EX-4.4 2 a14-6529_1ex4d4.htm EX-4.4

Exhibit 4.4

 

SHARE PURCHASE AGREEMENT AND OTHER COVENANTS

 

By this instrument of Share Purchase Agreement and Other Covenants (“Agreement”), the parties below:

 

On one side, in the capacity of SELLERS,

 

FIBRIA CELULOSE S.A., with head offices at Alameda Santos, 1357 - 6th floor, City of São Paulo, State of São Paulo, enrolled with the Brazilian Taxpayers’ Registry under No. 60.643.228/0001-21, hereinafter referred to as “FIBRIA”, duly represented herein by its authorized representatives;

 

FIBRIA MS CELULOSE SUL MATOGROSSENSE LTDA., with head offices at Alameda Santos, 1357 - 7th floor, City of São Paulo, State of São Paulo, enrolled with the Brazilian Taxpayers’ Registry under No. 36.785.418.0001-07, hereinafter referred to as “FIBRIA MS”, duly represented herein by its authorized representatives;]

 

FIBRIA and FIBRIA MS hereinafter collectively referred to as “SELLERS”;

 

And, on the other side,

 

PARKIA PARTICIPAÇÖES S.A., with head offices at Av. das Américas n° 500, bloco 2, sala 301, parte, Barra da Tijuca, Rio de Janeiro-RJ, enrolled with the Brazilian Taxpayers’ Registry under No. 16.563.671/0001-09, hereinafter referred to as “PARKIA”, duly represented herein by its authorized representatives;

 

PARKIA hereinafter referred to as “BUYER”;

 

SELLERS and BUYER are hereinafter referred to individually as “Party” and collectively as “Parties”.

 

WHEREAS:

 

I.                                        On the date of this Agreement, SELLERS are the owners or beneficial owners of all assets described in Appendix I attached hereto;

 

II.                                   SELLERS intend to carry out the corporate restructuring as described in and in accordance with the provisions of Section 2 of this Agreement (“Reorganization”), in which the portion of the Assets to be selected by BUYER (“Selected Assets”) pursuant to technical and legal due diligences shall be contributed as equity capital to a minimum of

 



 

four(4) newly-formed special purpose companies, organized pursuant to the Reorganization and exclusively held by SELLERS (hereinafter collectively referred to as “NEWCOS”);

 

III.                              Upon the completion of the Reorganization, the Parties intend to implement a transaction that consists of: i) the sale by SELLERS, and acquisition by one or more of BUYER’S Affiliates and/or Related Companies, of the shares of the NEWCOS, free and clear from any and all Liens (“Shares”); and ii) the entering into a long term forest harvesting partnership between the NEWCOS and SELLERS by which SELLERS intend to develop forestry activities on the Selected Assets and share the results with the NEWCOS, in accordance with the terms and conditions provided for in this Agreement, and subject to the terms and conditions provided for in the Forestry Partnership Agreement; (iii) the entering into an agreement between the NEWCOS and the SELLERS and FIBRIA INTERNATIONAL TRADE GMBH providing for the supply of NEWCOS’ parcel of the production of standing timber derived from the Forestry Partnership Agreement to SELLERS and FIBRIA TRADING, pursuant to the terms and conditions of the Standing Timber Supply Agreement (‘i’, ‘ii’ and ‘iii’, collectively, the “Transaction”).

 

NOW, THEREFORE, in order to effect such Transaction and in consideration of the mutual covenants, representations, warranties and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties agree as follows:

 

SECTION ONE - DEFINITIONS

 

1.1.                            The following terms, as used in any of the agreements of the Transaction, shall have the meanings set forth below:

 

“Affiliate” of any Party means any other party which directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with such Party. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) as used with respect to any Party means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Party, whether through the

 

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ownership of voting securities, by contract or otherwise. For the avoidance of doubt, with respect to any Party, any investment fund, special purpose vehicle or segregated account that has appointed such Party as investment manager, general partner, advisor or similar role under an investment, management, advisory, partnership or similar agreement shall be deemed an Affiliate of such Party.

 

“Allocated Possession Areas” has the meaning set forth in Section 4.1.6.1.

 

“Anti-corruption Laws” has the meaning set forth in Section 12.12.

 

“Anti-corruption Policy” has the meaning set forth in Section 12.12.

 

“APP Areas” are permanent preservation areas as described in the Brazilian Forestry Code as modified from time to time.

 

“Approved Bidders” shall have the meaning set forth in Section 12.5.5.

 

“Arbitration” has the meaning set forth in Section 14.2.

 

“Assets” are all the assets listed in Appendix I hereto, presented to BUYER by SELLERS.

 

“Base Price” has the meaning set forth in Section 3.1.

 

“Brazil” means the Federative Republic of Brazil.

 

“Brazilian Corporations Law” means Law No. 6,404, dated December 15, 1976, as amended from time to time.

 

“Breakup Fee” has the meaning set forth in Section 10.1.

 

“Business Day” means any day other than a Saturday, Sunday, or public holiday under the laws of Brazil or other day on which commercial banks in Brazil are required or authorized to close under applicable law.

 

“Buyer” means PARKIA.

 

“Buyer’s Conditions Precedent” has the meaning

 

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set forth in Section 5.1.

 

“Buyer’s Contingencies” has the meaning set forth in Section 11.2.

 

“Buyer’s Right to Bid” has the meaning set forth in Section 12.8.

 

“Buyer’s Right to Match” has the meaning set forth in Section 12.7.

 

“CADE” means the Brazilian Administrative Council for Economic Defense.

 

“Calendar Day” means any calendar day of the gregorian calendar.

 

“Casualty” has the meaning set forth in Section 12.11.

 

“Cause by Buyer” has the meaning set forth in Section 10.4.

 

“Claim” means any loss or damage which is required to be indemnified pursuant to this Agreement.

 

“Closing” has the meaning set forth in Section 7.1.

 

“Closing Date” has the meaning set forth in Section 7.1.

 

“Closing Price” has the meaning set forth in Section 3.5.

 

“Confidential Information” has the meaning set forth in Section 12.1.

 

“Contingency” has the meaning set forth in Section 4.1.1.2.

 

“Counter-Offer” shall have the meaning set forth in Section 12.5.2.

 

“Discount” has the meaning set forth in Section 3.4.

 

“Disturbance Third-Party Claim” has the meaning set forth in Section 13.1(ii).

 

“Disturbed Land” has the meaning set forth in Section 13.1(ii).

 

“Due Diligence” has the meaning set forth in Section 6.1.

 

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“Earn-out” has the meaning set forth in Section 3.8.

 

“Earn-out 7” has the meaning set forth in Section 3.8.1.

 

“Earn-out 14” has the meaning set forth in Section 3.8.2.

 

“Earn-out 21” has the meaning set forth in Section 3.8.3.

 

“Earn-Out Level” has the meaning set forth in Section 3.8.1.

 

“Excluded Assets” has the meaning set forth in Section 3.2(a).

 

“Exercise Notice” has the meaning set forth in Section 12.5.7.1.

 

“Extended Prior Notice” shall have the meaning set forth in Section 12.4.1.

 

“Fair Market Value” has the meaning set forth in Section 3.1.1.

 

“FNP” means the Land Market Analysis Review issued by Informa Economics FNP South America.

 

“Force Majeure” has the meaning set forth in Section 12.11.

 

“Forestry Partnership Agreement” or “FPA” means, collectively, the agreements to be executed by and between the NEWCOs and SELLERS on the Closing Date that shall establish the terms and conditions of the partnership to be established to implement forestry activities on the Selected Assets, substantially in the form of Appendix III(ii) attached hereto.

 

“Geo-referencing” shall have the meaning set forth in Section 4.1.2.

 

“Guarantee” has the meaning set forth in Section 13.2.

 

“IGP-M” means the fluctuation of the General Market Price Index published by Fundação Getúlio Vargas (“IGP-M/FGV”) or, in case the IGP-M/FGV is eliminated or deemed legally inapplicable hereto, the Parties hereby agree that the amounts agreed in this Agreement shall be automatically adjusted in accordance with (i) the IPCA - Broad Consumer Price Index, published by the Brazilian Institute of Geography and Statistics (“IPCA/IBGE”), or (ii) the

 

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General Price Index - Domestic Availability announced by Fundação Getúlio Vargas (“IGP-DI/FGV”), in this order, or, where it is not possible to use them, another official index in use, recognized and lawfully permitted, among the indices that best reflect the inflation rate in the period, in which case such new index shall be stipulated by the Parties by mutual agreement and shall be specified in an amendment hereto.

 

“INCRA” means the Brazilian National Institute for Settlement and Agrarian Reform.

 

“Indemnified Party” has the meaning set forth in Section 11.3.

 

“Indemnifying Party” has the meaning set forth in Section 11.3.

 

“Initial Offer” shall have the meaning set forth in Section 12.5.1.

 

“Land Appreciation” has the meaning set forth in Section 3.8.

 

“Land Subject to Withdraw” shall have the meaning set forth in Section 12.4.

 

“Last Rotation” means the harvesting of the third (3rd) rotation, or, if the term is extended, the fourth (4th) or the fifth (5th) rotations, considering the forest maturity timeline for each of the timberlands operational units (“Plots”), that shall not be planted in any of the Selected Assets after the 18th anniversary of the FPA.

 

“Law” means all applicable national, state or local laws, statutes, legislation, rules, regulations, constitutions, codes, ordinances and similar provisions having the force of law and all judgments, writs, rulings, orders, decrees, injunctions or decisions of any federal, state or local government, court of competent jurisdiction, administrative agency or commission or other governmental, public or regulatory authority or instrumentality.

 

“Liens” means, with respect to any asset, any mortgage, pledge, charge, security interest, encumbrance, lien (statutory or other) of any kind or nature whatsoever (including any conditional sale or other title retention agreement or any other contractual or statutory arrangement or provision

 

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having substantially the same economic effect as any of the foregoing).

 

“MAI” means the measure of the average growth rate per year of standing timber, in cubic meters per hectare per year.

 

“Material Adverse Effect” has the meaning set forth in Section 10.4(a).

 

“Mean Annual Increment” has the same meaning of MAI.

 

“NEWCOs” are the special purpose companies that SELLERS shall incorporate under the form of corporation (S.A), for the purposes of implementing the Transaction, as set forth in Section 2.1.

 

“Non-Complying Selected Asset” has the meaning set forth in Section 3.7.

 

“Non-Transferred Assets” has the meaning set forth in Section 13.1(i).

 

“Notice” has the meaning set forth in Section 15.1.

 

“Plantable Area” means the area being feasible and permissible, under the Law, for the successful commercial production of eucalyptus timber and all component processes of such production, including, without limitation, planting, management and harvesting.

 

“Plantable Area Assessment Criteria” has the meaning set forth in the Appendix IV attached hereto;

 

“Plantable Area per Region” has the meaning set forth in Appendix 3.2(a)(ii).

 

“Put Option” has the meaning set forth in Section 13.1.

 

“Put Option Agreement” means, collectively, the agreements to be executed by and between the NEWCOs and SELLERS at the Closing Date by which SELLERS shall grant the NEWCOs an option to sell back any of the Selected Assets considering the provisions of Section 13.

 

“Put Option Exercise Date” has the meaning set forth in Section 13.1.1.

 

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“Put Option Exercise Notice” has the meaning set forth in Section 13.1.1.

 

“Put Option Price” has the meaning set forth in Section 13.1.2.

 

“Reais” means the lawful currency of Brazil.

 

“Reduced Area” has the meaning set forth in Section 3.6(i).

 

“Region” shall mean the each of the areas as indicated in the maps of Appendix VI.

 

“Regular Prior Notice” shall have the meaning set forth in Section 12.4.1.

 

“Reorganization” has the meaning set forth in Section 2.1.

 

“Replacement Assets” are the real estate properties that meet the criteria for replacement as established in Appendix 3.2(a)(i) and that either (a) are agreed by the BUYER in its sole discretion to have a value equivalent to the Non-Transferred Assets, or (b) are determined by an Independent Appraiser selected by the BUYER to have a value at least equivalent to the Non-Transferred Assets (provided that SELLERS will be entitled to withdraw any such offer).

 

“RERO” means Real Estate Registry Officer.

 

“Reserve Areas” shall mean areas of the Selected Assets which are required by Law to be reserved and not used for commercial production, including, without limitation, legal reserve areas, permanent preservation areas and other areas protected by Law.

 

“Restricted Bidders” shall have the meaning set forth in Section 12.5.5.

 

“Restricted Companies” means the two (2) companies mentioned in Section 12.6 and listed in Appendix 12.6.

 

“Right of First Offer” has the meaning set forth in Section 12.5.1.

 

“Right of First Offeron the Land Subject to Withdraw” has the meaning set forth in Section 12.4.2.

 

“Right of First Refusal” shall have the meaning set forth in Section 12.5.3.4.

 

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“Right to Withdraw” has the meaning set forth in Section 12.4.

 

“Sale Notice” shall have the meaning set forth in Section 12.5.

 

“Satisfactory Result” has the meaning set forth in Section 5.1 (iv).

 

“Selected Assets” are all assets listed in Appendix II attached hereto selected by BUYER out of the Assets, subject to further modification in case of any replacement by BUYER of one or more Selected Assets for other ones among the Assets listed in Appendix I, as a result of technical and legal due diligence until the date of closing in accordance with the terms of this Agreement.

 

“Selected Assets Notice” has the meaning set forth in Section 3.3.

 

“Sellers’ Conditions Precedent” has the meaning set forth in Section 5.2.

 

“Sellers’ Contingencies” has the meaning set forth in Section 11.1.

 

“Seller’s Due Diligence” has the meaning set forth in Section 5.2(ix).

 

“Sellers’ Offer” has the meaning set forth in Section 12.4.2.2.

 

“Shared Contingency Notice” has the meaning set forth in Section 11.5.

 

“Specified Index” means the Bank of America/Merrill BB US High Yield Index (H0A1 on Bloomberg).

 

“Shares” are all the shares of the capital of the NEWCOs.

 

“Signing Date” means the date of the signing of this Agreement by all the Parties.

 

“Standing Timber Supply Agreement” or “FSA” means the agreement to be executed by and between the NEWCOs and SELLERS and FIBRIA TRADING on the Closing Date that shall establish the terms and conditions of the supply of NEWCOS’ parcel of the production of standing timber derived from the Forestry Partnership Agreement to SELLERS and FIBRIA TRADING, substantially in the form of Appendix III(iii) attached hereto.

 

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“Subject Land” shall have the meaning set forth in Section 12.5.

 

“Surplus Area” has the meaning set forth in Section 3.6(ii).

 

“Tax” or “Taxes” means any national, local, foreign or other income, gross receipts, ad valorem, franchise, profits, sales or use, transfer, registration, excise, utility, environmental, communications, real or personal property, capital stock, license, payroll, wage or other withholding, employment, social security, severance, stamp, occupation, alternative or add-on minimum, estimated and other Taxes of any kind whatsoever, whether computed on a separate or combined, unitary or consolidated basis or in any other manner, including deficiencies, penalties, additions to Tax, and interest attributable thereto.

 

“Terminating Party” has the meaning set forth in Section 10.1.

 

“Title Transfer” means the transference of the Selected Assets to NEWCO’s.

 

“Third-Party(ies) Claim” has the meaning set forth in Section 11.4.

 

“Third-Party(ies) Claim Notification” has the meaning set forth in Section 11.4.

 

“Total Earn-Outs” has the meaning set forth in Section 3.8.

 

“Transaction” has the meaning set forth in the Whereas III.

 

“Verified Plantable Area” means that portion of the Selected Assets to be determined in the form of Appendix V and in accordance with the procedures set out in the Appendix IV attached hereto, as (i) satisfying the Plantable Area Assessment Criteria and (ii) being feasible and permissible under the Law, for the successful commercial production of eucalyptus timber and all component processes of such production, including, without limitation, planting, management and harvesting and ancillary

 

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and related activities.

 

1.1.                            For the purposes of this Agreement: (a) words (including capitalized terms defined herein) in the singular shall be held to include the plural and vice versa and words (including capitalized terms defined herein) of one gender shall be held to include the other gender as the context requires; (b) the terms “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Appendixes) and not to any particular provision of this Agreement, and Article, Section and Appendix references are to the Articles and Sections of and the Appendix to this Agreement, unless otherwise specified; (c) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation”; (d) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise specified; (e) all references herein to “R$” or reais shall refer to Reais, unless otherwise specified.

 

1.2.                            The Article and Section headings contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.

 

SECTION TWO - REORGANIZATION AND PURCHASE AND SALE

 

2.1.                            Pursuant to the provisions, terms and conditions of this Agreement, SELLERS agree, irrevocably and irreversibly, to, before the Closing Date: (i) incorporate NEWCOS; (ii) subscribe NEWCOS Shares, and (iii) contribute, assign, and transfer to the NEWCOS the Selected Assets in order to fully pay-up NEWCOS’ capital stock. The Selected Assets shall be transferred to the NEWCOS at the Closing Price.

 

2.2.                            On the Closing Date, subject to the satisfaction of the Conditions Precedent (as defined in Section 5 hereof), SELLERS agree irrevocably and irreversibly to assign and transfer one hundred per cent (100%) of NEWCOS Shares to BUYER, and BUYER agrees, irrevocably and irreversibly, to acquire NEWCOS Shares and pay the

 

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Closing Price to SELLERS in accordance with Section 3 below.

 

SECTION THREE - PRICE AND PAYMENT

 

Base Price

 

3.1.                            The purchase price for NEWCOS Shares is of one billion six hundred and fifty million Reais (R$ 1,650,000.00 (the “Base Price”). The Base Price shall: (i) be subject to the Closing Price Adjustment and Discount as provided in Sections 3.2 to 3.4 hereof in order to establish the Closing Price; (ii) be paid and/or withheld by BUYER, as applicable, in accordance with the provisions of Sections 3, 7 and 8.

 

3.1.1.                  The Base Price has been determined taking into consideration certain data provided by SELLERS, and information collected by the BUYER during its preliminary due diligence and shall be considered general and preliminary due to the fact that BUYER has not performed the Due Diligence and the final determination of the Selected Assets and their fair market value shall be made by the BUYER following the completion of its Due Diligence and must: a) reflect the objective of long term forest plantation management; b) reflect evidenced productivity on a property specific basis, and c) be determined using a combination of discounted cash flow methodology and, to the extent possible, recent and comparable market transactions, if any (“Fair Market Value”).

