Exhibit 4.16
------------
LOAN AGREEMENT
This loan AGREEMENT dated as of October 29, 2001, by and between:
POBT Bank and Trust Limited, a corporation duly organized and validly existing
under the laws of the Commonwealth of the Bahamas, (hereinafter referred to as
the "Lender"),
NEWARK FINANCIAL INC, a corporation duly organized and validly existing under
the laws of the British Virgin Islands, with its registered office located at
Vanterpoor Plaza, 2nd floor, Wickhams Cay I, Road Town, Tortola, BVI,
(hereinafter referred to as the "Borrower"), and
Votorantim Celulose e Papel S.A., a corporation duly organized and validly
existing under the laws of Brazil, with its principal office located at Alameda
Santos, 1.357, 6 (degree) andar (hereinafter referred to as the "Guarantor").
WHEREAS the Borrower proposes to borrow from the Lender, and the Lender proposes
to lend to the Borrower US$ 30,000,000.00 (thirty million dollars), the parties
hereby agree as follows:
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings as
follows:
"Agreement" shall mean this Loan Agreement between the Borrower, the Lender and
the Guarantor;
"Business Day" shall mean any day other than (a) a Saturday or Sunday or (b) a
day on which commercial banks are required or authorized by law or by local
proclamation to close in the city or cities specified herein or if no city is
specified, in New York City, Nassau, and Sao Paulo;
"Payment Day" shall be on February 26, 2002
"Loan" shall mean the meaning indicated in Section 2.1, hereof;
"US$" shall mean the lawful money of the United States of America.
TERMS OF THE LOAN
2.1. Amount: The Lender agrees to lend to the Borrower the sum of
US$30,000,000.00 (thirty million dollars) to be disbursed in one installment on
October 29, 2001 (the "Loan") by means of a wire transfer to the following bank
account:
Bank: Citibank, New York
ABA # 021 0000 89
Account No: 00000000
Account name: Newark Financial INC
2.2. Repayment: The Borrower shall repay the Loan disbursed hereunder in one
lump sum on the Payment Day;
2.3. Interest: This Loan Agreement shall bear interest at a rate of 5,25% per
annum payable on Payment Date.
2.4. Guarantee: the Guarantor hereby unconditionally and irrevocably guarantees
to the beneficiary of this Agreement (the Lender) the due and punctual payment
of all sums from time to time payable by the Borrower to the Lender in
accordance therewith as and when the same become due and payable and accordingly
undertakes to pay to the Lender, in the manner and currency prescribed hereby,
any and every sum or sums which the Borrower is at any time liable to pay to
the Lender in respect of this Agreement and which the Borrower has failed to
pay. The Guarantor hereby unconditionally and irrevocably waives any and all
rights it may have under Articles 1006, 1491, 1499, 1500, 1502 and 1503 of the
Brazilian Civil Code, Articles 261 and 262 of the Brazilian Commercial Code and
Article 595 of the Brazilian Code of Civil Procedure. In the event the Guarantor
is not allowed to remit the amount due by the Borrower to the Lender, the
Guarantor hereby undertakes to effect the payment in Brazil according to the
instructions to be sent by the Lender to the Guarantor in which it will be
indicated the name of the payee in Brazil.
2.5. Payment: Payments due by the Borrower to the Lender, under the terms of
this Agreement shall be made at The Bank of New York, ABA# 021 0000 18, account
No 89 0033 1194 in favor of the Lender, or at any other such place as the
Lender reasonably selects and informs the Borrower timely, in immediately
available U.S. funds. Any payment requested by the Lender to be made outside
the United States (jurisdiction where the Lender maintains its bank account)
shall have its costs and expenses supported by the Lender.
2.6. Default Charges: If the Borrower fails to make any payment in accordance
with the terms set forth herein, the Borrower shall pay in respect of the amount
of such payment due and unpaid, interest at a rate which shall be 8% (eight
percent) per annum above the interest rate set out in Section 2.3. hereof.
