Contract
EXHIBIT
2.7
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LOAN
AGREEMENT BY EXTENSION OF REVOLVING CREDIT LIMIT NO. 08.2.0790.1, MADE BY
AND BETWEEN BNDES (NATIONAL BANK FOR ECONOMIC AND SOCIAL DEVELOPMENT), XXX
CELULAR S/A AND XXX XXXXXXXX S/A, WITH THIRD PARTY INTERVENTION, AS
FOLLOWS:
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BANCO NACIONAL DE DESENVOLVIMENTO
ECONÔMICO E SOCIAL (BNDES), hereby simply
referred to as BNDES, a public federal company, headquartered in Brasilia,
Federal District, and with services in this city, at Avenida República do Chile
No. 100, corporate taxpayer register under CNPJ No. 33.657.248/0001-89, by its
undersigned representatives;
XXX CELULAR S/A, hereinafter
referred to as XXX CELULAR, a limited liability company, headquartered in São
Paulo, at Xxxxxxx Xxxxxxxx Xxxxxxx Xx. 0.000, XXX 00000-000, XXXX No.
04.206.050/0001-80, by its undersigned representatives; and
XXX XXXXXXXX S/A, hereinafter
referred to as XXX XXXXXXXX, a limited liability company, headquartered in
Jabotão dos Guararapes, State of Pernambuco, at Xxxxxxx Xxxxxx Xxxxx xx Xxxxx,
Xx. 0000, CEP 54410-240, CNPJ/MF No. 01.009.686/0001-44, by its undersigned
representatives;
also, as
INTERVENING PARTY
XXX PARTICIPAÇÕES S/A, a
corporation headquartered in Rio de Janeiro, State of Rio de Janeiro, at Avenida
das Américas Xx. 0000, xxxxx 0, 0xx xxxxx,
XXX 00000-000, XXXX No. 02.558.115/0001-21, by its undersigned
representatives,
have
mutually agreed to the clauses below:
CLAUSE 1
NATURE AND VALUE OF THE
CONTRACT
BNDES, through this Contract, extends
to the BENEFICIARIES, legal entities who integrate the same Economic Group, by
this Contract, a revolving credit limit in the value of up to R$
1,510,000,000.00 (one billion, five hundred and ten million reais), to be
provided with the funds mentioned, in compliance with the provision in §3 of
this Clause:
I –
ordinary of BNDES, in the scope of Resolution No. 1321/06, of July 13, 2006, by
the Management of BNDES; and/or
II –
ordinary of BNDES, which are comprised, among other sources, by funds of Fundo
de Amparo ao Trabalhador - FAT (Worker's Support Fund), by the resources of FAT
-
Special
Deposits and of the Participation Fund PIS/PASEP, in compliance, with respect to
its allocation, the legislation applicable to each of said sources.
§1
The credit will be divided into
subcredits, according to its specific destination and respective BENEFICIARY of
the funds resulting from it, in compliance with the provisions of Clause 2,
which will be referred to as letters of the alphabet followed by the cardinal
numeral contemplated in the Credit Limit Use Document, which Clause 12 refers
to, use of the extended credit limit being prohibited to BENEFICIARIES or to the
Economic Group to which it belongs, if applicable, in values lower than R$
1,000,00.00 (one million reais).
§2
XXX PARTICIPAÇÕES S/A will participate
in the execution of each Credit Limit Use Document contemplated in Clause 12,
together with BENEFICIARY of the respective subcredits, as responsible for
determining the distribution of the credit value extended herein among
BENEFICIARIES, which grant, hereby, irrevocably and irreversibly, the powers
necessary for such.
§3
The sources of funds of the subcredits
contemplated in the previous § will be defined among those mentioned in items I
and II of this Clause, at the time of approval of the corresponding specific
destination, according to the Operating Policies of BNDES in force.
§4
The incidence of interest on the
subcredits contemplated in §1 of this Clause will be determined according to the
sources of the funds contemplated in items I and II of this Clause, according to
the provisions of Clauses 4 and 5.
§5
The credit installments committed
through the execution of the Credit Limit Use Document contemplated in Clause 12
will be restated as established herein, as contemplated in item V of this
Clause.
§6
The available balance of the credit
will be reduced by the values used and automatically restored by the values of
the amortizations of principal carried out.
CLAUSE 2
PURPOSE OF THE
CONTRACT
2
The credit may be intended for the
making, by the BENEFICIARIES, of the following investments:
I –
implementation, expansion and modernization of fixed assets;
II –
acquisition of new machinery and equipment, including industrial sets and
systems, produced in Brazil and accredited by BNDES, which present
nationalization indices equal or superior to 60% (sixty percent) or which comply
with the Basic Productive Process;
III –
engineering studies and projects related to the implementation and expansion of
fixed assets;
IV –
implementation of projects of Quality and Productivity; Research and
Development; Technical and Management Qualification; Technological Update; and
Information Technology;
V –
social investment projects and programs; and
VI –
environmental investments.
§1
Regardless of the adequacy of the
investments to be made to the provisions in the heading of this Clause, the use
of the credit limit for the execution of projects, which may, at the sole
discretion of BNDES, cause a significant impact on the economic and financial
situation of the respective BENEFICIARY or Economic Group to which it belongs,
or in its long-term strategies, decharacterizing them as current
projects.
§2
The specific destination of the credit
will be established in the Credit Limit Use Document contemplated in Clause 12,
in compliance with the BNDES Operational Policies in force.
