Contrato internacional de venda com reserva de
domínio.
CONTRATO INTERNACIONAL DE VENDA COM RESERVA DE DOMÍNIO
CONDITIONAL SALE AND SECURITY AGREEMENT
This Conditional Sale and Security Agreement ("Contrato de Venda com Reserva de
Domínio") dated as of ................. , by and between:
I - ............... , a company organized and existing under the laws of
Federative Republic of Brazil, with head offices in the city of .............. ,
State of .................... , at av. ................, nº ........ ,
registered as tax payer under CNPJ/MF nº ..................... , herein
represented by its manager partner: Dr .................; Brasilian citizen,
married, physician, resident and domiciled in the city of ......................
, State of ................. , at rua ............... nº ........ apto .... ,
registered as a tax payer under CPF/MF nº ................... and bearer of
Identity Card RG nº ................ issued by ......../...... ; hereinafter
referred to as "Buyer";
II - ................. , a corporation organized under the laws of the State of
............. , with its principal offices at ..... ..... , hereinafter referred
to as "Seller";
III - ................... , qualified above, and his wife, ............... ,
Brazilian citizen, married, administrative manager, resident and domiciled in
the city of ...................... , State of .................... , at rua
............................. nº ........ apto .... , registered as a tax payer
under CPF/MF nº ................... and bearer of Identity Card RG nº
............. issued by ......../...... ; hereinafter referred to as "Guarantors";
The parties hereto agree as follows:
1. Sale
(a) The Seller agrees to sell to the Buyer and the Buyer agrees to purchase from
the Seller hereunder the ..................... , further described in proforma
invoice dated as of ..... , .............. ......... and in Exhibit I hereto
together with the additions and accessions (together, the "Equipment"), on a
time sale price basis in accordance with the terms and conditions specified
below. In order to ensure the punctual payment of any other amounts or
obligations arising from this Agreement, Buyer and Seller now expressly
institute and accept a Pact of Retention of Title and Ownership ("Pacto de
Reserva de Domínio") by which Seller retains the title and ownership of the
Equipment, which shall be in Buyer's possession conditionally, until all
payments of Principal and interest provided for herein or any other amounts and
obligations (collectively, "Obligations") of Buyer arising from this Agreement
are satisfied in full.
(b) The Seller shall not be obligated to sell the Equipment, unless all of the
conditions set forth in Section 10 hereof shall have been fulfilled to the
satisfaction of Seller.
(c) The Seller shall arrange for the installation of the Equipment, during
Seller's normal working hours. The Buyer shall be responsible for the
importation of the Equipment and will provide at its expense a suitable
installation environment for the Equipment with all such facilities as are
prescribed by Seller.
2. Price; Term and Payment Conditions
The price of the Equipment agreed on by the parties to this Conditional Sale
Agreement is of ............. (US$ ...............) ........... , to be paid in
accordance with the terms and conditions below:
(a) Buyer shall pay the purchase price in six (6) semi-annual installments of
................ (US$ ....................) each, the first payable on the
shipment's date of the Equipment and the remaining at each 180 days thereafter.
Each such 360 and 180 day period, herein an "Interest Period".
(b) On the outstanding principal balance, Buyer shall pay at the Libor Rate plus
a spread of two and half percent (2,5%) per annum, computed on the basis of a
three hundred and sixty (360) day year and the number of actual days elapsed,
net of any deductions or withholdings, which shall be due and payable along with
each installment of principal specified above. As used in this Agreement Libor
Rate shall mean the rate of interest at which six month dollar deposits are
offered by leading banks in London interbank market at approximately 11:00a.m.,
two business days before the beginning of any Interest Period, as reported by
the Central bank of Brazil.
(c) Buyer shall also pay Seller, interest at the rate provided for in item (b)
above, plus one percent (1%) per annum, on any amount not paid when due, for the
period the same is overdue.
(d) Each of the installments payable hereunder shall be applied to the payment
of interest then accrued, and the balance shall be applied to the then remaining
principal sum.
(e) All payments provided for herein shall be made in lawful money of the United
States of America, through the closing of the competent foreign exchange
contract with a financial institution authorized to operate in foreign exchange
transactions by the Central Bank of Brazil.
(f) The terms of this Agreement shall begin upon its execution and shall end
when all of the Buyer's Obligations hereunder have been satisfied in full,
unless earlier terminated pursuant to Section 8 hereof.
(g) All transportation, packing and insurance costs, license fees, customs
duties and other such charges will be paid by Buyer.
3. Buyers Representations and Warranties
The Buyer represents and warrants that:
(a) Power and Authority. The Buyer has full power, authority and legal right to
execute, deliver and perform this agreement, and the execution delivery and
performance of this Agreement does not violate or constitute a breach of any
agreement or restriction by which it is bound.
(b) Enforceability. This Agreement has been duly executed and delivered by the
Buyer and constitutes a legal, valid and binding obligation of the Buyer,
enforceable in accordance with its terms.
