EXPORT PREPAYMENT AGREEMENT
This
EXPORT
PREPAYMENT AGREEMENT
(the
“Prepayment Agreement”) is made as of June 22, 2007 by and among:
VOTORANTIM
CELULOSE E PAPEL S.A. - VCP,
a
corporation organised and existing under the laws of t the Federative Republic
of Brazil, with its head office located at 0000, Xxxxxxx Xxxxxx, 0xx
xxxxx,
Xxx Xxxxx, Xxxxxx, ("VCP"
or
the
“Borrower” or the “Exporter”);
VCP
OVERSEAS HOLDING
LTD. Budapeste, ZUG Branch,
a
branch of VCP Overseas Holding Limited Liability Company (a company organised
and existing under the laws of Hungary), licensed in the commercial register
of
the canton of ZUG, Switzerland with its principal offices located at ZUG,
Switzerland (the “Paying Agent”);
And
BANCO
BILBAO VIZCAYA ARGENTARIA, S.A.,
a bank
duly o[rganized] and existing under the laws of the Kingdom of Spain, acting
through its New York branch which is located at 1345 Avenue of the Xxxxxxxx,
00xx
xxxxx,
Xxx Xxxx, XX 00000, in the United States of America (the “Bank”).
WITNESSETH
WHEREAS,
the Exporter and/or the Paying Agent, as the case may be, has entered or
will
enter into one or more Export Agreements with the Importers, pursuant to
which
the Exporter will export Goods from Brazil to the Importers (all capitalised
terms used herein have the meanings assigned to them below);
WHEREAS,
the Exporter’s and/or Paying Agent’s, as the case may be, sales of Goods under
the Export Agreements will be made through several shipments (the “Covered
Shipments”) with the aggregate Purchase Price for such Covered Shipments being
at least US$ 100,000,000 (One hundred million United States Dollars);
WHEREAS,
the Exporter and/or the Paying Agent, as the case may be, shall instruct
each of
the Importers to make payment due in respect of the Covered Shipments made
to
such Importer by forwarding the Purchase Price for the Goods so shipped to
the
Collection Account which shall be an account held in the name of the Bank;
WHEREAS,
the Paying Agent, or any substitute or replacement thereof, will act as paying
agent for the Exporter and will comply with the payment instructions given
by
the Exporter to
fulfil
the
Exporter’s obligation to make payments to the Bank through the Collection
Account as set forth herein;
WHEREAS,
the Bank has agreed to make an anticipated payment of future exports to the
Exporter in accordance with Central Bank regulations including without
limitation Resolution No. 1834 dated June 26, 1991 of the National Monetary
Council and Circular No. 3027 dated February 2, 2001 of the Central Bank,
with
respect to the payments to be due from the Importers to the Exporter as provided
above; and
WHEREAS,
the Exporter has agreed to assign to
the
Bank 15
days
prior to each Instalment (a) its rights under the Export Agreements
and (b)
export
receivables with a value in aggregate not less than 1.10 times the amount
of
such Instalment and any interest due thereon.
NOW,
THEREFORE, In consideration of the undertakings contained herein, the parties
agree as follows:
Section
1. Definitions
The
following terms shall have the meanings ascribed hereunder (all the terms
defined in the singular to have the same meaning when used in the plural
and
vice versa):
1
“Advance”
shall
mean the amount made available
to the
Exporter by the Bank under this Prepayment Agreement for the anticipated
payment
of certain future exports.
“Advance
Amount”
shall
mean any amount disbursed under this Prepayment Agreement as designated in
each
Promissory Note for the Advance, provided the aggregate amount of all
disbursements shall not exceed US$100,000,000.00 (One Hundred Million United
States Dollars).
“Advance
Document”
shall
mean any
of
this
Prepayment Agreement, the Promissory Note, and the Disbursement
Request.
“Affiliate”
shall
mean any Person directly or indirectly controlling, controlled by, or under
common control with, any other Person. For this purpose, “control” of any Person
means ownership of 10% or more of the Voting Stock
of the
Person or the ability, directly or indirectly, to direct or cause the direction
of the management and policies of such Person, whether by contract or
otherwise;
provided that Aracruz Celulose S.A.
shall
not be considered an Affiliate of the Obligors unless the Votorantim Group
(in
the aggregate) possesses, directly or indirectly, the power to vote 30% or
more
of the Voting Stock of Aracruz Celulose S.A. or to direct or cause the direction
of the management and policies of Aracruz Celulose S.A., whether through
ownership of the Voting Stock, by contract or otherwise.
“Applicable
Maturity Date”
shall
mean, in relation to each disbursement, the Final Maturity Date unless the
Bank
exercises its rights in Section 5(f) hereof, in which case it shall mean
the
Early Maturity Date.
“Assignment”
shall
mean the assignment made by the Exporter in Section 19 of this Prepayment
Agreement.
“Availability
Period”
shall
mean the period commencing on the date hereof and ending on the
28th
day of
June,
2007 during which the Bank agrees to make Advances in accordance with Section
2
of this Prepayment Agreement.
“Banking
Day”
shall
mean any day (other than a Saturday or a Sunday) on which commercial banks
are
open for business in Xxx Xxxx Xxxx, Xxxxxx
Xxxxxx xx Xxxxxxx,
Xxxxxx,
Xxxxxxx and São Paulo, Brazil.
“Brazil”
shall
mean the Federative Republic of Brazil.
“Brazilian
GAAP”
shall
mean the accounting principles prescribed by Brazilian corporate
law.
“Breakage
Costs”
shall
mean the costs referred to in Section 13(a)
of
this Prepayment Agreement.
“Business”
shall
mean (i)
the
business of producing
pulp and paper and/or other related products and (ii) other lines of business
that are related or incidental to the business described under clause (i)
of
this definition.
“Capital
Lease Obligations”
means,
as to a Surviving Entity, the obligations of such Person to pay rent or other
amounts under a lease of (or other agreement conveying the right to use)
real
and/or personal property, which obligations are required to be classified
and
accounted for as a capital lease on a balance sheet of such Person under
GAAP
and, for purposes
of this
Prepayment Agreement,
the
amount of such obligations shall be the capitalised amount thereof determined
in
accordance with GAAP.
“Capital
Stock”
means
any and all shares, interests, participations, quotas or other equivalents
(however designated) of capital stock of a corporation, any and all ownership
interests in a Person other than a corporation and any and all warrants or
options to purchase any of the foregoing.
“Cash
Equivalents”
means
any of the following: (a) readily marketable direct obligations of the
government of the United States of America or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and credit
of the government of the United States, (b) insured certificates of deposit
of
or time deposits with the Bank or a member of the Federal Reserve System,
which
issues (or the parent of which issues) commercial paper rated as described
in
clause (c), is organised under the laws of the United States of America or
any State (or the District of Columbia) thereof and has combined capital
and
surplus of at least $1,000,000,000, (c) commercial paper in an aggregate
amount
of no more than $10,000,000 per issuer outstanding at any time, issued by
any
corporation organised under the laws of any State (or the District of Columbia)
of the United States of America and rated at least “Prime-1” (or the then
equivalent grade) by Xxxxx’x and “A-1” (or the then equivalent grade) by
S&P, or (d) other investments considered as cash equivalents under Brazilian
GAAP.
2
“Central
Bank”
shall
mean Banco Central do Brasil.
“Closing
Fee”
shall
have the meaning set forth in Section 3(c) hereof.
“Collection
Account”
shall
mean that account named “VCP” at Banco Bilbao Vizcaya Argentaria, S.A. New York
referred to in Section 5(b), into which the Exporter or the Paying Agent
will
irrevocably instruct each Importer to deposit the Purchase Price for Covered
Shipments exported by the Exporter to such Importer as provided
herein.