CLAUSE 3
AVAILABILITY OF CREDIT
LIMIT
The subcredits provided with the
resources mentioned in item I of Clause 1 will be placed at the disposal of each
BENEFICIARY in a single installment on the 15th day of
the month of use, and the subcredits provided with the resources mentioned in
item II of Clause 1, in installments, after compliance with the suspensive
conditions of use mentioned in Clause 17 and those contemplated in the Credit
Use Document, in function of the needs for the performance of the specific
destinations contemplated in item II of Clause 12, in compliance with the
financial schedule of BNDES, which is subordinated to the definition of funds
for its application, by the National Monetary Council.
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§1
The funds of this transaction will be
placed at the disposal of each BENEFICIARY, by credit into a current account
opened in its name at BNDES, not subject to operation, in which will be made,
also, at the time of release, the debits determined by law and those
contractually authorized by each BENEFICIARY, whose total remaining balance of
the funds shall be immediately transferred to the current account to be
indicated in the Credit Limit Use Document contemplated in Clause
12.
§2
BNDES may suspend, automatically, the
use of the funds of this Contract, in the event of BENEFICIARIES, during the
term of this Contract, failing to comply with the requirements established by
BNDES, in its Operational Policies, for the use of the product Credit
Limit.
CLAUSE 4
INTEREST ACCRUING ON THE
SUBCREDITS PROVIDED WITH THE FUNDS
MENTIONED IN ITEM I OF
CLAUSE 1
On the principal of the debt of each
BENEFICIARY, resulting from the subcredits provided with the funds mentioned in
item I of Clause 1, a percentage of interest shall accrue (as remuneration), to
be established in the terms of §1 of this Clause, above the reference rate
disclosed by BNDES, in force on the date of use of the subcredits, which will be
equivalent to the average cost representative of the funding without restriction
to onlending in specific conditions as well as derivative instruments of BNDES
and of BNDES Participações S.A. - BNDESPAR, indexed by the National Ample
Consumer Price Index - IPCA, including all the taxes, contributions, commissions
and expenses directly accruing on these transactions, in the civil quarter
immediately prior to the month of calculation of said interest rate, calculated
on the restated outstanding balance in the terms of Clause 6.
§1
The percentage contemplated in the
heading of this Clause will be defined for each Subcredit, to be constituted in
the terms of §1 of Clause 1, at the time of approval of the corresponding
specific destination, according to the Operational Policies of BNDES, in force,
and the risk rating of the Economic Group to which the BENEFICIARIES belong,
performed according to the criteria of BNDES.
§2
The interest will be calculated on a
daily basis by the system of compound interest, due annually, during the
amortization period, together with the installments of the principal, and upon
maturity or liquidation of the debt, in compliance with the provisions of Clause
24.
§3
4
The reference rate contemplated in the
heading of this Clause will be published by BNDES in the Union Gazette (Section
3) on the 25th
(twenty-fifth) of the months of January, April, July and October of each year or
on the first subsequent edition to that day, if said official publication is not
published on that date, and will be available on the official page of BNDES on
the Internet (xxx.xxxxx.xxx.xx)
on the same dates mentioned above.
§4
During the period in which the
liabilities of BNDES and BNDESPAR, contemplated in the heading of this Clause,
do not exist, the internal rate of return of the National Treasury Notes Series
B (NTN-B) will be used, with maturity date of 10 (ten) years.
§5
If the instruments contemplated in §4
fail to be representative of the internal federal security debt indexed to the
IPCA, the internal rate of return of the instrument will be used, which best
reflects, at the discretion of BNDES, the internal competitive federal security
debt indexed to the IPCA with maturity period of 10 (ten) years.
§6
The internal rate of return
contemplated in §§ 4 and 5 will be calculated, using the average of the rates
disclosed by ANDIMA (National Association of Financial Market Institutions) or,
in its absence, by another source of information chosen by BNDES, with the
objective of obtaining reference prices for the secondary market of financial
instruments, contemplated in §4, in the 40 (forty) business days, counted
retroactively at each tax basis date, the latter included, applying simple
interpolation for the period of 10 (ten) years, if there are no financial
instruments with such maturity date.
CLAUSE 5
INTEREST ACCRUING ON THE
SUBCREDITS PROVIDED WITH THE FUNDS MENTIONED IN ITEM II OF CLAUSE
1
On the principal of the debt of each
BENEFICIARY, resulting from the subcredits provided with the funds mentioned in
item II of Clause 1, a percentage of interest shall accrue (as remuneration), to
be established in the terms of §1 of this Clause, above the Long-Term Interest
Rate – TJLP, published by the Central Bank of Brazil, according to the following
scheme:
I – When the TJLP is higher than
6% (six percent) per year:
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a)
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The
amount corresponding to the TJLP portion in excess of 6% (six percent) per
year will be capitalized on the 15th
(fifteenth) day of each month of effectiveness of this Contract, and, upon
its maturity or liquidation, in compliance with the
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provision in
Clause 24, and verified by incidence of the following capitalization term on the
balance due, considering all the financial events occurred in the
period:
TC = [1(1 + TJLP)/1.06] n/360 -1 (term of capitalization
equal to, open square brackets, ratio between TJLP, plus the unit, and an
integer and six hundredths, close square brackets, to the power corresponding to
the ratio between “n” and three hundred and sixty, deducting such result from
the unit), where:
TC –
capitalization term;
TJLP –
Long Term Interest Rate, disclosed by the Central Bank of Brazil;
and
n- number
of days existing between the date of the financial event and the date of
capitalization, maturity or liquidation of the obligation, considering as a
financial event all and any fact of a financial nature from which results, or
may result, an alteration in the balance due of each BENEFICIARY, resulting from
this Contract.
