Exhibit 4.18
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AGREEMENT
1. This Loan Agreement ("Agreement") is entered into by and among the parties
below, who are represented herein in accordance with their respective
By-laws/articles of association (collectively, the "Parties"):
1.1. UNIBANCO - UNIAO DE BANCOS BRASILEIROS S.A., acting through its Nassau
Branch, with head office at 000 Xxxx Xxx Xxxxxx - 3rd Floor, Nassau, Bahamas,
hereinafter called UNIBANCO;
1.2. Newark Finantial Inc., a corporation with its head office at Xxxxxxxxxx
Plaza, 2nd Floor, Wickhams Cay I, Road Town, Tortola, British Virgin Islands,
hereinafter called BORROWER.
1.3. As CO-OBLIGOR hereinafter so called:
1.3.1. Votorantim Celulose e Papel S.A., a company enrolled in the National
Taxpayers Registry under No. 60.643.228/0001-21, with head office at Alameda
Santos, 1357, 6 (degree) andar, in the city of Sao Paulo, State of Sao Paulo,
Brazil;
2. The above named and qualified Parties agree hereby to enter into this
Agreement which shall be governed by the following clauses and conditions:
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I
UNIBANCO hereby grants a loan to the BORROWER in the amount of US$30,000,000.00
(Thirty million United States dollars), for a period of 120 (one hundred and
twenty) days from the disbursement date, scheduled for October 29, 2001,
maturing on February 26, 2002.
II
The amount of the loan granted shall be disbursed by UNIBANCO, by crediting the
current account indicated by the BORROWER, observed the condition stated in
Clause XII hereof.
Sole Paragraph: Upon the disbursement of the credit under the terms of this
Clause II, UNIBANCO shall issue a payment schedule ("Payment Schedule") which
shall contain the principal amount of the loan, the disbursement date and the
maturity date of the loan, including principal, interest and other duly
evidenced charges.
III
From the disbursement date, according to the provisions of Clause II, the amount
of the loan shall bear the following charges:
Interest calculated at the rate of 6% (six percent) per annum.
IV
The BORROWER shall settle the principal and all other obligations hereunder
resulting from the loan granted hereunder, in the form and on the due date
stated in the Payment
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Schedule, directly to UNIBANCO, by crediting the current account mentioned in
Clause V hereof.
Sole Paragraph: All payments under this Agreement shall be effected by the
BORROWER and/or the CO-OBLIGOR, in United States dollars, net, without set-off
or counterclaim, free and clear and without deduction or withholding of any
present or future taxes, charges, surcharges, duties of whatever nature
(hereinafter called "Taxes") imposed by any authority having power to tax and
the BORROWER and/or the CO-OBLIGOR will pay such Taxes.
V
For the purposes of the preceding Clause, the BORROWER agrees to deposit in
UNIBANCO's current account kept at Chase Manhattan Bank - New York - NY, USA,
ABA No. 00000000, current account No. 000-000-000, until 1l:00 a.m. (New York
City time) of the due date, in immediately available United States dollars, the
amounts necessary to settle all the BORROWER's obligations hereunder.
VI
In the event that the maturity date of the obligations arising from this
Agreement falls on a non business day, it is stipulated that the maturity date
shall be postponed to the next succeeding business day.
Sole Paragraph: Business day means, as used in this Agreement, any day other
than one on which the banks where the payments
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hereunder shall be made are authorized or required by law to be closed.
VII
If any of the conditions set forth in Clause IV hereof is not fulfilled, and in
order to assure its due enforcement, the BORROWER and/or the CO-OBLIGOR shall
settle a foreign exchange transaction in Brazil, after authorization of the
Central Bank of Brazil, should it be the case, or with other banks located
outside Brazil, in order to receive the amounts owed hereunder.