“Debt”
means,
with respect to any Person (determined without duplication): (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than
trade
payables (whether payable to Affiliates or other Persons) incurred in the
ordinary course of such Person’s business, but only if and for so long as such
trade payables remain payable on customary trade terms, and accrued expenses
incurred in the ordinary course of business), (c) all obligations of such
Person
evidenced by notes, bonds, debentures or other similar documents, (d) all
obligations, contingent or otherwise, of such Person in connection with any
securitization of any products, receivables or other Property, (e) all
obligations of such Person created or arising under any conditional sale
or
other title retention agreement with respect to Property acquired by such
Person
(even though the rights and remedies of the seller or the lender under such
agreement in the event of default are limited to repossession or sale of
such
Property), (f) all Capital Lease Obligations and similar obligations under
“synthetic leases” of such Person, (g) all obligations, contingent or otherwise,
of such Person in respect of acceptances, letters of credit, financial guaranty
insurance policies or similar extensions of credit (excluding trade payables
to
the extent excluded from clause (b)), (h) all obligations of such Person to
redeem, retire, defease or otherwise make any payment in respect of any Capital
Stock of such Person, (i) all net obligations of such Person in respect of
any
interest rate protection agreement or any currency swap, cap or collar agreement
or similar arrangement entered into by such Person providing for the transfer
or
mitigation of interest rate or currency risks either generally or under specific
contingencies (but without regard to any notional principal amount relating
thereto), (j) all Debt of other Persons referred to in clauses (a) through
(i) or clause (k) that is Guaranteed by such Person and (k) all Debt
referred to in clauses (a) through (j) secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be secured
by)
any Lien on Property of such Person even though such Person has not assumed
or
become liable for the payment of such Debt.
“Disbursement
Date”
shall
mean the date of disbursement of the Advance in accordance with the applicable
Disbursement Request.
“Disbursement
Request”
shall
mean each Disbursement Request substantially in the form of Exhibit B
hereto.
“EBITDA”
means,
during any period, the total earnings of a Surviving Entity (on a consolidated
basis) before income taxes, Interest Expense, depreciation and amortisation
during such period, eliminating from the calculation of such earnings: (a)
any
net income or gain (or net loss), net of any tax effect, during such period
from
any extraordinary items, (b) any interest income during such period, (c)
gains
or losses during such period on the sale of Property (other than the sale
of
inventory in the ordinary course of business), (d) any other extraordinary
non-cash items deducted from or included in the calculation of pre-tax net
income for such period (other than items that will require cash payments
and for
which an accrual or reserve has been, or is required by GAAP to be, made),
(e)
the EBITDA for such period of any Subsidiaries or other Property disposed
of or
discontinued during such period and (f) any net income or gain (or net loss)
on
any foreign exchange transactions or net monetary positions.
3
“Export
Agreements”
shall
mean the agreements between the Exporter and the Importers pursuant to which
the
Exporter will export Goods from Brazil to the Importers.
“Event
of Default”
shall
have the meaning set forth in Section 12 hereof.
“Final
Maturity Date”
shall
mean, subject
to Section 5(e), in
relation to each disbursement, the day which is 96 (ninety six) months after
the
Disbursement Date.
“Final
Disbursement Date”
shall
mean the last day of the Availability Period where the Borrower is entitled
to
make drawdowns against the Commitment.
“First
Instalment
Date”
shall
mean the Banking
Day
that is
48 (forty eight) months after
the
Final Disbursement Date.
“Fiscal
Semester”
means
each period from and including January 1 through and including June 30 of
each
year and from and including July 1 through and including December 31 of each
year.
“GAAP”
means,
with respect to any Person, the generally accepted accounting principles
(as in
effect from time to time) applicable to it in its home
jurisdiction.
“Goods”
shall
mean pulp
and
paper
and/or
other related products.
“Governmental
Authority”
shall
mean any nation or government, any state or other political subdivision thereof,
any central bank (or similar monetary or regulatory authority) and any entity
exercising executive, legislative, judicial, regulatory or administrative
authority of or pertaining to government (whether such authority is recognised
as a de jure
government or is a de facto
government).
“Instalment
Dates” shall
mean the Banking Days that are referred to the Schedule #2
“Importers”
shall
mean,
jointly or severally:
|
(i)
|
Certain
OECD-based commercial counterparts acceptable to the Bank to be
determined
prior to the date hereof, (collectively the "Initial Importers")
as
evidenced in Schedule I hereto;
|
|
(ii)
|
At
any time after the date hereof, certain other importers approved
by the
Bank,
|
|
(iii)
|
Commercial
counterparts whose obligations to the Exporter or the Paying Agent
as the
case may be, are insured by certain policies or guaranteed by letters
of
credit issued by financial institutions acceptable to the Bank
and rated
at least A by Standard & Poors' or A2 by Xxxxx'x, with exceptions to
be agreed with the Bank;
|
|
(iv)
|
Commercial
counterparts located in any country and whose dealings with which
are not
generally prohibited by United States law or by the United Nations,
who
enter into sales agreements with the Exporter or the Paying Agent
as the
case may be, which call for payment in full to a US Dollar account
domiciled in the United States of America on a pre-shipment
basis.
|
“Instalments” shall
have the meaning set forth in Section 5(a).
“Interest
Expense”
means,
for any period, interest (or similar) expense on the Debt of a Surviving
Entity
(on a consolidated basis), including (without duplication): (a) fees (including
commitment fees and insurance premiums), (b) net payments under any interest
rate protection agreement or other hedging agreement, (c) the interest portion
of any deferred payment obligations, (d) all fees and charges owed with respect
to letters of credit or performance or other bonds, (e) all accrued or
capitalised interest, (f) any amortisation of debt discount and (g) all but
the
principal component of payments relating to Capital Lease
Obligations.
“Interest
Payment Date” shall
mean the last day of each Interest Period according to Schedule 1
4
Schedule
1
|
Interest
Period
|
Maturity
Date
|
Outstanding
Days
|
||
|
1
|
12/26/07
|
183
|
||
|
2
|
06/25/08
|
183
|
||
|
3
|
12/26/08
|
183
|
||
|
4
|
06/25/09
|
182
|
||
|
5
|
12/28/09
|
183
|
||
|
6
|
06/25/10
|
182
|
||
|
7
|
12/27/10
|
183
|
||
|
8
|
06/27/11
|
182
|
||
|
9
|
12/26/11
|
183
|
||
|
10
|
06/25/12
|
183
|
||
|
11
|
12/26/12
|
183
|
||
|
12
|
06/25/13
|
182
|
||
|
13
|
12/26/13
|
183
|
||
|
14
|
06/25/14
|
182
|
||
|
15
|
12/26/14
|
183
|
||
|
16
|
06/25/15
|
182
|
||
|
Final
Maturity Date
|
“Interest
Period”
shall
mean in
relation
to each Advance, the
time
period commencing on and including the date of which the first drawdown has
been
made and
ending on but excluding the
date
that is
6 months after such date according to Schedule 1, provided
that the final day of any such Interest Period shall be the Final Maturity
Date.
“Interest
Rate”
for
an
Interest Period shall mean LIBOR plus the Margin.
“LIBOR”
shall
mean, for any Interest Period, an interest rate per annum determined on the
basis of the London interbank offered rate for deposits in Dollars for a
period
of time comparable to the relevant Interest
Period,
shown
on the display page designated British Bankers Association Interest Settlement
Rates, “LIBOR 01” Page, on the Reuters screen or such other page as may replace
that page in that service, at approximately 11:00 a.m., London time, 2 (two)
Banking Days prior to the first day of such Interest Period. In the event
that
such rate does not appear on such LIBOR 01 Reuters screen page, or such other
page as may replace that page in that service, then LIBOR shall be the
arithmetic mean (expressed as an annual rate and rounded upwards, if necessary,
to the nearest 1/16 of 1%) of the rates quoted at approximately 11:00 a.m.
London time by 3 (three) leading banks, chosen by the Bank and agreed by
the
parties
hereto
as the rate at which deposits in Dollars are offered to such Banks by prime
banks,
in the
London interbank market
for a
period of time comparable to the relevant Interest Period,
at
approximately 11:00 a.m.
2 (two)
Banking Days prior to the first day of such Interest Period. If the Exporter
does not agree with the LIBOR quoted by the Bank, the Bank shall have no
obligation to make the disbursement related to the Advance or if the Advance
has
already been made, the rate will be reasonably determined by the
Bank.
“Lien”
means
any mortgage, lien, pledge, usufruct, fiduciary transfer (alienação
fiduciária),
charge, encumbrance or other security interest or any preferential arrangement
(including a securitization) that has the practical effect of creating a
security interest.
“Margin”
shall
mean 0.38% p.a. (percent per annum).
