7 of the Insurance Policy; (iv) not to cause an exclusion under
Article V of the Insurance Policy, insofar as such exclusion would result from
an act or omission by the Insured; (v) related to limitations on the assignment,
amendment or waiver of the Insurance Policy or any provision thereunder, as
provided for in Sections 8.2 and 8.4 of the Insurance Policy; and (vi) to
maintain and allow the examination of any records related to the Insurance
Policy, as provided for in Section 8.9 of the Insurance Policy. The Insured
agrees not to take any action, or omit to take any action, that might result in
the cancellation of the Insurance Policy without the express written approval of
the Issuer and the Guarantor. In the event that the Insured takes any action, or
omits to take any action, that might result in the cancellation of the Insurance
Policy, the Insured agrees to undertake to replace the Insurer and the Insurance
Policy with another policy providing equal benefits. The Insured shall bear the
additional fees and expenses associated with this replacement.
The Underwriter hereby agrees to accept performance by each of the
Issuer and the Guarantor of the duties and obligations of the Insured under the
Insurance Policy as provided for herein. The Underwriter hereby acknowledges
that the information contained in the Application for Insurance has been
provided to the Insured by each of the Issuer and the Guarantor.
4. ACCEPTANCE OF TERMS AND CONDITIONS OF THE INSURANCE POLICY.
The Parties hereby acknowledge that the Insurance Policy has certain terms
and conditions that refer to the Guarantor and the Issuer and the compliance by
the Guarantor and the Issuer with certain terms and conditions of the Insurance
Policy. The Guarantor and the Issuer hereby independently agree to perform and
comply with all such terms and conditions in the Insurance Policy that call for
or require any such compliance or performance by the Guarantor and the Issuer.
The Parties hereby acknowledge and agree that the failure to comply or perform
any such terms and conditions of the Insurance Policy may result in, among other
consequences, the breach of this Agreement and the cancellation of the Insurance
Policy or an exclusion of a Claim thereunder.
The Guarantor and the Issuer hereby agree to and accept all the terms and
conditions of the Insurance Policy, including but not limited to all duties and
obligations which have been expressly referred to as duties and obligations on
the Guarantor and the Issuer thereunder, which duties and obligations it hereby
agrees to perform.
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5. ASSIGNMENT, SUBROGATION AND PAYMENT.
(a) Contemporaneous with any Compensation payment under the Insurance
Policy, in addition to any assignments required under Section 7.4 of the
Insurance Policy and subject to the limitation that any such assignment by the
Insured and the Guarantor shall not be in an amount greater than the amount of
Compensation payable by the Underwriter, the Issuer, the Guarantor or the Issuer
shall assign to the Underwriter, and the Underwriter shall be subrogated to, all
of the Issuer's and the Guarantor's rights under the Transaction Documents in
respect of the Loss for which the Compensation is to be paid and all of the
Issuer's and the Guarantor's rights of recovery against any person or
organization in respect of the Loss. The above assignment and subrogation shall
be made in proportion to the amount of Loss for which Compensation is to be
paid. All such assignments shall be free and clear of all claims, defenses,
counterclaims, rights of setoff and other encumbrances, except for those
defenses relating to the Political Risk Event. Notwithstanding any payments made
to the Noteholders from the Reserve Account in connection with an Unfunded
Insured Payment, the Guarantor and/or the Issuer shall not be released from its
obligation to make Insured Payments (or any part thereof) that are the subject
of a Claim. The Guarantor and the Issuer shall execute and deliver all
instruments and documents and do whatever is necessary to secure such rights for
the Underwriter. The Guarantor and the Issuer shall do nothing to materially
prejudice the Underwriter's rights.
(b) In connection with a Claim under Currency Inconvertibility, as a
condition for any Compensation payment, in addition to the assignments required
in 5(a) above, but only to the extent that the Insurer has not otherwise taken
assignments of the right to receive funds in accordance with the terms of
Section 5(a) or has otherwise received funds in respect of any Compensation
paid, the Guarantor and/or the Issuer shall, if required by the Underwriter,
assign and deliver to the Underwriter, by draft, subject to collection, or, at
the Underwriter's option, in cash, the inconvertible Local Currency (the amount
of which shall be determined by reference to the Reference Rate of Exchange on
the Date of Loss) or nontransferable Policy Currency that is the subject of the
Claim. If the Guarantor and/or the Issuer is unable legally to deliver such
currency to the Underwriter, then, in addition to the assignment requirements of
Section 5(a) above, the Guarantor and/or the Issuer shall assign to the
Underwriter right, title and interest in such currency. The Insured, the
Guarantor, or the Issuer shall not be required to assign to the Underwriter an
amount of Local Currency or Policy Currency greater than the amount of
Compensation payable by the Underwriter.