2.7. Taxes: All sums payable by the Borrower or the Guarantor hereunder shall
be paid in full and without any deduction or withholdings in respect of any
taxes. If the Borrower is required by law to deduct or withhold any taxes or
other amounts, then the gross amounts payable by the Borrower shall be increased
to such amounts as will, after such deductions or withholdings, be equal to the
actual amounts which would have been received if no such deduction or
withholdings were required.
2.8. Assignment: The parties hereby agree that the Lender may assign/transfer,
entirely or partially, to any third party its rights concerning the present
Agreement. Such assignment/transference may even occur through the issuance of
credit linked notes having as underlying credit the obligations of the borrower
pursuant to this Agreement. Therefore, the borrower hereby declare that it will
pay at the Payment Day the Lender or any assignee/noteholder appointed by the
Lender provided that the terms and conditions of the present Agreement are duly
observed.
REPRESENTATIONS AND WARRANTIES
Borrower
3.1. Existence: The Borrower is a corporation duly organized and validly
existing in good standing under the laws of the British Virgin Islands and has
full power, authority and legal right to incur the indebtedness and obligations
provided for in this Agreement, to execute and deliver this Agreement, and to
perform and observe the terms and conditions of this Agreement.
3.2. Enforceable: This Agreement does constitute a valid, binding and
enforceable obligations of the Borrower in accordance with the respective terms.
3.3. Other Restrictions: No constitutional provision, treaty, convention, law,
ordinance, decree or regulation of the British Virgin Islands, no charter,
by-laws or similar instrument of the Borrower and no provision of any existing
contract, license, franchise, concession or agreement binding on the Borrower
will be contravened by the execution or delivery of this Agreement or the
performance or observance of any of their respective terms.
3.4. Legal Action: The Borrower has taken all necessary legal action to
authorize the execution, delivery and performance of this Agreement.
3.5. Government Permits: All registrations or approvals possible of being
obtained prior to the execution of this Agreement, of any governmental agency,
department or commission necessary for the due execution, delivery and
performance of this Agreement or for the validity or enforceability thereof,
have been obtained and are in full force and effect.
3.6. Legal Proceedings: No legal proceedings are pending before any court or
administrative agency which could have a material adverse effect on the
financial condition, business or operations of the Borrower, other than those
disclosed to the Lender.
3.7. Sovereign Immunity: The Borrower, as the date of this Agreement has no
sovereign immunity from legal proceedings in respect of itself or its property.
3.8. Enforcement: In executing this Agreement, the Borrower is not violating any
of the laws of the British Virgin islands.
3.9. Loan Pari Passu: The Loan and any other obligation of the Borrower
hereunder, from time to time outstanding, shall be the unconditional general
obligation of the Borrower ranking at least pari passu in all respects with all
present and future unsecured obligations of the Borrower.
3.10. No Event of Default: No Event of Default and no default specified in any
other agreement evidencing indebtedness of the Borrower for borrowed money, and
no event which with passage of time or the giving of notice or both, would
become such an Event of Default or default, has occurred or is continuing.
Guarantor
3.11. Existence: The Guarantor is a corporation duly organized and validly
existing in good standing under the laws of Brazil and has full power, authority
and legal right to incur the indebtedness and obligations provided for in this
Agreement, to execute and deliver this Agreement, and to perform and observe the
terms and conditions of this Agreement.
3.12. Enforceable: This Agreement does constitute valid, binding and enforceable
obligations of the Guarantor in accordance with the respective terms.
3.13. Other Restrictions: No constitutional provision, treaty, convention, law,
ordinance, decree or regulation of Brazil, no charter, by-laws or similar
instrument of the Guarantor and no provision of any existing contract, license,
franchise, concession or agreement binding on the Guarantor will be contravened
by the execution or delivery of this Agreement or the performance or observance
of any of their respective terms.