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b)
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The
percentage above the TJLP (remuneration) mentioned in the heading of this
Clause, plus the non-capitalized portion of the TJLP of 6% (six percent)
per annum, shall accrue on the balance due, on the due dates of the
interest mentioned in §3 of on the maturity or liquidation date of this
Contract, in compliance with the provisions in section "a" and
considering, for daily calculation of interest, the number of days elapsed
between the date of each financial event and the due dates cited
above.
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II –
When the TJLP is equal
to or lower than 6% (six percent) per year:
The
percentage above the TJLP (remuneration), mentioned in the heading of this
Clause, plus the TJLP, shall accrue on the outstanding balance, on the due dates
of the interest mentioned in §3 or on the due or liquidation date of this
Contract, considering, for daily calculation of interest, the number of days
elapsed between the date of each financial event and the due dates cited
above.
§1
The percentage mentioned in the heading
of this Clause will be defined by each Subcredit, to be constituted pursuant to
the terms of §1 of Clause 1, at the time of approval of the corresponding
specific destination, according to the Operational Policies of BNDES, in force,
and the risk rating of the Economic Group to which BENEFICIARIES belong,
performed according to the criteria of BNDES.
§2
The amount mentioned in the terms of
item I, section “a”, which will be capitalized, incorporated into the debt
principal, will be due in terms of item II of Clause 9.
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§3
The amount calculated in the terms of
item I, section “b”, or of item II, will be due, quarterly, during the grace
period, and, monthly, during the amortization period, together with the
installments of principal, and upon maturity or liquidation of the Contract, in
compliance with the provisions of Clause 24.
§4
In the event of use of the resources
originating from the PIS/PASEP Participation Fund, contemplated under
Complementary Law No. 26, of September 11, 1975, the remuneration commissions
due, according to the legislation relevant to said Fund, shall be considered,
hereby, covered by the interest stipulated in this Clause.
CLAUSE 6
RESTATEMENT OF THE VALUE OF
THE DEBT OF THE SUBCREDITS PROVIDED WITH THE FUNDS MENTIONED IN ITEM I OF CLAUSE
1
The balance due of each BENEFICIARY
from the subcredits provided with the funds mentioned in item I of Clause 1,
including the principal, compensatory interest, other expenses, commissions and
other charges covenanted, shall be restated annually by the variation of the
National Wide Consumer Price Index - IPCA, calculated and disclosed monthly by
the Brazilian Institute of Geography and Statistics - IBGE, and applied by
BNDES, according to the following criteria: calculation in business days of the
IPCA Monetary Unit of BNDES - UMIPCA, expressed in reais, based in the IPCA
variation, and the UMIPCA value on the 15th
(fifteenth) day of each month shall be correspondent to the UMIPCA value on the
15th
(fifteenth) day of the immediately preceding month, restated by the IPCA monthly
disclosed by IBGE in the beginning of the current month, there being an interval
between the 16th (sixteenth) and 14th
(fourteenth) day to be calculated pro rata temporis
exponentially by business days by application of the last IPCA disclosed by IBGE
on a date prior to the 16th
(sixteenth) day of each month.
§1
For purposes of the provisions in the
heading of this Clause, in any month where the 15th
(fifteenth) is not a business day, the first immediately succeeding business day
will be considered.
§2
In the event of the monthly IPCA only
being disclosed by IBGE after the 14th
(fourteenth) of the month, the last UMIPCA used by BNDES will continue to be
adopted, for the purposes contemplated in this Clause, until the date of
disclosure by the IBGE.
§3
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Upon occurrence of the provisions in §2
of this Clause, at the time of disclosure of the month's IPCA, the UMIPCA used
in the period contemplated in said §2 of this Clause will be adjusted to reflect
the inflation disclosed.
§4
The eventual differences verified, by
force of the provisions in the previous §, will be incorporated to the balance
due of each BENEFICIARY, arising out of the respective subcredit, if positive
or, if negative, reduced from this balance due.
§5
The balance due from the subcredits
provided with the resources mentioned in item I of Clause 1 may, at any time,
start to be remunerated, as a whole or in part, by the same legal criteria
adopted for the remuneration of the funds onlent to BNDES,–originating from the
PIS/PASEP Fund and the FAT, in compliance with the provisions in Clause 11,
based on the outstanding balance calculated pursuant to the terms of this
Clause, on the date on which the alteration is effectuated, this portion being
applied (which will start to constitute a separate subcredit) to the same
conditions of the subcredits provided with the funds mentioned in item II of
Clause 1, with the exception of the maturity of the amortization provisions,
which shall remain equal to the provisions in Clause 9, item I. In this event,
BNDES shall inform the alteration, in writing, to the BENEFICIARIES
affected.
