1
EXHIBIT 4(h)
"ENGLISH TRANSLATION"
FINANCING CONTRACT THROUGH OPENING OF CREDIT LINE NO. 00.2.608.3.1 BETWEEN
BANCO NACIONAL DE DESENVOLVIMENTO ECONOMICO E SOCIAL - BNDES AND TELMA
CELULAR S.A., WITH INTERVENIENCE OF THIRD PARTIES, AS FOLLOWS:
Banco Nacional de Desenvolvimento Economico e Social - BNDES, hereby referred to
just as BNDES, a federal public company with head office in Brasilia, Distrito
Federal, and with services in this city at Xxxxxxx Xxxxxxxxx xx Xxxxx Xx. 000,
registered with CNPJ under no. 33.657.248/0001-89 hereby represented by the
undersigned representatives; and
TELMA CELULAR S.A., hereafter referred to as BENEFICIARY, a joint stock company
with head offices in the City of Sao Luiz do Maranhao, at Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxx 00, Xxxx 00, Xx. Xxxxxx Xxxxx, Xxxxxx Xxxxxxxxxx, registered
with CNPJ under no. 02.340.278/0001-33, hereby represented by the undersigned
representatives, and appearing also, in the capacity of INTERVENIENTS:
(I) TELE NORTE CELULAR PARTICIPACOES S.A., stock company, with head
office in the City of Brasilia, Distrito Federal, at XXX Xxxxxx
00 Xxxxx X, Xxxxx Xxxx, Xxx Xxxxx, registered with CNPJ under
no. 02.558.118/0001-65;
(II) TELPART PARTICIPACOES S.A., stock company, with head office in
the City of Rio de Janeiro, State of Rio de Janeiro, at Xxxxxxx
Xxxxxxxxxx Xxxxxx, 000 - 00(0)xxxxx, Xxxxxx, registered with
CNPJ under no. 02.591.814/0001-73, hereby represented by the
undersigned representatives;
(III) TELEPARA CELULAR S.A. a stock company with head office in the
City of Belem, in the State of Para, at Xxxxxxxx Xxx Xxxxxxx
000, 8(0) andar, Reduto, registered with CNPJ under No.
02.361.554/0001-40, hereby represented by the undersigned
representatives.
(IV) TELEAMAPA CELULAR S.A. a stock company with head office in the
City of Macapa, in the State of Amapa, at Xxxxxxx Xxxxxxx Xxxxxx
Xx. 00, Xxxxxx, registered with CNPJ under No.
02.333.355/0001-28, hereby represented by the undersigned
representatives.
(V) TELAMAZON CELULAR S.A. a stock company with head office in the
City of Manaus, in the State of Amazonas, at Xxxxxxx Xxxxxxxxx
Xxxxxxx Xx. 000, Xxxxxx, registered with CNPJ under No.
02.322.103/0001-01, hereby represented by the undersigned
representatives.
(VI) TELAIMA CELULAR S.A. a stock company with head office in the
City of Boa Vista, in the State of Roraima, at Xxxxxxx Xxxxxxx
Xxx Xxxxxx Xx. 000, Xxxxxx, registered with CNPJ under No.
02.369.651/0001-89, hereby represented by the undersigned
representatives.
hereby agree according to the following provisions:
ARTICLE ONE
CONTRACT NATURE, VALUE AND PURPOSE
BNDES opens through this contract a credit line in favor of the BENEFICIARY
divided in 2 (two) sub-credits in the following amounts:
(I) SUB-CREDIT "A": in the amount of R$ 34,686,900.00 (thirty four
million six hundred and eighty-six thousand nine hundred Reais)
to be provided from BNDES' ordinary resources, which consist,
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among other sources, of funds from the Fundo de Amparo ao
Trabalhador - FAT (Worker's Support Fund), funds from the FAT -
Special Deposits and from the PIS/PASEP Participation Fund,
allocated in accordance with the legislation applicable to each
individual source and in compliance with the provisions of
Article Three, SOLE PARAGRAPH;
(II) SUB-CREDIT "B": in the amount of R$ 14,092,500.00 (fourteen
million ninety-two thousand five hundred Reais) considering the
base-date of November 15th 2000, to be provided from foreign
currency funds borrowed by BNDES and assigned according to
Resolution no. 635/87 of January 13, 1987 issued by BNDES' Board
of Directors, subject to the provisions of Article Two
concerning the value updating of this Sub-credit.
SOLE PARAGRAPH
This credit line is intended for the expansion and modernization of the
"A" Band of the mobile cellular telephone system in the States of Amapa,
Amazonas, Maranhao, Para and Roraima, as well as for the repayment,
partially or totally of the bridging loan granted through Contracts for
Opening of Fixed Credits [Bridge Loan Program - Ponte-DIR-502/99]
executed between the BANCO ALFA DE INVESTIMENTOS S.A. and TELMA CELULAR
S.A, TELEPARA CELULAR S.A., TELAMAZON CELULAR S.A., TELEAMAPA CELULAR
S.A. and TELAIMA CELULAR S.A., on November 8th, 1999, in the total
amount of R$ 36,942,000.00 [thirty six million, nine hundred and forty
two thousand Reais].
ARTICLE TWO
VALUE UPDATING OF SUB-CREDIT "B"
The portion of Sub-credit "B" not drawn will be updated as of the base date of
November 15, 2000 set forth under Article One, item II, up to the drawing date
in accordance with the weighed average of the exchange variations applicable to
the funds borrowed by BNDES in foreign currency without connection to loans
under specific conditions, subject to the provisions of Article Eight below.
ARTICLE THREE
CREDIT AVAILABILITY
The credit will be made available to the BENEFICIARY in parcels upon the
compliance with the utilization-suspending conditions referred to under Article
Seventeen, as a function of the requirements for the implementation of the
financed project, subject to BNDES's financing schedule, which depends on the
resource allocation defined by the National Monetary Council.
SOLE PARAGRAPH
The value of each parcel of Sub-credits "A" and "B" to be made available
to the BENEFICIARY shall be calculated in accordance with the criterion
set forth in the law that created the Long Term Interest Rate (Taxa de
Juros de Longo Prazo - TJLP) for determining the debt balances of
financing contracted by BNDES System until November 30, 1994.
ARTICLE FOUR
INTERESTS DUE ON SUB-CREDITS "A"
The principal of the BENEFICIARY's debt resulting from Sub-credits "A" is
subject to interests at the rate of 3.8% (three point eight percent) per annum
(for the sake of spread) over the Long Term Interest Rate - TJLP published by
Banco Central do Brasil (Brazilian Central Bank), calculated as follows:
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(I) When TJLP is higher than 6% (six percent) per annum:
a) The amount corresponding to the TJLP portion above 6%
(six percent) per annum shall be capitalized on the 15th
(fifteenth) day of each month during the effectiveness
of this Contract and on its expiry or settlement,
subject to the provisions of Article Twenty Four, and
calculated according to the following capitalization
term, taking into consideration all the financial events
occurred in the period:
TC = [(1 + TJLP)/1.06]n-360 - 1 (capitalization term
equals to, open brackets, ratio of TJLP plus the unit to
one and six hundredth, close brackets, raised to the
power corresponding to the ratio of "n" to three hundred
sixty, and deducting one unit from such a result),
where:
TC - capitalization term;
TJLP - Long Term Interest Rate published by Brazilian
Central Bank; and
n - number of days between the financial event date and
the date of capitalization, maturity or settlement of
the obligation, being considered a financial event any
and all facts of financial nature from which the debt
balance under this Contract is or may be changed.
b) The percentage of 3.8% (three point eight percent) per
annum above the TJLP (spread) mentioned in the caption
of this Article plus the non-capitalized portion of the
TJLP of 6% (six percent) per annum shall be calculated
on the debit balance on the interest maturity dates
mentioned in Paragraph Two or on the date of expiry or
settlement of this Contract, subject to the provision of
item "a" and considering, for the purpose of calculating
the daily interest, the number of days between the date
of each financial event and the above-mentioned maturity
dates.
(II) When TJLP is equal to or lower than 6% (six percent) per annum:
The percentage of 3.8% (three point eight percent) per annum
above the TJLP (spread) mentioned in the caption of this Article
plus the TJLP shall be calculated on the debit balance on the
interest maturity dates mentioned in Paragraph Two or on the
date of expiry or settlement of this Contract, being considered,
for the purpose of calculating the daily interest, the number of
days between the date of each financial event and the
above-mentioned maturity dates.
PARAGRAPH ONE
The amount referred to in item I, sub-item "a", to be capitalized and
incorporated into the principal of the debt shall be payable in accordance with
Article Ten, Item I.
PARAGRAPH TWO
The amount calculated in accordance with item I, sub-item "b", of item II shall
be payable on a quarterly basis on the 15th (fifteenth) day of March, June,
September and December of each year in the period from December 15, 2000 through
December 15, 2001, and on monthly basis as of January 15, 2001, together with
the parcels relative to the amortization of the principal, and on the expiry or
settlement of this Contract, subject to the provisions of Article Twenty Three.
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PARAGRAPH THREE
In case of utilization of funds from the PIS/PASEP Participation Fund
contemplated in Supplementary Law no. 26 of September 11, 1975, the remuneration
fees due are considered to be included in the interest rate set forth in this
Article, according the legislation applicable to the above-mentioned Fund.
ARTICLE FIVE
INTERESTS DUE ON SUB-CREDITS "B"
The principal of the BENEFICIARY's debt resulting from Sub-credits "B" is
subject to interest at the rate of 3.8% (three point eight percent) per annum
(for the sake of spread) over the variable rate readjusted on a quarterly basis
on the 16th (sixteenth) day of January, April, July and October on the basis of
the weighed average cost of all fees and expenses incurred by BNDES in borrowing
foreign currency funds without connection with loans under specific conditions
in the civil quarter immediately prior to the month of readjustment of the
above-mentioned interest rate, calculated on the debt balance updated as
provided for under Article Eight.
PARAGRAPH ONE
The interest shall be calculated on a daily basis by the proportional system and
it is payable on the 15th (fifteenth) day of January, April, July and October of
each year in the period from December 15, 2000 through January 15, 2002, and on
monthly basis as of February 15, 2002, inclusive, together with the parcels
relative to the amortization of the principal, and on the expiry or settlement
of this Contract, subject to the provisions of Article Twenty Three.
PARAGRAPH TWO
The interest rate referred to under the caption of this Article will be
published by BNDES in the Gazette (Diario Oficial da Uniao) (Section 3) on the
25th (twenty-fifth) day of January, April, July and October of each year or in
the first edition subsequent to that day in case the above-mentioned official
Gazette is not published on that date.