First Paragraph: Alternatively, at the sole discretion of UNIBANCO, payments may
be made by the BORROWER, by delivering the amount in Brazilian lawful currency
immediately available in Brazil, at the branch designated by UNIBANCO, using for
the calculation of the amount in Brazilian lawful currency the average exchange
rate for United States dollars informed by "SISBACEN Transacao PCOT-390" on the
day of the actual payment.
Second Paragraph: In the case referred to in this Clause VII, the BORROWER and
the CO-OBLIGOR shall be further responsible for any amounts related to foreign
fluctuations, interests, fines, inflation adjustments, taxes, brokerage
expenses, exchange closing and other charges resulting from the remittance of
funds outside Brazil, for the payment of the BORROWER's obligations.
VIII
The BORROWER issues a promissory note, which shall be duly guaranteed per aval
by the CO-OBLIGOR, in favor of UNIBANCO,
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in the total amount of the loan granted hereunder, and with final maturity date
on February 26, 2002, 120 (one hundred and twenty) days from the disbursement
date provided in the Payment Schedule, payable on the due date or after the date
of a total or partial default, as the case may be, the fulfillment of the
BORROWER's obligations in the manner agreed herein.
First Paragraph: Upon default by the BORROWER in the fulfillment of any of its
obligations hereunder, UNIBANCO may, at its sole discretion, discount the
Promissory Note referred to in this Clause VIII, at discount rates adopted on
such date, in New York City, by prime financial institutions, applying the
proceeds of such discount in the total or partial settlement of the BORROWER's
principal and other obligations hereunder.
Second Paragraph: If the net proceeds arising from the discount referred to in
the preceding paragraph are not sufficient to cover the BORROWER's liabilities
hereunder, UNIBANCO may use the right provided for in the Sole Paragraph of
Clause IX hereof.
IX
All charges incurred under or resulting from this Agreement, as well as any
expenses necessary for the preparation, utilization and settlement of the loan
granted hereunder, in the manner agreed herein, or such charges and expenses
UNIBANCO may be required to pay or bear with regard to this Agreement, shall be
borne by the BORROWER.
Sole Paragraph: UNIBANCO shall be entitled to draw securities related to the
further encumbrances which are not represented by the promissory note in
accordance with
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Clause VIII of this Agreement.
X
UNIBANCO may, irrespective of any notice, interpellation or notification, either
judicial or extrajudicial, deem terminated this Agreement and declare
immediately due and payable all obligations arising from this Agreement should
any case provided by law or any of the following events occur:
a) legal protest of negotiable instruments against the BORROWER or its
CO-OBLIGOR, in the case the BORROWER and/or the CO-OBLIGOR do not preset to
UNIBANCO within 30 (thirty) days from the protest according to each case: (a)
proof of payment of titles; or (b) confirmation of legal and administrative
measures to interrupt, cancel and refuse mentioned protest;
b) insolvency or decree of bankruptcy, as the case may be, of the BORROWER or
of its CO-OBLIGOR;
c) filing of petition for composition with creditors, by the BORROWER or of its
CO-OBLIGOR, as the case may be;
d) failure in substituting, replacing, completing or reinforcing the guarantee,
upon request by UNIBANCO, in case of any material adverse change in the social,
economic and financial condition of the BORROWER and/or the CO-OBLIGOR;
e) failure in performing any obligation hereunder;
f) any act of reorganization, merger or
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consolidation, as the case may be, of the BORROWER, without prior written notice
to UNIBANCO;
g) any judicial or administrative proceedings brought against the BORROWER or
its CO-OBLIGOR, which may cause insolvency or affect the ability of the BORROWER
or any of its co-obligors to pay the obligations arising from this Agreement;
h) transfer to third parties by the BORROWER, in any way, of rights or
obligations which, respectively, it acquired or assumed hereunder, without the
prior written consent of UNIBANCO.