 

Adjustments to Base Price on the Closing Date

 

The Base Price shall be subject to the following adjustments:

 

(a)                                 If until December 2nd 2013, BUYER identifies any Liens (except for the Liens listed in Appendix 9.1 (x) and other than Liens consented to by BUYER at its sole discretion) related to any of or portion of any of the Selected Assets, the BUYER may require the SELLERS to (i) replace those areas with other real estate properties comprised among the Assets with due regard to the criteria for such replacement as established in Appendix 3.2(a)(i) or (ii) if there are no compatible areas listed in

 

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Appendix I to replace such areas according to Appendix 3.2(a)(i), exclude those areas from the Selected Assets (such properties the “Excluded Assets”), such that the Closing Price is reduced for each lacking hectare or portion thereof based on the value of the hectare of the Plantable Area per Region, as specified in the Appendix 3.2(a)(ii).For greater clarity, if BUYER identifies any Liens after December 2nd 2013, it will be dealt with the Put Option set forth under Section XIII;

 

(b)                                 If before the Closing Date, it is verified, according to the methodology specified in Appendix IV, that the Plantable Area of certain real estate property comprised in the Selected Assets do not match with such data provided by SELLERS, the Parties agree to adjust the Closing Price based on the variance of the Plantable multiplied by the original value of the hectare of the Plantable Area per Region, as specified in the Appendix 3.2(a)(ii).

 

(c)                                  If before the Closing Date, it is established that Validated Potential MAI of the forest of all Plantable Area located across all Regions, differs from the Potential MAI for the same forest, as per methodology for comparison of the Potential MAI with the Validated Potential MAI as indicated in Appendix 3.2(c.2), such that the value impact is less than or equal to 3% above or below the Base Price as indicated in Appendix 3.2 (a.ii), then no change in Base Price will be affected. If such value impact is greater than 3% above or below the Base Price, then Section 3.8 applies. The Parties agree that between the execution of this Agreement and the Closing Date, BUYER’S cash flow model (base for Assets valuation) shall be disclosed to SELLERS exclusively for the purpose of the calculations provided for in this Section 3.2(c) and Section 3.8.

 

3.3.                            Until December 2nd 2013, BUYER shall notify SELLERS in writing of any requirement, pursuant to Section 3.2 (a), for any adjustments to the Base Price (the “Selected Assets Notice”) in order to determine the Closing Price. SELLERS shall notify BUYER following the receipt of the Selected

 

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Assets Notice, presenting the adjusted balance sheet of NEWCOS reflecting the transfer of the Selected Assets no later than December 20th 2013. For greater clarity, if BUYER identifies any reasons for adjustment after December 2nd 2013, it will be dealt with the Put Option set forth under Section XIII.

 

Discount

 

3.4.                            The Parties agree on a discount of 15% (“Discount”) to be applied to the Base Price duly adjusted as provided in the Section 3.2 above for purposes of payment on the Closing Date.

 

Closing Price

 

3.5.                            Subject to the terms and conditions of this Agreement, on the Closing Date, BUYER shall pay to the SELLERS the Base Price as adjusted (if any) in accordance with Sections 3.2 to 3.4 hereof (the “Closing Price”) in consideration for the acquisition of the Shares of NEWCOS, with due regards to the Section 3.7 below.

 

Post-Closing Date adjustments to the Closing Price

 

Forestry Code Adjustments

 

3.6.                            SELLERS have the right to, within 18 months counted from the date of this Agreement, perform a technical due diligence to verify if the new Brazilian Forestry Code has caused any impact in the Reserve Area that increases or decreases the Plantable Area of any of real estate properties that comprise the Selected Assets, which shall be evidenced by the issuance of the respective environmental license. The Closing Price shall be increased or reduced up to five per cent (5%), as follows:

 

(i)                                    if the Plantable Area which was included in the Verified Plantable Area has been reduced (the amount of such reduction being referred to herein as the “Reduced Area”), SELLERS shall pay back to BUYER, by way of a post-Closing adjustment to the Closing Price, the amount, per hectare (or fraction of hectare) of the Reduced Area determined for each of the real estate property of the Selected

 

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Assets, as indicated in the Appendix 3.6(i);

 

(ii)                                if the Plantable Area which was included in the Verified Plantable Area has increased (the amount of said increase being referred to herein as the “Surplus Area”), then BUYER shall pay to SELLERS, in the form of a post-Closing adjustment of the Closing Price, the amount, per hectare (or fraction of hectare) of the Surplus Area determined for each of the real estate property of the Selected Assets, as indicated in the Appendix 3.6(i). Payments from the BUYER to the SELLERS under this Section 3.6(ii) shall not be considered due if SELLERS are in default with any of its obligations under this Agreement or under the FPA nor shall attract any cost of carry nor shall be used to compensate any amounts due by SELLERS to the BUYER.

 

Reserve Areas Adjustments

 

3.7.                            If until five (5) years after the Closing Date, it is established that certain real estate properties comprised in the Selected Assets included in a same bioma do not include sufficient hectares of Reserve Areas to comply with the Law (“Non-Complying Selected Asset”), SELLERS shall provide BUYER with additional Reserve Areas up to the amount necessary to comply with the Law, provided that BUYER shall have the right, acting reasonably, to approve such additional real properties. If SELLERS do not provide such additional Reserve Areas needed to comply with the Law, then BUYER may (i) require from SELLERS the replacement of such Non-Complying Selected Asset with other real properties comprised among the Assets with due regard to the criteria for such replacement as established in Appendix 3.2(a)(i) by means of the exercise of the Put Option provided for under Section 13 below; or (ii) if there are no compatible areas listed in Appendix I to replace such areas according to Appendix 3.2(a)(i), require from SELLERS the post-Closing adjustment of the Closing Price such that the Closing Price is for each lacking hectare or portion thereof based on the value of the hectare of the Plantable Area per Region, as specified in the Appendix 3.2(a)(ii). The costs of the transfer of title of the Non-Complying Selected Asset, if applicable, from the NEWCOS to the SELLERS, under the terms of this Section 3.7, shall be incurred by the SELLERS.

 

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MAI Adjustments

 

3.8.                            If the value impact of the MAI valuation calculated as per Section 3.2 is greater than 3% of the Base Price upwards or downwards, then, after six (6) years from the Closing Date the Parties will test the MAI potential again, using the same methodology as per Section 3.2 and using the BUYER’S model to determine the value impact of such MAI variance. If any resulting negative value impact on the Base Price is greater than 3%, then BUYER shall require the SELLERS to pay such post-Closing MAI adjustment in accordance with the chart attached hereto as Appendix 3.2(c.1). If any resulting positive value impact on the Base Price is greater than 3%, then SELLERS shall require BUYER to pay such post-Closing MAI adjustment in accordance with the chart attached hereto as Appendix 3.2(c.1).

 

“Earn-out”

 

3.9.                            The Closing Price shall be subject to adjustments in each of the 7th, 14th and 21st anniversaries of the Closing Date up to the Discount (“Earn-out”). The maximum accumulated Earn-out is equal to the Discount (“Total Earn-out”). On the date 0 and on each 7th, 14th and 21st anniversaries the weighted average land price (R$/ha) (L0, L7, L14 and L21) shall be calculated based on: (i) Land price per Region published in the FNP report (R$/ha); and (ii) Land Index (%) according the representativeness of each Region, as referred to in the Appendix 3.9.

 

3.9.1.                  In years 7, 14 and 21 the weighted average price shall be used to calculate the total Land Appreciation, according to the following formulas:

 

·                  Land Appreciation at 7th anniversary = L7 / [ Lo x ( 1+ IGPMAccum7)]

 

·                  Land Appreciation at 14th anniversary = L14 /[ Lo x ( 1+ IGPMAccum14)]

 

·                  Land Appreciation at 21th anniversary = L21 / [ Lo x ( 1+ IGPMAccum21)]

 

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Where:

 

L0: Land Index year 0

L7: Land Index year 7

L14: Land Index year 14

L21: Land Index year 21

 

IGPMAccum: It is the total IGPM accumulated from closing (year 0) up to each anniversary, in percentage)

 

3.9.2.                  The Land Appreciation at each anniversary shall be compared to the table of the Appendix 3.9.2 in order to identify the Earn-out Level (P7, P14 and P21) to be applied in the formula of the Sections below.

 

3.9.3                     In the 7th anniversary of the Closing Date, BUYER shall pay SELLERS an amount equivalent to up to 1/3 (one third) of the Total Earn-out, to be calculated in accordance with the following formula (“Earn-out7”), which result shall be analyzed in consideration of the table attached as Appendix 3.9 (“Earn-out Level”):

 

Earn-out7 =[Total Earn-out x (1/3) x P7] x ( 1 + IGPMAccum7)

 

Where

 

P7: Earn-out Level according to Land Appreciation at 7th anniversary

IGPMAccum7: It is the total IGPM accumulated from closing (year 0) up to 7th anniversary

 

3.9.3.1.        If the Earn-out7 calculated is equal to zero or lower than zero, no Earn-out shall be due.

 

3.9.4.                  In the 14th anniversary of the Closing Date, BUYER shall pay SELLERS an amount equivalent to up to 2/3 (two third) of the Total Earn-out, to be calculated in accordance with the following formula (“Earn-out14”), which result shall be analyzed in consideration of the Earn-out Level.

 

Earn-out14 = [Total Earn-out x(2/3)x P14 - Earn-out7/ (1+IGPMAccum7)]x (1+IGPMAccum14)

 

Where:

 

P14: Earn-out Level according to Land Appreciation at 14th anniversary

 

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IGPMAccum7: as defined above

IGPMAccum14: It is the total IGPM accumulated from closing (year 0) up to 14th anniversary

 

3.9.4.1.        If the Earn-out14 calculated is equal to or lower than zero, no Earn-out shall be due. If the Earn-out14 is higher than zero, BUYER must pay the equivalent to SELLERS.

 

3.9.5.                  In the 21st anniversary of the Closing Date, BUYER shall pay SELLERS an amount equivalent to up to the Total Earn-out, to be calculated in accordance with the following formula (“Earn-out21”), which result shall be analyzed in consideration of the Earn-out Level:

 

Earn-out21=[Total Earn-out xP21-

Earn-out7/ (1 +IGPMAccum7)-

(Earn-out14/ (1+IGPMAccum14)]x (1 + IGPMAccum21)

 

Where:

 

P21: Earn-out Level according to Land Appreciation at 21th anniversary

IGPMAccum7: as defined above

IGPMAccum14: as defined above

IGPMAccum21: It is the total IGPM accumulated from closing (year 0) up to 21th anniversary

 

3.9.5.1.        If the Earn-out21 calculated is equal to or lower than zero, no Earn-out shall be due. If the Earn-out21 is higher than zero, BUYER must pay the equivalent to SELLERS.

 

3.9.6.                  Any payments relating to the adjustment of the Earn-out7, Earn-out14 and of the Earn-out21 shall not be made in the event that any of the SELLERS is or has at any time been in breach of or in default under any other agreement of the Transaction or in breach of or in default under any of the obligations assumed in this Agreement, unless and until the SELLERS have cured any and all of such defaults and/or the breaches to the extent capable of being cured. In such case, any payments due from BUYER to SELLER shall not be subject to any interest adjustment or indexation.

 

3.9.7.                  Nothing in this Section 3 above shall be deemed as a waiver of BUYER’S right to exercise any and all of the remedies it may have under this Agreement or in the Law.

 

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SECTION FOUR - COVENANTS OF SELLERS

 

4.1.                            SELLERS covenant and agree with BUYER that the SELLERS will undertake the following steps on or before the Closing Date (or such later or other date expressly as set forth in this Section 4 or elsewhere in this Agreement):

 

4.1.1.                  On or before the Closing Date, to take all necessary measures for the implementation of the Reorganization and to assure that all such measures have been taken according to the requirements of this Section 4.1.1: (i) each of the NEWCOS shall have been duly formed and be validly existing as a newly-formed Brazilian corporation with head offices, respectively, in the states of Sao Paulo, Espírito Santo, Mato Grosso do Sul and Bahia; (ii) SELLERS shall contribute, transfer and convey to NEWCOS all of the Selected Assets as indicated by BUYER at the Selected Assets Notice and NEWCOS shall be the sole and lawful owner of, and holder of good and marketable title and possession to, all of the Selected Assets, free and clear from any Liens, subject to Sections 4.1.2, 4.1.3 and 4.1.4; and (iii) SELLERS shall be the sole and lawful holders of one hundred percent (100%) of NEWCOS Shares, fully subscribed and paid-up, free and clear from any Liens.

 

4.1.1.1.        SELLERS shall proceed with the conveyance and transfer of Selected Assets to the capital stock of NEWCOS, free and clear from any Liens (other than Liens consented to by BUYER in its sole discretion), as well as have in their possession in the name of NEWCOS (so that they shall be in a position to deliver them to BUYER at the Closing Date) the following valid certificates for each of the NEWCOS: (a) Debt Clearance Certificate issued by the National Social Security Institute (INSS); (b) Certificate of Good Standing concerning the collection of the contributions related to the Severance Fund/ Social Security Contributions (FGTS); (c) Clearance Certificate concerning the Federal Tax Debts and Overdue Federal Tax Liabilities (excluding Social Security Contributions).

 

4.1.1.2.        SELLERS shall ensure that NEWCOS shall not have any Contingency (as defined in this Section 4.1.1.2) on the Closing Date. For the purposes of this Agreement, the term

 

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Contingency” means, without limitation, any liability, claim or obligation of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any Tax Contingency under the provisions of any Law, contract or other instrument.

 

4.1.1.3.        BUYER shall have the right to analyze all corporate documents to be presented to relevant Brazilian authorities in order to enable BUYER to participate in and cooperate with SELLERS in the completion of the necessary procedures related to the conveyance to NEWCOS of the Selected Assets including, but not limited to, the Title Transfers that take place before the Closing, and BUYER shall be entitled but not obliged to suggest such modifications and complementary amendments to the mentioned corporate documents, which SELLERS shall incorporate to the extent reasonably requested by BUYER.

 

4.1.2.                  No later than on the Closing Date, SELLERS shall take all necessary measures for the conclusion of the Geo-referencing and its registration in the real estate record files of the Selected Assets, as required by Law and this Agreement. In addition, SELLERS shall present the results of the Geo-referencing procedure for each of the Selected Assets to BUYER within five (5) Business Days of its completion, and shall grant BUYER not less than thirty (30) Calendar Days to review the results of the Geo-referencing procedure and, if BUYER so wish, present to SELLERS its proposal to the Geo-referencing procedure before the results of such procedure are submitted to the National Institute for Settlement and Agrarian Reform (“INCRA”) by SELLERS, under the general principles that BUYER shall have the right to analyze, respectively, all of the documents to be submitted by the SELLERS to the competent authorities in relation to Selected Assets, in order to allow BUYER to participate and cooperate with the SELLERS for the conclusion of the necessary procedures related to the Title Transfer, and the SELLERS shall incorporate the terms required by BUYER to the extent reasonably acceptable.

 

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4.1.2.1.        In the event that SELLERS are unable to conclude the Geo-referencing in accordance with this Section 4.1.2, SELLERS shall not as a result thereof then be in default under this Agreement and SELLERS shall from and after the Closing Date be obligated to continue to seek to conclude the Geo-referencing during the 2-year period after the Closing Date, subject to a possible extension to be granted by BUYER in the event that SELLERS evidence reasonable progress in the Geo-referencing, provided that such extension shall not exceed three (3) years, in such a way that the Geo-referencing shall be concluded within the fifth (5th) year following the Closing Date.

 

4.1.3.                  SELLERS shall take all measures required by Law and this Agreement to perfect the Title Transfer prior to the Closing Date and achieve the annotation and final registration in the competent Real Estate Registry Office or other relevant Brazilian authorities for the Title Transfers of the Selected Assets in favor of NEWCOS prior to the Closing Date, in the respective title records.

 

4.1.3.1.        Notwithstanding anything in contrary in this Agreement, in the event that SELLERS are unable to perfect the Title Transfers with RERO prior to the Closing Date, SELLERS shall not be considered in default under the terms of this Agreement and SELLERS shall take all commercially reasonable and diligent good faith efforts, from and after the Closing Date to conclude and perfect the Title Transfers of the Selected Assets during the 2-year period after the Closing Date, subject to a possible extension of such 2-year period to be granted by BUYER in the event that SELLERS evidence reasonable progress in the Title Transfer process, which extension shall not expire later than the fifth (5th) year following the Closing Date.

 

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4.1.4.                  SELLERS shall take all measures required by Law and this Agreement to conclude prior to the Closing Date: (i) the annotation of the Reserve Areas in the real estate record files of the Selected Assets in the competent Real Estate Registry Offices, which shall be achieved either by (a) such annotation in respect of at least 20% of the area of each of the Selected Assets; or (b) by the offsetting of the Reserve Area that should be annotated in relation to one Selected Asset in the record file of another Selected Asset comprised amongst the Selected Assets, as per the requirements set forth by the Law, and (ii) the registration in the real estate record files of the Selected Assets, in the competent Real Estate Registry Offices, of the cancelation of any Reserve Areas that were offset in the Selected Assets in favor of real estate properties that are not part of Selected Assets.

 

4.1.4.1.        Notwithstanding anything in contrary in this Agreement, in the event that SELLERS are unable to complete the annotation, offset or cancelation of the Reserve Areas prior to the Closing Date, SELLERS shall not be considered in default under the terms of this Agreement and SELLERS shall take all commercially reasonable and diligent good faith efforts, from and after the Closing Date to conclude the annotation, offset or cancelation of the Reserve Areas in the Selected Assets during the 2-year period after the Closing Date, subject to a possible extension of such 2-year period to be granted by BUYER in the event that SELLERS evidence reasonable progress in the annotation, offset or cancelation of the Reserve Areas, which extension shall not expire later than the fifth (5th) year following the Closing Date.

 

4.1.5.                  By the Closing Date, SELLERS shall take all necessary measures required by Law and provided for in this Agreement for NEWCOS to take possession of all of the Selected Assets and to enter into the FPA with the BUYER.

 

POSSESSION AREAS

 

4.1.6                     Amongst the Assets there are possession areas held by SELLERS, which quiet and peaceful possession has been held continuously by SELLERS for a period equal to or longer than ten (10) years

 

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(jointly referred to as the “Possession Areas”).

 

4.1.6.1           Up to December 2nd, 2013, BUYER may, at its sole discretion, elect to: (i) include or not such Possession Areas in the Selected Assets (“Allocated Possession Areas”). If BUYER elects to not include the totality or any part of the Possession Areas within the Selected Assets, the BUYER may select (a) to replace the Allocated Possession Areas with other real estate properties comprised among the Assets with due regard to the criteria for such replacement as established in Appendix 3.2(a)(i) or (ii) if there are no compatible areas listed in Appendix I to replace such areas according to Appendix 3.2(a)(i), to adjust the Closing Price, pursuant to the terms of Sections 3.2(a)(i) and 3.2(a)(ii) hereof.

