CYRELA BRAZIL REALTY S.A. EMPREENDIMENTOS E PARTICIPAÇÕES PUBLICLY-HELD COMPANY CORPORATE TAXPAYERS ID NO /

Transcription

1 CYRELA BRAZIL REALTY S.A. EMPREENDIMENTOS E PARTICIPAÇÕES PUBLICLY-HELD COMPANY CORPORATE TAXPAYERS ID NO / COMPANY REGISTRY NO Minutes of the Meeting of the Board of Directors DATE, TIME AND VENUE: May 12, 2011, at 11: a.m., at the headquarters of Cyrela Brazil Realty S.A. Empreendimentos e Participações ( Company ), located in the city and state of São Paulo, at Rua Professor Manoelito de Ornellas, 303, 7th floor, suite 71. CALL: Call was waived in view of attendance of all members of the Board of Directors, pursuant to Section 30, first paragraph, of the Company s Bylaws. ATTENDANCE: All the members of the Board of Directors attended the meeting, namely: Elie Horn, Rogério Jonas Zylbersztajn, George Zausner, Rafael Novellino, Fernando Goldsztein, Ubirajara S. de Camargo Freitas, Antônio Fernando Guedes, Sergio Agapito Lires Rial and José Cesar de Queiroz Tourinho. PRESIDING: Chairman: Mr. Elie Horn; Secretary: Mr. Rafael Novellino. AGENDA: To resolve: (i) on the 5 th (fifth) issue of simple debentures, non-convertible into shares, in up to two tranches, of the unsecured type, in the total amount of up to R$ 550,000,000 (five hundred and fifty million Brazilian Reais), for public distribution under restricted placing efforts, pursuant to CVM Instruction No. 476 of January 16, 2009, as amended ( CVM Instruction 476 ); and (ii) to authorize the Company s Executive Board to take all the necessary actions required to make the foregoing resolution official. RESOLUTIONS: Upon due review and discussion of the agenda, the Board members unanimously: (I) approved, pursuant to the provisions of Article 59, paragraph 1 of Law No. 6,404 of December 15, 1976, as amended ( Brazilian Corporate Law ), the 5 th (fifth) issue of simple debentures, nonconvertible into shares, in up to two tranches ( Tranches ), of the unsecured type, in the total amount

2 of up to R$ 550,000,000 (five hundred and fifty million Brazilian Reais) ( Issue and Debentures respectively), for public distribution under limited placing efforts, pursuant to CVM Instruction 476 ( Restricted Offer ), subject to the terms and conditions as follows: (a) Total Amount and Date of Issue: The total amount of the Issue shall be up to R$ 550,000,000 (five hundred fifty million Brazilian Reais) as at July 3, 2011 ( Date of Issue ), the actual amount of which will be contingent upon the resulting assessment of investor demand for Debentures, as conducted by the Coordinators hired by the Company in connection with the Issue ( Bookbuilding ). (b) Number of Debentures: Up to 55,000 (fifty thousand) Debentures will be issued. (c) Unit Par Value: Each Debenture will have a par value of R$ 10,000 (ten thousand Brazilian Reais) as of the Date of Issue ( Unit Par Value ), subject to the provisions of section 4(ii) of CVM Instruction No (d) Number of Tranches: The Issue will comprise up to two (2) Tranches, provided that a Tranche may not be issued depending on the outcome of the Bookbuilding process, in which case the total number of Debentures will be issued in one single Tranche. (e) Form, Type and Convertibility: The Debentures will be issued as all registered and bookentry, without the issue of any certificates whatsoever. The Debentures will not be convertible into Company shares. (f) Security: The Debentures will be issued as unsecured debentures. (g) Guarantee: The Debentures will have no guarantee whatsoever. (h) Maturity and Expiration Date: Debentures of the first Tranche ( First-Tranche Debentures ) will expire in 4 (four) years as of the Date of Issue, maturing on June 15, 2015 ( First-Tranche Maturity Date ), whereas Debentures of the second Tranche ( Second-Tranche Debentures ) will expire in five (5) years as of the Date of Issue, maturing on July 3, 2016 ( Second-Tranche Maturity Date, and collectively with the First-Tranche Maturity Date, (the Maturity Date ). (i) Risk Rating: The Company will hire one or more rating agencies to provide the Debentures risk rating. (j) Distribution Plan: The Debentures hereunder are being issued for the purpose of public distribution under limited placing efforts, solely destined to qualified investors ( Qualified Investors ), as the same are defined in the deed of issue for the Debentures ( Deed of Issue ), pursuant to the provisions of CVM Instruction No (k) Placement Terms: The Debentures will be distributed to the public under limited placing efforts, under a firm guarantee regime for the placement of the total amount thereof, through financial institutions members of the security distribution industry responsible for the placement efforts in connection with the Debentures ( Coordinators ). 2