First Paragraph: The contractual penalties stipulated below shall apply without
prejudice to one another, as well as to any penalties hereunder, including
acceleration of the obligations hereunder, if such is the case, as follows:
a) upon delay in the payment of any amount due hereunder, without prejudice of
acceleration, the debts shall be subject, as from the due date to (i) commitment
fee, computed as per regulations of the Central Bank of Brazil, (ii) delay
interest at a rate of one per cent (1%) per month, (iii) collection fees, (iv)
two per cent (2%) penalty over the remaining debt balance, in case of default on
any of its obligations and (v) attorney's fees;
Second Paragraph: The amount corresponding to the penalties under the preceding
paragraph shall be debited, on the date of the default, against the BORROWER's
current account.
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XI
UNIBANCO is hereby irrevocably authorized by the BORROWER and by the CO-OBLIGOR,
to debit any current account maintained by the BORROWER and/or the CO-OBLIGOR,
with any branch of Unibanco - Uniao de Bancos Brasileiros S.A., Sao Paulo,
Brazil, to set off all amounts owed to UNIBANCO under this Agreement, to the
extent that funds are available in such accounts.
Sole Paragraph: In the event UNIBANCO acts on the authorization provided in the
main paragraph of this Clause XI, the discharge from the obligations arising
from this Agreement shall be subject to the actual availability of funds in the
current account in which the relevant debit is made.
XII
UNIBANCO shall fulfill its obligations hereunder only after the presentation by
BORROWER of all documents required by UNIBANCO and after the fulfillment of all
conditions set forth herein.
XIII
UNIBANCO is hereby authorized by the BORROWER and/or the CO-OBLIGOR, to make
requests, sign forms, agreements and other documents that may be necessary for
the fulfillment of the conditions set forth herein.
XIV
The BORROWER and the CO-OBLIGOR shall accept the accounting entries, collection
and debit notices received by UNIBANCO
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from banking institutions, brokerage houses and/or other similar entities,
located in Brazil or in other countries, as well as any documents presented by
UNIBANCO with respect to foreign exchange operations that UNIBANCO may contract
hereunder, including those carried out in other countries, as satisfactory
evidence of the amounts owed by virtue of the loan granted under this Agreement.
XV
This Agreement is valid and enforceable as of this date, and all its terms shall
continue in force until the date of the effective settlement of all the
BORROWER's obligations hereunder.
XVI
The terms and obligations hereunder shall be effective regardless of any notice,
interpellation or notification, either judicial or extrajudicial.
XVII
In case of failure in the fulfillment of any Clause hereof, any eventual
tolerance by UNIBANCO shall not imply novation of or amendment to this
Agreement, nor shall prevent UNIBANCO from enforcing, from time to time, all of
its rights hereunder.
XVIII
The CO-OBLIGOR accepts hereby to be jointly and severally responsible together
with the BORROWER for the fulfillment of the principal and all other
obligations hereunder arising from this Agreement, pursuant to the terms of
article 896 and certain other subsequent articles of the Brazilian Civil
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Code.
XIX
The term and the payment conditions of this loan hereunder were stated for the
benefit of the Parties hereto, and prepayments under this Agreement are not
allowed, except if as provided in the applicable law and in this Agreement.
XX
This Agreement shall be construed according to and governed by the Brazilian
laws and the Parties elect hereby, for settling any dispute arising from this
Agreement, the Court of the City of Sao Paulo, State of Sao Paulo, Brazil, or,
at the discretion of the plaintiff, the Court of the domicile of the BORROWER,
waiving the Parties any other jurisdiction, no matter how privileged it may be.
XXI
This Agreement is executed in two versions, one in the Portuguese language and
the other in the English language, both of which shall be deemed as counterparts
of one sole agreement. Each one of them shall be entirely valid for all legal
effects. However, in the event that any discrepancy arises from the translation
of any of the terms of the two said versions, the Portuguese version shall
prevail.
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The Parties hereby sign this Agreement in four (4) counterparts of identical
content and effect subscribed by (2) witnesses.
Sao Paulo, October 26, 200l.
/s/
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UNIBANCO-UNIAO DE BANCOS BRASILEIROS S.A.