 

4.1.6.2           In order to transfer possession rights of the Allocated Possession Areas to NEWCOS, SELLERS undertake, at their expense and up to the Closing Date, to convey the Allocated Possession Areas, comprised in SELLERS’ Assets, to NEWCOS’ capital stock, after which SELLERS shall: (i) take all necessary measures to obtain the perfected lawful title to the Allocated Possession Areas on behalf of NEWCOS, within two (2) years as of the Closing Date, with a possible extension to be granted by BUYER in case SELLERS evidence reasonable progress, provided that such extension shall not exceed three (3) years, in such a way that the Title Transfer of the Allocated Possession Areas shall be perfected within the fifth (5th) year following the Closing Date; or (ii) in case BUYER decides to continue to pursue perfected lawful title of the Allocated Possession Areas at its own account after such fifth (5th) year anniversary, to fully cooperate with BUYER as long as necessary.

 

4.1.7.                  Nothing in this Section 4.1 shall be deemed as a waiver of BUYER’S right to exercise any and all of the remedies it may have, including, without limitation, those outlined in Section 11 of this Agreement.

 

4.2.                            SELLERS covenant and agree with BUYER that: (i) SELLERS will cause NEWCOS to comply with any and all of their obligations as SELLERS pursuant to this Agreement or required by Law; and (ii) any notice, direction or instruction required to be given

 

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by SELLERS pursuant to this Agreement shall be deemed to be lawfully given and in compliance with this Agreement if given by either of SELLERS; (iii) any notice, direction or instruction required to be given to SELLERS pursuant to this Agreement shall be deemed to be lawfully given and in compliance with this Agreement if given to either of SELLERS and (iv) any right or benefit bestowed by BUYER on either of SELLERS shall be deemed to have been bestowed on SELLERS.

 

SECTION FIVE - CONDITIONS PRECEDENT

 

5.1.                            The completion by BUYER of the purchase of NEWCOS Shares is conditioned upon the full satisfaction, on or before the Closing Date (or such other date as the SELLERS and BUYER may agree under the terms of this Agreement), of each one and all of the following conditions (“BUYER’S Conditions Precedent”) (any of which may be waived by BUYER in its sole discretion by notice in writing to SELLERS):

 

(i)                                    the Reorganization shall have been duly implemented by SELLERS, as set forth in Section 4.1 hereof, and all documents required to complete and perfect the Reorganization required by Law and this Agreement shall be duly filed with the relevant Brazilian authorities, hereby considered without limitation the Trade Board, the Brazilian Revenue Service, the State Treasury Department and Environmental Authorities, as the case may be, and the filing shall evidence the compliance with the SELLERS’ obligations set forth in this Section 5.1, so that each of NEWCOS are able to exercise the rights related to the ownership and to the possession of the Selected Assets, in compliance with all other conditions set forth in this Agreement;

 

(ii)                                all the representations and warranties made by SELLERS herein shall be true and accurate in all their aspects, both on the date of this Agreement and on and as of the Closing Date;

 

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(iii)                            SELLERS shall have performed all obligations required to be performed by them under this Agreement, and complied with all covenants for which compliance by them is required under this Agreement (except for those whose breach is expressly not considered a default under this Agreement), prior to or on the Closing Date;

 

(iv)                             performance of the Due Diligence by BUYER, in accordance with Section 6 hereof and the results of the Due Diligence (1) having not revealed any material fact (including, without limitation, the existence or expectation of any matter, circumstance, event, condition, or other fact) that has not been disclosed in writing by SELLERS to BUYER prior to the Signing Date and accepted by BUYER or any material error in such disclosure or (2) having not revealed any matter that would reasonably be expected to result in BUYER being entitled to terminate this Agreement pursuant to any provision of Sections 10.2 or 10.4 hereof. For clarification purpose, the information provided by SELLERS under the Appendixes of this Agreement are subject to BUYER’S review during the Due Diligence period and, therefore, any material fact existing in such Appendixes shall not be considered accepted by BUYER for the purpose of this section;

 

(v)                                 no termination having occurred, as set forth in Section 10 hereof;

 

(vi)                             BUYER shall have received the documents, agreements and instruments from SELLERS required by Section 8.2 hereof;

 

(vii)                         no Law having been enacted that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited or has an adverse effect on the assets, the business or such Party’s ability to complete the Transaction;

 

(viii)                     the consummation of the transactions contemplated hereby does not violate any final order, decree or judgment of any court or governmental body having competent jurisdiction;

 

(ix)                             none of the Parties is subject to insolvency, out-of-court liquidation or bankruptcy;

 

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(x)                                 the Transaction is approved by CADE;

 

(xi)                             the analysis of the environmental licenses and documents by BUYER does not evidence any area discrepancy or issue or liability that may impact the Plantable Area of the Selected Assets; provided that in case any such issues are found, then the Parties, each acting unilaterally and in its sole discretion, must to the extent reasonably practicable reach an agreement on the adjustment of Base Price due to such findings;

 

(xii)                         no governmental regulatory decision impacts future permitting or licensing of forestry activities on the Selected Assets;

 

(xiii)                     in case of events or changes in debt financing markets that impair ability to secure adequate pricing and terms of debt financing, as follows:

 

(a)                                 movement in the spread or yield of the Specified Index of seventy five (75) basis points;

 

(b)                                 any downgrade in SELLERS’s credit rating by two (2) agencies; and

 

(c)                                  any downgrade in Brazil’s international sovereign debt rating by Moody’s below Baa3 or an equivalent rating issued by any one of the following agencies: S&P or Fitch.

 

5.2.                            The completion by SELLERS of the sale of the NEWCOS Shares is conditioned upon the full satisfaction, on or before the Closing Date, of each one and all of the following conditions (“SELLERS’ Conditions Precedent”) (any of which may be waived by SELLERS in their sole discretion by notice in writing to BUYER):

 

(i)                                    the representations and warranties made by BUYER herein shall be true and accurate in all their aspects, both on the date of this Agreement and on and as of the Closing Date;

 

(ii)                                BUYER shall have performed all obligations

 

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required to be performed by it under this Agreement, and complied with all covenants for which compliance by it is required under this Agreement, prior to or on the Closing Date;

 

(iii)                            SELLERS shall have received the documents, agreements and instruments from BUYER required by Section 8.3 hereof;

 

(iv)                             no termination for cause by SELLERS or default by BUYER having occurred, as set forth in Section 10 hereof;

 

(v)                                 no Law having been enacted that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited or has an adverse effect on the assets, the business or such Party’s ability to complete the Transaction;

 

(vi)                             the consummation of the transactions contemplated hereby does not violate any final order, decree or judgment of any court or governmental body having competent jurisdiction;

 

(vii)                         none of the Parties is subject to insolvency, out-of-court liquidation or bankruptcy;

 

(viii)                     the Transaction is approved by CADE; and

 

(ix)                             conclusion of due diligence by SELLERS of BUYER’S corporate structure, with documents to be provided by BUYER, including but not limited to bylaws, shareholders agreement and debenture deeds (“SELLER’S Due Diligence”) confirming the corporate information provided by BUYER to SELLERS until this date.

 

5.3.                            Except as expressly set forth in this Section 5 and subject to Section 10, there shall be no other condition to the obligations of the Parties under this Agreement or to the consummation by the SELLERS and BUYER of the transactions contemplated hereby.

 

SECTION SIX - DUE DILIGENCE

 

6.1.                            BUYER shall carry out (i) all due diligence that BUYER considers necessary or advisable in connection with the transactions contemplated by

 

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this Agreement, including (but not limited to) technical, financial and legal due diligence in respect of the Selected Assets including (without limitation) any timber and any infrastructure, equipment or improvements thereon, including, without limitation (i.1) physical review of all Assets with full access to all properties and comprehensive access to all information regarding quality of land and timber including, but not limited to, soil quality, site index, rainfall, and annual increment; (i.2) evaluation of age class of standing timber inventory by property and evaluation of SELLERS’ methodology to estimate Potential MAI by real estate property as provided; (i.3) summary description and condition of all infrastructure associated with the Assets including but not limited to roads, bridges and fences; (i.4) confirmation of adequacy of Reserve Areas and APP Areas and other environmental due diligence; (ii) comprehensive legal due diligence including, without limitation, (ii.1) title and geo-referencing survey maps review, review of all permits and licenses, regulatory compliance review, and history and status of all approvals and authorizations from INCRA and other relevant agencies; (ii.2) legal due diligence of SELLERS in respect of SELLERS’ capacity as owners of the Selected Assets, NEWCOS and the implementation of the Reorganization, that shall include but not be limited to Tax, labor, litigation matters and any other potential liability or matter that may impact the Transaction and/or NEWCOS or BUYER’S operation related to the Selected Assets and the Title Transfer to the NEWCOS and/or the possession of the Selected Assets or any other matter which BUYER shall in its sole discretion determine, so as to identify any Contingencies or matters that jeopardize the Transaction agreed (the “Due Diligence”).

 

6.1.1.                  Without limiting the provisions of Section 6.1 above, SELLERS undertake to present the documents listed in Appendix 6.1.1 for the BUYER’S Due Diligence up to November, 29, 2013. SELLERS shall also provide standing timber price by Region as prepared by Deloitte for the prior three (3) years (2011, 2012, and 2013).

 

6.1.2.                  The Parties acknowledge that, due to the limited time for SELLERS to obtain the documents

 

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with the competent public entities, and for BUYER to analyze such documents, the Due Diligence may not be concluded until December 2nd 2013, in which case any adjustments derived from non-satisfactory results found in Due Diligence process shall be made after Closing, with due regard to the mechanisms and guarantees provided for herein. For clarification purposes, any findings after December 2nd 2013, it will be dealt with the Put Option set forth under Section XIII. Nothing in this section shall limit the application of BUYER’S right to terminate this Agreement under the terms of Section 5.1 (iv).

 

6.1.3.                  SELLERS shall provide BUYER with any requested additional documents or information for the completion of the Due Diligence not later than 5 (five) Business Days after each date BUYER requests such additional documents or information in writing, except to the extent SELLERS depend on any third parties (including but not limited to governmental agencies) to produce such documents and information, in which case SELLERS will provide the documents as soon as they are produced by such third parties.

 

6.2.                            SELLERS hereby authorize the representatives of BUYER to have access to the Selected Assets in order to carry out the Due Diligence, provided that BUYER provides two (2) Business Days prior notice to SELLERS.

 

SELECTED ASSETS NOTICE

 

6.3.                            Until December 2nd 2013, even if the Due Diligence has not been concluded, and provided that its preliminary results are satisfactory to the BUYER in its sole discretion, BUYER may send the Selected Assets Notice to SELLERS appointing the final list of the Selected Assets, comprising an area of approximately 210,000 (two hundred and ten thousand) hectares and indicating to which NEWCO each Selected Asset shall be contributed and transferred.

 

6.3.1.                  In case BUYER does not send the Selected Assets Notice to SELLERS in the term provided in Section 6.3, SELLERS shall proceed with the transfer of the Selected Assets listed in Appendix II to NEWCOS, in which case any changes to the

 

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Selected Assets to be transferred to NEWCOS may only be requested after the Closing Date and it will be dealt with the Put Option set forth under Section XIII.

 

6.4.                            For the purpose of Section 5.1 (ix) SELLERS shall provide a Notice informing to BUYER the results of the SELLER’S Due Diligence up to November 29th, 2013. The documents (at least filed (“protocolado”) with the relevant Board of Commerce) for SELLER’S Due Diligence shall be provided by BUYER up to November 26th, 2013.

 

SECTION SEVEN - CLOSING

 

7.1.                            Subject to the satisfaction or waiver of the Precedent Conditions, the closing of the Transaction by means of the execution and delivery by the Parties of any and all agreements related to the Transaction, to be executed in the terms and conditions provided for in this Agreement, and any other documents required for the perfection of those agreements and of the obligations assumed herein (“Closing”) shall take place on December 30, 2013 (the “Closing Date”) in São Paulo, at the offices of Demarest Advogados, at Avenida Pedroso de Moraes, 1201, or at such other date and place as mutually agreed by the Parties in writing.

 

7.2.                            If at the Closing Date one or more of the corporate documents that evidence the transfer of title of the Selected Assets to the NEWCOS is still pending registration with the respective Board of Commerce, or NEWCOS are not duly authorized to operate as a timber company in their respective States (i.e. Bahia, Espírito Santo, Mato Grosso do Sul, and São Paulo), that shall not preclude the Parties from concluding the Transaction but BUYER shall be entitled to hold back the portion of the Closing Price related to the Selected Assets whose transfer to NEWCOS are still pending registration with the Board of Commerce, based on the value of the hectare of the Plantable Area per Region, as specified in the Appendix 3.2(a)(ii) (the “Funds Withheld”).

 

7.2.1.                  The Funds Withheld shall be released in whole or in part to the SELLERS upon the registration of the transfer documents with the

 

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Board of Commerce, BUYER shall pay to SELLERS the portion of the Closing Price that was held back, proportionally to the area of the Selected Assets comprised in the relevant documents that have been registered, as compared to the total area of the Selected Assets for which the corporate documents have not been registered, duly adjusted by IGP-M, within fifteen (15) Business Days as of the receipt by BUYER of a Notice evidencing such registration. For clarification purposes, the cash flow provided in the Standing Timber Supply Agreement shall not be affected.

 

7.2.2                     The Funds Withheld shall be withheld for a maximum term of one (1) year from the Closing Date (“Funds Withholding Period”). If, at the end of the Funds Withholding Period, the Title Transfers to NEWCOS have not been registered in the Board of Commerce, BUYER shall have the option either to: (i) leave the remaining proportion of Funds Withheld and require SELLERS to continue to seek completion of the registration of the Title Transfers to NEWCOS in the Board of Commerce for those portions of the Selected Assets for which the Title Transfers have not been registered in the respective Board of Commerce, for an additional period of one (1) year, or more; or (ii) exercise the right to sell back the Shares of the NEWCO which the Title Transfer has not been registered in the respective Board of Commerce to SELLERS for the amount withheld. For the avoidance of doubt, no decision taken at any time by BUYER in respect to the alternatives described in (i) or (ii) of this Section shall in any circumstances prevent BUYER from exercising any and all of its remedies provided in this Agreement or in Law.

 

7.2.3.                  SELLERS shall notify BUYER in writing within 15 (fifteen) Business Days before the end of the Funds Withholding Period, informing BUYER about the progress made with regard to the completion of the registration of the Title Transfers with the Respective Boards of Commerce. BUYER shall, by the end of the Funds Withholding Period, notify SELLERS in writing of its decision to exercise option (i) or (ii) of Section 7.2.2 above.

 

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7.3.                          If as a result of the delay in transferring NEWCOS’ headquarters to the State where each NEWCO shall operate as a timber company (i.e. Bahia, Espírito Santo, Mato Grosso do Sul, and São Paulo), any NEWCO incurs in any Taxes, SELLERS shall indemnify BUYER accordingly.

 

SECTION EIGHT - CLOSING PROCEEDINGS

 

8.1.                            On the Closing Date, for the Closing of the Transaction, the actions described in Sections 8.2 and 8.3 below shall have been/be performed by the Parties.

 

8.2.                            SELLERS shall deliver to BUYER or cause the performance of the following actions, as the case may be:

 

(i)                                    the execution of the NEWCOS’ corporate books evidencing the transfer of NEWCOS’ Shares to BUYER duly executed by SELLERS and BUYER’S legal representative;

 

(ii)                                resignation letters of the officers and directors of NEWCOS;

 

(iii)                            copies of the corporate documents and powers of attorney evidencing the relevant authorization and powers necessary for its legal representatives, officers or members to execute all relevant documents for the Closing;

 

(iv)                             copies of the following certificates, issued on behalf of or for the benefit of NEWCOS and of SELLERS: Clearance Certificate issued by the National Social Security Institute; (b) Certificate of Good Standing concerning the collection of the contributions related to the Severance Fund (FGTS); (c) Clearance Certificate concerning the Federal Tax Debts and Overdue Federal Tax Liabilities, issued by the Brazilian Revenue Services; (d) Certificates issued by the Civil, Federal, Labor, Criminal and Small Claim Courts confirming there are no claims outstanding against SELLERS, each of the NEWCOS or affecting the Selected Assets;

 

(v)                                 all documents concerning the Reorganization, including (a) corporate documents related to the incorporation of NEWCOS and respective contribution of the Selected Assets to NEWCOS; (b) corporate books; and (c) accounting

 

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records (including balance sheet reflecting the exact status of NEWCOS on the Closing Date);

 

(vi)                             evidence of NEWCOS’ uncontested title and possession of the Selected Assets as of the Closing Date, and all relevant permits and licenses for the regular operation of SELLERS on the Selected Assets.

 

8.2.1                     If at the Closing Date one or more of the documents that evidence that NEWCOS hold title to the Selected Assets is still pending of the registration with the respective RERO, that shall not constitute a default on SELLERS part and shall not preclude the Parties from concluding the Transaction. If the SELLERS are not able to evidence that they hold title (with due regard to Appendix 9.1 (x)) to the Selected Assets by means of the delivery of the updated certificate issued by the RERO in relation to all the Selected Assets, that shall not constitute a default on SELLERS part and shall not preclude the Parties from concluding the Transaction but BUYER shall be entitled to hold back the portion of the Closing Price related to the Selected Assets which SELLER has not presented the relevant update certificate issued by the RERO, based on the value of the hectare of the Plantable Area per Region, as specified in the Appendix 3.2(a)(ii). Such funds withheld shall be released to the SELLERS upon the presentation of update certificates issued by the RERO evidencing that SELLERS hold title to the Selected Assets, proportionally to the area of the Selected Assets comprised in the relevant documents that have been presented, duly adjusted by IGP-M, within fifteen (15) Business Days as of the receipt by BUYER of a Notice evidencing such registration.

 

8.3.                            BUYER shall:

 

(i)                                    make the payment of the Closing Price to SELLERS as indicated in the Appendix 8.3 subject to the provisions of Section 3, 7 and 8;

 

(ii)                                appoint new officers for NEWCOS and shall take all necessary steps to file the respective corporate documents with the relevant Brazilian authorities.

 

8.4.                            SELLERS and NEWCOS (following the transfer of Shares to BUYER) shall execute the Forestry Partnership Agreement and the Standing

 

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Timber Supply Agreement.

 

8.5.                            Subject to the terms and conditions of this Agreement and of any other agreement under this Transaction, the Parties agree that, on the Closing Date, the NEWCOS shall be vested in the possession of the Selected Assets, and SELLERS shall ensure the maintenance of the legitimate and unquestionable possession of the Selected Assets.