ARTICLE SIX
INCOME TAX ON CHARGES AND COMMISSIONS REMITTANCE TO FOREIGN CREDITORS
As far the Sub-credit "B" is concerned, besides the principal, the interest and
other charges agreed upon, the BENEFICIARY commits to pay to BNDES, for the sake
of Income Tax reimbursement, a percentage over the interests referred to in
Article Five, corresponding to the weighed average Income Tax rate due on
charges remitted by BNDES to foreign creditors, without connection to loans
under specific conditions, in the civil quarter prior to the month of
readjustment of such percentage, to be calculated, published in the Official
Daily Government Gazette, being such reimbursement payable at the same time as
the interests referred to under Article Five.
SOLE PARAGRAPH
The Income Tax weighed average rate referred to in the caption of this
Article will be published by BNDES in the Official Daily Government
Gazette (Diario Oficial da Uniao) (Section 3) on the 25th (twenty-fifth)
day of January, April, July and October of each year or in the first
edition subsequent to that day in case the above-mentioned official
Gazette is not published on that date.
ARTICLE SEVEN
CREDIT RESERVE COMMISSION
The BENEFICIARY shall pay to BNDES a credit reserve commission of 0.1% (one
tenth percent) due every 30-day (thirty) period or fraction thereof, calculated
on:
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(I) the balance not drawn of each credit parcel, as of the day
subsequent to the credit parcel availability up to the drawing
date, when its payment will be due; and
(II) on the credit not drawn as of the day subsequent to its
availability up to the cancellation date upon request by the
BENEFICIARY or by initiative of BNDES, which payment will be due
on the request date or on the date of BNDES's decision, as the
case may be.
SOLE PARAGRAPH
The incidence of the commission referred to under the above-mentioned
items I and II will occur in case of establishment of a fund
availability scheme.
ARTICLE EIGHT
DEBT VALUE UPDATING UNDER SUB-CREDIT "B"
The BENEFICIARY's debt balance in connection with Sub-credit "B", including the
principal, compensation interests and arrears interests, Income Tax
reimbursement, other expenses, commissions and other charges agreed upon, shall
be updated on a daily basis by the weighed average of the exchange variations
applicable to foreign funds borrowed by BNDES without connection with loans
under specific conditions, as follows:
(I) daily determination of its liabilities payable in foreign
currency without connection with loans under specific conditions
for the purpose of calculating the weighed averages to be
applied to the exchange variations;
(II) daily determination of the weighed average of exchange
variations based on the liabilities position determined as
provided for under item I, taking into account the closing sales
rates of foreign currencies disclosed by the Brazilian Central
Bank in the previous day.
PARAGRAPH ONE
For the purposes of item II, in case there is no official exchange rate in a
given day, it will be considered the exchange rate of the previous day.
PARAGRAPH TWO
The weighed average of exchange rates referred to in this Article will be
published by BNDES in the Official Daily Government Gazette (Diario Oficial da
Uniao) (Section 3) on the 10th (tenth) and 25th (twenty-fifth) day of each month
or in the first edition subsequent to those days in case the above-mentioned
official Gazette is not published on those dates.
ARTICLE NINE
ON THE DEBT COLLECTION AND PROCESSING
The collection of the principal and charges of Sub-credits "A" and "B" shall be
made through Collection Advice issued by BNDES in advance, so that the
BENEFICIARY pays those obligations on the respective maturity dates.
PARAGRAPH ONE
Considering that the debt resulting from Sub-credit "B" is subject to daily
updating as provided for in Article Eight, the Collection Advice referred to
herein shall be issued by BNDES showing a reference value in BNDES's Monetary
Unit - UMBND, which quotation shall be obtained in BNDES' Financial Management
Department of the
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International Financing Area - DEFIN/AF, being the value for payment in
Brazilian currency calculated on the basis of the quotation valid for the actual
payment date.
PARAGRAPH TWO
The non-receipt of the Collection Advice shall not exempt the BENEFICIARY from
its obligation to pay the principal and the charges on the dates established in
this Contract.
PARAGRAPH THREE
BNDES shall make available to the BENEFICIARY the information, data and
calculations utilized for determining the values due.
ARTICLE TEN
AMORTIZATION
The principal of the debt resulting from each Sub-credit contemplated in this
Contract shall be paid to BNDES as follows:
(I) SUB-CREDIT "A": in 48 (forty eight) successive monthly
installments, each one in the amount of the due principal of the
debt under this Sub-credit divided by the number of amortization
installments still not due, being the first installment due on
January 15 (fifteen), 2002 and the last one on December 15
(fifteen) 2005, subject to the provisions of Article Twenty
Three.
(II) SUB-CREDIT "B": in 48 (forty eight) successive monthly
installments, each one in the amount of the due principal of the
debt under this Sub-credit divided by the number of amortization
installments still not due, being the first installment due on
February 15 (fifteen), 2002 and the last one on January 15
(fifteen) 2006, subject to the provisions of Article Twenty
Three;
SOLE PARAGRAPH
The BENEFICIARY commits to settle on January 15 (fifteen), 2006, upon
the payment of the last amortization installment, all the obligations
under this Contract.
ARTICLE ELEVEN
GUARANTEE - RESERVE OF PAYMENT MEANS
In order to assure the payment of any obligation arising out of this
Contract, such as the principal of the debt, interests, commissions,
conventional penalty and fines, the BENEFICIARY and its intervenient
controlled companies TELMA CELULAR S.A, TELEPARA CELULAR S.A., TELAMAZON
CELULAR S.A., TELEAMAPA CELULAR S.A. and TELAIMA CELULAR S.A., irrevocably
gives as guarantee in favor of BNDES, in an irrevocable and unchangeable
form, parcels of its revenue, destined to the Beneficiary and its
intervenient controlled companies - TELMA CELULAR S.A, TELEPARA CELULAR S.A.,
TELAMAZON CELULAR S.A., TELEAMAPA CELULAR S.A. and TELAIMA CELULAR S.A.,
derived from cellular telephone services to be deposited with a centralizing
bank (Trustee) chosen in common agreement between the parties, so as to
guarantee the fulfillment of the financial obligations arising out of the
Contract as set forth in the "Contract for Collection, Deposit, with
Intervention and other Agreements", according to the draft included in the
Annex I hereof, which becomes an integral, inseverable part of this Contract,
or other funds that, having the same purpose, replace them in the amount
corresponding to the installments related to the principal and accessories
due in each period from this date up to the final settlement of all the
obligations arising out of this Contract.
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PARAGRAPH ONE
If case the blocked funds as provided for in the caption of this Article are
insufficient, the BENEFICIARY and its intervenient controlled companies -
TELMA CELULAR S.A, TELEPARA CELULAR S.A., TELAMAZON CELULAR S.A., TELEAMAPA
CELULAR S.A. and TELAIMA CELULAR S.A., shall allocate, upon previous approval
by BNDES, additional funds to assure to the full payment of the financial
obligations arising out of this Contract.
ARTICLE TWELVE
CHANGE IN THE LEGAL CRITERION FOR REMUNERATING THE RESOURCES FROM PIS/PASEP
FUND AND FAT
In the hypothesis the legal criterion for remunerating the resources allocated
to BNDES from the PIS/PASEP Participation Fund and Work Support Fund - FAT is
changed, the remuneration set forth in Article Four may be, at BNDES'
discretion, calculated according to the new remuneration criterion applicable to
such resources or such other criterion indicated by BNDES that, besides
preserving the actual value of the transaction, remunerates it at the same
previous level. In such a case, BNDES will advise the BENEFICIARY, in writing,
about the change.
ARTICLE THIRTEEN
BENEFICIARY'S SPECIAL OBLIGATIONS
The BENEFICIARY commits itself:
(I) to comply, as applicable, until the final settlement of the debt
arising out of this Contract, with the "PROVISIONS APPLICABLE TO
BNDES' CONTRACTS" as approved by Resolution no. 665 of December
10, 1987 and partially amended by Resolution no. 775 of December
16, 1991, Resolution 863 of March 11, 1996, Resolution no. 878
of September 4, 1996, Resolution no. 894 of March 6, 1997 and
Resolution 927 of April 1, 1998 all issued by BNDES's Board of
Directors and published in the Official Daily Government Gazette
(Section I) of December 29, 1987, December 27, 1991, April 8,
1996, September 24, 1996, March 19, 1997, and April 15, 1998,
respectively, a copy of which is hereby handed over to the
BENEFICIARY, who upon being aware of their entire content
declares accepting them as an inseverable, integral part of this
Contract for all the legal purposes and effects;
(II) to draw the totality of the credit, without prejudice of BNDES's
right to extend such deadlines, either prior to or after their
expiry, under the guarantees hereby provided, by means of
express authorization by letter, irrespective of any other
formality or record;
(III) to provide training focused on job opportunities existing in the
region and/or reemployment program to employ the workers in
other companies if, as a function of the project referred to in
Article One, the BENEFICIARY reduces its personnel during the
validity of this Contract; for that purpose the BENEFICIARY must
submit to BNDES' appreciation a document specifying and
evidencing the conclusion of negotiations with the dismissed
workers' competent representation(s);
(IV) to adopt during the validity of this Contract measures and
actions intended to avoid or correct damages to the environment,
safety and work medicine that could be caused by the project
referred to in Clause One;
(V) to comply with its obligation before the environmental agencies
during the validity of this Contract;
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(VI) to address a correspondence to the Granting Power, with copy to
BNDES, requesting the inclusion of its debt with BNDES in the
procedures relative to eventual indemnity calculation and that
BNDES should be informed about any fact that could impair the
purpose of the present transaction; a copy of this Contract must
be attached to such correspondence;
(VII) to pay directly to BNDES the financial obligations for the full
settlement of the debt arising out of this transaction, in case
such indemnity is not due;
(VIII) to pay to BNDES for the sake of Performance Premium an amount
corresponding to 0.5% (half percent) on the debt balance under
this Contract calculated on the closing date of the Yearly
Balance Sheet, to be paid in case the Item "Net Sales" (Net
Operating Revenue) is equal to or higher than 110% (one hundred
ten percent) of the Project's planned outcome according to the
Projected Cash Flow in real terms (IGP-M) included as Annex II
to this Contract, subject to the following:
(a) the Performance Premium will be paid in the year
subsequent to its determination in four equal
installments, together with the payment of the debt
principal;
(b) the Yearly Balance Sheet adopted as a basis for
calculating the Performance Premium must be audited by
independent auditors registered with Comissao de Valores
Mobiliarios - CVM (Securities and Exchange Commission);
(IX) not to assign to nor commit with another creditor, without the
previous agreement by BNDES, the revenues assigned as provided
for in the "Contract for Collection, Deposit, with Intervention
and other Agreements", which draft shall be furnished by BNDES;
(X) to issue securities at BNDES's discretion at any time during the
validity of this Contract, being such securities fully
subscribed by BNDES with the partial or full utilization of the
debt balance on the issuance date, subject to terms and average
interest rate equivalent to those of the originally contracted
transaction, as well as to agree with the subsequent public
placement of such securities on the market, committing to
perform all the acts required for such placement;
(XI) to keep, during the validity of this Contract and until its
final settlement, at least 4 [four] of the following financial
indexes, determined half-yearly, in a balance sheet or in trial
balances, audited by independent auditors registered with the
Securities and Exchange Commission - CVM;
(a) capitalization index (PL/AT): stockholder's equity
divided by total assets, equal to or higher than 35%
(thirty five percent);
(b) current liquidity index (AC/PC): current assets divided
by current liabilities, equal to or higher than 1.0
during the whole term of the Contract.