CLAUSE 7
NON-DISCLOSURE OR EXTINCTION
OF THE AMPLE CONSUMER PRICE INDEX – IPCA
In the event of non-disclosure of the
IPCA by IBGE for the period of 6 (six) months or of the extinction of the IPCA,
mentioned in Clauses 4 and 6, by the supervention of legal or regulatory rules,
or alteration of the criteria of its application, BNDES shall choose a
substitute index that best preserves the real value of the transaction and
remunerates in the same previous levels. In this case, BNDES will inform the
alteration in writing, to the BENEFICIARIES.
CLAUSE 8
PROCESSING AND COLLECTION OF
THE DEBT
The collection of the principal and
charges will be made by Collection Notice, issued by BNDES, with advance, in
advance, for each BENEFICIARY, to liquidate those obligations on their maturity
dates.
§1
Considering that the debt from the
subcredits provided with the funds mentioned in item I of Clause 1 is subject to
annual restatement, pursuant to the terms of Clause 6, the Collection Notice
contemplated in this Clause will be issued by BNDES with the indication of a
reference value in IPCA Monetary Unit of BNDES – UMIPCA, whose
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value
shall be obtained at the Collection Department of the Financial Area of BNDES –
AF/DECOB.
§2
Failure to receive the Collection
Notice will not release the BENEFICIARIES from the obligation to pay the
provisions of principal and charges on the dates established in this
Contract.
§3
BNDES will leave at the disposal of
BENEFICIARY the information, data and calculations that serve as a basis for
calculation of the values due.
CLAUSE 9
AMORTIZATION
The principal of the debt resulting
from each use of the credit limit extended by this Contract, formalized through
the Document of Use of Credit Limit contemplated in this Clause 12 shall be paid
by BNDES, as follows:
I – in connection with the
subcredits provided with the funds mentioned in item I of Clause 1: in a
period to be established in the Credit Limit Use Document contemplated in Clause
12, in compliance with the provisions in §1 of Clause 12, in annual and successive
installments, each in the value of the principal falling due of the debt of
these subcredits, restated in the terms of Clause 6, divided by the number of
amortization installments not yet due, the first falling due on the 15th
(fifteenth) of the thirteenth
month immediately subsequent to the end of the period of use of these
subcredits, in compliance with the provisions in Clause 24;
II –
in connection with the
subcredits provided with the funds mentioned in item II of Clause 1; in a
period to be established in the Credit Limit Use Document referred to in Clause
12, in compliance with the provisions in §1 of Clause 12, in monthly and
successive installments, each in the value of the principal falling due of the
debt of these subcredits, divided by the number of amortization installments not
yet due, the first installment falling due on the 15th
(fifteenth) day of the month subsequent to the grace period of these subcredits,
contemplated in §1 of this Clause, and in compliance with the provisions of
Clause 24.
§1
The grace period contemplated in item
II of the heading of this Clause will be established in the Credit Limit Use
Document contemplated in Clause 12, in compliance with the provisions in §1 of
Clause 12, counted from 15th
(fifteenth) day subsequent to the date of formalization of said Use
Document.
§2
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Each BENEFICIARY undertakes to
liquidate, with the last provision of amortization of the Subcredits, which it
owes, all the obligations resulting from them.
CLAUSE
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RESTRICTION AND ASSIGNMENT
OF REVENUES
To ensure payment of the obligations
resulting from this Contract, as the principal of the debt, interest,
commissions, conventional penalty, fines and expenses, the revenues earned by
BENEFICIARIES, the revenues earned by BENEFICIARIES are restricted, in favor of
BNDES, by BENEFICIARIES, irrevocably and irreversibly, from the date of
execution of the Credit Limit Use Document, contemplated in Clause 12, and until
the final liquidation of all the obligations assumed therein. The revenues will
be deposited, exclusively in a financial institution chosen by BENEFICIARIES,
with the consent of BNDES, which will operate as the centralizing bank and
administrator of the restricted revenues. In the event of declaration of early
maturity by BNDES or of default on obligations resulting from the Credit Limit
Use Document, contemplated in Clause 12, BENEFICIARIES shall assign the binding
revenues, in favor of BNDES, to the limit necessary for liquidation of the debt
or payment of the value defaulted on.
§1
The guarantee contemplated in the
heading of this Clause will be formalized in the Contract of Binding and
Assignment of Revenues and Other Covenants, to be signed by each of
BENEFICIARIES and BNDES, having, as intervening party, the financial institution
chosen by BENEFICIARIES, with the consent of BNDES, in the capacity of
centralizing bank and administrator of the revenues restricted and assigned. The
Contract of Binding and Assignment of Revenues and Other Covenants mentioned
will be attached to the Credit Limit Use Document contemplated in Clause
12.
§2
The Contract of Binding and Assignment
of Revenues and Other Covenants shall provide that the volume of restriction of
revenues shall be equal or superior to the greater of the following parameters:
(a) 25% of the sum of the balance due of each Credit Limit Use Document
contemplated in Clause 12, and (b) the sum of the amortization installments of
principal falling due on the next six months.
CLAUSE
11
ALTERATION OF THE LEGAL
CRITERIA OF REMUNERATION
OF THE FUNDS FROM THE
PIS/PASEP FUND AND THE FAT
In the event of the legal criteria of
remuneration of the funds onlent to BNDES, originating from the PIS/PASEP
Participation Fund and the FAT being substituted, the remuneration contemplated
in Clause 5 may, at the discretion of BNDES, start to be made, by use of a new
remuneration criteria of said funds, or another, indicated by BNDES, which, in
addition to preserving the real value of the transaction, remunerates
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it in the
same previous levels. In this case, BNDES shall inform the alteration, in
writing, to BENEFICIARIES.