 

SECTION NINE - REPRESENTATIONS AND WARRANTIES

 

9.1.                            SELLERS hereby represent and warrant to BUYER, jointly and severally, that each of the following statements is accurate and correct on the date hereof and shall be accurate and correct on and as of, and shall survive after, the Closing Date unless otherwise provided below:

 

(i)                                    SELLERS are duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation;

 

(ii)                                SELLERS have all requisite power and all corporate authorizations, approvals and consents (except as specifically provided for herein) required for the execution of this Agreement and the compliance with their obligations agreed hereunder;

 

(iii)                            SELLERS are duly represented pursuant to their Bylaws and Articles of Association, and have the full right, legitimacy and authority to execute this Agreement, which is a valid and binding document, and enforceable against each of them in accordance with its terms;

 

(iv)                             All documents, data and information provided or to be provided to BUYER with respect to or in connection with the BUYER’s Due Diligence and implementation of the subject matter hereof are true, accurate and complete and SELLERS have not omitted to provide any documents, data or other information which could reasonably be considered material to a buyer of the Assets or otherwise in connection with the transactions contemplated by this Agreement;

 

(v)                                 Except as otherwise set forth in this Agreement, there are not any facts or acts that

 

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may adversely affect the Assets, or SELLERS’ businesses, financial conditions or results;

 

(vi)                             The implementation of the Transaction does not represent a breach or default of any covenant of the SELLERS under any financial contract or any other contract;

 

(vii)                         The execution, delivery or performance of the obligations undertaken hereunder by SELLERS does not (a) conflict with, nor constitute a default under or noncompliance with, or result in a violation or acceleration of, either now or in the future: (i) any obligation or commitment of Sellers with third parties, except for the agreements listed on Appendix 9.1 (vii); (ii) any Law to which SELLERS or the Assets may be subject; (iii) any agreement to which SELLERS undertake obligations; or (b) grant to any third party the right to settle any obligation of the SELLERS; or (c) require any specific authorization, consent, approval, relief or action by any court, government authority or third party, pursuant to the provisions of the Bylaws and Articles of Association of SELLERS or under any contract or agreement to which any of their Assets are bound other than as set out in this Agreement or obtained by the SELLERS at the date hereof;

 

(viii)                     The Reorganization shall take place before the Closing Date and SELLERS shall, at the Closing Date, be the sole and legitimate owners of one hundred percent (100%) of NEWCOs’ Shares, free and clear of any Liens and/or any and all restrictions on transfer, Taxes, options, warrants, purchase rights, contracts, commitments, claims and demands; the NEWCOs’ Shares will represent all of the Shares and equity securities of such NEWCOs and no person will have any right or option to acquire the NEWCOs’ Shares, their capital stock or any right related to NEWCOs’ Shares;

 

(ix)                             That Appendix 9.1(ix) hereto lists all the federal, state and municipal licenses, authorizations, certificates, permits and registrations and Environmental Licenses that Sellers hold for the exploitation of the Selected

 

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Assets;

 

(x)                                 Except as otherwise set forth in Appendix 9.1(x), 9.1(x)(a), 9.1(vii) and 9.1(xv) SELLERS and/or the NEWCOs hold the lawful, good, marketable, and transferable title to all Assets, in good standing free and clear of any Liens, has bonafide possession over all such Assets and there is no claim related to its title or possession;

 

(xi)                             Except as otherwise set forth in this Agreement, the Assets are not subject, in whole or in part, to any pledge, lien, expropriation, eviction, listing as a landmark, constriction, seizure and the use thereof is not prohibited for any reason whatsoever, except for those areas in the Assets that are Legal Reserve Areas and Permanent Preservation Areas. The Assets are suitable to be operated in the conduction of the business as they are currently conducted by SELLERS;

 

(xii)                         No portion of the Assets has ever been used as a land fill or as a dump to receive garbage, refuse, or waste, whether or not hazardous, and there is and has been no hazardous substance stored, handled, installed or disposed in, on or about the Assets, except for the application of silvicultural and agricultural chemicals in accordance with applicable Law;

 

(xiii)               The Selected Assets are not occupied or possessed and, they have not been occupied or possessed since their acquisition by SELLERS, by any quilombolas (slave descendant communities), indigenous people and/or any other third person (posseiros);

 

(xiv)                      The Plantable Areas in the Assets (including, both the planted and the yet unplanted areas on the date hereof, but excluding Reserve Areas, APP Areas and Plantable Areas resulting from the future conversion of native vegetation) are identified and quantified in the Appendix I;

 

(xv)                          Except for the lawsuits and administrative proceedings listed in Appendix 9.1 (xv), there is no court, regulatory, judicial or administrative action or proceeding, nor is there any claim against SELLERS, or NEWCOs, or former owner of the Assets, either outstanding, pending or threatened, which might interfere with the Transaction or BUYER’S ownership of the Selected Assets following completion of the Transaction, in each case which might adversely affect (i) the performance of the obligations set forth in this Agreement or in any other agreement related to the Transaction by any of the parties thereto, or (ii) the right of BUYER to take the full benefit of this Agreement, including

 

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but not limited to actions grounded on condemnation, indigenous rights, slave descendant communities rights, possession or adverse possession; SELLERS also represent and warrant that there are no grounds for the filing of suits, administrative or arbitration proceedings or any other kind of proceeding, in or out of court, against SELLERS, the NEWCOs, or former owner which, in any manner whatsoever may have any of the above effects or result in liabilities for BUYER or jeopardize the good and full Title Transfers of the titles of any of the Selected Assets to the NEWCOs;

 

(xvi)                      With respect to the environmental matters arising from the conduct of activities related to the Assets: (a) SELLERS and the NEWCOs are in compliance with all environmental Laws and forestry and environmental practices are consistent with applicable Laws; (b) SELLERS have presented, filed and/or disclosed all notices, declarations, and information required by Law; (c) SELLERS and the NEWCOs have not utilized, stored or discharged into the environment dangerous vestiges or hazardous materials in violation of applicable Law; (d) there is no environmental hazard in or attaching to the Assets; (e) there is no ongoing, pending or outstanding litigation, administrative or Arbitration proceedings or any other legal or administrative proceeding, in or out of court, present or future, relating to the Assets which relate to environmental matters or Laws; (f) there are no endangered, threatened or listed species in the Assets that could reasonably be expected to interfere with the business operations in the Assets; (g) SELLERS have not received any written notice of any actions against SELLERS or Assets based upon the presence of any endangered, threatened or listed species on the Assets or of any sets of facts which might give rise to any such actions; and (h) there will be no liabilities in relation to the Assets at the Closing Date.

 

(xvii)                  Except for the occurrences indicated in Appendix 9.1(xvii), there has been no theft or

 

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casualties related to, on or affecting the Assets within the last twelve (12) months before the execution of this Agreement, including, without limitation, fire, insect infestation, disease, storms or other damage, and occurrences between the date of this Agreement and the Closing Date that may materially affect the timber production capacity of the Selected Assets shall be communicated in writing to BUYER. For the avoidance of doubt, such communication to BUYER shall not restrict BUYER’S ability to terminate this Agreement for Cause under the terms and conditions of Section 10.

 

(xviii)              Except as otherwise provided in this Agreement, in relation to their respective activities and to the activities conducted in relation to the Assets, (a) SELLERS and the NEWCOs comply and have at all times complied with all Laws, and neither SELLERS nor the NEWCOs are obliged to take any preventive or corrective measure to avoid the violation of the applicable Law, except for those preventive or corrective measures related to the ordinary course of business of the SELLERS; (b) SELLERS and the NEWCOs have obtained all the permits, licenses, approvals, consents and other authorizations in accordance with all Laws which are necessary to carry on business in relation to the Assets; (c) SELLERS have not received any written notification from any Federal, State or Municipal body or otherwise under any Law in relation to the NEWCOs, NEWCOs’ Shares or any of the Assets, stating that SELLERS are in violation to any environmental, sanitary, zoning, labor, social security, corrupt practices, Tax or any other applicable Law; (d) SELLERS and the NEWCOs are not defendants in any litigation or administrative proceeding before any court or other agency (whether judicial or administrative and whether in or out of court), claiming for losses and damages, penalties, or any other potential liability regarding the violation of the respective sanitary, Tax, labor, social security Laws or any other Laws in relation to the Assets; (e) SELLERS are not aware of any facts or matters which fall within the provisions of paragraphs (a) to (d) of this 9.1 (xviii) deriving from the use of the Assets by the former owners or users thereof, and (f) there is no Law preventing SELLERS from being able to perform the obligations required by this Agreement. For the avoidance of doubt, any communication to BUYER under this Section 9.1 shall not restrict BUYER’s ability to terminate this Agreement for Cause under the terms and conditions of Section 10.

 

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(xix)                      All Assets have free access to public roads duly formalized before the competent authorities, clear and without obstacles. No easement, license, concession, decree, administrative rule or any other act or matter of any other nature, prohibits, interferes, limits, or jeopardizes the utilization, operation, maintenance, or the access to any of the Assets, in a manner that may affect their value or use as contemplated by BUYER;

 

(xx)                          On the Closing Date and with regard to SELLERS, the NEWCOs and the Selected Assets, SELLERS will have delivered all declarations and forms requested by the Ministry of Finance, Ministry of Labor, National Social Security Institute (INSS), National Colonization and Agrarian Reform Institute (INCRA), and any other documents which the delivery is mandatory by any Brazilian authority, whether Federal, State or Municipal; SELLERS and the NEWCOs are in compliance with all payments under any taxation Laws, including, but not limited to, the ITR - Tax on Rural Properties, charges, social and social security contributions and other Taxes levied on any of their operations, contributions on account activities, businesses, assets, labor and social security obligations, and have paid all utilities’ fees (telephone, gas, electricity, water supply, etc.) related to the Selected Assets;

 

(xxi)                      On the Closing Date, the NEWCOs (a) shall not be and shall not have been indebted to any third party, whether by loans, financings or any other kind of liability; (b) has not and will not be obliged to grant any guarantee or indemnity in favor of any third party, including SELLERS; (c) has not pledged or subjected and will not pledge or subject its assets, whether tangible or not, to any Lien or liability of any kind, or any Contingency;

 

(xxii)                  On the Closing Date, the NEWCOs (a) shall not have any subsidiaries or branches, and (b) shall not be part of any partnerships, joint ventures, consortiums, or any forms of association whatsoever, and shall not hold or control any corporate interest in other company or legal entity, whether directly or indirectly, or deriving from amalgamation, acquisition or merger;

 

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(xxiii)              The NEWCOs have never had any employee and have not incurred any liability to any person for any compensation for services or goods, including any liability to any independent contractor, consultant or vendor nor shall the NEWCOs have any attorneys-in-fact at the Closing Date;

 

(xxiv)               Within the period between the execution of this Agreement and the Title Transfers of Assets to the NEWCOs, SELLERS represent that neither SELLERS nor the NEWCOs will assign, lease, gift, transfer, sell or otherwise encumber the Selected Assets;

 

(xxv)                   SELLERS guarantee to BUYER in relation to the real estate properties that comprise the Selected Assets good and marketable title (“evicção” in Portuguese), according to the term and provisions of the Law;

 

(xxvi)               No third party is entitled to harvest any forest or land that comprises the Selected Assets, or has any rights related thereto, and, until the Closing, no third party is entitled to harvest any forest or land that comprises the Assets, or has any rights related thereto;

 

(xxvii)           SELLERS represent and warrant that all representations and warranties herein are made in good faith and the SELLERS have disclosed to BUYER all material facts and matters that may affect the financial condition, business, properties, Assets, prospects or results of operations of SELLERS or the NEWCOs (including, without limitation, any facts or matters that may result in liabilities or other obligations for the NEWCOs or affecting any owner or operator of the Assets), without omitting any fact, document, data, or information that is in the Sellers’ knowledge, after reasonable and due inquiry and investigation and that is not in the public domain;

 

(xxviii)       SELLERS have paid and shall pay all Taxes arising out of the NEWCOs activities or incurred or payable in connection with the Assets, except for any transfer tax incurred for the Title Transfer from FIBRIA to NEWCOS which shall be paid by BUYER, as the case may be and pursuant to the

 

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Appendix 15.4 attached hereto, and SELLERS shall be liable for Taxes incurred or related to events that occurred prior to the Closing Date, provided that SELLERS shall have the right, at SELLERS’ cost and expense, to administratively and/or judicially discuss any current or future Tax assessment, provided such procedure does not imply restriction of any of BUYER’S rights to or in respect of the Selected Assets or rights related thereto. SELLERS shall indemnify and hold BUYER and the NEWCOs harmless from any and all risks associated with such administrative or judicial discussion; and

 

(xxix)     There are no brokerage commissions, finders’ fees or similar compensations due in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by SELLERS on behalf of the BUYER.

 

9.2.         BUYER hereby represents and warrants to SELLERS that each of the following statements is and shall remain true and accurate as of the date hereof until and as at the Closing Date:

 

(i)            BUYER is duly organized, validly existing and in good standing under the laws of Brazil;

 

(ii)           BUYER has obtained or until the Closing Date shall have obtained all corporate authorizations, approvals and consents required for the execution, delivery and performance of its obligations agreed hereunder;

 

(iii)         BUYER is duly represented pursuant to its Bylaws, and has the full right, legitimacy and authority to execute this Agreement, which is a valid and binding document, and enforceable against BUYER in accordance with its terms; and

 

(iv)          BUYER has, or will have as of the Closing Date, either the financial ability or access to the funds required to disburse the payment obligations provided for in Section 3 above, as well as to fulfill all of the BUYER’S obligations arising and deriving from this Agreement; and

 

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(v)           The execution, delivery or performance of the obligations undertaken hereunder by BUYER does not (a) conflict with, nor constitute a default under or noncompliance with, or result in a violation or acceleration of: (i) any obligation or commitment of BUYER with third parties; (ii) any Law to which BUYER may be subject; (iii) any agreement to which BUYER undertakes obligations; or (c) currently require any specific authorization, consent, approval, relief or action by any court, government authority or third party.

 

SECTION TEN - BREAK UP FEE; DEFAULT & TERMINATION

 

10.1.       Up to the Closing Date, in the event that either Party (the “Terminating Party”) advises the other that it no longer wishes to pursue the Transaction or otherwise fails to complete the Transaction on the terms set out in this Agreement if and only if all conditions to completion of the Transaction as set out in Section 5 have been satisfied prior thereto, the Terminating Party will pay to the non-Terminating Party a termination fee in the amount of R$ 40,000,000.00 which shall be considered as a compensation for all losses and damages caused to the other Party as a result of the non-completion of the Transaction (the “Breakup Fee”).

 

10.1.1.    The payment of the Breakup Fee shall be due within thirty (30) days as from the delivery of the notice from the Terminating Party to the other Party informing of the termination of this Agreement, except to the extent that such termination is due, in whole or in part, to any of the events or circumstances provided for in Section 10.2.

 

10.2        Notwithstanding the provisions contained in Section 10.1 or any other term of this Agreement, this Agreement may be terminated by the applicable Party or Parties noted below and the Breakup Fee shall not be payable and the terms of Section 10.1 shall not be applicable upon the occurrence of any one or more of the following circumstances:

 

(i)            by mutual written agreement between the Parties;

 

(ii)           by either Party, if there shall be any Law that makes consummation of the transactions

 

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contemplated hereby illegal or otherwise prohibited or has an adverse effect on the assets, the business or such Party’s ability to complete the Transaction, or if consummation of the transactions contemplated hereby would violate any non-applicable final order, decree or judgment of any court or governmental body having competent jurisdiction;

 

(iii)         by either Party as a result of the insolvency, out-of-court liquidation or bankruptcy of the other Party;

 

(iv)          by Buyer, pursuant to Section 10.4;

 

(v)           by either Party, in the event the Transaction is not approved by CADE, or CADE imposes any restriction or obligations on this Transaction or such Party following completion thereof or that would reasonably be expected to have an adverse effect on the Assets or business following completion thereof or that adversely affect this Agreement and the Parties, each acting unilaterally and in its sole discretion do not reach an agreement on the necessary adjustments at the end of the 30-day period agreed under Section 12.10.1 of this Agreement;

 

(vi)          by BUYER, unilaterally, in case the documents and/or available data relating to the Selected Assets, to the NEWCOs, SELLERS and/or to its partners, former owners or any other documents, without limitation, evidence, at BUYER’S sole discretion, any material risks to the Transaction, or indicate any hindrance that prevents the transfer of title of such Selected Assets to NEWCOS;

 

(vii)        by BUYER, unilaterally, if, at the Closing Date, SELLERS or NEWCOs do not hold title to and hold bona fide possession over the Selected Assets, except as otherwise set forth in Appendix 9.1 (x), or if the Selected Assets are not free and clear of any and all Liens and/or there is any claim related to its title or possession;

 

(viii)       by BUYER, unilaterally, if, at the Closing Date, there is any outstanding, pending or threatened claim against SELLERS, or NEWCOs, or former owner of the Selected Assets, or to enjoin or otherwise interfere with the Transaction or

 

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BUYER’S ownership the Selected Assets following completion of the Transaction, in each case which might materially adversely affect (a) the performance of the obligations set forth in this Agreement or (b) the right of BUYER to take the full benefit of this Agreement or the Shares or the Selected Assets, including but not limited to actions grounded on condemnation, indigenous rights, slave descendant communities rights, possession or adverse possession, except as otherwise set forth in Appendix 9.1 (xiii);

 

(ix)          by BUYER, unilaterally, if, at the Closing Date, SELLERS or NEWCOs are not in substantial compliance with all laws, decrees, regulations, whether administrative or judicial, including, but not limited to Labor, Civil, Commercial, Corrupt Practices, Tax, Environmental, Social Security and Contractual liabilities, with respect to the Selected Assets;

 

(x)           by BUYER, unilaterally, if, at the Closing Date, NEWCOs and/or SELLERS (to the extent that could affect the Transaction or the Selected Assets) are not materially in compliance with all Tax payments and any other charges, including, but not limited to, the ITR, social and social security contributions and other Taxes levied on any of their operations and assets, included but not limited to the Selected Assets;

 

(xi)          by BUYER, unilaterally, if, at the Closing Date, SELLERS do not deliver to BUYER all declarations and forms requested by the Ministry of Finance, Ministry of Labor, National Social Security Institute (INSS), National Colonization and Agrarian Reform Institute (INCRA), and any other documents which the delivery is mandatory by any Brazilian authority, whether Federal, State or Municipal;

 

(xii)        either Party, if, at the Closing Date, any of the representations made by the other Party in this Agreement are no longer true and accurate, and/or omit to provide any facts and matters that may materially and adversely affect either the financial situation of such Party (and NEWCOs in the case of

 

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SELLERS), or the nature or extent of the expected benefits and advantages of the Transaction to such first Party;

 

(xiii)       by either Party, if, up to the Closing Date, the Parties have not agreed with the terms and conditions of the Pledge Agreement and/or of the Put Option Agreement;

 

(xiv)       by BUYER, unilaterally, if, after analyzing the data disclosed by SELLERS referred to in Section 6 and at BUYER’S sole discretion (a) the productivity of the forests on the Selected Assets is considered unsatisfactory, or (b) that recent weather patterns appear to be impacting expected future productivity to an unsatisfactory level; or (c) the analysis of the geo-referenced-mapping study of the area, and/or the analysis of the environmental licenses and documents evidence any area discrepancy or issue or liability that may impact the Plantable Area of the Selected Assets; (d) evidences any issue involving indigenous people or slave descendent communities or any other issue which represent a potential liability and/or may affect the title to or possession or operation of any part of the Selected Assets; and the Parties, each acting unilaterally and in its sole discretion, do not reach an agreement on the adjustment of Base Price due to such findings;

 

(xv)         by BUYER, unilaterally, in the event of force majeure, including, but not limited to, weather and pests, that negatively impacts on condition of the Selected Assets or their current or future productivity;

 

(xvi)       by BUYER, unilaterally, in the event governmental regulatory decisions negatively impact future permitting or licensing of the activities currently being developed on the Selected Assets;

 

(xvii)      by SELLERS, unilaterally, in case the documents and/or available data relating to the corporate structure of BUYER, without limitation, evidence, at SELLER’S sole discretion, any material risks to the Transaction;

 

(xviii)     by BUYER, unilaterally, in case of events or changes in debt financing markets that impair ability to secure adequate pricing and terms of debt financing, as follows:

 

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(a)           movement in the spread or yield of the Specified Index of seventy five (75) basis points;

 

(b)           any downgrade in SELLERS’s credit rating by two (2) agencies;

 

(c)           any downgrade in Brazil’s international sovereign debt rating by Moody’s below Baa3 or an equivalent rating issued by any one of the following agencies: S&P or Fitch.