3 (l) Placement and Trading: The Debentures will be registered for distribution in the primary market and for trading in the secondary market through (i) the Security Distribution Module ( SDT ) and the National Debentures Module ( SND ), respectively, both managed and operated by CETIP S.A. - OTC Clearing House (Balcão Organizado de Ativos e Derivativos) ( CETIP ), with the relevant underwriting, settlement transactions, and Debentures held electronically in escrow, by CETIP; and (ii) the Asset Distribution System ( DDA ) and the BOVESPAFIX (the asset trading platform, herein referred to as BOVESPAFIX ), respectively, both managed and operated by BM&FBOVESPA S.A. Bolsa de Valores, Mercadorias e Futuros ( BM&FBOVESPA ), which will also be responsible for escrow, settlement of the Restricted Offer and trading of the Debentures. Pursuant to section 13 of CVM Instruction 476, the trading of any Debentures will take place only among Qualified Investors, following 90 (ninety) days from underwriting or acquisition by any such investor, subject to the other applicable legal provisions. (m) Subscription Price and Payment Method: The Debentures shall be subscribed at Unit Par Value plus Remuneration (as defined below), calculated pro rata temporis from the Issue Date to the actual date of subscription and the corresponding payment. The Debentures shall be paid for in cash, in Brazilian currency and upon subscription, in accordance with terms and conditions contained in the Deed of Issue. (n) Remuneration: As of the Date of Issue, the Debentures shall pay an interest rate corresponding to the accumulated variation of 100% (one hundred and fifteen percent) of the average daily rate of the Interbank Deposit rate ( ID rate ) for one day, "over extra group", calculated and disclosed by CETIP in its daily information bulletin, available on expressed as a percentage and calculated on a daily basis, based on 252 (two hundred and fifty-two) business days, plus a spread or surcharge to be exponentially determined in the Bookbuilding process, subject to the following applicable spread caps: (i) 1.60% (one point sixty percent) per 252 (two hundred and fifty-two) working days for First-Tranche Debentures ( First-Tranche Debenture Remuneration ), and (ii) 1.70% (one point seventy percent) per 252 (two hundred and fifty-two) working days for Second-Tranche Debentures ( Second- Tranche Debenture Remuneration, and collectively with the First-Tranche Debenture Remuneration, the Remuneration ). The Remuneration will be determined exponentially and compounding on a pro rata temporis basis per working days elapsed on the outstanding Unit Par Value of each Debenture from the Date of Issue, or on the closing date of the last compounding period as set forth in the Deed of Issue, as the case may be, until the date of the actual payment. The amount of the Remuneration will be payable biannually for both Series always on the January 3 and July 3, pursuant to the provisions of the Deed of Issue. 3