6. INDEMNIFICATIONS.
The Guarantor and the Issuer agree to indemnify and hold harmless the
Noteholders and the Insured and any of its directors, officers, agents or
employees (each such indemnified person, an "INDEMNIFIED PARTY") from and
against any and all liabilities, obligations, losses, damages, penalties,
judgments, costs, expenses or disbursements of any kind whatsoever that may be
imposed on or incurred by, or asserted against, such Indemnified Party in any
way relating to or arising out of (i) any action taken or omitted to be taken by
such Indemnified Party under this Agreement or the Insurance Policy (including,
without limitation, any action taken or omitted to be taken before the date
hereof by such Indemnified Party in preparation for acting thereunder), or (ii)
any action taken or omitted to be taken by the Guarantor and the Issuer under
this Agreement or the Insurance Policy, PROVIDED that the Guarantor and the
Issuer shall not be liable for any portion of any such amount resulting from (i)
the gross negligence or willful misconduct of such Indemnified Party, or (ii) an
exclusion by the Underwriter under Article V of the Insurance Policy which is
caused by the Indemnified Party. This section shall survive the termination of
the Insurance Policy and this Agreement or the resignation or removal of the
Insured.
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7. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire agreement among the Parties with
respect to the matters contemplated herein and supersedes all prior oral and
written agreements, memoranda, understandings and undertakings between the
Parties relating to the subject matter of this Agreement. This Agreement shall
not alter the terms of the Insurance Policy, and to the extent that provisions
of this Agreement are in conflict or inconsistent with the provisions of the
Insurance Policy, the provisions of the Insurance Policy shall govern. This
Agreement or any provision hereof may not be modified, amended, altered or
supplemented except by a written instrument executed and delivered by each of
the Parties.
8. SEVERABILITY.
If any provision of this Agreement shall be declared illegal, invalid or
unenforceable in any jurisdiction, then such provision shall be deemed to be
severable from this Agreement (to the extent permitted by law), and in any event
such illegality, invalidity or unenforceability shall not affect the remainder
hereof.
9. NOTICES.
All communications and notices to be given hereunder shall be in English
and shall be made in writing sent by courier or delivered by hand or facsimile
with receipt acknowledged. Such communications and notices shall be sent to the
addresses and to the attention of the persons specified below, or to such other
address or to the attention of such other person as any of the Parties shall
notify to the other Party or Parties, as the case may be.
If to the Insured:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Finance Unit
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Guarantor:
Companhia de Bebidas das Americas
Centro Empresarial de Sao Paulo
Avenida Xxxxx Xxxxxx Xxxxxx, 215 Bloco F
6 andar
05804-900 Sao Paulo, S.P.
Brazil
Telephone: (00 00) 0000-0000
Facsimile: (00 00) 0000-0000
Attention: Xxxxxxxx Xxxxx Xxxxxxx
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If to the Issuer:
Companhia Brasileira de Bebidas CBB
Centro Empresarial de Sao Paulo
Avenida Xxxxx Xxxxxx Xxxxxx, 215 Bloco F
6 andar
05804-900 Sao Paulo, S.P.
Brazil
Telephone: (00 00) 0000-0000
Facsimile: (00 00) 0000-0000
Attention: Xxxxxxxx Xxxxx Xxxxxxx
If to the Underwriter:
Steadfast Insurance Company
c/o Zurich Emerging Markets Solutions
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
Copies of all notices given hereunder shall be delivered by the Guarantor,
immediately following such delivery or receipt by the Guarantor, to Xxxxx'x
Investor Services, Standard & Poor's, and Fitch at their respective addresses
below:
Moody's Investor Services
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Latin American ABS Monitoring
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Latin American Structured Finance
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
International Structured Finance
All notices or other communications given hereunder shall be deemed to be
effective when actually received. All communications and notices relating to the
Guarantor's rights and obligations under the Insurance Policy, including but not
limited to the Delegated Obligations, shall be given to the Guarantor as
specified in this Section 9. In addition, the Underwriter shall provide copies
to the Guarantor of all communications and notices sent to the Insured under the
Insurance Policy, when such communications and notices are made.