3.14. Legal Action: The Guarantor has taken all necessary legal action to
authorize the execution, delivery and performance of this Agreement, except any
previous authorization from the Brazilian Central Bank.
3.15. Sovereign Immunity: The Guarantor, as the date of this Agreement has no
sovereign immunity from legal proceedings in respect of itself or its property.
3.16. Enforcement: In executing this Agreement, the Guarantor is not violating
any of the laws of the Brazil.
4. COVENANTS
4.1. Until all indebtedness of the Borrower under this Agreement have been
repaid, the Borrower agrees that it will comply with or procure due compliance
with all the terms of and shall do its best efforts to obtain and maintain all
the authorizations, consents, licenses, registrations and approvals of any
governmental agency, department, commission or other governmental body necessary
or appropriate for the due execution and delivery of this Agreement, for
utilization of the Loan, for the performance and observance by the Borrower of
the terms of this Agreement and to render this Agreement legal, valid, binding,
enforceable in accordance with its terms and admissible in evidence.
4.2. Until all indebtedness of the Borrower under this Agreement has been
repaid, the Borrower agrees that the Shareholder composition of the Borrower
shall not be modified without prior written authorization issued by the Lender.
5. CONDITIONS PRECEDENT
Prior to the making of disbursement under this Agreement, the Borrower shall
furnish to the Lender and to the Guarantor the original copy duly executed of
this Agreement.
6. EVENT OF DEFAULT
The occurrence of any of the following events shall be considered as an event of
default:
6.1. Payments: The Borrower shall default in the due and punctual payment of
principal, interest in the manner provided for in this Agreement.
6.2. Performance: The Borrower shall default in the performance or observance of
any covenant or agreement undertaken by it under this Agreement.
6.3. Representations: Any representation or warranty made by the Borrower or by
the Guarantor under this Agreement or pursuant thereto proven at any time to be
incorrect in any material respect.
If any Event of Default shall occur, the Lender may take any or all of the
following actions:
(a) declare immediately due and payable the charges provided in Section 2.6
hereof;
(b) immediately terminate any other rights of the Borrower hereunder; and
exercise any rights or remedies granted under this Agreement and the law;
(c) the Borrower shall pay a Default fee which correspond to 8% (eight percent)
of the Principal Amount disbursed; and
(d) the Borrower shall incur an event of default if it does not notify the
Lender as established in clause 4.2 above;
The Borrower shall indemnify the Lender against all direct reasonable losses,
expenses and liabilities which the Lender may sustain as a result of default of
Borrower.
MISCELLANEOUS
7.1. This Agreement and the rights and obligations hereunder shall be construed
in accordance with and be governed by the laws of the State of New York, United
States of America. Any legal action or proceeding arising out or relating to
this Agreement may be instituted in the United States in the courts of the State
of New York or in any Federal court located in the State of New York.
7.2. No failure or delay on the part of the Lender to exercise any right, power
or privilege under this Agreement under applicable law shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any further exercise thereof.
7.3. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties and their respective successors and assigns, provided
however that the Borrower may not assign or transfer its interest hereunder
without the prior written consent of the Lender.
7.4. The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions thereof.
7.5. The Lender shall not assign or transfer, either in whole or in part, the
credits, benefits, rights and obligations arising from this Loan Agreement
without prior written notice to the Borrower.
8. NOTICES
All notices, requests, demands or other communications to the parties shall be
deemed to have been duly given or made when received in writing by or when sent
by facsimile or e-mail at the following address or such other address as any
party hereafter may specify to the other in writing:
To the Borrower:
Newark Financial INC.
Xxxxxxxxxx Plaza, 2nd floor, Wickhams Cay I
Road Town, Tortola
British Virgin Islands
Copy to:
VCP Exportadora e Participacoes S.A.