“Material
Adverse Effect”
shall
mean a material adverse effect on the business, operations, property, or
financial condition of the Exporter
and its direct or indirect subsidiaries (taken as a whole)
which
will, in the opinion of the Bank, as
justified in writing, impair
the ability of the Exporter to perform its obligations under any of the Advance
Documents; provided that there should be no Material Adverse Effect in the
event
the Bank receives a remedy,
that it considers satisfactory, from the Exporter and or the Paying Agent
upon
demand.
“Net
Debt”
means,
as of the date of the consummation of any merger, consolidation, sale, transfer,
lease or other disposition pursuant to Section 11(a), a Surviving Entity's
Total
Debt as of such day minus the sum of: (a) the aggregate amount of cash on
its
consolidated balance sheet as of such day plus (b) the sum of, for each
marketable security (including Cash Equivalents) on such Surviving Entity's
consolidated balance sheet as of such day, the lower of: (i) the face value
and
(ii) the market value of such marketable security as of such day. For the
purpose of clarification, the calculation of Net Debt (and all components
thereof) shall be made using Brazilian GAAP.
5
“Net
Debt to EBITDA Ratio”
means,
as of the date of the consummation of any merger, consolidation, sale, transfer,
lease or other disposition pursuant to Section 11(a), the ratio (expressed
as a
decimal) of a Surviving Entity's: (a) Net Debt as of such date to (b) EBITDA
for
the two most recent Fiscal Semesters preceding such date. For the purpose
of
clarification, the calculation of Net Debt to EBITDA Ratio (and all components
thereof) shall be made using Brazilian GAAP.
“Obligors”
shall
mean either of the Borrower, the Paying Agent and the Importers.
“OECD
Country”
means,
at any time, any nation that is a member of the Organisation for Economic
Co-operation and Development at such time.
“Person”
shall
mean any individual, corporation, partnership, trust, unincorporated
organisation, joint stock company or other legal entity or organisation and
any
government or agency or political subdivision thereof.
“Promissory
Note”
shall
mean each promissory note substantially in the form of Exhibit A hereto duly
executed and delivered by an authorised signatory of the Exporter.
“Property”
of
any
Person means any property, rights or revenues, or interest therein, of such
Person.
“Purchase
Price”
shall
mean in relation to each Covered Shipment the purchase price to be paid therefor
by the relevant Importer.
“Receivable”
means
each account or payment intangible or similar obligation arising under any
Export Agreement.
“Relevant
Person”
shall
mean any Affiliate, subsidiary or group company of the Borrower.
“Responsible
Officer”
of
a
Person shall mean any Executive Officer of that Person.
“Shipping
Documents”
shall
mean in relation to each Covered Shipment, originals or copies of (a) the
“despacho
aduaneiro”
(customs receipt) related thereto, (b) the xxxx of lading or other shipping
document evidencing such shipment, and (c) any draft or other payment document
presented to the relevant Importer.
“Subsidiary”
means
with respect to any Person, any corporation or other entity more than 50%
of the
Voting Stock of which is owned or controlled directly or indirectly, by such
Person and/or by any Subsidiary of such Person.
“Surviving
Entity”
means
any surviving Person as described in Section 11(a)(i)(A)(1) or Person to
whom
substantially all of the assets of the Exporter, as the case may be, shall
have
been transferred as described in Section 11(a)(i)(A)(2), in each case, that
is
not VCP, the Exporter or a Subsidiary thereof.
“Total
Debt”
means,
as of the date of the consummation of any merger, consolidation, sale, transfer,
lease or other disposition pursuant to Section 11(a), the aggregate outstanding
principal amount of Debt of a Surviving Entity (on a consolidated basis)
as of
such day.
“Undertaking”
means
all of the Exporter’s present and future, rights and remedies under the Export
Agreement together with all present and future rights under any security,
guarantee or other form of credit support
created
in its favour in respect of an Importer’s obligations under the
Export
Agreements
(collectively, the “Undertakings”).
“US
Dollars”,
“Dollars”
or
“US$”
shall
mean the lawful currency of the United States of America.
“Votorantim
Group”
means
the group of related companies commonly known as the “Votorantim Group”
comprised of Hejoassu Administração Ltda. and its Subsidiaries.
6
“Voting
Stock”
of
a
Person means Capital Stock in such Person having power to vote for the election
of directors or similar officials of such Person or otherwise voting with
respect to actions of such Person (other than such Capital Stock having such
power only by reason of the happening of a contingency).
Section
2. The
Commitment
(a) Subject
to the terms and conditions set forth in this Prepayment Agreement, the Bank
hereby agrees to make several Advances during the Availability Period as
an
anticipated payment of certain future exports in accordance with Central
Bank
regulations.
(b) Each
Advance Amount shall be evidenced by a single Promissory Note dated the
applicable Disbursement Date and duly completed and executed by the Exporter.
Section
3. Making
of the Advance; Use of Proceeds
Subject
to the satisfaction of the conditions set forth in Section 8 herein, the
Bank
shall make any
Advance
provided that (i) the Bank shall have received from the Exporter a Disbursement
Request at least three (3) Banking Days, and not later than 11:00 a.m. (São
Paulo time), prior to the applicable Disbursement Date of the Advance and
(ii)
the Bank shall send to the Exporter its acknowledgement and agreement to
the
Disbursement Request on the same date.
(a) The
Exporter
or any
of its affiliates
shall
use the proceeds of the Advance for capital expenditures, investments and
its
general working capital requirements thereof.
(b) The
Exporter agrees to pay to the Bank a Closing Fee of 0.25% flat (Zero point
twenty five percent) on the Advance Amount the earliest of the date hereof
or on
the 30th
day of
June, 2007.
(c) The
Exporter shall treat the proceeds of the Advance as a prepayment of future
exports of the Goods to the Importers, all in accordance with and pursuant
to
the terms and conditions of current Brazilian laws and regulations applicable
to
export prepayment operations.
Section
4. Interest
(a) The
Exporter shall pay interest on the unpaid Advance Amount
on
each
Interest Payment Date during the relevant Interest Periods at the Interest
Rate
for the Advance, from the Disbursement Date until the Applicable Maturity
Date.
Such payment shall be made, at Exporter’s option, except as provided in
paragraph (d) below, either (i) directly by the Exporter to the Bank’s account
as listed herein
in
Section 5(b)
or (ii)
if so determined by the Exporter as notified in writing to the Bank, through
the
Paying Agent. The Paying Agent hereby agrees to make such payment of interest
then due in accordance with the terms hereof if so instructed by the Exporter.
(b) The
Advance Amount, any interest thereon (to the extent permitted by law), and
any
other amount due and payable under this Prepayment Agreement that is past
due
(whether at the Applicable Maturity Date, by acceleration or otherwise) shall
bear interest from the date such amount is due until such amount is paid
in full
at the per annum rate that is the then applicable Interest Rate plus 1% (one
percent).
(c) Interest
shall be calculated on the basis of a year of 360 days for the actual number
of
days elapsed
(including the first day, but excluding the last day).
Accrued
interest shall be due and payable in arrears upon any payment of the Advance
and
on each applicable Interest Payment Date. However, interest accruing according
to paragraph (b) shall be due and payable from time to time on demand of
the
Bank.
7
(d) In
the
event that the Exporter (or the Paying Agent, as provided in paragraph (a)
above) is unable for any reason, including without limitation, because of
an
action or inaction by any Governmental Authority of Brazil, to pay interest
as
provided hereunder, the Exporter shall make additional Covered Shipments
to
Importers at such times and in such amounts as permitted by the relevant
Governmental Authority so that the aggregate Purchase Prices paid for such
Covered Shipments by the Importers and deposited in the Collection Account
are
sufficient to pay to the Bank the amount of interest due hereunder as and
when
due. In such case, the Paying Agent, on behalf of the Exporter, shall make
such
payments of interest to the Bank using funds available in the Collection
Account.
Section
5. Repayments;
Prepayments
(a) On
the
last day of the Availability Period, the outstanding amount accrued for each
and
all of the Advances shall be due and payable in 9 (nine) semi-annual instalments
(each, an “Instalment”) beginning on the First
Instalment Date and ending on the Applicable Maturity Date, according to
the
following Schedule 2.