(c) EBITDA margin: (EBITDA/ROLT): operating earnings before
interest, taxes, depreciation and amortization divided
by the net operating revenues, equal to or higher than
32% (thirty two percent);
(d) Debt coverage index (EBITDA/PC): operating earnings
before interest, taxes, depreciation and amortization
divided by the current liabilities, equal to or higher
than 1.00 in year 2000, and equal to or higher than 1.2
from the year 2002, inclusive, until the final
settlement of all obligations arising out of the present
transaction; and
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(e) Bank indebtedness index [DB/(EBITDA-IR)]; relation
between the bank debts and the EBITDA, discounting the
Income Tax, equal or less than 3.0, during the whole
term of the Contract.
Where:
PL = stockholder's equity, AC = current assets, PC = current liabilities
(including financing for periods equal to or lower than 12 months);
EBITDA = operating earnings before interest, taxes, depreciation and
amortization, ROLT = net operating revenues, excluding the handsets sales; AT =
total assets; DB = Bank Debts; IR = Income Tax.
(XII) to comply with the Brazilian legislation applicable to foreign
personnel and consultancy contracting;
(XIII) to respect the minimum nationalization indexes in the project
referred to in Article One, SOLE PARAGRAPH, as required in
BNDES's Telecommunication Investment Support Program
(consubstantiated through excerpt of Minutes of Meeting of
BNDES' Board of Director no. 08/99 of 29.03.99) for the
acquisition of equipment, and installation and erection services
relative to the implantation project of cellular mobile
telephone service (Band A) in the Beneficiary's concession area
as described under Article One, SOLE PARAGRAPH, to be approved
from time to time by FINAME;
(XIV) not to provide privileged guarantees to other creditors without
the agreement by BNDES;
(XV) to accept the inclusion in the "Contract for Collection,
Deposit, with Intervention and other Agreements", which draft is
in Annex I hereto, of a mechanism of guarantee account under
withholding of 140% of the value corresponding to the next
installment falling due in the period if the company's "Net
Sales" [Net Operational Revenues] is lower than 70% of that
foreseen in the cash flow agreed upon, in real terms (IGP-M),
included in Annex II hereto, until such Net Operational Revenues
becomes equal to or higher than the foreseen value;
(XVI) to timely pay all its obligations with ANATEL during the
validity of this Contract.
ARTICLE FOURTEEN
OBLIGATIONS OF THE INTERVENIENTS
The Intervenients TELENORTE CELULAR PARTICIPACOES S.A. and TELPART PARTICIPACOES
S.A., duly qualified in the caption of this Contract, commit themselves to:
(a) to comply with the determination of the "Dispositions
Applicable to the BNDES's Contracts, which are referred
at Item I, of Clause Thirteen;
(b) to take all the necessary steps to assure the compliance
with the purpose contemplated in Article One, SOLE
PARAGRAPH, of the present Contract;
(c) to implement all the required acts to assure the
execution of the investment plan as submitted to BNDES;
(d) to immediately advise BNDES about any fact or act that
could hinder the compliance with the purpose referred to
in Article One, SOLE PARAGRAPH, of the present Contract,
particularly as far as the agreed guarantees are
concerned;
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(e) to previously advise BNDES about any change that could
take place in the ownership, directly or indirectly, of
the BENEFICIARY and the INTERVENIENT providing personal
guarantee;
(f) to exert its direct or indirect controlling power over
the BENEFICIARY so as to comply with the concession
contract with ANATEL;
(g) to fulfill its duties and responsibilities in relation
to the BENEFICIARY in accordance with articles 115, 116
and 117 of Law no. 6404 of 15.12.76.
ARTICLE FIFTEEN
OBLIGATIONS OF THE INTERVENIENTS: TELEPARA CELULAR S.A., TELAMAZON CELULAR S.A.,
TELEAMAPA CELULAR S.A. AND TELAIMA CELULAR S.A.,
The Intervenients, TELEPARA CELULAR S.A., TELAMAZON CELULAR S.A., TELEAMAPA
CELULAR S.A. and TELAIMA CELULAR S.A., already qualified in the preamble of this
Contract, commit themselves to:
(a) to comply with the determination of the "Dispositions
Applicable to the BNDES's Contracts, which are referred
at Item I, of Clause Thirteen;
(b) to invest the received resources, derived from this
present operation, solely in the execution of the
project mentioned in Sole Paragraph of Clause One;
ARTICLE SIXTEEN
RECIPROCAL PROXY
The BENEFICIARY, the intervenients, TELEPARA CELULAR S.A., TELAMAZON CELULAR
S.A., TELEAMAPA CELULAR S.A. and TELAIMA CELULAR S.A., TELENORTE CELULAR
PARTICIPACOES S.A. and TELEPART PARTICIPACOES S.A. already qualified in the
preamble of this Contract, hereby irrevocably constitute themselves their
mutual, reciprocal proxies until the final, settlement of the debt arising out
of this Contract, with powers to receive service of process, notices and legal
notices, "ad judicia" powers for the general jurisdiction, which may be assigned
to a counsel, all related to any judicial or extra-judicial proceedings filed
against them by BNDES in connection with this Contract, and power to take all
the necessary measures for the full and faithful performance of such power of
attorney.
ARTICLE SEVENTEEN
CONDITIONS FOR CREDIT DRAWING
Besides the compliance with the provisions of articles 5 and 6 of the
above-mentioned "PROVISIONS APPLICABLE TO BNDES' CONTRACTS" and the "FOLLOW UP
REGULATIONS AND INSTRUCTIONS" referred to in article 2 of said "PROVISIONS", the
drawing against this credit is subject to the fulfillment of the following
conditions:
(I) For drawing the first credit installment:
(b) opening of a current account by the BENEFICIARY with
BNDES;
(c) receipt of the correspondence referred to in Article
Thirteen, item VI;
(d) presentation of the "Contract for Collection, Deposit,
with Intervention and other Agreements" duly signed and
registered, object of Annex I of this Contract;
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(e) submission of evidence of hiring an audit
firm/specialized consultancy to attest the
accomplishment of the financial indexes referred to in
Article Thirteen, item XI.
(II) For drawing each credit installment:
(a) non-existence of economic-financial fact that, at BNDES'
discretion, may impair the execution of the project
hereby financed by changing it or hindering its
implementation as contemplated in the project approved
by BNDES;
(b) submission by the BENEFICIARY of Social Security
Contributions Clearance (Certidao Negativa de Debito -
CND) issued by Instituto Nacional do Seguro Social -
INSS (Social Security Institute) obtained by the
BENEFICIARY through the INTERNET and checked by BNDES in
the site xxx.xxxx.xxx.xx;
(c) submission of declaration that the BENEFICIARY fulfils
the Brazilian legislation applicable to foreign labor
and consultancy contracting;
(III) for the use of the resources foreseen to the settlement of the
Bridge Loan Contracts which are referred at the Sole Paragraph,
of Clause One.
(a) To proof before BNDES, of the compliance by the
BENEFICIARY, of the conditions foreseen in the above
mentioned Bridge Loan Contracts.
ARTICLE EIGHTEEN
GUARANTEE
TELE NORTE CELULAR PARTICIPACOES S.A., duly qualified in the caption hereto,
accepts the present Contract in its capacity of guarantor and main payer, and
hereby expressly waives the benefits of articles 1.491, 1.499 and 1.503 of the
Civil Code, and 261 and 262 of the Commercial Code, being jointly liable, up to
the final settlement of this Contract, for the full and faithful fulfillment of
the BENEFICIARY'S obligations hereunder.
ARTICLE NINETEEN
DEFAULT
In case of default of the obligations hereunder by the BENEFICIARY and
Intervenients it shall apply the provisions of articles 40 through 47 of the
"PROVISIONS APPLICABLE TO BNDES' CONTRACTS" referred to in Article Thirteen,
item I.
ARTICLE TWENTY
LEGAL PROCEEDING PENALTY
In case of judicial collection of the debt arising out of this Contract, the
BENEFICIARY shall pay a penalty of 10% (ten percent) on the debt principal and
charges, besides the judicial and extra-judicial expenses, and attorney's fees,
due as of the first order given by the competent authority in the collection
pleading.
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12
ARTICLE TWENTY-ONE
ANTICIPATED DEBT SETTLEMENT
In case of anticipated debt settlement the guarantees will be released, being
applicable to the remaining obligations what provided for in Article 18,
paragraph two, of the "PROVISIONS APPLICABLE TO BNDES' CONTRACTS" referred to in
Article Thirteen, item I.
ARTICLE TWENTY-TWO
ACCELERATION
BNDES may declare the anticipated expiry of this Contract being the debt payable
and any disbursement immediately suspended if, besides the hypotheses
contemplated in articles 39 and 40 of the "PROVISIONS APPLICABLE TO BNDES'
CONTRACTS" referred to in Article Thirteen, item I, the following facts are
evidenced by BNDES:
(a) inclusion in the articles of association, by-laws or
certificate of incorporation of the BENEFICIARY or the
controlling companies of a provision according to which
special quorum would be required for deciding or
approving matters that impose limitations or hindrances
to the control of any of these companies by the
respective controllers, or the inclusion in those
documents of a provision that imply in:
i) restrictions to the BENEFICIARY's growth
capacity or to its technological development;
ii) restrictions to the BENEFICIARY's access to new
markets; or
iii) restrictions to or loss of capacity of paying
the financial obligations arising out of this
transaction.
(b) personnel reduction by the BENEFICIARY without complying
with the provisions of Article Thirteen, item III;
(c) non-compliance with the financial indexes set forth in
Article Thirteen, item XII;
SOLE PARAGRAPH
In case of application of funds granted by this Contract in an activity
other than that set forth in Article One, BNDES shall advise the Federal
Department of Justice (Ministerio Publico Federal) about such fact for
the sake of application of Law no. 7.492 of 16.06.86, without prejudice
of the provisions of this article's caption.
ARTICLE TWENTY-THREE
MATURITY ON HOLIDAYS
Any installment relative to the amortization of the principal and charges
falling due on Saturdays, Sundays or national holidays, including bank holiday,
shall be transferred, for all the purposes and effects of this Contract, to the
first subsequent working day, being the charges calculated up to such date, and
starting from this date the subsequent period for charges determination and
calculation hereunder.