 

(xix)       by either Party, in case BUYER does not obtain and present to SELLERS, until December 10th, 2013, a confirmation in writing from an independent accounting advisors stating that the functional currency of the NEWCOS shall be US dollars (US$).

 

10.3.       For the purposes of article 474 of the Brazilian Civil Code, and in furtherance to Section 10.2 of this Agreement, the communication of any of the Party’s intent to terminate this Agreement may be done at any time to the other Party by means of a notice with the formalities agreed under this Agreement. As a result, once the Party is notified, this Agreement shall be automatically terminated, regardless of any further judicial or extrajudicial formalities or proceedings.

 

10.4.       Without limiting the termination events contained in Section 10.2, BUYER may also terminate this Agreement with cause (“Cause by BUYER”) by means of a notice in writing to the SELLERS at any time prior to the Closing Date, in any of the events listed below:

 

a)            The existence of a condition in respect of NEWCOS, any of Selected Assets or SELLERS, whether identified or not in the Due Diligence, which may have a Material Adverse Effect on NEWCOS or any of the Selected Assets. For the purposes of this Agreement, the term “Material Adverse Effect” shall mean a material adverse effect on the validity or enforceability of this Agreement, or the ability of either of SELLERS to perform its obligations under this Agreement, or that materially affects the financial condition, business, properties, assets, prospects or results of operations of NEWCOS or any of the Selected

 

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Assets, including (without limitation): (i) any decision, whether transitory or definitive, in any court or administrative proceeding that may restrict or hinder the consummation of the object of this Agreement or that may prevent the free disposal of NEWCOS Shares by BUYER or any of the Selected Assets by NEWCOS, provided that such restriction or hindrance is not cured (to the extent capable of being cured) within thirty (30) days as of the initial restriction date; (ii) any environmental matter that may impose restrictions upon the use of any of the Selected Assets by NEWCOS or SELLERS and/or impairs SELLERS’s ability to legally exercise forestry activities upon any of the Selected Assets; (iii) any of the Selected Assets or NEWCOS Shares have Liens that impose restrictions on the use of NEWCOS Shares by BUYER or the use of any of the Selected Assets by NEWCOS or by SELLERS, including without limitation lack of access, presence of squatters or any other restriction which may impair the ability of SELLERS and/or NEWCOS to conduct commercial timberland operations on any of the Selected Assets and/or (iv) Selected Assets or NEWCOS Shares have Liens that may affect their free disposal or otherwise impair their value.

 

b)            That a specific representation or warranty made by the SELLERS is materially inaccurate and provided that such inaccuracy may cause Material Adverse Effect in respect of NEWCOS, NEWCOS’ Shares or any of the Selected Assets; or materially reduce the amount or value of NEWCOS’ Shares or any of the Selected Assets considered as a whole.

 

c)             SELLERS give notice to BUYER or BUYER becomes aware of force majeure event or casualties in the Selected Assets (which term, for purposes of this Agreement, shall include but not be limited to any loss, damage or destruction caused by theft, earthquake, terrorism or other criminal activity, fire, storm, insects or disease) and within 10 (ten) calendar days after the receipt of such notice or the notice to SELLERS that BUYER is aware of such casualty or force majeure, as the case may be, it is verified that such occurrence results in a Material Adverse Effect.

 

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10.5.       If the Closing does not take place until December 30, 2013, including without limitation, due to the non-satisfaction of any of the conditions set out in Sections 5 and 7, this Agreement may be terminated by either Party (so long such Party is not in default under this Agreement). In this case no fee, fine or indemnification shall be due by any Party to the other. SELLERS shall not be considered in default if any document requested for the Due Diligence is not timely provided by SELLERS to the extent SELLERS depend on any third parties (including but not limited to governmental agencies) to produce such documents and information, provided that SELLERS evidence their commercially reasonable efforts to provide any such documents within the agreed term, and BUYER shall not be considered in default if, using commercially reasonable efforts, it has not been able to complete its due diligence as a result of its inability to complete review of all materials and information provided pursuant to such due diligence.

 

10.6        If the Transaction is unwound by force of a non-appealable court decision and performance of the Transaction Documents by the Parties is held null and void pursuant thereto (i) the Parties shall negotiate in good faith a mutually agreeable solution or, if no solution is reasonably practicable, the unwinding of the Transaction, in each case on terms that would not create (or at least mitigate to the greatest extent practicable) any liability, contingency or obligations to the Parties; and (ii) the innocent Party shall be entitled to indemnification from the other Party, which indemnification obligation shall be limited to the amount required to reimburse such other Party for the out-of-pocket reasonable and duly documented costs and expenses actually incurred by the innocent Party prior to the Closing Date in connection with the negotiation, execution and delivery of this Agreement to be informed by each Party in writing prior to the Closing, in the terms of Appendix 10.6, and no further indemnification (including for greater clarity, indemnification that may otherwise be payable in respect of any breach of Section 9.2, or any other payment or Breakup Fee) will be due to any such innocent Party by any other Party.

 

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SECTION ELEVEN - INDEMNIFICATION AND INDEMNIFICATION PROCEDURES

 

11.1.       SELLERS hereby irrevocably and irreversibly agree to indemnify, defend and hold BUYER, and following the Closing NEWCOS, harmless from and against any judicial or non-judicial claim or procedure, loss, damage, liability, action, burden, cost, expense, fee (including attorney’s fees and expenses), whether or not of SELLERS’ knowledge (“SELLERS’ Contingencies”), including those directly or indirectly deriving from:

 

(i)            any false, inaccurate or misleading representation or warranty provided by SELLERS hereunder or arising from any failure to meet or satisfy any agreement, undertaking, obligations or covenants of SELLERS set forth hereunder;

 

(ii)           liabilities, obligations and/or responsibilities of whatever nature related to the Selected Assets, SELLERS or NEWCOS, including but not limited to civil, Tax and environmental liabilities, measures in relation to the forestry activities carried on by the SELLERS or imposition of conditions, among others, that may come to be claimed from BUYER or NEWCOS referring to actions or facts or omissions occurring until the respective Transfer of Title;

 

(iii)         liabilities, obligations and/or responsibilities that may come to be claimed by SELLERS derived from any representations and warranties to be provided by BUYER with regard to the Selected Assets under any other agreement of the Transaction, in connection with, arising from or otherwise relating to facts, events or other circumstances existing or occurring prior to the Closing Date;

 

(iv)          measures which may occur on the specific areas of Selected Assets related to the charcoal production activities, the relevant infrastructure, and plant or equipment thereon, the soil on the Selected Assets or adjoining lands or which causes

 

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an environmental hazard or condition which results in such specific areas, NEWCOS or BUYER being in breach of or not otherwise in strict compliance with any Laws;

 

(v)           liabilities, obligations and/or responsibilities that may come to be claimed from BUYER with respect to any Casualty or Force Majeure event that may affect the Selected Assets at any time and from time to time during the term of the FPA.

 

11.2.       BUYER hereby irrevocably and irreversibly agrees to indemnify, defend and hold SELLERS harmless from and against any judicial or non-judicial claim or procedure, loss, damage, liability, action, burden, cost, fee (including attorney’s fees and expenses) or known or unknown by BUYER (“BUYER’S Contingencies”), referring to the period after the Closing Date, and directly or indirectly deriving from:

 

(i)            any false, inaccurate or misleading representation or warranty provided by BUYER hereunder or arising from any failure to meet the legal or contractual obligations or other covenants set forth hereunder; and

 

(ii)           liabilities, obligations and/or responsibilities of whatever nature, that may come to be claimed from SELLERS referring to actions after the Closing Date that are duly evidenced as caused by BUYER under any other agreements of the Transaction, except as regards any obligations hereunder which are required to be complied with or performed by SELLERS after the Closing Date in relation to BUYER, the Selected Assets and/or NEWCOS, including (without limitation) SELLERS’ or their Affiliates’ obligations under any other agreements of the Transaction.

 

11.3        For the purposes of any claim for indemnification pursuant to Sections 11.1. and 11.2. above, the Party entitled to receive indemnification (“Indemnified Party”) shall submit to SELLERS or to BUYER, as the case may be (“Indemnifying Party(ies)”). a written notice of the action or fact that originated the claim for indemnification hereunder, indicating where

 

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possible an estimate of the likely amount of SELLERS’ Contingencies or BUYER’S Contingencies, as the case may be, and the method used for calculation thereof. Whenever damages shall have actually occurred, payment or refund shall be made by any of the Indemnifying Parties within ten (10) Business Days following the Indemnifying Party(ies)’s receipt of the notice sent by the Indemnified Party claiming the relevant payment or refund of the values incurred, duly evidenced. Should the Indemnifying Party(ies) disagree with the Indemnified Party’s claim, the matter shall be submitted to Arbitration as defined and provided for in Section 14 hereof and, should the award ultimately confirm the claim, then the Indemnifying Parties shall make payment or refund within ten (10) Business Days following receipt of notice of issue of the relevant Arbitration decision.

 

11.4.       The Indemnified Party shall promptly notify the Indemnifying Party(ies) about any grievance or demand, whether in or out of court, notified to it by any third parties (“Third-Party(ies) Claim”) that to the knowledge of the Indemnified Party gives rise to a right of indemnification under the terms of this Agreement, together with the estimated value of such grievance or demand, and a copy of the notice of deficiency (“auto de infração” or “contra-fé”), evidence of receipt thereof or equivalent document, as the case may be (“Third-Party(ies) Claim Notification”). The timing of the delivery of the Third-Party(ies) Claim Notification shall always be sufficient to enable the Indemnifying Party(ies) to produce the required defense at adequate standards.

 

11.4.1.    Should the term corresponding to one-third of the legal deadline for response or other action crucial to the defense be shorter than five (5) Business Days, then the Indemnified Party may take such actions as it understands necessary and inform the Indemnifying Party(ies) of the Third-Party Claim and of the actions taken in accordance with the provisions hereof.

 

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11.4.2.    As of the date on which the Third-Party(ies) Claim Notification is received, the Indemnifying Party(ies) shall, as soon as possible but no later than three (3) Business Days, inform the Indemnified Party as to whether (i) they will settle the amount in dispute; (ii) they will defend the Indemnified Party or, as appropriate, NEWCOS from the Third-Party Claim, (iii) they will not defend from the Third-Party Claim or (iv) they do not acknowledge the Third-Party(ies) Claim as an indemnifiable liability of their responsibility.

 

11.4.3.    It is hereby expressly agreed that should the Indemnifying Party(es) choose to submit a response or defense, they may retain counsel of their choice to act on behalf of the Indemnified Party or, as appropriate, NEWCOS, as the case may be, in which event such counsel shall be granted by the Indemnified Party the necessary powers of representation and be given access to all documents and information required for such response or defense.

 

11.4.4.    Should the Indemnifying Party(ies) choose to file defense and/or response, any and all attorney’s fees and expenses deriving therefrom shall be borne solely and directly by the Indemnifying Party(ies).

 

11.4.5.    Should the Indemnifying Party(ies) fail to act on response of the Third-Party(ies) Claim Notification or fail to act timely as set forth in Section 11.4.2. above, the Indemnified Party shall, in good faith, decide whether it shall settle the amount claimed or submit its response or defense. Should the Indemnified Party choose to settle the payment, the amount due may be claimed by the Indemnified Party, directly from the Indemnifying Party(ies) pursuant to the provisions of Section 11.3 above.

 

11.5.       In case of a Third-Party Claim derives from facts under both SELLERS’ liability and BUYER’S liability, the Party against which such claim is directed shall promptly give notice to the other Party(ies) which may have liability, whether such Third-Party Claim or demand is of a court nature or otherwise, as soon as possible but in no event after the equivalent to one third of the legal deadline for the filing of the defense, along with an estimate of the amount involved in such claim or demand, copy of the notice of deficiency, evidence of receipt

 

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thereof or equivalent document, as the case may be (“Shared Contingency Notice”).

 

11.5.1.    Within the term corresponding to one-third of the legal term for response, SELLERS and BUYER shall, by mutual agreement, decide if they will (i) settle the amount in dispute; or (ii) contest the claim.

 

11.5.2.    In the event that SELLERS and BUYER are not able to reach mutual agreement to settle the amount in dispute or should SELLERS and BUYER decide to submit a response or defense, they shall, also by mutual agreement, decide on the defense strategy and appoint counsel for representation and follow-up of the Third-Party Claim, and grant him with powers required therefor. In the event BUYER and SELLERS are not able to reach mutual agreement to decide on the defense strategy and appoint counsel for representation and follow-up of the Third-Party Claim, BUYER shall have the right to conduct the Third-Party Claim and appoint counsel for representation.

 

11.5.3.    Subject to the provisions of Section 11.5.2, SELLERS and BUYER hereby agree that BUYER shall have conduct of such Third-Party Claims and shall cause the retained counsel to keep SELLERS informed on their status from time to time and provide copies of all pleadings requested.

 

11.6.       SELLERS and BUYER hereby agree that any court or out-of-court settlement involving any losses or damages under this Section 11 shall only be entered into by mutual agreement of SELLERS and BUYER.

 

11.7.       The Indemnifying Party(ies) shall either pay or refund the Indemnified Party the full amount of the losses or damages involved in such Third-Party Claim, including any and all duly evidenced counsel

 

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fees and expenses: (i) in the case of a final decision not subject to appeal on any Third-Party Claim which gives rise to liability, within fifteen (15) Business Days of receiving notice from the Indemnified Party of the publication of the relevant ruling at the Official Gazette; or (ii) in the case of the Indemnified Party having settled the amount claimed pursuant to the provisions of Section 11.4.5 above, within fifteen (15) Business Days of receiving notice from the Indemnified Party that it has made such settlement.

 

11.8.       The indemnity obligations provided for in this Agreement shall be subject to the following terms and limitations:

 

(i)            the losses shall derive from matters identified in writing by the Indemnified Party to the Indemnifying Party SELLERS and BUYER hereby agree that the obligation to indemnify the Indemnified Party shall survive the terms herein established until the effective indemnification, as long as the relevant claim for indemnification was requested by means of a Notice by the Indemnified Party within the terms set out in this Section 11, as the case may be; and (ii) All amounts included in the Third-Party(ies) Claim Notification shall be monetarily adjusted by IGP-M from the date of the effective disbursement of an amount relative to each Third-Party Claim by the Indemnified Party up to the date of the payment of the amount of the Third-Party Claims detailed in any Third-Party Claim Notification by the Indemnifying Party(ies).

 

SECTION TWELVE - ADDITIONAL COVENANTS OF THE PARTIES

 

12.1.       Confidentiality. Due to the access that each Party has had or shall have to the other Party’s Confidential Information, the Parties hereby mutually undertake, as follows: (i) to refrain from allowing access to the other Parties Confidential Information to third parties other than their Affiliates, only to the extent required for the performance of the transactions established herein; (ii) to refrain from using any Confidential Information, except for the purposes provided for in this Agreement; and (iii) to keep in confidence the Confidential Information received from the other Parties. For the purposes of this Agreement,

 

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Confidential Information” shall mean any and all information, whether verbal or written, and documentation related to this Agreement or to the transactions contemplated in this Agreement, including the information provided before this Agreement was signed, and any other information and/or documentation disclosed to a Party as confidential during the dealings and negotiations hereunder or the Due Diligence.

 

12.1.1.    The limitations provided for in this Agreement pertaining to the disclosure of confidential information shall not apply to Confidential Information (i) which was of public domain at the date hereof or as at the Closing Date; or (ii) which was known to the receiving Party at the time of the disclosure and had not been obtained, either directly or indirectly, from the disclosing Party, its Affiliates and investors in its Affiliates or third parties bound to confidentiality obligations; or (iii) which is proven to be of public domain after the date hereof as a result of action or omission of the disclosing Party or any of its Affiliates; or (iv) which becomes of public domain after the disclosure to the receiving Party without any participation of the receiving Party in such disclosure; or (v) upon the advice of legal counsel which is required to be disclosed by virtue of law or to comply with a court or government order, or (vi) which has been developed or acquired independently by the receiving Party without reference to or use of Confidential Information of the disclosing Party; or (vii) in the event that the receiving Party or any of its Affiliates or representatives are requested or required by Law, legal process or any regulatory or governmental or quasi-governmental administrative authority to disclose any of the Confidential Information, the receiving Party or any of its Affiliates or representatives may do so and not be in contravention of this Agreement, provided that it provides the disclosing Party with prompt (to the extent legal and practicable) written notice so that the disclosing Party may seek, at its own cost, a protective order or other appropriate remedy, or (viii) is required to be disclosed in any registration statement or other filing with securities authorities in any jurisdiction applicable to either of the Parties or their respective Affiliates or in reports to any of such entities’ partners, shareholders or investors, pursuant to the constitutional or governance arrangements applicable thereto. If the receiving Party believes in good faith that it is compelled to disclose Confidential Information, the

 

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receiving Party may disclose that portion of the Confidential Information that it reasonably believes that is compelled to disclose and will exercise commercially reasonable efforts, to the extent practicable, to request that confidential treatment be accorded to that portion of the Confidential Information that is being disclosed. Nothing in this Agreement shall prohibit BUYER from using and disclosing any information in respect of NEWCOS or the Selected Assets following the Closing Date.