(c) Governmental Approvals. No consent, permit, license or approval of, giving
of notice to, registration with or taking any action in respect or by, any
Federal, State or foreign governmental authority or agency is required with
respect to the execution, delivery and performance by the Buyer of this
Agreement and the transactions contemplated hereby, which has not been duly
given or obtained.
(d) Financial Condition of Buyer. As of this date Buyer has no notice or
knowledge of anything which might impair the credit standing of Buyer.
(e) Other Agreements. Buyer is not in default under any agreement for the
payment of money.
(f) Accuracy of Information. All information, certificates or Statements given
to Seller pursuant to this Agreement shall be true and complete when given.
(g) Address. The address of Buyer is shown in the first paragraph of this
Agreement. The address where the Equipment will be kept is ....................
(h) Change of name or address. Buyer shall immediately advise Seller in writing
of any change in names or addresses.
4. Transfer of Title and Ownership.
So long as Buyer is not in default with respect to any of its obligations
hereunder, pursuant to Section 7 hereof, upon payment of the purchase price and
all other amounts due or payable hereunder, Seller shall transfer to Buyer the
title to and ownership of the Equipment, on an "as is, where is" basis and such
transfer of title shall not impply any warranty other than normally offered by
Seller for the Equipment.
5. Buyer's Covenants.
(a) Registration at the Central Bank of Brazil. Buyer shall within the term of
Fifteen (15) days counted as of the issuance of the "Declaração de Importação"
by the Brazilian customs authorities, register this transaction with the Central
Bank of Brazil for contracting of the financing, "Declaração de Importação", the
invoice and the bill of lading of the Equipment and any other documents that may
be required.
(b) Registration of this Agreement. Buyer shall cause a certified translation
hereof to be duly registered at the Registry of Deeds and Documents in the city
where Buyer maintains its head offices, as well as in the city where the
Equipment is found, if different than that of Buyer's residence.
(c) Maintenance. Buyer shall maintain the Equipment in good condition and repair
and not permit its value to be impaired; keep it free from all liens,
emcumbrances and security interests (other than Seller's security interest);
defend it against all claims and legal proceedings by persons other than Seller;
pay and discharge when due all taxes, license fees, levies and other charges
upon it; not sell, lease or otherwise dispose of it, or permit it to be used in
violation of any applicable law, regulation or policy of insurance. Loss of, or
damage to, the Equipment, shall not release Buyer from any of its obligation
hereunder.
(d) Insurance. Buyer shall keep the Equipment and Seller's interest in it
insured under policies with such provisions, for such amounts and by such
insurers as shall be satisfactory to Seller from time to time and shall furnish
evidence of such insurance satisfactory to Seller. Buyer shall appoint Seller as
beneficiary of the insurance in the policy which shall direct insurer to pay to
Seller any proceeds of all such insurance and any premium refunds and authorizes
Seller to endorse in the name of Buyer any instruments for such proceeds and
refunds and, at the option of Seller, to apply such proceeds and refunds to any
unpaid balance of the Obligations, whether or not due, and/or to restoration of
the Equipment, returning any excess to Buyer. Seller is authorized, in the name
of the Buyer or otherwise, to make, adjust and/or settle claims under any credit
insurance financed by Seller or any insurance on the Equipment, or cancel the
same after the occurrence of an event of default.
(e) Taxes and other Charges. Buyer shall pay and discharge all lawful taxes,
including the income tax imposed on the interest portion of the installments,
assessments and government charges upon Buyer or against its properties or upon
the Equipment, including any taxes arising in connection with the importation of
the Equipment, prior to the date on which penalties attach, unless and to the
extent only that such taxes, assessments and charges are contested in good faith
and by appropriate proceedings by the Buyer.
(f) Records and Statements. Buyer shall furnish Seller, financial Statements at
least annualy, and such other financial information respecting Buyer at such
times and in such forms as Seller may request. Buyer shall furnish to Seller, a
Statement certified by Buyer and in such form and containing such information as
may be prescribed by Seller, showing the current status and value of the
Equipment.
(g) Inspection of Equipment. From time to time, Seller or its representatives
may examine the Equipment and the Buyer's records pertaining to it, wherever
located, and make copies of records. Buyer shall assist Seller or its
representatives in so doing.
(h) Installation of Equipment. The Equipment shall only be installed by Seller
after the Obligations of the Buyer provided for in items "a", "b", "d" and "e"
of this clause have been fulfilled to seller's satisfaction.
6. Seller's Warranty.
Seller shall provide workmanship and materials warranty for the period of one
(1) year from the date of invoice, under normal use, in accordance with the
terms of the General Product Warranty included in the Operator's Manual for the
Equipment.
7. Events of Default.
The following events shall each constitute an event of default under this
agreement:
(a) Nonperformance. Buyer fails to pay when due any of the Obligations or to
perform, or rectify breach of, any warranty or other undertaking by Buyer in
this Agreement or in any evidence of or document relating to the Obligations;
(b) Inability to Perform. Buyer or a surety of any of the Obligations dies,
ceases to exist, becomes insolvent or the subject of bankruptcy or receivership
("concordata") or any other insolvency proceedings.