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10. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
11. SURVIVAL RIGHTS.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective legal representatives, successors, transferees and
assigns.
12. CHOICE OF LAW.
Any issue relating to the construction, validity or performance of this
Agreement shall be governed by, read and construed in accordance with the laws
of the State of New York, in the United States of America.
13. DISPUTES AND ARBITRATION.
(a) Any dispute, controversy or claim arising out of, relating to, or
in connection with this Agreement shall be finally settled by arbitration.
The arbitration shall be conducted in accordance with the International
Rules of the American Arbitration Association in effect at the time of the
arbitration. The seat of the arbitration shall be New York, New York,
United States of America, and shall be conducted in English.
(b) The arbitration shall be conducted by three arbitrators. The
claimant initiating the arbitration shall appoint an arbitrator in its
initial request for arbitration. The respondent shall appoint an arbitrator
and so notify the claimant in writing within 45 days of its receipt of the
request for arbitration. The first two arbitrators appointed in accordance
with this provision shall appoint a third arbitrator within 45 days after
the respondent has notified the claimant of the appointment of its
arbitrator. The third arbitrator shall serve as chairperson of the
arbitration.
(c) The arbitral award shall be in writing, state the reasons for the
award, and be final and binding on the Parties. Judgment upon the award may
be entered by any court having jurisdiction over the relevant party or
asset.
14. MODIFICATIONS TO TRANSACTION DOCUMENTS
The Insured, the Issuer and the Guarantor shall not materially modify
the Transaction Documents (including, but not limited to, modifying the
repayment terms of the Insured Notes), without the prior written consent of the
Underwriter (which consent shall not be withheld unreasonably), except such
modifications and amendments which (i) do not change materially the
Underwriter's rights and obligations, (ii) do not change materially any rights
and obligations to which the Underwriter may be subrogated to in the event of a
Claim, or (iii) do not change materially the risk to which the Insured is
exposed and that are covered under the Insurance Policy.
15. CONCERNING THE INSURED
(a) This Agreement is entered into by the Insured, acting not
individually or personally, but solely as Trustee under the Indenture, in
the exercise of the powers and authority conferred on and vested in the
Trustee under the Indenture.
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(b) The undertakings and agreements herein made on the part of the
Insured are made and intended not as personal undertakings and agreements
by the Insured, but are made and intended for the purpose of binding only
the property held in trust pursuant to the Indenture.
(c) Nothing herein contained shall be construed as creating any
liability on the Insured, individually or personally, to perform any
covenant either expressed or implied herein, all such liability, if any,
being expressly waived by the Parties and by any person claiming by, or
through, or under such Party.
(d) Under no circumstances shall the Insured be personally liable to
the Underwriter for the payment of any indebtedness or expenses of the
Issuer or the Guarantor or be liable to the Underwriter for the breach or
failure of any obligation or covenant made or undertaken by the Insured
hereunder.
16. EXECUTION IN COUNTERPARTS
This Agreement and each amendment, waiver and consent with respect hereto
may be executed in any number of counterparts and by different Parties thereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the Parties as of the date first above written.
THE BANK OF NEW YORK, not in its individual
capacity, but solely as indenture trustee
By:
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Name:
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Title:
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COMPANHIA DE BEBIDAS DAS AMERICAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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COMPANHIA BRASILEIRA DE BEBIDAS CBB
By:
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Name:
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Title:
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By:
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Name:
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Title:
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STEADFAST INSURANCE COMPANY
By:
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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WITNESSES:
1.
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Name:
2.
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Name:
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STATE OF ________________ )
) ss:
COUNTY OF _______________ )
On this ____ day of December, 2001 before me, a notary public within and
for said county, personally appeared Xxxxxx X. Xxxxxxx, to me personally known
who being duly sworn, did say that he is a Vice-President, of Steadfast
Insurance Company, one of the persons described in and which executed the
foregoing instrument, and acknowledges said instrument to be the free act and
deed of said corporation.
On this ____ day of December, 2001, before me personally came
___________________ and _____________________to me personally known, who being
by me sworn, did depose and say that they signed their names to the foregoing
instrument as witnesses.
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Notary Public
COMMISSION EXPIRES
[Notarial Seal]
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