 

12.2.       Cooperation in Financing Activities. Prior to the Closing, SELLERS agree to provide and each of SELLERS’s officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives to provide, all reasonable cooperation in connection with the making of any regulatory or securities filings or offering document, including in connection with the arrangement of loans and/or the issuance of debt securities by the BUYER and/or any of its Affiliates (collectively, “Buyer Group”) to finance all or a portion of the Base Price or any alternative debt financing for the transactions contemplated by this Agreement, as may be reasonably requested by BUYER, including, without limitation, (i) furnishing as promptly as practicable, Buyer Group and its financing sources with (A) at least 20 days prior to the Closing Date, audited financial statements of SELLERS for each of the three fiscal years immediately preceding the Closing Date and, unaudited public financial statements for any interim period or periods of SELLERS ended after the date of the most recent audited financial statements and more than 45 calendar days prior to the Closing Date; (B) all public information and data regarding SELLERS, including any discussion of SELLERS, financial statements, business and other financial data, of the type and form required for offerings of debt securities on a registration statement on Form F-1 under the Securities Act, and of the type and form customarily included in offering documents used to syndicate bridge and/or term loan credit facilities, or that would be necessary to receive from Buyer Group’s and SELLERS’ independent auditors (and any other accountant to the extent financial statements

 

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audited or reviewed by such accountants are or would be included in such offering memorandum) customary “comfort letters” (including, without limitation, “negative assurance” comfort), and (C) all public information and data regarding SELLERS, including any discussion of SELLERS, financial statements, pro forma financial statements, business and other financial data at any time and from time to time on or following the Closing Date that is required to be included in any regulatory or securities filings by any of Buyer Group, (ii) considering in good faith requests to participate in meetings, presentations, due diligence sessions and sessions with prospective lenders, investors and ratings agencies in connection with any such debt financing, (iii) assisting the Buyer Group and its financing sources in the timely preparation of (A) any offering documents, private placement memoranda, lender presentations, bank syndication materials, bank information memoranda and similar public documents and authorization letters to the financing sources authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, in connection with the debt financing to fund a portion of the Base Price or any subsequent financings by Buyer Group, (B) materials for rating agency presentations, and (C) periodic reports to government officials and other regulatory entities, and investors in and creditors of Buyer Group, (iv) reasonably cooperating with the marketing efforts of Buyer Group and its financing sources for any financing and using commercially reasonable efforts to ensure that any applicable syndication efforts by any such financing sources benefit from SELLERS’ existing lending relationships, (v) reasonably facilitating the pledging of collateral, including taking all actions reasonably necessary to establish mortgages, bank and other accounts and blocked account agreements in connection with the foregoing, (vi) using reasonable best efforts to obtain accountants’ comfort letters (including customary negative assurances), opinions of counsel, surveys and title insurance at the expense of and as reasonably requested by Buyer Group, (vii) assisting, providing public information, in the preparation of one or more credit agreements, indentures, purchase agreements, currency or interest hedging agreements and other definitive documentation and related deliverables relating to such financing, including (without limitation) customary representations and warranties, certificates and opinions, including (without limitation) with respect to non-contravention of the Transaction with charters, material agreements and laws to which SELLERS and their subsidiaries are subject, and reasonably facilitating the grant of a security interest in collateral and

 

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provision of related lender protections, including (without limitation) customary indemnification and similar provisions with respect to information provided by SELLERS for use in such debt financing, (x) using reasonable best efforts to cooperate with Buyer Group to obtain corporate and facilities ratings, (xi) delivering, on or before the Closing, all notices of prepayment within the time periods required by the relevant agreements governing such financing and using reasonable best efforts to arrange for customary payoff letters, lien terminations and instruments of discharge to be paid off, discharged and terminated on the Closing, (xii) furnishing Buyer Group and its financing sources promptly with all documentation and other information which any lender providing or arranging such debt financing has reasonably requested and that such financing provider has determined is required by regulatory authorities in connection with such financing, including (without limitation) under applicable “know your customer” and anti-money laundering rules and regulations (including, without limitation, the PATRIOT Act), and (xiii) supplementing any information supplied in writing by or on behalf of SELLERS or any of its subsidiaries to Buyer Group or any financing source on a reasonably current basis to the extent such information is not correct in all material respects, contains any untrue statement of material fact or omits to state any material fact necessary to make such information supplied in writing by or on behalf of SELLERS or any of its subsidiaries not materially misleading, which SELLERS shall confirm in writing upon request.

 

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12.2.1.    Upon prior written consent from SELLERS, BUYER shall be allowed to use SELLERS’ subsidiaries’ logos in connection with any such financing; any such consented use shall be solely in a manner that is not intended to, nor reasonably likely to, harm or disparage SELLERS or their subsidiaries, and BUYER shall remain liable for any harm or disparage suffered by SELLERS or their subsidiaries.

 

12.3.       Publicity. No press release or other publicity related to this Agreement or to the transactions hereunder agreed shall be made publicly available or submitted to third parties without the Parties’ prior and written approval in relation to the press release, form and contents, except to the extent provided for in Section 12.1.1 above, as applicable.

 

12.4.       Right to Withdraw. BUYER shall have the right to withdraw from the FPA up to 30% of the total Selected Assets of each distinct region where the properties are located (“Land Subject to Withdraw”), according to the provisions of this Section 12.4 and the schedule provided in Appendix 12.4.1 (“Right to Withdraw”).

 

12.4.1.    Prior to the exercise of the Right to Withdraw on all or portion of the Land Subject to

 

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Withdraw, BUYER shall provide SELLERS with a written prior notice (a) of 3 years for sales of Land Subject to Withdraw in excess of 2,000 hectares in the state of Mato Grosso do Sul, 600 hectares in the State of São Paulo (ex-Vale do Paraíba), 300 hectares in the states of Espírito Santo, Bahia and São Paulo (Vale do Paraíba) (“Extended Prior Notice”) and (b) of 6 months (“Regular Prior Notice”), for any other sales of Selected Assets.

 

12.4.2.    Upon receipt of an Extended Prior Notice or a Regular Prior Notice, SELLERS shall have the right (but not the obligation) during the 30 Calendar Days following such receipt to present BUYER with an offer to acquire the relevant Land Subject to Withdraw at a specified all-cash price on an as-is, where-is basis (“Right of First Offer on the Land Subject to Withdraw”).

 

12.4.2.1.  In case SELLERS do not to present an offer within thirty (30) Calendar Days from the receipt of an Extended Prior Notice or a Regular Prior Notice, BUYER shall be free to sell the relevant Selected Assets for any price.

 

12.4.2.2.  In case SELLERS present an offer (“SELLERS’ Offer”), BUYER shall have 15 (fifteen) days to:

 

(i)            accept SELLER’S Offer, in which case SELLERS and BUYER shall conclude the sale transaction at the price stipulated in the SELLERS’ Offer and on an as-is, where-is basis, as soon as at all practicable and no later than sixty (60) Calendar Days (subject to extension if required to obtain all applicable governmental approvals, provided that the sale price shall only be paid at the end of the period of the Extended Prior Notice or Regular Prior Notice, duly adjusted at the IGPM rate from the date of the acceptance of the SELLERS’ Offer until the closing of the sale with BUYER). For greater clarity, any default of the SELLERS in paying the adjusted price shall be considered a default in the other agreements of the Transaction; or

 

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(ii)           not accept SELLERS’ Offer, in which case:

 

(a)           BUYER shall be free to sell the Land Subject to Withdraw object of the Extended Prior Notice and/or a Regular Prior Notice, during the period of the Extended Prior Notice or Regular Prior Notice, as the case may be(provided that in no event shall such period be less than six months), on any terms, provided that the price is not less than that stipulated in SELLERS’ Offer (duly adjusted at the IGPM rate from the date of SELLERS’ Offer until the closing of the sale), and the provisions of the sale contract contain no collateral terms that would be reasonably be expected to reduce that price; and (b) BUYER shall notify SELLERS of the outcome of the sale process, indicating if the sale was concluded and, if so, producing reasonable evidence of the conclusion of the sale and price paid.

 

12.4.3.    If BUYER does not conclude the sale of the relevant Selected Assets within the periods mentioned above in Section 12.4.2.2(ii)(a), then BUYER will have to submit a new notice to SELLERS, which will trigger a new Right of First Offer on the Land Subject to Withdraw and the process shall be restarted.

 

12.4.4.    Upon the completion of the sale of the Land Subject to Withdraw, SELLERS shall be entitled to complete harvest of the Land Subject to Withdraw prior to delivery of the Land Subject to Withdraw, which shall take place up to three (3) months after the end of the period of the Extended Prior Notice or Regular Prior Notice, as applicable, subject to the delivery conditions as set forth in the Forestry Partnership Agreement.

 

12.5.       Selected Assets not Subject to Withdrawal.

 

For the purpose of selling to third parties any of the Selected Assets not subject to withdrawal as per section 12.4 above during the term of the FPA, BUYER shall initiate the process by providing written notice at any time (a “Sale Notice”) to SELLERS of its intention to sell such any portion of such Selected Assets (collectively, the “Subject Land”).

 

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12.5.1.    Upon receipt of a Sale Notice, SELLERS shall have the right (“Right of First Offer”), within thirty(30) Calendar Days, to elect to respond in writing with an all-cash price at which it would be willing to acquire the Subject Land on an as-is, where-is basis (an “Initial Offer”).

 

12.5.1.1.  SELLERS’ failure to communicate its decision within the term established in Section 12.5.1 shall automatically be deemed to be non-exercisable by SELLERS of the Right of First Offer and BUYER shall be free to sell the relevant Selected Assets as it sees fit and for any price, within twenty four (24) months as of the receipt by SELLERS of the Sale Notice.

 

12.5.2     If SELLERS provide an Initial Offer, BUYER may: (a) agree to transact at that price on an as-is, where-is basis; (b) reject the Initial Offer, in which case BUYER may proceed with a sale offer to third parties (a “Bid Process”) as set out in this Section 12 below, or (c)present a counter-offer at an all-cash price (a “Counter-Offer”).

 

12.5.3     In case BUYER decides to present a Counter-Offer, SELLERS may, within ten (10) Calendar Days as of the receipt of the Counter-Offer: (i) accept the Counter-Offer, in which case acceptance shall constitute a binding agreement of purchase and sale between the SELLERS and the NEWCOS on the terms and conditions set out in the Counter-Offer, and SELLERS and BUYER shall conclude the sale transaction, on an as-is, where-is basis, as soon as at all practicable and no later than 60 Calendar Days (subject to extension if required to obtain all applicable governmental approvals, provided that the sale price shall increase at the IGPM rate until the closing of the sale with BUYER); or (ii) reject the Counter-Offer, in which case BUYER may proceed with the “Bid Process”.

 

12.5.3.1 SELLERS’ failure to communicate

 

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its decision in writing within the term established in Section 12.5.3 shall automatically be deemed to be non-acceptance of the Counter-Offer and the terms of Section 12.5.3(ii) shall apply.

 

12.5.4     SELLERS undertake the obligation to provide all information and other assistance as may reasonably be requested by BUYER in conducting the Bid Process.

 

12.5.5     Once BUYER initiates the Bid Process, BUYER will disclose to SELLERS the identity of the potential bidders that have been admitted to the Bid Process, and SELLERS shall notify BUYER within 5 (five) Calendar Days as of the receipt of the disclosure as to which bidders SELLERS view as restricted bidders (“Restricted Bidders”), provided that SELLERS may designate no more than two (2) Restricted Bidders. All remaining bidders will be considered as approved bidders (“Approved Bidders”). SELLERS’ failure to so notify BUYER within such 5 (five) Calendar Days shall result in all bidders being deemed as an Approved Bidder.

 

12.5.6     If BUYER selects an Approved Bidder as the winning bidder, BUYER may sell the Subject Land to any Approved Bidder on any terms, provided that such sale occurs at a price that is no less than the most recent Counter-Offer made by BUYER or, if no Counter-Offer was made, no less than the Initial Offer (and contains no collateral terms that would reasonably be expected to reduce that price).

 

12.5.7     If BUYER selects a Restricted Bidder as the winning bidder, BUYER shall send a notice to SELLERS informing the price to be paid by the Restricted Bidder (the “Bid Price”) and the other conditions of the intended transaction, for the purpose of entitling SELLERS to acquire the Subject Land at the Bid Price on an as-is, where-is basis, subject to the conditions set forth in Section 12.5.7.2 below (“Right of First Refusal”).

 

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12.5.7.1 SELLERS shall provide notice of their intention to exercise the Right of First Refusal within five (5) Business Days of receipt of the notice mentioned in section 12.5.7 above (“Exercise Notice”).

 

12.5.7.2 Should SELLERS decide to exercise the Right of First Refusal, in addition to the Bid Price, SELLERS shall also pay to the BUYER a matching fee in an amount equal to 5% (five percent) of the Bid Price, and SELLERS and BUYER shall conclude the sale transaction as soon as at all practicable and no later than 60 Calendar Days (subject to extension if required to obtain all applicable governmental approvals, provided that the sale price and matching fee shall increase at the IGP-M rate until the closing of the sale with BUYER.)

 

12.5.7.3 If SELLERS (i) decline to exercise the Right of First Refusal, or (ii) fail to deliver an Exercise Notice within the term established above, BUYER may sell the Subject Land to the Restricted Bidder on the terms of its bid.

 

12.5.7.4 SELLERS shall not be entitled to exercise the Right of First Refusal over only part of the Subject Land (specific projects or specific properties/real estate record files), but only the totality of the properties subject to each Sale Notice. In the event of the BUYER combines Assets of two or more NEWCOS in a sale process, SELLERS shall be entitled to present offers for the group of Assets in each NEWCO separately.

 

12.5.8     For greater clarity, in acquiring Subject Land pursuant to any provision of this Section 12, SELLERS will not be entitled to any representations and warranties in such sale (other than in respect of typical corporate matters relating to authorization and enforceability), and shall expressly waive the right to indemnification for Evicção for the purposes of Article 448 of the Brazilian Civil Code.

 

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12.5.9     If BUYER does not conclude the sale of the relevant Selected Assets subject to a Bid Process within twenty-four (24) months, BUYER undertakes to submit a new Sale Notice to SELLERS in case of a further Bid Process, which will trigger a new Right of First Offer and the process shall be restarted.

 

12.5.10  The Right of First Offer on Lands Subject to Withdraw, the Right of First Offer and the Right of First Refusal shall not be valid or enforceable if SELLERS are in default in connection with any of its obligations as provided for in this Agreement or any other agreement under the Transaction. Without limiting the generality of the foregoing, the Right of First Offer on Lands Subject to Withdraw, the Right of First Offer and Right of First Refusal will not apply to any transfer by BUYER of the Selected Assets that is eligible to be included in the Put Option, pursuant to Section 13, due to a failure to transfer title under Section 4.1.3.

 

12.5.11  No Right of First Offer on Lands Subject to Withdraw, Right of First Offer, nor Right of First Refusal shall apply to the transfer of any of the Selected Assets by BUYER to any of its Affiliates or related entities or to investors in any of its managed vehicles as part of any internal reorganization, distribution-in-kind or other internal or non-marketed transaction.

 

12.5.12  The sale of any of the Selected Assets pursuant to this Section 12.5. will automatically cause the assignment to the transferee of all of the BUYER’S rights and obligations under the Transaction agreements regardless of any prior approval from the SELLERS, for which purpose BUYER undertakes to provide, in the sale instruments, that the winner bidder must comply with the terms and conditions of such agreements.

 

12.6        Invitation to Participate. For a period of two (2) years as of the Closing Date, if BUYER wishes to enter into any similar transaction with any of the two companies listed in Appendix 12.6 hereto (“Restricted Companies”) with the purpose of acquiring their lands and entering into subsequent agreements that enables such Restricted Company to use the divested land in any manner, including but not

 

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limited to forestry harvesting partnership agreements, then BUYER shall invite SELLERS to participate of such transaction, by means of acquisition of up to fifty percent (50%) of the lands involved in such transaction.

 

12.7        Buyer’s Right to Match.SELLERS hereby grant to BUYER the right of first refusal related to any future sale of the Assets of the SELLERS with the purpose of entering into forestry partnership agreements (“BUYER’s Right to Match”). BUYER’s Right of First Refusal shall be valid for two (2) years as of the Closing Date.

 

12.8        BUYER shall be invited by SELLERS to bid in any and all future sales processes of properties owned by SELLERS in Brazil that comprise over 5,000 hectares, regardless of the intended sale structure (“BUYER’s Right to Bid”). BUYER’s Right to Bid shall be valid for ten (10) years as of the Closing Date.

 

12.9        Disposal of NEWCOS Shares. All the provisions established in Sections 12.4 and 12.5 shall also apply for the disposal of NEWCO’s shares by BUYER. Nothing in the Section 12.9 will interfere with the BUYER’s Right to Withdraw under Section 12.4. The provisions established in Sections 12.4 and 12.5 shall apply for each NEWCO individually.

 

12.10      CADE. SELLERS and BUYER shall be jointly responsible for any and all antitrust filings required as a result of this Transaction and shall jointly notify CADE - Administrative Council for Economic Defense within two (2) Business Day of the execution hereof. SELLERS and BUYER shall be responsible for jointly coordinating this process before CADE, and BUYER and SELLERS shall have the right to review all documents before the relevant filing. The official costs relating to notifying and filing for the transaction shall be paid by SELLERS and 50% shall be reimbursed by BUYER. Each party shall bear with its own legal fees.

 

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12.10.1  If CADE imposes any restrictions and/or obligations on this Transaction which cause any Adverse Effect to this Agreement, the SELLERS and BUYER shall reach an agreement on the necessary adjustments to this Agreement within 30 (thirty) days of becoming aware of the decision made by CADE. If, in the end of such period of 30 (thirty) days, the SELLERS and BUYER do not reach an agreement, it is expressly agreed that this Agreement shall be lawfully terminated without any formality and without any indemnification or payment of liquidated damages from any Party to any other Party, and the provisions of Section 10.1 shall not apply.