CLAUSE
12
CREDIT LIMIT USE
DOCUMENT
The specific destination and committed
value of the credit limit shall be established by the parties by a Credit Limit
Use Document, which, for all legal purposes and effects, shall start to
integrate this Contract, which shall contain, at least, the following
information:
I –
Parties, duly identified, including BNDES, XXX PARTICIPAÇÕES S/A and
BENEFICIARIES of the extended subcredits;
II –
Specific destination, falling under an item contemplated in the purpose of this
Contract, contemplated in Clause 2;
III –
Value committed in the specific destination;
IV –
Sources of funds to be used in the specific destination;
V – Form
and database of the restatement of the value committed in the specific
destination;
VI –
Interest rate and due dates;
VII – Use
period;
VIII –
Initial and final dates of the grace period and amortization, in compliance with
the total maximum period established in §1 of this Clause;
IX –
Ratification or constitution of guarantees, according to the case;
X –
Special additional obligations;
XI –
Conditions of use of specific destination;
XII –
Compulsoriness of registration of this Credit Limit Use Document with the
competent registration office.
§1
The sum of the grace and amortization
periods, to be established for each Subcredit to be constituted in the terms of
§1 of Clause 1 shall comply with the limit of 120 (one hundred and twenty)
months.
§2
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The formalization of the Credit Limit
Use Document contemplated in Clause 12 is subject to:
I –
presentation, by BENEFICIARY, of the Installation License, officially published,
issued by the competent state body, which integrates the National System of the
Environment (SISNAMA), or, suppletively, by the National Institute of the
Environment and Renewable Resources - IBAMA, in connection with the respective
specific destination, or declaration, by the BENEFICIARY, in the event of
non-requirement of Environmental Licenses;
II –
presentation, by the BENEFICIARY, to BNDES, of other documents required by legal
or regulatory provision, as well as those usually requested in analogous
transactions, deemed necessary by BNDES; and
III –
inexistence of registration in the Employers’ Register that workers have been
kept in slave condition, instituted by Ordinance No. 540, of 10.15.04, by the
Labor and Employment Ministry, to be verified by BNDES, by consultation on the
INTERNET, at the address xxx.xxx.xxx.xx (Resolution No. 1178, of 05.31.2006, by
the BNDES Management).
§3
The Commission by Contractual
Alteration shall not be due when the addendum, formalized by a Credit Limit Use
Document, contemplated in Clause 12 has as one of its objectives the definition
of a specific destination and its corresponding financial
conditions.
CLAUSE
13
SPECIFIC OBLIGATIONS OF
BENEFICIARY
The BENEFICIARIES undertake, regarding
the respective specific destinations that they assume, to:
I –
comply, where applicable, by the final liquidation of the debt resulting from
this Contract, the "LEGAL
PROVISIONS APPLICABLE TO BNDES CONTRACTS", approved by Resolution No.
665, of December 10, 1987, partially altered by Resolution No. 775, of December
16, 1991, by Resolution No. 863, of March 11, 1996, by Resolution No. 878, of
September 04, 1996, by Resolution No. 894, of March 06, 1997, by Resolution No.
927, of April 01, 1998, by Resolution No. 976, of September 24, 2001, and by
Resolution No. 1571/2008, of March 04, 2008, all of the BNDES Management,
published in the Union Gazette (Section I), of December 29, 1987, December 27,
1991, April 08, 1996, September 24, 1996, March 19, 1997, April 15, 1998,
October 31, 2001 and March 25, 2008, respectively, whose copy is hereby
delivered to BENEFICIARIES, who, after becoming aware of the entire content of
the same, declare that they accept it, as an integral and inseparable part of
this Contract, for all legal effects and purposes;
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II –
compromise the credit in the period of 5 (five) years, counting from the date of
execution of this Contract;
III – use
the specific destination value in the period to be established in the Credit
Limit Use Document, contemplated in Clause 12, counting from the date of
execution of this Use Document;
IV – in
the event of, in function of the specific destinations contemplated in item II
of Clause 12, a reduction occurring in the staff of BENEFICIARIES during the
effective date of this Contract, and a training program being offered geared to
work opportunities in the region and/or a reemployment program of workers in
other companies, after they have submitted to BNDES, for appreciation, a
document that specifies and attests the conclusion of the negotiations held with
the competent representation(s) of the workers involved in the dismissal
process;
V –
adopting, during the effective period of the Contract, measures and actions
intended to prevent or correct damages to the environment, occupational safety
and medicine, which may be caused by the specific destinations contemplated in
item II of Clause 12;
VI –
maintaining in a regular situation their obligations with the environmental
bodies, during the effective period of this Contract;
VII –
observing, during the effective period of this Contract, the provisions in the
legislation applicable to handicapped persons;
VIII –
communicating to BNDES, on the date of the event, the name and taxpayer register
CPF/MF number of the person who, performing a remunerated function, or being
among its owners, controllers or directors, has graduated or been invested as
Federal Deputy or Senator;
IX –
presenting, annually, by April 30 of the subsequent year, the financial
statements of the company, based on December 31, audited by an independent audit
company, registered at CVM (Brazilian Securities & Exchange Commission),
until final liquidation of all the obligations assumed in this
Contract.