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13
ARTICLE TWENTY-FOUR
POWER GRANT TO BNDES
The BENEFICIARY authorizes, in this act, in an irrevocable and unchangeable
form, the BNDES to receive directly from the Granting Power the indemnification
due by the BENEFICIARY, as foreseen in the Concession Contract No.
018/97-DOTC/SFO/MC executed on November 4th, 1997, the amounts sufficient to
settle de debts assumed by this Contract.
ARTICLE TWENTY-FIVE
PAYMENT OF THE BRIDGING LOAN
The BENEFICIARY and the Intervenients TELEPARA CELULAR S.A., TELAMAZON CELULAR
S.A., TELEAMAPA CELULAR S.A. and TELAIMA CELULAR S.A., hereby irrevocably grant,
in an irrevocable and unchangeable form, to BNDES the power to use the funds
from the present transaction to pay, with the resources from this present
operation, in whole or in part, the debt balance of Contracts for Opening of
Fixed Credits [Bridge Loan Program - Ponte-DIR-502/99] executed on November 8th,
1999, in the total amount of R$ 36,942,000.00 [thirty six million, nine hundred
and forty two thousand Reais], between the above-mentioned Companies and the
BANCO ALFA DE INVESTIMENTOS S.A.
ARTICLE TWENTY-SIX
REPRICING
The BENEFICIARY hereby agrees that the present contract will be repriced at the
end of the 48th [forty eighth] month from the date hereof, being the spread
increased from 3.8% to 5.8%, applied in accordance with the terms of Articles
Four and Five, having the BENEFICIARY the option to anticipate the contract
settlement at that time.
ARTICLE TWENTY-SEVEN
AUTHORIZATION
The BENEFICIARY authorizes, in this act, in an irrevocable and unchangeable
form, the Intervenients TELEPARA CELULAR S.A., TELAMAZON CELULAR S.A., TELEAMAPA
CELULAR S.A. and TELAIMA CELULAR S.A., to withdraw, from the bank account
referred in Item "a", of Sub-item I, of Clause Seventeen, the funds derived from
this present operation, to invest in the project mentioned in Article One.
The BENEFICIARY submitted the Social Security Contributions Clearance (Certidao
Negativa de Debito) CND no. 006182000-09601013, issued by Instituto Nacional do
Seguro Social - INSS (Social Security Institute) on November 6, 2000.
The pages of the present Instrument are countersigned by Leila de Souza Sanches,
BNDES' counsel, by authorization from the undersigned legal representatives.
And for being in agreement, the parties sign the present Instrument in 8 (eight)
copies with the same content and for the same effect in the presence of the
undersigned witnesses.
Rio de Janeiro, December 14th, 2000
On behalf of BNDES:
[illegible signature]
Francisco X. Xxxxx - Xxxxxxxxx
X-000
00
================================================================================
[illegible signature]
Aluysio Asti - Director
BANCO NACIONAL DE DESENVOLVIMENTO ECONOMICO E SOCIAL - BNDES
================================================================================
SIGNATURE SHEET OF CONTRACT NO. 00.2.608.3.1
ON BEHALF OF THE BENEFICIARY:
(ILLEGIBLE SIGNATURE) (ILLEGIBLE SIGNATURE)
================================================================================
TELMA CELULAR S.A.,
ON BEHALF OF THE INTERVENIENTS:
(ILLEGIBLE SIGNATURE) (ILLEGIBLE SIGNATURE)
================================================================================
TELE NORTE CELULAR PARTICIPACOES S.A.
(ILLEGIBLE SIGNATURE) (ILLEGIBLE SIGNATURE)
================================================================================
TELEPARA CELULAR S.A.
(ILLEGIBLE SIGNATURE) (ILLEGIBLE SIGNATURE)
================================================================================
TELAMAZON CELULAR S.A.
(ILLEGIBLE SIGNATURE) (ILLEGIBLE SIGNATURE)
================================================================================
TELEAMAPA CELULAR S.A.
(ILLEGIBLE SIGNATURE) (ILLEGIBLE SIGNATURE)
================================================================================
TELAIMA CELULAR S.A.
(ILLEGIBLE SIGNATURE) (ILLEGIBLE SIGNATURE)
================================================================================
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15
TELPART CELULAR S.A.
WITNESSES:
(ILLEGIBLE SIGNATURE) (ILLEGIBLE SIGNATURE)
VICENTE PAULO CAIXETA LARA RADLER DOS GUARANYS
SECRETARY
CPF 000.000.000-00 CPF: 000.000.000-00
================================================================================
TELMA- Contract BNDES TELMA
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16
FINANCING CONTRACT THROUGH TRANSFER OF THE CONTRACTED LOAN WITH
BANCO NACIONAL DE DESENVOLVIMENTO ECONOMICO E SOCIAL - BNDES FINEM
TJLP/CM-No. 066/2000-IC
Name of the FINANCIAL AGENTS:
BANCO ITAU S.A., a financial institution with headquarters at Xxx Xxx Xxxxx 000,
Xxxxxx, in the City of Sao Paulo, State of Sao Paulo, registered at the General
Taxpayer's Registry CNPJ under No. 60.701.190/0001-04, represented in this act
by the persons signing below on the signature's page; and
BANCO BRADESCO S.A., a financial institution with headquarters at the City of
Osasco, State of Sao Paulo, at Cidade de Deus, registered at the General
Taxpayer's Registry CNPJ under No. 60.746.948/0001-12, represented in this act
by the persons signing on the signature's page; and
BANCO ALFA DE INVESTIMENTOS S.A., a financial institution with headquarters at
the City of Sao Paulo, State of Sao Paulo, at Xxxxxxx Xxxxxx Xx. 000 - 4(0)
andar, registered at the General Taxpayer's Registry CNPJ under No.
60.770.336/0001-65, represented in this act by the persons signing on the
signature's page; and
Designated jointly as "Financial Agents" due to the constitution of the
Consortium Contract signed between the Financial Agents on November 9th, 2000,
and of which this Instrument is an inseparable and integrating part, it was
established that the BANCO ITAU S.A, is determined to be the Leader of the
Consortium, hereinafter so called, and which may be substituted, at any time by
determination of the BNDES.
NAME OF THE BENEFICIARY
TELMA CELULAR S.A., hereafter referred to as BENEFICIARY, a joint stock company
with head offices in the City of Sao Luiz do Maranhao, at Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxx 00, Xxxx 00, Xx. Xxxxxx Xxxxx, Xxxxxx Xxxxxxxxxx, registered
with CNPJ under no. 02.340.278/0001-33, hereby represented by the undersigned
representatives, and appearing also, in the capacity of INTERVENIENTS:
NAME OF THE INTERVENIENT AND GUARANTOR
TELE NORTE CELULAR PARTICIPACOES S.A., stock company, with head office in
the City of Brasilia, Distrito Federal, at XXX Xxxxxx 00 Xxxxx X, Xxxxx
Xxxx, Xxx Xxxxx, registered with CNPJ under no. 02.558.118/0001-65;
NAME OF THE COLLATERAL GUARANTORS
TELEPARA CELULAR S.A. a stock company with head office in the City of
Belem, in the State of Para, at Xxxxxxxx Xxx Xxxxxxx 000, 0(0)xxxxx,
Reduto, registered with CNPJ under No. 02.361.554/0001-40, hereby
represented by the undersigned representatives.
TELAMAZON CELULAR S.A. a stock company with head office in the City of
Manaus, in the State of Amazonas, at Xxxxxxx Xxxxxxxxx Xxxxxxx Xx. 000,
Xxxxxx, registered with CNPJ under No. 02.322.103/0001-01, hereby
represented by the undersigned representatives.
TELEAMAPA CELULAR S.A. a stock company with head office in the City of
Macapa, in the State of Amapa, at Xxxxxxx Xxxxxxx Xxxxxx Xx. 00, Xxxxxx,
registered with CNPJ under No. 02.333.355/0001-28, hereby represented by
the undersigned representatives.
TELAIMA CELULAR S.A. a stock company with head office in the City of Boa
Vista, in the State of Roraima, at Xxxxxxx Xxxxxxx Xxx Xxxxxx Xx. 000,
Xxxxxx, registered with CNPJ under No. 02.369.651/0001-89, hereby
represented by the undersigned representatives.
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referred to as the COLLATERAL GUARANTORS, hereby represented by the
undersigned representatives;
The Intervenient and the Intervenient Guarantor, when jointly mentioned, shall
be called simply Intervenients.
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18
1) DATA FROM THE CREDIT OPENING
1.1) Date: December 14th, 2000
1.2) Value of the deferred credit: Total amount of the Sub-credit
"A", and "B"
1.2.1) Sub-credit "A": R$ 80,936,100.00
1.2.2) Sub-credit "B": R$ 32,882,500.00
1.3) Maturity date: January 15th, 2006
1.4) Term for use: 12/31/2000
1.4.1) Sub-credit "A": until 12/15/2002
1.4.2) Sub-credit "B": until 12/15/2002
1.5) Grace periods:
1.5.1) Sub-credit "A" and "B": Up to 12 [twelve months]
1.6) Decision DIR No.; date: Annex I of 609/2000 of 11/13/2000
1.7) Interest rate: 3.8% [three point eight per cent] p.a.,
equivalent to 0.3113% per month.
1.8) Commission of the Financial Agents: 1.3% [one point three per
cent] p.a. already included into the Interest Rate.
1.9) Credit reserve commission: 0.1% [one tenth] p.a.
1.10) Destination of the financing
Transfer of the funds to the Beneficiary, for the purpose of
financial support for the investments necessary for the
expansion and modernization project of the Mobile Cell
Telephony, Band "A", in the states of Amapa, Amazonas, Maranhao,
Para and Roraima, as well as the payment of the Bridge Loan
granted through the Contracts No. 502/99-IC, executed between
the Banco Alfa de Investimentos S.A. and Telma Celular S.A.,
Telepara Celular S.A., Telamazon Celular S.A., Teleamapa Celular
S.A. and Telaima Celular S.A., on November 8th, 1999, in the
amount of R$ 36,942,000.00 [thirty six million, nine hundred and
forty two thousand Reais].
1.11) Guarantees:
1.11.1) Guarantee granted by the Intervenient Guarantor above
qualified, in the quality of joint debtors and main
payees of the obligations derived from this Contract, as
defined in Sub-item 21.1;
1.11.2) Pledging part of the invoicing derived from the
collection of the cell telephone services, as
established in Sub-item 21.1;
1.11.3) 03 [three] Promissory Notes issued by the Beneficiary
for the benefit of the Financial Agents, maturity at
sight, in an amount corresponding to 130% [one hundred
and thirty per cent] of the credit granted, by each one
of the Financial Agents, as defined in Sub-item 21.3;
2) NATURE AND ORIGIN OF THE CREDIT
2.1) The credit now granted, divided into 02 [two] Sub-credits, in
the amounts mentioned in the Sub-item 1.2, for the account of
the Credit Opening Contract No. 91.2.149.6.1.013, executed on
July 19th, 1991, between the BNDES and the Financial Agents,
shall be funded by:
2.1.1) Sub-credits "A": with ordinary resources from BNDES
which are composed, among other sources, of funds from
the Fundo de Amparo ao Trabalhador - FAT (Worker's
Support Fund), funds from the FAT - Special Deposits and
from the PIS/PASEP Participation Fund, allocated in
accordance with the legislation applicable to each
individual source and in compliance with the provisions
of Sub-item 7.2;
2.1.2) Sub-credit "B": considering base date of November 15,
2000, to be provided from foreign currency funds
borrowed by BNDES and assigned according to Resolution
no. 635/87 of January 13, 1987 issued by BNDES' Board of
Directors, subject to the provisions of Sub-item 3.1.
3) UPDATING SUB-CREDIT "B"
3.1) From the base date mentioned in Sub-item 2.1.2, in accordance
with the weighed average of the exchange variations applicable
to the funds borrowed by BNDES in foreign currency without
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connection to loans under specific conditions, subject to the
provisions of Sub-item 4.1, below falling upon the credit not drawn.
4) UPDATING SUB-CREDIT "B" DEBT VALUE
4.1) The debtor balance of the Beneficiary, included there the
principal, interests, compensatory and default interests,
expenses, commissions and all other charges, shall be updated
every day by the weighed average of the exchange variations
applicable to the funds borrowed by BNDES, in foreign currency,
without connection to loans under specific conditions, subject
to the specific provisions, determined in accordance with the
following criteria:
(I) daily determination by BNDES of its liabilities payable
in foreign currency without connection with loans under
specific conditions for the purpose of calculating the
weighed averages to be applied to the exchange
variations;
(II) based on the liabilities position determined as provided
for under item I, taking into account the closing sales
rates of foreign currencies disclosed by the Brazilian
Central Bank in the previous day.
4.2) The weighed average of exchange rates referred to in this
Article will be published by BNDES in the Official Daily
Government Gazette (Diario Oficial da Uniao) (Section 3) on the
10th (tenth) and 25th (twenty-fifth) day of each month or in the
first edition subsequent to those days in case the
above-mentioned official Gazette is not published on those
dates.
5) CHANGE OF THE LEGAL CRITERIA FOR REMUNERATION OF FUNDS
5.1) In the hypothesis the legal criterion for remunerating the
resources allocated to BNDES from the PIS/PASEP Participation
Fund and Work Support Fund - FAT is changed, the remuneration
set forth in Item 09 [nine] may be, at BNDES' discretion,
calculated according to the new remuneration criterion
applicable to such resources or such other criterion indicated
by BNDES that, besides preserving the actual value of the
transaction, remunerates it at the same previous level. In such
a case, the Financial Agents will advise the BENEFICIARY, in
writing, about the change.
6) PURPOSE
6.1) The funds object of this present Contract shall be used by the
Beneficiary in accordance with the purpose stipulated in
Sub-item 1.10 [Destination of the financing] of the preamble.
7) CREDIT AVAILABILITY
7.1) The resources shall be made available to the Beneficiary, in
installments and in accordance with the projects needs,
respecting the financial programming of the BNDES, which is
subordinated to the resources definition, for its application,
by the National Monetary Council, and the availability of the
resources derived from the Credit Opening Contract No.
91.2.149.6.1.013, referred in Sub-item 2.1, above mentioned.
7.2) The amount of each installment of the Sub-Credit "A", made
available to the Beneficiary shall be calculated in accordance
with the criteria established in the law instituting the Long
Term Interest Rates - TJLP, for the determination of the debtor
balances of the financings contracted by the BNDES System until
November 30th, 1994.
7.3) The resources shall be transferred by the Financial Agents to
the Beneficiary, in the following proportions, as agreed upon in
the Consortium Constitution Agreement, integrating this
Instrument:
AGENTS PARTICIPATION IN R$
----------------------------------------------------------------------------
SUB-CREDIT A SUB-CREDIT B TOTAL PERCENT
"A" + "B"
----------------------------------------------------------------------------
Banco Itau S.A. 42,491,452.50 17,263,312.50 59,754,765.00 52.50%
Banco Bradesco 18,210,622.50 7,398,562.50 25,609,185.00 22.50%
Banco Alfa de 20,234,025.00 8,220,625.00 28,454,650.00 25.00%
Investimento S.A.
----------------------------------------------------------------------------
TOTAL 80,936,100.00 32,882,500.00 113,818,600.00 100.00%
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7.4) The resources shall be transferred by the Financial Agents to
the Beneficiary on the third [3rd] working day after receiving
date the resources of the Sub-Credits "A", and until the second
[2nd] working day after the receiving date of the Sub-Credits
"B" resources.
7.5) No liberation shall be made before the disbursement by BNDES to
the Financial Agents, the amounts corresponding to each one of
them, being hereby established that no responsibility shall fall
upon the Financial Agents in the case BNDES interrupts the
disbursements, or makes them only partially, or subordinates
them to conditions not foreseen in this contract, or also,
cancels, totally or partially, the credits granted to the
Financial Agents, without their fault.
7.6) If, for any reason, BNDES should not transfer to the Financial
Agents the amounts necessary for the loan, or suspends any
resources liberation for the transfer to the Beneficiary, this
contract shall be rescinded, totally or partially, completely
legally and independently of any judicial or extra-judicial
interpellation, there being no rights against the Financial
Agents by the Beneficiary, and consequently any pretension of
indemnification or refunding of any damage derived from the
same, or loss of profits because of the non concession of the
credits, remaining in force, in the case of disbursement having
been made, until its total settlement, all obligations until
that date assumed, due to the force of the respective Contract.
8) TERMS FOR USE, GRACE PERIOD AND AMORTIZATION
8.1) The term for use of the resources shall be the one stipulated in
Sub-Item 1.4.1, for the Sub-Credits "A" and the one stipulated
in Item 1.4.2, for the Sub-Credits "B" and "C".
8.2) The grace period shall be the one stipulated on Sub-item 1.5.1
for the Sub-Credit "A", and the one stipulated in the Sub-item
1.5.1, for the Sub-Credit "B", and shall be counted from the
15th, [fifteenth] subsequent day to the execution date of this
Contract, extending to the nearest 15th [fifteenth] days of one
of the following months: January, April, July and October.
8.3) The amount of the debt shall be paid by the Beneficiary to the
Financial Agents, in the term and form established as follows:
(I) SUB-CREDIT "A": in 48 (forty eight) successive monthly
installments, each one in the amount of the due
principal of the debt under this Sub-credit divided by
the number of amortization installments still not due,
being the first installment due on January 15 (fifteen),
2002 and the last one on December 15 (fifteen) 2005,
subject to the provisions of Sub-item 14.1 and
following.
(II) SUB-CREDIT "B": in 48 (forty eight) successive monthly
installments, each one in the amount of the due
principal of the debt under this Sub-credit divided by
the number of amortization installments still not due,
being the first installment due on February 15
(fifteen), 2002 and the last one on January 15 (fifteen)
2006, subject to the provisions of Sub-item 14.1 and
following;
8.3.1) The Beneficiary commits itself to settle on January 15
(fifteen) 2006, jointly with the last installment of the
amortization, all obligations of this Contract.
9) INTERESTS ACCRUING ON SUB-CREDIT "C"
9.1) For the use of this Sub-credit, the Beneficiary is subject to
interest at the interest rate determined in Sub-item 1.7, over
the variable rate readjusted on a quarterly basis on the 16th
(sixteenth) day of January, April, July and October on the basis
of the weighed average cost of all fees and expenses incurred by
BNDES in borrowing foreign currency funds without connection
with loans under specific conditions in the civil quarter
immediately prior to the month of readjustment of the
above-mentioned interest rate. The interests shall be calculated
day by day, by the proportional system, calculated on the debt
balance updated as provided on the 15th [fifteenth] of January,
April, July and October of each year, in the period comprised
between December 15th, 2000 and January 15th, 2002, and every
moth from February 15th, 2002 inclusive, jointly with the
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installments of the amortization of the principal and at the
settlement of the debt in accordance with Sub-item 14.1, and
following.
10) INTERESTS ACCRUING ON SUB-CREDIT "A"
10.1) Over the principal of the debt of the Beneficiary, interests
shall accrue at the rate determined in Sub-item 1.7, over the
Long Term Interest Rate, hereinafter designated TJLP, divulged
by the Banco Central do Brasil [Brazil's Central Bank] included
into the same the commission determined in Sub-item 1.8,
observing the following determinations:
10.1.1) When TJLP is higher than 6% (six percent) per annum:
a) The amount corresponding to the TJLP portion above 6%
(six percent) per annum shall be capitalized on the 15th
(fifteenth) day of each month during the effectiveness
of this Contract and on its expiry or settlement,
subject to the provisions of Sub-Item 14.1, and
calculated according to the following capitalization
term, taking into consideration all the financial events
occurred in the period:
TC = [(1 + TJLP)/1.06]N-360 - 1 (capitalization term
equals to, open brackets, ratio of TJLP plus the unit to
one and six hundredth, close brackets, raised to the
power corresponding to the ratio of "n" to three hundred
sixty, and deducting one unit from such a result),
where:
TC - capitalization term;
TJLP - Long Term Interest Rate published by Brazilian
Central Bank; and
n - number of days between the financial event date and
the date of capitalization, maturity or settlement of
the obligation, being considered a financial event any
and all facts of financial nature from which the debt
balance under this Contract is or may be changed.
b) The percentage above the TJLP (spread) mentioned in the
caption of the Sub-item 1.7 plus the non-capitalized
portion of the TJLP of 6% (six percent) per annum shall
be calculated on the debit balance on the interest
maturity dates mentioned in Sub-item 10.3 or on the date
of expiry or settlement of this Contract, subject to the
provision of item "a" and considering, for the purpose
of calculation the daily interest, the number of days
between the date of each financial event and the
above-mentioned maturity dates.
10.1.2) When TJLP is equal to or lower than 6% (six percent) per
annum:
The percentage above the TJLP (spread) mentioned in the
caption of the Sub-item 1.7, plus the TJLP shall be
calculated on the debit balance on the interest maturity
dates mentioned in Sub-item 10.3 or on the date of
expiry or settlement of this Contract, being considered,
for the purpose of calculating the daily interest, the
number of days between the date of each financial event
and the above-mentioned maturity dates.
10.2) The amount referred to in Sub-item 10.1.1, sub-paragraph "a", to
be capitalized and incorporated into the principal of the debt
shall be payable in accordance with sub-paragraphs "a" and "b"
of sub-item 8.3.
10.3) The amounts determined in the grace periods in accordance with
the terms of Sub-item 10.1.1, sub-paragraph "b", or Sub-item
10.1.2, shall be demanded quarterly, on the 15th [fifteenth] of
March, July, September and December of each year, in the period
comprised between December 15th, 2000 and December 15th, 2001,
and monthly during the amortization period, jointly with the
installments of the principal, and at the maturity or settlement
of the Contract, observing the determinations of Sub-item 14.1.
10.4) The commission of the Financial Agents is included into the
interest rate of Sub-item 1.7, consisting of a differential
indicated in Sub-item 1.8, being calculated over the liabilities
in accordance with the same criteria for the interest payments.
11) AMENDMENT OF THE INTERESTS RATE ACCRUING ON SUB-CREDITS "A" AND "B".
11.1) From the 49th, [forty ninth] month of the term of the Contract,
the interests foreseen in the Sub-items 9 and 10 shall accrue
and be charged from the Beneficiary at a rate of 5.8% [five
point eight percent] p.a., above the variable rate and the Long
Term Interest Rate - TJLP, respectively, being hereby agreed
upon among the parties, the restatement of the rate determined
in Item 1.7, being
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nevertheless maintained the commission of the Financial Agents
foreseen in Item 1.8, above mentioned.
11.2) The Beneficiary may, nevertheless, make an anticipated payment
of the total its debt on the 48th [forty eighth] month of the
term of this contract.
12) DEBT PROCESSING AND COLLECTION
12.1) The Beneficiary shall amortize or settle the debt now assumed,
through a debit into the bank account of its ownership,
maintained before each one of the Financial Agents, obeying the
proportions mentioned in Sub-Item 7.3. The amortization may be
executed also through a bank cheque, bank compensation slip or
Credit-into-Account document - DOC, since informed with at least
5 [five] working days in advance by the Beneficiary.
12.2) The Financial Agents are hereby authorized by the Beneficiary,
on the maturity date of the commitment, in a irrevocable and
unappealable form to make the debit on its bank account, all
amounts due derived from this contract, the settlement of these
amounts remaining conditioned to the effective availability of a
balance on the bank account where the debits are to be made. The
insufficiency of balance in the bank account, shall be stated as
a delay in the payment.
12.3) At the criterion of each Financial Agent, the collection of the
principal and the charges derived from the Sub-credits "A" and
"B", shall be made through a collection advice, issued by the
Financial Agents, with advance, so the Beneficiary may settle
its obligations on the maturity dates.
12.4) The Beneficiary may consult its balances on its bank accounts
"Future Entries", on which the collection of the principal and
charges shall be stated, with at least 05 [five] days in
advance, who shall inform the amount due to settle the
commitments on the maturity dates.
12.5) Considering that the debt resulting from Sub-credit "B" is
subject to daily updating as provided for in Item 4, above
mentioned, the Collection Advice referred to in Item 12.3, shall
be issued by BNDES showing a reference value in BNDES's Monetary
Unit - UMBND, which quotation shall be obtained in BNDES'
Financial Management Department of the International Financing
Area - DEFIN/AF, being the value for payment in Brazilian
currency calculated on the basis of the quotation valid for the
actual payment date.
12.6) The non-receipt of the Collection Advice shall not exempt the
BENEFICIARY from its obligation to pay the principal and the
charges on the dates established in this Contract.
13) CREDIT RESERVE COMMISSION
13.1) The BENEFICIARY shall pay to Financial Agents, in the proportion
stipulated on Sub-item 7.3, the Credit Reserve Commission,
determined in Sub-item 1.9, due every 30-day (thirty) period or
fraction thereof, calculated on:
a) the balance not drawn of each credit parcel, as of the
day subsequent to the credit parcel availability up to
the drawing date, when its payment will be due; and
b) on the credit not drawn as of the day subsequent to its
availability up to the cancellation date upon request by
the BENEFICIARY or by initiative of BNDES, which payment
will be due on the request date or on the date of BNDES
decision, as the case may be;
13.1.1) The incidence of the commission of the cases "a" and
"b", above mentioned, shall depend on the determination
of the scheme of availability of resources by the BNDES.
14) MATURITY ON BANK HOLIDAY
14.1) The financial commitment relative to the amortization of the
principal and charges falling due on Saturdays, Sundays or
national holidays, including bank holiday, shall be transferred,
for all the purposes and effects of this Contract, to the first
subsequent working day, being the charges calculated up to such
date, and starting from this date the subsequent period for
charges determination and calculation hereunder.
15) SPECIAL OBLIGATIONS OF THE BENEFICIARY
15.1) Without prejudice to all other Items, the Beneficiary commits
itself also:
(a) to comply, as applicable, until the final settlement of
the debt arising out of this Contract, with the
"PROVISIONS APPLICABLE TO BNDES' CONTRACTS" as approved
by
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Resolution no. 665 of December 10, 1987 and partially
amended by Resolution no. 775 of December 16, 1991,
Resolution 863 of March 11, 1996, Resolution no. 878 of
September 4, 1996, Resolution no. 894 of March 6, 1997
and Resolution 927 of April 1, 1998 all issued by
BNDES's Board of Directors and published in the Official
Daily Government Gazette (Section I) of December 29,
1987, December 27, 1991, April 8, 1996, September 24,
1996, March 19, 1997, and April 15, 1998, respectively;
(b) to invest the resources obtained only in the execution
of the project, object of this Contract and in
accordance with the Table of Uses and Sources [Annex
Iii]
(c) to invest its own resources, foreseen for the execution
of the project, in the amounts and terms defined in the
Table of Uses and Sources [Annex III], as well as in its
totality, the resources necessary for the coverage of
eventual insufficiencies or accruals of the global
budged of the project.
(d) To communicate to the leader, any matters, which could
take to changes of the project or the Table of Uses and
Sources, indicating the measures, which the Beneficiary
considers, should be taken.
(e) To adopt, during the term of this Contract, measures and
actions to be taken in order to avoid or correct damages
to environment, safety and medicine at work, which may
be caused by the project now financed.
(f) To maintain in a regular form its commitments before the
environmental organs, during the term of this Contract.
(g) to provide training focused on job opportunities
existing in the region and/or reemployment program to
employ the workers in other companies if, as a function
of the project referred to, the BENEFICIARY reduces its
personnel during the validity of this Contract; for that
purpose the BENEFICIARY must submit to Financial Agents
appreciation a document specifying and evidencing the
conclusion of negotiations with the dismissed workers'
competent representation(s);
(h) to maintain updated its commitments before ANATEL during
the term of this Contract;
(i) to forward correspondence, with copy to the Financial
Agents and to BNDES, to the Granting Power, with copy to
BNDES, requesting the inclusion of its debt with BNDES
in the procedures relative to eventual indemnity
calculation and that BNDES should be informed about any
fact that could impair the purpose of the present
transaction; a copy of this Contract must be attached to
such correspondence;
(j) to authorize the direct payment by the Granting Power to
BNDES of indemnity due to the BENEFICIARY as provided
for in the Concession Contract in such an amount so as
to cover the Beneficiary's debt under this transaction
(k) [Intentionally omitted]
(l) in case such indemnity mentioned in Item "I" above is
not due, or insufficiency of resources derived from the
mentioned indemnity, to pay directly to Financial Agents
the financial obligations for the full settlement of the
debt arising out of this transaction;
(m) not to assign to nor commit with another creditor,
without the previous agreement by the Financial Agents
and BNDES, the revenues assigned as provided for in the
"Contract for Collection, Deposit, with Intervention and
other Agreements", hereinafter called "Bank
Contract"[Annex I], remaining nevertheless valid and
executable the pledge made in the scope of the Opening
of Fixed Credits Contract [Program, Bridge Loan -
DIR-502/99, executed between the Banco Alfa de
Investimentos S.A., as Financial Agent and Telma Celular
S.A., Telepara Celular S.A., Telamazon Celular S.A.,
Teleamapa Celular S.A. and Telaima Celular S.A., as
beneficiaries, dated November 8th 1999, in the amount of
R$ 36,942,000.00.
(n) to issue securities at BNDES's discretion at any time
during the validity of this Contract, being such
securities fully subscribed by the Financial Agents and
the BNDES with the partial or full utilization of the
debt balance on the issuance date, subject to terms and
average interest rate equivalent to those of the
originally contracted transaction, as well as to agree
with the subsequent public placement of such securities
on the market, committing to perform all the acts
required for such placement;
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24
(o) to comply with the Brazilian legislation applicable to
foreign personnel and consultancy contracting;
(p) to respect the minimum nationalization indexes in the
project referred to in Article One, SOLE PARAGRAPH, as
required in BNDES's Telecommunication Investment Support
Program (consubstantiated through excerpt of Minutes of
Meeting of BNDES' Board of Director no. 08/99 of
29.03.99) for the acquisition of equipment, and
installation and erection services relative to the
implantation project of cellular mobile telephone
service (Band A) in the Beneficiary's concession area as
described under Article One, SOLE PARAGRAPH, to be
approved from time to time by FINAME;
(q) not to provide privileged guarantees to other creditors
without the agreement by BNDES;
(r) from the date of the signature of this Contract, to link
the revenues derived from the rendering cellular
telephone services, to be deposited at the Trustee Bank,
chosen in a common agreement between the Parties in
order to warrant the accomplishment of the financial
commitments derived from this operation, as determined
in the above mentioned "Bank Contract";
(s) to pay to the Financial Agents, for the sake of
Performance Premium an amount corresponding to 0.5%
(half percent) on the debt balance under this Contract
calculated on the closing date of the Yearly Balance
Sheet, to be paid in case the Item "Net Sales" (Net
Operating Revenue) is equal to or higher than 110% (one
hundred ten percent) of the Project's planned outcome
according to the Projected Cash Flow in real terms
(IGP-M) included as Annex II to this Contract, subject
to the following:
s.1) the Performance Premium will be paid in the year
subsequent to its determination in four equal
installments, together with the payment of the
debt principal;
s.2) the Performance Premium shall be apportioned
between BNDES and the FINANCIAL AGENTS in the
proportion of their individual participation in
the transaction;
s.3) the Yearly Balance Sheet adopted as a basis for
calculating the Performance Premium must be
audited by independent auditors registered with
Comissao de Valores Mobiliarios - CVM
(Securities and Exchange Commission)
(t) to accept the inclusion in the "Contract for Collection,
Deposit, with Intervention and other Agreements", which
draft is in Annex I hereto, of a mechanism of guarantee
account under withholding of 140% of the value
corresponding to the next installment falling due in the
period if the company's "Net Sales" is lower than 70% of
that foreseen in the cash flow agreed upon , in real
terms (IGP-M), included in Annex V hereto, until such
Net Sales becomes equal to or higher than the foreseen
value;
(u) to keep, during the validity of this Contract and until
its final settlement, the following minimum financial
indexes: of capitalization, current liquidity, EBITDA
margin and debt coverage as calculated on the annual
balance sheet or trial balance audited by independent
auditors registered with the Securities and Exchange
Commission:
i) capitalization index (PL/AT): stockholder's
equity divided by total assets, equal to or
higher than 35% (thirty five percent);
ii) EBITDA margin: (EBITDA/ROLT): operating earnings
before interest, income tax, depreciation and
amortization divided by the net operating
revenues, equal to or higher than 32% (thirty
two percent);
iii) Debt coverage index (EBITDA/PC): operating
earnings before interest, taxes, depreciation
and amortization divided by the current
liabilities, equal to or higher than 1.0 [one]
in year 2001, and equal to or higher than 1.2 in
year 2002, inclusive, until the final settlement
of all obligations arising out of the present
Contract;
iv) current liquidity index (AC/PC): current assets
divided by current liabilities, equal to or
higher than 1.10 in year 2000, equal to or
higher than 0.80 in year 2001, and equal to or
higher than 1.10 in year 2002 and after, until
the final settlement of all obligations arising
out of the present transaction;
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v) Bank indebtedness index [DB/(EBITDA-IR)];
relation between the bank debts and the EBITDA,
discounting the Income Tax, equal or less than
3.0, during the whole term of the Contract:
Where:
PL = stockholder's equity, AC = current assets,
PC = current liabilities (including financing
for periods equal to or lower than 12 months);
EBITDA = operating earnings before interest,
taxes, depreciation and amortization, ROL = net
operating revenues, AT = total assets
(v) to constitute the guarantees, in behalf of the BNDES and
the Financial Agents, the guarantees foreseen in Item
19, Guarantee Conditions;
(w) [Intentionally omitted]
(x) to authorize the Collateral Guarantors, TELEPARA CELULAR
S.A., TELAMAZON CELULAR S.A., TELEAMAPA CELULAR S.A. and
TELAIMA CELULAR S.A., to withdraw from their bank
accounts, opened in function of this present operation,
the funds derived from this present operation, for the
investment in the Project;
(x) to submit to the Leader, in 150 [one hundred and fifty]
days, from the date of delivery of the last installment
of the credit, a project conclusion report, in
accordance with the model to be supplied by the BNDES;
16) OBLIGATIONS OF THE INTERVENIENT GUARANTOR AND THE INTERVENIENT TELEPART
PARTICIPACOES S.A.