 

12.11      Casualty and Force Majeure. SELLERS shall be liable for any losses and undertake to indemnify BUYER for any damages derived (i) from casualty, which term, for purposes of the Transaction, shall include but not be limited to any loss, damage or destruction caused by theft, fire, storm, insects or disease (“Casualty”); and (ii) from the occurrence of force majeure events or acts of God, as defined in the sole paragraph of article 393 of the Brazilian Civil Code, including, for example, strike of government entities employees of any agency or department, court or administrative order (“Force Majeure”), which may, directly or indirectly, cause losses and damages to the BUYER under the Transaction, during the term of the FPA and of the FSA.

 

12.12      Anti-corruption Policy. The Parties undertake, under the penalties set forth herein and in the applicable law, to observe and strictly comply with all applicable laws, including but not limited to the Brazilian anti-corruption laws, anti-money laundering laws, and also the FCPA - Foreign Corrupt Practices Act, the UK Bribery Act and the Corruption of Foreign Public Officials Act (together “Anti-corruption Laws”), as well as the rules and provisions set forth in the internal policies of the Parties (“Anti-corruption Policy”).

 

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12.12.1  Each of the Parties represents and warrants that it is not involved nor will be involved, directly or indirectly, through its representatives (including any managers, directors, officers, advisors or consultants acting on its behalf), during the fulfillment of the obligations established under this Agreement and any other agreements executed in furtherance of this Transaction, in any activity or practice that constitutes a breach of the Anti-corruption Laws.

 

12.12.2  The Parties undertake to keep books, accounts, records and invoices accurate and agree that, if considered necessary, the Parties shall be entitled to, directly or indirectly, with assistance of third parties that they may appoint, audit the books, accounts, records, invoices and any document that supports the collections and/or the requests of reimbursement, to verify compliance with the provisions of the Anti-corruption Laws and also the Anti-corruption Policy, whereas the Parties shall provide full cooperation in the course of any audit, undertaking to submit any necessary information and documentation whenever requested.

 

12.12.3  The non-compliance by the Parties of the Anti-corruption Laws and/or the Anti-corruption Policy will be considered a material breach to this Agreement and/or to any other agreements executed in furtherance of this Transaction and shall entitle the other Party to, acting in good faith, declare this Agreement and/or to any other agreements executed in furtherance of this Transaction terminated immediately, without any burden or penalty, being the defaulting Party responsible for the losses and damages, pursuant to the applicable law and to this Agreement and/or to any other agreements executed in furtherance of this Transaction.

 

12.12.4  The Parties declare that they have not, directly or indirectly, offered, promised, paid or authorized the payment of money, gave or agreed to give gifts or anything of value and, during the term of this Agreement and/or to any other agreements executed in furtherance of this Transaction, will not offer, promise, pay or authorize payment of money, give or agree to give

 

68



 

gifts or anything of value to any person or entity, public or private, in order to unlawfully obtain or retain any business on behalf of the other Party.

 

12.12.5  The Parties declare that will not, directly or indirectly, receive, transfer, maintain, use or hide resources that result from any unlawful activity and will not hire as an employee or otherwise maintain professional relationship with individuals or entities involved in criminal activities, in particular the Anti-corruption Laws, money laundering, drug trafficking and terrorism.

 

12.12.6  The Parties represent and warrant that (i) their current representatives are not public officials or government employees; (ii) will promptly inform, in writing, any appointment of their representatives as public officials or government employees.

 

12.12.7  Each of the Parties will promptly notify, in writing, the other Party with respect of any suspected or actual breach of the Anti-corruption Laws and/or the Anti-corruption Policy by such Party, and also any involvement by such Party in bribery or corruption acts, and the breach of any representations pursuant to this Section.

 

SECTION THIRTEEN - PUT OPTION

 

13.1        On the Closing Date, SELLERS shall grant to BUYER put options to have SELLERS purchase each of the Selected Assets from NEWCOS or assign the possession rights in relation to each of the Selected Assets from NEWCOS, as the case may be (being the put option concerning each of the Selected Assets hereinafter referred to as a “Put Option”), which exercise will be subject to the provisions of the Put Option Agreement to be executed by the Parties on the Closing Date, that will provide, among other terms, that the Put Option may be exercised in the following events:

 

(i)            In the event that the (x) Title Transfer of any of the Selected Assets to NEWCOS: (a) within

 

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five (5) years as of the Closing Date is not perfected by means of the registration thereof with RERO, including the title regularization of any possessed areas, as the case may be or (b) at any time, is informed by SELLERS as not transferable, after evidence from SELLERS of the reason why the perfection of the Title Transfer is not possible, as well as evidence of the measures that have been taken to comply with such obligation under this Agreement; (y) Allocated Possession Areas (a) are not conveyed into Title and such respective Title is not perfected on behalf of the NEWCOS within the fifth (5th) year following the Closing Date; or (b) in case BUYER decides to pursue perfected lawful title of the Allocated Possession Areas at its own account, SELLERS have not fully cooperated with BUYER as long as necessary or (c) at any time, is informed by SELLERS as not transferable, after evidence from SELLERS of the reason why the perfection of the Title Transfer is not possible, as well as evidence of the measures that have been taken to comply with such obligation under this Agreement; (both (x) and (y) shall be considered as (“Non-Transferred Assets”); and for greater clarity the SELLERS will be obligated to advise the BUYER of any such determination promptly;

 

(ii)           If, at any time, (a) BUYER identifies any Liens (except for the Liens listed in Appendix 3.2.(a)(iii) and other Liens consented to by Buyer at its sole discretion) related to any of or portion of any of the Selected Assets; or, (b) Buyer receives any notification, infraction notice, claim or summons, as part of an administrative, judicial or arbitration procedure, resulting from a Third Party Claim (including Third Party Claim initiated by Governmental Authorities) concerning any dispute about the ownership or the possession of such Selected Assets or part thereof including, but not limited to, in case the possession of the Allocated Possession Areas are encroached, seized or threatened to be seized, or threatened with imminent violence (being any such Selected Assets or part thereof referred to as a “Disturbed Land” and any such Third Party Claim referred to as a “Disturbance Third Party Claim”).

 

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13.1.1     BUYER may exercise the Put Option in connection with the Non-Transferred Assets and/or Disturbed Land by means of a written notification to SELLERS (“Put Option Exercise Notice”) at any time from the date on which the Put Option becomes exercisable under Section 13.1 (i) and/or (ii), as applicable, until the final harvest of the Last Rotation of each real estate record file (“matricula”) of the Selected Assets under the FPA. The date when BUYER exercises the Put Option in connection with any Non-Transferred Assets and/or Disturbed Land shall be referred as the “Put Option Exercise Date”.

 

13.1.2     If the Put Option becomes exercisable in respect to Non-Transferred Assets prior to the fifth (5th) anniversary of the Closing Date, SELLERS undertake to offer to replace such Non-Transferred Assets with Replacement Assets and BUYER undertakes to replace such Non-Transferred Assets with Replacement Assets (with due regard to the criteria for replacement described in the definition of Replacement Assets included in Section 1.1), except if BUYER waives its Put Option right relating to the respective Selected Assets. In the event no offer is made within thirty (30) days of the Put Option becoming exercisable or any offer being withdrawn and in any event no later than the fifth (5th) anniversary of the Closing Date, the BUYER shall have, at any time until the final harvest of the Last Rotation of each real estate record file (“matricula”) of the Selected Assets under the FPA, the right to require SELLERS to acquire such Non-Transferred Assets from BUYER or NEWCOS, as the case may be, in consideration for the payment of the amount provided for in Appendix 13.1.2 for such Non-Transferred Assets, as adjusted by the rules for evaluation and calculation formula set forth therein (“Put Option Price”), by means of the execution of the competent document.

 

13.1.3     If the Put Option becomes exercisable in respect of a Disturbed Land at any time or in respect of Non-Transferred Assets subsequent to the fifth (5th) anniversary of the Closing Date, SELLERS undertake to offer to replace such

 

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Disturbed Land or Non-Transferred Assets, as the case may be, with real estate properties that meet the criteria for replacement as established in Appendix 3.2(a)(i) and that are agreed by the BUYER, in its sole discretion, to have a value equivalent to the Non-Transferred Assets. In the event no offer is made within thirty (30) days of the Put Option becoming exercisable or no such Selected Assets are agreed by BUYER, the BUYER shall have, at any time until the final harvest of the Last Rotation of each real estate record file (“matricula”) of the Selected Assets under the FPA, the right to require SELLERS to acquire such Non-Transferred Assets or Disturbed Land, as the case may be, from BUYER or NEWCOS, as the case may be, in consideration for the Put Option Price, by means of the execution of the competent document.

 

13.1.4     If the Put Option becomes exercisable in respect of a Non-Transferred Asset or a Disturbed Land located in a certain project area which comprises other Selected Assets and/or Possession Areas, BUYER may exercise its Put Option right, at its sole discretion, in relation to each or the totality of the real estate record files (“matrículas”)/Selected Assets and Possession Areas comprised in such project.

 

13.1.5     The Put Option Price shall be paid by SELLERS to BUYER within sixty (60) Calendar Days as of the Put Option Exercise Notice.

 

13.2        To guarantee the payment by SELLERS to BUYER of the Put Option Price in connection with the exercise of any and all Put Options concerning all Selected Assets, and any indemnification due to BUYER for damages caused as a consequence of SELLERS’ default in applying the Put Option, SELLERS shall, within twenty (20) days as from the Cosing Date, grant to BUYER pledge over the existing and future Standing Timber on the real properties listed in Appendix 13.2 (“Guarantee”), which shall remain in full force until sixty (60) Calendar Days following the final harvest of the Last Rotation of each real estate record file (“matrícula”) of the Selected Assets under the FPA, unless BUYER has exercised the Put Option in connection with any Non-Transferred Assets, in which case the Guarantee shall be reduced proportionately based on the Put Option Price.

 

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SECTION FOURTEEN - APPLICABLE LAW AND ARBITRATION

 

14.1        The Parties shall attempt, in good faith, to settle any ties and disputes arising out from this Agreement and to construe and apply the remaining provisions of this Agreement in an amicable manner, provided that any Party that believes any of its rights has been compromised shall give the other Party notice to that effect. Should the Parties fail to settle the dispute amicably within 30 (thirty) days counted as of the notice referred to in Section 15, such dispute shall be finally settled by means of a binding arbitration procedure.

 

14.2        The Arbitration shall be governed by the rules of the Chamber of Commerce Brazil - Canada -“CCBC” (“Rules of CCBC”), which shall be liable for the conduction of the arbitral proceedings. Should the Rules of CCBC not address any procedural aspect, the Parties hereby agree to apply the Brazilian procedural laws provided in Law no. 9307/96 and in the Brazilian Code of Civil Procedure on a supplementary basis and in such order.

 

14.3        Arbitration shall be held in the city of São Paulo, State of São Paulo, Brazil, and the official language of the arbitration shall be English.

 

14.4        The arbitral tribunal shall be composed of 3 (three) arbitrators. Each Party (SELLERS, on one side, and BUYER, on the other side)shall appoint 1 (one) arbitrator and the arbitrators so appointed shall appoint a 3rd (third) one by mutual agreement. Should a Party fail to appoint an arbitrator within 14 (fourteen) days counted as of receipt of notice for commencement of arbitration or, should the 2 (two) arbitrators fail to reach an agreement as to appointment of an arbitrator within fourteen (14) days following their appointment, such missing arbitrator(s) shall be appointed in accordance with the Rules of CCBC.

 

14.5        The Parties hereby acknowledge and agree that selection of arbitration as means of dispute resolution hereunder is voluntary and that the arbitral award entered thereunder shall be a clear

 

73



 

and legal title, the final and definitive decision, binding on the Parties, which hereby waive submission to any other venue or jurisdiction, however privileged it may be.

 

14.6        Should a Party be called to settle a dispute under arbitration and opposes arbitration or refuses to sign the relevant arbitral commitment, arbitration shall proceed in accordance with the provisions of the Rules of CCBC, provided that the arbitral tribunal in charge shall determine the contents of the arbitral commitment, for the regular processing of the arbitration procedure.

 

14.7        Arbitrators shall settle any dispute hereunder in accordance with the Brazilian law that shall be kept confidential. Any arbitral award shall be final and may be enforced in any court having appropriate jurisdiction.

 

14.8        Liability for payment of the arbitration costs, including the arbitrators’ fees shall be determined in accordance with the Rules of CCBC. Should the Rules of CCBC be silent on the aforesaid issue, the arbitral award shall hold that the defeated Party shall bear the costs of arbitration or of any court proceeding pertaining to or resulting from arbitration, including attorneys’, experts’ and arbitrators’ fees. In case of an arbitral award partly favorable to both Parties, the arbitral tribunal shall specify the form of payment of each Party’s share of such costs.

 

14.9        Without prejudice or limitation to any provision contained in the Rules of CCBC, the Parties may resort to the judiciary solely in the events set forth below, and no such conduct shall be deemed the Parties’ waiver to their choice of arbitration as the sole means to settle disputes: (i) to assure commencement of arbitration; (ii) to obtain injunctions and other protective remedies prior to organization of an arbitral tribunal; and (iii) to enforce any ruling entered by an arbitral tribunal, including but not limited to the arbitral award. To that effect, the Parties hereby elect the courts of the city of São Paulo, State of São Paulo, Brazil as the appropriate venue to entertain and rule on such issues.

 

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SECTION FIFTEEN - GENERAL PROVISIONS

 

15.1        All notices, consents, requests and other communications contemplated by this Agreement (“Notice”) shall be made in writing and delivered by hand, postal or courier service, acknowledged receipt required to the addresses below:

 

If to SELLERS:

 

FIBRIA CELULOSE S.A.

Alameda Santos, 1357, 6th floor

São Paulo - SP 01419-001

Att: Aires Galhardo - Executive Officer

c/c: Eduardo Andretto - General Counsel

 

With a copy (that shall not constitute a notice) to:

 

Paulo Coelho da Rocha

Demarest Advogados

Av. Pedroso de Morais, 1201

São Paulo - SP 05419-001

 

If to BUYER:

 

PARKIA PARTICIPÇÕES S.A.

Av. das Américas, 500 - Bloco 2, sala 301 (parte)

Rio de Janeiro - RJ 22640-100

Att: Paulo Garcia

 

With a copy (that shall not constitute a notice) to:

 

Rossana Fernandes Duarte

Siqueira Castro Advogados

Rua Tabapua, 81 - 4° andar

São Paulo - SP 04533-010

 

15.2        Notices given pursuant to the provisions of this Agreement shall be deemed received: (i) upon delivery, if hand-delivered against evidence of receipt; (ii) upon receipt, if posted on the mail and duly received by the addressee against receipt of delivery; and (iii) except as otherwise provided in this Agreement, five (5) Business Days after being sent via overnight courier service and duly received by the addressee against evidence of receipt. Either Party may change the address for delivery of Notices upon prior Notice to the other parties in accordance with this Section 15.

 

75



 

15.3        Except as otherwise provided in this Agreement, the commitments and obligations assumed by each Party hereunder are subject to specific performance pursuant to the provisions of articles 461 and 466-A et seq. of the Civil Procedure Code, and the Parties acknowledge that losses and damages shall not be a sufficient restitution. To that effect, the Parties acknowledge that this Agreement, duly signed by two witnesses, is a clear and legal out-of-court execution title for all effects and purposes of article 585, subsection II, of the Civil Procedure Code.

 

15.4        Except as otherwise provided for in this Agreement, all costs and expenses incurred by the SELLERS and by BUYER in connection with the negotiation, preparation, execution and Closing of this Transaction shall be borne by the Party that has incurred them, including those relating to brokerage and commissions to service providers. All expenses related to the conveyance of the Selected Assets by SELLERS to NEWCOS shall be borne by SELLERS, except for as provided in Appendix 15.4 attached hereto, and the expenses related to the registration with the competent Board of Trade of the documents relative to the transference of the NEWCOS’ Shares to BUYER shall be borne by BUYER.

 

15.5        This Agreement and the documents to be produced until the Closing Date as provided herein constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof, superseding any other preliminary agreements entered into by the Parties.

 

15.6        This Agreement is executed in an irrevocable and irreversible manner, except for the conditions which allow this Agreement to be revocable and reversible for the term between this date and the Closing Date.

 

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15.7        This Agreement is binding upon the Parties, and each of their successors in any capacity.

 

15.8        Except as otherwise provided for in this Agreement, this Agreement and/or the rights and liabilities hereunder of any Party shall not be assigned or surrogated, either in part or in full, without the other Parties’ prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned to any other act or fact without motive. The limitation established hereunder shall not apply to the transfer of the BUYER’s rights to companies belonging to BUYER’s economic group, including its Affiliates.

 

15.9        Any Party’s failure to enforce or delay in enforcing any provision of this Agreement, or in demanding compliance with any term or condition hereof shall not be construed as a waiver to such provision, term or condition, nor shall it be deemed novation of the sections or subsections of this Agreement. No such act of freedom shall affect the relevant Party’s rights, which may be enforced at any time in the future.

 

15.10      Any amendment or change to this Agreement shall only be effective if made in written, duly signed by the Parties, which shall become a part hereto as an amendment.

 

15.11      Should any section, item or provision of this Agreement be held illegal, invalid or unenforceable, such invalidation shall not affect the enforceability or validity of the remaining sections, items and provisions, except if combination of the provisions indicates that the Parties would not have been willing to enter this Agreement without the unenforceable or invalid provisions.

 

15.12      All terms and deadlines provided for in this Agreement shall be counted as provided for in article 184 of the Civil Procedure Code, i.e., excluding the first date and including the maturity date. All terms and deadlines provided for in this Agreement ending on a Saturday, Sunday or holiday

 

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shall be automatically extended to the next Business Day.

 

15.13      Liability for collection of the Taxes levied on the transactions hereunder shall fall upon the Party deemed the taxpayer under the applicable legislation.

 

15.14      The Parties hereby agree that any term provided hereunder shall not be extended, except (i) upon mutual agreement amongst the Parties; or (ii) upon the occurrence of force majeure events or acts of God, as defined in the sole paragraph of article 393 of the Brazilian Civil Code, including, for example, strike of government entitiesemployees, which might substantially affect the fulfillment of the Conditions Precedent by the Parties for Closing and/or for the satisfaction of the post-Closing obligations, adverse weather hinders the conduction of the Due Diligence, court or administrative order which could prevent the Closing from happening, as well as any and all occurrences which may, directly or indirectly, prevent or hinder the Closing or the satisfaction of the post-Closing obligations from occurring on the agreed date provided that the Party claiming such force majeure event or act of God shall provide evidence of its occurrence. In these cases, such term (and all supervening terms) shall be extended by the number of day’s equivalent to the duration of the applicable force majeure or act of God.