X –
presenting to BNDES, whenever requested, a physical execution report of its
investment plan, containing information related to the number of locations
attended and network elements, in connection with GSM technology, 3G (third
generation), and others implemented by BENEFICIARIES, during the effective
period of the Contract; and
XI –
during the effective period of the Contract, maintaining their obligations in
regular status, before ANATEL (National Telecommunications Agency), which
failure of compliance may lead to damages to the implementation of the project
and/or significantly affect the quality of the service provided, and/or affect
the payment capacity of BENEFICIARIES.
CLAUSE
14
OBLIGATIONS OF THE
CONTROLLING INTERVENING PARTY
13
The Controlling Intervening Party, XXX
Participações S/A, identified in the preamble of this Contract, assumes hereby
the obligation of:
I –
submitting to the previous consent of BNDES any proposals of matters regarding
the encumbrances, at any title, of any shares held by it, issued by each of
BENEFICIARIES, for sale, acquisition, incorporation, merger, split of assets or
any other act, leading or which may lead to modifications in the current
configuration of any of BENEFICIARIES, or in transfer of the share control of
any one of BENEFICIARIES, or in alteration of its capacity as controlling
shareholder of any of BENEFICIARIES, pursuant to the terms of Article 116 of Law
No. 6.404 of 12.15.1976;
II – not
promote the inclusion of a corporate agreement, bylaws or articles of
incorporation of any of BENEFICIARIES, of a provision leading to:
a)
restrictions to the growth capacity of BENEFICIARY or to its technological
development;
b) access
restrictions by BENEFICIARY to new markets; or
c)
restrictions or loss of payment capacity of the financial obligations of the
transactions with BNDES;
III – not
promote acts or measures that impair or alter the economic-financial balance of
any of BENEFICIARIES;
IV - take
every step necessary to ensure compliance with the purpose of this
transaction;
V –
maintain, from 2009, and during the effectiveness of each Credit Limit Use
Document, contemplated in Clause 12, until its final maturity, the following
financial indices according to the values stipulated below, to be calculated at
every civil semester, in the months of June and December, based on its
consolidated financial statements, with limited review in the first semester and
complete examination at the end of the fiscal year, performed by external
auditors registered at CVM. The external auditors shall issue, for BNDES, a
verification report of the financial indices simultaneously to the publication
of the audit reports, in the maximum period of 3 (three) months after the
closure of each civil semester:
a)
Capitalization Index (PL/AT): equal or superior to 0.35;
b)
EBITDA/Net Financial Expenses: equal or superior to 3.5;
c) Total
Financial Debt/EBITDA: Equal or inferior to 3.00;
d) Net
Short Term Financial Debt/EBITDA: equal or inferior to 0.40 in 2009 and 0.35
from 2010.
§1
14
In the event of noncompliance with any
of the indices contemplated in item V of this Clause, BNDES may, at its sole
discretion, in each calculation period, opt, within 60 (sixty) days after
presentation and docket in the Telecommunications Department of BNDES, of the
calculation report of the financial indicators mentioned in item V of this
Clause, between the early maturity of each Credit Limit Use Document
contemplated in Clause 12 or the freezing of funds corresponding to 03 (three)
times the value of the "Largest Installment", as defined and provided in the
Contract of Binding and Assignment of Revenues and Other Covenants, mentioned in
§1 of Clause 10.
§2
For purposes of calculation of the
indices set forth in item V of this Clause, the following definitions and
criteria shall be added:
I) PL =
Shareholders’ Equity, including Minority Participations;
II) AT =
Total Assets.
III)
EBITDA corresponds to the gross profit, minus commercialization, general and
administrative and other net operating expenses, plus depreciation and
amortization built-into the costs of the services provided, costs of goods sold
and in the operating expenses mentioned above.
IV) Net
Financial Expenses: sum of all the financial expenses, less the sum of all the
financial revenues presented in the Income Statement sent to CVM, except
interest on net current assets or any other form of remuneration of the
shareholders.
V) Total
Financial Debt: corresponds to the sum of the balance of the consolidated
onerous debts of XXX Participações S/A, including: loans and financing; issue of
fixed income capital, promissory notes and debentures, convertible or not, in
the local or international capital market; as well as the sale or assignment or
future receivables, if they are accounted for as obligations; and other
financial transactions of indebtedness of the company, recorded in the current
liabilities and in the long term liabilities;
VI)
Short-term Financial Debt: corresponds to the sum of the balance of the onerous
consolidated debts of XXX Participações S/A, recorded in the current
liabilities, including: loans and financing; issue of fixed income instruments,
promissory notes and debentures, whether convertible or not, in the local or
international capital market; as well as the sale or assignment of future
receivables, if they are recorded in the accounts as obligations; and other
financial transactions of debt of the company;
VII)
Short-term Net Financial Debt: Short-term Financial Debt less Availabilities
(cash and financial investments).
VIII)
Parameters related to the result (EBITDA and Net Financial Expenses), refer to
the values of the last 12 (twelve) months prior to the calculation;
IX) If
the value calculated for the negative index due to negative Net Financial
Expenses, this will not be considered noncompliance with the financial index,
mentioned in section “b” of item V, of the heading of this Clause.
15
§3
If, in the following calculation
period, the noncompliance contemplated in §1 of this Clause is not verified, the
funds retained will be released to this current account of free movement of
BENEFICIARY.