4 (o) Amortization: The Unit Par Value of each Debenture shall be amortized as follows: (i) the amount of the Unit Par Value for each First-Tranche Debenture will be amortized in three semiannual installments as of the 36 th month, the first two of which in the amount of R$ 3, (three thousand three hundred thirty-three Reais and thirty-three cents), or % (thirty-three point three ad infinitum percent) of the Unit Par value, with the first installment falling due on July 3, 2014, the second on January 3, 2015, and the third (which will be equal to the outstanding balance of the Unit Par Value for each First-Tranche Debenture), on the First-Tranche Maturity Date; and (ii) the amount of the Unit Par Value of each Second-Tranche Debenture will be repaid in five semiannual installments in the amount of R$ 2,000 (two thousand Brazilian Reais) each, or 20% (twenty percent) of the Unit Par Value, payable as of the 36th month with the first installment due on July 3, 2014, and the last installment due on the Second-Tranche Maturity Date. (p) Early Expiration: The following events shall be deemed grounds for early expiration of the Debentures and immediate payment by the Company, in accordance with the provisions in the Issue Deed, of the unamortized Unit Par Value of the Debentures, plus the Remuneration owed up to the actual date of payment, calculated pro rata temporis, and any other charges, under the terms of the Issue Deed, regardless of whether there has been a legal or non-legal notification: (A) failure by the Company to honor an obligation to pay any sum in connection with the Debentures in a timely and due manner, if such failure is not remedied within one (1) Working Day from the due date thereof; (B) the Company s or any of its subsidiaries failure to settle any non-pecuniary obligation connected to the Debentures established in the Issue Deed and/or by current legislation, not resolved within 30 (thirty) days from the communication of said failure: (i) by the Company to the Fiduciary Agent, or (ii) by the Fiduciary Agent or any third party to the Company, whichever occurs first, considering that this deadline does not apply to the obligations for which a specific deadline was stipulated; (C) (i) a decree of bankruptcy is entered against the Company; (ii) the Company has moved or applied for bankruptcy; (iii) a motion or application in bankruptcy has been made by a third party against the Company and not countered in due time; (iv) the Company has moved or applied for judicial or extrajudicial debt restructuring, regardless of whether any such application or motion is granted or not; or (v) the Company is liquidated, dissolved, or wound up; (D) any statements or guarantees provided by the Company regarding the Restricted Offer are proven to be incorrect or misleading in any material respect; (E) distribution of any dividends, payment of interest on equity, or payment of any other amount to the Company s shareholders, in case the latter is in arrears or has defaulted on any of its monetary or non-monetary obligations, subject to the remediation periods described in the foregoing items (A) and (B), except, however, for the payment of the minimum statutory dividend set forth in article 220 of the Brazilian Corporate Law; (F) failure to repurchase any Debenture in accordance with the applicable terms and 4

5 conditions of the Deed of Issue; (G) the Company will reduce its capital stock for a purpose other than absorbing losses, following settlement of the Issue, without the prior consent of the holders of any Debenture; (H) subject to any cure periods set forth in the applicable agreements or instruments, or the early expiration of any financial obligation that is binding upon the Company or any of its subsidiaries, any default incurred in a domestic or foreign market in excess of one point five percent (1.5%), severally or in the aggregate, of the Company s shareholders equity as disclosed in the latest quarterly financial statement published; (I) if any of the Company s financial obligations under the Deed of Issue are no longer in the same level of seniority, at least, as any other unsecured obligation thereof, except for any liability or claim enjoying precedence or privileged seniority by operation of law; (J) any bona-fide protest is placed on any bond or debt of the Company that severally or in the aggregate exceeds 1.5% (one point five) of the Company s shareholders equity, as disclosed in the latest quarterly financial statement published, for which the Company is actually liable and that is not honored, declared unjust or unenforceable, or for which sufficient proof of payment has been tendered, within 10 (ten) working days from the date on which the Company becomes aware of any such event; or if the Company is sued for collection and fails to (i) post sufficient bond to stay suit; (ii) settle the relevant debt within the timeframe designated by a court of competent jurisdiction; or (iii) has an order of seizure entered against any asset or property thereof; additionally, if the Company fails to honor any amount payable in connection with any financial transaction that severally or in the aggregate is more than or equal to the amount herein stated; provided, however, that the foregoing will not apply in the event any protest is placed or claimed in bad faith by any third party, such bad faith duly evidenced by the Company within the foregoing period of time; (K) the Company fails to perform or comply with any court ruling or judgment entered against it that is final and unappealable, in an amount that severally or in the aggregate is equal to or more than 1.5% (one point five percent) of the Company s shareholders equity as disclosed in the latest quarterly financial statement published, or the equivalent amount in any other currency, within 10 (ten) calendar days from the relevant due date; (L) non-renewal, cancellation, revoking or suspension of any authorizations and licenses, including those of an environmental nature, required for the regular activities of the Company and/or any of its affiliates or subsidiaries unless the Company proves, within 30 (thirty) days from the date of the aforementioned non-renewal, cancellation, revoking or suspension, the existence of a judicial act authorizing the regular continuity of the Company's activities until the said license or authorization is renewed or obtained; (M) the Company will engage in any spin-off, amalgamation or merger transaction or otherwise engage in any corporate restructuring that may lead to change of the controlling interest in the Company and/or any of its subsidiaries, except to the extent prior consent is granted in respect of any such transaction or restructuring by 2/3 (two thirds) of holders of 5