Alameda Xxxxxx, 1357 / 7 (degree) andar
Sao Paulo, SP
Attn.: Mr. Xxxx Calfat
To the Lender:
POBT Bank and Trust Limited
Fort Nassau Centre, Marlborough Street
Nassau, Bahamas
Copy to:
Pactual Capital Corporation
000 Xxxxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, XX
Attn.: Xxxxxxxxx xx Xxxxxx
SEVERABILITY OF PROVISIONS
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
IN WITNESS WHEREOF the parties have caused this Agreement to be duly signed in
the presence of the two witnesses identified below.
/s/
----------------------------------
POBT BANK AND TRUST LIMITED
/s/
----------------------------------
NEWARK FINANCIAL INC.
/s/
----------------------------------
Votorantim Celulose e Papel S.A.
WITNESSES:
/s/
----------------------------------
/s/
----------------------------------
Sao Paulo, 29 de outubro de 2001
A
POBT Bank and Trust Limited
Fort Nassau Centre, Marlborough Street
Nassau, Bahamas
CARTA DE FIANCA
Votorantim Celulose e Papel S.A., empresa constituida sob as xxxx do Brasil,
situada na Alameda Santos, 1357, 7(degree) andar, Sao Paulo, SP, Brasil, se
obriga perante o POBT Bank and Trust Limited, empresa constiuida sob as xxxx de
Bahamas (doravante denominada CREDORA), coma FIADORA da NEWARK FINANCIAL INC.,
empresa constituida sob as xxxx de British Virgin Islands, situada Xxxxxxxxxx
Plaza, 2nd floor, Wickhams Cay I, Road Town, Tortola, (doravante denominada
AFIANCADA), para garantir, de forma incondicional, as obrigacoes da AFIANCADA
relativas ao Loan Agreement (doravante denominado LOAN), celebrado nesta data,
entre a CREDORA e a AFIANCADA, por meio do qual a CREDORA emprestou a AFIANCADA
a importancia de US$ 30,000,000.00 (trinta milhoes de dolares), a taxa xx xxxxx
de 5,25%, com vencimento em 26 de fevereiro de 2002, conforme copia do
instrumento contratual que, assinado pela FIADORA, integra a presente para todos
os fins e efeitos de direito. As obrigacoes da AFIANCADA estabelecidas no LOAN
sao, desde ja, reconhecidas pela FIADORA como liquidas, certas e exigiveis, nos
termos e para os fins dos artigos 1.481 e 1.486 do Codigo Civil Brasileiro.
2. A presente fianca e prestada pela FIADORA em carater irrevogavel e
irretratavel, com expressa renuncia aos beneficios de que tratam os artigos
1.006, 1.491, 1.499, 1.500 1.502 e 1.503 do Codigo Civil Brasileiro, 595 do
Codigo de Processo Civil e 261 e 262 do Codigo Comercial e sera valida enquanto
perdurarem as obrigacoes do AFIANCADO acima especificadas.
3. Ate que seja extinta a presente FIANCA, mediante liberacao, por escrito, pela
CREDORA, a FIADORA obriga-se a efetuar os pagamentos das importancias que forem
exigidas, a qualquer tempo, pela CREDORA, em relacao ao LOAN, ate o terceiro dia
util imediato ao do recebimento do aviso competente, indicando os motivos pelo
qual a FIANCA esta sendo acionada, por escrito.
4. Para fins de conversao dos valores em Dolares para Reais, xxxxxx ser
utilizada a taxa PTAX 800, opcao 5, cotacao de venda, divulgada pelo Banco
Central do Brasil, relativa ao dia imediatamente anterior ao da divulgacao.
5. Na hipotese de a FIADORA ter que honrar esta fianca, a mesma compromete-se a
pagar a CREDORA, o mesmo valor e na mesma forma como os recursos seriam
disponibilizados a esta ultima conforme estabelecido no LOAN. Na hipotese de
incidencia sobre os valores a serem pagos, pela FIADORA a CREDORA, de quaisquer
taxas, tributos ou contribuicoes ou onus de qualquer natureza, a FIADORA
compromete-se a pagar a CREDORA o valor acrescido xx xxxxx importancia que,
deduzidas tais eventuais incidencias, corresponda ao valor liquido que
eventualmente vier a ser devido a CREDORA.