CLAUSE
15
RECIPROCAL POWER OF
ATTORNEY
The
BENEFICIARIES and the INTERVENING PARTY hereby, irrevocably and irreversibly,
constitute each other mutually and reciprocally attorneys-in-fact until final
settlement of the debt assumed herein, with powers to receive summons,
notifications and, moreover, with “ad judicia” powers for the forum in general,
which may be subgranted to a lawyer, all with respect to any legal or
extrajudicial proceedings filed against them by BNDES, as a result of this
Contract, being able to perform all acts necessary to proper and faithful
compliance with this mandate.
CLAUSE
16
AUTHORIZATION
The
BENEFICIARIES authorize BNDES to deduct from the first installment, in
connection with the first use of the Credit Limit for specific destination,
regardless of which of them is favored by the corresponding Credit Limit Use
Document contemplated in Clause 12, the value of R$ 203,978.00 (two hundred and
three thousand, nine hundred and seventy-eight reais) as Study Commission of the
projects mentioned in Clause 2 of this Contract.
CLAUSE
17
CONDITIONS OF USE OF THE
CREDIT LIMIT
The use
of the credit limit, in addition to compliance, where applicable, with the
conditions contemplated in Articles 5 and 6 of the “PROVISIONS APPLICABLE TO BNDES
CONTRACTS” mentioned above, in those established in the “FOLLOW-UP RULES AND
INSTRUCTIONS” and those contemplated in the Credit Limit Use Document,
contemplated in Clause 12, is subject to compliance with the
following:
I – For use of the first
installment of the credit limit: opening, by BENEFICIARIES, of current
accounts at BNDES.
II –
For use of each
installment of the credit limit:
a)
formalization and registration, at the competent registry office(s), of the
Credit Limit Use Document contemplated in Clause 12;
16
b)
inexistence of fact of an economic-financial nature, which, at the discretion of
BNDES, may compromise the performance of the undertaking financed herein, so as
to alter it or prevent its performance, pursuant to the terms contemplated in
the project approved by BNDES;
c)
presentation, by BENEFICIARIES, of Negative Debt Certificate – CND, issued by
the Federal Revenue Service of Brazil on the INTERNET, to be extracted by
BENEFICIARY at the addresses xxx.xxxxxxxxxxxxxxxxx.xxx.xx
or xxx.xxxxxxx.xxxxxxx.xxx.xx and verified by BNDES in the same;
and
d)
evidence of regular status before the environmental bodies, or when such
evidence has not been presented and is in force, declaration by BENEFICIARY of
the respective Credit Limit Use Documnent contemplated in Clause 12 on the
continuity of the validity of such document.
III –
For use of the
subcredits provided with the funds mentioned in item I of Clause 1:
evidence to BNDES of use of at least 40% (forty percent) of the sum of
subcredits provided with the funds mentioned in item II of Clause 1, in each
Credit Limit Use Document executed pursuant to the terms of Clause
12.
CLAUSE
18
BAIL
XXX PARTICIPAÇÕES S/A, identified in
the preamble, accepts this Contract, in the capacity of guarantor and principal
payer, waiving expressly the benefits of Articles 366, 827 and 838 of the Civil
Code, and assuming joint liability until final liquidation of this Contract, for
faithful and accurate compliance with all the obligations assumed herein by
BENEFICIARIES.
CLAUSE
19
DEFAULT
In the occurrence of default on the
obligations assumed by the BENEFICIARIES and by the INTERVENING PARTIES, the
provisions in Articles 40 to 47-A of the “PROVISIONS APPLICABLE TO BNDES
CONTRACTS”, contemplated in Clause 13, item I.
SOLE §
Upon calculation of the balance overdue
of the subcredits provided with the funds mentioned in item I of Clause 1, both
the restatement of the value of the debt and the charges will be calculated
pro rata temporis per
business day until the date of effective payment.
CLAUSE
20
FILING OF LEGAL MEASURE
FINE
17
In the event of judicial collection,
resulting from this Contract, BENEFICIARIES shall pay a fine of 10% (ten
percent) on the principal and charges of the respective debts, in addition to
extrajudicial, judicial expenses and lawyers’ fees, due from the date of filing
of the legal measure of collection.
CLAUSE
21
EARLY LIQUIDATION OF
DEBT
In the event of early liquidation of
the debt, the guarantees will be released, the provisions in Article 18, §2 of
the “PROVISIONS APPLICABLE TO BNDES CONTRACT”, mentioned in Clause 13, item I,
applying to the other obligations.
§1
The early, partial or total,
liquidation of the portion of subcredits provided with the funds mentioned in
item I of Clause, when authorized by BNDES, shall be performed jointly with the
calculated values corresponding to the balances due, on the liquidation date, of
the subcredits provided with the resources mentioned in item II of Clause 1, in
compliance with the proportionality among the balances due of these subcredits,
established in the respective Credit Limit Use Document.
§2
At the time of calculation of the
balance due in the early partial or total liquidation of the subcredits provided
with the funds mentioned in item I of Clause 1, both the restatement of the
value of the debt and the charges will be calculated pro rata temporis per useful
day until the date of the effective payment, in compliance with Clauses 4 and 6
of this Contract, where applicable.
CLAUSE
22
EFFECTS OF THE ASSIGNMENT OF
SUBCREDITS PROVIDED WITH THE FUNDS MENTIONED IN ITEM I OF CLAUSE
1
BENEFICIARIES hereby declare,
irrevocably and irreversibly, that they have nothing to oppose to the future
assignment, by BNDES, of the subcredits provided with the funds mentioned in
item I of Clause 1, consenting, herewith, that all the obligations to be
complied with in connection with BNDES, resulting from this Contract, after
assignment of said credits, remain in full force.