16.1) The Intervenient Guarantor, qualified in the preamble of this
Contract and the Intervenient TELEPART PARTICIPACOES S.A.,
qualified at the end of this Contract, assumes in this act the
obligation of:
(a) to take all the necessary steps to assure the compliance
with the purpose of the present Contract;
(b) to implement all the required acts to assure the
execution of the investment plan as submitted to BNDES;
(c) to immediately advise the Financial Agents and the BNDES
about any fact or act that could hinder the compliance
with the purpose referred to in Sub-item 1.10, of the
present Contract, particularly as far as the agreed
guarantees are concerned;
(d) to previously advise the Financial Agents and the BNDES
about any change that could take place in the ownership
of the BENEFICIARY and the INTERVENIENT GUARANTOR;
(e) to exert its direct or indirect controlling power over
the BENEFICIARY so as to comply with the concession
contract with the "Agencia Nacional de Telecomunicacoes
ANATEL" [National Telecommunication Agency];
(f) to fulfill its duties and responsibilities before the
BENEFICIARY in accordance with articles 115, 116 and 117
of Law no. 6404 of 15.12.76.
17) SPECIAL COMMITMENTS OF THE COLLATERAL GUARANTORS
17.1) The Collateral Guarantors, TELEPARA CELULAR S.A., TELAMAZON
CELULAR S.A., TELEAMAPA CELULAR S.A. and TELAIMA CELULAR S.A.,
qualified in the Preamble of this Contract, assume the following
obligations:
(a) to comply with the determinations of the "Dispositions
Applicable to BNDES' Contracts", which is referred in
Item "a", of Sub-item 15.1;
(b) to invest the resources received from this present
operation, solely in the execution of the project,
object of this Contract;
(c) to pledge the revenues derived from services rendered
from cellular telephone, from the date of the signature
of this Contract, to be deposited, exclusively, in the
Banco Itau S.A., in order to guarantee the fulfillment
of the financial obligations derived from this
operation, as determined in the "Bank Contract".
18) ACCELERATED MATURITY
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18.1) The Parties may declare the anticipated expiry of this Contract
being the debt payable and any disbursement immediately
suspended if, besides the hypotheses contemplated by Law,
specially the non fulfillment of any obligation here agreed upon
by the Beneficiary and/or Intervenients, before any of the
Financial Agents, or also if the following should occur:
(a) In case of application of funds granted by this Contract
in an activity other than that set forth in Article One,
BNDES shall advise the Federal Department of Justice
(Ministerio Publico Federal) about such fact for the
sake of application of Law no. 7.492 of 16.06.86,
without prejudice of the provisions of this article's
caption.
(b) inclusion in the articles of association, by-laws or
certificate of incorporation of the BENEFICIARY or the
controlling companies of a provision according to which
special quorum would be required for deciding or
approving matters that impose limitations or hindrances
to the control of any of these companies by the
respective controllers, or the inclusion in those
documents of a provision that imply in:
i) restrictions to the Beneficiary's growth
capacity or to its technological development;
ii) restrictions to the Beneficiary's access to new
markets; or
iii) restrictions to or loss of capacity of paying
the financial obligations arising out of this
transaction.
(c) Company's reorganization process [split-up,, merger,
incorporation, etc.], change of the main activity or the
modification of the effective control, either directly
or indirectly, of the Beneficiary, of any of the
Intervenients, after the contracting of the operation,
without the previous and express authorization of the
BNDES and the Financial Agents, represented by the
Leader.
(d) personnel reduction by the BENEFICIARY without complying
with the provisions of item "g" of Sub-item 15.1,
above.;
(e) non-compliance with the financial indexes set forth in
item "p" of Sub-item 16.1 and 17.1, above by the
Intervenient Guarantor and the Collateral Guarantors;
(f) accelerated maturity of the Financing Contract signed
between the Beneficiary and the BNDES on December 14th,
2000, object of the Decision No. DIR/608/2000-BNDES;
(g) non fulfillment of any obligations by the Beneficiary,
regarding any of the assumed commitments of the "Bank
Contract"[Annex I], to this present contract;
(h) judicial process, with decision in court, which could
impair the accomplishment of the obligations and/or the
assumed and constituted guarantees;
(i) in the case of bankruptcy request or the request of a
preventive forced agreement of the Beneficiary and/or
any of the Intervenients.
(j) If the financial indexes foreseen in Item "U', of the
Sub-item 15.1, above, are not reached.
19) FURTHER OBLIGATIONS FOR THE USE OF THE CREDIT
19.1) Besides the fulfillment of the conditions foreseen in the
"Dispositions" previously mentioned, and in the Follow-up Norms
and Instructions referred in Article 2nd, of the same
Dispositions, the use of the credits is subject, also, to the
performance, by the Beneficiary and/or the Intervenients, of the
following:
(I) FOR THE USE OF THE FIRST INSTALLMENT OF THE CREDIT:
(a) presentation of this Contract and its annexes,
duly registered in the competent Public
Registries;
(b) execution of the contract related to the direct
financing of BNDES, for this present operation;
(c) deliver of the correspondence mentioned in
Sub-item 14.1, Paragraph "i".
(d) Presentation of the Bank Contract [Annex IV],
duly executed and registered;
(e) submission of evidence of hiring an audit
firm/specialized consultancy to attest the
accomplishment of the financial indexes referred
to in Sub-item 15.1, Paragraph "u".
(II) FOR THE USE OF EACH INSTALLMENT OF THE CREDIT:
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a) Non existence of any fact of
financial-economical nature, which at criteria
of the Financial Agents and/or BNDES may impair
the execution of the business now financed,
which could change or make unfeasible its
execution, in the terms foreseen in the project
approved by the BNDES;
(b) submission by the BENEFICIARY of Social Security
Contributions Clearance (Certidao Negativa de
Debito - CND) issued by Instituto Nacional do
Seguro Social - INSS (Social Security Institute)
obtained by the BENEFICIARY through the INTERNET
and checked by BNDES in the site
xxx.xxxx.xxx.xx;
(c) proof that the beneficiary invested in the
project the installment of the credit previously
used, and that the same invested its part, in
accordance with the values established in the
Table Uses and Sources of the Annex I.
(d) submission of declaration that the BENEFICIARY
fulfils the Brazilian legislation applicable to
foreign labor and consultancy contracting
(III) FOR THE USE OF THE RESOURCES FORESEEN FOR THE SETTLEMENT
OF THE BRIDGE LOANS WHICH ARE REFERRED IN SUB-ITEM 1.10;
(a) Statement of proof, by the Financial Agents and
by the BNDES, of the fulfillment by the
Beneficiary of the conditions foreseen in the
Credit Opening Contract mentioned in the
referred Sub-item.
20) RESPONSIBILITY FOR THE CHARGES AND EXPENSES
20.1) It shall be in account of the Beneficiary, all charges,
tributes, contributions and taxes falling upon this Contract and
on the collection and execution of the guarantees related to the
same, which the Financial Agents may be obliged to pay or
support, since duly demonstrated, even in the hypotheses of a
partial or total canceling of the opened credit, inclusive the
expenses related to the registers/ entries at the competent
Notary Public for Registers.
20.2) The Beneficiary is hereby obliged to pay to the Financial
Agents, as reimbursement of expenses, the Income Tax referring
to the Sub-Credit "B", a percentage on the Interests referred in
Sub-Item 9.1, corresponding to the weighed average rate of the
Income Tax due over the charges remitted by BNDES to the
creditors from foreign resources, without relationship to
transfer in specific conditions, in the civil quarter preceding
the months of readjustment of this percentage, to be determined,
readjusted and requested the reimbursement in the same time as
the interests referred in the above mentioned Sub-Item 9.1.
21) GUARANTY CONDITIONS
In order to assure the payment of any of the obligations derived from
this contract, such as the principal of the debt, interests,
commissions, conventional penalty and fines, the following guarantees
are given to the Financial Agents, being considered as a whole,
indivisible in relation to the debt value, agreeing expressly the
Intervenient Guarantor regarding the conditions now agreed upon,
answering jointly with all obligations assumed by the Beneficiary.