Schedule
2
|
Instalment
|
Date
|
Outstanding Balance
|
Outstanding Days
|
|||
|
1
|
06/27/00
|
000.000.000,00
|
182
|
|||
|
2
|
12/26/11
|
88.888.888,89
|
183
|
|||
|
3
|
06/25/12
|
77.777.777,77
|
183
|
|||
|
4
|
12/26/00
|
00.000.000,66
|
183
|
|||
|
5
|
06/25/13
|
55.555.555,55
|
182
|
|||
|
6
|
12/26/13
|
44.444.444,44
|
183
|
|||
|
7
|
06/25/14
|
33.333.333,33
|
182
|
|||
|
8
|
12/26/00
|
00.000.000,22
|
183
|
|||
|
9
|
06/25/00
|
00.000.000,11
|
182
|
|||
|
Total
|
Notwithstanding
the foregoing, any monies received by the Bank shall be applied by the Bank
in
the following order: (a) Breakage Costs (if any); (b) interest due
and
unpaid;
(c) to
reduce the amount of principal due and
unpaid on
the
next Instalment; and (d) to reduce the amount of principal due
and
unpaid
on
subsequent Instalments.
(b) The
Exporter shall itself, or shall cause the Paying Agent (for the benefit and
on
behalf of the Exporter) make all payment due hereunder in US Dollars, in
same
day funds, on the dates such payments are due, without set-off, counterclaim
or
deduction, directly to the Bank at its internal account number 30444, via
Federal Reserve Bank, ABA Number 000000000, International Trade and Lending
Administration with the (Swift Id BBVAUS33), in favour of Banco Bilbao Vizcaya
Argentaria, New York Branch under reference VCP.
(c) Repayment
of the Advance shall be made by payment of funds to the Collection Account.
To
that end, the Exporter
or the
Paying Agent
agrees
to (i) instruct each Importer to direct all payments of the Purchase Price
of
the Covered Shipments thereto in connection to the Export Agreements to the
Collection Account, but
only
to the extent that such Purchase Price is sufficient to cover the unpaid
Advance
Amount, (ii)
upon
request, but in any case not before 10 (ten) days after the relevant repayment
date, provide the Bank with originals or copies of all Shipping Documents
related to such Covered Shipments.
The
Bank
shall apply all funds held in the Collection Account towards repayment of
the
Exporter’s indebtedness hereunder.
(d) The
Exporter and the Paying Agent, on behalf of the Exporter, shall make available,
when and as due, funds in the Collection Account sufficient to satisfy the
payment obligations of the Exporter hereunder and under the Promissory
Note
on
the due dates thereof, notwithstanding any other obligations which the Exporter
or the Paying Agent may have to any other Person, repayment of which is intended
to be
made
from
funds in such Collection Account.
(e) If
the
due date of any payment under this Prepayment Agreement or under the Promissory
Note would fall on a day which is not a Banking Day, such date shall be extended
to the next Banking Day (and interest shall be payable for the Advance Amount
so
extended for the period of such extension), unless such Banking Day falls
in the
next calendar month, in which case the payment shall be due on the immediately
preceding Banking Day.
8
(f) If
the
Bank determines that a Material Adverse Effect has occurred, the Bank shall
provide written notice thereof to the Exporter
and, in
case the Bank does not receive satisfactory remedy from the Exporter and/or
the
Paying Agent, the
Bank
shall provide to the Exporter a written demand for prepayment of the then
outstanding principal amount of the Advance and within
90
(ninety)
Banking Days of
receipt
of such
demand
by the Exporter,
the Exporter shall prepay in full the then outstanding principal amount of
the
Advance, together with accrued interest thereon.
(g) The
Exporter may,
on a
Banking Day,
prepay
all or a portion of any Advance Amounts at any time or from time to time,
which
pre-payment shall in each case, be made together with accrued and unpaid
interest on the principal amount, so
prepaid and all other amounts then payable under this Prepayment Agreement
(including the
costs
and expenses described in Section 13,
solely in the event such prepayment is made on a day other than the final
day of
an Interest Period);
provided that: (a) the Exporter shall give the Bank notice of each such
pre-payment at least three (3) Banking Days prior to the date of such prepayment
(and, upon the date specified in any such notice, the amount to be prepaid
shall
become due and payable hereunder), (b) each such notice of pre-payment shall
specify the amount of the Advance Amount being prepaid and (c) each partial
pre-payment shall be applied to the outstanding Advances in the inverse order
of
maturity.
Section
6. Taxes
(a) The
Exporter will pay all amounts due to the Bank under this Prepayment Agreement
and the Promissory Note free and clear of all deduction of any present or
future
taxes, levies, imposts, charges, withholdings, penalties, fines, additions
to
tax and interest, imposed or levied in Brazil or any other jurisdictions
from
which any payment hereunder or under the Promissory Note is remitted, or
any
political subdivision or taxing authority thereof (the “Taxes”), except taxes
imposed on the Bank's income by the jurisdiction under which the Bank is
incorporated.
(b) In
the
event the Exporter is required to deduct or withhold any Taxes, the Exporter
hereby agrees to pay the required deductions contemplated in Section 6(a)
herein, including deductions applicable to the additional amounts payable
thereunder, so that the Bank shall receive an amount equal to the sum it
would
have received had no such deductions been made.
(c) Upon
the
Bank’s request, the Exporter shall, within thirty (30) days, furnish to the Bank
a copy of the official receipts evidencing payment of Taxes made according
to
this Section 6, if any.
(d) The
Exporter shall indemnify the Bank for the full amount of Taxes or any penalties,
interest and expenses arising therefrom paid by the Bank. This indemnification
shall be made within 45 days from the date the Bank makes written request
therefor, subject to Central Bank authorisation.
Section
7. Illegality
(a) If,
after
the date of this Prepayment Agreement, the introduction of, or any change
in,
any applicable law, rule or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof or compliance by the Bank with any
request or directive (whether or not having the force of law) of any such
authority shall make it unlawful or impossible for the Bank to make, maintain
or
fund the Advance, and after the Bank has made reasonable efforts to make,
maintain or fund the Advance using other alternatives such as lending
offices
in
other
jurisdictions, the Bank forthwith shall so notify the Exporter in writing,
whereupon the obligation of the Bank to make or maintain the Advance shall
be
terminated. Upon receipt of such notice, the Exporter shall prepay in full
the
then outstanding principal amount of the Advance, together with accrued interest
thereon, on the later of either (a) the last day of Interest Period applicable
thereto or
(b)
within sixty-six (66)
Banking
Days.
9
(b) If
Brazil
or any competent authority thereof shall declare a moratorium on the payment
of
or default on, all or a substantial part of the Indebtedness of Brazil or
any
governmental agency or authority thereof or persons or corporations therein,
the
effect of which does or will prevent or impede any payment in respect of
the
Advance and the validity of “pre-pagamento”
agreements in Brazil, then the Exporter forthwith shall so notify the Bank
in
writing within ten (10) Banking Days. Whereupon, unless within 20 (twenty)
Banking Days the Bank certifies in writing that it is satisfied that the
Exporter and/or the Paying Agent, shall be able to meet their respective
obligations hereunder, the Exporter shall prepay
in
full the then outstanding principal amount of the Advance, together with
accrued
interest thereon, on the later of either (a) the last day of Interest Period
applicable thereto or (b) within ninety
(90)
Banking
Days.
(c) If,
after
the date of this Prepayment Agreement, the introduction of, or any change
in the
law in the Exporter’s country shall occur which renders this Prepayment
Agreement invalid, illegal or unenforceable, the Exporter shall prepay in
full
the then outstanding principal amount of the Advance, together with accrued
interest thereon, on the later of either (a) the last day of Interest Period
applicable thereto or
(b)
within sixty-six
(66)
Banking
Days
(d) Prepayment
pursuant to this Section 7 shall be made without premium.
Section
8. Conditions
Precedent
(a) The
obligation of the Bank to make the Advance is subject to the condition precedent
that the Bank shall have received the following documents and instruments,
duly
executed, created or issued, as the case may be:
|
(i)
|
This
Prepayment Agreement and the Promissory
Note;
|
|
(ii)
|
A
copy of the Financial Transaction Registration (“Registro
de Operações Financeiras –
ROF”)
issued by Central Bank of Brazil;
|
|
(iii)
|
A
Disbursement Request;
|
|
(iv)
|
The
Exporter's balance sheet and statement of income, stockholders'
equity and
cash flows as of and for the fiscal year ended 2006, certified
by its
independent public accountants;
|
|
(v)
|
Legal
opinion from Brazilian counsel to the Exporter addressed to the
Bank in
form and substance acceptable to the Bank and regarding matters
requested
by the Bank;
|
|
(vi)
|
Copies
of (A) the by-laws of the Exporter, the Paying Agent and Articles
of
Incorporation, if applicable, and (B) relevant corporate authorisations
of
the Exporter and the Paying Agent necessary to authorise the execution,
delivery and performance of the Advance Documents;
and
|
|
(vii)
|
A
certificate from a duly authorised Responsible Officer of each
of the
Exporter and the Paying Agent as to the incumbency and signatures
of its
duly authorised officers that are authorised to execute and deliver
the
Advance Documents in form and substance acceptable to the
Bank;
|
(b) The
obligation of the Bank to make the Advance is also subject to the satisfaction
of the following conditions precedent, and the disbursement by the Bank of
the
Advance shall constitute a representation by the Exporter that items (i),
(ii)
and (iii) below shall have been satisfied on and as of the Disbursement
Date:
|
(i)
|
the
representations and warranties made by the Exporter and the Paying
Agent
herein shall be true and correct on and as of the Disbursement
Date;
|
10
|
(ii)
|
both
immediately prior to the making of the Advance and after giving
effect
thereto and to the intended use of the proceeds thereof, no Event
of
Default shall have occurred and be continuing;
and
|
|
(iii)
|
there
has been no material adverse change,
since
the last audited financial statements of the Exporter and the Paying
Agent
received by the Bank, in the economic
and/or financial condition of
the Exporter.
|
Section
9. Representations
and Warranties
(a) Each
of
the
Exporter
and the Paying Agent hereby represent and warrant that:
|
(i)
|
It
is duly organised and validly existing under the laws of the jurisdiction
of its organisation and has full power, authority and legal right
to
borrow the Advance and to execute, deliver and perform this Prepayment
Agreement and any
Promissory Note
in
the form set forth in Exhibit A.
|
|
(ii)
|
The
Advance contemplated herein and the execution, delivery and performance
of
this Prepayment Agreement are within its powers, and have been
duly
authorised by all necessary actions, and do not violate any provision
of
applicable law, regulation or order of any court or regulatory
body.
Furthermore, the Advance contemplated under this Prepayment Agreement
will
not result in the breach of, constitute a default, or require any
consent
under any agreement, instrument or document to which it is a party
or by
which it or any of its property may be bound or affected.
|
|
(iii)
|
This
Prepayment Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its
terms.
|
|
(iv)
|
There
are no actions, suits or proceedings pending or, to its knowledge,
threatened against or affecting it before any court, governmental
agency
or arbitrator, which may, in any one case or in the aggregate,
have a
Material Adverse Effect and which as
of
the Disbursement
Date
have
not been remedied in full or otherwise are not being remedied in
a manner satisfactory
to the Bank.
|
|
(v)
|
It
has good title to, or valid leasehold interests in, all its real
and
personal property material to its business, except for defects
in title
that do not interfere with its ability to conduct its business
as
currently conducted or to utilise such property for its intended
purposes.
It owns or is licensed or otherwise has the right to use all of
the
patents, contractual franchises, licenses, authorisations and other
rights
that are reasonably necessary for the operation of its business,
without
conflict with the rights of any other Person.
|
(b) The
Exporter hereby represents and warrants further that:
|
(i)
|
It
has furnished to the Bank its balance sheet and statement of income,
stockholders’ equity and cash flows as of and for the fiscal year ended
2006 a certified by its independent public accountants. Such financial
statements are complete and correct, and fairly present the Exporter’s
financial condition and the results of its operations and cash
flows as of
such dates and for such periods in accordance with Brazilian GAAP.
Since
30 December 2006, there has been no development or event that has
had or
could reasonably be expected to have a Material Adverse
Effect.
|
|
(ii)
|
Other
than the approval of the Central Bank, which will
be
obtained
as
per Section 8(a)(ii),
no authorisation or approval or other action by, and no notice
to or
filing with, any Governmental Authority or regulatory body is required
for
the due execution, delivery and performance of this Prepayment
Agreement
(except that the Exporter shall have to enter into an exchange
contract
with a bank authorised to operate in the exchange market in Brazil
whenever it shall pay interest hereunder) or any of the other Advance
Documents.
|
11
|
(iii)
|
Its
obligations evidenced by this Prepayment Agreement and the Advance
Documents to which it is a party are its direct and unconditional
obligations, and rank
in
priority of payment and in all other respects at least pari
passu
with all its other unsecured and unsubordinated indebtedness, subject
to
statutorily preferred exceptions.
|
|
(iv)
|
It
is not in default under or with respect to any agreement, instrument
or
undertaking to which it is a party or by which it or any of its
property
or assets are bound which default would have or cause a Material
Adverse
Effect.
|
|
(v)
|
Neither
it nor any of its property or assets has any immunity (sovereign
or
otherwise) from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgement,
attachment in aid of execution, execution or otherwise) under the
laws of
the jurisdiction of its organisation, except for public
concessions.
|
Section
10. Affirmative
Covenants
The
Exporter covenants and agrees with the Bank that, so long as any part of
the
Advance is outstanding it
will:
(a) Furnish
to the Bank (i) upon demand, but not earlier than 120 days after the end
of each
fiscal year, its consolidated and, if available, consolidated balance sheet,
as
of the end of its fiscal year, and the related statement of earnings,
shareholders’ equity and changes in financial condition prepared in accordance
with Brazilian GAAP, in each case setting forth in comparative form the figures
for the previous fiscal year, and certified by independent public accountants
of
recognised international standing; (ii) promptly after it knows that any
Event
of Default has occurred, however not later than 20 days after such
occurrence, a certificate from a duly authorised officer notifying the Bank
as
to the occurrence of such Event of Default, describing the same in reasonable
detail and describing the actions that it proposes to take with respect thereto;
(iii) immediately after the commencement thereof, notice in writing of all
actions, suits and proceedings before any court or governmental agency or
instrumentality of any jurisdiction which, if determined adversely to it,
will
have a Material Adverse Effect; and (iv) such other publicly available
information with respect to its business, properties or its condition or
operations, financial or otherwise, as the Bank may from time to time reasonably
request.
(b) Keep
proper books of record and account in which full, true and correct entries
in
conformity with Brazilian GAAP and the requirements of applicable law shall
be
made of all dealings and transactions in relation to its business.
(c) Comply
with the requirements of all applicable laws, rules, regulations and orders
of
Governmental Authorities; and take all necessary actions in order to obtain
and
maintain in full force and effect all such governmental authorisations,
approvals and consents as may be required for it to comply with its obligations
under this Prepayment Agreement and the other Advance Documents.
(d) Continue
to
engage
in
its
existing Business
and
preserve, renew and keep in full force and effect its corporate existence
and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, and comply
with
all contractual obligations binding on it and its property.
(e) Take
any
and all actions necessary so that its obligations under the Advance Documents
to
which it is a party shall at all times rank at least pari
passu
in
priority of payment and in all other respects with all present and future
unsecured and unsubordinated indebtedness, subject to statutorily preferred
exceptions.
Section
11. Negative
Covenants
The
Exporter covenants and agrees with the Bank that, so long as any part of
the
Advance is outstanding it
will
not:
12
(a) enter
into any transaction of merger, amalgamation or consolidation, or liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution), or
sell,
transfer, lease
or
otherwise dispose of
(in one
transaction or in
a
series
of transactions) all
or
substantially all of its assets; provided that:
| (i) |
it
may merge or consolidate with or into, or sell or transfer all
or
substantially all of its assets to, any other Person that is organised
in
an OECD Country (or, if not an OECD Country, its current jurisdiction
of
organisation) if, immediately after giving effect
thereto:
|
| (A) |
(1)
with respect to any merger or consolidation, it is the surviving
Person
or, if not, the surviving Person has validly assumed its obligations
under
the Advance Documents to which it is a party, or (2) with respect
to a
sale, transfer, lease or other disposition of all or substantially
all of
its assets, the Person to whom the assets have been sold, transferred,
leased or otherwise disposed has validly assumed all obligations
under the
Advance Documents to which the transferor is a party (which assumption
may
constitute a novation of such obligations under applicable
law);
|
| (B) |
no
Event of Default or event that (with notice, lapse of time or both)
would
become an Event of Default (including under Section 12(m) or
resulting from a breach of Section 10(d)) exists or would exist
immediately after such merger, consolidation, sale, transfer, lease
or
other disposition,
|
| (C) |
the
Bank shall have received any other opinions, evidence of security
interest
filings and other documents or evidence as it may reasonably request
in
connection therewith,
|
| (D) |
to
the extent reasonably requested by the Bank, the Advance Documents
shall have been amended (or amended and restated) to reflect such
merger,
consolidation, sale, transfer, lease or other disposition,
and
|
| (E) |
notwithstanding
the foregoing clauses (A)-(D), the Net Debt to EBITDA Ratio of
any
Surviving Entity shall not exceed 3.00 as of the date of consummation
of
such merger, consolidation, sale, transfer, lease or other
disposition.
|
| (ii) |
it
may sell, lease, transfer or otherwise dispose of obsolete or worn-out
property or equipment no longer used or useful in its business
and any
inventory or other assets sold or disposed of in the ordinary course
of
its business, and
|
| (iii) |
it
may sell or otherwise transfer Goods and other assets to the Exporter
in
the manner contemplated in the Advance
Documents.
|
(b) Enter
into any transaction or series of related transactions with any Affiliate
thereof (other than its wholly-owned Subsidiaries), other than in the ordinary
course of their respective businesses and on terms and conditions substantially
as favourable to it as would reasonably be obtained at that time in a comparable
arm's-length
transaction with a Person other than such Affiliate. Notwithstanding
the foregoing, this provision shall not apply to: (a) any loan or similar
financial transaction (or series of related financial transactions) entered
into
for the sole purpose of performing cash management or other financial management
functions of an Affiliate or Subsidiary as the case may be and/or (b) tax
allocation agreements entered into from time to time between an Affiliate
or a
Subsidiary as the case may be provided always none of the foregoing shall
materially
impair
the ability of the Exporter to comply with their respective obligations under
this Prepayment Agreement.
Section
12. Events
of Default If
one,
or more, of the following events (each an “Event of Default”) shall occur and be
continuing:
(a) The
Exporter shall default in the payment of any portion of the Advance or any
interest on the Advance or any other amount payable by the Exporter hereunder
and such default is not remedied within 3 (three) Banking Days after notice
thereof to the Exporter by the Bank;
(b) Any
representation, warranty or certification made herein (or any modification
or
supplement hereto) by the Exporter shall prove to have been false or misleading
in any material respect as of the time made or furnished, and is not cured
within 22
(twenty-two)
Banking
Days upon notice of the Bank;
13
(c) The
Exporter, the Paying Agent or the Guarantor shall default in the performance
of
any other obligation under this Prepayment Agreement and such default continue
unremedied for a period of 22
(twenty-two)
Banking
Days after notice thereof to the Exporter by the Bank provided always that
the
Guarantee shall always be legally binding and effective on the Guarantor;
(d) The
Exporter shall admit in writing its inability to be generally able to pay
its
debts;
(e) The
Paying Agent shall admit in writing its inability to be generally able to
pay
its debts and the Exporter shall not have designated a substitute or replacement
thereof reasonably acceptable to the Bank within 22
(twenty-two)
Banking
Days
after
notice thereof to the Exporter by the Bank;
(f) The
Exporter shall (i) apply for or consent to the appointment of, or the taking
of
possession by, a receiver, custodian, trustee, examiner or liquidator of
itself
or of all,
or
substantially all,
its
respective property
or assets, (ii) make a general assignment for the benefit of creditors, (iii)
file a petition seeking to take advantage of any law relating to bankruptcy,
insolvency, liquidation, dissolution, arrangement or winding-up, or composition
or readjustment of its respective debts, or (iv) take any corporate action
for
purpose of effecting any of the foregoing;
(g) The
Paying Agent shall (i) apply for or consent to the appointment of, or the
taking
of possession by, a receiver, custodian, trustee, examiner or liquidator
of
itself or of all or substantially
all its respective property
or assets, (ii) make a general assignment for the benefit of creditors, (iii)
file a petition seeking to take advantage of any law relating to bankruptcy,
insolvency, liquidation, dissolution, arrangement or winding-up, or composition
or readjustment of its respective debts, or (iv) take any corporate action
for
purpose of effecting any of the foregoing and the Exporter shall not have
designated a substitute or replacement thereof reasonably acceptable to the
Bank
within 22
(twenty-two)
Banking
Days
after
notice thereof to the Exporter by the Bank;
(h) A
proceeding or case shall be commenced, without the application or consent
of the
Exporter,
in any
court of competent jurisdiction, seeking (i) its liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its respective
debts, (ii) the appointment of a receiver, custodian, trustee, examiner,
liquidator or the like of the Exporter or the Paying Agent of all or
substantially all of its respective property or assets, or (iii) similar
relief
in respect of the Exporter or the Paying Agent under any law relating to
bankruptcy, insolvency, winding-up, or composition or adjustment of debts,
and
such proceeding or case shall continue undismissed, or any order, judgement
or
decree approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 44
(forty-four)
Banking
Days;
(i) Any
default or event of default shall occur or be continuing under any agreement,
instrument or other document of the Exporter evidencing External Indebtedness
(as defined below) in excess of Fifty Million Dollars (or its equivalent
in
other currencies) and such default or event of default causes the acceleration
of such External Indebtedness
and
shall not have been waived. For purposes of this paragraph (h), “External
Indebtedness” shall mean indebtedness for borrowed money which is payable or may
be paid (i) in a currency other than the lawful currency of Brazil an (ii)
to a
Person resident or having its principal place of business outside of
Brazil;
(j) Any
judgement or order from which no further appeal is permissible under applicable
law for the payment of money aggregating in excess of Fifty Million Dollars
(or
its equivalent in another currency) shall be rendered against the Exporter
and
such judgement or order shall continue unsatisfied and in effect for a period
of
30 (thirty) calendar days;
(k) A
Change
of Control shall occur;
then,
in
such event, the Bank may by notice to the Exporter, declare
the Advance Amount then outstanding, the accrued interest on the Advance
and all
other amounts payable by the Exporter hereunder to be, whereupon the same
shall
become, forthwith due and payable, without presentment, demand, protest or
other
formalities of any kind, all of which are hereby expressly waived by the
Exporter.
Notwithstanding the foregoing, any event referred to in clause (a) above
existing for a period of up to 5
(five)
Banking Days after the applicable grace period will not constitute an Event
of
Default if such delay or failure could not have been prevented by the exercise
of reasonable diligence by the Exporter and such delay or failure was caused
by
an act of God, riot, an act of war, terrorism, epidemic, flood, weather,
landslide, fire, earthquake, electrical outage or similar causes.
14
Section
13. Costs
and Expenses
(a) If
the
Exporter makes any payment of principal of the Advance (excluding as a result
of
the provision set forth in Section 7 hereof) on any day, other than the last
day
of the Interest Period applicable thereto, or fails to borrow the Advance
on the
date specified therefor in the notice to the Bank pursuant to Section 3 hereof,
the Exporter shall reimburse the Bank, on demand, for any financial loss,
excluding loss of anticipated profits, incurred by it as a result of the
timing
of such payment or such failure, or as a result of liquidating or employing
deposits from third parties, provided that the Bank shall have delivered
to the
Exporter a certificate as to the amount of such loss, which certificate shall be
conclusive in the absence of manifest error.
(b) The
Exporter agrees to reimburse the Bank on demand for all reasonable and
documented costs and expenses (including without limitation legal fees and
registration costs) incurred by the Bank in connection with the preparation,
execution and enforcement of the Advance Documents, subject
to a
maximum amount of US$10,000.00 (ten thousand US Dollars), provided that the
Exporter shall not be obliged to reimburse such costs and expenses if the
Bank
decides, in its sole and arbitrary discretion, other than due to the absence
of
satisfaction of one or more of the conditions precedent included in Section
8,
not to make the disbursement of the Advance.
Section
14. Governing
Law and Jurisdiction
This
Prepayment Agreement shall be governed by and construed in accordance with
the
Law of the State of New York.
(a) The
Exporter and the Paying Agent irrevocably agree for the exclusive benefit
of the
Bank that the courts of the State of New York shall have jurisdiction to
hear
and determine any suit action or proceeding, and to settle any disputes,
which
may arise out of in connection with this Prepayment Agreement and for such
purposes you hereby irrevocably submit to the jurisdiction of such
courts.
(b) Nothing
contained in this Section shall limit the right of us, the Bank, to take
proceedings against the Exporter in any other court of competent jurisdiction,
nor shall the taking of any such proceedings in one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction, whether
concurrently or not (unless precluded by applicable law).
(c) The
Exporter and the Paying Agent waive
any
objection which it may have now or in the future to the courts of the State
of
New York being nominated for the purpose of Section 14(b)
above
and agree not to claim that any such court is not a convenient or appropriate
forum.
(d)
The
Exporter hereby authorises and appoints Xxxxxx
X.
Xxxxxxxxx, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
(or
such
other person being a firm of solicitors or authorised institution in New
York
USA as it may substitute by notice to the Bank) to accept service of all
legal
process arising out of or connected with this Prepayment Agreement. Service
on
such person(s) (or substitute) shall be deemed to be service on the Exporter
whether or not process is forwarded to or received by it. Except upon such
a
substitution, the Exporter undertakes not to revoke any such authority or
appointment, at all times to maintain an agent for service of process in
New
York and, if any such agent ceases for any reason to be an agent for this
purpose, forthwith to appoint another agent and advise the Bank accordingly.
Failing such appointment, the Bank shall be entitled by notice to the Exporter
to appoint such a replacement agent to act on behalf of the Exporter.
Section
15. Successors
and Participations
(a) This
Prepayment Agreement and the Promissory Note shall be binding on the Exporter
and the Paying Agent and its respective successors and assigns and shall
inure
to the benefit of the Bank and its successors and assigns.
15
(b) Except
as
provided herein, neither the Exporter, nor the Paying Agent may assign or
otherwise transfer all or any part of its respective rights or obligations
under
this Prepayment Agreement and the Promissory Note without the prior written
consent of the Bank.
(c) The
Bank
may: (i) assign in whole and in part its rights and obligations under this
Prepayment Agreement and the Promissory Note, provided, however, that such
assignment (A) does not increase the overall cost hereunder to the Exporter,
in
any way whatsoever, and (B) is consented to by the Exporter in writing (such
consent not to be unreasonably withheld);
provided, however that no such consent is required in the event (x) the Bank
assigns its rights and obligations to another branch of the Bank or any entity
directly or indirectly controlled by, controlling or under common control
with,
the Bank, or (y) at any time that an Event of Default of payment
as
described in Section
12 (a)
has occurred and is continuing; (ii) sell participations in, all or any part
of
this Prepayment Agreement and the Promissory Notes to another bank or other
entity without the prior written consent of the Exporter, provided that the
Bank
shall advise the Exporter of each such sale of participations within five
Banking Days from such sale.
For
the
purposes hereof, (a) “assignment” shall mean any agreement entered into by the
buyer (the assignee) of specified rights and obligations of the seller (the
assignor) in respect of a loan, and whereby the buyer will substitute the
seller
as Bank of record and (b) a “participation” shall mean any agreement entered
into by the Bank whereby the Bank sells to any third party (a “Participant”) its
interest in all or any part of this Prepayment Agreement and the Promissory
Note; provided, however, that in any such case the contractual relation between
the parties hereto shall not be affected, and the Participant itself shall
have
no right to directly enforce this Prepayment Agreement and the Promissory
Note
against the Exporter.
Section
16. Indemnification
The
Exporter and the Paying Agent agree to indemnify and hold harmless the Bank
and
its officers, directors, employees, agents and representatives (together,
the
“Indemnified Parties”) from and against any and all liabilities, losses,
damages, penalties, actions, judgements, suits, costs, expenses (including
the
reasonable documented fees and expenses of external counsels) or disbursements
of any kind whatsoever (together, “Liabilities”) which may at any time
(including following the repayment of the Advance) be imposed upon, incurred
by
or asserted against the Indemnified Parties as a result of, relating to,
or
arising out of any of the Advance Documents or any document contemplated
by or
referred to herein or the transactions contemplated hereby or any action
taken
or omitted by the Indemnified Parties under or in connection with any of
the
foregoing
and that
are duly
evidenced by the Bank,
provided, however, that the Liabilities do not result directly from the gross
negligence or wilful misconduct of the relevant Indemnified Party.
Section
17. Miscellaneous
(a) Any
amendment or waiver of any provision of this Prepayment Agreement, or consent
to
any departure by the parties herefrom must be in writing and signed by the
Exporter and the Paying Agent and the Bank. Such waiver or consent shall
be
effective only in the specific instance for which it is stipulated. Any failure
or delay by the parties in exercising their rights hereunder shall not be
deemed
a waiver and shall not preclude the parties from the exercise of their
rights.
(b) All
notices, designations, consents, offers, acceptances, or any other
communications provided pursuant to this Prepayment Agreement shall be given
in
writing and sent, to the Bank, the Paying Agent and the Exporter at the
following addresses or to such other addresses as may be designated in writing
from time to time by the parties:
BANCO
BILBAO VIZCAYA ARGENTARIA, S.A.,
Attn: Xx.
Xxxxxxxx Xxx
Address:
0000 Xx.
xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000, XXX
Tel.:
x0-000-000-0000
Fax:
x0-000-000-0000
16
EXPORTER
Attn: Xx.
Xxxxxxxx
Xxxxx Estato
Address:
1357
Alameda Santos
São
Paulo, Brazil
Tel.:
x00-00-0000-0000
Fax:
x00-00-0000-0000
PAYING
AGENT
Attn: Xx.
Xxxxxxxx
Xxxxx Estato
Address: Xxxxxxxxxxxxx
0, 0000
Xxx
Xxxxxxxxxxx
Tel.:
x00-00-0000-0000
Fax:
x00-00-0000-0000
All
such
notices and communications shall be deemed given: (i) upon
delivery if delivered by hand to the addresses provided in this Section 17(b);
(ii) upon receipt if delivered by facsimile transmission to the number
provided herein; or (iii) five
(5)
Banking Days after the date of deposit in the
courier
agency if delivered by reputable
courier, return receipt requested if available, postage prepaid.
(c) This
Prepayment Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
and
understandings between the parties with respect thereto.
(d) The
various provisions of this Prepayment Agreement are severable from each other.
In the event that any provision in this Prepayment Agreement shall be held
invalid or unenforceable by a court of competent jurisdiction, the remainder
of
this Prepayment Agreement shall be fully effective, operative and
enforceable.
(e) No
party
hereto shall be liable for any delay in performance of any obligation hereunder
by reason of any act or circumstance beyond the control of such Party due
to the
occurrence of a force majeure.
(f) The
obligations of the Exporter and Paying Agent under Sections 6, 14, and 16
hereof
shall survive the repayment in full of the Advance.
(g) This
Prepayment Agreement may be executed in any number of counterparts, and this
has
the same effect as if the signatures on the counterparts were on a single
copy
of this Agreement.
Section
18. Assignment
of Export Agreement
In
consideration of the Bank entering in to this Prepayment Agreement:
(a) The
Exporter hereby assigns,
as of
each date that is 15 (fifteen) days prior to each date on which an Instalment
is
due and payable pursuant to Section 5(a),
with
full title guarantee and as a continuing security for the payment of its
obligations hereunder
(the
“Secured Obligation”), an absolute security interest (“Security Interest”) in
a
portion
of the
Exporter’s rights, interest and remedies with respect to any and all of the
Undertakings (including, but not limited to all of the Exporter’s rights to
receive payment from Importers, including (but not limited to) all of the
Exporter’s future acquired rights to payment under the Export Agreements whether
in the form of a letter of credit or right to title to the Goods or
otherwise)
which
portion shall have a value not less than the value of such
Instalment.
(b) The
Exporter will fully perform all of its material obligations under the
Export Agreements,
and
will enforce all of its rights and remedies thereunder as it deems appropriate
in its reasonable business judgement; provided, however, that the Exporter
will
not take any action or fail to take any action which would result in a waiver
or
other loss of any material rights or remedy of the Exporter thereunder.
17
(c) The
Exporter will not, without Bank’s prior written consent (which consent shall not
be unreasonable withheld), modify,
amend,
supplement, compromise, satisfy, release or discharge the Export Agreements,
any
person liable directly or indirectly with respect thereto, or any agreement
relating to the Export Agreements.
(d) The
Exporter will at all times remain liable to observe and perform all of its
duties and obligations under the Export Agreements, and Bank’s exercise of any
of its rights with respect to this Prepayment
Agreement
will not release the Exporter from any of such duties or obligations. The
Bank
is not obligated to (I) perform or fulfil any of the Exporter’s duties or
obligations under the Export Agreements (II) make any payment under the Export
Agreements, (III) make any inquiry as to the sufficiency of any payment of
property received by it under the Export Agreements or the sufficiency of
performance by any party under the Export Agreements, or (IV) present or
file
any claim, or take any action to collect or enforce any performance or payment
of any amounts, or delivery of any property.
(e) Effective
from and after the occurrence of any Event of Default and during the
continuation thereof, the Exporter hereby irrevocably authorises and empowers
Bank, in Bank’s sole discretion, to assert, either directly or on behalf of the
Exporter any claims the Exporter may then or thereafter have against Importer
with respect to the Undertakings
that are
subject to this Prepayment Agreement,
in such
a manner, as Bank may deem proper, to receive and collect any and all damages,
awards and other monies resulting therefrom and to apply the proceeds therefrom
on account of the Secured Obligations, whether or not then
due, in
accordance with the terms of the Prepayment Agreement. The Exporter hereby
authorises Bank to collect all amounts due to the Exporter under and by virtue
of the Export Agreements including any future acquired rights to payment
thereunder.
(f) Power-of-Attorney:
To facilitate the foregoing, the Exporter hereby irrevocably authorises and
empowers the Bank as its attorney at any time after the occurrence and during
the continuance of an Event of Default to (a) either directly or on behalf
of
the Exporter, assert any claims and demands and enforce any rights and remedies
as the Exporter may have, from time to time, with respect to the
Undertakings
that
shall
have been assigned to
the
Bank
pursuant to Section 19(a),
as Bank
may deem proper and (b) receive and collect any and all proceeds, awards
or
amounts due to the Exporter in respect of any indemnification claims under
the
Secured Obligations
in such manner
as the
Exporter’s true and lawful attorney to assert, at any time after the occurrence
and during the continuance of an Event of Default, any claims and demands
or
enforce any rights and remedies and collect such proceeds, awards and amounts
and to apply such monies to the Secured Obligations in such manner as Bank
shall
elect. This power of attorney is coupled with an interest and is irrevocable
by
the Exporter.
(g) This
Prepayment Agreement creates a continuing security interest
in the
Undertakings and all representations, warranties, and agreements
in each case, as specified in Section 19(a),
and
such
security interest shall
terminate only upon the full and irrevocable payment of all amounts owing
to the
Bank under this
Prepayment Agreement;
provided
that
the Bank
has no other commitment to extend credit or make advance to or for the account
of the Exporter.
At
such
time, Bank will, at the request of the Exporter, reassign and redeliver to
the
Exporter all of its rights hereunder which have not been sold,
which
reassignment and redelivery will be without warranty by or recourse to Bank,
except as to the absence of any prior assignments by Bank of its interest
in the
Undertakings, and will be at the expense of the Exporter.
18
IN
WITNESS WHEREOF,
each of
the Exporter, the Paying Agent and the Bank has executed this Prepayment
Agreement in two (2) originals in
English as of the date first above written herein.
BANCO
BILBAO VIZCAYA ARGENTARIA, NEW YORK BRANCH
|
By:
/s/ Xxxxxxxx Xxx
|
By:
/s/ Xxxxx Xxxxxx
|
|||
|
Name:
Xxxxxxxx Xxx
|
Name:
Xxxxx Xxxxxx
|
|||
|
Title:
Vice-President, Global Trade Finance
|
Title:
Vice-President, Global Trade
Finance
|
|||
VOTORANTIM
CELULOSE E PAPEL, as Borrower and Exporter
|
By:
/s/ Xxxxxx Xxxxx
|
By:
/s/ Xxxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx
|
|||
|
Name:
Xxxxxx Xxxxx
|
Name:
Xxxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx
|
|||
|
Title:
Officer
|
Title:
Officer
|
|||
VCP
OVERSEAS HOLDING LTD., Budapeste, Zug Branch., as Paying
Agent
|
By:
/s/ Xxxxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxxxx Xxxxxxxx
|
|
|
Title:
Branch Manager
|
|
19
Exhibit
A
PROMISSORY
NOTE
US$
50,000,000.00
Place:
Date:
FOR
VALUE
RECEIVED, VOTORANTIM
CELULOSE E PAPEL S.A. – VCP,
a
company duly organised and existing under the laws of the Federative Republic
of
Brazil, with its head office located at 1357
Alameda Santos, São Paulo,
Brazil,
(the “Borrower”) hereby promises to pay to BANCO BILBAO VIZCAYA ARGENTARIA, NEW
YORK BRANCH (the “Bank”), the principal sum of US$ 50,000,000.00 (FIFTY MILLION
UNITED STATES DOLLARS) (the “Advance”), on June 25th,
2015
(the “Final Maturity Date”) or on such earlier date as may be required by the
Bank in accordance with the terms of the Export Prepayment Agreement (as
defined
below). The Exporter also promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in
full,
at such interest rates, and payable at such times, as are specified in the
Export Prepayment Agreement.
Both
principal and interest hereunder are payable in lawful money of the United
States of America, in same day funds, to the Bank, Banco Bilbao Vizcaya
Argentaria, S.A., International Trade and Lending Administration at its internal
account number 30444 via Federal Reserve Bank ABA number 000000000 free
and
clear of all deductions of any present or future taxes, levies, imposts,
charges, withholdings, penalties, fines, additions to tax and interest, imposed
or levied in Brazil or any other jurisdictions from which any payment hereunder
is remitted, or any political subdivision or taxing authority thereof, except
taxes imposed on the Bank's income by the jurisdiction under which the Bank
is
incorporated.
The
Exporter hereby waives, to the fullest extent permitted by applicable law,
presentment, demand, protest and all notices of any kind in connection with
this
Promissory Note. The failure of the Bank to exercise any of its rights hereunder
in any particular instance shall not constitute a waiver thereof in that
instance or any subsequent instance.
This
promissory note is the Promissory Note referred to in that Export Prepayment
Agreement, dated as of June 22, 2007 (the “Export Prepayment Agreement”), by and
between the Exporter and the Bank, which among other things, contains provisions
for the acceleration of the maturity hereof upon the happening of certain
events
therein specified.
This
Promissory Note shall be governed by, and construed in accordance with, the
law
of the State of New York, without giving effect to its conflict of laws
principles.
VOTORANTIM
CELULOSE E PAPEL S.A.
|
By:
|
By:
|
||||
|
Name:
|
Name:
|
||||
|
Title:
|
Title:
|
Exhibit
B
DISBURSEMENT
REQUEST
(Place
and Date)
BANCO
BILBAO VIZCAYA ARGENTARIA, NEW YORK BRANCH
Ladies
and Gentlemen:
We
refer
to the Export Prepayment Agreement dated as of June XX, 2007 (the “Prepayment
Agreement”) between Votorantim Celulose e Papel S.A, (the
“Borrower”),
VCP
Overseas
Holding Ltd. Budapeste, ZUG Branch, (the “Paying Agent”) and
Banco
Bilbao Vizcaya Argentaria, S.A.(the “Bank”). Terms defined in the Prepayment
Agreement shall have the same meaning in this Disbursement Request.
Pursuant
to Section 3 of the Prepayment Agreement, we hereby request the Bank to make
an
advance to us in the amount of US$50,000,000.00 (the “Advance Amount”) on June
26, 2007 (the “Disbursement Date”) for the purpose of financing future exports
to be made by the Exporter to the Importers in accordance with the Prepayment
Agreement.
Not
later
than 2 (two) Banking Days prior to the Disbursement Date, we shall give you
in
writing the credit instructions for the Advance Amount.
We
confirm that, on the date hereof, the representations set out in Section
9 of
the Prepayment Agreement are true and correct and that no Event of Default
has
occurred and is continuing.
Enclosed
are the documents required pursuant to Section 8 of the Prepayment
Agreement.
Sincerely
yours,
|
By:
|
|||||
|
By:
|
|
By:
|
|||
|
Name:
|
Name:
|
||||
|
Title:
|
Title:
|
Acknowledged
and agreed by BANCO BILBAO VIZCAYA ARGENTARIA., NEW YORK BRANCH, as the
Bank