SOLE §
BNDES, pursuant to the terms of Article
290 of the Civil Code, shall notify Beneficiaries about the assignment
contemplated in the heading of this Clause.
CLAUSE
23
EARLY
MATURITY
18
BNDES may declare this Contract to have
matured early, with enforceability and immediate suspension of any disbursement
if, in addition to the events contemplated in Articles 39 and 40 of the “PROVISIONS APPLICABLE TO BNDES
CONTRACTS”, contemplated in Clause 13, the following is evidenced by
BNDES:
a)
reduction in the personnel of any of BENEFICIARIES without compliance with the
provisions in item IV of Clause 13;
b) the
existence of a convicting sentence transited in rem judicatum in connection with
the performance of acts, by any of BENEFICIARIES, which lead to violation of the
legislation that fights discrimination of race or gender, child and slave
labor;
c) the
inclusion, in a corporate agreement, bylaws or articles of incorporation of any
of BENEFICIARIES, of its parent companies, of a provision leading to
restrictions or loss of the capacity of payment of the financial obligations
resulting from this transaction;
§1
In the event of application of the
funds granted by this Contract for a purpose other than the one contemplated in
Clause 2, BNDES, without prejudice to the provisions in the heading of this
Clause, shall communicate the fact to the Public Prosecution Service, for the
purposes and effects of Law No. 7.492, of 06.16.86.
§2
This Contract shall also mature early,
with enforceability of the debt and immediate suspension of any disbursement, on
the date of graduation as Federal Deputy or Senator of the person performing a
remunerated function at any of BENEFICIARIES, or if, among its owners,
controllers or directors, there are persons guilty of the prohibitions
contemplated by the Federal Constitution, Article 54, items I and II. No default
charges will accrue, provided that the payment occurs within the period of 5
(five) business days counted from the date of graduation, under penalty of, not
doing so, the charges contemplated for the events or early maturity due to
default accruing.
CLAUSE
24
MATURITY ON
HOLIDAYS
Every maturity of provision of
amortization of principal and charges, which occurs on Saturdays, Sundays or
national holidays, including bank holidays, will be, for all effects and
purposes of this Contract, displaced to the first subsequent business day, the
charges being calculated until this date, and the following regular verification
period and calculation of the charges of the Contract shall also begin on this
date.
SOLE §
19
Except for an express provision
otherwise, the holidays of the location where the headquarters of each of
BENEFICIARIES is located, whose addresses are indicated in this Contract, shall
be considered the holidays, for purposes of the provisions in the heading of
this Clause regarding the installments of principal and charges in connection
with the respective debts.
CLAUSE
25
DECLARATION BY THE
BENEFICIARIES
The BENEFICIARIES declare that the
provisions of this Contract were negotiated in light of and in strict compliance
with the Code of Ethics available on the website xxx.xxxxxxxx.xxx.xx.
The BENEFIFICARY XXX CELULAR S/A has
presented a Debt Clearance Certificate - CND No. 000862008-2120050, issued on
June 24, 2008, by the Federal Revenue Service of Brazil.
The BENEFICIARY XXX XXXXXXXX S/A has
presented a Debt Clearance Certificate – CNF No. 053262008-15001250, issued on
October 31, 2008, by the Federal Revenue Service of Brazil.
(A blank page is inserted after this
one)
The INTERVENING PARTY XXX PARTICIPAÇÕES
S/A presented the Debt Clearance Certificate - CND No. 001482008-17300115,
issued on October 23, 2008, by the Federal Revenue Service of
Brazil.
The pages of this instrument are
initialed by Xxxxxxx Xxxxx Xxxxxx Xxxx dos Xxxxxx, lawyer of BNDES, by
authorization of the legal representatives, which sign it.
IN WITNESS WHEREOF, they sign this
contract in 3 (three) counterparts of equal tenor and form and for a single
purpose, before the undersigned witnesses.
Rio de
Janeiro, November 19, 2008
For
BNDES:
| [signatures] | ||
| Xxxxxxx Xxxxxxxx | Xxxxxx Bittencourt | |
| President | Director | |
| BANCO NACIONAL DE DESENVOLVIMENTO ECONÔMICO E SOCIAL – BNDES | ||
For
Beneficiaries:
[signature]
Mario
Xxxxx Xxxxxxx xx Xxxxxx
President
XXX
CELULAR S/A
20
[signature]
Mario
Xxxxx Xxxxxxx xx Xxxxxx
President
__________________________
XXX
XXXXXXXX S/A
For
Intervening Party:
[signature]
Mario
Xxxxx xx Xxxxxx
President
(All signatures above duly
notarized)
Signature
page of Loan Agreement by Extension of Revolving Credit Facility No.
08.2.0790.1, executed by the National Bank of Economic and Social Development –
BNDES and XXX Celular S/A, with the third party intervention.
Witnesses:
| [signature] | [signature] | |
| Name: Lúcia Benechts | Name: Xxxx Xxxxx Xxxxxx Xxxxxxx Jr. | |
| ID: IFP 0960266-0 | ID: 88105926-0 | |
| CPF: 016678507-50 | CPF: 633.788.287-15 |
(All Witnesses’ signatures duly
notarized)
21