6 outstanding First-Tranche Debentures, and of 2/3 (two thirds) of holders of outstanding Second- Tranche Debentures convened at a meeting specifically called for the purpose of granting such consent, or where said debenture holders are afforded the right to call for debenture redemption, if they so whish, pursuant to article 231 of the Brazilian Corporate Law, in which case the relevant approval by a meeting of debenture holders will be waived pursuant to the foregoing statutory provision; (N) the Company will sell, assign, or have any substantial portion of its assets expropriated, including any securities or units representing an equity interest in any subsidiary thereof, provided any such assignment of assets must result in a reduction of the Company s risk rating by 2 (two) or more levels from its prevailing risk standing, on a domestic scale, at any time prior to any such asset transfer or assignment; (O) the Company changes its corporate nature to that of a limited liability company, pursuant to articles 220 through 222 of the Brazilian Corporate Law; (P) the Company assigns or otherwise transfers, or makes a promise to assign to any third party, any of its obligations or liabilities under the Deed of Issue, without the prior consent of the Debenture holders convened at a general meeting called specifically to address and resolve on such assignment; (Q) the Company changes or amends its corporate purpose in such way that its current business is significantly changed or varied from, or so as to include new businesses that may have precedence, priority, or result in a significant and material variation from the activities and businesses currently carried out by the Company; and (R) the Company fails to achieve or maintain any of the financial ratios described as follows, each one to be confirmed on a quarterly basis by the Escrow Agent based on the consolidated quarterly financial statements disclosed by the Company ( Financial Ratios ): (i) the ratio of (a) the sum of Net Debt and Real Estate Payable to (b) Shareholders Equity must at all times be equal to or less than zero point eighty (0.80); (ii) the ratio of (a) the sum of Total Accounts Receivable and Real Estate Available for Sale to (b) the sum of Net Debt, Real Estate Payable, and Unearned Costs and Expenses must at all times be equal to or greater than one point five (1.5) or less than zero (0); and (iii) the ratio of (a) EBIT to (b) Net Financial Expenses must at all times be equal to or greater than one point five (1.5) or less than zero (0), provided that in any case EBIT must be positive at all times; where: Net Debt means the sum of the Company s gross debt registered in the Company s consolidated balance sheet, less the amount of its cash and cash equivalents (cash plus financial investments), less the SFH Debt and FGTS Debt; Real Estate Payable means the sum of all accounts payable in connection with the purchase of real property and the relevant provision for estimated costs to be incurred in the Company s consolidated balance sheet; Costs and Expenses to be Recognized means certain costs and expenses discussed in the notes to the Company s consolidated financial statements; Net Financial Expenses means the difference between financial expenses and financial income registered over the previous 12-month period, as posted to the Company s consolidated statement 6

7 of income; EBIT means gross profit less selling, general and administrative expenses, plus other net operating income registered over the previous 12-month period, as posted to the Company s consolidated statement of income; SFH Debt means the sum of all loan agreements entered into by the Company on consolidated terms: (i) financed through the Housing Financing System (including loan agreements of any of its subsidiaries considered proportionate to the Company s interest in the equity of each such subsidiary); and (ii) as part of an Entrepreneur Plan ; FGTS Debt means any funds or proceeds obtained from the FGTS through or in connection with the issue of any instruments, in accordance with Caixa Econômica Federal s Memorandum No. 465 dated April 1, 2009 (or any other guideline that may replace the same from time to time), in the Company s consolidated balance sheet; Shareholders Equity means the consolidated shareholders equity of the Company, less the balance of the revaluation reserve, if any; Total Accounts Receivable means the sum of any of the Company s accounts receivable in the short or long term, whether or not posted to its financial statements as indicated in the notes to the Company s consolidated financial statements in accordance with the accounting standard set forth in Resolution No. 963/03 of the Federal Accountancy Council; Real Estate Available for Sale means the balance of the real estate available for sale account as reported in the Company s consolidated balance sheet. (q) Early Redemption Option: The Company may, at its sole discretion and from time to time, upon a resolution carried by its Board of Directors, extend an option for the early redemption of Debentures, or the Debentures in either Tranche, to all debenture holders or the holders of Debentures in a particular Tranche, such offer to be extended on a arm s-length basis and without distinction to all debenture holders subject to the terms and conditions set forth in the Deed of Issue. (r) Early Redemption: The Company may, at its sole discretion and at any time commencing July 3, 2013, call for early redemption of all or a portion of the outstanding Debentures in each Tranche. The Debentures will be redeemed against payment of the outstanding balance of the Unit Par Value plus the Remuneration attached to the relevant Tranche that is payable and outstanding as of the date of the actual early redemption, plus an early redemption premium to be determined as follows: Premium = [d/d * p] x (VNe + J), where: for the First Tranche, p = 0.75% (zero point seventy-five percent) and for the Second Tranche, p= 0.95% (zero point ninety-five percent); d = number of days running from the date any amount in connection with an early redemption of Debentures in the relevant Tranche is paid to the relevant holder(s) and the Maturity Date for that particular Tranche; D = number of days running from July 3, 2013 and the Maturity Date for that particular Tranche; Premium = amount of the premium payable for the early redemption of each outstanding 7

8 Debenture; VNe = outstanding Unit Par value for each Debenture of the corresponding Tranche, due to the Early Redemption on the date of the actual payment of the Early Redemption to the Debenture Holders, informed/calculated to the sixth (6th) decimal place and without any rounding; and J = amount of the interest accrued of the corresponding Tranche, due to the Early Redemption on the date of the actual payment of the Early Redemption to the Debenture Holders, calculated to the sixth (6th) decimal place without any rounding, subject to the terms and conditions set forth in the Deed of Issue as negotiated by the Company s Executive Board. (s) Optional Acquisition: The Company may purchase its own debentures at any time, subject to the provisions of paragraph 2, article 55 of the Brazilian Corporate Law and the Deed of Issue, and contingent upon compliance with any applicable rules released by CVM. Where applicable, such any purchasing transaction must be stated and disclosed on the management report and the Company s financial statements. Any Debentures so purchased by the Company may be cancelled, remain in treasury, or be once again offered to the public, subject to the limitations imposed by CVM Instruction 476. (t) Use of Proceeds: All proceeds obtained by the Company with the Issue of the Debentures will be used as working capital and for the acquisition of land ( Landbank ). (u) Fiduciary Agent: The fiduciary agent hired to act as representative and agent for the debenture holders will be GDC Partners Serviços Fiduciários DTVM Ltda. ( Fiduciary Agent ). (v) Renegotiation: The Debentures hereunder are not subject to any renegotiation. (x) Place of Payment: Any payments due in connection with the Debentures will be made by the Company according to any procedures or guidelines as may be in place at CETIP or BM&FBOVESPA, as applicable. Any payments due in connection with Debentures not deposited with CETIP or BM&FBOVESPA will be made by such institution(s) as is holding the Debentures in deposit. (II) The Company s Executive Board is hereby authorized to carry out all actions necessary for the implementation of the Issue and/or the Reasonable-Efforts Offer, including without limitation (a) engaging one or more financial institutions authorized to operate in the capital market to act as the Coordinators in connection with the restricted efforts placing and offer the Debentures; (b) engaging any other professional service providers needed for the Issue, such as the mandatory bank, registrars, Fiduciary Agent, and legal counsel among others; (c) negotiating the final terms and conditions of Restricted Offer documents, including (i) the Company s obligations, events of default and the terms and conditions applying to early expiration of the Debentures; and (ii) designation of Debentures to each Tranche, as well as of the Remuneration attached to each Tranche, in accordance with the outcome of the Bookbuilding process, subject to the maximum, features, and 8

9 other terms and conditions applicable to the Debentures as approved at this meeting of the Board of Directors; and (d) executing all instruments and carrying out all the acts needed for the Issue and the Restricted Offer, including, but not limited to, the Issue Deed, placement agreement, mandatory bank agreement and all other Restricted Offer documents and amendments thereto. Any and all other actions performed by the Executive Board in connection with any resolution hereunder prior to the date of this meeting are hereby and explicitly confirmed and ratified. CLOSURE AND DRAFTING OF MINUTES: There being no further business to discuss, the Chairman adjourned the meeting and caused this minutes to be drafted, which, once read and approved, was duly signed by all directors in attendance. São Paulo, May 12, This is a true and faithful copy of the original minutes entered in the appropriate minute book. Secretary Rafael Novellino Erro! Nome de propriedade do documento desconhecido. 9