6. Na impossibilidade de pagamento de importancias que sejam xxxxxxx xxxx
FIADORA a CREDORA na forma do estabelecido no item 5 acima, a FIADORA
compromete-se a pagar a quem e na forma que a CREDORA vier a indicar no Brasil.
7. A presente fianca sera considerada extinta, de pleno direito, apos o
pagamento, por parte da AFIANCADA, de todas as obrigacoes advindas do Loan.
8. As comunicacoes a serem encaminhadas a FIADORA deverao ser protocoladas no
endereco Alameda Santos, 1357, 7(degree) andar, Sao Paulo, SP.
9. Fica eleito o Foro da Comarca de Sao Paulo, Capital, como exclusivamente
competente para dirimir quaisquer duvidas ou questoes controversas oriundas
deste instrumento de FIANCA.
/s/
------------------------------------
Votorantim Celulose e Papel S.A.
Testemunhas:
------------------------------------ ------------------------------------
PROMISSORY NOTE
US$30,000,000.00 Date of Issuance: October 29, 2001
Maturity Date: February 26, 2002
FOR VALUE RECEIVED, Newark Financial INC., a corporation duly organized and
validly existing under the laws of The British Virgin Islands hereby
unconditionally promises to pay POBT Bank and Trust Limited, US$30,000,000.00
(thirty million dollars), plus interest in accordance with the terms set forth
in the Loan Agreement ("Agreement") by and between Newark Financial INC and POBT
Bank and Trust Limited, dated as of October 29, 2001 in lawful money of the
United States of America and immediately available funds to account No. 89 0033
1194, XXX# 000 0000 18, at The Bank of New York, New York, for further credit of
POBT Bank and Trust Limited.
This promissory note is issued in connection with the Agreement, which, among
other things, contains provisions for the acceleration of the payment of
principal and interest hereof upon the occurrence of certain stated events
therein. All defined terms used herein and not otherwise herein defined, shall
have the same meaning as of defined in such Agreement.
This promissory note shall be governed by and construed in accordance with the
laws of the State of New York, United States of America. All the obligations to
be performed under this promissory note shall be executed in the Federative
Republic of Brazil.
October 29, 2001
NEWARK FINANCIAL INC.
/s/
---------------------------------------
By:
Title:
PROMISSORY NOTE
US$30,000,000.00 Date of Issuance: October 29, 2001
Maturity Date: February 26, 2002
FOR VALUE RECEIVED, Newark Financial INC., a corporation duly organized and
validly existing under the laws of The British Virgin Islands hereby
unconditionally promises to pay POBT Bank and Trust Limited, US$30,000,000.00
(thirty million dollars), plus interest in accordance with the terms set forth
in the Loan Agreement ("Agreement") by and between Newark Financial INC and
POBT Bank and Trust Limited, dated as of October 29, 2001 in lawful money of
the United States of America and immediately available funds to account
No. 89 0033 1194, XXX# 000 0000 18, at The Bank of New York, New York, for
further credit of POBT Bank and Trust Limited.
This promissory note is issued in connection with the Agreement, which, among
other things, contains provisions for the acceleration of the payment of
principal and interest hereof upon the occurrence of certain stated events
therein. All defined terms used herein and not otherwise herein defined, shall
have the same meaning as of defined in such Agreement.
This promissory note shall be governed by and construed in accordance with the
laws of the State of New York, United States of America. All the obligations to
be performed under this promissory note shall be executed in the Federative
Republic of Brazil.
October 29, 2001
NEWARK FINANCIAL INC.
/s/
--------------------------------------
By:
Title:
