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EXECUTION VERSION
$380,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of May 23, 2002
and amended and restated as of April 26, 2004
among
VCP TRADING N.V.,
as the Borrower,
NEWARK FINANCIAL INC.,
VCP EXPORTADORA E PARTICIPACOES LTDA.,
VOTORANTIM CELULOSE E PAPEL S.A.
and
VCP NORTH AMERICA INC.,
as guarantors,
CERTAIN LENDERS,
ABN AMRO BANK N.V.,
as the Administrative Agent,
and
THE BANK OF NEW YORK,
as the Collateral Agent
------------------------------
ABN AMRO BANK N.V.,
as the Arranger
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms..................................2
Section 1.2 Other Interpretive Provisions.........................17
ARTICLE II
LOANS, ETC.
Section 2.1 Loans.................................................18
Section 2.2 Borrowing.............................................18
Section 2.3 Fees..................................................19
Section 2.4 Several Obligations; Remedies Independent.............19
Section 2.5 Notes.................................................19
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.1 Repayment of the Loans................................19
Section 3.2 Interest..............................................20
Section 3.3 Optional Pre-payments.................................20
Section 3.4 Payments..............................................20
Section 3.5 Pro Rata Treatment....................................21
Section 3.6 Certain Notices.......................................21
Section 3.7 Non-Receipt of Funds by the Administrative Agent......22
Section 3.8 Set-Off; Sharing of Payments..........................22
ARTICLE IV
YIELD PROTECTION, ETC
Section 4.1 Additional Costs......................................23
Section 4.2 Substitute Basis......................................24
Section 4.3 Illegality............................................25
Section 4.4 Funding Losses........................................25
Section 4.5 Taxes.................................................26
ARTICLE V
COLLECTION ACCOUNT, COLLATERAL ACCOUNT, ETC
Section 5.1 The Collection Account................................28
Section 5.2 The Collateral Account................................28
Section 5.3 Releases from the Collection Subaccount and the
Collateral Account....................................29
Section 5.4 Remedies During Events of Default.....................31
Section 5.5 Certain Rights and Duties of the Collateral Agent.....31
Section 5.6 Reserve Letter of Credit..............................32
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Conditions Precedent..................................33
Section 6.2 Additional Conditions.................................36
Credit Agreement i
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Page
Section 6.3 Satisfaction of Conditions Precedent..................37
Section 6.4 Conditions Precedent to Effectiveness of Amendment....37
Section 6.5 Satisfaction of Conditions Precedent to
Effectiveness of Amendment............................39
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 Power and Authority...................................40
Section 7.2 Subsidiaries..........................................40
Section 7.3 Due Authorization, Etc................................41
Section 7.4 No Additional Authorization Required..................41
Section 7.5 Legal Effect..........................................42
Section 7.6 Financial Statements..................................42
Section 7.7 Ranking; Priority.....................................42
Section 7.8 No Actions or Proceedings.............................43
Section 7.9 Commercial Activity; Absence of Immunity..............43
Section 7.10 Taxes.................................................43
Section 7.11 Legal Form............................................44
Section 7.12 Full Disclosure.......................................44
Section 7.13 Security Interest.....................................45
Section 7.14 Title to Assets; Liens................................45
Section 7.15 No Defaults...........................................45
Section 7.16 Solvency..............................................45
Section 7.17 Investment Company Act................................46
Section 7.18 UCC Matters...........................................46
ARTICLE VIII
COVENANTS
Section 8.1 Corporate Existence; Inspection; Books and Records....47
Section 8.2 Compliance with Applicable Laws; Insurance............47
Section 8.3 Governmental Approvals................................48
Section 8.4 Reporting Requirements................................48
Section 8.5 Ranking; Priority.....................................50
Section 8.6 Debt..................................................50
Section 8.7 Negative Pledge.......................................53
Section 8.8 Transactions With Affiliates..........................55
Section 8.9 Line of Business, Etc.................................55
Section 8.10 Use of Proceeds.......................................55
Section 8.11 Further Assurances....................................55
Section 8.12 Merger, Etc...........................................56
Section 8.13 Export Arrangements...................................58
Section 8.14 Syndication...........................................59
Section 8.15 Investment Company Act................................59
Section 8.16 Portuguese Translation................................60
Section 8.17 Hungarian Documents...................................60
Credit Agreement ii
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ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default.....................................60
ARTICLE X
THE AGENTS
Section 10.1 Appointment, Powers and Immunities....................64
Section 10.2 Reliance by the Agents................................65
Section 10.3 Defaults..............................................66
Section 10.4 Rights as a Lender....................................66
Section 10.5 Indemnification.......................................66
Section 10.6 Non-Reliance upon the Agents and other Lenders........67
Section 10.7 Failure to Act........................................67
Section 10.8 Resignation or Removal of the Agents..................67
ARTICLE XI
VCP EXPORTADORA'S AND VCP NA'S GUARANTY OF NEWARK AND NEWARK'S GUARANTY
OF THE BORROWER
Section 11.1 Guaranty..............................................68
Section 11.2 Guaranty Unconditional................................68
Section 11.3 Discharge Only upon Payment in Full;
Reinstatement In Certain Circumstances................69
Section 11.4 Waiver by VCP Exportadora, VCP NA and Newark..........69
Section 11.5 Subrogation...........................................70
Section 11.6 Stay of Acceleration..................................70
ARTICLE XII
VCP'S GUARANTY OF VCP EXPORTADORA
Section 12.1 Guaranty..............................................70
Section 12.2 Guaranty Unconditional................................70
Section 12.3 Discharge Only upon Payment in Full;
Reinstatement In Certain Circumstances................71
Section 12.4 Waiver by VCP.........................................71
Section 12.5 Subrogation...........................................72
Section 12.6 Stay of Acceleration..................................72
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Waiver................................................72
Section 13.2 Notices...............................................72
Section 13.3 Expenses; Indemnity...................................73
Section 13.4 Amendments, Etc.......................................74
Section 13.5 Successors and Assigns................................75
Section 13.6 Third Party Beneficiaries.............................75
Credit Agreement iii
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(continued)
Page
Section 13.7 Assignments and Participations........................75
Section 13.8 Survival..............................................77
Section 13.9 Captions..............................................78
Section 13.10 Counterparts..........................................78
Section 13.11 Governing Law.........................................78
Section 13.12 Jurisdiction, Service of Process and Venue............78
Section 13.13 Waiver of Jury Trial..................................79
Section 13.14 Waiver of Immunity....................................80
Section 13.15 Judgment Currency.....................................80
Section 13.16 Use of English Language...............................80
Section 13.17 Entire Agreement......................................81
Section 13.18 Severability..........................................81
Section 13.19 No Fiduciary Relationship or Partnership..............81
Section 13.20 Confidentiality.......................................81
Section 13.21 Payments Set Aside....................................82
Section 13.22 No Petition Covenant..................................82
Section 13.23 Non-novation..........................................82
Credit Agreement iv
ANNEXES, SCHEDULES AND EXHIBITS
ANNEX 1 Lenders and Commitments
SCHEDULE 1 Initial Eligible Buyers
EXHIBIT A-1 Form of Note
EXHIBIT A-2 Form of Newark Note
EXHIBIT B Form of Assignment Agreement
EXHIBIT C Form of Notice of Borrowing
Credit Agreement v
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 23, 2002 and
amended and restated as of April 26, 2004 (this "Agreement"), among VCP TRADING
N.V., a public limited liability company incorporated under the laws of the
Netherlands Antilles (the "Borrower"), NEWARK FINANCIAL INC., a company
organized under the laws of the British Virgin Islands ("Newark"), VCP
EXPORTADORA E PARTICIPACOES LTDA., a Brazilian limited liability company ("VCP
Exportadora"), VOTORANTIM CELULOSE E PAPEL S.A., a Brazilian corporation
("VCP"), VCP NORTH AMERICA INC., a corporation duly organized under the laws of
the State of Delaware ("VCP NA", and together with the Borrower, the "Newark
Subsidiaries"), each of the lenders that is a signatory hereto under the caption
"LENDERS" on the signature pages hereto and each other Person that becomes a
"Lender" after the date hereof pursuant to Section 13.7 (each a "Lender"), ABN
AMRO BANK N.V., as the administrative agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Administrative Agent"), and
THE BANK OF NEW YORK, as the collateral agent for the Secured Parties (as
defined below) (in such capacity, together with its successors in such capacity,
the "Collateral Agent").
RECITALS
WHEREAS, the parties hereto have entered into the Credit Agreement,
dated as of May 23, 2002 (the "Original Credit Agreement"), whereby the Lenders
agreed to make loans to either or both of the Newark Subsidiaries in an
aggregate principal amount up to but not exceeding $380,000,000,
WHEREAS, the Lenders disbursed $76,000,000 of such loans to VCP NA and
the remaining $304,000,000 of such loans to the Borrower on May 23, 2002 (as
such, the parties hereto acknowledge that the Loans referred to in Article II
have been fully funded as of such date and that no other Loans will be made
upon, or result from, the effectiveness of the amendments effected by this
Amended and Restated Credit Agreement),
WHEREAS, the proceeds of such loans were used by each Newark Subsidiary
to make a prepayment to Newark for the sale of Products to such Newark
Subsidiary (in return for which prepayment such Newark Subsidiary received a
"Newark Note"),
WHEREAS, the Borrower desires to assume liability for the loans
borrowed by VCP NA under the Original Credit Agreement in return for (inter
alia) receiving the "Newark Note" held by VCP NA, and VCP NA desires to enter
into such transaction (the "Transfer of Debt"),
WHEREAS, VCP, VCP Exportadora, Newark and the Newark Subsidiaries have
requested that the Lenders, the Administrative Agent and the Collateral Agent
amend certain provisions of the Original Credit Agreement pursuant to this
Amended and Restated Credit Agreement (which amendment and restatement reflects
the transaction as if the Borrower had been the sole borrower under the Original
Credit Agreement),
WHEREAS, in accordance with Section 13.4 of the Original Credit
Agreement, the Lenders have agreed to amend the Original Credit Agreement by
entering into this Amended and Restated Credit Agreement, and in accordance with
Section 13.5 of the Original Credit
Credit Agreement 1
Agreement, the Lenders acknowledge their consent to the Transfer of Debt by
means of the Transfer of Debt Agreement with their execution of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
"ABN AMRO" means ABN AMRO Bank N.V., a public limited
liability company incorporated under the laws of the Netherlands.
"Account Collateral" has the meaning set forth in the Security
Agreement.
"Account Control Agreement" has the meaning set forth in the
Security Agreement; provided that, for the purposes hereof, such term
shall be deemed to be limited to those agreements relating to the
Collateral Account, the Collection Account and the Collection
Subaccount.
"Additional Facility" has the meaning set forth in the
Security Agreement.
"Additional Facility Agent" has the meaning set forth in the
Security Agreement.
"Administrative Agent" has the meaning set forth in the
introduction hereto.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at ABN
AMRO, ABA #000-000-000, Account No. 650001178941, for credit to ABN
AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or such
other account as from time to time may be designated by the
Administrative Agent to Newark in writing.
"Administrative Questionnaire" means an administrative
questionnaire in a form supplied by the Administrative Agent.
"Affected Interest Period" has the meaning set forth in
Section 4.2.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person shall mean the possession, directly or indirectly, of the
power to vote 5% or more of the Voting Stock of such Person or to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of such Voting Stock, by contract
or
Credit Agreement 2
otherwise; provided that Aracruz shall not be considered an Affiliate
of the Obligors unless Newark and the other members of the Votorantim
Group (in the aggregate) possess, directly or indirectly, the power to
vote 30% or more of the Voting Stock of Aracruz or to direct or cause
the direction of the management and policies of Aracruz, whether
through the ownership of Voting Stock, by contract or otherwise.
"Agent" means either the Administrative Agent or the
Collateral Agent.
"Agents' Fee Letters" means the letter agreements, dated as of
the date hereof, between each Agent and Newark providing for the
payment of fees to the Agents in connection herewith (it being
understood that, notwithstanding anything hereon to the contrary, no
other Person shall have any rights with respect thereto, including to
receive a copy thereof).
"Agreement" has the meaning set forth in the introduction
hereto.
"Amendment Date" means the date on which the conditions
precedent specified in Section 6.4 have been satisfied.
"Applicable Law" means any applicable statute, law,
regulation, ordinance, rule, judgment, rule of common law, order,
decree, approval (including any Governmental Approval), concession,
grant, franchise, license, agreement, directive, guideline, policy,
requirement or other governmental restriction or any similar form of
decision of, or determination by (or any interpretation or
administration of any of the foregoing by), any Governmental Authority,
whether in effect as of the date hereof or hereafter.
"Applicable Lending Office" means, for each Lender, the
lending office of such Lender (or of an Affiliate of such Lender)
designated in its Administrative Questionnaire or such other office of
such Lender (or of an Affiliate of such Lender) as such Lender may from
time to time specify to the Administrative Agent and Newark as the
office by which its Loan is to be made and maintained.
"Applicable Margin" means 2.00% per annum.
"Aracruz" means Aracruz Celulose S.A., a Brazilian
corporation, and its successors.
"Arranger" means ABN AMRO.
"Assignment Agreement" means an agreement in substantially the
form of Exhibit B.
"Assumption Agreement" means the Assumption Agreement, dated
as of April 26, 2004, among Votorantrade N.V., as assignor, the
Borrower, as assignee, Votorantim Participacoes S.A. (formerly S.A.
Industrias Votorantim), Citrovita, Nitro Quimica, Cia. Niquel
Tocantins, VCP, Votocel Filmes Flexiveis Ltda., Votorantim Metais Ltda.
(formerly Votorantim Mineracao E Metalurgia Ltda.) and Cia. Mineira de
Metais, each a company duly organized and validly existing under the
laws of Brazil, as the guarantors,
Credit Agreement 3
VCP Exportadora and Citibank, N.A., as the administrative agent and the
collateral agent, relating to the Export Pre-Payment Credit Agreement,
dated as of October 29, 2001, among Votorantrade, N.V., Citibank, N.A.,
as administrative agent and as collateral agent, and certain banks
named therein.
"Bank Facility Secured Parties" has the meaning set forth in
the Security Agreement.
"BNDES" means Banco Nacional de Desenvolvimento Economico e
Social, the Brazilian national development bank.
"Borrower" has the meaning set forth in the introduction
hereto.
"Borrowing Date" means the date of the making of the Loans.
"Brazil" means the Federative Republic of Brazil.
"Business Day" means a day (other than Saturday or Sunday) on
which commercial banks are not authorized or required to close in New
York City, New York, Sao Paulo, Brazil, the notice location of either
Agent as described in Section 13.2 (which on the Closing Date is
Chicago, Illinois for the Administrative Agent and New York City, New
York for the Collateral Agent) and, with respect only to any
determination of a LIBO Rate, that is also a day on which dealings in
Dollar deposits are carried out in the London interbank market. VCP
shall notify the Agents of each day (other than a Saturday or Sunday)
on which commercial banks in Sao Paulo, Brazil are authorized or
required to be closed (except that the Agents shall be deemed to have
notice that New Year's Day (January 1), Sao Paulo City Foundation Day
(January 25), Tiradentes Day (April 21), Labor Day (May 1), 1932
Revolution Day (July 9), Brazilian Independence Day (September 7),
Brazilian Patron Saint Day (October 12), All Soul's Day (November 2),
Republic Day (November 15) and Christmas Day (December 25) are such
days and VCP shall not be required to provide any such notice with
respect to any such days).
"Capital Lease Obligations" means, as to any Person, 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 Agreement, the amount of such obligations
shall be the capitalized 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.
"Carry-over Amounts" has the meaning set forth in Section
5.3(a).
"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
Credit Agreement 4
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 any commercial
bank that is a Lender or a member of the Federal Reserve System, issues
(or the parent of which issues) commercial paper rated as described in
clause (c), is organized 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 organized 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) with respect to
investments in Reais, other investments considered as cash equivalents
under Brazilian GAAP.
"Central Bank" means the Brazilian Central Bank (Banco Central
do Brasil) or any successor entity.
"Change in Control" means that: (a) Hejoassu shall cease to
own, directly or indirectly, beneficially and of record, at least a
majority of the outstanding Voting Stock of VCP or any of the Stand-by
Exporters or shall cease to have the power to direct or cause the
direction of the management and policies of VCP or any of the Stand-by
Exporters, (b) VCP shall cease to own, directly or indirectly,
beneficially and of record, 100% of the outstanding shares of Capital
Stock of VCP Exportadora or shall cease to have the power to direct or
cause the direction of the management and policies of VCP Exportadora,
(c) VCP Exportadora shall cease to own, directly or indirectly,
beneficially and of record, 100% of the outstanding shares of Capital
Stock of Newark or shall cease to have the power to direct or cause the
direction of the management and policies of Newark or (d) Newark shall
cease to own, directly or indirectly, beneficially and of record, 100%
of the outstanding shares of Capital Stock of either of the Newark
Subsidiaries or shall cease to have the power to direct or cause the
direction of the management and policies of either Newark Subsidiary.
"Citrovita" means Citrovita Agro Industrial Ltda., a Brazilian
corporation, and its successors and assigns.
"Closing Date" means May 23, 2002 (i.e., the date on which the
conditions precedent specified in Section 6.1 of this Agreement before
it was hereby amended and restated were satisfied).
"Collateral" means the Collateral (as defined in the Security
Agreement) and all other Property that, in accordance with the Loan
Documents, from time to time is subject to any Lien in favor of either
Agent on behalf of all or some of the Secured Parties.
"Collateral Account" has the meaning set forth in the Security
Agreement.
"Collateral Account Reserve Amount" means, with respect to any
Interest Period, the aggregate Debt Service Amount for the Bank
Facility for all Payment Dates scheduled to occur within the three
month period beginning with the first day of such
Credit Agreement 5
Interest Period (with respect to Interest Periods for which the LIBO
Rate has not yet been determined, calculated assuming a LIBO Rate equal
to the then-existing LIBO Rate).
"Collateral Account Termination Date" has the meaning set
forth in Section 5.2(a).
"Collateral Agent" has the meaning set forth in the
introduction hereto.
"Collection Account" has the meaning set forth in the Security
Agreement.
"Collection Subaccount" has the meaning set forth in the
Security Agreement.
"Commitment" means, as to each Lender, the obligation of such
Lender, on and subject to the terms and conditions of this Agreement,
to make Loans to the Newark Subsidiaries in an aggregate principal
amount up to but not exceeding the amount specified opposite its name
on Annex 1.
"Commitment Termination Date" means the earlier to occur of:
(a) May 23, 2002 and (b) the occurrence of a Default.
"Confidential Information" means information that any Obligor
(or any of its Affiliates on behalf of such Obligor) furnishes to
either Agent or any Lender in a writing designated as confidential, but
does not include any such information that: (a) is or becomes generally
available to the public or (b) is or becomes rightfully available to
either Agent or any Lender from a source other than an Obligor (or any
such Affiliate), which source is not subject to a confidentiality
agreement or undertaking with respect to such information that is known
to such Agent or Lender.
"Coverage Ratio" means, for any Interest Period, the ratio of:
(a) the sum of: (i) the Carry-over Amounts (if any) from the previous
Interest Period plus (ii) the aggregate amount of Tested Collections
received during: (A) for the first Interest Period, the period from the
beginning of such Interest Period to and including the day that is 30
days before the end of such Interest Period (or, if such last day is
not a Business Day, then the next Business Day), and (B) for all other
Interest Periods, the period from the beginning of such Interest Period
to and including the day that is 10 days before the end of such
Interest Period (or, if such last day is not a Business Day, then the
next Business Day), minus (iii) the sum of: (A) the Debt Service Amount
for the Other Facility and the Additional Facility plus (B) 1.25
multiplied by the Debt Service Amount for the Other Bank Facility, in
each case to be paid during such Interest Period (provided that
payments on the Payment Date that is the first day of such Interest
Period shall not be included and payments on the Payment Date at the
end of such Interest Period shall be included), to (b) the Debt Service
Amount for the Bank Facility for the Payment Date at the end of such
Interest Period.
"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
Credit Agreement 6
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.
"Debt Service Amount" has the meaning set forth in the
Security Agreement.
"Debt Service Coverage Ratio" means, as of the last day of any
fiscal quarter of VCP, the ratio (expressed as a decimal) of: (a) the
sum of: (i) EBITDA for the four consecutive fiscal quarters ending on
such day plus (ii) the amount of cash on VCP's consolidated balance
sheet as of such day plus (iii) the sum of, for each marketable
security (including Cash Equivalents) on VCP's consolidated balance
sheet as of such day, the lower of: (A) the face value and (B) the
market value of such marketable security as of such day, to (b) the
amount of Total Debt that is scheduled to mature during the four
consecutive fiscal quarters after such day plus the actual Interest
Expense incurred during the four consecutive fiscal quarters ending on
such day. For the purpose of clarification, the calculation of Debt
Service Coverage Ratio (and all components thereof) shall be made using
Brazilian GAAP.
"Default" means an Event of Default or an event that (with
notice, lapse of time or both) would become an Event of Default.
"Default Rate" means, at any time of determination, a rate per
annum equal to the sum of 2% per annum plus the Applicable Margin plus
the LIBO Rate for the then-current Interest Period.
"Dollars" and "$" mean lawful money for the time being of the
United States of America.
Credit Agreement 7
"EBITDA" means, during any period, the total earnings of VCP
(on a consolidated basis) before income taxes, Interest Expense,
depreciation and amortization 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.
"Eligible Assignee" means: (a) a commercial bank, savings and
loan association, savings bank, finance company, insurance company or
other financial institution or fund (whether a corporation, partnership
or other entity) having total assets in excess of $100,000,000 (or its
equivalent in any other currency), (b) the central bank of any OECD
Country, (c) a Lender or (d) an Affiliate of a Lender (provided that,
for as long as the Borrower (or any other Person organized in the
Netherlands Antilles) is the borrower hereunder, such Affiliate of a
Lender must qualify as a professional market party within the meaning
of Section 1 of the Implementing Regulation of Section 1(3) of the
Netherlands Antilles Ordinance on the Supervision of Credit
Institutions 1994 dated December 18, 1995); and provided further that
neither any Obligor nor any Affiliate of any thereof shall qualify as
an Eligible Assignee under any of the above clauses.
"Eligible Buyer" means: (a) subject to Section 8.13(h), each
of the Persons named on Schedule 1, (b) each other Person designated in
writing to the Administrative Agent by Newark or a Newark Subsidiary
from time to time that has its principal place of business in an OECD
Country (other than, if it should become an OECD Country, Brazil) and
that has a long-term unsecured foreign currency debt rating of at least
"A" by Standard & Poor's or "A2" by Moody's, (c) each other Person
designated in writing to the Administrative Agent by Newark or a Newark
Subsidiary from time to time (each of which shall have its principal
place of business in an OECD Country (other than, if it should become
an OECD Country, Brazil)) hereafter approved in writing by the Majority
Lenders, (d) each other Person designated in writing to the
Administrative Agent by Newark or a Newark Subsidiary from time to time
whose obligations under its Receivables shall either be: (i) covered in
full by credit insurance, (ii) covered in full by letters of credit (in
each of clauses (i) and (ii), which credit insurance or letter of
credit is issued by an OECD Country-based (other than, if it should
become an OECD Country, Brazil) institution whose long-term unsecured
foreign currency debt is rated at least "A" by Standard & Poor's or
"A2" by Moody's (each an "Eligible Financial Institution")), or (iii)
Guaranteed in full by a Person described in clause (a), (b) or (c)
above, and (e) each other Person designated in writing to the
Administrative Agent by Newark or a Newark Subsidiary from time to time
and having its principal place of business in a country (other than
Brazil) dealings with which are not generally prohibited by U.S. law or
by the United Nations, which Person shall have entered into one or more
Sales Agreements that
Credit Agreement 8
call for payment in full on a pre-shipment basis. Notwithstanding the
above, in no event shall the Obligors or an Affiliate thereof be
considered an Eligible Buyer.
"Eligible Financial Institution" has the meaning set forth in
clause (d)(ii) of the definition of "Eligible Buyer."
"Eligible LC Bank" means an OECD Country-based (other than, if
it should become an OECD Country, Brazil) institution whose long-term
unsecured foreign currency debt is rated at least "AA" by Standard &
Poor's or "Aa2" by Moody's.
"Environmental Laws" means all Applicable Laws related to
pollution, the protection of the environment or the treatment, storage,
disposal, release, threatened release or handling of hazardous
materials, and any specific agreements entered into with any
Governmental Authorities that include commitments related to
environmental matters.
"Event of Default" has the meaning set forth in Section 9.1.
"Excluded Taxes" has the meaning set forth in the definition
of "Taxes."
"Existing LC" has the meaning set forth in Section 5.6(c).
"Export Agreement" means, with respect to each Stand-by
Exporter, the Export Agreement, dated as of May 23, 2002, among Newark,
such Stand-by Exporter and the Collateral Agent.
"Export Arrangements" means, collectively, each Export
Agreement and Sales Agreement.
"External Debt" means Debt of a Person denominated in a
currency other than the lawful currency of the British Virgin Islands,
the Netherlands Antilles or Brazil.
"Facility" has the meaning set forth in the Security
Agreement.
"Facility Percentage" has the meaning set forth in the
Security Agreement.
"Final Maturity Date" means May 23, 2005.
"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.
"Fitch" means Fitch, Inc. or any successor thereto.
"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.
Credit Agreement 9
"Governmental Approval" means any action, order,
authorization, consent, approval, license, lease, ruling, permit,
tariff, rate, certification, exemption, filing or registration from, by
or with any Governmental Authority.
"Governmental Authority" means any nation or government, any
state or municipality, any multi-lateral or similar organization or any
other agency, instrumentality or political subdivision thereof and any
entity exercising executive, legislative, judicial, monetary,
regulatory or administrative functions of or pertaining to government.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
of any other Person, including any obligation, direct or indirect,
contingent or otherwise, of such other Person: (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) any Debt
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase Property, securities and/or services, to
take-or-pay or to maintain financial statement conditions or otherwise,
other than agreements to purchase Property, securities and/or services
at an arm's-length price in the ordinary course of business) or (b)
entered into for the purpose of assuring in any other manner the holder
of such Debt of the payment thereof or to protect such holder against
loss in respect thereof (in whole or in part); provided that the term
Guaranty shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guaranty" used as a verb has
a corresponding meaning.
"Hejoassu" means Hejoassu Administracao Ltda., a Brazilian
corporation.
"Interest Expense" means, for any period, interest (or
similar) expense on the Debt of VCP (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 capitalized interest, (f) any amortization of debt
discount and (g) all but the principal component of payments relating
to Capital Lease Obligations.
"Interest Period" means: (a) initially, the period commencing
on and including the Borrowing Date and ending on but excluding the
first Payment Date, and (b) thereafter, the period from the end of the
preceding Interest Period to but excluding the next Payment Date.
"Lender" has the meaning set forth in the introduction hereto.
"Letter of Instructions" has the meaning set forth in the
Security Agreement.
"LIBO Rate" means, for any Interest Period, the offered rate
for deposits in Dollars equal to or nearest the number of days in such
Interest Period that appears on Page 3750 of the Telerate Service of
Bridge Information Services (or such other page as may replace such
page on that service) ("Page 3750") as of approximately 11:00 a.m.
Credit Agreement 10
(London time) on the date two Business Days before the first day of
such Interest Period; provided that: (a) if such rate does not appear
on Page 3750, then the "LIBO Rate" shall mean, with respect to each day
during such Interest Period, the offered rate for deposits in Dollars
equal to or nearest the number of days in such Interest Period that
appears on the Reuters Screen LIBO Page as of approximately 11:00 a.m.
(London time) on the date two Business Days before the first day of
such Interest Period, and (b) if such rates do not appear on either
Page 3750 or the Reuters Screen LIBO Page, then the "LIBO Rate" shall
mean, with respect to each day during such Interest Period, the rate
per annum equal to the average (rounded upwards, if necessary, to the
nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each Reference Bank as the rate at which Dollar
deposits are offered to such Reference Bank by prime banks at or about
11:00 a.m. (London time) two Business Days before the first day of such
Interest Period in the London interbank market for delivery on the
first day of such Interest Period for a period approximately equal to
the number of days in such Interest Period and in an amount comparable
to the Loans then outstanding hereunder.
"Lien" means any mortgage, lien, pledge, usufruct, fiduciary
transfer (alienacao fiduciaria), charge, encumbrance or other security
interest or any preferential arrangement (including a securitization)
that has the practical effect of creating a security interest.
"Loan" has the meaning set forth in Section 2.1(a).
"Loan Documents" means, collectively, this Agreement, the
Notes, the Newark Note, the Security Agreement, the Account Control
Agreements, the Export Agreements, the Letters of Instructions, the
Agents' Fee Letters, the Subordination Agreement, the Transfer of Debt
Agreement, the Trading Company Collateral Documents and each other
agreement executed in connection herewith and therein identified as
such (and, unless the Administrative Agent is a party thereto,
consented to by the Administrative Agent).
"Majority Lenders" means, at any time of determination,
Lenders having more than 50% of the aggregate principal amount of the
Loans then outstanding or, if the Borrowing Date has not yet occurred,
more than 50% of the aggregate amount of the Commitments.
"Majority Secured Parties" has the meaning set forth in the
Security Agreement.
"Material Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial or otherwise), operations,
performance or Properties of VCP and its Subsidiaries (taken as a
whole), (b) the ability of any Obligor to perform its obligations under
the Loan Documents to which it is a party or (c) the rights and/or
remedies of any of the Bank Facility Secured Parties hereunder or under
any of the other Loan Documents (it being understood that whether or
not something has a material adverse effect shall take into account (to
the extent relevant) any insurance, indemnities, rights of contribution
and/or similar rights and claims available and applicable so long as
consideration is given to the nature and quality of, and likelihood of
recovery under, such insurance, indemnities, rights of contribution
and/or similar rights and claims).
Credit Agreement 11
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor thereto.
"Net Debt" means, as of the last day of any Fiscal Semester of
VCP, its Total Debt as of such date 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 VCP'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.
"Net Debt to EBITDA Ratio" means, as of the last day of any
Fiscal Semester of VCP, the ratio (expressed as a decimal) of: (a) its
Net Debt as of such day to (b) EBITDA for the two most recent Fiscal
Semesters ending on 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.
"Newark" has the meaning set forth in the introduction hereto.
"Newark Note" has the meaning set forth in Section 2.5(b).
"Newark Subsidiaries" has the meaning set forth in the
introduction hereto.
"New York Business Day" means a day (other than Saturday or
Sunday) on which commercial banks are not authorized or required to
close in New York City, New York.
"Nitro Quimica" means Cia. Nitro Quimica Brasileira, a
Brazilian corporation, and its successors and assigns.
"Note" has the meaning set forth in Section 2.5(a).
"Notice of Borrowing" has the meaning set forth in Section
2.2.
"Obligors" means, collectively, Newark, each Newark
Subsidiary, VCP, VCP Exportadora and each Stand-by Exporter.
"OECD Country" means, at any time, any nation that is a member
of the Organization of Economic Cooperation and Development at such
time.
"Original Credit Agreement" has the meaning set forth in the
Recitals hereto.
"Organizational Documents" means, with regard to any Person:
(a) its articles of incorporation or other similar document, (b) its
estatuto social, contrato social, by-laws or other similar document,
(c) any certificate of designation or other document relating to the
rights of preferred shareholders or other holders of Capital Stock of
such Person, (d) any shareholder rights agreement, registration rights
agreement, joint venture agreement or other similar agreement relating
to such Person and (e) all resolutions and consents of the shareholders
(or similar owners), the board of directors (or any committee thereof)
or similar governing body of such Person.
Credit Agreement 12
"Other Bank Facility" has the meaning set forth in the
Security Agreement.
"Other Bank Facility Agent" has the meaning set forth in the
Security Agreement.
"Other Facility" has the meaning set forth in the Security
Agreement.
"Other Facility Agent" has the meaning set forth in the
Security Agreement.
"Participant" has the meaning set forth in Section 13.7(c).
"Payment Date" means August 26, 2002 and the 24th day of each
calendar month thereafter; provided that if any such date is not a
Business Day, then such Payment Date shall be the next Business Day
unless such next Business Day would fall in another calendar month, in
which case such Payment Date shall be the preceding Business Day.
"Payor" has the meaning set forth in Section 3.7.
"Permitted Investments" means any security issued by a Person
organized in the United States of America (including the government of
the United States of America, any agency thereof or any mutual fund
organized therein), which security matures not later than the Business
Day before the Payment Date after the date of acquisition thereof (or
is a mutual fund) and is rated at least "AA" or "Aa2" (or its
equivalent with respect to a mutual fund) by Standard & Poor's or
Moody's, respectively.
"Permitted Liens" means:
(a) Liens imposed by Applicable Law that were
incurred in the ordinary course of business, including
carriers', warehousemens' and mechanics' liens, statutory
landlord's liens and other similar liens and encumbrances
arising in the ordinary course of business, in each case that:
(i) do not in the aggregate materially detract from the value
of the Property subject thereto or materially impair the use
thereof in the operations of the business of the Person owning
such Property or (ii) are being contested in good faith by
appropriate proceedings promptly initiated and diligently
conducted, which proceedings have the effect of preventing the
forfeiture or sale of the Property subject to such liens
and/or encumbrances,
(b) Liens securing taxes, assessments and other
governmental charges or levies, in each case the payment of
which is not yet due or is being contested in good faith by
appropriate proceedings promptly initiated and diligently
conducted and for which such reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have
been made,
(c) pledges or deposits made in the ordinary course
of business in connection with workers' compensation,
unemployment insurance or other similar social security
legislation, and
Credit Agreement 13
(d) security deposits or reserves maintained in the
ordinary course of business and required by Applicable Law.
"Person" means any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture,
trust, unincorporated organization, Governmental Authority or other
entity of whatever nature.
"Principal Payment Date" means each Payment Date from and
including the Payment Date in June 2003.
"Process Agent" has the meaning set forth in Section 13.12(b).
"Products" means: (a) wood pulp, coated and uncoated papers
and other products, in each case produced in Brazil by VCP, one of its
Subsidiaries or a Stand-by Exporter, (b) other products produced in
Brazil by any other Person and sold by VCP (or one of its Subsidiaries)
to Newark to satisfy the obligations under Section 8.13(d), and (c)
other products purchased by Newark from another Person as described in
Section 8.6(c)(ii)(A).
"Projected Available Collections" means, with respect to any
Interest Period: (a) the aggregate amount of collections relating to
export sales of VCP's (or one of its Subsidiaries) Products projected
to be received from Eligible Buyers during such Interest Period minus
(b) the sum of the aggregate amount of principal, interest, fees,
expenses and other amounts (multiplied by the higher of one and any
minimum required debt service coverage ratio for the applicable Debt)
that is projected to be paid during such Interest Period (and on the
Payment Date at the end thereof) by VCP (and/or any of its
Subsidiaries) on all outstanding Debt (other than the "Secured
Obligations" as defined in the Security Agreement) that is secured by
(or otherwise expected to be repaid from) collections relating to
export sales of VCP's (or one of its Subsidiaries') Products; provided
that interest payable on any such Debt that does not have a fixed
interest rate shall be calculated using an interest rate equal to the
then-current interest rate corresponding to such Debt plus an
additional 1% per annum, plus (c) with respect to each such other Debt
facility, but without duplication, the lower of: (i) the amount
included in clause (b) for such Interest Period with respect to such
item of Debt and (ii) the aggregate amount of collections relating to
export sales of VCP's (or one of its Subsidiaries') Products projected
to be received during such Interest Period from "eligible buyers" (or a
similar concept) under such Debt facility that are not also Eligible
Buyers hereunder.
"Property" of any Person means any property, rights or
revenues, or interest therein, of such Person.
"Rating Agency" means any of Standard & Poor's, Moody's or
Fitch.
"Receivable" means each account or payment intangible (each as
defined in Article 9 of the UCC) or similar obligation arising under
any Sales Agreement (including any such agreement that no longer
exists).
Credit Agreement 14
"Reference Banks" means the principal London offices of ABN
AMRO, Citibank, N.A. and Barclays Bank PLC, or their respective
successors.
"Register" has the meaning set forth in Section 13.7(b).
"Replacement LC" has the meaning set forth in Section 5.6(c).
"Required Payment" has the meaning set forth in Section 3.7.
"Reserve Account" has the meaning set forth in the Security
Agreement.
"Reserve Letter of Credit" means a letter of credit that: (a)
is issued by an Eligible LC Bank, (b) has a face amount (denominated
and payable in Dollars in the United States) at least equal to the
Collateral Account Reserve Amount calculated at the time of the
issuance of such letter of credit, (c) is irrevocable and (d) is
otherwise reasonably acceptable to the Collateral Agent.
"Reuters Screen LIBO Page" means the display designated as
page "LIBO" on the Reuter Monitor Money Rates Service or such other
page as may replace the "LIBO" page on that service for the purpose of
displaying London interbank offered rates for the deposit of Dollars of
major banks.
"Sales Agreement" means each contract or other agreement
(which may be formed by exchange of letters, e-mail, other electronic
communication or other correspondence (including purchase orders) or
verbally) from time to time entered into by either Newark Subsidiary
(or any other Person on its behalf) with a customer for the sale of
Products.
"Sales Collateral" has the meaning set forth in the Security
Agreement.
"Secured Parties" has the meaning set forth in the Security
Agreement.
"Security Agreement" means the Amended and Restated Security
Agreement, dated as of May 23, 2002 and amended and restated as of
April 26, 2004, among Newark, the Newark Subsidiaries, VCP Exportadora,
the Other Bank Facility Agent, the Additional Facility Agent, the Other
Facility Agent and the Collateral Agent.
"Specified Event" means the failure to obtain a Coverage Ratio
for any Interest Period of at least 1.00.
"Standard & Poor's" means Standard & Poor's Ratings Group, a
division of XxXxxx-Xxxx, Inc., or any successor thereto.
"Stand-by Exporter" means each of Citrovita and Nitro Quimica.
"Subordination Agreement" means the Amended and Restated
Subordination Agreement, dated as of May 23, 2002 and amended and
restated as of April 26, 2004, among VCP, VCP Exportadora, each Newark
Subsidiary, Newark and the Collateral
Credit Agreement 15
Agent and to which additional Affiliates of Newark may from time to
time enter into a joinder thereto.
"Subsidiary" means, with respect to any Person, any
corporation or other entity more than 50% of the Voting Stock in which
is owned or controlled, directly or indirectly, by such Person and/or
by any Subsidiary of such Person.
"Taxes" means all present and future income, stamp,
registration and other taxes and levies, imposts, deductions, charges
and withholdings whatsoever, and all interest, penalties or similar
amounts with respect thereto or with respect to the non-payment
thereof, now or hereafter imposed, assessed, levied or collected by any
authority, on or in respect of any Loan Document, any Loan, any Sales
Agreement, any payment under this Agreement, any other Loan Document or
any Sales Agreement or the recording, registration, notarization or
other formalization of any thereof; provided that Taxes shall not
include any of the following excluded taxes ("Excluded Taxes"): (a) any
income, franchise, real property or other similar taxes imposed upon
any Bank Facility Secured Party by the jurisdiction under the laws of
which such Bank Facility Secured Party is organized, in which such Bank
Facility Secured Party has its principal place of business or permanent
establishment or, if a Lender, in which its Applicable Lending Office
is located and (b) any taxes that are attributable solely to the
failure of any Bank Facility Secured Party to comply with Section
4.5(e).
"Tested Collections" means, subject to Section 5.1(b), the
collections in respect of Receivables that are deposited into the
Collection Account by: (a) Eligible Buyers (or Eligible Financial
Institutions on their behalf) that have received Letters of
Instructions by the time of such deposit and (b) customers of Products
purchased under a supply contract provided pursuant to Section
8.6(c)(ii).
"Total Capitalization" means, as of the last day of any fiscal
quarter of VCP, the sum of: (a) the Total Debt as of such day plus (b)
the net worth of VCP (on a consolidated basis) as of such day plus (c)
without duplication of clause (b), the sum of minority interests in
other Persons held by VCP (on a consolidated basis) as of such day.
"Total Debt" means, as of the last day of any fiscal quarter
of VCP, the aggregate outstanding principal amount of Debt of VCP (on a
consolidated basis) as of such day.
"Total Debt to Total Capitalization Ratio" means, as of the
last day of any Fiscal Semester of VCP, the ratio (expressed as a
decimal) of: (a) the Total Debt as of such day to (b) the Total
Capitalization as of such day. For the purpose of clarification, the
calculation of the Total Debt to Total Capitalization Ratio (and all
components thereof) shall be made using Brazilian GAAP.
"Trading Company" has the meaning set forth in the Security
Agreement.
"Trading Company Collateral Documents" has the meaning set
forth in the Security Agreement.
"Transfer of Debt" has the meaning set forth in the Recitals
hereto.
Credit Agreement 16
"Transfer of Debt Agreement" means the Transfer of Debt
Agreement, dated as of April 26, 2004, among Newark, the Newark
Subsidiaries, VCP Exportadora and VCP.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York.
"U.S. GAAP" means the generally accepted accounting principles
in the United States of America.
"VCP" has the meaning set forth in the introductory paragraph
hereto.
"VCP Exportadora" has the meaning set forth in the
introductory paragraph hereto.
"VCP NA" has the meaning set forth in the introductory
paragraph hereto.
"VCP Party" means each of VCP, each of its Subsidiaries
(including VCP Exportadora, the Trading Company, Newark and the Newark
Subsidiaries) and each Stand-by Exporter.
"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).
"Votorantim Group" means the group of related companies
commonly known as the "Votorantim Group" comprised of Hejoassu and its
Subsidiaries (which companies include each of the Obligors).
Section 1.2 Other Interpretive Provisions. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and any subsection, Section, Article, Annex, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(c) The term "documents" includes any and all documents, instruments,
written agreements, certificates, indentures, notices and other writings,
however evidenced (including electronically).
(d) The term "including" is not limiting and (except to the extent
specifically provided otherwise) shall mean "including without limitation."
(e) Unless otherwise specified, in the computation of periods of time
from a specified date to a later specified date, the word "from" shall mean
"from and including," the words "to" and "until" each shall mean "to but
excluding," and the word "through" shall mean "to and including."
Credit Agreement 17
(f) The terms "may" and "might" and similar terms used with respect to
the taking of an action by any Person shall reflect that such action is optional
and not required to be taken by such Person.
(g) Unless otherwise expressly provided herein: (i) references to
agreements (including this Agreement) and other documents shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent that such amendments and other modifications are not prohibited by
any Loan Document, and (ii) references to any Applicable Law are to be construed
as including all statutory and regulatory provisions or rules consolidating,
amending, replacing, supplementing, interpreting or implementing such Applicable
Law.
(h) The Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such limitations,
tests and measurements are cumulative and shall be performed in accordance with
their terms.
(i) The Loan Documents are the result of negotiations among and have
been reviewed by counsel to the Agents, the Arranger, the Obligors and the
Lenders, and are the products of all such Persons. Accordingly, they shall not
be construed against the Lenders, the Arranger, the Agents or any other Bank
Facility Secured Party merely because of any such Person's involvement in their
preparation.
ARTICLE II
LOANS, ETC.
Section 2.1 Loans. (a) Each Lender severally agrees, on and subject to
the terms and conditions of this Agreement, to make a loan or loans (its
"Loans") to the Borrower in Dollars on any one New York Business Day on or
before the Commitment Termination Date in an aggregate principal amount up to
and including, but not to exceed, the amount of such Lender's Commitment and, as
to all Lenders, in an aggregate principal amount up to and including, but not to
exceed, $380,000,000. Any amounts not borrowed on the Borrowing Date may not be
borrowed thereafter and any available amounts not requested to be borrowed
hereunder shall result in the pro rata irrevocable termination of an equivalent
amount of Commitments on the day on which the Administrative Agent receives the
Notice of Borrowing.
(b) Except as otherwise specifically provided herein, the proceeds of
the Loans (less any fees and expenses then due and payable under Sections 2.3
and 13.3) shall be used by the Borrower solely to make to Newark a prepayment
for the sale of Products by Newark to the Borrower. Newark shall apply the
proceeds of such prepayment(s) solely to finance the repayment in full of all of
its existing Debt and to fund the Collateral Account established pursuant to
Section 5.2.
Section 2.2 Borrowing. The Borrower shall give the Administrative Agent
notice of a request for the Loans hereunder in substantially the form of Exhibit
C (the "Notice of Borrowing") as provided in Section 3.6. Not later than 11:00
a.m. (New York time) on the requested Borrowing Date, each Lender shall make
available the amount of its Loan to the Administrative Agent, at the
Administrative Agent's Account, in Dollars and immediately
Credit Agreement 18
available funds, for the account of the Borrower. The amount so received by the
Administrative Agent shall, on the Borrowing Date, be applied by the
Administrative Agent (on behalf of the Borrower) to pay all fees and expenses
then due and payable under Sections 2.3 and 13.3 and to make a prepayment to
Newark for the sale of Products. The Administrative Agent shall, on the
Borrowing Date, apply the proceeds of such prepayment (on behalf of Newark) to
repay Newark's existing Debt in accordance with remittance instructions
delivered by Newark and, if so requested by Newark in such instructions, to fund
the Collateral Account.
Section 2.3 Fees. Newark shall pay to the Agents and the Arranger fees
in such amounts and at such times as previously agreed upon between Newark and
each such Person, including (with respect to the Agents) as provided in the
Agents' Fee Letters.
Section 2.4 Several Obligations; Remedies Independent. The failure of
any Lender to make the Loan(s) to be made by it on the Borrowing Date shall not
relieve any other Lender of its obligation to make its Loan(s) on such date, but
neither any Lender nor any Agent shall be responsible for the failure of any
other Lender to make the Loan(s) to be made by such other Lender and (except as
otherwise provided in Section 3.7) no Lender shall have any obligation to either
Agent or any other Lender for the failure by such Lender to make the Loan(s)
required to be made by such Lender.
Section 2.5 Notes. (a) The Loan(s) made by each Lender shall be
evidenced by a promissory note of the Borrower, substantially in the form of
Exhibit A-1 (each a "Note"), dated the Borrowing Date, payable to such Lender in
a principal amount equal to the amount of such Loan and otherwise duly
completed.
(b) The prepayment for Products made by the Borrower to Newark shall be
evidenced by a promissory note of Newark, substantially in the form of Exhibit
A-2 (the "Newark Note"), dated the Borrowing Date and amended and restated as of
April 26, 2004, payable to the Borrower in a principal amount equal to such
prepayment and otherwise duly completed.
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.1 Repayment of the Loans. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender the full principal amount of
the Loans in 24 equal consecutive monthly installments, one payable on each
Principal Payment Date; provided that the final such installment shall be in an
amount equal to the then aggregate unpaid principal amount of the Loans. The
Borrower agrees that its obligations under this Agreement and the other Loan
Documents are general obligations of the Borrower and that the recourse of the
Lenders, the Administrative Agent and the other Bank Facility Secured Parties in
respect thereof is not limited to the Collateral or any portion thereof.
Section 3.2 Interest. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender interest on the unpaid
principal amount of the Loan(s) made by such Lender for the period from and
including the Borrowing Date to but excluding the date on which such Loan is
paid in full, in respect of each Interest Period, at a rate per annum equal to
the
Credit Agreement 19
LIBO Rate for such Interest Period plus the Applicable Margin. Such interest
shall continue to accrue after as well as before any bankruptcy, insolvency,
reorganization, concordata, liquidation, falencia, dissolution, arrangement or
winding up or composition or readjustment of debts of any VCP Party.
(b) Notwithstanding the foregoing, the Borrower agrees to pay to the
Administrative Agent for the account of each Lender interest on the Loans at the
Default Rate at any time during the existence of an Event of Default.
(c) Accrued interest on the Loans shall be payable on each Payment Date
and (on the principal amount so prepaid) upon each pre-payment of principal
thereof; provided that interest payable at the Default Rate shall also be
payable from time to time on demand by the Administrative Agent.
(d) Promptly after the determination of any interest rate provided for
herein or any change therein, the Administrative Agent shall give notice thereof
to the Lenders and to Newark (it being understood that the Administrative
Agent's failure to do so shall not affect the interest rate applicable
hereunder).
(e) Interest on the Loans based upon the LIBO Rate shall be computed on
the basis of a year of 360 days and actual days elapsed (including the first day
but excluding the last day) occurring in the period for which payable.
Section 3.3 Optional Pre-payments. The Borrower may prepay all or a
portion of the Loans 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 Agreement
(including Section 4.4) but without premium or penalty (subject to Section 4.4);
provided that: (a) the Borrower shall give the Administrative Agent notice of
each such pre-payment as provided in Section 3.6 (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
Loans being prepaid and (c) each partial pre-payment shall be in the aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall be applied to the installments of the Loans in the inverse order of
maturity. Amounts prepaid hereunder may not be reborrowed.
Section 3.4 Payments. (a) All payments of principal, interest and other
amounts to be made by (or on behalf of) the Borrower to the Bank Facility
Secured Parties under this Agreement and the other Loan Documents (including
payments made pursuant to Section 5.3(c)) shall be received in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, in the
Administrative Agent's Account not later than 11:00 a.m. (New York time) on the
date on which such payment shall become due (each such payment received after
such time on such due date to be deemed to have been received on the next New
York Business Day; it being understood that such late payment received before
3:00 p.m. (New York time) on such due date shall not be considered a Default).
(b) The Borrower shall, subject to Sections 3.5 and 5.3(c), at the time
of making each payment under this Agreement and the other Loan Documents
(including payments made
Credit Agreement 20
pursuant to Section 5.3(c)) for the account of any Bank Facility Secured Party,
specify to the Administrative Agent (who shall notify the intended recipient(s)
thereof) the amounts payable under the Loan Documents to which such payment is
to be applied (and if the Borrower fails so to specify, or if an Event of
Default exists, then the Administrative Agent may distribute such payment for
application in such manner as it or the Majority Lenders, subject to Sections
3.5 and 5.3(c), may determine to be appropriate).
(c) Each payment received by the Administrative Agent under this
Agreement or any other Loan Document for the account of any recipient shall be
paid by the Administrative Agent promptly to such recipient, in immediately
available funds, for the account of such recipient (with respect to a Lender,
for the account of its Applicable Lending Office). Should any such payment not
be made by the Administrative Agent within one Business Day of its receipt of
funds for such payment, then the Administrative Agent shall also pay (out of its
own funds) to the applicable recipient(s) of such payments interest thereon for
each day thereafter at a rate equal to the per annum rate specified by such
recipient(s) as its/their cost of funding such amount for the applicable period
(which cost of funding shall be reasonably determined by such recipient and
notified to the Administrative Agent in reasonable detail).
(d) If the due date of any payment to any Bank Facility Secured Party
under this Agreement or any other Loan Document would otherwise fall on a day
that is not a Business Day, then such date shall be extended to the next
Business Day and interest (if any is applicable to such payment) shall be
payable for any amount so extended for the period of such extension.
Section 3.5 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) the Loans shall be made by the Lenders pro rata according to the
amounts of their respective Commitments, (b) each payment of principal of the
Loans shall be made for the account of the Lenders pro rata in accordance with
the respective unpaid principal amounts of the Loans then held by them and (c)
each payment of interest on the Loans shall be made for the account of the
Lenders pro rata in accordance with the respective amounts of interest on the
Loans then due and payable to them.
Section 3.6 Certain Notices. The Notice of Borrowing shall be effective
only if received by the Administrative Agent not later than 11:00 a.m. (New York
time) on the date two Business Days before the requested Borrowing Date (which
Notice of Borrowing can be delivered prior to the Closing Date with the consent
of the Administrative Agent) and each notice of optional pre-payment pursuant to
Section 3.3 shall be effective only if received by the Administrative Agent not
later than 11:00 a.m. (New York time) on the date five Business Days before the
date of such pre-payment. The Notice of Borrowing and each notice of optional
pre-payment shall specify the amount to be borrowed or prepaid and the requested
Borrowing Date or pre-payment date (each of which dates shall be a New York
Business Day). The Administrative Agent shall promptly notify the Lenders of the
contents of each such notice.
Section 3.7 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified in writing by any Lender or
the Borrower, (in each case, the "Payor") before the date on which the Payor is
to make payment to the Administrative Agent (in the case of a Lender) of the
proceeds of the Loan to be made by such Lender hereunder or (in the case of the
Borrower) of a payment to the Administrative Agent for the account of one
Credit Agreement 21
or more of the Lenders hereunder (any such payment being herein called the
"Required Payment") that such Payor will not make its Required Payment, the
Administrative Agent may assume that the Payor is making its Required Payment
available to the Administrative Agent and may, in reliance upon such assumption,
make available to the Lenders or the Borrower, as the case may be, a
corresponding amount. If such amount is so advanced by the Administrative Agent
but not made available by the Payor to the Administrative Agent by the required
time on such date, then the Payor shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate: (a) in the case of a
Lender, equal to the rate specified by the Administrative Agent as its cost of
funding such amount for the applicable period, and (b) in the case of the
Borrower, equal to the then-applicable Default Rate, in each case until such
amount is paid in full (in immediately available Dollars) to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Payor with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.
Section 3.8 Set-Off; Sharing of Payments. (a) Without limiting any of
the obligations of the Borrower or the rights of any Bank Facility Secured Party
under the Loan Documents, if Newark, VCP Exportadora, VCP or either Newark
Subsidiary shall fail to pay when due (whether at stated maturity, by
acceleration or otherwise) any amount payable by it hereunder or under any other
Loan Document, then (to the extent not in violation of Applicable Law) each Bank
Facility Secured Party may, without prior notice to Newark, VCP Exportadora, VCP
or either Newark Subsidiary (which notice is expressly waived by it to the
fullest extent permitted by Applicable Law), set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final, in any currency, matured or unmatured) at any time held or
any other Debt owing by such Bank Facility Secured Party or any of its
Affiliates (in each case, including any branch or agency thereof) to or for the
credit or account of Newark, VCP Exportadora, VCP or either Newark Subsidiary.
Each Bank Facility Secured Party shall promptly provide notice of any such
set-off by it to Newark, VCP Exportadora, VCP or either Newark Subsidiary, as
applicable, and the Administrative Agent; provided that failure by such Bank
Facility Secured Party to provide such notice shall not give either Newark, VCP
Exportadora, VCP or either Newark Subsidiary any cause of action or right to
damages or affect the validity of such set-off and application.
(b) If any Bank Facility Secured Party shall obtain from Newark, VCP
Exportadora, VCP or either Newark Subsidiary payment of any principal of or
interest on its Loan or payment of any other amount under this Agreement or the
other Loan Documents through the exercise of any right of set-off, banker's
lien, counterclaim or similar right or for any other reason (other than from the
Agents as provided herein), and, as a result of such payment, such Bank Facility
Secured Party shall have received a percentage of the principal of or interest
on the Loans or such other amounts then due under the Loan Documents in excess
of such Bank Facility Secured Party's share thereof, then it shall promptly
notify the Administrative Agent thereof and purchase from the applicable other
Bank Facility Secured Parties participations in (or, if and to the extent
specified by any such other Bank Facility Secured Party, direct interests in)
the Loans or such other amounts, respectively, owing to such other Bank Facility
Secured Parties (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time, as shall be
equitable, to the end that all the applicable Bank Facility Secured Parties
shall share the benefit of such excess payment (net of any expenses that may be
incurred by such Bank Facility Secured Party in obtaining or preserving such
excess payment) pro rata in accordance
Credit Agreement 22
with the unpaid principal of and/or interest on the Loans or such other amounts,
respectively, owing to each of the Bank Facility Secured Parties under the Loan
Documents. To such end, all such Bank Facility Secured Parties shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Nothing contained in this Section shall require any Bank Facility
Secured Party to exercise any such right or shall affect the right of any Bank
Facility Secured Party to exercise, and retain the benefits of exercising, any
such right with respect to any other Debt or obligation of Newark, VCP
Exportadora, VCP or either Newark Subsidiary.
ARTICLE IV
YIELD PROTECTION, ETC.
Section 4.1 Additional Costs. (a) If the adoption of any Applicable
Law, or any change in any Applicable Law, or any change in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any Governmental Authority (in each case above, at any time
on or after May 23, 2002), shall impose, modify or deem applicable any reserve
(including any such requirement imposed by the Board of Governors of the U.S.
Federal Reserve System), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender (or its Applicable Lending Office) or shall impose upon
any Lender (or its Applicable Lending Office) or the London interbank market any
other condition affecting its Loan(s), its Note(s) or its obligation to make its
Loan, and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making or maintaining its Loan(s),
or to reduce the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or under any other Loan Document
(other than Taxes (including Excluded Taxes), which shall be treated pursuant to
Section 4.5), then the Borrower shall pay to the Administrative Agent for the
account of such Lender such additional amount(s) as will compensate such Lender
for such increased cost or reduction.
(b) If any Lender shall have reasonably determined that the adoption of
any Applicable Law regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof, or
compliance by it (or its Applicable Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Governmental Authority (in each case above, at any time on or after May 23,
2002), has or would have the effect of reducing the rate of return on capital of
such Lender (or its parent or Applicable Lending Office) as a consequence of
such Lender's obligations hereunder or its Loan(s) to a level below that which
such Lender (or its parent or Applicable Lending Office) could have achieved but
for such adoption, change, request or directive, then from time to time the
Borrower shall pay to such Lender such additional amount as will compensate such
Lender (or its parent or Applicable Lending Office, as the case may be) for such
reduction.
Credit Agreement 23
(c) Each Lender shall promptly (and, in any event, within 90 days of
its actual knowledge thereof) notify the Borrower of any event of which it has
knowledge that will entitle such Lender to compensation pursuant to this Section
and shall provide the Borrower with reasonable detail as to the basis of such
Lender's claim to compensation hereunder and method for calculating such
compensation; it being understood that any failure of any Lender to deliver any
such notice shall result in its not being able to seek compensation pursuant to
this Section for the period from and including the date of its actual knowledge
of such event to but excluding the date that is 90 days before the date on which
it has notified the Borrower of such event. Before giving any such notice, a
Lender shall designate a different Applicable Lending Office if such
designation: (i) will avoid the need for, or reduce the amount of, such
compensation and (ii) will not, in the reasonable judgment of such Lender, be
disadvantageous to such Lender. A notice of any Lender claiming compensation
under this Section and providing the information set forth above within the time
set forth above shall be prima facie evidence of its entitlement to such
compensation and shall be binding upon the Borrower in the absence of manifest
error and such amounts shall be payable by the Borrower promptly (and, in any
event, within five Business Days) after receipt of such notice (or, if such
compensation relates to future dates, by no later than the applicable dates
indicated in such notice).
(d) For purposes of calculating amounts payable under this Section and
Section 4.4, each Loan conclusively shall be deemed to have been funded at the
LIBO Rate applicable to such Loan by a matching deposit or other borrowing in
the interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Loan was in fact so funded.
Section 4.2 Substitute Basis. If, on or before the first day of any
Interest Period (an "Affected Interest Period"):
(a) the Administrative Agent determines that, by reason of
circumstances affecting the London interbank market, the LIBO Rate
cannot be determined for such Affected Interest Period pursuant to the
definition thereof, or
(b) the Majority Lenders determine and notify the
Administrative Agent that the LIBO Rate for such Affected Interest
Period will not be adequate to cover the cost to such Lenders of making
or maintaining their Loans for such Affected Interest Period, then: (i)
the Administrative Agent and the Borrower shall negotiate in good faith
to determine a mutually agreeable rate of interest applicable to the
affected Loans during the Affected Interest Period (it being understood
that each affected Lender must consent to such interest rate) and (ii)
if no agreement can be so reached by the tenth Business Day of the
Affected Interest Period, then each affected Lender shall determine
(and shall certify from time to time in a certificate delivered by such
Lender to the Administrative Agent setting forth in reasonable detail
the basis of the computation of such amount), which determination shall
be made in a commercially reasonable manner, the rate basis reflecting
the cost to such Lender of funding its Loan(s) for the Affected
Interest Period, and such rate basis shall be binding upon the Borrower
and shall apply in lieu of the LIBO Rate for such Interest Period in
the absence of manifest error.
Credit Agreement 24
Section 4.3 Illegality. Notwithstanding any other provision of this
Agreement, if the adoption of or any change in any Applicable Law or in the
interpretation or application thereof by any Governmental Authority (in each
case, at any time on or after May 23, 2002) shall make it (or be asserted by it
to be) unlawful for any Lender or its Applicable Lending Office to honor its
obligation to make or maintain its Loan(s) hereunder (and, in the opinion of
such Lender, the designation of a different Applicable Lending Office would
either not avoid such unlawfulness or would be disadvantageous to such Lender),
then such Lender shall promptly notify the Borrower thereof (with a copy to the
Administrative Agent), following which notice: (a) such Lender's Commitment (if
still available) shall be suspended until such time as such Lender may again
make and maintain its Loan(s) or (b) if such Applicable Law shall so mandate,
such Lender's Loan(s) shall be prepaid by the Borrower, together with accrued
and unpaid interest thereon and all other amounts payable to such Lender by the
Borrower under the Loan Documents, on or before such date as shall be mandated
by such Applicable Law (such pre-payment not being shared as described in
Section 3.8(b) with any Lenders not so affected); provided that if it is lawful
for such Lender to maintain its Loan(s) until the next Payment Date, then such
payment shall be made on such Payment Date. Any such funds so prepaid may not be
reborrowed.
Section 4.4 Funding Losses. The Borrower shall pay to the
Administrative Agent for the account of each Lender, upon the request of such
Lender through the Administrative Agent, such amount as shall be sufficient (in
the reasonable opinion of such Lender) to compensate it for any loss, cost or
expense (including any such loss, cost or expense arising from the liquidation
or reemployment of funds obtained by such Lender to fund its Loan(s) or from
fees payable to terminate the deposits from which such funds were obtained,
except for any loss of the Applicable Margin) that such Lender determines is
attributable to:
(a) any optional or mandatory pre-payment (including as a
result of an acceleration due to an Event of Default pursuant to
Section 9.1) of the Loan(s) made by such Lender for any reason on a
date other than a Payment Date, or
(b) any failure by the Borrower for any reason (including the
failure of any of the conditions precedent specified in Article VI to
be satisfied) to make a requested borrowing hereunder on the requested
Borrowing Date specified in the Notice of Borrowing given pursuant to
Section 2.2 or to prepay the Loans (or any portion thereof) in
accordance with a notice of pre-payment under Section 3.3.
Each Lender shall furnish to the Borrower a notice setting forth the basis and
amount of each request by such Lender for compensation under this Section, which
notice shall provide reasonable detail as to the calculation of such loss, cost
or expense, and shall be conclusive and binding upon the Borrower in the absence
of manifest error. For purpose of calculating amounts payable hereunder,
reference is hereby made to Section 4.1(d).
Section 4.5 Taxes. (a) All payments on account of the principal of and
interest on the Loans and the Notes, and fees and all other amounts payable
under the Loan Documents by the Borrower to or for the account of either Agent,
any Lender or any other Bank Facility Secured Party, including amounts payable
under clauses (b) and (c), shall (except to the extent required
Credit Agreement 25
by Applicable Law) be made free and clear of and without reduction or liability
for or on account of any Taxes.
(b) The Borrower shall indemnify each Bank Facility Secured Party
against, and reimburse each Bank Facility Secured Party on demand for, any Taxes
and any loss, liability, claim or expense, including interest, penalties and
legal fees, that such Bank Facility Secured Party may incur at any time arising
out of or in connection with any failure of Newark to make any payment of Taxes
under clause (c) when due.
(c) If the Borrower, any Person (including any other Obligor) making a
payment under the Loan Documents on behalf of any Obligor or either Agent shall
be required by Applicable Law to deduct or withhold any Taxes from any amounts
payable to any Bank Facility Secured Party on, under or in respect of the Loan
Documents or the Loans, then the Borrower, shall: (i) deduct or withhold and pay
such Taxes in accordance with such Applicable Law and (ii) promptly (and, in any
event, within five Business Days after the Borrower's knowledge of the
application of such Taxes) pay the Administrative Agent (on behalf of the Bank
Facility Secured Party entitled to such amount) such additional amounts as may
be required, after the deduction or withholding of such Taxes (including any
Taxes on any such additional amounts), to enable such Bank Facility Secured
Party to receive on the due date thereof an amount equal to the full amount
stated to be payable to such Bank Facility Secured Party under the Loan
Documents.
(d) Except to the extent prohibited by Applicable Law, the Borrower
shall furnish to the Administrative Agent, upon the request of any Bank Facility
Secured Party (through the Administrative Agent), together with certified copies
for distribution to each Bank Facility Secured Party requesting the same,
original official tax receipts (if available or, if not, a certified copy
thereof if available) in respect of each payment of Taxes required under this
Section, as soon as is reasonably practical after the date that such payment is
made, and shall promptly furnish to the Administrative Agent at its request or
at the request of any Bank Facility Secured Party (through the Administrative
Agent) any other information, documents and receipts that the Administrative
Agent or such Bank Facility Secured Party may reasonably request to establish
that full and timely payment has been made of all Taxes with respect to which
indemnification is required to be paid under this Section to such Bank Facility
Secured Party.
(e) Each Bank Facility Secured Party that is entitled under Applicable
Law to an exemption from or reduction of withholding tax with respect to any
payments made by (or on behalf of) any Obligor pursuant to the Loan Documents
agrees (or shall be deemed to have agreed) to comply with any certification,
identification, information, documentation or other reporting requirement if:
(i) such compliance is required by Applicable Law as a precondition to such
exemption or reduction and (ii) at least 30 days before the first date with
respect to which the Borrower shall apply this paragraph with respect to such
requirement, such Obligor shall have notified the relevant Bank Facility Secured
Party that such Bank Facility Secured Party will be required to comply with such
requirement; provided that compliance with such requirement shall not apply to
the extent that it would require disclosure by a Bank Facility Secured Party of
information that such Bank Facility Secured Party reasonably considers to be
confidential or otherwise materially disadvantageous to disclose.
Notwithstanding the foregoing, each Bank Facility Secured Party that is not
organized under the laws of the United States of America or any state thereof
shall deliver to the Administrative Agent and to VCP NA, on or before the
Credit Agreement 26
Closing Date (or, in the case of a Bank Facility Secured Party that becomes a
Bank Facility Secured Party after the Closing Date, on or before such later date
on which such Bank Facility Secured Party acquires its interest in the Loan
Documents) to the extent such Bank Facility Secured Party reasonably qualifies
under Applicable Law, such properly completed and executed Internal Revenue
Service form (Form W-8BEN, W-8ECI, W-8EXP, W-8IMY or W-9, as applicable) and any
other certifications necessary to demonstrate that relevant payments by VCP NA
pursuant to its Guaranty under Article XI will be exempt from United States
federal withholding taxes. For the avoidance of doubt, the preceding sentence
shall not relieve VCP NA of its obligations to Guaranty the Borrower's
obligations under clauses (b) and (c) should it be finally determined under
Applicable Law that a Bank Facility Secured Party was subject to United States
federal withholding taxes on such Guaranty payments by VCP NA.
(f) Any Bank Facility Secured Party that becomes entitled to the
payment of additional amounts pursuant to clause (c) shall use reasonable
efforts (consistent with Applicable Law) to file any document reasonably
requested by the Borrower or, if a Lender, to change the jurisdiction of its
Applicable Lending Office if the making of such a filing or change of office, as
the case may be, would avoid the need for or reduce the amount of any payment of
such additional amounts that may thereafter accrue and would not, in the
reasonable determination of such Bank Facility Secured Party, be otherwise
disadvantageous to it.
(g) If the Borrower reasonably determines that any Taxes as to which it
made a payment of additional amounts to a Bank Facility Secured Party pursuant
to clause (c) were erroneously assessed, then the Borrower may notify such Bank
Facility Secured Party of its determination thereof (along with a detailed
description of the reason why the Borrower believes that such Taxes were
erroneously assessed) and request that such Bank Facility Secured Party refund
to the Borrower the amount of such additional amounts. Upon its receipt of any
such notice, and if such Bank Facility Secured Party determines (in good faith)
that the Borrower's determination with respect to such matter is correct, then
such Bank Facility Secured Party shall (at the request and expense of the
Borrower): (i) refund to the Borrower such amounts (without any interest
thereon) that have been actually received by such Bank Facility Secured Party
and/or (ii) reasonably cooperate with the Borrower in seeking a refund from the
appropriate Governmental Authority of any such Taxes erroneously assessed by,
and paid to, such Governmental Authority.
(h) The Borrower agrees to pay all present and future stamp, court or
documentary taxes and any other excise taxes, charges or similar levies and any
related interest or penalties incidental thereto imposed by any taxing authority
that arises from any payment made by (or on behalf of) the Borrower under the
Loan Documents, from the execution, delivery, enforcement or registration of the
Loan Documents or from the filing, registration, recording or perfection of any
security interest contemplated by the Loan Documents.
ARTICLE V
COLLECTION ACCOUNT, COLLATERAL ACCOUNT, ETC.
Section 5.1 The Collection Account. (a) Newark and the Newark
Subsidiaries shall, on or before the Closing Date, have established the
Collection Account and the Collection
Credit Agreement 27
Subaccount. VCP shall (or shall cause Newark, either Newark Subsidiary or one of
its other Subsidiaries to) instruct each customer to send the payments for any
Receivables to the Collection Account, which instruction may be delivered in a
Letter of Instructions, a payment invoice or other ordinary course
documentation.
(b) From time to time, Newark or either Newark Subsidiary (as
applicable) may deliver one or more Letter(s) of Instructions with respect to
any of its customers to the Collateral Agent executed by Newark or such Newark
Subsidiary. Promptly after its receipt of any Letter of Instructions, the
Collateral Agent shall countersign such Letter of Instructions and deliver a
copy thereof to the indicated customer (which delivery shall be done via
certified mail, courier or other method whereby confirmation of the customer's
receipt of such delivery is obtained). Notwithstanding the above, to the extent
that VCP, VCP Exportadora, Newark or either Newark Subsidiary (who shall
promptly notify the Collateral Agent thereof) or either Agent shall at any time
reasonably determine that delivery of a Letter of Instructions as set forth
above is not sufficient to require the customers in any jurisdiction to make
payment of their Receivables to the Collection Account, either Agent may require
that such customers acknowledge the Letters of Instructions or that other
actions be taken to ensure that such customer(s) are so required and the
collections on such Receivables shall then not be considered "Tested
Collections" until the requesting Agent has confirmed to Newark (and the other
Agent) that such requirement has been satisfied. As of the Closing Date, each of
Newark and each Newark Subsidiary hereby confirms that delivery of the Letters
of Instructions pursuant to this paragraph alone is sufficient to create such a
requirement pursuant to the Applicable Laws of the United States of America and
England.
Section 5.2 The Collateral Account. (a) Newark shall have established
the Collateral Account on or before the Closing Date, and shall maintain such
account until the date (the "Collateral Account Termination Date") that is the
earliest of: (i) the final payment in full of all amounts payable to the Bank
Facility Secured Parties under the Loan Documents, (ii) such time as the
Guaranties of Newark, VCP NA, VCP or VCP Exportadora under Article XI or XII
have been secured in full (in the reasonable determination of all of the
Lenders) by collateral acceptable to all of the Lenders and (iii) the agreement
otherwise of the Borrower and all of the Lenders. Upon the Collateral Account
Termination Date and the release of all funds therein to (or on behalf of) the
Borrower, all provisions hereof and of the Security Agreement relating to the
Collateral Account shall be terminated, the Collateral Account shall be closed
and the related Account Control Agreement shall terminate.
(b) Newark shall, on or before the Borrowing Date, fund (or cause to be
funded, including from the proceeds of the prepayment of Products as described
in Section 2.1(b)) the Collateral Account in an amount at least equal to the
Debt Service Amount for the Bank Facility for the first Payment Date. Thereafter
until the Collateral Account Termination Date, by no later than the first day of
any Interest Period, the Borrower shall deposit (or cause to be deposited) into
the Collateral Account any amounts necessary so that the amounts on deposit
therein shall at least equal the Collateral Account Reserve Amount for such
Interest Period.
Section 5.3 Releases from the Collection Subaccount and the Collateral
Account. In addition to the provisions of Section 2.3 of the Security Agreement,
the Collateral Agent shall
Credit Agreement 28
apply the collected credit balance of the Collection Subaccount and the
Collateral Account as follows:
(a) Subject to clause (e), if on any New York Business Day on
which it is open the Collateral Agent determines that: (i) the sum of
cash in the Collection Subaccount plus the lower of: (A) the face value
and (B) the market value of the investments credited to or carried in
the Collection Subaccount exceeds the Debt Service Amount for the Bank
Facility for the next Payment Date, and (ii) no Default exists, then
the Collateral Agent shall (by no later than the next New York Business
Day on which it is open) release from the Collection Subaccount and
remit to the Borrower, in each case in such manner as may be requested
by the Borrower, an amount equal to such excess. Notwithstanding the
above, the Borrower may at any time during each Interest Period notify
the Collateral Agent to retain in the Collection Subaccount all or any
portion of such excess amounts up to an amount equal to the Tested
Collections received during such Interest Period minus the sum of the
Debt Service Amount for each of the Facilities to be paid during such
Interest Period (provided that payments on the Payment Date that is the
first day of such Interest Period shall not be included and payments on
the Payment Date at the end of such Interest Period shall be included)
plus the sum of the Carry-Over Amounts (if any) from all earlier
Interest Periods that have not been applied to the payment of any Debt
Service Amount for the Bank Facility in any earlier Interest Period
(all such amounts so retained being the "Carry-over Amounts") for
application to the payment of the Debt Service Amount for the Bank
Facility for the next Interest Period (or the Payment Date at the end
thereof). In addition, the parties acknowledge the provisions of
Sections 2.3(c) and (d) of the Security Agreement with respect to the
potential remitting of excess amounts before releasing any such amounts
to the Borrower.
(b) Subject to clause (e), on the first New York Business Day
on which the Collateral Agent is open of any Interest Period or any day
on which a new Reserve Letter of Credit satisfying the conditions of
Section 5.6 is delivered to the Collateral Agent, or at any other time
upon the request of the Borrower on any New York Business Day on which
the Collateral Agent is open, the Collateral Agent shall calculate the
sum of the amount available under the Reserve Letter of Credit (if any)
plus cash in the Collateral Account plus the lower of: (i) the face
value and (ii) the market value of the investments credited to or
carried in the Collateral Account, and if such sum exceeds the
Collateral Account Reserve Amount for the then-current Interest Period,
and no Default exists, then the Collateral Agent shall (by no later
than the next New York Business Day on which it is open) release from
the Collateral Account (to the extent of funds available therein) and
remit to the Borrower, in each case in such manner as may be requested
by the Borrower, an amount equal to such excess.
(c) Without limiting the obligations of the Borrower hereunder
and under the other Loan Documents, on each Payment Date (or earlier to
the extent necessary to pay any portion of the Debt Service Amount for
the Bank Facility payable before such Payment Date) the Collateral
Agent is irrevocably authorized and directed to debit the Collection
Subaccount (and, if such funds are insufficient, the Collateral Account
- including any amounts deposited therein pursuant to clause (d)(i))
and deliver such funds to (or at the instruction of) the Administrative
Agent for application to the payment of the
Credit Agreement 29
Debt Service Amount for the Bank Facility for such Payment Date (or
such portion on such earlier date) pursuant to Section 3.4(a). All such
amounts shall be applied first (in each case on a pro rata basis to the
recipients thereof based upon the amounts then owed to them) to pay
fees and expenses due to the Bank Facility Secured Parties under the
Loan Documents, then to pay accrued and unpaid interest on the Loans,
then to pay principal of the Loans and then to pay any and all other
amounts payable to the Bank Facility Secured Parties under the Loan
Documents.
(d) (i) If a Reserve Letter of Credit exists, and if as of the
close of the Collateral Agent's business on the fifth New York Business
Day on which it is open before any Payment Date the credit balance of
the Collection Subaccount plus any amount in the Collateral Account in
excess of the Collateral Account Reserve Amount for the next Interest
Period (in each case, with respect to Permitted Investments credited
thereto or carried therein, calculated using the amount thereof
scheduled to be paid upon its maturity or, with respect to mutual
funds, the market value thereof) is insufficient to cover the Debt
Service Amount for the Bank Facility payable on such Payment Date, then
the Collateral Agent shall (by no later than the next New York Business
Day) request an immediate disbursement under the Reserve Letter of
Credit in the amount of such shortfall and, upon receipt of such
disbursement, deposit such amount into the Collateral Account.
(ii) If as of the close of the Collateral Agent's
business on the second Business Day on which it is open before
any Payment Date the credit balance of the Collection
Subaccount plus any amount in the Collateral Account
(including any amounts deposited therein pursuant to clause
(i)) in excess of the Collateral Account Reserve Amount for
the next Interest Period (in each case, with respect to
Permitted Investments credited thereto or carried therein,
calculated using the amount thereof scheduled to be paid upon
its maturity or, with respect to mutual funds, the market
value thereof) is insufficient to cover the Debt Service
Amount for the Bank Facility payable on such Payment Date,
then the Collateral Agent shall so notify Newark and the
Newark Subsidiaries on such day and the Borrower (or Newark,
VCP NA, VCP or VCP Exportadora pursuant to their Guaranties
herein) shall (by no later than the New York Business Day
before such Payment Date) deposit into the Administrative
Agent's Account or the Collection Subaccount an amount at
least equal to such shortfall.
(e) At any time that a Default exists, the amounts credited to
the Collection Subaccount and the Collateral Account shall not be
released but shall be retained in the Collection Subaccount and the
Collateral Account, as applicable, for so long as any Default exists
(or until applied in accordance with clause (c) or Section 5.4).
(f) If no Event of Default exists, then the Collateral Agent
shall, at the written direction of the Borrower from time to time,
cause the funds in the Collection Subaccount and the Collateral Account
to be invested in one or more Permitted Investments selected by the
Borrower (which Permitted Investments shall at all times be subject to
the Lien created under the Security Agreement); provided that in no
event shall the Collateral Agent: (i) have any responsibility
whatsoever as to the validity or quality of any
Credit Agreement 30
Permitted Investment, (ii) be liable for the selection of Permitted
Investments or for investment losses incurred thereon or in respect of
losses incurred as a result of the liquidation of any Permitted
Investment before its stated maturity or the failure of the Borrower to
provide timely written investment direction or (iii) have any
obligation to invest or reinvest any such amounts in the absence of
such investment direction. Notwithstanding anything else in the Loan
Documents to the contrary, in no event shall any such Permitted
Investment (other than an investment in a mutual fund) mature later
than the New York Business Day before the next Payment Date (and
investments in mutual funds shall (except with respect to Permitted
Investments in the Collateral Account to the extent that there is no
need to use funds therein in order to make payments due on the next
Payment Date pursuant to clause (c)) be liquidated by the Collateral
Agent on such previous New York Business Day); provided that any such
investments made during the existence of a Default other than an Event
of Default shall either mature by no later than the last day of the
shortest cure period for all existing such Defaults or be Permitted
Investments that are investments in mutual funds.
Section 5.4 Remedies During Events of Default. While an Event of
Default exists:
(a) the Collateral Agent may apply or direct the application
of any balance then on deposit in the Collection Subaccount and, if
insufficient, from the Collateral Account, to the payment of any of the
obligations of the Borrower under the Loan Documents then due and
unpaid (including any amounts accelerated pursuant to Section 9.1), and
(b) the Collateral Agent may, upon the instructions of the
Majority Lenders, liquidate any Permitted Investments made with funds
from the Collection Subaccount or the Collateral Account and apply or
cause to be applied the proceeds thereof in the manner described in
clause (a).
Section 5.5 Certain Rights and Duties of the Collateral Agent. (a)
Without prejudice to Section 5.3 but subject to Section 13.4(a)(vi), the
Collateral Agent shall take such steps as may be instructed in writing by the
Majority Secured Parties from time to time with respect to the Collateral in
accordance with the Security Agreement; provided that: (i) the Collateral Agent
shall not be required to take any action that it reasonably considers to be
contrary to Applicable Law or the Loan Documents or that it believes would
subject it to personal liability and (ii) with respect to any portion of the
Collateral that applies only to one Facility, such as the Collection Subaccount,
the Collateral Account and the rights under the Export Agreements (each of which
only apply to the obligations to the Bank Facility Secured Parties under the
Loan Documents), the Collateral Agent shall act upon the instructions of the
applicable Secured Parties in the manner provided in the documents for such
Facility.
(b) The Collateral Agent shall not be liable for any action taken or
omitted by it with respect to the Collateral on the instructions of the Majority
Secured Parties (subject to clause (a)(ii) and Section 13.4(a)(vi)), and the
Collateral Agent shall not have any duty or responsibility to ascertain whether
any such instructions are consistent with this Agreement or the other Loan
Documents. The Collateral Agent may conclusively rely and (subject to clause
(a)(ii) and Section 13.4(a)(vi)) shall be fully protected in acting or
refraining from acting upon any document that it believes to be genuine and to
have been signed or presented by or on
Credit Agreement 31
behalf of the Majority Secured Parties. Without limiting any other provision of
this Agreement, neither Agent shall have any responsibility or liability with
respect to the perfection or priority of any security interest created by this
Agreement, the Security Agreement or any other Loan Document. Neither Agent
makes any representation or warranty as to the value or condition of the
Collateral, or any part thereof, as to the title of the Borrower or any other
Person thereto or as to the validity, execution, enforceability, legality or
sufficiency of this Agreement, the other Loan Documents or the obligations
secured by the Collateral, and neither Agent shall incur any liability or
responsibility in respect of any such matters.
Section 5.6 Reserve Letter of Credit. (a) In lieu of or in addition to
funding the Collateral Account, the Borrower may arrange for the issuance of a
Reserve Letter of Credit: (i) having an expiration date that shall be at least
90 days after the date of its issuance, (ii) naming the Collateral Agent as the
beneficiary thereof, (iii) providing for payment no later than the New York
Business Day after request thereunder and (iv) governed by the Uniform Customs
and Practices for Documentary Credits, ICC Publication No. 500 (as amended,
supplemented or otherwise modified from time to time) and, to the extent not
inconsistent therewith, the law of a State of the United States. If any such
Reserve Letter of Credit is delivered to the Collateral Agent, then the
Collateral Agent shall take the actions described in Section 5.3(b).
(b) If either: (i) by the date that is twenty Business Days before the
expiration of the Existing LC, such expiration date has not been extended for at
least another 90 days (which non-extension shall be assumed unless the Borrower
shall have delivered to the Collateral Agent satisfactory evidence of such
extension) and the Collateral Agent shall not have received a Replacement LC
with a term beginning no later than such expiration date and terminating not
earlier than 90 days thereafter, or (ii) the Collateral Agent receives notice
from any Obligor, the Administrative Agent or any Lender that the bank providing
the Existing LC ceases to be an Eligible LC Bank and the Collateral Agent shall
not have received a Replacement LC by the earlier of: (A) 30 days after the
Collateral Agent's receipt of such notice and (B) twenty Business Days before
the expiration date of such Reserve Letter of Credit, then the Collateral Agent
shall immediately draw the full amount thereof and, upon its receipt of such
disbursement, deposit such amount into the Collateral Account.
(c) The Borrower may at any time and from time to time substitute a new
Reserve Letter of Credit (the "Replacement LC") for the then-effective Reserve
Letter of Credit (the "Existing LC") so long as the Replacement LC satisfies the
requirements of clause (a). Upon the satisfaction of the following conditions,
the Collateral Agent shall return the Existing LC to (or upon the instructions
of) the Borrower:
(i) the Borrower shall have notified the Collateral Agent at
least fifteen New York Business Days before a proposed substitution
that it intends to do so,
(ii) on or before the indicated date of substitution, the
Borrower shall have delivered to the Collateral Agent an Officers'
Certificate to the effect that (among other things) the Replacement LC
is a qualified Reserve Letter of Credit in accordance with clause (a),
and
Credit Agreement 32
(iii) the Collateral Agent shall have received the original of
such Replacement LC.
For the purpose of clarification, no more than one Reserve Letter of Credit may
be outstanding at any time.
(d) The Borrower shall provide the Collateral Agent with a Replacement
LC within 30 days of the earlier of: (i) any of VCP, VCP Exportadora, Newark or
either Newark Subsidiary's obtaining knowledge that the bank issuing the Reserve
Letter of Credit ceases to be an Eligible LC Bank and (ii) the delivery by any
Bank Facility Secured Party to any of such Obligors of written notice of such
issuing bank's ceasing to be an Eligible LC Bank.
(e) The Collateral Agent shall maintain possession of the Reserve
Letter of Credit and any confirmation(s) relating thereto; provided that the
Collateral Agent shall: (i) upon payment in full of all of the obligations
payable under the Loan Documents to the Bank Facility Secured Parties (other
than any indemnities that are payable but have not yet been incurred and/or
requested by the applicable indemnified Person), return all such documents to
(or upon the instructions of) the Borrower, and (ii) upon receipt of a
Replacement LC in the manner described in clause (c), return the Existing LC in
the manner described in clause (c).
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Conditions Precedent. The initial obligation of each Lender
to make its Loan hereunder was subject to the conditions precedent that, as of
the Borrowing Date: (a) no Applicable Law shall have, in the judgment of the
Majority Lenders, restrained, prevented or imposed materially adverse conditions
upon the transactions contemplated hereby, (b) the Lenders shall have been
satisfied with the corporate and legal structure and capitalization of the
Obligors, (c) since December 31, 2001, there shall not have occurred, in the
opinion of the Majority Lenders: (i) a Material Adverse Effect or (ii) a
material adverse change (whether or not foreseeable on the Closing Date) in or
affecting the financial, economic, political or other condition of Brazil or in
the Brazilian national and/or international market for loans or debt securities,
nor any imposition by Brazil of additional foreign exchange controls, and (d)
the Administrative Agent shall have received the following documents (with
sufficient copies for each Lender, and with (except with respect to any document
described in clause (vii) the original of which is in Portuguese) certified
English translations of documents not in English), each of which shall have been
in form and substance satisfactory to the Administrative Agent:
(i) Executed Agreement. The Original Credit Agreement, duly
executed and delivered by the parties hereto.
(ii) Security Agreement. The Security Agreement (as in effect
on the Closing Date), duly executed and delivered by the parties
thereto, together with evidence of the taking of all such other action
as may be required, in the opinion of United States, Brazilian,
Netherlands Antilles and British Virgin Islands
Credit Agreement 33
counsel, under the laws of the United States of America, Brazil, the
Netherlands Antilles and the British Virgin Islands to perfect the
Liens created by the Security Agreement as first priority Liens
(including as described in the last sentence of Section 7.4).
(iii) Account Control Agreements. The Account Control
Agreements, duly executed and delivered by the parties thereto,
together with evidence of the establishment of the Collection Account
(including the Collection Subaccount) and the Collateral Account.
(iv) Subordination Agreement. The Subordination Agreement,
duly executed and delivered by the parties thereto.
(v) Agents' Fee Letters. The Agents' Fee Letters, duly
executed and delivered by the parties thereto.
(vi) Export Agreements. Copies of each of the Export
Agreements, each duly executed and delivered by the parties thereto.
(vii) Corporate Documents. Certified copies of the
Organizational Documents of each Obligor and of documents (including
appropriate resolutions of the Board of Directors or similar body of
each Obligor and, if necessary, shareholder or similar approval)
evidencing the due authorization by it of the making and performance by
it of the Loan Documents to which it is a party.
(viii) Officer's Certificates. A certificate signed by an
authorized officer of each Obligor, dated the Closing Date, to the
effect that: (A) all representations and warranties made by such
Obligor contained in each of the Loan Documents to which it is a party
are true and correct in all respects on and as of such date, (B) such
Obligor and each of its Subsidiaries is in compliance with all of their
respective covenants and agreements contained in any Loan Document to
which it is a party, (C) in the certificates of Newark, each Newark
Subsidiary, VCP Exportadora and VCP, no Default exists, and (D) VCP has
duly delivered (or has caused Newark, either Newark Subsidiary or one
of its Subsidiaries to deliver) Letters of Instruction to sufficient
Eligible Buyers (copies of which Letters of Instruction shall be
attached to such certificate) such that VCP shall be reasonably assured
of receiving Tested Collections during the succeeding twelve months in
an amount sufficient to ensure that no Specified Event shall occur
during such period.
(ix) Approvals. Copies of all licenses, consents,
authorizations and approvals of, and notices to and filings and
registrations with, any Governmental Authority (including foreign
exchange control approvals and UCC financing statements), and of all
third-party consents and approvals, required in connection with the
making and performance by each Obligor of the Loan Documents to which
it is a party and, in the case of the Newark Subsidiaries, the Sales
Agreements (it being understood that, as described at the end of
Section 7.11, the
Credit Agreement 34
approval of the Central Bank would generally be required before either
VCP Exportadora or VCP could remit payments using funds in Brazil to
satisfy its obligations under Article XI or XII outside of Brazil
(which approval is subject to the sole discretion of the Central
Bank)).
(x) Incumbency Certificate. A certificate of each Obligor as
to the authority, incumbency and specimen signatures of the individuals
who have executed the Loan Documents and other documents contemplated
hereby on behalf of such Obligor.
(xi) Opinions of Counsel.
(A) An opinion, dated the Closing Date, of Xxxxxx
Westwood & Riegels, special British Virgin Islands counsel to
Newark.
(B) An opinion, dated the Closing Date, of each of:
(1) Xx. Xxxxx Xxxx, Legal Manager of each of VCP, VCP
Exportadora and Newark (which opinion also covers certain
matters relating to the Newark Subsidiaries and the Stand-by
Exporters), and (2) such other internal counsel as is
acceptable to the Agents with respect to each of the Stand-by
Exporters.
(C) An opinion, dated the Closing Date, of each of:
(1) Xxxxxx Filho, Xxxxx Filho, Marrey Jr. e Xxxxxxx -
Advogados, special Brazilian counsel to the Obligors, and (2)
Xxxxxxx, Xxxxx Sendacz e Opice, special Brazilian counsel to
the Agents.
(D) An opinion, dated the Closing Date, of each of:
(1) Shearman & Sterling, special U.S. counsel to the Obligors,
and (2) Mayer, Brown, Xxxx & Maw, special U.S. counsel to the
Administrative Agent.
(E) An opinion, dated the Closing Date, of Loyens &
Loeff, special Netherland Antilles counsel to the Borrower.
(xii) Process Agent Acceptance. A letter from the Process
Agent accepting its appointment as process agent for each Obligor.
(xiii) Financial Statements. A copy of the audited balance
sheet of each of VCP and VCP Exportadora as of December 31, 2001, and
the related statements of income and cash flows for the fiscal year
ending on that date, all in accordance with GAAP and, in the case of
VCP only, on a consolidated basis and with a copy of VCP's most recent
Form 20-F filed with the U.S. Securities and Exchange Commission
(including financial statements prepared in accordance with U.S. GAAP).
(xiv) Fees. Evidence of payment of the fees and expenses then
due and payable under Sections 2.3 and 13.3, including the reasonable
fees and expenses of Mayer, Brown, Xxxx & Maw, special U.S. counsel to
the Agents, and of
Credit Agreement 35
Machado, Meyer, Sendacz e Opice, special Brazilian counsel to the
Agents, in connection with the negotiation, preparation, execution and
delivery of the Loan Documents and the making of the Loans hereunder
and of any and all stamp taxes or similar taxes payable in connection
with the transactions contemplated hereby.
(xv) Other. Such other documents as either Agent may have
reasonably requested in connection with this Agreement and the other
Loan Documents.
Without limiting the rights or obligations of the Administrative Agent
hereunder, the Administrative Agent was entitled to assume that the conditions
precedent set forth in clauses (b) and (c) have been satisfied unless it is
otherwise advised in writing by a Lender or the Majority Lenders, as applicable.
Section 6.2 Additional Conditions. The initial obligation of the
Lenders to make the Loans hereunder was subject to the further conditions
precedent that, both immediately before the making of the Loans and immediately
after giving effect thereto and to the intended use of the proceeds thereof:
(a) no Default shall have existed or would result from the
Loans,
(b) the representations and warranties made by each of Newark,
each Newark Subsidiary, VCP Exportadora and VCP in Article VII and in
the other Loan Documents to which it is a party and by the Stand-by
Exporters in the Export Agreements shall have been true on and as of
the Borrowing Date, both before and immediately after giving effect to
the Loans and to the application of the proceeds thereof, with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date),
(c) no Applicable Law shall have, in the judgment of the
Majority Lenders, restrained, prevented or imposed materially adverse
conditions upon the transactions contemplated hereby (including the
Export Arrangements) and all corporate and other proceedings, and all
documents and other legal matters in connection with the transactions
contemplated hereby (including the Export Arrangements), shall have
been satisfactory in form and substance to the Majority Lenders,
(d) the Administrative Agent shall have received: (i) the
Notice of Borrowing in accordance with Section 3.6, (ii) an instruction
from Newark as to the application of the proceeds of the Newark Note in
accordance with the last sentence of Section 2.2, (iii) duly executed
Notes evidencing the Loans and (iv) a duly executed Newark Note
evidencing the prepayment contemplated hereby,
(e) the Administrative Agent shall have received evidence of
the funding of the Collateral Account in an amount at least equal to
the Debt Service Amount for the Bank Facility payable on the first
Payment Date (it being understood that Newark may have requested the
Administrative Agent to fund such amount from the proceeds of the
prepayment of Products contemplated hereby), and
Credit Agreement 36
(f) the Administrative Agent shall have received such other
documents as it may have reasonably requested in connection with this
Agreement and the other Loan Documents.
The Notice of Borrowing by the Newark Subsidiaries hereunder and the notice from
Newark pursuant to the last sentence of Section 2.2 shall constitute a
certification by Newark and each Newark Subsidiary to the effect that the
conditions set forth in clauses (a) and (b) have been fulfilled (both as of the
date of such notice and, unless Newark and each Newark Subsidiary otherwise
notifies the Administrative Agent before the Borrowing Date, as of the Borrowing
Date). Without limiting the rights or obligations of the Administrative Agent
hereunder, the Administrative Agent shall be entitled to assume that the
condition precedent set forth in clause (c) has been satisfied unless it is
otherwise advised in writing by the Majority Lenders.
Section 6.3 Satisfaction of Conditions Precedent. Each Lender shall be
deemed to have agreed to and accepted each document, and to have approved or
accepted each other matter, delivered or occurring pursuant to Sections 6.1 and
6.2 unless such Lender (before making the amount of its Loan available to the
Administrative Agent) notifies the Administrative Agent in writing that it does
not so agree with or accept such document or other matters.
Section 6.4 Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amended and Restated Credit Agreement is subject to the
conditions precedent that: (a) no Applicable Law shall, in the judgment of the
Majority Lenders, restrain, prevent or impose materially adverse conditions upon
the transactions contemplated hereby, and (b) the Administrative Agent shall
have received the following documents (with sufficient copies for each Lender,
and with (except with respect to any document described in clause (vi) the
original of which is in Portuguese) certified English translations of documents
not in English), each of which shall be in form and substance satisfactory to
the Administrative Agent:
(i) Executed Agreement. This Agreement, duly executed and
delivered by the parties hereto, along with replacement Notes for each
of the Lenders and a replacement $380,000,000 Newark Note to the
Borrower (the original Notes and Newark Notes under the Original Credit
Agreement to be cancelled).
(ii) Amended and Restated Security Agreement. The Security
Agreement, duly executed and delivered by the parties thereto, together
with evidence of the taking of all such other action as may be
required, in the opinion of United States, Brazilian, Netherlands
Antilles and British Virgin Islands counsel, under the laws of the
United States of America, Brazil, the Netherlands Antilles and the
British Virgin Islands to perfect the Liens created by the Security
Agreement as first priority Liens (including: (A) as described in the
last sentence of Section 7.4, (B) to reflect the Liens granted on the
Amendment Date by VCP Exportadora under the Security Agreement and (C)
the Trading Company Collateral Documents (and related opinions referred
to by reference to the Security Agreement in Section 8.13(i)) of the
initial Trading Company).
(iii) Subordination Agreement. The Subordination Agreement,
duly executed and delivered by the parties thereto.
Credit Agreement 37
(iv) Transfer of Debt Agreement. The Transfer of Debt
Agreement pursuant to which the Transfer of Debt is effected, duly
executed by the parties thereto.
(v) Assumption Agreement. A certified copy of the Assumption
Agreement, duly executed and delivered by the parties thereto.
(vi) Corporate Documents. Certified copies of the
Organizational Documents of each of VCP, VCP Exportadora, Newark and
each Newark Subsidiary and of documents (including appropriate
resolutions of the Board of Directors or similar body of each Obligor
and, if necessary, shareholder or similar approval) evidencing the due
authorization by it of the making and performance by it of the Loan
Documents to which it is a party.
(vii) Officer's Certificates. A certificate signed by an
authorized officer of each of VCP, VCP Exportadora, Newark and each
Newark Subsidiary, dated the Amendment Date, to the effect that: (A)
all representations and warranties made by such Obligor contained in
each of the Loan Documents to which it is a party are true and correct
in all respects on and as of such date, (B) such Obligor and each of
its Subsidiaries is in compliance with all of their respective
covenants and agreements contained in any Loan Document to which it is
a party, (C) no Default exists and (D) VCP has duly delivered (or has
caused either Newark Subsidiary to deliver) Letters of Instruction to
sufficient Eligible Buyers (copies of which Letters of Instruction
shall be attached to such certificate) such that the Borrower shall be
reasonably assured of receiving Tested Collections (either directly or
through payment by VCP NA) during the succeeding twelve months in an
amount sufficient to ensure that no Specified Event shall occur during
such period.
(viii) Approvals. Copies of all licenses, consents,
authorizations and approvals of, and notices to and filings and
registrations with, any Governmental Authority (including foreign
exchange control approvals and UCC financing statements), and of all
third-party consents and approvals, required in connection with the
making and performance by each Obligor of the Loan Documents to which
it is a party (it being understood that, as described at the end of
Section 7.11, the approval of the Central Bank would generally be
required before either VCP Exportadora or VCP could remit payments
using funds in Brazil to satisfy its obligations under Article XI or
XII outside of Brazil (which approval is subject to the sole discretion
of the Central Bank)).
(ix) Incumbency Certificate. A certificate of each of VCP, VCP
Exportadora, Newark and each Newark Subsidiary as to the authority,
incumbency and specimen signatures of the individuals who have executed
the Loan Documents and other documents contemplated hereby on behalf of
such Obligor.
(x) Opinions of Counsel.
Credit Agreement 38
(A) An opinion, dated the Amendment Date, of Xxxxxx
Westwood & Riegels, special British Virgin Islands counsel to
Newark.
(B) An opinion, dated the Amendment Date, of Xx.
Xxxxxxxxx X'Xxxxxxxx, General Counsel to Votorantim
Participacoes S.A. (which opinion covers certain matters
relating to VCP, VCP Exportadora, Newark and the Newark
Subsidiaries).
(C) An opinion, dated the Amendment Date, of each of:
(1) Xxxxxx Filho, Xxxxx Filho, Marrey Jr. e Xxxxxxx -
Advogados, special Brazilian counsel to the Obligors, and (2)
Xxxxxxx, Xxxxx Sendacz e Opice, special Brazilian counsel to
the Agents.
(D) An opinion, dated the Amendment Date, of each of:
(1) Shearman & Sterling, special U.S. counsel to the Obligors,
and (2) Mayer, Brown, Xxxx & Maw LLP, special U.S. counsel to
the Administrative Agent.
(E) An opinion, dated the Amendment Date, of Loyens &
Loeff, special Netherland Antilles counsel to the Borrower.
(xi) Fees. Evidence of payment of the fees and expenses then
due and payable under Sections 2.3 and 13.3, including the reasonable
fees and expenses of Mayer, Brown, Xxxx & Maw LLP, special U.S. counsel
to the Agents, and of Machado, Meyer, Sendacz e Opice, special
Brazilian counsel to the Agents, in connection with the negotiation,
preparation, execution and delivery of the Loan Documents and of any
and all stamp taxes or similar taxes payable in connection with the
transactions contemplated hereby.
(xii) Other. Such other documents and other conditions as
either Agent may reasonably request in connection with this Agreement
and the other Loan Documents.
Without limiting the rights or obligations of the Administrative Agent
hereunder, the Administrative Agent shall be entitled to assume that the
condition precedent set forth in clause (a) has been satisfied unless it is
otherwise advised in writing by the Majority Lenders.
Section 6.5 Satisfaction of Conditions Precedent to Effectiveness of
Amendment. Each Lender shall be deemed to have agreed to and accepted each
document, and to have approved or accepted each other matter, delivered or
occurring pursuant to Section 6.4, unless such Lender (before the effectiveness
hereof, which effectiveness the Administrative Agent shall notify the Lenders
promptly upon the occurrence thereof) notifies the Administrative Agent in
writing that it does not so agree with or accept such document or other matters.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Credit Agreement 39
As of the Closing Date, the Borrowing Date and the Amendment Date, each
of the Newark Subsidiaries (with respect to itself), Newark (with respect to
itself and the Newark Subsidiaries), VCP Exportadora (with respect to itself,
the Trading Company, Newark and the Newark Subsidiaries) and VCP (with respect
to itself, Newark, VCP Exportadora, the Trading Company and the Newark
Subsidiaries) represents and warrants to the Agents and the Lenders that:
Section 7.1 Power and Authority. Newark, each Newark Subsidiary, VCP
and the Trading Company are corporations and VCP Exportadora is a limited
liability company, each of which: (a) is duly organized, validly existing and,
to the extent applicable under the laws of its jurisdiction of organization, in
good standing under the laws of its jurisdiction of organization, (b) has all
requisite corporate power, and has all material Governmental Approvals,
necessary to own or lease its Properties and carry on its business as now being
or as proposed to be conducted, except where failure to have such Governmental
Approvals (in the aggregate) is not reasonably likely to have a Material Adverse
Effect, (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary, except where failure so to qualify (in the aggregate)
is not reasonably likely to have a Material Adverse Effect, (d) has full power,
authority and legal right to make and perform its obligations under each of the
Loan Documents to which it is a party and, with respect to the Borrower, to
borrow the Loans hereunder and, with respect to the Newark Subsidiaries, to make
and perform its obligations under the Sales Agreements, (e) has good title to
all its material Property, free and clear of any Liens except as expressly
permitted by this Agreement, and (f) except to the extent that any
non-compliance (in the aggregate) is not reasonably likely to have a Material
Adverse Effect, is in compliance with its Organizational Documents and all
Applicable Laws (including Environmental Laws), Governmental Approvals and
contractual obligations applicable to it.
Section 7.2 Subsidiaries. (a) All of the Capital Stock of both of the
Newark Subsidiaries is directly owned and controlled by Newark, all of the
Capital Stock of Newark is directly owned and controlled by VCP Exportadora, all
of the Capital Stock of VCP Exportadora (except for 1 quota) is directly owned
and controlled by VCP and 57.5% of the Capital Stock of VCP is directly owned
and controlled by members of the Votorantim Group. No Brazilian Governmental
Approval, including from the Central Bank, was required for VCP Exportadora's
investments to date in Newark.
(b) Newark has no Subsidiaries (other than the Newark Subsidiaries) but
owns 28% of the Capital Stock of Aracruz and has the right to receive all
dividends payable with respect to such Capital Stock. Newark has no obligation
to provide capital to, make loans to, Guaranty the obligations of or otherwise
provide funds or any other Property to (or for the benefit of) Aracruz or any
other Person other than the Newark Subsidiaries.
Section 7.3 Due Authorization, Etc. The making and performance by
Newark, each Newark Subsidiary, VCP Exportadora, VCP and the Trading Company of
the Loan Documents and Sales Agreements to which it is party and of all other
documents to be executed and delivered thereunder by it have been duly
authorized by all necessary corporate action (including any necessary
shareholder or quotaholder action), and do not contravene: (a) its
Organizational Documents, (b) any Applicable Law, decree, judgment, award,
injunction or similar legal
Credit Agreement 40
restriction in effect, except to the extent that any contravention thereof is
not reasonably likely to have a Material Adverse Effect, or (c) any document or
other contractual restriction binding upon or affecting it or any of its
Properties, except to the extent that any contravention thereof is not
reasonably likely to have a Material Adverse Effect, or (except pursuant to the
Loan Documents) result in the creation of any Lien on any of its Property. No
provision of any Applicable Law imposes materially adverse conditions upon the
Loan Documents and Sales Agreements or its obligations thereunder. Each of VCP,
VCP Exportadora, Newark and each Newark Subsidiary is in compliance with all of
its obligations under all of its other Debt, including any Debt the repayment of
which is expected to be made with the delivery of products (or the collections
arising therefrom) and Debt under the Other Bank Facility.
Section 7.4 No Additional Authorization Required. Except for: (a) the
registration with the Central Bank of any export pre-payment arrangements
entered into between Newark or the Trading Company on the one hand, and VCP
Exportadora, on the other hand, pursuant to Section 8.6(b), (b) any prior
approval of the Central Bank for any capital contribution from VCP or VCP
Exportadora to Newark or any Trading Company pursuant to Section 8.13, and (c)
the filing of a UCC financing statement in the District of Columbia (with
respect to VCP Exportadora, Newark and the Borrower) and Delaware (with respect
to VCP NA) in favor of the Collateral Agent (on behalf of the Secured Parties)
with respect to the Liens on the Collateral, all Governmental Approvals and
other actions by, and all notices to and filings and registrations with, any
Governmental Authority, and all third-party approvals, required for the due
execution, delivery and performance by each of the Obligors and the Trading
Company of the Loan Documents and the Sales Agreements to which it is a party
and for the legality, validity or enforceability of the Loan Documents and the
Sales Agreements have been obtained and are in full force and effect and true
copies thereof have been provided to the Administrative Agent; it being
understood that the prior approval of the Central Bank of the Guaranties of VCP
Exportadora and VCP under Articles XI or XII is not required for the legality,
validity or enforceability thereof but that the absence of such approval may
affect VCP Exportadora's and VCP's ability to remit funds abroad from Brazil to
satisfy obligations thereunder and, whether so approved or not, Central Bank
approval would generally be required before either VCP Exportadora or VCP could
remit funds abroad from Brazil to satisfy obligations thereunder (which approval
is subject to the sole discretion of the Central Bank). In addition,
notwithstanding anything herein to the contrary, certain Governmental Approvals
are required in connection with the export of Products from Brazil, but VCP and
VCP Exportadora have no reason to believe that any such Governmental Approvals
would not be obtained. In addition to the above, in order to preserve priority
with respect to any Liens granted by Newark should any application to determine
priority come before a court in the British Virgin Islands, the relevant
particulars of the Security Agreement should be entered in the register of
mortgages and charges maintained by Newark at its registered office, in a form
satisfactory to the Collateral Agent, and should be duly signed by the
registered agent of Newark in the British Virgin Islands.
Section 7.5 Legal Effect. This Agreement, each other Loan Document
(other than the Notes and the Newark Note) and the Sales Agreements to which it
is a party have been duly executed and delivered by Newark, each Newark
Subsidiary, the Trading Company, VCP and/or VCP Exportadora (as applicable) and
are, and each Note and the Newark Note when duly executed and delivered by the
applicable Newark Subsidiary and Newark, respectively, for value will be, legal,
valid and binding obligations of Newark, each Newark Subsidiary, the Trading
Company, VCP and/or VCP Exportadora (as applicable), enforceable against Newark,
each Newark Subsidiary, the Trading
Credit Agreement 41
Company, VCP and/or VCP Exportadora (as applicable) in accordance with their
terms, in each case except as may be limited by bankruptcy, insolvency,
concordata, falencia or similar laws affecting the enforcement of creditors'
rights generally and as may be limited by equitable principles of general
applicability.
Section 7.6 Financial Statements. The balance sheets of VCP and VCP
Exportadora delivered pursuant to Section 6.1(d)(xiii), and the related
statements of income and cash flows for the fiscal year ending on December 31,
2001 delivered in connection therewith, are complete and correct and fairly
present the financial condition of VCP and VCP Exportadora as at such date and
the results of its operations for the fiscal year ending on such date, all in
accordance with GAAP (and, in the case of VCP, also U.S. GAAP), and neither VCP
nor VCP Exportadora has any material contingent liabilities or unusual forward
or long-term commitments not disclosed therein. Since such date, no event or
circumstance has occurred that has had, or could reasonably be expected to have,
a Material Adverse Effect.
Section 7.7 Ranking; Priority. The payment obligations of Newark, each
Newark Subsidiary, VCP Exportadora and VCP hereunder and under the other Loan
Documents are and will at all times be unconditional general obligations of
Newark, each Newark Subsidiary, VCP and/or VCP Exportadora, and rank and will at
all times rank at least pari passu with all other present and future
unsubordinated Debt of Newark, each Newark Subsidiary, VCP Exportadora and VCP
(including any relating to the Other Facility, the Additional Facility and the
Other Bank Facility); it being understood that such other Debt may be secured by
Liens permitted by Section 8.7 (and, as such, may have a prior claim to the
Properties subject to such Liens) but, other than Permitted Liens of the type
described in clauses (a) and (b) of the definition thereof and Liens under the
Security Agreement to secure the Other Bank Facility, the Additional Facility
and the Other Facility, no other Debt or other obligations shall benefit from
Liens on the Collateral. The Liens granted to the Collateral Agent (for the
benefit of some or all of the Secured Parties) under the Loan Documents will
constitute, on and at all times after the Borrowing Date, valid first and prior
perfected Liens on the Collateral purported to be covered thereby, subject to no
equal or prior Lien other than Permitted Liens of the type described in clauses
(a) and (b) of the definition thereof. The Liens granted by the Trading Company
under the Trading Company Collateral Documents will constitute, on and at all
times after the Amendment Date, valid first and prior perfected Liens on the
Products owned by the Trading Company, subject to no equal or prior Lien other
than Permitted Liens of the type described in clauses (a) and (b) of the
definition thereof.
Section 7.8 No Actions or Proceedings. (a) There is no litigation,
investigation, arbitration or other proceeding pending or, to the best knowledge
of Newark, each Newark Subsidiary, VCP Exportadora or VCP, threatened against
any Obligor or the Trading Company (or any other member of the Votorantim Group)
by or before any arbitrator or Governmental Authority that: (i) in the
aggregate, has had or, if adversely determined, could reasonably be expected to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity, binding effect or enforceability of any of the Loan Documents or Sales
Agreements.
(b) There are no strikes or other labor disputes pending or, to the
best knowledge of VCP, threatened against VCP or any of its Subsidiaries.
Credit Agreement 42
Section 7.9 Commercial Activity; Absence of Immunity. Each of Newark,
each Newark Subsidiary, the Trading Company, VCP Exportadora and VCP is subject
to civil and commercial law with respect to its obligations under the Loan
Documents and Sales Agreements to which it is a party, and the making and
performance by it of such Loan Documents and Sales Agreements constitute private
and commercial acts rather than public or governmental acts. Neither Newark,
either Newark Subsidiary, the Trading Company, VCP, VCP Exportadora nor any of
their respective Properties is entitled to immunity on the grounds of
sovereignty or otherwise from the jurisdiction of any court or from any action,
suit, set-off or proceeding, or service of process in connection therewith,
arising under the Loan Documents or the Sales Agreements.
Section 7.10 Taxes. There is no Tax of any kind imposed by the United
States of America, the British Virgin Islands, the Netherlands Antilles, the
jurisdiction of the Trading Company or Brazil (or any municipality or other
political subdivision or taxing authority thereof or therein that exercises de
facto or de jure power to impose such Tax) either: (a) on or by virtue of the
execution or delivery of the Loan Documents or the Sales Agreements or (b) on
any payment to be made by any Obligor pursuant to the Loan Documents (assuming
the certifications required under Section 4.5(e) are timely provided) or by (or
on behalf of) any customer pursuant to the Sales Agreements, except for: (i) the
Brazilian withholding income tax on payments of interest, fees and commissions
to be made by VCP Exportadora or VCP pursuant to Article XI or XII that will be
levied at the rate of 15% (or 25% if the beneficiary is a resident or domiciled
in a jurisdiction, (1) where the maximum income tax rate applied by such
jurisdiction is lower than 20%, (2) that does not impose income tax or (3) that
imposes restrictions on disclosure of shareholding composition or ownership of
investments), or such other lower rate as may be contemplated in a bilateral
treaty aimed at avoiding double taxation between Brazil and such other country
where the recipient of the payment has its domicile, (ii) Netherland Antilles
stamp tax (zegelbelasting), which may be due upon the execution or delivery of
the Loan Documents or the Sales Agreements if such actions take place in the
Netherlands Antilles, (iii) Netherlands Antilles sales tax (omzetbelasting)
and/or turnover tax (belasting op bedriifsomzetten), which may be due in respect
of: (A) payments made by customers to the Borrower pursuant to the Sales
Agreements, (B) fees paid by the Borrower pursuant to Sections 2.3 and 13.3 to
the parties mentioned in those Sections and (C) payments deemed made by the
Borrower to Newark, VCP NA and VCP Exportadora in connection with the Guaranties
by Newark and VCP Exportadora as provided in Articles XI and XII, and (iv)
Netherlands Antilles profit tax due by the Borrower in respect of its taxable
profits (including profits earned in connection with the sale of Products under
the Sale Agreements). Each of Newark, each Newark Subsidiary, VCP Exportadora
and VCP has filed all material tax returns required to be filed by it (taking
into account any applicable extensions) and paid all Taxes shown to be due
thereon except such as are being contested in good faith by appropriate
proceedings or could not reasonably be expected to have a Material Adverse
Effect.
Section 7.11 Legal Form. Each of the Loan Documents and the Sales
Agreements is (or upon its coming into existence will be) in proper legal form
under its governing law for the enforcement thereof against the parties thereto
(and do not violate, nor will performance thereunder violate, Brazilian
sovereignty, public order or morality (soberania nacional, ordem publica ou bons
costumes)); provided that, for the enforceability of any Loan Document or Sales
Agreement before Brazilian courts: (a) certain court costs and deposits as
security for judgment
Credit Agreement 43
may be due by a plaintiff who resides outside of Brazil during the course of the
suits in the event that any suit is brought against VCP Exportadora or VCP in
Brazil and (b) (i) the signatures of the parties signing such document outside
Brazil must be notarized by a notary public qualified as such under the laws of
the place of signing and the signature of such notary public must be
authenticated by a Brazilian consular officer at the competent Brazilian
consulate, (ii) such document must be translated into Portuguese by a public
sworn translator, and (iii) such document and a sworn translation thereof must
be registered with the competent Registry of Titles and Deeds in Brazil, it
being noted that Annotation 259 of the Brazilian Supreme Court may enable a
Brazilian court to admit such documents into evidence despite the lack of
registration with the Registry of Titles and Deeds. Subject to the preceding
sentence, all formalities required in the British Virgin Islands, the
Netherlands Antilles, the jurisdiction of the Trading Company and/or Brazil for
the validity and enforceability (including any necessary registration, recording
or filing with any court or other Governmental Authority) of each Loan Document
and Sales Agreement have been accomplished, and no Taxes are required to be paid
for the validity and enforceability thereof; it being understood that the
Guaranties of VCP Exportadora and VCP under Article XI and XII will not have
received the prior approval of the Central Bank and, as such, neither VCP nor
VCP Exportadora, under current Brazilian law, will generally be able to remit
payments using funds in Brazil in order to make payments outside of Brazil.
Section 7.12 Full Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by (or on behalf of)
Newark, either Newark Subsidiary, the Trading Company, VCP and/or VCP
Exportadora to the Arranger, either Agent and/or the Lenders in connection with
the Loan Documents and the Sales Agreements or included therein or delivered
pursuant thereto do not contain any untrue statement of material fact or, taken
as a whole, omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading on the date as of which such information is stated or certified; and
if any of such information, reports, financial statements, exhibits and
schedules shall become materially untrue or misleading at any time on or before
the Borrowing Date or Amendment Date (as applicable), Newark, each Newark
Subsidiary, VCP Exportadora and/or VCP shall promptly inform the Administrative
Agent thereof. All written information furnished after May 23, 2002 by (or on
behalf of) Newark, either Newark Subsidiary, the Trading Company, VCP
Exportadora and/or VCP to either Agent and/or the Lenders in connection with the
Loan Documents, the Sales Agreements and the transactions contemplated thereby
will be true, complete and accurate in every material respect, or (in the case
of projections) based upon reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to Newark, either
Newark Subsidiary, VCP Exportadora or VCP that could reasonably be expected to
have a Material Adverse Effect that has not been disclosed herein or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Lenders for use in connection with the transactions
contemplated by the Loan Documents.
Section 7.13 Security Interest. The Loan Documents provide the
Collateral Agent (on behalf of the Secured Parties) with effective, valid,
legally binding and enforceable first priority Liens on all of the Collateral,
subject only to Permitted Liens of the type described in clauses (a) and (b) of
the definition thereof. The Collateral Agent's (on behalf of the Secured
Parties) security interests described above will be, as of the Closing Date
(and, with respect to all
Credit Agreement 44
subsequently acquired Collateral, will be when so acquired) superior and prior
to the rights of all third Persons now existing or hereafter arising whether by
way of Lien, assignment or otherwise, subject only to Permitted Liens of the
type described in clauses (a) and (b) of the definition thereof. Subject to
Section 3.1(o) of the Security Agreement, all necessary action (including as
described in the last sentence of Section 7.4) will have been taken as of the
Closing Date (or, with respect to the Liens granted on the Amendment Date by VCP
Exportadora under the Security Agreement, the Amendment Date) under the
Applicable Laws of Brazil, the British Virgin Islands, the Netherlands Antilles,
the jurisdiction of the Trading Company and the United States of America to
establish and perfect the Collateral Agent's first priority rights in and to the
Collateral.
Section 7.14 Title to Assets; Liens. Except for Permitted Liens and
other Liens permitted in Section 8.7, each of Newark, each Newark Subsidiary,
VCP Exportadora and VCP: (a) has good and marketable title to all of the
material Property (including: (i) with respect to Newark and the Newark
Subsidiaries, all of the Collateral pledged by it, and (ii) with respect to VCP
and VCP Exportadora, before its sale thereof, all Products (and related
Receivables) that become a part of the Collateral) purported to be owned by it,
free and clear of all Liens, and holds such title and all of such Property in
its own name and not in the name of any nominee or other Person, (b) is lawfully
possessed of a valid and subsisting leasehold estate in and to all material
Property that it purports to lease, and holds such leaseholds in its own name
and not in the name of any nominee or other Person, (c) has not created and is
not contractually bound to create any Lien on or with respect to any of its
Properties and (d) is not restricted by its Organizational Documents, contract,
Applicable Law or otherwise from creating Liens on any of its Properties in the
manner contemplated by the Loan Documents.
Section 7.15 No Defaults. No Default exists.
Section 7.16 Solvency. (a) Neither Newark, either Newark Subsidiary,
the Trading Company, VCP Exportadora nor VCP is insolvent as defined under any
Applicable Law nor, after giving effect to the consummation of the transactions
contemplated in the Loan Documents, will Newark, either Newark Subsidiary, the
Trading Company, VCP Exportadora or VCP be rendered insolvent by the execution
and delivery of the Loan Documents to which it is a party or the consummation of
the transactions contemplated thereby. Neither Newark, either Newark Subsidiary,
the Trading Company, VCP Exportadora nor VCP is engaged, nor is it about to
engage, in any business or transaction for which the assets retained by it shall
be an unreasonably small capital, taking into consideration its obligations
incurred hereunder and under the other Loan Documents to which it is a party.
(b) The total amount of Guaranties issued by VCP Exportadora that cover
the payment obligations of non-Brazilian Persons (including its Guaranty under
Article XI) does not exceed the higher of: (i) VCP Exportadora's net worth as of
December 31, 2001 and (ii) the Votorantim Group's net worth as of December 31,
2001.
Section 7.17 Investment Company Act. None of Newark, either Newark
Subsidiary, VCP Exportadora nor VCP is required to be registered as an
"investment company" under the United States Investment Company Act of 1940.
Credit Agreement 45
Section 7.18 UCC Matters. Neither VCP Exportadora, Newark nor either
Newark Subsidiary: (a) has a place of business in the United States of America;
provided that VCP NA is organized in and has a place of business in Delaware,
(b) has used any trade names, assumed names or prior corporate names since the
date that is five years before the Closing Date (or, with respect to VCP
Exportadora, the Amendment Date), except that the Borrower has used the
corporate name Kologo Investments N.V. until June 28, 2001, and that VCP
Exportadora has used the corporate name VCP Exportadora e Participacoes S.A.
until December, 2003, (c) has changed its corporate structure or jurisdiction of
organization since the date that is five years before the Closing Date (or, with
respect to VCP Exportadora, the Amendment Date), except that VCP Exportadora has
been converted from a Brazilian corporation (sociedade por acoes) into a
Brazilian limited liability company (sociedade limitada) effective December,
2003, and (d) has any "notice of an adverse claim" (within the meaning of
Section 8-105 of the UCC) with respect to the Account Collateral. Subject to the
last sentence of Section 7.4, the Applicable Laws of Brazil, the Netherlands
Antilles, the jurisdiction of the Trading Company and the British Virgin Islands
do not require that information concerning the existence of a non-documented
(i.e., not documented by means of a title or instrument) and non-possessory
security interest in the Collateral be made generally available in a filing,
recording or registration system as a condition or result of the security
interest's obtaining priority over the rights of a lien creditor with respect to
the Property covered thereby; provided that, with respect to Brazil, such
Collateral is located or held by VCP Exportadora, Newark, a Newark Subsidiary or
the Trading Company outside Brazil or relates to Property located or held by VCP
Exportadora, Newark, a Newark Subsidiary or the Trading Company outside Brazil,
as the case may be.
ARTICLE VIII
COVENANTS
Each of the Newark Subsidiaries (with respect to itself), Newark (with
respect to itself and each Newark Subsidiary), VCP Exportadora (with respect to
itself, the Trading Company, Newark and each Newark Subsidiary) and VCP (with
respect to itself, Newark, VCP Exportadora, the Trading Company and each Newark
Subsidiary) covenants and agrees with the Lenders and the Agents that, until the
payment in full of the principal of and interest on the Loans and of all other
amounts outstanding under the Loan Documents, and so long as any Commitment is
outstanding:
Section 8.1 Corporate Existence; Inspection; Books and Records. (a)
Except to the extent permitted otherwise by Section 8.12, each of Newark, each
Newark Subsidiary, VCP Exportadora and VCP shall (and shall cause each of its
Subsidiaries (including the Trading Company) to) preserve and maintain its legal
existence and, except to the extent that the failure to do so (in the aggregate)
could not reasonably be expected to have a Material Adverse Effect, obtain and
maintain all Governmental Approvals, rights, privileges, licenses and franchises
necessary for the maintenance of its corporate existence and good standing.
(b) At least once per calendar year, and at any other time during the
existence of any Default, each of Newark, each Newark Subsidiary, VCP
Exportadora and VCP shall permit (and VCP and VCP Exportadora shall cause the
Trading Company to permit) representatives of any
Credit Agreement 46
Lender or either Agent, during normal business hours, at the cost and expense of
Newark, such Newark Subsidiary, VCP Exportadora or VCP (as applicable) and
(except during the existence of a Default) following at least five Business Days
notice, to examine, copy and make extracts from its books and records, to
inspect any of its Property and to discuss its business and affairs with its
officers, all to the extent reasonably requested by such Lender or Agent (as the
case may be); provided that, except for such examinations, inspections and
discussions made during the existence of a Default, in no event shall each of
Newark, either Newark Subsidiary, VCP Exportadora or VCP be liable for the costs
and expenses thereof more than once per calendar year.
(c) Each of Newark, each Newark Subsidiary, the Trading Company, VCP
Exportadora and VCP shall: (i) engage internationally recognized independent
accountants to audit its financial statements and (ii) maintain a system of
accounting in which full and correct entries shall be made of all of its
financial transactions, assets and liabilities in accordance with GAAP (and, in
the case of VCP, U.S. GAAP).
(d) Neither Newark, either Newark Subsidiary, VCP Exportadora nor VCP
shall (or shall permit the Trading Company to) amend, modify or otherwise change
any of its Organizational Documents in any way that would adversely affect the
Bank Facility Secured Parties without the prior written consent (which consent
shall not be unreasonably withheld or delayed) of the Majority Lenders.
(e) Each of Newark, each Newark Subsidiary, VCP Exportadora and VCP
shall (and VCP and VCP Exportadora shall cause the Trading Company to) satisfy
customary corporate formalities, including the holding of regular board of
directors' and shareholders' or quotaholders' meetings and the maintenance of
corporate offices and records. No bank account of Newark, either Newark
Subsidiary, the Trading Company, VCP Exportadora or VCP shall be commingled with
any bank account of any other Person. Neither Newark, either Newark Subsidiary,
the Trading Company, VCP Exportadora nor VCP shall take any action, or conduct
its affairs in a manner, that could reasonably be expected to result in its
corporate existence being ignored by any court of competent jurisdiction or in
its assets and/or liabilities being substantively consolidated with those of any
other Person in a bankruptcy, reorganization or other insolvency proceeding.
Section 8.2 Compliance with Applicable Laws; Insurance. (a) Each of
Newark, each Newark Subsidiary, VCP Exportadora and VCP shall (and shall cause
each of its Subsidiaries (including the Trading Company) to): (i) comply with
the requirements of all Applicable Laws (including all Environmental Laws and
export regulations) and orders of any Governmental Authority to the extent that
the failure to comply therewith could (in the aggregate) reasonably be expected
to have a Material Adverse Effect, except where (and for so long as) the
necessity of compliance therewith is being contested in good faith by
appropriate proceedings, (ii) timely file all required tax returns required to
be filed by it and pay and discharge at or before maturity all of its material
obligations (including tax liabilities, except where the same are contested in
good faith and by proper proceedings and against which adequate reserves are
being maintained to the extent required by GAAP or where the failure to pay or
discharge such obligations or liabilities could not (in the aggregate)
reasonably be expected to have a Material Adverse Effect) and (iii) maintain all
of its Property used or useful in its business in good working order and
condition,
Credit Agreement 47
ordinary wear and tear excepted, except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(b) Each of Newark, each Newark Subsidiary, VCP Exportadora and VCP
shall (and shall cause each of its Subsidiaries (including the Trading Company)
to) at all times insure its Property and businesses against risks, losses and
damages of the kinds and in the amounts that are customary in the industry in
which it operates (except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect), and promptly upon
request by the Administrative Agent therefore, it shall deliver or cause to be
delivered to the Administrative Agent originals or duplicate originals of all
such policies of insurance. For the purpose of clarification, such insurance may
be provided under any insurance policy covering any one or more of its
Affiliates.
Section 8.3 Governmental Approvals. Each of Newark, each Newark
Subsidiary, VCP Exportadora and VCP shall (and shall cause each of its
Subsidiaries (including the Trading Company) to) promptly obtain, and maintain
in full force and effect, all Governmental Approvals from time to time necessary
for its authorization, execution and delivery of the Loan Documents and Sales
Agreements to which it is a party, and the due performance of all of its
obligations, and the exercise of all of its rights, thereunder; it being
understood that, under Brazilian Applicable Law, the Guaranties of VCP
Exportadora and VCP under Articles XI and XII need not be previously approved by
the Central Bank in order for such Guaranties to be the legal, valid and binding
obligations of VCP Exportadora and VCP but, as described at the end of Section
7.11, the absence of such approval will generally affect VCP Exportadora's and
VCP's ability to remit payments using funds in Brazil to satisfy obligations
thereunder outside of Brazil and, whether such Guaranties have been so approved
or not, Central Bank approval would generally be required before either VCP
Exportadora or VCP could remit payments using funds in Brazil to satisfy their
obligations thereunder outside of Brazil (which approval is subject to the sole
discretion of the Central Bank).
Section 8.4 Reporting Requirements. Each of Newark, each Newark
Subsidiary, VCP Exportadora and VCP shall provide to the Administrative Agent
(who shall promptly distribute to the Lenders):
(a) as soon as available and in any event within 120 days
after the last day of each fiscal year of VCP Exportadora, annual
audited financial statements of VCP Exportadora, with the opinion
thereon of internationally recognized independent public accountants
satisfactory to the Administrative Agent, and as soon as available and
in any event within 60 days after the end of each fiscal quarter (other
than the fourth fiscal quarter) of each fiscal year of VCP Exportadora,
quarterly unaudited financial statements of VCP Exportadora as at and
for the quarterly period ending on the last day of such fiscal quarter,
each in form and substance satisfactory to the Administrative Agent and
each prepared in accordance with GAAP,
(b) as soon as available and in any event within 120 days
after the last day of each fiscal year of Newark, annual unaudited
financial statements of Newark and its consolidated Subsidiaries, and
as soon as available and in any event within 60 days after the end of
each fiscal quarter (other than the fourth fiscal quarter) of each
fiscal year of
Credit Agreement 48
Newark, quarterly unaudited financial statements of Newark and its
consolidated Subsidiaries as at and for the quarterly period ending on
the last day of such fiscal quarter, each in form and substance
satisfactory to the Administrative Agent and each prepared in
accordance with GAAP;
(c) as soon as available and in any event within 120 days
after the last day of each fiscal year of VCP, annual audited
consolidated financial statements of VCP, with the opinion thereon of
internationally recognized independent public accountants satisfactory
to the Administrative Agent, and as soon as available and in any event
within 60 days after the end of each fiscal quarter (other than the
fourth fiscal quarter) of each fiscal year of VCP, quarterly unaudited
consolidated financial statements of VCP as at and for the quarterly
period ending on the last day of such fiscal quarter, each in form and
substance satisfactory to the Administrative Agent and each prepared in
accordance with both GAAP and U.S. GAAP,
(d) each time financial statements are required to be
delivered under clause (a), (b) or (c), a certificate of the chief
financial officer (or more senior officer) of VCP Exportadora, Newark
or VCP, as applicable: (i) with respect to VCP only, providing a
calculation (in reasonable detail) of the Debt Service Coverage Ratio,
the Net Debt to EBITDA Ratio and the Total Debt to Total Capitalization
Ratio as of the end of the most recent Fiscal Semester (or most recent
fiscal quarter, in the case of the Debt Service Coverage Ratio), and
(ii) certifying that his/her review has not disclosed the existence of
a Default or, if any Default then exists, specifying the nature and
period of existence thereof and what action Newark, the Newark
Subsidiaries, VCP Exportadora and/or VCP has taken or proposes to take
with respect thereto,
(e) within two Business Days after either Newark, either
Newark Subsidiary, VCP Exportadora or VCP obtains knowledge of any
Default or any default, early amortization event or similar event under
the Other Facility, the Additional Facility or the Other Bank Facility,
a certificate of the chief financial officer or the chief accounting
officer thereof setting forth the details thereof and the action(s)
that is/are being taken or is/are proposed to be taken with respect
thereto,
(f) promptly (and, in any event, within five Business Days
after Newark's, either Newark Subsidiary's, VCP Exportadora's or VCP's
knowledge thereof) notice of any litigation, claim, investigation,
arbitration, other proceeding or controversy pending or, to its
knowledge, threatened involving or affecting any Obligor: (i) that
could give rise to a Lien on any of its Properties, other than
Permitted Liens (or, with respect to the Collateral, other than
Permitted Liens of the type described in clauses (a) and (b) of the
definition thereof), (ii) that could reasonably be expected to have a
Material Adverse Effect or (iii) relating to any of the Loan Documents
or Sales Agreements,
(g) promptly (and, in any event, within five Business Days
after Newark's, either Newark Subsidiary's, VCP Exportadora's or VCP's
knowledge thereof), notice of any other event or development that could
reasonably be expected to have a Material Adverse Effect,
Credit Agreement 49
(h) promptly (and, in any event, within five Business Days
after being filed with the U.S. Securities and Exchange Commission),
copies of any public filings made therewith, and
(i) from time to time such other information with respect to
the Obligors, the Loan Documents, the Sales Agreements and/or the
transactions contemplated hereby or thereby as any Lender (through the
Administrative Agent) or either Agent may reasonably request.
Section 8.5 Ranking; Priority. Each of Newark, each Newark Subsidiary,
VCP Exportadora and VCP shall promptly take all actions as may be necessary to
ensure that its obligations to the Bank Facility Secured Parties under the Loan
Documents to which it is a party will at all times constitute unconditional and
unsubordinated general obligations thereof ranking at least pari passu with all
other present and future unsubordinated Debt thereof (including any Debt under
the Other Facility, the Additional Facility or the Other Bank Facility); it
being understood that such other Debt or other obligations may be secured by
Liens permitted by Section 8.7 (and, as such, may have a prior claim to the
Properties subject to such Liens) but, other than Permitted Liens of the type
described in clauses (a) and (b) of the definition thereof and Liens under the
Security Agreement to secure the Other Bank Facility, the Additional Facility
and the Other Facility, no other Debt or other obligations shall benefit from
Liens on the Collateral.
Section 8.6 Debt. (a) Neither Newark, either Newark Subsidiary, VCP
Exportadora nor VCP shall create, incur, issue or suffer to exist (or permit any
of their respective Subsidiaries (including the Trading Company) to create,
incur, issue or suffer to exist) any Debt, except:
(i) with respect to Newark, the Newark Subsidiaries and the
Trading Company: (A) Debt payable to the Bank Facility Secured Parties
under and in connection with the Loan Documents (including any related
to the purchase of Products as described in Section 8.13 and the Export
Agreements, and the advances to be made by the Borrower to Newark for
the prepayment of the sale of Products as contemplated by Section 2.1),
(B) Debt under and in connection with the Other Facility, the
Additional Facility or the Other Bank Facility as permitted in clause
(b); provided that the aggregate principal amount of Debt outstanding
under the Additional Facility and the Other Facility may not at any
time exceed the sum of: (1) $300,000,000 plus (2) the aggregate amount
of principal of the Loans and the Other Bank Facility Loans (as defined
in the Security Agreement) that were outstanding on February 16, 2004
(i.e., $387,117,117.14) and have since been repaid (in each case, or
its equivalent in any other currency), (C) unsecured Debt entered into
for the sole purpose of performing cash management or other financial
management functions with any of its Affiliates in the ordinary course
of business, (D) except with respect to the Trading Company, other
unsecured Debt with Affiliates with respect to which each such
Affiliate has become a party to the Subordination Agreement by delivery
to the Administrative Agent of its executed joinder thereto, and (E)
until the Borrowing Date, Debt that will be repaid in full from the
proceeds of the Loans in the manner contemplated in Section 2.2, and
Credit Agreement 50
(ii) with respect to VCP Exportadora and VCP (and their
respective Subsidiaries), Debt under the Loan Documents and any
additional Debt (with respect to Debt incurred after May 23, 2002, only
so long as there would not be a violation of the Total Debt to Total
Capitalization Ratio determined as if the date on which such additional
Debt is incurred were the last day of a Fiscal Semester); it being
understood that the Debt of Newark, the Newark Subsidiaries and the
Trading Company is limited to that permitted in clause (i).
(b) Newark, the Newark Subsidiaries and the Trading Company may enter
into the Other Facility, the Additional Facility and/or the Other Bank Facility
(with the Borrower as the primary debtor thereunder and either with or without
Newark, VCP NA and/or the Trading Company as guarantors of the Borrower's
obligations thereunder; provided that the Trading Company may provide a Guaranty
thereof only so long as it concurrently provides a Guaranty of the Borrower's
payment obligations hereunder) at any time and, from time to time, incur Debt
thereunder so long as, as of the date of the incurrence of any such Debt (and as
of the date of any amendment, restatement or other modification thereof that
increases the Debt Service Amount for the Other Facility, the Other Bank
Facility or the Additional Facility with respect to any Interest Period through
and including the Final Maturity Date or increases the principal amount of any
Debt issued thereunder; it being understood that any amendments, restatements or
other modifications of any such Debt that do not have any such effect need not
comply with the following): (i) no Default then exists or would result from the
incurrence of such Debt (or amendment, restatement or other modification
thereof), (ii) for so long as the obligations under the Loans remain
outstanding, the payment dates of all Debt issued under the Other Facility, the
Additional Facility and the Other Bank Facility shall be the Payment Dates (with
the exception that: (A) the first payment date applicable to any such Debt may
be the second Payment Date after the incurrence of such Debt and (B) the payment
dates for the Other Bank Facility may be as set forth in the documents for the
Other Bank Facility as in effect on April 26, 2004), (iii) the net proceeds of
such Debt shall promptly (and, in any event, within one Business Day thereof) be
applied to the repayment of any of the Borrower's other Debt (including the
repayment of any Debt hereunder or under the Other Facility, the Additional
Facility or the Other Bank Facility), to make a payment for Products previously
purchased by the Borrower from Newark or to make a pre-payment to Newark for
future Products (the proceeds of which Newark shall promptly (and, in any event,
within one Business Day of its receipt thereof) use to make a payment for
Products previously purchased by Newark from the Trading Company and/or VCP
Exportadora or to make a pre-payment to the Trading Company and/or VCP
Exportadora for future Products; it being understood that if such payment shall
be made to the Trading Company, then VCP and VCP Exportadora shall cause the
Trading Company to make a similar such payment to VCP Exportadora promptly (and,
in any event, within one Business Day of its receipt thereof)), (iv) the Other
Facility Agent, Other Bank Facility Agent or Additional Facility Agent (as
applicable) shall be or become a party to the Security Agreement, (v) with
respect to any incurrence (or amendment, restatement or other modification) of
Debt under the Other Facility, the conditions of clause (c) shall have been
satisfied, and (vi) the Agents shall have received a certificate of the chief
financial officer or a more senior officer of VCP certifying that each of the
above conditions has been satisfied. Notwithstanding the above, the parties
hereto hereby acknowledge that the Borrower is the borrower under the Other Bank
Facility as in effect on the Amendment Date, that the Other Bank Facility Agent
is a party to the Security Agreement and that the
Credit Agreement 51
conditions in clauses (iii), (iv), (v) and (vi) need not be complied with in
connection with the Other Bank Facility as it is in effect on the Amendment
Date.
(c) Before any Debt under the Other Facility may be incurred (it being
understood that the following provisions shall apply with respect to each
incurrence (or increase in the outstanding amount) of Debt under the Other
Facility), or amended, restated or otherwise modified in any manner that
increases the Debt Service Amount for the Other Facility with respect to any
Interest Period through and including the Final Payment Date, VCP shall:
(i) for each remaining Interest Period through the Final
Maturity Date, provide the Agents a certificate (which the
Administrative Agent shall promptly provide to each of the Lenders) of
its treasurer, chief financial officer, chief accounting officer or
more senior officer (with reasonable detail as to calculations) in
which is included (or to which is attached) a projection (based upon
VCP's reasonable estimates at such time) of: (A) the Projected
Available Collections for such Interest Period, (B) the Debt Service
Amount for the Bank Facility for the Payment Date at the end of such
Interest Period (provided that interest payable shall be calculated
using an interest rate equal to the then-current interest rate plus an
additional 1% per annum), (C) the ratio of: (1) the Facility Percentage
for the Bank Facility (to the extent applicable, as to be established
pursuant to Section 2.3(e) of the Security Agreement in connection with
the incurrence of such Debt under the Other Facility) of the amount
described in clause (A) to (2) the amount described in clause (B) and
(D) if any of such ratios for any one or more Interest Period(s) is
less than 1:1, the amount of additional Projected Available Collections
that would be required during such Interest Period(s) in order to
obtain such ratio for such Interest Period(s), and
(ii) if any additional amounts are projected to be required
pursuant to clause (i)(D), provide to the Administrative Agent either:
(A) one or more supply contracts, in form and substance reasonably
satisfactory to the Majority Lenders and enforceable by the
Administrative Agent, whereby one or more Person(s): (1) organized in
an OECD Country (or Brazil) and (2) with a long-term foreign currency
debt rating from each of Standard & Poor's and Xxxxx'x at least equal
to the then-applicable long-term foreign currency debt rating of VCP,
agrees (in the aggregate for all such Person(s)) to deliver (at the
request of the Administrative Agent at any time, and from time to time:
(x) during the existence of an Event of Default or (y) upon the
Administrative Agent's receipt from the Borrower of a certificate of
its treasurer, chief financial officer or more senior officer that such
request is necessary to avoid a Specified Event; it being understood
that the Administrative Agent shall, upon receipt of such request from
the Borrower, promptly deliver such request to such other Person(s))
sufficient products to Newark the sale of which will generate Dollar
collections at least equal to the aggregate amount of all additional
amounts so projected to be required for all Interest Periods through
the Final Maturity Date (it being understood that any projected excess
in any of the Interest Periods shall not be applied to offset any
additional collections projected to be required with respect to other
Interest Periods except to the extent that at the time of the
incurrence of such new Debt the Borrower has irrevocably instructed the
Collateral Agent to retain in the Collection Subaccount all or any
portion of any such projected excess for application as Carry-Over
Amounts in any later Interest Period(s)), which
Credit Agreement 52
deliveries may be requested by the Administrative Agent at any time
through the date that is five Business Days after the Payment Date at
the end of the last Interest Period for which any additional
collections are so projected to be required (it being understood that
the Administrative Agent may make such requests only during the
existence of an Event of Default or at the request of the Borrower if
the Borrower expects that it will need to receive such products in
order to ensure that no Event of Default described in Section 9.1(o)
shall occur, and that any collections relating to such delivered
products would be applied to pay any amounts then payable to the Bank
Facility Secured Parties under the Loan Documents and no such amounts
would be payable to the Other Facility Agent, the Other Bank Facility
Agent or the Additional Facility Agent for application in connection
with the Other Facility, the Other Bank Facility or the Additional
Facility), or (B) such other additional credit enhancement as the
Majority Lenders may agree.
(d) Should the Majority Lenders reasonably determine that the Projected
Available Collections identified in the certificate delivered by VCP pursuant to
clause (c)(i) are greater than the amount that should be reasonably estimated,
the Majority Lenders may (within seven New York Business Days of their receipt
of such projections) deliver notice to VCP, the Borrower and the Administrative
Agent of such determination. Should VCP receive such notice within such period,
VCP shall either deliver amended projections for the Lenders' review (subject to
the approval process described in this paragraph) or engage
PricewaterhouseCoopers or another independent auditor or other Person acceptable
to the Majority Lenders, at the expense of VCP, to analyze the projections and
either certify to the Lenders that such projections are reasonable estimates by
VCP or, if not, to work with VCP to establish projections that can be so
certified; it being understood that no Debt under the Other Facility, the
Additional Facility or the Other Bank Facility may be incurred (or increased)
until such process has been completed (and any necessary action taken under
clause (c)(ii) has been taken) to the satisfaction of all parties.
Section 8.7 Negative Pledge. Neither Newark, either Newark Subsidiary,
VCP Exportadora nor VCP shall create, assume or suffer to exist (or permit any
of their respective Subsidiaries (including the Trading Company) to create,
assume or suffer to exist) any Lien on any of its Property, whether now owned or
hereafter acquired by it, except:
(a) Permitted Liens,
(b) Liens that arise pursuant to one or more final
judgment(s), order(s), decree(s) and/or award(s) not in excess of
$10,000,000 (or its equivalent in any other currency) in the aggregate
for the payment of money if discharged within 60 days or fully bonded
or covered by insurance where the surety or the insurer, as the case
may be, has admitted liability in respect of such judgment(s),
order(s), decree(s) and/or award(s),
(c) Liens for the benefit of the Bank Facility Secured Parties
created under the Loan Documents,
(d) Liens granted in connection with the Other Facility, the
Additional Facility and/or the Other Bank Facility (including Liens on
the Sales Collateral and the Collection Account in the manner described
herein and in the Security Agreement); provided that
Credit Agreement 53
(other than with respect to: (i) rights under contracts entered into
with a Person that is not a Subsidiary of VCP, and all Property
relating to such contracts, (ii) any Reserve Account and funds therein
(or investments made with such funds), (iii) any Property distributed
from the Collection Account (other than to the Collection Subaccount)
in accordance with the Security Agreement, any account to which such
Property is distributed and related amounts, investments, financial
assets, security entitlements and proceeds thereof, and (iv) certain of
the Sales Collateral and Account Collateral, as set forth in the
Security Agreement) such Liens may be granted by VCP, VCP Exportadora,
the Trading Company, Newark and the Newark Subsidiaries only so long as
such Liens are concurrently granted for the pro rata and pari passu
benefit of the Bank Facility Secured Parties,
(e) other Liens granted by a Person to secure other Debt
permitted to be incurred by such Person by Section 8.6(a) or other
obligations; provided that: (i) no such Liens shall cover any Products
owned by VCP Exportadora and/or any Property owned by the Trading
Company or either Newark Subsidiary, (ii) no such Liens shall cover any
Products owned by VCP or any of its Subsidiaries and exported outside
Brazil (or identified to be so exported), (iii) no such Liens shall
cover any of the Collateral or any Capital Stock of Aracruz (or any
interests therein, including dividends payable thereon), and (iv)
excluding all of the Debt secured by Liens described in clauses (a)
through (d) above, the aggregate outstanding principal amount of such
Debt and other obligations secured by Liens on tangible Property
(including real property) shall not exceed $450,000,000 (or its
equivalent in any other currency); provided that the lenders or holders
of such Debt shall consist of BNDES, export credit agencies or
multilateral financial institutions; and provided further that up to
$50,000,000 (or its equivalent in any other currency) of such Debt may
be lent by or held by any Person, and
(f) Liens granted by the Trading Company under the Trading
Company Collateral Documents for the benefit of VCP Exportadora and the
subsequent granting of any such Liens by VCP Exportadora in favor of
the Collateral Agent for the benefit of the Bank Facility Secured
Parties (in the manner described herein and in the Security Agreement).
Notwithstanding anything herein or elsewhere in the Loan Documents to
the contrary, in no event shall VCP Exportadora, Newark or any of the Newark
Subsidiaries permit (nor shall VCP or VCP Exportadora permit the Trading Company
to permit) there to be any Lien on any of the Collateral or the Products other
than Permitted Liens of the type described in clauses (a) and (b) of the
definition thereof, Liens under the Security Agreement to secure the Other Bank
Facility, the Additional Facility and the Other Facility and Liens under the
Trading Company Collateral Documents.
Section 8.8 Transactions With Affiliates. Neither Newark, either Newark
Subsidiary, VCP Exportadora nor VCP shall (or shall permit any of their
respective Subsidiaries (including the Trading Company) to) directly or
indirectly enter into any transaction with any Affiliate (other than VCP's
wholly-owned Subsidiaries) except in the ordinary course of (and pursuant to the
reasonable requirements of) its business and upon commercially reasonable terms
that are no less favorable to it than those that might be obtained in a
comparable arm's-length transaction at the time from a Person that is not an
Affiliate; provided that nothing in this Section shall be
Credit Agreement 54
deemed to prohibit the transactions contemplated by the Loan Documents
(including sales and purchases of Products effected in accordance with the
Export Agreements and Section 8.13(d) and the prepayment for Products by the
Borrower, Newark and the Trading Company effected in accordance with this
Agreement). Notwithstanding the foregoing, this Section 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 Newark, the Newark Subsidiaries, VCP
Exportadora and/or VCP (and/or their respective Subsidiaries, including the
Trading Company) with any of their respective Affiliates in the ordinary course
of business, (b) tax allocation agreements entered into from time to time by
Newark, the Newark Subsidiaries, VCP Exportadora and/or VCP (and/or their
respective Subsidiaries, including the Trading Company) with their respective
Affiliates in the ordinary course of their respective businesses and (c) Debt
permitted by Section 8.6.
Section 8.9 Line of Business, Etc. Neither Newark, either Newark
Subsidiary, VCP Exportadora nor VCP shall: (a) make any material change in its
line of business, (b) change its fiscal year, (c) change its name or domicile or
take any other action that might adversely affect the priority, perfection or
validity of the Liens created by the Loan Documents or (d) make or permit any
material change in its accounting policies or reporting practices except as
required by a change in GAAP (or, with respect to VCP, U.S. GAAP). Neither VCP
nor VCP Exportadora shall permit the Trading Company to engage in any business
other than as specifically described in Section 8.13.
Section 8.10 Use of Proceeds. The Borrower shall use the proceeds of
the Loans, and Newark shall use the proceeds of the prepayment of Products
contemplated in Section 2.1(b), (less any fees and expenses then due and payable
under Sections 2.3 and 13.3) solely as described in Section 2.1(b). No part of
the proceeds of the Loans shall be used directly or indirectly for the purpose
(whether immediate, incidental or ultimate) of buying or carrying any "margin
stock" within the meaning of Regulation U of the Board of Governors of the U.S.
Federal Reserve System.
Section 8.11 Further Assurances. Each of Newark, each Newark
Subsidiary, VCP Exportadora and VCP shall do and perform (and each of VCP and
VCP Exportadora shall cause the Trading Company to do and perform), from time to
time, any and all acts (and execute any and all documents) as may be necessary
or as reasonably requested by either Agent in order to effect the purposes of
the Loan Documents and Sales Agreements. Without limiting the above, but subject
to Section 3.1(o) of the Security Agreement, each of Newark, each Newark
Subsidiary, VCP Exportadora and VCP shall (and VCP and VCP Exportadora shall
cause the Trading Company to), at its own cost, take all actions necessary or
reasonably requested by the Collateral Agent to maintain each Lien created by
the Loan Documents in full force and effect and enforceable in accordance with
its terms, including: (a) making filings and recordations, (b) making payments
of fees and other charges, (c) issuing and, if necessary, filing or recording
supplemental documentation, including continuation statements, (d) discharging
all claims or other Liens adversely affecting the rights of the Collateral Agent
or any other Bank Facility Secured Party in any Collateral, (e) publishing or
otherwise delivering notice to third parties, (f) depositing title documents and
(g) taking all other actions either necessary or otherwise reasonably requested
by the Collateral Agent to ensure that all after-acquired property of VCP
Exportadora, the Trading Company, Newark and each Newark Subsidiary intended to
be covered
Credit Agreement 55
by such Liens is subject to a valid and enforceable first priority, perfected
Lien in favor of the Collateral Agent (on behalf of the Secured Parties).
Neither VCP Exportadora, Newark nor either Newark Subsidiary shall (and VCP and
VCP Exportadora shall not permit the Trading Company to) transfer all or any
portion of the Collateral or any Products to any Person except as expressly
permitted or required under the Loan Documents.
Section 8.12 Merger, Etc. (a) Neither Newark, either Newark Subsidiary,
VCP Exportadora nor VCP shall (nor shall VCP or VCP Exportadora permit the
Trading Company to) enter into any transaction of merger 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
Property; provided that:
(i) it may merge or consolidate with or into, or sell or
transfer all or substantially all of its Property to, any other Person
that is organized in an OECD Country (or, if not an OECD Country, its
current jurisdiction of organization) 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 Loan 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 Properties, the Person to whom the Property has
been sold, transferred, leased or otherwise disposed has
validly assumed all obligations under the Loan Documents to
which the transferor is a party (which assumption may
constitute a novation of such obligations under Applicable
Law); provided that, with respect to both clauses (1) and (2):
(x) with respect to any such transaction by VCP Exportadora,
Newark, any Newark Subsidiary, or the Trading Company no
Change of Control shall occur, and (y) with respect to any
such transaction by either Newark Subsidiary, such other
Person has no existing business,
(B) no Default (including under Section 9.1(n) or
resulting from a breach of Section 8.9) exists or would exist
immediately after such merger, consolidation, sale, transfer,
lease or other disposition,
(C) there would not be a Default relating to: (1) the
Total Debt to Total Capitalization Ratio if such ratio were
determined as if the date on which such transaction were
effected were the last day of a Fiscal Semester or (2) the
Debt Service Coverage Ratio and/or Net Debt to EBITDA Ratio if
such ratios were determined on a pro forma basis with respect
to the most recently ended fiscal quarter or Fiscal Semester,
as the case may be,
(D) to the extent applicable, the provisions of
clause (b) shall have been complied with by no later than the
date of such merger, consolidation, sale, transfer, lease or
other disposition,
Credit Agreement 56
(E) each Agent shall have received any other
opinions, evidence of security interest filings and other
documents or evidence as it (or the Majority Lenders) may
reasonably request in connection therewith, and
(F) to the extent reasonably requested by either
Agent or the Majority Lenders, the Loan Documents shall have
been amended (or amended and restated) to reflect such merger,
consolidation, sale, transfer, lease or other disposition,
(ii) the Newark Subsidiaries may merge or consolidate with
each other, either or both Newark Subsidiaries may be merged into
Newark and/or VCP Exportadora may be merged into VCP,
(iii) 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 Property sold or disposed of in
the ordinary course of its business, and
(iv) it may sell or otherwise transfer Products and other
Property to Newark or a Newark Subsidiary in the manner contemplated in
the Loan Documents.
(b) Notwithstanding clause (a), Newark may sell, transfer, lease or
otherwise dispose of all or any portion of the Capital Stock of Aracruz so long
as the net proceeds of such sale, transfer, lease or other disposition are
promptly (and, in any event, within five Business Days of such transaction)
contributed to the capital of the Borrower and applied by the Borrower to a
prepayment of the Loans pursuant to Section 3.3; provided that Newark may sell,
transfer, lease or otherwise dispose of such Capital Stock to any VCP Party
without any such prepayment of the Loans so long as Newark shall promptly (and,
in any event, within one Business Day after such transaction) apply the net
proceeds (if any) of such transaction either to the making of a payment to the
Trading Company and/or VCP Exportadora for Products previously purchased or to
make an export prepayment to the Trading Company and/or VCP Exportadora for
future Products (it being understood that if any such payment shall be made to
the Trading Company, then VCP and VCP Exportadora shall cause the Trading
Company to make a similar such payment to VCP Exportadora promptly (and, in any
event, within one Business Day of its receipt thereof)).
(c) Each of VCP, VCP Exportadora and Newark agrees that it shall, by no
later than 10 Business Days after any event described in clause (i) or (ii),
cause: (i) any Subsidiary of VCP that becomes a direct or indirect owner of all
or any part of the Capital Stock of VCP Exportadora, Newark and/or a Newark
Subsidiary and (ii) any other Subsidiary of Newark to deliver to the
Administrative Agent: (A) a Guaranty (in form and substance satisfactory to the
Majority Lenders, including by becoming a party to an amended and restated
version hereof) guaranteeing all of the obligations of the Newark Subsidiaries
under this Agreement and the other Loan Documents and (B) any necessary
opinions, certificates and other documents (or evidence of the occurrence of any
events) that the Administrative Agent or the Majority Lenders shall reasonably
request in connection therewith.
Section 8.13 Export Arrangements. (a) Should Newark or the Trading
Company at any time have insufficient funds to pay for any Products purchased by
it from VCP Exportadora by the date on which VCP Exportadora is required to
receive such payment pursuant to Brazilian
Credit Agreement 57
Applicable Law, VCP or VCP Exportadora (as applicable) shall, subject to the
obtaining of any necessary approvals from the Central Bank, capitalize such
payments by making an equivalent contribution of capital to Newark or the
Trading Company (including, to the extent possible, by converting such payment
obligation into additional capital of Newark or the Trading Company). Newark
shall not pay or declare any dividends or returns of capital (or similar
distributions with respect to its Capital Stock) to VCP Exportadora at any time
that there is a Default hereunder or that VCP Exportadora or any other Brazilian
Person that has sold Products to Newark and/or the Trading Company has not been
paid for such Products within the time required by Brazilian Applicable Law for
the receipt by Brazilian exporters of export payments (it being understood that
any amounts that would otherwise have been paid as dividends or otherwise shall
be promptly paid by Newark as payment for its purchase of such Products,
including to pay such amounts to the Trading Company for on-payment to VCP
Exportadora and/or any other Brazilian Person that has sold Products to the
Trading Company).
(b) Neither Newark nor either Newark Subsidiary shall enter into any
amendment or modification of, or grant any waiver under, the Export Arrangements
that (individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect (it being understood that any amendment, modification or
waiver that has any adverse effect on the payment of any amounts payable under
the Export Arrangements, including as to the amount or timing thereof, shall be
considered to have a Material Adverse Effect).
(c) Each of the Newark Subsidiaries shall require that the purchase
price of all sales of Products pursuant to any Sales Agreement is payable solely
in Dollars.
(d) VCP shall (or shall cause VCP Exportadora to) sell to the Trading
Company, and cause the Trading Company to sell to Newark, and Newark shall sell
to the Borrower, sufficient Products so that no Event of Default described in
Section 9.1(o) shall occur, each of which sales shall be for a price no higher
than, and a payment term no shorter than, the price and payment term applicable
to the sale of such Products by a Newark Subsidiary to a customer pursuant to a
Sales Agreement.
(e) If a Specified Event occurs with respect to any Interest Period,
then the Collateral Agent may, under the Export Agreements with the Stand-by
Exporters, request that one or both Stand-by Exporters sell an aggregate amount
of Products to Newark (who shall sell all such Products to the Borrower) that
will (by no later than 30 days after such Stand-by Exporter's receipt of such
request) result in the generation of such amount of Tested Collections as would
have resulted in such Specified Event not having occurred had such Tested
Collections been received during such Interest Period (it being understood that,
for the purpose of this Section, collections from an Eligible Buyer relating to
Products so sold to Newark by the Stand-by Exporters shall be considered to be
Tested Collections notwithstanding that a Letter of Instructions shall not have
been delivered to such Eligible Buyer). If any Event of Default exists and all
or any portion of the Loans have been accelerated as a result thereof, then the
Collateral Agent may, under the Export Agreements with the Stand-by Exporters,
request that one or both Stand-by Exporters promptly sell Products to Newark
(who shall sell all such Products to the Borrower) from time to time until such
time as all of the Loans and other amounts payable to the Bank Facility Secured
Parties under the Loan Documents have been paid in full.
Credit Agreement 58
(f) Each Newark Subsidiary shall ensure that each of the Sales
Agreements to which it is a party is in proper legal form under its governing
law to ensure that it would constitute a legal, valid and binding obligation of
each of the parties thereto under such law, enforceable in accordance with its
terms.
(g) If any funds are received by either Newark, either Newark
Subsidiary, VCP Exportadora or VCP (or any of VCP's other Subsidiaries,
including the Trading Company) from time to time in respect of Receivables, then
it shall promptly (and, in any event, within two Business Days) after its
receipt thereof remit (or cause such Subsidiary to remit) such funds to the
Collateral Agent for deposit into the Collection Account (and until so remitted,
such funds shall be held in trust by such Person for the benefit of the
Collateral Agent). Newark, each Newark Subsidiary, VCP Exportadora or VCP, as
applicable, shall promptly (and, in any event, by no later than the Business Day
after any such remittance): (i) notify the Collateral Agent of each such
remittance by it (or on its behalf) into the Collection Account (specifying the
amount and date thereof and the Sales Agreement with respect to which it
received such funds in respect of Receivables) and (ii) deliver to the
Collateral Agent evidence that it has sent a notice to the applicable customer
that all future payments on Receivables are to be deposited into the Collection
Account.
(h) If the Majority Lenders at any time shall reasonably determine that
the ability of any Eligible Buyer listed on Schedule 1 to pay its Receivables to
the Collection Account has been materially adversely affected, and if such
Eligible Buyer is at such time more than 30 days past due in the payment of any
Receivable owing to VCP or any Subsidiary of VCP, then the Majority Lenders may
deliver a notice of such determination to the Agents, the Borrower and VCP. Upon
receipt of such notice by the Borrower, such Eligible Buyer shall be considered
to have been removed from Schedule 1; it being understood that: (i) any
Receivables related to Sales Agreements entered into with such removed Eligible
Buyer before the Borrower's receipt of such notice shall continue to be Tested
Collections to the extent that they otherwise satisfy the conditions thereof and
(ii) such removed Eligible Buyer may qualify as an Eligible Buyer pursuant to
any of clauses (b) through (e) of the definition thereof.
(i) The parties hereto hereby acknowledge the provisions of Section
3.1(n) of the Security Agreement.
Section 8.14 Syndication. Each of Newark, each Newark Subsidiary, VCP
Exportadora and VCP shall assist the Arranger and the Lenders in their
syndication efforts (including by making senior managers available for bank
meetings and by providing upon request all information reasonably deemed
necessary by any such Person to complete the syndication of the Loans and/or
Commitments successfully).
Section 8.15 Investment Company Act. Neither Newark, either Newark
Subsidiary, VCP Exportadora nor VCP shall take (or permit any other Person to
take) any action that could reasonably be expected to result in it being
required to be registered as an "investment company" under the United States
Investment Company Act of 1940.
Section 8.16 Portuguese Translation. By no later than 90 days after the
Amendment Date, Newark shall deliver to each of the Agents a complete and
accurate translation (made by a
Credit Agreement 59
sworn translator) of this Agreement, the Security Agreement and the
Subordination Agreement in Portuguese (such translation to be acceptable to
Machado, Meyer, Sendacz e Opice, the Agents' Brazilian counsel, and to be in
adequate form for registration with the competent Registry of Deeds and
Documents).
Section 8.17 Hungarian Documents. By no later than sixty (60) days
after the Amendment Date, VCP Exportadora shall, and shall cause the initial
Trading Company to, deliver to each of the Agents the following documents, all
of which shall be in form and substance satisfactory to the Administrative
Agent: (a) an opinion of Xxxxxxxx Chance LLP, special Hungarian counsel to the
initial Trading Company, (b) a certified copy of the Trading Company Collateral
Documents, duly executed and delivered by the parties thereto, including
registration of the Agreement Constituting Floating Charge dated in or around
July 2004 between the initial Trading Company and VCP Exportadora with the
Registry of Charges maintained by the Hungarian Chamber of Notaries Public, (c)
certified copies of the Organizational Documents of the initial Trading Company
and of documents (including appropriate resolutions of the Board of Directors or
similar body of the initial Trading Company and, if necessary, shareholder or
similar approval) evidencing the due authorization by it of the making and
performance by it of the Loan Documents to which it is a party and (d) a
certificate of the initial Trading Company as to the authority, incumbency and
specimen signatures of the individuals who have executed the Loan Documents and
other documents contemplated hereby on behalf of the initial Trading Company.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default. Each of the following events is herein
called an "Event of Default":
(a) (i) any payment of any principal of or interest on the
Loans (or any amounts payable pursuant to Section 4.5(c)) shall not be
paid in full when due or (ii) any Obligor shall default for five
Business Days or more in the payment of any other amount whatsoever
payable (or to be deposited) to or for the benefit of the Bank Facility
Secured Parties under the Loan Documents (including pursuant to Section
5.2(b)) (it being understood that an Event of Default shall occur if
any such payments are made from funds on deposit in the Collateral
Account (including from any disbursements under the Reserve Letter of
Credit pursuant to Section 5.3(d)(i)) other than any amount in the
Collateral Account in excess of the Collateral Account Reserve Amount
for the next Interest Period),
(b) any representation, warranty or certification made or
deemed made herein or in any other Loan Document (or in any
modification or supplement hereto or thereto) by any Obligor or the
Trading Company, or in any certificate furnished to any Lender or any
Agent pursuant to the provisions hereof or of any other Loan Document,
shall prove to have been false or misleading in any material respect as
of the time made or deemed made,
Credit Agreement 60
(c) (i) any default, early amortization event or similar event
shall occur with respect to any other Debt of any VCP Party (including
the Other Bank Facility, the Additional Facility and the Other
Facility; provided that any portion of the Debt under the Other
Facility that is not documented as a loan shall be excluded) in an
aggregate outstanding principal amount of at least $10,000,000 (or its
equivalent in any other currency) if the effect thereof is to
accelerate the maturity thereof, or to permit the holder(s) of such
Debt, or an agent or trustee on its or their behalf, to accelerate the
maturity thereof or to require the mandatory pre-payment, defeasance or
redemption thereof, or (ii) with respect to any portion of the Debt
under the Other Facility that is not documented as a loan, any default,
early amortization event or similar event shall occur with respect to
any such Debt in an aggregate outstanding principal amount of at least
$10,000,000 (or its equivalent in any other currency) if, as a result
thereof, such Debt has been accelerated or otherwise required to be
prepaid, defeased or redeemed, in whole or in part, before the
scheduled maturity thereof,
(d) (i) either Newark, either Newark Subsidiary, VCP
Exportadora or VCP shall default in the observance or performance of
any of its obligations under Section 5.6(d) or Article VIII hereof
(other than Section 8.1(a) (with respect to the failure to obtain and
maintain all Governmental Approvals, rights, privileges, licenses and
franchises), Section 8.1(e) and Section 8.2, the default of any of
which shall be covered in clause (iv)) or under Section 2.2(b),
3.1(a)(iv), 3.1(b), 3.1(f) or 3.1(l) of the Security Agreement, (ii)
any Stand-by Exporter shall default in the observance or performance of
any of its obligations under the applicable Export Agreement (other
than Sections 4.1(a) (with respect to the failure to obtain and
maintain all Governmental Approvals, rights, privileges, licenses and
franchises) and Sections 4.1(b) through (e) thereof, the default of any
of which shall be covered in clause (iv)), (iii) the Trading Company
shall default in the observance or performance of any of its
obligations under the Trading Company Collateral Documents or (iv) any
Obligor shall default for a period of 30 days or more in the observance
or performance of any of its other obligations under this Agreement
(other than as provided in clause (a)) or any other Loan Document,
(e) any VCP Party shall admit in writing its inability to, or
be generally unable to, pay its debts as such debts become due,
(f) any VCP Party shall: (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner, sindico, liquidator or similar Person of itself or
of all or any substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) file a petition
seeking to take advantage of any Applicable Law relating to bankruptcy,
insolvency, reorganization, concordata, liquidation, falencia,
dissolution, arrangement or winding up or composition or readjustment
of debts or (iv) take any corporate action for the purpose of effecting
any of the foregoing,
(g) a proceeding or case shall be commenced against any VCP
Party, without its application or consent, seeking: (i) its
reorganization, liquidation, dissolution, arrangement or winding up, or
the composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, sindico, liquidator or similar
Credit Agreement 61
Person of it or of all or any substantial part of its Property or (iii)
similar relief in respect of it under any Applicable Law relating to
bankruptcy, insolvency, reorganization, concordata, liquidation,
falencia, dissolution or winding up or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an
order, judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect, for a period of
60 or more days,
(h) one or more judgment(s), order(s), decree(s), award(s),
settlement(s) and/or agreement(s) to settle (including any relating to
any arbitration) is/are rendered against any VCP Party in an amount
exceeding $10,000,000 (or its equivalent in any other currency) in the
aggregate and shall remain unsatisfied, undischarged and in effect for
a period of 30 or more days without a stay of execution, unless the
same is either: (i) adequately bonded or covered by insurance where the
surety or the insurer, as the case may be, has admitted liability in
respect of such judgment(s), order(s), decree(s), award(s),
settlement(s) and/or agreement(s) to settle or (ii) is being contested
by appropriate proceedings properly instituted and diligently conducted
and, in either case, such process is not being executed against any
Property of such VCP Party,
(i) any non-monetary judgment, order, decree, award,
settlement or agreement to settle (including any relating to any
arbitration) is rendered against or agreed by any VCP Party that (in
the aggregate) has had or could reasonably be expected to have a
Material Adverse Effect, and a stay of execution thereof shall not be
obtained within 30 days from the date of entry or agreement thereof,
(j) any Governmental Approval at any time necessary to enable
any Obligor or the Trading Company to comply with any of its
obligations under any of the Loan Documents or Sales Agreements shall
be revoked, withdrawn, withheld or otherwise not in full force and
effect or shall be modified or amended in a manner that (in the
aggregate) has had or could reasonably be expected to have a Material
Adverse Effect; it being understood that not obtaining the prior
approval of the Central Bank with respect to entering into the
Guaranties of VCP Exportadora and VCP under Articles XI and XII shall
not (in and of itself) result in an Event of Default,
(k) (i) any Loan Document shall at any time be suspended,
revoked or terminated or for any reason cease to be valid and binding
or in full force and effect (other than upon expiration in accordance
with the terms thereof), (ii) performance by any Obligor or the Trading
Company of any obligation thereunder shall become unlawful, (iii) any
Obligor or the Trading Company shall so assert in writing, (iv) the
validity or enforceability thereof shall be contested by any Obligor,
the Trading Company or any Governmental Authority or (v) any Lien
provided for in the Loan Documents shall cease to exist or (except for
priorities of Permitted Liens described in clauses (a) and (b) of the
definition thereof) cease to give the Collateral Agent (on behalf of
the Secured Parties) a first priority perfected security interest under
the law of New York or the law of the jurisdiction of the applicable
pledgor,
(l) any Governmental Authority shall: (i) take any action to
condemn, seize, nationalize, expropriate or appropriate all or any
substantial part of the Property of any
Credit Agreement 62
VCP Party (either with or without payment of compensation) or (ii) take
any other action that: (A) in the aggregate, has had or could
reasonably be expected to have a Material Adverse Effect or purports to
render any of the Loan Documents or Sales Agreements invalid or
unenforceable or to prevent or materially delay the performance or
observance by any Obligor or the Trading Company of its obligations
thereunder or (B) shall, for 30 or more days, prevent any VCP Party
from exercising normal control over all or any substantial part of its
Property,
(m) any Governmental Authority of the British Virgin Islands,
the Netherlands Antilles or Brazil shall declare a moratorium on the
payment of External Debt by: (i) the British Virgin Islands, the
Netherlands Antilles or Brazil, as the case may be, or by any
Governmental Authority thereof or (ii) by any other Person thereof or
therein; provided that (without prejudice to any of the other clauses
of this Section) the occurrence of an event specified in this paragraph
shall not be deemed to be an Event of Default if, within 30 days after
the occurrence of such event, either: (A) a Guaranty in form and
substance reasonably satisfactory to the Majority Lenders is provided
in substitution for the Guaranties under Articles XI and XII, duly
executed by a Person having a credit standing acceptable to each of the
Lenders and accompanied by such evidence (including opinions) of the
due authorization, execution, delivery, legality, validity, binding
effect and enforceability thereof as the Administrative Agent or the
Majority Lenders may reasonably request, or (B) additional Collateral
is pledged to the Collateral Agent (on behalf of the Bank Facility
Secured Parties) that is sufficient in amount to cover all amounts
thereafter to be paid to the Bank Facility Secured Parties under the
Loan Documents and is otherwise acceptable to each of the Lenders and
accompanied by such evidence (including opinions) of the due
authorization, execution, delivery, legality, validity, binding effect
and enforceability of the applicable documents as either Agent or the
Majority Lenders may reasonably request,
(n) a Change in Control shall occur,
(o) the occurrence of a Specified Event for any two
consecutive Interest Periods or the occurrence of four Specified Events
during the life of the Loans,
(p) for any two consecutive Interest Periods (or four during
the life of the Loans), Tested Collections (minus the lesser of: (i)
the sum of the Debt Service Amount for the Other Facility, the Other
Bank Facility (multiplied by 1.25) and the Additional Facility for the
applicable Interest Period and (ii) the amount described in clause (a)
of the definition of Tested Collections for such Interest Period
relating to Products produced by VCP and its Brazilian Subsidiaries)
relating to Products produced in Brazil by VCP, its Brazilian
Subsidiaries or a Stand-by Exporter shall be less than 50% of the Debt
Service Amount for the Bank Facility for the Payment Date at the end of
such Interest Period,
(q) the Debt Service Coverage Ratio as of the end of any
fiscal quarter of VCP shall be less than 1.30 (it being understood that
such ratio shall not be calculated until the delivery of the financial
statements referred to in Section 8.4, but that any related Event of
Default shall be considered to have begun as of the last day of the
relevant fiscal quarter),
Credit Agreement 63
(r) the Net Debt to EBITDA Ratio as of the end of any Fiscal
Semester of VCP shall exceed 3.00 (it being understood that such ratio
shall not be calculated until the delivery of the financial statements
referred to in Section 8.4, but that any related Event of Default shall
be considered to have begun as of the last day of the relevant Fiscal
Semester), or
(s) the Total Debt to Total Capitalization Ratio as of the end
of any Fiscal Semester of VCP shall exceed 0.70 (it being understood
that such ratio shall not be calculated until the delivery of the
financial statements referred to in Section 8.4, but that any related
Event of Default shall be considered to have begun as of the last day
of the relevant Fiscal Semester).
If an Event of Default exists, then the Administrative Agent shall, upon the
request of the Majority Lenders: (A) by notice to Newark, each Newark
Subsidiary, VCP Exportadora and VCP, declare: (1) the Commitments to be
terminated immediately, whereupon the Commitments shall immediately terminate,
or (2) the principal amount then outstanding of, and the accrued interest on,
the Loans and all other amounts payable by the Borrower under the Loan Documents
(including any amounts payable under Section 4.4) to be immediately due and
payable, whereupon such amounts shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by Newark, each Newark Subsidiary, VCP Exportadora and
VCP; provided that in the case of an Event of Default of the kind referred to in
clause (c)(ii), (f) or (g), the Commitments shall automatically terminate and
all amounts payable under the Loan Documents shall automatically become
immediately due and payable, without any further action by any Person, and/or
(B) subject to the Security Agreement, instruct the Collateral Agent and/or the
Administrative Agent to liquidate the Collateral and apply the proceeds thereof
(except any such proceeds allocated to the Other Facility, the Additional
Facility or the Other Bank Facility pursuant to the Security Agreement) to the
payment of amounts owing to the Bank Facility Secured Parties under the Loan
Documents, and/or (C) instruct the Collateral Agent to request any or both of
the Stand-by Exporters to sell Products to Newark pursuant to the applicable
Export Agreement(s) in the manner described in Section 8.13(e).
ARTICLE X
THE AGENTS
Section 10.1 Appointment, Powers and Immunities. (a) Each Lender hereby
appoints and authorizes each of the Agents to act as its agent hereunder and (as
applicable) under the other Loan Documents with such powers as are specifically
delegated to such Agent by the terms of this Agreement and (as applicable) the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Each Agent (which term as used in this sentence, in Section
10.5 and in the first sentence of Section 10.6 shall include reference to its
Affiliates and its own and its Affiliates' officers, directors, employees,
representatives and agents):
Credit Agreement 64
(i) shall have no duties or responsibilities except those
expressly set forth in the Loan Documents and shall not by reason of
this Agreement or any other Loan Document be a trustee or fiduciary for
any Bank Facility Secured Party,
(ii) shall not be responsible to the Bank Facility Secured
Parties for any recitals, statements, representations or warranties
contained in any Loan Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, any
Loan Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of the Collateral or any Loan Document or
any other document referred to or provided for herein or for any
failure by any Obligor to perform any of its obligations hereunder or
thereunder,
(iii) except as expressly provided in the Loan Documents,
shall not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document, and
(iv) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other document referred to or
provided for herein or in connection herewith, except for its own gross
negligence or willful misconduct.
Each Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of or for the supervision of any such agents or
attorneys-in-fact that were selected by it in good faith.
(b) Before either Agent acts or refrains from acting, it may require an
officer's certificate of any Obligor and/or an opinion of counsel satisfactory
to such Agent with respect to the proposed action or inaction. Neither Agent
shall be liable for any action it takes or omits to take in good faith in
reliance upon such certificate or opinion. Whenever in the administration of the
Loan Documents either Agent shall deem it necessary or desirable that a matter
be provided or established before taking or suffering or omitting to take any
act under any Loan Document, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of gross
negligence or bad faith on the part of such Agent, be deemed to be conclusively
proved and established by an officers' certificate delivered to such Agent, and
such certificate, in the absence of gross negligence or bad faith on the part of
such Agent, shall be full warrant to such Agent for any action taken, suffered
or omitted to be taken by it under the Loan Documents upon the faith thereof.
(c) The Arranger shall not have any liability or responsibility
whatsoever under the Loan Documents.
(d) Any Person: (i) into which either Agent may be merged or
consolidated or (ii) that may result from any merger, conversion or
consolidation to which either Agent shall be a party shall (if such Agent is not
the surviving entity) be the successor of such Agent without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto.
Section 10.2 Reliance by the Agents. Each Agent shall be entitled to
rely conclusively upon any certification, notice or other communication
(including any thereof by e-mail, telephone or facsimile) reasonably believed by
it to be genuine and correct and to have been
Credit Agreement 65
signed or sent by or on behalf of the appropriate Person(s), and upon advice and
statements of legal counsel and other experts selected by such Agent. As to any
matters not expressly provided for in the Loan Documents, each Agent shall in
all cases be fully protected in acting, or in refraining from acting, thereunder
in accordance with instructions given by the Majority Lenders, and such
instructions of the Majority Lenders and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders and other Bank
Facility Secured Parties.
Section 10.3 Defaults. Neither Agent shall be deemed to have knowledge
or notice of the occurrence of a Default (with respect to the Administrative
Agent, other than a failure to make a payment of principal of or interest on the
Loans) unless it has received written notice from a Lender or an Obligor
specifying such Default and stating that such notice is a "Notice of Default."
If either Agent receives such a notice, then it shall give prompt notice thereof
to the Lenders and the Other Facility Agent, Other Bank Facility Agent and
Additional Facility Agent. Each Agent shall (subject to Section 10.7) take such
action with respect to any such Default as shall be directed by the Majority
Lenders; provided that unless and until an Agent shall have received such
directions, it may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default as it shall deem advisable
in the best interest of the Bank Facility Secured Parties except to the extent
that the Loan Documents expressly require that such action be taken, or not be
taken, only with the consent or upon the authorization of the Majority Lenders
or all of the Lenders.
Section 10.4 Rights as a Lender. With respect to any Commitment and
Loan made by it, each of ABN AMRO and The Bank of New York (and any successor
acting as an Agent) in its capacity as a Lender hereunder shall have the same
rights and powers as any other Lender and may exercise the same as though it
were not acting as an Agent, and the term "Lender" shall, unless the context
otherwise indicates, include each Agent in its individual capacity. ABN AMRO and
The Bank of New York (and any successor acting as an Agent) and their respective
Affiliates may (without having to account therefore to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with any Obligor, any Eligible Buyer,
any Eligible Financial Institution and any Affiliate of any thereof as if it
were not acting as an Agent, and ABN AMRO and The Bank of New York (and any such
successor) and their respective Affiliates may accept fees and other
consideration from any such Person(s) for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
Section 10.5 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 13.3, but
without limiting the obligations of Newark and the Newark Subsidiaries under
Section 13.3) ratably in accordance with the aggregate principal amount of the
Loans held by the Lenders (or, if no Loans are at the time outstanding, ratably
in accordance with their respective Commitments), for any and all losses,
liabilities, claims, obligations, damages or expenses (including the fees and
disbursements of counsel) incurred by it arising out of or by reason of any
investigation in any way relating to or arising out of this Agreement or any
other documents contemplated by or referred to herein or the transactions
contemplated hereby (including the costs and expenses that Newark and the Newark
Subsidiaries are obligated to pay under Section 13.3, but excluding, other than
additional administrative costs and expenses resulting from a Default, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any
Credit Agreement 66
of the terms hereof or of any such other documents; provided that no Lender
shall be liable to the Administrative Agent for any of the foregoing to the
extent that it arises from the gross negligence or willful misconduct of the
Administrative Agent (or any of its agents or Affiliates) as determined by a
final, nonappealable judgment by a court of competent jurisdiction. In no event
shall any Lender be liable to the Administrative Agent for any punitive or
consequential damages in connection with any of the Loan Documents. The
obligations of the Lenders under this Section shall survive the termination of
this Agreement, the repayment of the Loans and/or the earlier resignation or
removal of the Administrative Agent. The obligations of the Lenders to indemnify
the Collateral Agent are as set forth in Section 5.5 of the Security Agreement
(and each Lenders hereby confirms its obligations thereunder).
Section 10.6 Non-Reliance upon the Agents and other Lenders. Each
Lender agrees that it has, independently and without reliance upon either Agent,
the Arranger or any other Lender, and based upon such documents and information
as it has deemed appropriate, made its own credit analysis of the Obligors and
decision to enter into this Agreement and that it will, independently and
without reliance upon either Agent, the Arranger or any other Lender, and based
upon such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement and the other Loan Documents. Neither Agent shall be
required to keep itself informed as to the performance or observance by any
Obligor of this Agreement, any other Loan Document or any other document
referred to or provided for herein or to inspect the Properties or books of any
Obligor. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by an Agent under the Loan
Documents, neither Agent shall have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of any Obligor that may come into the possession of such
Agent or any of its Affiliates.
Section 10.7 Failure to Act. Except for any action expressly required
of an Agent under a Loan Document, it shall in all cases be fully justified in
failing or refusing to act under the Loan Documents unless it shall receive
further assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 10.5 against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
No provision of any Loan Document shall require either Agent to take any action
that it reasonably believes to be contrary to Applicable Law or to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties thereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Section 10.8 Resignation or Removal of the Agents. (a) Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders, Newark, each Newark Subsidiary, VCP Exportadora and VCP, and the
Administrative Agent may be removed at any time with or without cause by the
Majority Lenders. Upon any such resignation or removal, the Majority Lenders (if
no Default then exists, with the consent of VCP, which consent shall not be
unreasonably withheld or delayed) shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed and shall have accepted such appointment within 30 days after the
existing Administrative Agent's giving of
Credit Agreement 67
notice of resignation or the Majority Lenders' election to remove the existing
Administrative Agent, then the existing Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a bank
that has a combined capital and surplus of at least $500,000,000 (or its
equivalent in any other currency). Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor, such successor shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the existing Administrative Agent, and the existing Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
Administrative Agent's resignation or removal hereunder, the provisions of this
Article shall continue in effect for its benefit in respect of any actions taken
or omitted to be taken by it while it was acting as the Administrative Agent.
(b) The Collateral Agent may resign or be removed in the manner
provided in the Security Agreement.
ARTICLE XI
VCP EXPORTADORA'S AND VCP NA'S GUARANTY OF NEWARK AND
NEWARK'S GUARANTY OF THE BORROWER
Section 11.1 Guaranty. (a) For good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged: (i) Newark hereby
unconditionally Guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the payment obligations of the
Borrower to the Bank Facility Secured Parties under the Loan Documents and (ii)
each of VCP Exportadora and VCP NA hereby unconditionally Guarantees the full
and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the payment obligations of Newark to the Bank Facility Secured
Parties under the Loan Documents (including Newark's Guaranty obligations under
clause (i)), in each case as primary obligor and not merely as surety and with
respect to all such obligations howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, or due or
to become due. This is a guaranty of payment and not merely of collection. In
order to secure the payment of the Loans each of VCP Exportadora, Newark and VCP
NA has granted certain Liens to the Collateral Agent (on behalf of the Secured
Parties) in the manner described in the Security Agreement.
(b) All payments made by VCP Exportadora, VCP NA or Newark under this
Article shall be payable in the manner required for payments by the Borrower
hereunder, including: (i) the obligation to make all such payments free and
clear of, and without deduction for, any Taxes (including withholding taxes),
(ii) the obligation to pay interest at the Default Rate and (iii) the obligation
to pay all amounts due under the Loans in Dollars.
Section 11.2 Guaranty Unconditional. The obligations of VCP
Exportadora, VCP NA and Newark under this Article shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation(s) of an Obligor under the Loan
Documents and/or any Commitment(s) under the Loan Documents, by
operation of law or otherwise,
Credit Agreement 68
(b) any modification or amendment of or supplement to this
Agreement or any other Loan Document,
(c) any release, impairment, non-perfection or invalidity of
any Collateral,
(d) any change in the corporate existence, structure or
ownership of the Borrower or any other Person, or any event of the type
described in Section 9.1(e), (f) or (g) with respect to any Person,
(e) the existence of any claim, set-off or other rights that
VCP Exportadora, VCP NA or Newark may have at any time against the
Borrower, either Agent, any other Secured Party or any other Person,
whether in connection herewith or with any unrelated transactions,
(f) any invalidity or unenforceability relating to or against
any Obligor for any reason of any Loan Document, or any provision of
Applicable Law purporting to prohibit the performance by any Obligor of
any of its obligations under the Loan Documents, or
(g) any other act or omission to act or delay of any kind by
any Obligor, either Agent, any other Secured Party or any other Person
or any other circumstance whatsoever that might, but for the provisions
of this Section, constitute a legal or equitable discharge of the
obligations of the Borrower under the Loan Documents.
Section 11.3 Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. VCP Exportadora's, VCP NA's and Newark's obligations
hereunder shall remain in full force and effect until all of the Borrower's
payment obligations to the Bank Facility Secured Parties under the Loan
Documents shall have been paid or otherwise performed in full and all of the
Commitments shall have terminated. If at any time any payment made to any Bank
Facility Secured Party under this Agreement or any other Loan Document is
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy, reorganization, concordata, falencia or similar event of the
Borrower or any other Person or otherwise, then VCP Exportadora's, VCP NA's and
Newark's obligations hereunder with respect to such payment shall be reinstated
at such time as though such payment had been due but not made at such time.
Section 11.4 Waiver by VCP Exportadora, VCP NA and Newark. Each of VCP
Exportadora, VCP NA and Newark hereby irrevocably and unconditionally waives, to
the fullest extent permitted by Applicable Law: (a) notice of acceptance of the
Guaranty provided in this Article and notice of any liability to which this
Guaranty may apply, (b) all notices that may be required by Applicable Law or
otherwise to preserve intact any rights of any Secured Party against any
Obligor, including any demand, presentment, protest, proof of notice of
non-payment, notice of any failure on the part of any Obligor to perform and
comply with any covenant, agreement, term, condition or provision of any
agreement and any other notice to any other party that may be liable in respect
of the obligations Guaranteed hereby (including any Obligor) except any of the
foregoing as may be expressly required hereunder, (c) any right to the
enforcement, assertion or exercise by any Secured Party of any right, power,
privilege or remedy conferred upon such Person under the Loan Documents or
otherwise, (d) any requirement that any Secured Party exhaust any right, power,
privilege or remedy, or mitigate any damages
Credit Agreement 69
resulting from a default, under any Loan Document, or proceed to take any action
against any Collateral or against any Obligor or any other Person under or in
respect of any Loan Document or otherwise, or protect, secure, perfect or ensure
any Lien on any Collateral, and (e) with respect to VCP Exportadora, the benefit
of Articles 366, 827, 829, 830, 834, 835, 837, 838 and 839 of the Brazilian
Civil Code and Article 595 of the Brazilian Civil Procedure Code.
Section 11.5 Subrogation. Upon VCP Exportadora's, VCP NA's or Newark's
making payment under this Article, it shall be subrogated to the rights of the
payee against Newark or the Borrower, as applicable, with respect to such
obligation; provided that neither VCP Exportadora, VCP NA nor Newark shall
enforce any payment by way of subrogation, indemnity or otherwise, or exercise
any other right, against Newark or the Borrower (or otherwise benefit from any
payment or other transfer arising from any such right) so long as any payment
obligations (other than on-going but not yet incurred indemnity obligations) of
the Borrower to the Bank Facility Secured Parties remain unpaid and/or
unsatisfied and/or any Commitments remain outstanding under the Loan Documents.
Section 11.6 Stay of Acceleration. If acceleration of the time for
payment of any amounts payable to the Bank Facility Secured Parties under the
Loan Documents is stayed due to any event described in Section 9.1(e), (f) or
(g), then all such amounts otherwise subject to acceleration under this
Agreement shall nonetheless be payable by VCP Exportadora, VCP NA and Newark
hereunder immediately upon demand by the Administrative Agent.
ARTICLE XII
VCP'S GUARANTY OF VCP EXPORTADORA
Section 12.1 Guaranty. (a) For good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, VCP hereby, as primary
obligor and not merely as surety, unconditionally Guaranties the full and
punctual payment (whether at stated maturity, upon acceleration or otherwise) of
the payment obligations (howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing, or due or to
become due) of VCP Exportadora to the Bank Facility Secured Parties under the
Loan Documents (including under Article XI). This is a guaranty of payment and
not merely of collection.
(b) All payments made by VCP under this Article shall be payable in the
manner required for payments by the Borrower hereunder, including: (i) the
obligation to make all such payments free and clear of, and without deduction
for, any Taxes (including withholding taxes), (ii) the obligation to pay
interest at the Default Rate and (iii) the obligation to pay all amounts due
under the Loans in Dollars.
Section 12.2 Guaranty Unconditional. The obligations of VCP under this
Article shall be unconditional and absolute and, without limiting the generality
of the foregoing, shall not be released, discharged or otherwise affected by:
Credit Agreement 70
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation(s) of an Obligor under the Loan
Documents and/or any Commitment(s) under the Loan Documents, by
operation of law or otherwise,
(b) any modification or amendment of or supplement to this
Agreement or any other Loan Document,
(c) any release, impairment, non-perfection or invalidity of
any Collateral,
(d) any change in the corporate existence, structure or
ownership of VCP Exportadora or any other Person, or any event of the
type described in Section 9.1(e), (f) or (g) with respect to any
Person,
(e) the existence of any claim, set-off or other rights that
VCP may have at any time against VCP Exportadora, either Agent, any
other Secured Party or any other Person, whether in connection herewith
or with any unrelated transactions,
(f) any invalidity or unenforceability relating to or against
any Obligor for any reason of any Loan Document, or any provision of
Applicable Law purporting to prohibit the performance by any Obligor of
any of its obligations under the Loan Documents, or
(g) any other act or omission to act or delay of any kind by
any Obligor, either Agent, any other Secured Party or any other Person
or any other circumstance whatsoever that might, but for the provisions
of this Section, constitute a legal or equitable discharge of the
obligations of VCP Exportadora under the Loan Documents.
Section 12.3 Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. VCP's obligations hereunder shall remain in full force
and effect until all of VCP Exportadora's payment obligations to the Bank
Facility Secured Parties under the Loan Documents shall have been paid or
otherwise performed in full and all of the Commitments shall have terminated. If
at any time any payment made to any Bank Facility Secured Party under this
Agreement or any other Loan Document is rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy, reorganization, concordata,
falencia or similar event of VCP Exportadora or any other Person or otherwise,
then VCP's obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at such
time.
Section 12.4 Waiver by VCP. VCP hereby irrevocably and unconditionally
waives, to the fullest extent permitted by Applicable Law: (a) notice of
acceptance of the Guaranty provided in this Article and notice of any liability
to which this Guaranty may apply, (b) all notices that may be required by
Applicable Law or otherwise to preserve intact any rights of any Secured Party
against any Obligor, including any demand, presentment, protest, proof of notice
of non-payment, notice of any failure on the part of any Obligor to perform and
comply with any covenant, agreement, term, condition or provision of any
agreement and any other notice to any other party that may be liable in respect
of the obligations Guaranteed hereby (including any Obligor) except any of the
foregoing as may be expressly required hereunder, (c) any right to the
enforcement, assertion or exercise by any Secured Party of any right, power,
privilege or remedy conferred upon such Person under the Loan Documents or
otherwise, (d) any requirement that
Credit Agreement 71
any Secured Party exhaust any right, power, privilege or remedy, or mitigate any
damages resulting from a default, under any Loan Document, or proceed to take
any action against any Collateral or against any Obligor or any other Person
under or in respect of any Loan Document or otherwise, or protect, secure,
perfect or ensure any Lien on any Collateral, and (e) the benefit of Articles
366, 827, 829, 830, 834, 835, 837, 838 and 839 of the Brazilian Civil Code and
Article 595 of the Brazilian Civil Procedure Code.
Section 12.5 Subrogation. Upon VCP's making payment under this Article,
it shall be subrogated to the rights of the payee against VCP Exportadora with
respect to such obligation; provided that VCP shall not enforce any payment by
way of subrogation, indemnity or otherwise, or exercise any other right, against
VCP Exportadora, Newark or the Newark Subsidiaries (or otherwise benefit from
any payment or other transfer arising from any such right) so long as any
payment obligations (other than on-going but not yet incurred indemnity
obligations) of VCP Exportadora, Newark or the Newark Subsidiaries to the Bank
Facility Secured Parties remain unpaid and/or unsatisfied and/or any Commitments
remain outstanding under the Loan Documents.
Section 12.6 Stay of Acceleration. If acceleration of the time for
payment of any amounts payable to the Bank Facility Secured Parties under the
Loan Documents is stayed due to any event described in Section 9.1(e), (f) or
(g), then all such amounts otherwise subject to acceleration under this
Agreement shall nonetheless be payable by VCP hereunder immediately upon demand
by the Administrative Agent.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Waiver. No failure on the part of either Agent or any
other Secured Party to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under any Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under any Loan Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided in the Loan Documents are cumulative and not exclusive of
any other remedies provided by Applicable Law.
Section 13.2 Notices. All notices, requests, instructions, directions
and other communications provided for herein (including any modifications of, or
waivers, requests or consents under, this Agreement) shall be given or made in
writing (including by facsimile) delivered to the intended recipient as follows:
(a) if to Newark, to it at Xxxxxxx Xxxxxx 0000, 0x xxxxx, Xxx
Xxxxx - XX, Xxxxxx 01419-908, Attention of Xxxx Xxxx Xxxxx (Facsimile
No.: (5511) 0000-0000; Telephone No.: (5511) 0000-0000),
(b) if to the Borrower, to it at Xxxxxxx Xxxxxx 0000, 0x
xxxxx, Xxx Xxxxx - XX, Xxxxxx 01419-908, Attention of Xxxx Xxxx Xxxxx
(Facsimile No.: (5511) 0000-0000; Telephone No.: (5511) 0000-0000),
Credit Agreement 72
(c) if to VCP NA, to it at Xxxxxxx Xxxxxx 0000, 0x xxxxx, Xxx
Xxxxx - XX, Xxxxxx 01419-908, Attention of Xxxx Xxxx Xxxxx (Facsimile
No.: (5511) 0000-0000; Telephone No.: (5511) 0000-0000),
(d) if to VCP Exportadora, to it at Xxxxxxx Xxxxxx 0000, 0x
xxxxx, Xxx Xxxxx - XX, Xxxxxx 01419-908, Attention of Xxxx Xxxx Xxxxx
(Facsimile No.: (5511) 0000-0000; Telephone No.: (5511) 0000-0000),
(e) if to VCP, to it at Xxxxxxx Xxxxxx 0000, 0x xxxxx, Xxx
Xxxxx - XX, Xxxxxx 01419-908, Attention of Xxxx Xxxx Xxxxx (Facsimile
No.: (5511) 0000-0000; Telephone No.: (5511) 0000-0000),
(f) if to the Administrative Agent, to it at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention of Xxxxxx Xxxxxx
(Facsimile No: (000) 000-0000; Telephone No.: (000) 000-0000),
(g) if to the Collateral Agent, to it at 00 Xxxxx Xxxxxx,
00xx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxxx Xxxxxxxx, Global
Finance Unit (Facsimile No.: (000) 000-0000; Telephone No.: (212)
235-2402), and
(h) if to a Lender, to it at its address (or facsimile number)
set forth in its Administrative Questionnaire or otherwise notified to
the Administrative Agent.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when personally delivered or, in the case of a
facsimile or mailed notice, upon receipt, in each case given or addressed as
aforesaid. Any party hereto may change its address or facsimile number for
notices and other communications hereunder by notice to the other parties hereto
(or, in the case of any such change by a Lender, by notice to Newark and the
Administrative Agent).
Any agreement herein of the Agents and Lenders to receive certain
notices by telephone, facsimile or other unsigned method is solely for the
convenience and at the request of Newark, the Newark Subsidiaries, VCP
Exportadora and VCP. The Agents and Lenders shall (absent gross negligence or
bad faith) be entitled to rely upon the authority of any Person purporting to be
authorized by Newark, a Newark Subsidiary, VCP Exportadora and/or VCP to give
any such notice and the Agents and Lenders shall not have any liability to
Newark, the Newark Subsidiaries, VCP Exportadora, VCP or any other Person on
account of any action taken or not taken by the Agents and/or Lenders in
reliance upon any such notice.
Section 13.3 Expenses; Indemnity. (a) Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to pay or reimburse:
(i) the Administrative Agent for all of its reasonable and documented
out-of-pocket costs and expenses (including the reasonable fees and expenses of
Mayer, Brown, Xxxx & Maw LLP, special U.S. counsel to the Administrative Agent,
and Machado, Meyer, Sendacz e Opice, special Brazilian counsel to the
Administrative Agent, and printing, reproduction, document delivery,
communication and travel costs) in connection with: (A) the syndication,
negotiation, preparation, execution and delivery of this Agreement and the other
Loan Documents and the making of the Loans hereunder and (B) the negotiation or
preparation of any modification, supplement or waiver of any of the terms of
Credit Agreement 73
this Agreement and the other Loan Documents (whether or not consummated) and
(ii) the Agents and each of the Lenders for all of their reasonable
out-of-pocket costs and expenses (including the reasonable fees and expenses of
legal counsel) in connection with any enforcement or collection proceedings
resulting from an Event of Default.
(b) The Borrower hereby agrees to indemnify each Bank Facility Secured
Party and their respective directors, officers, employees, attorneys and agents
from, and hold each of them harmless against, any and all losses, liabilities,
claims, damages or reasonable expenses incurred by any of them arising out of or
by reason of any investigation, litigation, arbitration or other proceeding
(including any threatened investigation, litigation, arbitration or other
proceeding) relating to the Loan Documents, the Loans, the Sales Agreements
and/or the use or proposed use by Newark or the Borrower of the proceeds of the
Loans, including the reasonable fees and disbursements of counsel incurred in
connection with any such litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified, as determined
by a final, nonappealable judgment by a court of competent jurisdiction). In no
event shall any Bank Facility Secured Party be liable to any Person for any
punitive or consequential damages in connection with any of the Loan Documents.
(c) To the extent that any undertaking in clause (b) may be
unenforceable because it is violative of any Applicable Law or public policy,
the Borrower shall contribute, jointly and severally, the maximum portion that
it is permitted to pay and satisfy under Applicable Law to the payment and
satisfaction of such undertaking.
(d) All amounts payable or indemnifiable under this Section shall be
secured by the Collateral and shall be immediately due and payable on demand.
All amounts paid and costs incurred by any Bank Facility Secured Party in
respect to any matter payable or indemnifiable under this Section shall, if not
so paid or reimbursed by the Borrower before the date that is ten Business Days
after the date on which the Borrower were requested to make such payment, be an
Event of Default and bear interest from the date of such request at the Default
Rate.
Section 13.4 Amendments, Etc. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement or of the Trading Company
Collateral Documents and (except as specifically provided therein) any other
Loan Document may be modified or supplemented only in a writing signed by the
applicable Obligor(s) (or, in the case of the Trading Company Collateral
Documents, by the applicable parties) and, in any such case, the Majority
Lenders (or the applicable Agent upon the instruction of the Majority Lenders),
and any provision of this Agreement and (except as specifically provided
therein) any other Loan Document may be waived by the Majority Lenders; provided
that: (a) no modification, supplement or waiver shall, unless by an instrument
signed by all of the Lenders: (i) increase, extend the term of or reinstate the
Commitments, (ii) extend the date fixed (or the currency) for the payment of
principal of or interest on any Loan or any fee payable to the Lenders under the
Loan Documents (it being understood that the Majority Lenders may waive or amend
any payment of additional interest payable through the Default Rate as a result
of an Event of Default), (iii) reduce the amount of any payment of principal,
(iv) reduce the rate at which interest is payable thereon or any fee is payable
to the Lenders under the Loan Documents, (v) alter the terms of this Section,
(vi) release all or any material portion of the Collateral (except as
Credit Agreement 74
expressly otherwise provided in the Loan Documents); it being understood that
sharing the Collateral in the manner described in the Security Agreement does
not require any such consent of the Lenders except to the extent set forth
therein, (vii) release any of VCP Exportadora, VCP, VCP NA or Newark from its
Guaranty hereunder or from VCP's obligations under Section 8.13(d), (viii)
release any Stand-by Exporter from its obligations under the applicable Export
Agreement, the Trading Company from its obligations under the Trading Company
Collateral Documents or any other Person from its supply agreement or other
credit enhancement provided pursuant to Section 8.6(c)(ii), (ix) modify the
definition of the term "Majority Lenders" or modify in any other manner the
number or percentage of the Lenders required to make any determinations or waive
any rights under the Loan Documents or to modify any provision thereof or (x)
alter the terms of Section 13.7, (b) any modification or supplement of Article
X, or of any of the rights or duties of an Agent under the Loan Documents, shall
also require the consent of such Agent, (c) any modifications, supplements or
waivers of the Agents' Fee Letters shall be entered into solely by the parties
thereto (it being understood that no other Person shall have any rights with
respect thereto, including to receive a copy thereof), and (d) without the
consent of any Lenders, amendments may be made to any Loan Document to: (i) add
any representations, covenants, other obligations or defaults of any Obligor
thereunder unless such additional provision could reasonably be expected to have
a Material Adverse Effect or (ii) amend and restate this Agreement and any other
Loan Document to the extent necessary to reflect a new Guaranty of the
Borrower's obligations hereunder (including as described in Sections 8.6(b) and
8.12(c)(ii)(A)).
Neither Newark, either Newark Subsidiary, VCP Exportadora nor VCP (nor
any other Person on their behalf) shall directly or indirectly pay or cause to
be paid any remuneration in any manner whatsoever to any Lender as consideration
for or as an inducement to the entering into by such Lender of any waiver or
amendment of any of the Loan Documents unless such remuneration is concurrently
paid ratably to each Lender even if any such Lender is not required to or did
not consent to such waiver or amendment.
Section 13.5 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, except that (except as set forth in Section
8.12) neither Newark, either Newark Subsidiary, VCP Exportadora nor VCP may
assign or transfer (and VCP and VCP Exportadora shall not permit the Trading
Company to assign or transfer) any of its rights or obligations under this
Agreement or any other Loan Document without the prior written consent of each
Lender (any attempt to do so being null and void ab initio).
Section 13.6 Third Party Beneficiaries. This Agreement is made and
entered into for the sole protection and legal benefit of the parties hereto,
the Bank Facility Secured Parties and their permitted successors and assigns
(all of which, if not parties hereto, are third-party beneficiaries hereof for
purposes of enforcing their respective rights hereunder), and no other Person
shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement.
Section 13.7 Assignments and Participations. (a) Each Lender may, in
accordance with Applicable Law, with the prior written consent of the
Administrative Agent (which consent
Credit Agreement 75
shall not be unreasonably withheld), assign its Loan(s), its Commitment or any
portion thereof to any other Person; provided that:
(i) no such consent shall be required in the case of any
assignment to another Lender or by a Lender to an Affiliate thereof,
(ii) any such partial assignment (other than to another
Lender) shall be in an amount at least equal to $1,000,000 or an
integral multiple of $500,000 in excess thereof (or, if less, all of
such Lender's remaining Loans or Commitment hereunder),
(iii) upon each such assignment, the assignor and assignee
shall deliver an Assignment Agreement to the Borrower and the
Administrative Agent,
(iv) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire,
and
(v) each such assignment shall be to an Eligible Assignee
unless the Borrower has consented to such assignment; provided that no
Obligor or any Affiliate of any thereof shall be permitted to be an
assignee even if the Borrower provides such consent.
Upon the effective date of the assignment to be effected by an Assignment
Agreement and register thereof pursuant to clause (b), the assignee shall have,
to the extent of such assignment, the obligations, rights and benefits of a
Lender hereunder holding the Commitment or Loan(s) (or portion thereof) assigned
to it and specified in such Assignment Agreement (in addition to the Commitment
or Loans, if any, theretofore held by such assignee) and the assigning Lender
shall, to the extent of such assignment of its Commitment, be released from the
Commitment (or portion thereof) so assigned. Upon its receipt of an Assignment
Agreement executed by an assigning Lender and an assignee together with (except
in the case of an assignment by a Lender to an Affiliate of such Lender) payment
by the assigning or assignee Lender to the Administrative Agent of an assignment
fee of $3,000, the Administrative Agent shall: (A) promptly accept such
Assignment Agreement and (B) on the effective date determined pursuant thereto
record the information contained therein in the Register and give notice of such
acceptance and recordation to the assigning Lender, its assignee and the
Borrower. Notwithstanding anything to the contrary contained herein, the
Borrower shall not be obligated to pay to any Lender any amount under Section
4.1, 4.3, 4.4 or 4.5 that is greater than the amount that the Borrower would
have been obligated to pay such Lender's assignor if such assigning Lender had
not assigned to such Lender any of its rights under this Agreement, unless such
assignment is made: (1) at a time when the circumstances giving rise to such
greater payments did not exist or (2) with the consent of the Borrower.
Notwithstanding the foregoing, no such assignment shall be allowed if the
assignor thereof (if it is assigning less than all of its Loan or Commitments)
would, after such assignment, have less than $1,000,000 in Loans (such amount to
be reduced on a pro rata basis upon the receipt of any payment of principal on
the Loans) or Commitments. Any assignment in contravention of the provisions of
this paragraph shall be null and void ab initio.
(b) The Administrative Agent shall maintain at its address referred to in
Section 13.2 a copy of each Assignment Agreement delivered to it and a register
(the "Register") for the
Credit Agreement 76
recordation of the names and addresses of the Lenders and the principal amounts
of the Commitments of, or Loans owing to, each Lender from time to time. The
parties hereto shall treat each Person whose name is recorded in the Register as
the owner of a Loan or other obligations hereunder as the owner thereof for all
purposes of this Agreement and the other Loan Documents, notwithstanding any
notice to the contrary. Any assignment of any Loan or other obligation hereunder
shall be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the parties
hereto at any reasonable time (in each case during the normal business hours of
the Administrative Agent) and from time to time upon reasonable prior notice.
(c) A Lender may, in accordance with Applicable Law, sell or agree to
sell to one or more other Persons (each a "Participant") a participation in all
or any part of the Loans held by it, or in its Commitment; provided that such
Participant shall not have any rights or obligations under this Agreement (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable to any Lender under Article IV in respect of
the Loan held by it, or its Commitment, shall be determined as if such Lender
had not sold or agreed to sell any participations in such Loan or Commitment and
as if such Lender were funding such Loan or Commitment in the same way that it
is funding the portion of such Loan or Commitment in which no participations
have been sold (or if all of its Loan or Commitment has been so participated, in
the same way that it was funding such Loan or Commitment at the time of such
participation). In no event shall a Lender that sells a participation agree with
the Participant to take or refrain from taking any action hereunder except that
such Lender may agree with the Participant that it shall not, without the
consent of the Participant, agree to anything requiring the vote of 100% of the
Lenders hereunder.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section, any Lender may (without notice or
consent of the Administrative Agent or any other Person and without payment of
any fee) assign and pledge all or any portion of its Loan or Note to any U.S.
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the U.S. Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
(e) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section, disclose to
the assignee or participant or proposed assignee or participant any information
relating to the Obligors furnished to such Lender by or on behalf of any
Obligor; provided that, before any such disclosure, the assignee or participant
or proposed assignee or participant shall agree to preserve the confidentiality
of any Confidential Information relating to the Obligors received by it from
such Lender on the terms set forth in Section 13.20.
Section 13.8 Survival. The obligations of the Borrower under Sections
4.1, 4.4, 4.5 and 13.3, and the obligations of the Lenders under Section 10.5,
shall survive the repayment of the Loans and the termination of the Commitments
and, in the case of any Lender that may assign any interest in its Commitment or
Loan hereunder, shall survive the making of such assignment, notwithstanding
that such assigning Lender may cease to be a "Lender" hereunder;
Credit Agreement 77
provided that any Lender's obligations under Section 10.5 shall only apply to
the extent that the event with respect to which any indemnification is payable
thereunder occurred at the time that such Lender maintained a Loan or Commitment
hereunder. In addition, each representation and warranty made, or deemed to be
made by a notice of any Loan, herein or pursuant hereto shall survive the making
of such representation and warranty.
Section 13.9 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
Section 13.10 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart. A set of the copies of this Agreement signed by
all the parties hereto shall be retained by the Borrower and each of the Agents.
Section 13.11 Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF NEW YORK (NOT
INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE BANK FACILITY SECURED
PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
Section 13.12 Jurisdiction, Service of Process and Venue. (a) ANY
LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN OR
REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW
YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
(IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND
COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. EACH OF NEWARK,
EACH NEWARK SUBSIDIARY, VCP EXPORTADORA AND VCP IRREVOCABLY CONSENTS TO THE
APPOINTMENT OF THE PROCESS AGENT AS ITS AGENT TO RECEIVE SERVICE OF PROCESS
(WITH RESPECT TO ALL OF THE LOAN DOCUMENTS AND ALL OTHER RELATED AGREEMENTS TO
WHICH IT IS A PARTY) IN NEW YORK, NEW YORK.
(b) Each of Newark, each Newark Subsidiary, VCP Exportadora and VCP
hereby irrevocably appoints CT Corporation System (the "Process Agent"), with an
office on the date hereof at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its agent and true and lawful attorney-in-fact in its name, place and
stead to accept on its behalf service of copies of the summons and complaint and
any other process that may be served in any such suit, action or
Credit Agreement 78
proceeding brought in the State of New York, and agrees that the failure of the
Process Agent to give any notice of any such service of process to it shall not
impair or affect the validity of such service or, to the extent permitted by
Applicable Law, the enforcement of any judgment based thereon. Such appointment
shall be irrevocable until the final payment of all amounts payable to the Bank
Facility Secured Parties under this Agreement and the other Loan Documents,
except that if for any reason the Process Agent appointed hereby ceases to be
able to act as such, then Newark, either Newark Subsidiary, VCP Exportadora or
VCP (as applicable) shall, by an instrument reasonably satisfactory to the
Administrative Agent, appoint another Person in the Borough of Manhattan as such
Process Agent subject to the approval (which approval shall not be unreasonably
withheld) of the Administrative Agent. Each of Newark, each Newark Subsidiary,
VCP Exportadora and VCP covenants and agrees that it shall take any and all
reasonable action, including the execution and filing of any and all documents,
that may be necessary to continue the designation of the Process Agent pursuant
to this paragraph in full force and effect and to cause the Process Agent to act
as such. The foregoing provisions constitute, among other things, a special
arrangement for service among the parties to this Agreement for the purposes of
28 U.S.C. s.1608.
(c) Nothing herein shall in any way be deemed to limit the ability of
any Person to serve any process or summons in any manner permitted by Applicable
Law or to obtain jurisdiction over any other Person in such other jurisdictions,
and in such manner, as may be permitted by Applicable Law.
(d) Each party hereto hereby irrevocably waives any objection that it
may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents brought in or removed to New York City (and courts of appeals
therefrom) and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. A final judgment (in respect of which time for all appeals
has elapsed) in any such suit, action or proceeding shall be conclusive and may
be enforced by suit upon judgment in any court in any jurisdiction to which the
applicable Person is or may be subject.
(e) Each of Newark, each Newark Subsidiary, VCP Exportadora and VCP
irrevocably waives, to the fullest extent permitted by Applicable Law, any claim
that any action or proceeding commenced against it relating in any way to this
Agreement and/or any of the other Loan Document(s) should be dismissed or stayed
by reason, or pending the resolution, of any action or proceeding commenced by
Newark, either Newark Subsidiary, VCP Exportadora and/or VCP relating in any way
to this Agreement and/or the other Loan Documents, whether or not commenced
earlier. To the fullest extent permitted by Applicable Law, each of Newark, VCP
Exportadora and VCP shall take all measures necessary for any such action or
proceeding commenced against it to proceed to judgment before the entry of
judgment in any such action or proceeding commenced by Newark, either Newark
Subsidiary, VCP Exportadora and/or VCP.
Section 13.13 Waiver of Jury Trial. EACH OF THE PARTIES HERETO
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY, IN ANY ACTION, LITIGATION OR
OTHER PROCEEDING
Credit Agreement 79
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY OTHER
PERSON, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH
OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED IN A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THE LOAN DOCUMENTS OR ANY PROVISION THEREOF. THE AGREEMENT OF EACH PARTY HERETO
TO THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH OF THE OTHER PARTIES HERETO
TO ENTER INTO THIS AGREEMENT.
Section 13.14 Waiver of Immunity. To the extent that either Newark,
either Newark Subsidiary, VCP Exportadora or VCP may be or become entitled to
claim for itself or its Property any immunity on the ground of sovereignty or
the like from suit, court jurisdiction, attachment before judgment, attachment
in aid of execution of a judgment or execution of a judgment, and to the extent
that in any such jurisdiction there may be attributed such an immunity (whether
or not claimed), it hereby irrevocably agrees not to claim and hereby
irrevocably waives such immunity with respect to its obligations under this
Agreement and the other Loan Documents.
Section 13.15 Judgment Currency. This is an international loan
transaction in which the specification of Dollars and payment in New York City
is of the essence, and the obligations of Newark, the Newark Subsidiaries, VCP
Exportadora and VCP under this Agreement and the other Loan Documents to each
Bank Facility Secured Party to make payment in Dollars shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any other currency or in another place except to the extent that
on the Business Day following receipt of any sum adjudged to be so due in the
judgment currency the payee may in accordance with normal banking procedures
purchase Dollars in the amount originally due to the payee with the judgment
currency. If for the purpose of obtaining judgment in any court it is necessary
to convert a sum due hereunder in Dollars into another currency (in this Section
called the "judgment currency"), then the rate of exchange that shall be applied
shall be that at which in accordance with normal banking procedures the payee
could purchase such Dollars at New York, New York with the judgment currency on
the Business Day preceding the day on which such judgment is rendered. The
obligations of Newark, the Newark Subsidiaries, VCP Exportadora and VCP in
respect of any such sum due from it to the payee hereunder (in this Section
called an "Entitled Person") shall, notwithstanding the rate of exchange
actually applied in rendering such judgment, be discharged only to the extent
that on the Business Day following receipt by such Entitled Person of any sum
adjudged to be due hereunder in the judgment currency such Entitled Person may
in accordance with normal banking procedures purchase and transfer Dollars to
New York City with the amount of the judgment currency so adjudged to be due;
and each of Newark, each Newark Subsidiary, VCP Exportadora and VCP hereby, as a
separate obligation and notwithstanding any such judgment, agrees to indemnify
such Entitled Person against, and to pay such Entitled Person on demand, in
Dollars, the amount (if any) by which the sum originally due to such Entitled
Person in Dollars hereunder exceeds the amount of the Dollars so purchased and
transferred.
Credit Agreement 80
Section 13.16 Use of English Language. This Agreement has been
negotiated and executed in the English language. Except as provided in Section
6.1(d): (a) all certificates, reports, notices and other documents and
communications given or delivered pursuant to this Agreement and the other Loan
Documents (including any modifications or supplements hereto or thereto) shall
be in the English language, or accompanied by a certified English translation
thereof, and (b) in the case of any document originally issued in a language
other than English, the English language version of any such document shall for
purposes of this Agreement (absent manifest error) control the meaning of the
matters set forth therein.
Section 13.17 Entire Agreement. This Agreement and the other Loan
Documents constitute the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersede all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
Section 13.18 Severability. The illegality or unenforceability in any
jurisdiction of any provision hereof or of any document required hereunder shall
not in any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or such other document in such jurisdiction or such
provision in any other jurisdiction.
Section 13.19 No Fiduciary Relationship or Partnership. Each of
Newark, each Newark Subsidiary, VCP Exportadora and VCP acknowledges that
neither any Agent nor any other Bank Facility Secured Party has any fiduciary
relationship with, or fiduciary duty to, any Obligor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agent and the other Bank Facility
Secured Parties, on the one hand, and the Obligors, on the other, in connection
herewith or therewith is solely that of debtor and creditor. This Agreement does
not create a joint venture among the parties.
The parties hereto intend that the relationship among them shall be
solely that of creditor and debtor. Nothing contained in this Agreement or any
other Loan Document shall be deemed or construed to create a partnership,
tenancy-in-common, joint tenancy, joint venture or co-ownership by or between
any Lender, on the one hand, and any other Lender, any Obligor or any other
Person, on the other hand. No Bank Facility Secured Party shall in any way be
responsible or liable for the debts, losses, obligations or duties of any of the
Obligors or any other Person other than itself.
Section 13.20 Confidentiality. Each Lender and Agent agrees to hold
all Confidential Information obtained pursuant to the Loan Documents in
accordance with its customary procedure for handling such information of this
nature and in accordance with safe and sound banking practices; provided that
nothing herein shall prevent any Lender from disclosing such information: (a) to
any other Lender or Agent, (b) upon the order of any court or administrative
agency or otherwise to the extent required by Applicable Law, (c) to bank
examiners or upon the request or demand of any other regulatory agency or
authority, (d) that had been publicly disclosed other than as a result of a
disclosure by any Agent or Lender prohibited by this Agreement, (e) in
connection with any litigation to which any one or more of the Lenders or Agents
(in each case, including to any of their respective employees, counsel,
representatives or other agents) is a party, or in connection with the exercise
of any remedy hereunder or under the
Credit Agreement 81
other Loan Documents, (f) to such Lender's or Agent's legal counsel and
independent auditors and accountants, (g) that was in such Lender's or Agent's
possession free of any obligation of confidence at the time of its receipt of
such information, (h) that is developed by such Lender or Agent independently of
and without reference to any confidential information, (i) that is identified by
any Obligor as no longer to be considered "Confidential Information" and (j)
subject to provisions substantially similar to those contained in this Section,
to any actual or proposed participant or assignee; provided that, in the case of
a disclosure of the type referred to in clauses (b), (c) and (e), such Lender or
Agent shall promptly notify Newark, either Newark Subsidiary, VCP Exportadora or
VCP (as applicable) of such intended disclosure so that Newark, such Newark
Subsidiary, VCP Exportadora and/or VCP may take appropriate action to protect
their respective interests.
The terms contained in the Loan Documents are confidential and, except
for disclosure to the various parties thereto, their respective shareholders and
such Persons' board of directors (or similar body), officers, employees or
professional advisors retained in connection with the transaction contemplated
hereby, or as may be required by Applicable Law, may not be disclosed in whole
or in part by any Obligor to any other Person without the prior written consent
of ABN AMRO.
Section 13.21 Payments Set Aside. If any Obligor (or any Person on its
behalf) makes a payment to any Bank Facility Secured Party, or any Bank Facility
Secured Party exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof subsequently are invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Bank Facility Secured Party in its discretion)
to be repaid to such Obligor (or such Person), a trustee, sindico, receiver or
any other Person in connection with any insolvency proceeding or otherwise,
then: (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such set-off had not
occurred, and (b) each Lender severally agrees to pay to the Agent from whom it
(or any related Bank Facility Secured Party) received any such amounts upon
demand its pro rata share of any amount so recovered from or repaid by such
Agent.
Credit Agreement 82
Section 13.22 No Petition Covenant. Notwithstanding any prior
termination of this Agreement, none of the Bank Facility Secured Parties,
Newark, either Newark Subsidiary, VCP Exportadora or VCP shall, before the date
that is one year and one day after all of Newark's and the Newark Subsidiaries'
obligations under the Loan Documents (other than the Export Agreements), the
Other Facility, the Additional Facility and the Other Bank Facility shall have
been paid in full (other than any indemnities that are payable thereunder but
have not yet been incurred and/or requested by the applicable indemnified
Person), acquiesce, petition or otherwise invoke or cause Newark and/or either
Newark Subsidiary to invoke the process of any court or other Governmental
Authority for the purpose of commencing or sustaining a case against Newark
and/or either Newark Subsidiary under any bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of Newark, any Newark Subsidiary or any part of their
respective Property, or ordering the winding up or liquidation of the affairs of
Newark and/or any Newark Subsidiary; provided that the Bank Facility Secured
Parties may do so if any other Person has done so.
Section 13.23 Non-novation. For the purposes of Article 360 of the
Brazilian Civil Code, this Agreement and the amendment and restatement provided
for herein shall not be construed as or deemed a novation (novacao) of any
obligations of the parties hereto. Each of the parties hereto hereby consents to
all amendments and provisions hereof for legal purposes.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Credit Agreement 83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
NEWARK FINANCIAL INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
VCP EXPORTADORA E PARTICIPACOES LTDA.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
VOTORANTIM CELULOSE E PAPEL S.A.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
Witnesses: 1._______________________________
2._______________________________
(the above witnesses having witnessed the signature hereon by each of the
signatories on this page above).
Credit Agreement 84
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
VCP NORTH AMERICA INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Chief Financial Officer
--------------------------------------
Witnesses: 1._______________________________
2._______________________________
(the above witnesses having witnessed the signature hereon by each of the
signatories on this page above).
Credit Agreement 85
LENDERS
ABN AMRO BANK N.V.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
---------------------------------------
Title: Vice President Global Trade &
Advisory
---------------------------------------
STATE OF ______________ )
)
COUNTY OF )
On this ____of ________, 2004, before me, the undersigned, a Notary
Public in and for the State of ___________, duly commissioned and sworn,
personally appeared _________ and _________, to me known, each of whom, being by
me duly sworn, did depose and say that he/she is the ____________ and
___________, respectively, of ABN AMRO BANK N.V., the financial institution
described in and that executed the foregoing instrument, and that he/she signed
his/her name thereto under authority of the board of directors, or its
equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-----------------------------
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: ______
Credit Agreement 86
BRASILIAN AMERICAN MERCHANT BANK
By: /s/ Xxxxxxx Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx Xxxxxx
---------------------------------------
Title: Managing Director
---------------------------------------
STATE OF ____________ )
)
COUNTY OF )
On this ____of _________, 2004, before me, the undersigned, a Notary
Public in and for the State of ___________, duly commissioned and sworn,
personally appeared _________, to me known, whom, being by me duly sworn, did
depose and say that he/she is the ____________ of BRASILIAN AMERICAN MERCHANT
BANK, the financial institution described in and that executed the foregoing
instrument, and that he/she signed his/her name thereto under authority of the
board of directors, or its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
----------------------------
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: _____
Credit Agreement 00
XXXXX XXXXXXXX XXXXX XX,
XXXXXX BRANCH
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
---------------------------------------
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Vice President
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 14th of January, 2004, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Xxxxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxx, to me known, each of whom,
being by me duly sworn, did depose and say that he/she is the S.V.P. and V.P.,
respectively, of BANCO ESPIRITO SANTO SA, NASSAU BRANCH, the financial
institution described in and that executed the foregoing instrument, and that
he/she signed his/her name thereto under authority of the board of directors, or
its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
Xxxxx Xxxxxx Castainea
------------------------------
NOTARY PUBLIC in and for
The State of New York.
My Commission expires: 11-1-2005
Credit Agreement 88
BIE - BANK & TRUST, LIMITED
By: /s/ Xxxx Xxxxxxxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxx Xxxxx
---------------------------------------
Title: Director
---------------------------------------
By: /s/ Xxxx Correla xx Xxxxxx
---------------------------------------
Name: Xxxx Correla xx Xxxxxx
---------------------------------------
Title: Attorney
---------------------------------------
In the terms of article 446-B (1) (e) of the Portuguese Companies Code, I
X.X. Xxxxxx, certify that the above signatures are those of X.X. Xxxxx and
X.X. Xxxxxx, who have signed this document in their capacity as Director
and Attorney of BIE - Bank & Trust, Ltd.
Lisbon, January 27, 2004
____________________
Company Secretary
Credit Agreement 89
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
---------------------------------------
Title: Vice President
---------------------------------------
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 15th of January, 2004, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Xxxxx Xxxx, to me known, whom, being by me duly sworn, did depose and
say that he/she is the Vice President of THE BANK OF TOKYO-MITSUBISHI, LTD., the
financial institution described in and that executed the foregoing instrument,
and that he/she signed his/her name thereto under authority of the board of
directors, or its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxx Xxxxxx Xxxxxx
-----------------------------
NOTARY PUBLIC in and for
The State of New York.
My Commission expires: 6-13-2006
Credit Agreement 90
BNP PARIBAS NEW YORK
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
---------------------------------------
Title: Vice President
---------------------------------------
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
---------------------------------------
Title: Director
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 8th of January, 2004, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Xxxxxxxx Xxxxxxxx and Xxxxxx Xxxxxx, to me known, each of whom, being
by me duly sworn, did depose and say that he/she is the Vice President and
Director, respectively, of BNP PARIBAS NEW YORK, the financial institution
described in and that executed the foregoing instrument, and that he/she signed
his/her name thereto under authority of the board of directors, or its
equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxx X. Xxxxxxxxx
-----------------------------
NOTARY PUBLIC in and for
The State of New York.
My Commission expires: 9-3-2006
Credit Agreement 91
COMERICA BANK
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
--------------------------------------
Title: Assistant Vice President
--------------------------------------
STATE OF MICHIGAN )
)
COUNTY OF XXXXX )
On this 20th of January, 2004, before me, the undersigned, a Notary
Public in and for the State of Michigan, duly commissioned and sworn, personally
appeared Xxxxx Xxxxxxxx, to me known, whom, being by me duly sworn, did depose
and say that he/she is the Assistant Vice President of COMERICA BANK, the
financial institution described in and that executed the foregoing instrument,
and that he/she signed his/her name thereto under authority of the board of
directors, or its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxx X. Buckening
-----------------------------
NOTARY PUBLIC in and for
The State of Michigan.
My Commission expires: August 25, 2008
Credit Agreement 92
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxxx Gaymard
---------------------------------------
Name: Xxxxxxxx Gaymard
---------------------------------------
Title: Head of Export France-Latin America
Export Finance Department
---------------------------------------
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
---------------------------------------
Title: Assistant Director-Latin America
Export Finance Department
---------------------------------------
I ________ Pecheteau Notary Public, practising in the City of Paris do hereby
certify and declare that Mrs Gaymand and Xx Xxxxx whose signatures are affixed
to this Power of Attorney are together duly authorised and empowered to sign
this Power of Attorney for CREDIT AGRICOLE INDOSUEZ and further I do hereby
certify and declare the same to be their true signatures and that such persons
signing together this Power of Attorney may lawfully bind CREDIT AGRICOLE
INDOSUEZ and that this power of Attorney is duly and validly issued by said
CREDIT AGRICOLE INDOSUEZ.
Notary Public
Dated 12 December, 2003
Credit Agreement 93
ING BANK N.V., CURACAO BRANCH
By: /s/ Xxxx Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx Xxxxxx
--------------------------------------
Title: Attorney-In-Fact
--------------------------------------
By: /s/ Giovani X. X. Xxxxx
--------------------------------------
Name: Giovani X. X. Xxxxx
--------------------------------------
Title: Attorney-In-Fact
--------------------------------------
Credit Agreement 94
BANCO LLOYDS TSB S/A - CAYMAN
ISLAND BRANCH
By: /s/ Deomir Quarella
--------------------------------------
Name: Deomir Quarella
--------------------------------------
Title: Senior Manager
--------------------------------------
By: /s/ Xxxxx Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx Xxxxxxx
--------------------------------------
Title: Operational Manager
--------------------------------------
STATE OF SAO PAULO )
)
COUNTY OF SAO PAULO )
On this 22nd of December, 2003, before me, the undersigned, a Notary
Public in and for the State of Sao Paulo, duly commissioned and sworn,
personally appeared Deomir Quarella and Xxxxx Xxxxxxx Xxxxxxx, to me known, each
of whom, being by me duly sworn, did depose and say that he/she is the Senior
Manager and Operational Manager, respectively, of BANCO LLOYDS TSB S/A - CAYMAN
ISLAND BRANCH, the financial institution described in and that executed the
foregoing instrument, and that he/she signed his/her name thereto under
authority of the board of directors, or its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-----------------------------
NOTARY PUBLIC in and for
The State of Sao Paulo.
My Commission expires: ______
Credit Agreement 95
13o Tabeliao de Notas da Capital - SP
Este documento, para produzir efeito no Brasil e para vaier contra terceiros,
xxxxxx ser xxxxxxx xx vernaculo e registrada a traducao em Cartorio de Registro
de Tit_los a Documentos (Item 67-1 - Sacao VT - Cap. X.V das Normas de Servicos
da C.G.I ______ Prov. 5/8).
13.o TABELIAO DE NOTAS DE SAO PAULO - SP - Bet. XXXXXXX XXXX XXXXXXX
XXX XXXXXXXX XXXXXX 000 - XXXXXXXX XXXXXXXX - XXX 00000-000 - TEL/FAX:
(00) 0000-0000
--------------------------------------------------------------------------------
Reconbeco por Semelbanca a(s) firma(s) de DEOMIR QUARELLA (66114) XXXXX XXXXXXX
XXXXXXX (66123) Dou fe.
Sao Paulo, 23 de Dezembro de 2003 No) 0553/231203-6
Em testem___ _______da verdade
XXXXXXXX X. XX XXXXX - Escrevante Autorizado
Valido somente com o Selo de Autenticidate - 4 14
XXXXXXXX XXXXXXXX XX XXXXX
ESCREVANTE AUTORIZADO
Princesa Xxxxxx, 353 - Sao Paulo - SP
BANCO SAFRA S.A. - CAYMAN ISLANDS
BRANCH
By: /s/ Xxx Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxx Xxxxx X. Xxxxxx
--------------------------------------
Title: Attorney-In-Fact
--------------------------------------
By: /s/ Dionystos X. Xxxxxxxx
--------------------------------------
Name: Dionystos X. Xxxxxxxx
--------------------------------------
Title: Attorney-In-Fact
--------------------------------------
STATE OF __________ )
)
COUNTY OF )
On this ____of ____________, 2004, before me, the undersigned, a Notary
Public in and for the State of ___________, duly commissioned and sworn,
personally appeared _________ and _________, to me known, each of whom, being by
me duly sworn, did depose and say that he/she is the ____________ and
___________, respectively, of STANDARD CHARTERED BANK, NEW YORK, the financial
institution described in and that executed the foregoing instrument, and that
he/she signed his/her name thereto under authority of the board of directors, or
its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-----------------------------
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: ______
Credit Agreement 96
STANDARD CHARTERED BANK,
NEW YORK
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxx
--------------------------------------
Title: Senior Vice President
--------------------------------------
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 14th of January, 2004, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared Xxxxxxxxx Xxxxxx and Xxxxxx Xxxxxxxx, to me known, each of whom, being
by me duly sworn, did depose and say that he/she is the Senior Vice President
and Vice President, respectively, of BANCO SAFRA S.A. - CAYMAN ISLANDS BRANCH,
the financial institution described in and that executed the foregoing
instrument, and that he/she signed his/her name thereto under authority of the
board of directors, or its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------
NOTARY PUBLIC in and for
The State of New York.
My Commission expires: 3-17-2007
Credit Agreement 97
UNIBANCO - UNIAO DE BANCOS
BRASILEIROS S.A., GRAND CAYMAN
BRANCH
By: /s/ Xxxxxx Xxxxxxxx A. Catrola
Xxxx Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx A. Catrola
Xxxx Xxxxxxxx Xxxxxxx
--------------------------------------
Title: Director
Director
--------------------------------------
STATE OF __________ )
)
COUNTY OF )
On this ____of ____________, 2004, before me, the undersigned, a Notary
Public in and for the State of ___________, duly commissioned and sworn,
personally appeared _________ and _________, to me known, each of whom, being by
me duly sworn, did depose and say that he/she is the ____________ and
___________, respectively, of UNIBANCO - Uniao de Bancos Brasileiros S.A., Grand
Cayman Branch, the financial institution described in and that executed the
foregoing instrument, and that he/she signed his/her name thereto under
authority of the board of directors, or its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-----------------------------
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: ______
Credit Agreement 98
AGENTS
ABN AMRO BANK, N.V.
as the Administrative Agent
By: Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Senior Vice President
--------------------------------------
By: Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------------
Title: Vice President - Global Trade &
Advisory
--------------------------------------
STATE OF __________ )
)
COUNTY OF )
On this ____of _____________, 2004, before me, the undersigned, a
Notary Public in and for the State of _____________, duly commissioned and
sworn, personally appeared _________ and _________, to me known, each of whom,
being by me duly sworn, did depose and say that he/she is the ____________ and
___________, respectively, of ABN AMRO BANK N.V., the financial institution
described in and that executed the foregoing instrument, and that he/she signed
his/her name thereto under authority of the board of directors, or its
equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-----------------------------
NOTARY PUBLIC in and for
The State of ___________.
My Commission expires: ______
Credit Agreement 00
XXX XXXX XX XXX XXXX
as the Collateral Agent
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Assistant Vice President
--------------------------------------
STATE OF __________ )
)
COUNTY OF )
On this ____of ____________, 2004, before me, the undersigned, a Notary
Public in and for the State of _____________, duly commissioned and sworn,
personally appeared _________, to me known, who, being by me duly sworn, did
depose and say that he/she is the ____________ of THE BANK OF NEW YORK, the
financial institution described in and that executed the foregoing instrument,
and that he/she signed his/her name thereto under authority of the board of
directors, or its equivalent, of said corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
/s/ Xxxxxxx Xxxx
-----------------------------
NOTARY PUBLIC in and for
The State of New York.
My Commission expires: 9-20-2005
Credit Agreement 100
ANNEX I
to Credit Agreement
LENDERS AND COMMITMENTS
LENDERS COMMITMENT
ABN AMRO Bank N.V. $98,500,000
Brasilian American Merchant Bank 20,000,000
Banco Espirito Santo SA, Nassau Branch 5,000,000
BIE - Bank & Trust, Limited 6,500,000
The Bank of Tokyo-Mitsubishi, Ltd. 30,000,000
BNP Paribas New York 45,000,000
Comerica Bank 20,000,000
Credit Agricole Indosuez 30,000,000
ING Bank N.V., Curacao Branch 25,000,000
Banco Lloyds TSB S/A - Cayman Island Branch 50,000,000
Banco Safra S.A. - Cayman Islands Branch 5,000,000
Standard Chartered Bank, New York 10,000,000
Unibanco - Uniao de Bancos Brasileiros S.A., Grand 35,000,000
Cayman Branch ------------
Total $380,000,000
Credit Agreement Annex I-1
SCHEDULE I
to Credit Agreement
INITIAL ELIGIBLE BUYERS
NAME COUNTRY
M-Real Sittingbourne Ltd.(Former UK Paper) United Kingdom
Papierfabrik Scheufelen GmbH Germany
Xxxxxxxx Xxxxxxx France
Xxxxxxxx Dalle France
Fedrigoni Cartiere S.p.A. Italy
Xxxxxxx Kehl Gmbh Germany
Xxxxxxxx Xxxxx Corp. USA
Marubeni Corporation Japan
Itochu Corporation Japan
Amicell Inc USA
Cellmark AB Sweden
Xxxxxxxxxxx Xxxxxx-Maine USA
TST Impresso INC USA
Xxxx Xxxxxxx Paper & Board Inc. USA
Diamond Paper Corporation USA
X. XxXxxxxxxx Paper Group Ltd England
Antalis S.N.C. France
Allcart S.R.L. Italy
IMPECO, S.L. Spain
Trent Paper England
Roxcel Handelsges M.B.H. Austria
Norse Paper A.S. Norway
Premier Paper Group LTD England
MoDoVan Gelder Netherlands
Exhibit A-1
PROMISSORY NOTE
U.S.$ 98,500,000 Dated: May 23, 2002
--------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of ABN AMRO BANK N.V. (the
"Lender"), or its registered assign under an Assignment Agreement (as defined in
the Credit Agreement referred to below), for the account of its Applicable
Lending Office (as defined in the Credit Agreement) the principal sum of Ninety
Eight Million Five Hundred Thousand Dollars in immediately available funds, on
the dates and in the principal amounts provided in the Credit Agreement,
together with interest thereon at the rate(s), and payable at the times,
specified in the Credit Agreement, and to pay interest on any overdue amount as
provided in the Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Znc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES
LTDA., as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1._________________________________
2._________________________________
PROMISSORY NOTE
U.S.$ 20,000,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of BRASILIAN AMERICAN
MERCHANT BANK (the "Lender"), or its registered assign under an Assignment
Agreement (as defined in the Credit Agreement referred to below), for the
account of its Applicable Lending Office (as defined in the Credit Agreement)
the principal sum of Twenty Million Dollars in immediately available funds, on
the dates and in the principal amounts provided in the Credit Agreement,
together with interest thereon at the rate(s), and payable at the times,
specified in the Credit Agreement, and to pay interest on any overdue amount as
provided in the Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.____________________________
2.____________________________
PROMISSORY NOTE
U.S.$ 5,000,000 Dated: May 23, 2002
---------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of BANCO ESPIRITO SANTO SA,
NASSAU BRANCH (the "Lender"), or its registered assign under an Assignment
Agreement (as defined in the Credit Agreement referred to below), for the
account of its Applicable Lending Office (as defined in the Credit Agreement)
the principal sum of Five Million Dollars in immediately available funds, on the
dates and in the principal amounts provided in the Credit Agreement, together
with interest thereon at the rate(s), and payable at the times, specified in the
Credit Agreement, and to pay interest on any overdue amount as provided in the
Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 6,500,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of BIE - BANK & TRUST,
LIMITED (the "Lender"), or its registered assign under an Assignment Agreement
(as defined in the Credit Agreement referred to below), for the account of its
Applicable Lending Office (as defined in the Credit Agreement) the principal sum
of Six Million Five Hundred Thousand Dollars in immediately available funds, on
the dates and in the principal amounts provided in the Credit Agreement,
together with interest thereon at the rate(s), and payable at the times,
specified in the Credit Agreement, and to pay interest on any overdue amount as
provided in the Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 30,000,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of THE BANK OF
TOKYO-MITSUBISHI, LTD. (the "Lender"), or its registered assign under an
Assignment Agreement (as defined in the Credit Agreement referred to below), for
the account of its Applicable Lending Office (as defined in the Credit
Agreement) the principal sum of Thirty Million Dollars in immediately available
funds, on the dates and in the principal amounts provided in the Credit
Agreement, together with interest thereon at the rate(s), and payable at the
times, specified in the Credit Agreement, and to pay interest on any overdue
amount as provided in the Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.__________________________
2.__________________________
PROMISSORY NOTE
U.S.$ 45,000,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of BNP PARIBAS NEW YORK (the
"Lender"), or its registered assign under an Assignment Agreement (as defined in
the Credit Agreement referred to below), for the account of its Applicable
Lending Office (as defined in the Credit Agreement) the principal sum of Forty
Five Million Dollars in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, together with interest
thereon at the rate(s), and payable at the times, specified in the Credit
Agreement, and to pay interest on any overdue amount as provided in the Credit
Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 20,000,000 Dated: May 23, 2002
---------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of COMERICA BANK (the
"Lender"), or its registered assign under an Assignment Agreement (as defined in
the Credit Agreement referred to below), for the account of its Applicable
Lending Office (as defined in the Credit Agreement) the principal sum of Twenty
Million Dollars in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, together with interest
thereon at the rate(s), and payable at the times, specified in the Credit
Agreement, and to pay interest on any overdue amount as provided in the Credit
Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 30,000,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation organized and
validly existing under the laws of the Netherlands Antilles ("Borrower"), hereby
unconditionally promises to pay to the order of CREDIT AGRICOLE INDOSUEZ (the
"Lender"), or its registered assign under an Assignment Agreement (as defined in
the Credit Agreement referred to below), for the account of its Applicable
Lending Office (as defined in the Credit Agreement) the principal sum of Thirty
Million Dollars in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, together with interest
thereon at the rate(s), and payable at the times, specified in the Credit
Agreement, and to pay interest on any overdue amount as provided in the Credit
Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 25,000,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of ING BANK N.V.,
CURACAO BRANCH (the "Lender"), or its registered assign under an Assignment
Agreement (as defined in the Credit Agreement referred to below), for the
account of its Applicable Lending Office (as defined in the Credit Agreement)
the principal sum of Twenty Five Million Dollars in immediately available funds,
on the dates and in the principal amounts provided in the Credit Agreement,
together with interest thereon at the rate(s), and payable at the times,
specified in the Credit Agreement, and to pay interest on any overdue amount as
provided in the Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 50,000,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of BANCO LLOYDS TSB S/A -
CAYMAN ISLAND BRANCH (the "Lender"), or its registered assign under an
Assignment Agreement (as defined in the Credit Agreement referred to below), for
the account of its Applicable Lending Office (as defined in the Credit
Agreement) the principal sum of Fifty Million Dollars in immediately available
funds, on the dates and in the principal amounts provided in the Credit
Agreement, together with interest thereon at the rate(s), and payable at the
times, specified in the Credit Agreement, and to pay interest on any overdue
amount as provided in the Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 5,000,000 Dated: May 23, 2002
---------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of BANCO SAFRA S.A. - CAYMAN
ISLAND BRANCH (the "Lender"), or its registered assign under an Assignment
Agreement (as defined in the Credit Agreement referred to below), for the
account of its Applicable Lending Office (as defined in the Credit Agreement)
the principal sum of Five Million Dollars in immediately available funds, on the
dates and in the principal amounts provided in the Credit Agreement, together
with interest thereon at the rate(s), and payable at the times, specified in the
Credit Agreement, and to pay interest on any overdue amount as provided in the
Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 10,000,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of STANDARD CHARTERED BANK,
NEW YORK (the "Lender"), or its registered assign under an Assignment Agreement
(as defined in the Credit Agreement referred to below), for the account of its
Applicable Lending Office (as defined in the Credit Agreement) the principal sum
of Ten Million Dollars in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, together with interest
thereon at the rate(s), and payable at the times, specified in the Credit
Agreement, and to pay interest on any overdue amount as provided in the Credit
Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
PROMISSORY NOTE
U.S.$ 35,000,000 Dated: May 23, 2002
----------------
New York, New York
FOR VALUE RECEIVED, VCP TRADING N.V., a corporation duly organized and
validly existing under the laws of the Netherlands Antilles (the "Borrower"),
hereby unconditionally promises to pay to the order of UNIBANCO - UNIAO DE
BANCOS BRASILEIROS S.A., GRAND CAYMAN BRANCH (the "Lender"), or its registered
assign under an Assignment Agreement (as defined in the Credit Agreement
referred to below), for the account of its Applicable Lending Office (as defined
in the Credit Agreement) the principal sum of Thirty Five Million Dollars in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, together with interest thereon at the rate(s), and
payable at the times, specified in the Credit Agreement, and to pay interest on
any overdue amount as provided in the Credit Agreement.
Both principal and interest are payable to ABN AMRO Bank N.V., as the
Administrative Agent, in same day funds to the Administrative Agent's account
maintained with ABN AMRO Bank N.V. at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, ABA #000-000-000, Account No. 650001178941, for credit to
ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention: Xxxxxx Xxxxxx, or at such
other account as the Administrative Agent may from time to time designate by
notice to the Borrower, in each case in Dollars, free and clear of and without
deduction for any and all present and future Taxes, all as set forth in the
Credit Agreement.
This Note shall be binding upon and inure to the benefit of the
Borrower and the Lender and their respective successors and assigns.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement dated as of May 23, 2002 and amended and
restated as of April 26, 2004 (as from time to time may be further amended, the
"Credit Agreement"), among the Borrower, VCP North America Inc., VCP Exportadora
e Participacoes Ltda., Votorantim Celulose e Papel S.A., Newark Financial, Inc.,
the Lenders party thereto, ABN AMRO Bank N.V. as the Administrative Agent, and
The Bank of New York, as the Collateral Agent. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and restricts the transferability of this
Note.
The Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT THE
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
The Borrower hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York State court (in each case sitting in the Borough of Manhattan) (and all
courts of appeal therefrom) for the purposes of all legal proceedings arising
out of or relating hereto. The Borrower hereby irrevocably waives any objection
that it may now or hereafter have to the laying of the venue of any such
proceeding brought in or removed to such a court and hereby further irrevocably
waives any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, the Borrower agrees to pay such additional sums
for expenses and attorney fees as the court may adjudge reasonable.
VCP TRADING N.V.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ACKNOWLEDGED BY: NEWARK FINANCIAL INC., as guarantor of the
Borrower's obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP NORTH AMERICA INC., as guarantor of
Newark Financial Inc.'s obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
VCP EXPORTADORA E PARTICIPACOES LTDA.,
as guarantor of Newark Financial Inc.'s
obligations hereunder
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
By: __________________________________________
Name:
Title:
Witnesses: 1.________________________________
2.________________________________
NEWARK NOTE
U.S.$ 380,000,000.00 Dated: May 23, 2002
-----------------
New York, New York
FOR VALUE RECEIVED, Newark Financial Inc., a corporation duly organized
and validly existing under the laws of the British Virgin Islands ("Newark"),
hereby unconditionally promises to pay to the order of VCP Trading N.V. (the
"Newark Subsidiary") the principal sum of Three Hundred Eighty Million Dollars
($380,000,000.00) in immediately available funds, on demand.
The Newark Subsidiary has assigned all its rights hereunder to the
Secured Parties (as defined in the Credit Agreement) as Collateral for its
obligations under the Credit Agreement. Accordingly, principal is payable to ABN
AMRO Bank N.V., as the Administrative Agent, in same day funds to the
Administrative Agent's account maintained with ABN AMRO Bank N.V. at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, ABA #000-000-000, Account No.
650001178941, for credit to ABN AMRO Bank N.V. - CCS, Reference: VCP, Attention:
Xxxxxx Xxxxxx, or at such other account as the Administrative Agent may from
time to time designate by notice to Newark, in each case in Dollars, free and
clear of and without deduction for any and all present and future Taxes.
This Note shall be binding upon and inure to the benefit of Newark and
the Newark Subsidiaries and their respective successors and assigns.
This Note is the Newark Note referred to in the Credit Agreement dated
as of May 23, 2002 and amended and restated as of April 26, 2004 (as from time
to time may be further amended, the "Credit Agreement"), among Newark, VCP
Exportadora e Participacoes S.A., Votorantim Celulose e Papel S.A., the Newark
Subsidiary, VCP North America Inc., the Lenders party thereto, ABN AMRO Bank
N.V. as the Administrative Agent, and The Bank of New York, as the Collateral
Agent.
Newark hereby waives diligence, presentment, demand of payment, protest
or notice in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW); PROVIDED THAT
NEWARK SUBSIDIARY SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAW OF THE
UNITED STATES OF AMERICA.
Newark hereby submits to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State court (in each case sitting in the Borough of Manhattan) (and all courts
of appeal therefrom) for the purposes of all legal proceedings arising out of or
relating hereto. Newark hereby irrevocably waives any objection that it may now
or hereafter have to the laying of the venue of any such proceeding brought in
or removed to such a court and hereby further irrevocably waives any claim that
any such proceeding brought in any such court has been brought in an
inconvenient forum.
In the event of commencement of suit to enforce payment of this Note
and accrued interest, if any, Newark agrees to pay such additional sums for
expenses and attorney fees as the court may adjudge reasonable.
NEWARK FINANCIAL INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
EXHIBIT B
to Credit Agreement
FORM OF ASSIGNMENT AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (the "Agreement") dated as of
___________, ____ is made between ____________ (the "Assignor") and ____________
(the "Assignee").
RECITALS
The Assignor is a party to the Amended and Restated Credit Agreement,
dated as of May 23, 2002 and amended and restated as of April 26, 2004 (as
amended or otherwise modified from time to time, the "Credit Agreement"), among
Newark Financial Inc., VCP Exportadora e Particiapacoes Ltda., Votorantim
Celulose e Papel S.A. ("VCP"), VCP Trading N.V. (the "Borrower"), VCP North
America Inc., various financial institutions from time to time a party thereto
(including the Assignor, the "Lenders"), ABN AMRO Bank N.V., as the
Administrative Agent, and The Bank of New York, as the Collateral Agent.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement.
The Assignor wishes to assign to the Assignee [a portion][all] of the
rights and obligations of the Assignor under the Credit Agreement in respect of
the Loans, its Commitment and the other rights and obligations of the Assignor
in connection therewith, and the Assignee wishes to accept assignment of such
rights and to assume such obligations from the Assignor, in each case on the
terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Assignment and Acceptance. (a) Subject to the terms and
conditions of this Agreement: (i) the Assignor hereby sells, transfers and
assigns to the Assignee and (ii) the Assignee hereby purchases, assumes and
undertakes from the Assignor, without recourse and without representation or
warranty (except as provided in this Agreement), $_______ of the Assignor's
[Commitment/Loan], and all related rights, benefits, obligations, liabilities
and indemnities of the Assignor under and in connection with the Credit
Agreement (all of the foregoing being herein called the "Assigned Rights and
Obligations").
(b) With effect on and after the Effective Date (as defined in Section
5), the Assignee shall be a party to the Credit Agreement and succeed to all of
the rights and be obligated to perform all of the obligations of a Lender under
the Credit Agreement, including the requirements concerning confidentiality and
the payment of indemnification to the Agents. The Assignee agrees that it shall
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender. It is
the intent of the parties hereto that the Assignor shall relinquish its rights
and be released from its obligations under the Credit Agreement to the extent
that such obligations have been assumed by the Assignee; provided that the
Assignor shall not relinquish its rights under Article IV or
Credit Agreement Exhibit B-1
Section 13.3 of the Credit Agreement in respect of the Assigned Rights and
Obligations to the extent such rights relate to the time before the Effective
Date.
SECTION 2. Payments. (a) As consideration for the sale, transfer and
assignment contemplated in Section 1, the Assignee shall pay to the Assignor on
the Effective Date in immediately available funds an amount [equal to
$__________, representing the principal amount of all outstanding and funded
Loans and participations included within the Assigned Rights and
Obligations][set forth in a separate agreement between the Assignor and the
Assignee].
(b) Unless the Assignee is an Affiliate of the Assignor, the
[Assignor][Assignee] further agrees to pay to the Administrative Agent a
processing fee in the amount specified in Section 13.7(a) of the Credit
Agreement.
SECTION 3. Reallocation of Payments. Any interest, fees and other
payments accrued with respect to the Assigned Rights and Obligations: (a) to the
Effective Date, shall be for the account of the Assignor, and (b) on and after
the Effective Date, shall be for the account of the Assignee. Each of the
Assignor and the Assignee agrees that it shall hold in trust for the other party
any interest, fees and other amounts that it may receive to which the other
party is entitled pursuant to the preceding sentence and pay to the other party
any such amounts that it may receive promptly upon receipt.
SECTION 4. Independent Credit Decision. The Assignee: (a) acknowledges
that it has received a copy of the Credit Agreement, the Schedules and Exhibits
thereto and the other Loan Documents (other than the Agents' Fee Letters),
together with copies of the most recent financial statements of VCP, and such
other documents and information as it has deemed appropriate to make its own
credit and legal analysis and decision to enter into this Agreement, and (b)
agrees that it shall, independently and without reliance upon the Assignor, any
Agent or any other Bank Facility Secured Party and based upon such documents and
information as it shall deem appropriate at the time, continue to make its own
credit and legal decisions in taking or not taking action under the Loan
Documents.
SECTION 5. Effective Date; Notices. (a) As between the Assignor and the
Assignee, the effective date for this Agreement shall be __________, ____ (the
"Effective Date"); provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Agreement shall be executed and delivered by the
Assignor and the Assignee,
(ii) unless the Assignee is a Lender or an Affiliate of the
Assignor, the consent of the Administrative Agent shall have been duly
obtained and shall be in full force and effect as of the Effective
Date,
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Agreement (confirmation of which shall be
informed to the Administrative Agent by the Assignor),
Credit Agreement Exhibit B-2
(iv) unless the Assignee is an Affiliate of the Assignor, the
processing fee referred to in Section 2(b) shall have been paid to the
Administrative Agent, and
(v) if the Assignee is not already a Lender, the Assignee
shall have delivered an Administrative Questionnaire to the
Administrative Agent.
(b) Promptly after the execution of this Agreement, the Assignor shall
deliver to the Borrower and the Administrative Agent, for acknowledgment by the
Administrative Agent, a Notice of Assignment substantially in the form attached
hereto as Schedule 1.
[SECTION 6. Agent. The Assignee shall assume no duties or obligations
held by the Assignor in its capacity as an Agent under the Loan Documents.]
SECTION 7. Representations and Warranties. (a) The Assignor represents
and warrants that: (i) it is the legal and beneficial owner of the Assigned
Rights and Obligations, which are free and clear of any Lien or other adverse
claim, (ii) it is duly organized and existing and has the full power and
authority to take, and has taken, all action necessary to execute and deliver
this Agreement and any other documents required or permitted to be executed or
delivered by it in connection with this Agreement, and to fulfill its
obligations hereunder, (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Agreement, and apart
from any agreements or undertakings or filings required by the Credit Agreement,
no further action by, notice to, or filing with any Person is required of it for
such execution, delivery or performance, and (iv) this Agreement has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligation of the Assignor, enforceable against the Assignor in accordance with
the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general principles of equity.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the other Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, the other Loan Documents or any other document
furnished pursuant thereto. The Assignor makes no representation or warranty in
connection with, and assumes no responsibility with respect to, the solvency,
financial condition or statements of any Obligor or any other Person, or the
performance or observance by any Obligor or any other Person of any of its
obligations under the Credit Agreement, any other Loan Document or any other
document furnished in connection therewith.
(c) The Assignee represents and warrants that: (i) it is duly organized
and existing and has the full power and authority to take, and has taken, all
action necessary to execute and deliver this Agreement and any other documents
required or permitted to be executed or delivered by it in connection with this
Agreement, and to fulfill its obligations hereunder, (ii) no notices to, or
consents, authorizations or approvals of, any Person are required (other than
any already given or obtained) for its due execution, delivery and performance
of this Agreement, and apart from any agreements or undertakings or filings
required by the Credit Agreement, no further action by, notice to, or filing
with any Person is required of it for such execution, delivery
Credit Agreement Exhibit B-3
or performance, (iii) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of the Assignee,
enforceable against the Assignee in accordance with the terms hereof, subject,
as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors' rights and
to general principles of equity, (iv) it is not an Obligor or any Affiliate
thereof and (v) it is an Eligible Assignee. [NOTE: If Assignee is not an
Eligible Assignee, then the Borrower's consent to the assignment is required per
Section 13.7(a) of the Credit Agreement.]
SECTION 8. Further Assurances. The Assignor and the Assignee each
hereby agree to execute and deliver such other documents, and take such other
action, as either party or the Administrative Agent reasonably may request in
connection with the transactions contemplated by this Agreement, including the
delivery of any notices or other documents to the Borrower or the Administrative
Agent that may be required in connection with the assignment and assumption
contemplated hereby.
SECTION 9. Miscellaneous. (a) Any amendment or waiver of any provision
of this Agreement shall be in writing and signed by the Assignor, the Assignee
and the Administrative Agent. No failure or delay by either party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof and any waiver of any breach of the provisions of this Agreement shall
be without prejudice to any rights with respect to any other or further breach
thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee each shall pay its own costs and
expenses (including attorney costs) incurred in connection with the negotiation,
preparation, execution and performance of this Agreement and related documents.
(d) This Agreement may be executed in any number of counterparts and
all of such counterparts taken together shall be deemed to constitute one and
the same instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS PROVISIONS
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). The Assignor
and the Assignee each irrevocably submits to the non-exclusive jurisdiction of
any state or Federal court sitting in the Borough of Manhattan, New York City,
New York over any suit, action or proceeding arising out of or relating to this
Agreement or any Loan Document, and irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York state or Federal court (and courts of appeal therefrom). Each party to this
Agreement hereby irrevocably waives any objection, including any objection to
the laying of venue or based upon the grounds of forum non conveniens, that it
may now or hereafter have to the bringing of any action or proceeding in such
courts in respect of this Agreement.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
Credit Agreement Exhibit B-4
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENT (WHETHER ORAL OR WRITTEN). THE
AGREEMENT OF EACH PARTY HERETO TO THIS PROVISION IS A MATERIAL INDUCEMENT FOR
EACH OF THE OTHER PARTIES HERETO TO ENTER INTO THIS AGREEMENT.
Credit Agreement Exhibit B-5
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
[ASSIGNOR],
as the Assignor
By: __________________________________________
Name:
Title:
[ASSIGNEE],
as the Assignee
By: __________________________________________
Name: ______________________________________
Title: _____________________________________
Address: ___________________________________
___________________________________
___________________________________
Attn: ____________________________
Credit Agreement Exhibit B-6
SCHEDULE 1
to Assignment Agreement
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, ____
ABN AMRO Bank N.V.,
as the Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxx
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement, dated as of May
23, 2002 and amended and restated as of April 26, 2004 (as amended or otherwise
modified from time to time, the "Credit Agreement"), among Newark Financial
Inc., VCP Exportadora e Particiapacoes Ltda., Votorantim Celulose e Papel S.A.,
VCP Trading N.V., VCP North America Inc., various financial institutions from
time to time a party thereto (the "Lenders"), ABN AMRO Bank N.V., as the
Administrative Agent, and The Bank of New York, as the Collateral Agent.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement.
(a) We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") of [all][a portion] of the right, title and interest of the Assignor
in and to the Credit Agreement (including [all][a portion] of the right, title
and interest of the Assignor in and to the Assignor's [Commitment/Loan] pursuant
to the Assignment and Acceptance Agreement attached hereto (the "Assignment
Agreement")). After giving effect to such assignment (assuming no repayments
after ________, ____), the Assignee's [Commitment/Loan] will be $_________.
(b) The Assignee agrees that, upon receiving the consent of the
Administrative Agent to such assignment and the satisfaction of the other
conditions of effectiveness of the assignment to be effected by the Assignment
Agreement, the Assignee shall be bound by the terms of the Credit Agreement as
fully and to the same extent as if it were the Lender originally holding such
interest in the Credit Agreement.
[(c) An Administrative Questionnaire for the Assignee is attached
hereto.][NOTE: Not necessary if the Assignee is an existing Lender.]
(d) You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and the Assignee contained in the Assignment
Agreement.
Credit Agreement Exhibit B-7
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[ASSIGNOR]
By: __________________________________________
Name: ______________________________________
Title: _____________________________________
[ASSIGNEE]
By: __________________________________________
Name: ______________________________________
Title: _____________________________________
[ASSIGNMENT AND ACCEPTANCE
CONSENTED TO:
ABN AMRO BANK N.V.,
as the Administrative Agent
By:_________________________________
Name:____________________________
Title:___________________________
By:_________________________________
Name:____________________________
Title:___________________________]
cc: VCP Trading N.V.
Credit Agreement Exhibit B-8
EXHIBIT C
to Credit Agreement
FORM OF NOTICE OF BORROWING
Date: May __, 2002
To: ABN AMRO Bank N.V., as the Administrative Agent under the Credit
Agreement, dated as of May 23, 2002 (as amended or otherwise modified
from time to time, the "Credit Agreement"), among Newark Financial
Inc. ("Newark"), VCP Exportadora e Particiapacoes Ltda., Votorantim
Celulose e Papel S.A., VCP Trading N.V. (the "Borrower"), VCP North
America Inc., various financial institutions from time to time a party
thereto (including the Assignor, the "Lenders"), ABN AMRO Bank N.V.,
as the Administrative Agent, and The Bank of New York, as the
Collateral Agent.
Ladies and Gentlemen:
The undersigned refers to the Credit Agreement (terms defined therein
being used herein as therein defined) and, pursuant to Section 2.2 of the Credit
Agreement, hereby gives you irrevocable notice of the borrowing specified below:
(a) The aggregate amount of the proposed borrowing is
$____________.
(b) The proposed Borrowing Date is May __, 2002.
The Borrower hereby requests that the proceeds of the proposed
borrowing be applied to make a prepayment for Products to Newark, to be
evidenced by the Newark Note. To the extent not already delivered to you,
attached hereto is an original signed Note for each of the Lenders.
The Borrower certifies that the following statements are true on the
date hereof, and will be true on the Borrowing Date, both before and after
giving effect to the Loans and to the application of the proceeds therefrom: (a)
no Default exists or would result from the Loans, (b) its representations and
warranties contained in the Loan Documents (including Article VII of the Credit
Agreement) are true as though made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date) and (c) the Collateral Account [has
been funded][will, as set forth above, be funded from the proceeds of the Loans]
in an amount at least equal to the Debt Service Amount for the Bank Facility
payable on the first Payment Date.
VCP TRADING N.V.
By: __________________________________________
Name: _______________________________________
Title: ______________________________________
Credit Agreement Exhibit C-1