(c) Misrepresentation. Any representation made it induce Seller to extend credit
to Buyer, under this Agreement or otherwise, is false in any material respect
when made.
8. Remedies.
Upon the occurrence of one or more of the events of default specified in Section
7 above, Seller shall have the right to repossess the Equipment by means of
"Reintegração de Posse", pursuant to Art. 926 of the Brazilian Civil Procedure
Code; further, Seller may do any one more of the following respect to all of the
Equipment or any part thereof as Seller in its sole discretion shall elect, to
the extent permitted by applicable law then in effect:
(a) Seller may declare all unpaid Obligations to be forthwith due and payable,
whereupon, all payments of installments due and to become due thereunder shall
become immediately due and payable, without demand, protest, notice of
acceleration or any other notice of any kind;
(b) Seller may require Buyer to assemble the Equipment and to make it available
to Seller or its representatives at any convenient place designated by Seller;
(c) Seller may exercise any other right or remedy which may be available to it
under applicable law or proceed by appropriate court action to enforce the terms
hereof or any guarantee provided in connection herewith or to recover damages
for the breach hereof or to rescind this Agreement.
(d) The Seller's remedies hereunder are cumulative, not alternative and no
exercise or partial exercise of any remedy shall preclude the exercise of any
other remedy or the remainder of any such partially exercised remedy.
(e) Buyer shall reimburse Seller for any expense incurred by Seller in
protecting or enforcing its rights under this Agreement before and after
judgement, including, without limitation, reasonable attorney's fees and legal
expenses of taking possession, holding, preparing for disposition and disposing
of the Equipment. After deduction of such expenses, Seller may apply the
proceeds of the disposition to the Obligations in such order and amounts as it
elects.
9. Notices
All notices, demands and other communications hereunder shall be in writing, and
shall be deemed to have been given or made when delivered, telexed or
transmitted via facsimile (confirmed by certified postage prepaid mail) to the
addresses specified in the first paragraphs hereof.
10. Conditions Precedent.
The Seller shall not be obligated to sell the Equipment to the Buyer hereunder,
unless:
(a) Buyer shall have obtained all necessary consents of third parties, including,
without limitation, any licenses to import, operate and maintain the Equipment
and all other governmental authorizations necessary to enter into and effect the
transaction comtemplated hereunder, especially all the relevant documents
necessary to obtain the "Financial Operation Registry" reflecting the payment
conditions herein provided for and the previous approval of Central Bank of
Brazil for contracting of the financing.
(b) All representations and warranties of Buyer contained herein or in any
document or certificate furnished to Seller in connection herewith shall be true
and correct on the date of shipment of the Equipment.
11. Guarantee.
(a) The Guarantors hereby unconditionally guarantee, as principal obligors,
jointly and severally with Buyer, the due and punctual payment of any amount
owed by Buyer hereunder, as well as the discharge of any other covenants or
Obligations of Buyer in this Agreement or in connection with the transactions
contemplated hereby.
(b) The Guarantors hereby represent and warrant that they have full knowledge of
and expressly agree and consent to all of the terms and conditions of this
Agreement.
(c) The Guarantors hereby waive the benefits of Articles 1.491 and 1.501 through
1.503 of the Brazilian Civil Code.
12. Miscellaneous.
(a) No terms or provisions of this Agreement may be changed, waived, discharged
or terminated orally, but only by an instrument in writing signed by the party
against which the enforcement of the change, waiver, discharged or termination
is sought. No delay or failure on the part of Seller to exercise any power or
right hereunder shall operate as a waiver thereof, nor as acquiescence in any
default.
(b) The Obligations hereunder of the Buyer and Guarantors are joint and several.
This Agreement and the covenants and agreements contained herein benefit Seller,
its successors and assigns and binds Buyer, its heirs, its personal
representatives, successors and assigns. Buyer may not assign this Agreement
without Seller's express written consent.
(c) This Agreement shall be governed by and construed in accordance with the
laws of the Federative Republic of Brazil.
(d) Invalidity of any provision of this Agreement shall not affect the validity
of any other provision hereof.
(e) This Agreement is executed both in the Portuguese and English languages, and
the English version shall govern in the event of conflict with the Portuguese
version hereof.
(f) This Agreement is intended by Buyer, Guarantors and Seller as a final
expression of their agreement relating to the sale of the Equipment and as a
complete and exclusive Statement of its terms.
(g) The parties elect the jurisdiction of the Courts of ............., to rule
on any controversies arising from this Agreement.
IN WITNESS WHEREOF, Buyer and Seller and Guarantors have each caused this
Agreement to be duly executed as of the day and year first above written, in
five (5) counterparts of equal content, in the presence of two witnesses.
SELLER/VENDEDORA: ............
By/Ass.: ...............
Title/Cargo: .............