21.1) GUARANTEE: The Intervenient Guarantor, duly qualified in the
caption hereto, accepts the present Contract in its capacity of
guarantor and main payer, and hereby expressly waives the
benefits of articles 1.491, 1.499 and 1.503 of the Civil Code,
and 261 and 262 of the Commercial Code, being jointly liable, up
to the final settlement of this Contract, for the full and
faithful fulfillment of the BENEFICIARY'S obligations hereunder
by the Beneficiary, including the principal, interests, monetary
restatement and further compensatory or default charges,
judicial expenses, attorney's fees, and all other amounts which
may be due in accordance with the terms of this Contract. The
responsibility of the Guarantor shall not suffer any impairment,
limitation or restriction derived from any type of agreement,
postponement or decrease in the terms or indulgencies eventually
granted by the Financial Agents to the Beneficiary, and it shall
not be necessary that the Financial Agents make any type of
notice regarding the matter to the Intervenient Guarantor.
21.1.1) Should a partial or total default of the Beneficiary
occur, the Financial Agents shall collect the amounts
due from the Intervenient Guarantor, who shall pay the
same in a
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maximum term of 48 [forty eight] hours, from the
delivery of the notice by the Leader, after the elapsing
of this term, the Intervenient Guarantor authorizes the
Financial Agents to make the debit of the amounts due
[principal] and charges] on its bank account.
21.1.2) In the hypothesis that the Intervenient Guarantor
requests a preventive forced agreement, has its
bankruptcy or insolvency determined, as well as
execution of a merger, split-up, incorporation or
transference of its shareholdings, without previous
notice to the Financial Agents, it shall imply in the
right of the Financial Agents to request the
substitution of the guarantees, which shall be done by
the Beneficiary within 48 [forty eight] hours, from the
date of delivery of the registered letter by mail or
personally, under the penalty of acceleration of the
maturity of the obligations foreseen in this contract.
21.1.3) For all legal purposes, inclusive in the penal sphere,
the Intervenient Guarantor declares that it is duly
empowered to constitute this present guarantee, and that
all obligations commit not only the Intervenient
Guarantor, as its heirs and successors, of any kind, in
accordance with Law.
21.2) PLEDGING OF REVENUES: The Beneficiary and the Intervenient
Guarantor pledge as guarantee, for the benefit of the Financial
Agents, in an irrevocable and unappealable form, until the
settlement of this Contract, inclusive during the grace period,
its revenues derived from the rendering of cellular telephone
services, collected by the Collecting Banks, listed in the Annex
1, through transference of the amounts in Reais, derived from
these services, to the pledged account opened by the Beneficiary
and by the Collateral Guarantors before the Leader, and the
funds deposited in the referred account shall be used by the
Financial Agents in the hypothesis of default of any obligation
assumed by the Beneficiary in this contract, in the case an
accelerated maturity is declared, as well as in the hypothesis
that the determined percentage of Item "t" of Sub-item 15.1, is
not reached.
21.2.1) For the perfect consecution of the guarantee here
contracted, the Beneficiary and the Collateral
Guarantors commits themselves to notify the Collecting
Banks listed in the Annex 1, in the form of the
correspondence as stated in Annex 2, so the same may
transfer every day the totality of the collection, into
the pledged account below specified of the Leader, who
is nominated in this act as Centralizing Bank of these
resources. For these purposes, the Beneficiary shall
sign, in the same day, with the Centralizing Bank, the
Financial Agents and the BNDES, the Bank Contract, as
Annex I, through which the Leader shall remain
responsible for the administration and centralization of
the funds derived from the collection of the cellular
phone bills from the consumers;
21.2.2) In the hypothesis of default of the Beneficiary, the
Leader, in the quality of Mandatary Bank, is hereby
authorized by the Beneficiary to block and to transfer,
totally or partially, to the Financial Agents, in the
proportion of the credits of each one of them, the funds
deposited in the Pledged Account, through Credit Order
Documents - DOC, of any type or nature, Payment orders
or nominative cheques, who shall use the amounts
transferred by the Mandatary Bank, obligatorily for the
amortization or settlement of the quarterly and monthly
amounts of the parcels of the principal plus charges,
during the grace term and amortization, due by force of
this Contract, accrued by the penalties stipulated in
Sub-item 20 and sequence, remaining the Beneficiary
personally responsible for any eventual remaining debtor
balance, should the amounts retained not be sufficient
to settle the totality of the debt; 21.2.3) This present
Guarantee is given to the BNDES and to the Financial
Agents in the proportion of 30% [thirty per cent] and
70% [seventy per cent] respectively.
21.3) PROMISSORY NOTES: 01 [one] Promissory Note issued by the
Beneficiary, pledged to the terms of this present contract, in
an amount corresponding 130% [one hundred and thirty per cent]
of the credit granted by each one of the Financial Agents, with
maturity at sight, and presentation term of up to 01 [one] year
after the maturity of this contract, remaining therefore,
extended the term for presentation determined by Article 34 of
the Uniform Law of Geneva, and Article 21 of Law 2044 of
December 31st, 1908. On the Promissory Note must be placed the
clause with the wording "not to the order".
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21.3.1) The Beneficiary commits to substitute the Promissory
Notes given in guarantee, by another one with an
equivalent amount of 130% [one hundred and thirty per
cent] of the debtor balance determined, every time and
always when the amount of the same does not correspond
to the percentage above determined, in 10 [ten] days
terms from the date of the written request made by the
Leader, under the penalty of an acceleration of the
maturity of this Contract.
22) INDEMNIFICATION PAYMENT AUTHORIZATION
22.1) The Beneficiary in this act, in an irrevocable and unappealable
form, authorizes the payment to the Financial Agents, by the
National Telecommunications Agency - ANATEL, of the
indemnifications due by the same, in the hypothesis of
extinction of its concession, as foreseen in the Concession
Contracts signed between that Regulatory Agency and the
Beneficiary, in an amount sufficient as to settle the debt
derived from this Contract.
22.2) The payment authorization referred in Sub-item 22.1, is given to
the BNDES and to the Financial Agents, in the proportion of 30%
[thirty per cent] and 70% [seventy per cent] respectively.
23) PAYMENT DELAY AND PENALTIES
23.1) Should there be any default or accelerated maturity, the
Beneficiary shall pay interests on late payment of 12% [twelve
per cent] per year, plus the permanence commission, calculated
at the market rate of the payment day, and the same shall not be
lower than the highest charges rate collected during the
duration of this contract;
23.2) The market rate shall the highest rate effectively executed in
the market with juridical entities in credit operations,
excepting credit opening in bank accounts;
23.3) In the case of judicial process, instead of permanence
commission, the Beneficiary authorizes the Financial Agents to
opt for the collection of the charges equivalent to the
percentage of variation of the IGPM [General Market Price
Index], published by the FGV - Getulio Vargas Foundation, or in
its absence the IGP-DI [General Consumer Index] published by the
FIPE - Foundation for Economic Researches of the USP;
23.4) The Beneficiary shall pay also a penalty of 10% [ten per cent]
and the collection expenses, inclusive costs and lawyer's fees;
23.5) In case of default of any of the obligations under the
responsibility of the Beneficiary and/or the Intervenients, or
an accelerated maturity, the Financial Agents may:
23.5.1) use for payment of the debit, the amounts the
Beneficiary may hold with the Financial Agents;
23.5.2) retain values of its ownership.
23.6) The payment to the Financial Agents of the principal shall not
signify settlement of the charges foreseen in this contract.
24) FINAL DISPOSITIONS
24.1) If any changes should occur in the regulating norms of BNDES, so
that the same may affect the matters agreed upon in this
Contract, the Beneficiary will assume all the responsibility for
its accomplishment.
24.2) The eventual tolerance of the Financial Agents, regarding the
rights instituted by this contract, shall not imply in any
change or renouncing of the referred rights, which may be
executed at any moment.
24.3) The Beneficiary obliges itself not to convey or transfer the
rights and obligations derived from this contract or in any for
encumber the goods acquired by force of the project now
financed, without an express authorization of the BNDES and/or
the Financial Agents, under penalty of rescission of this
Contract, which shall provoke the accelerated maturity of all
obligations assumed by the same, making immediately enforceable
the totality of the debt, comprising the principal and the
accessories, without prejudice of all other measures and
penalties which may be applied.
24.4) The Beneficiary declares that in order to contract the object of
this present Contact, it obtained all corporations' approvals
requested by Law, and by its corporation's acts, and that the
signatories have the powers to sign this present Contract
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24.5) Financial Agents are hereby allowed to mention in any
divulgation they may make regarding their activities, the
financial collaboration granted for the performance of this
Contract.
24.6) The Beneficiary and the Intervenient do hereby authorize the
Financial Agents, to transmit and to consult information
regarding them and/or related to this operation to the Credit
Risk Central, maintained by the Banco Central do Brasil, in the
form of the Resolution No. 2724 dated May 31st, 2000.
24.7) The Beneficiary and the Intervenient constitute themselves,
mutually and reciprocally, in an irrevocable and unappealable
form, as attorney-in-fact, until the final payment of the debt
now assumed, with powers to receive summons, notices and
services of process, and also with the "ad judicia" powers for
the venue in general, which may be subrogated to lawyers,
everything related to judicial or extra-judicial procedures
which may be brought against them by the Financial Agents,
derived from this contract, and who may execute all acts which
may be necessary for the good and faithful performance of this
mandate.
24.8) To settle the questions derived from this Contract, the venue of
the Judicature of the Capital of the State of Sao Paulo is
hereby elected, the Party promoting any suit may opt for the
venue of its domicile.
And having agreed upon, the parties hereto sign this present Instrument in 12
(twelve) copies with the same content and for the same effect in the presence of
the undersigned witnesses.
December 14th, 2000
[illegible signature] [illegible signature]
BANCO ITAU S.A.
Financial Agent
[illegible signature] [illegible signature]
BANCO BRADESCO S.A.
Financial Agent
[illegible signature] [illegible signature]
BANCO ALFA DE INVESTIMENTOS S.A.
Financial Agent
(illegible signature) (illegible signature)
================================================================================
TELMA CELULAR S.A.
BENEFICIARY:
(illegible signature) (illegible signature)
================================================================================
TELE NORTE CELULAR PARTICIPACOES S.A.
INTERVENIENT GUARANTOR:
(illegible signature) (illegible signature)
================================================================================
TELPART PARTICIPACOES S.A.
INTERVENIENT
(illegible signature) (illegible signature)
================================================================================
TELEPARA CELULAR S.A.
Collateral Guarantor:
(illegible signature) (illegible signature)
================================================================================
TELAMAZON CELULAR S.A.
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Collateral Guarantor:
(illegible signature) (illegible signature)
================================================================================
TELEAMAPA CELULAR S.A.
Collateral Guarantor:
(illegible signature) (illegible signature)
================================================================================
TELAIMA CELULAR S.A.
Collateral Guarantor:
WITNESSES:
(illegible signature) (illegible signature)
================================================================================
================================================================================
Telemig/ Contract BNDES Telma-Finem
E-207