 

15.15.     This Agreement is executed in both English and Portuguese languages. In case of conflict between the Portuguese and English versions of the Agreement, the English version shall prevail.

 

15.16      The Parties hereby authorize the individuals below to initial the exhibits of this Agreement on their behalf:

 

Seller

 

Purchaser

 

Sample

authorized

Sample

authorized

initial:

[ILLEGIBLE]

initial:

[ILLEGIBLE]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in three (3) counterparts before the two (2) undersigned witnesses.

 

São Paulo, November 15,2013.

 

 

 

[ILLEGIBLE]

 

 

FIBRIA CELULOSE S.A.

 

 

 

 

 

 

 

 

[ILLEGIBLE]

 

 

FIBRIA MS CELULOSE SUL MATOGROSSENSE LTDA.

 

 

 

 

 

 

 

 

[ILLEGIBLE]

 

 

PARKIA PARTICIPACÕES S.A.

 

 

WITNESSES: / TESTEMUNHAS:

 

1.

 

2.

 

 

Name: / Nome:

 

Name: / Nome:

 

ID: / RG:

 

ID: / RG:

 

 



 

Appendix I - LIST OF THE ASSETS

 

 

 

 

 

 

 

 

 

 

 

Plantable Area

 

Potential MAI

 

ID_Project

 

Municipality

 

State

 

Region_BTM

 

Total Area (ha)

 

(ha)

 

(m3/ha.yr)

 

A093

 

ARACRUZ

 

ES

 

ES_South_03

 

425.28

 

284.21

 

37.10

 

A094

 

ARACRUZ

 

ES

 

ES_South_03

 

286.24

 

211.79

 

37.10

 

A095

 

ARACRUZ

 

ES

 

ES_South_03

 

449.19

 

292.23

 

37.10

 

A114

 

ARACRUZ

 

ES

 

ES_South_03

 

141.10

 

100.17

 

37.10

 

A115

 

ARACRUZ

 

ES

 

ES_South_03

 

213.40

 

131.20

 

44.30

 

A117

 

ARACRUZ

 

ES

 

ES_South_03

 

169.92

 

111.93

 

44.30

 

A124

 

ARACRUZ

 

ES

 

ES_South_03

 

302.42

 

220.79

 

37.10

 

A125

 

ARACRUZ

 

ES

 

ES_South_03

 

218.48

 

167.60

 

37.10

 

A127

 

ARACRUZ

 

ES

 

ES_South_03

 

318.49

 

251.69

 

37.10

 

A133

 

ARACRUZ

 

ES

 

ES_South_03

 

147.30

 

115.69

 

37.10

 

A140

 

ARACRUZ

 

ES

 

ES_South_03

 

510.07

 

397.08

 

37.10

 

A143

 

LINHARES

 

ES

 

ES_South_03

 

74.09

 

49.87

 

37.10

 

A261

 

ARACRUZ

 

ES

 

ES_South_03

 

14.23

 

9.44

 

37.10

 

A262

 

ARACRUZ

 

ES

 

ES_South_03

 

162.70

 

96.19

 

37.10

 

A263

 

ARACRUZ

 

ES

 

ES_South_03

 

198.00

 

127.71

 

37.10

 

A264

 

ARACRUZ

 

ES

 

ES_South_03

 

69.63

 

41.29

 

37.10

 

A265

 

ARACRUZ

 

ES

 

ES_South_03

 

27.12

 

16.83

 

37.10

 

A266

 

ARACRUZ

 

ES

 

ES_South_03

 

21.90

 

13.58

 

37.10

 

A267

 

ARACRUZ

 

ES

 

ES_South_03

 

45.18

 

31.19

 

37.10

 

A268

 

ARACRUZ

 

ES

 

ES_South_03

 

124.43

 

79.27

 

37.10

 

 



 

 

 

 

 

 

 

 

 

 

 

Plantable Area

 

Potential MAI

 

ID_Project

 

Municipality

 

State

 

Region_BTM

 

Total Area (ha)

 

(ha)

 

(m3/ha.yr)

 

A269

 

ARACRUZ

 

ES

 

ES_South_03

 

106.28

 

72.27

 

37.10

 

A270

 

ARACRUZ

 

ES

 

ES_South_03

 

190.26

 

128.63

 

37.10

 

A280

 

ARACRUZ

 

ES

 

ES_South_03

 

337.50

 

275.85

 

37.10

 

A283

 

ARACRUZ

 

ES

 

ES_South_03

 

66.19

 

45.42

 

37.10

 

A285

 

ARACRUZ

 

ES

 

ES_South_03

 

28.15

 

22.89

 

37.10

 

A286

 

ARACRUZ

 

ES

 

ES_South_03

 

96.60

 

58.89

 

37.10

 

A288

 

ARACRUZ

 

ES

 

ES_South_03

 

54.41

 

42.93

 

37.10

 

A293

 

ARACRUZ

 

ES

 

ES_South_03

 

162.57

 

120.33

 

37.10

 

A308

 

ARACRUZ

 

ES

 

ES_South_03

 

384.32

 

155.90

 

37.10

 

A318

 

ARACRUZ

 

ES

 

ES_South_03

 

191.64

 

102.21

 

37.10

 

A326

 

ARACRUZ

 

ES

 

ES_South_03

 

89.97

 

56.40

 

44.30

 

A600

 

LINHARES

 

ES

 

ES_South_03

 

421.78

 

313.06

 

37.10

 

A606

 

LINHARES

 

ES

 

ES_South_03

 

601.28

 

315.34

 

37.10

 

A607

 

LINHARES

 

ES

 

ES_South_03

 

804.20

 

390.14

 

37.10

 

A617

 

LINHARES

 

ES

 

ES_South_03

 

236.99

 

219.20

 

37.10

 

A627

 

IBATIBA

 

ES

 

ES_South_03

 

20.41

 

7.45

 

44.30

 

F154

 

IGARATÁ

 

SP

 

SP_East_03

 

266.54

 

135.31

 

56.20

 

F167

 

CRUZEIRO

 

SP

 

SP_East_03

 

55.50

 

22.99

 

44.00

 

F431

 

ITAPEVA

 

SP

 

SP_South_02

 

2,821.93

 

2,219.00

 

61.74

 

F434

 

ITAPEVA

 

SP

 

SP_South_02

 

195.95

 

176.20

 

48.44

 

F435

 

ITAÍ

 

SP

 

SP_South_02

 

1,033.41

 

818.16

 

55.09

 

F438

 

TAQUARIVAÍ

 

SP

 

SP_South_02

 

851.68

 

569.61

 

48.44

 

F461

 

AVAÍ

 

SP

 

SP_North_01

 

1,126.01

 

776.55

 

41.79

 

 



 

 

 

 

 

 

 

 

 

 

 

Plantable Area

 

Potential MAI

 

ID_Project

 

Municipality

 

State

 

Region_BTM

 

Total Area (ha)

 

(ha)

 

(m3/ha.yr)

 

F464

 

AREALVA

 

SP

 

SP_North_01

 

126.69

 

102.58

 

41.79

 

F465

 

AREALVA

 

SP

 

SP_North_01

 

128.66

 

124.20

 

41.79

 

F466

 

PEDERNEIRAS

 

SP

 

SP_North_01

 

471.88

 

419.57

 

48.44

 

F467

 

AGUDOS

 

SP

 

SP_North_01

 

634.98

 

428.88

 

48.44

 

F531

 

CAMPINA DO MONTE ALEGRE

 

SP

 

SP_South_02

 

1,210.31

 

999.00

 

48.44

 

F533

 

ITAPETININGA

 

SP

 

SP_South_02

 

2,896.77

 

1,243.07

 

48.44

 

F536

 

CAMPINA DO MONTE ALEGRE

 

SP

 

SP_South_02

 

917.08

 

571.13

 

55.09

 

F537

 

ITAPETININGA

 

SP

 

SP_South_02

 

1,089.93

 

630.06

 

55.09

 

F538

 

ITAPETININGA

 

SP

 

SP_South_02

 

830.64

 

306.67

 

55.09

 

F539

 

ITAPETININGA

 

SP

 

SP_South_02

 

1,172.78

 

602.02

 

55.09

 

F540

 

ITAPETININGA

 

SP

 

SP_South_02

 

2,606.47

 

1,324.01

 

48.44

 

F543

 

ITAPETININGA

 

SP

 

SP_South_02

 

1,033.98

 

526.95

 

48.44

 

F545

 

ANGATUBA

 

SP

 

SP_South_02

 

87.32

 

67.36

 

55.09

 

F547

 

ITAPETININGA

 

SP

 

SP_South_02

 

411.02

 

198.09

 

55.09

 

F549

 

ITAPETININGA

 

SP

 

SP_South_02

 

1,456.09

 

986.33

 

55.09

 

F638

 

JAMBEIRO

 

SP

 

SP_East_03

 

626.03

 

364.14

 

49.60

 

F639

 

JAMBEIRO

 

SP

 

SP_East_03

 

419.95

 

246.07

 

44.00

 

F640

 

JAMBEIRO

 

SP

 

SP_East_03

 

416.61

 

254.23

 

49.60

 

F677

 

CAPÃO BONITO

 

SP

 

SP_South_02

 

77.05

 

59.39

 

55.09

 

F678

 

CAPÃO BONITO

 

SP

 

SP_South_02

 

241.36

 

173.38

 

48.44

 

F679

 

CAPÃO BONITO

 

SP

 

SP_South_02

 

442.85

 

327.63

 

55.09

 

F680

 

CAPÃO BONITO

 

SP

 

SP_South_02

 

250.71

 

169.60

 

48.44

 

F681

 

BURI

 

SP

 

SP_South_02

 

871.11

 

600.36

 

48.44

 

 



 

 

 

 

 

 

 

 

 

 

 

Plantable Area

 

Potential MAI

 

ID_Project

 

Municipality

 

State

 

Region_BTM

 

Total Area (ha)

 

(ha)

 

(m3/ha.yr)

 

F743

 

CAÇAPAVA

 

SP

 

SP_East_03

 

130.34

 

99.31

 

49.60

 

F891

 

TREMEMBÉ

 

SP

 

SP_East_03

 

332.50

 

187.21

 

49.60

 

F892

 

TREMEMBÉ

 

SP

 

SP_East_03

 

233.52

 

146.08

 

49.60

 

F895

 

CRUZEIRO

 

SP

 

SP_East_03

 

79.36

 

45.57

 

44.00

 

F931

 

JAMBEIRO

 

SP

 

SP_East_03

 

84.94

 

20.45

 

49.60

 

F954

 

TREMEMBÉ

 

SP

 

SP_East_03

 

228.03

 

83.38

 

49.60

 

H007

 

TRÊS LAGOAS

 

MS

 

MS_South_03

 

19,510.23

 

14,246.68

 

43.10

 

H008

 

TRÊS LAGOAS

 

MS

 

MS_Center_02

 

1,862.47

 

1,073.93

 

43.10

 

H011

 

TRÊS LAGOAS

 

MS

 

MS_North_01

 

1,809.52

 

1,023.51

 

36.70

 

H013

 

BRASILÂNDIA

 

MS

 

MS_South_03

 

12,124.65

 

7,721.64

 

43.10

 

H053

 

TRÊS LAGOAS

 

MS

 

MS_Center_02

 

4,905.80

 

3,192.72

 

43.10

 

H07B

 

BRASILÂNDIA

 

MS

 

MS_South_03

 

17,671.63

 

12,833.73

 

43.10

 

H101

 

BRASILÂNDIA

 

MS

 

MS_South_03

 

17,859.98

 

10,629.86

 

43.10

 

H102

 

ÁGUA CLARA

 

MS

 

MS_South_03

 

5,970.12

 

2,805.36

 

43.10

 

H103

 

BRASILÂNDIA

 

MS

 

MS_South_03

 

2,114.80

 

1,376.07

 

43.10

 

H104

 

BRASILÂNDIA

 

MS

 

MS_South_03

 

1,181.12

 

625.08

 

43.10

 

H105

 

TRÊS LAGOAS

 

MS

 

MS_South_03

 

1,147.81

 

793.82

 

43.10

 

H120

 

BRASILÂNDIA

 

MS

 

MS_South_03

 

1,414.35

 

924.63

 

43.10

 

H188

 

BRASILÂNDIA

 

MS

 

MS_South_03

 

1,090.54

 

692.69

 

43.10

 

M001

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

133.08

 

79.52

 

37.10

 

M012

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

426.04

 

259.14

 

44.30

 

M014

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

223.73

 

172.17

 

44.30

 

M015

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

404.70

 

285.76

 

37.10

 

 



 

 

 

 

 

 

 

 

 

 

 

Plantable Area

 

Potential MAI

 

ID_Project

 

Municipality

 

State

 

Region_BTM

 

Total Area (ha)

 

(ha)

 

(m3/ha.yr)

 

M016

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

287.24

 

176.59

 

37.10

 

M017

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

398.28

 

208.72

 

37.10

 

M018

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

407.59

 

220.75

 

37.10

 

M019

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

535.02

 

336.74

 

37.10

 

M020

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

339.89

 

261.96

 

37.10

 

M021

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

515.83

 

307.96

 

37.10

 

M022

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

523.99

 

258.42

 

37.10

 

M023

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

693.99

 

358.20

 

29.80

 

M024

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

474.42

 

145.68

 

37.10

 

M025

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

474.43

 

331.18

 

29.80

 

M026

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

420.84

 

247.37

 

44.30

 

M027

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

760.04

 

507.34

 

29.80

 

M028

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

684.73

 

402.72

 

37.10

 

M029

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

484.31

 

304.45

 

37.10

 

M031

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

300.99

 

207.40

 

37.10

 

M032

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

207.43

 

149.43

 

37.10

 

M033

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

217.77

 

133.94

 

37.10

 

M034

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

268.95

 

153.50

 

44.30

 

M035

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

395.95

 

221.09

 

37.10

 

M036

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

454.39

 

222.88

 

37.10

 

M037

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

551.38

 

257.26

 

29.80

 

M038

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

558.00

 

167.36

 

29.80

 

M040

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

346.96

 

206.83

 

37.10

 

 



 

 

 

 

 

 

 

 

 

 

 

Plantable Area

 

Potential MAI

 

ID_Project

 

Municipality

 

State

 

Region_BTM

 

Total Area (ha)

 

(ha)

 

(m3/ha.yr)

 

M041

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

328.62

 

198.64

 

37.10

 

M042

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

581.44

 

338.65

 

44.30

 

M043

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

624.61

 

363.96

 

37.10

 

M044

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

557.31

 

309.70

 

44.30

 

M046

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

370.84

 

172.48

 

37.10

 

M047

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

317.76

 

205.59

 

44.30

 

M048

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

342.53

 

240.88

 

44.30

 

M099

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

163.52

 

109.46

 

44.30

 

M114

 

CARAVELAS

 

BA

 

BA_Total_01

 

302.51

 

175.45

 

44.30

 

M116

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

148.60

 

99.33

 

37.10

 

M117

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

471.59

 

218.64

 

37.10

 

M118

 

CARAVELAS

 

BA

 

BA_Total_01

 

83.54

 

35.47

 

37.10

 

M119

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

131.22

 

53.07

 

37.10

 

M123

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

152.51

 

78.77

 

44.30

 

M124

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

517.39

 

357.28

 

37.10

 

M125

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

449.68

 

199.34

 

37.10

 

M130

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

363.33

 

251.64

 

37.10

 

M131

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

589.35

 

319.00

 

29.80

 

M132

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

576.21

 

276.14

 

44.30

 

M133

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

369.08

 

227.12

 

44.30

 

M134

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

425.64

 

293.96

 

44.30

 

M153

 

MUCURI

 

BA

 

BA_Total_01

 

381.11

 

196.97

 

44.30

 

M154

 

MUCURI

 

BA

 

BA_Total_01

 

601.29

 

482.57

 

44.30

 

 



 

 

 

 

 

 

 

 

 

 

 

Plantable Area

 

Potential MAI

 

ID_Project

 

Municipality

 

State

 

Region_BTM

 

Total Area (ha)

 

(ha)

 

(m3/ha.yr)

 

M155

 

MUCURI

 

BA

 

BA_Total_01

 

373.05

 

282.09

 

44.30

 

M156

 

MUCURI

 

BA

 

BA_Total_01

 

241.19

 

168.33

 

44.30

 

M157

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

577.02

 

309.81

 

44.30

 

M158

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

184.73

 

99.86

 

37.10

 

M161

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

562.53

 

297.82

 

44.30

 

M165

 

MUCURI

 

BA

 

BA_Total_01

 

309.24

 

188.03

 

44.30

 

M166

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

426.80

 

241.58

 

29.80

 

M194

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

103.70

 

75.30

 

44.30

 

M196

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

43.13

 

27.89

 

44.30

 

M197

 

IBIRAPUÃ

 

BA

 

BA_Total_01

 

154.64

 

87.24

 

44.30

 

M209

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

379.99

 

201.94

 

37.10

 

M217

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

41.05

 

13.41

 

37.10

 

M218

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

24.78

 

15.39

 

37.10

 

M219

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

296.28

 

197.87

 

44.30

 

M220

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

420.73

 

302.84

 

44.30

 

M221

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

331.75

 

206.78

 

44.30

 

M222

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

60.67

 

32.11

 

37.10

 

M224

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

53.17

 

22.01

 

37.10

 

M225

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

77.78

 

47.16

 

37.10

 

M360

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

259.46

 

164.60

 

29.80

 

M361

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

441.95

 

246.79

 

29.80

 

M362

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

194.56

 

98.70

 

37.10

 

M363

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

194.41

 

124.07

 

37.10

 

 



 

 

 

 

 

 

 

 

 

 

 

Plantable Area

 

Potential MAI

 

ID_Project

 

Municipality

 

State

 

Region_BTM

 

Total Area (ha)

 

(ha)

 

(m3/ha.yr)

 

M364

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

207.31

 

148.14

 

44.30

 

M365

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

454.38

 

300.17

 

44.30

 

M376

 

NOVA VIÇOSA

 

BA

 

BA_Total_01

 

103.35

 

83.90

 

37.10

 

M400

 

MUCURI

 

BA

 

BA_Total_01

 

185.17

 

128.58

 

51.50

 

M401

 

MUCURI

 

BA

 

BA_Total_01

 

356.44

 

274.77

 

51.50

 

M402

 

MUCURI

 

BA

 

BA_Total_01

 

218.04

 

160.79

 

51.50

 

M403

 

MUCURI

 

BA