Agencia Nassau / Nassau Branch
/s/
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NEWARK FINANTIAL INC.
/s/
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VOTORANTIM CELULOSE E PAPEL S.A.
TESTEMUNHAS / WITNESSES:
1 2
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Nome/Name: Nome/Name:
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PAYMENT SCHEDULE
This Payment Schedule is an integral part of the Loan Agreement dated as of
October 26, 2001, made and entered into by and between UNIBANCO, the BORROWER
and the CO-OBLIGOR that sign below.
Loan amount: US$30,000,000.00
Date of Disbursement/Credit: 10/29/2001
Principal Maturity Date: 02/26/2002
Interest Maturity Date: 02/26/2002
Interest Rate: 6% (six percent) per annum
Sao Paulo, October 26, 200l
/s/
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UNIBANCO-UNIAO DE BANCOS BRASILEIROS S.A.
Agencia Nassau / Nassau Branch
/s/
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NEWARK FINANTIAL INC.
/s/
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VOTORANTIM CELULOSE E PAPEL S.A.
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PROMISSORY NOTE
October 29, 200l
Newark Finantial Inc., with head office at Xxxxxxxxxx Plaza, 2nd Floor, Wickhams
Cay I, Road Town, Tortola, British Virgin Islands, hereinafter called
"BORROWER", after date, for value received, promises to pay to:
UNIBANCO - Uniao de Bancos Brasileiros S.A.
Nassau Branch
BankAmerica House, 3rd Floor
308 East Bay Street
Nassau, Bahamas ("UNIBANCO Nassau Branch")
US$30,000,000.00 (Thirty million United States dollars), in lawful money of the
United States, with interest on the unpaid principal balance thereof from time
to time outstanding from the date hereof until maturity at the rate of 6% (six
percent) per annum. The principal and the interest thereon shall be paid on
February 26, 2002. If any sum payable on this Note or on any other liability of
the BORROWER or any endorser or guarantor hereof shall not be paid when due; or
if the BORROWER or any endorser or guarantor hereof shall die, become insolvent
(however such insolvency may be evidenced), commit any act of bankruptcy or make
a general assignment for the benefit of creditors; or if the transaction of the
usual business of the BORROWER shall be suspended, or any proceeding, procedure
or remedy supplementary to or in enforcement of judgement shall be resorted to
or commenced against, or with respect to any property of the BORROWER or any
such endorser or guarantor; or if a petition in bankruptcy whether voluntary or
involuntary or for any relief under any law relating to the relief of debtors,
readjustment, or arrangements of indebtedness, reorganization, composition or
extension shall be filed, or any proceeding shall be instituted under any such
law, by or against the BORROWER or any such endorser or guarantor; or if an
application for the appointment of any receiver, trustee, liquidator or any
committee with regard to the BORROWER shall be filed, or if a receiver, trustee,
or liquidator shall be appointed, or if any governmental authority or any court
at the insistence thereof shall take possession of any substantial part of the
property of or assume control over the affairs or operations of, or of any
substantial part of the property of the BORROWER or any such endorser or
guarantor; or a writ, warrant, restraint or order of attachment or garnishment
shall be issued or made against any of the properties of the BORROWER or any
such endorser or guarantor, or if any indebtedness of the BORROWER or any such
endorser or guarantor for borrowed money shall not be paid when due or shall
become due and payable by acceleration of maturity thereof; or if foreclosure
proceedings or any proceedings against the BORROWER for the enforcement of money
judgement shall be commenced; or if the BORROWER makes an assignment for the
benefit of creditors or the offering of a composition or extension to
creditors; or if the BORROWER (if a corporation) shall be dissolved or be a
party to any merger or consolidation without the written consent of the holder
hereof, or shall file or authorize or permit to be filed in any jurisdiction any
financing
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statement under the Uniform Commercial Code or like statement in which the
holder hereof is not named as the sole secured party; then this Note and all
other present and future demands of any and all kinds of the holder hereof
against the BORROWER whether created directly or acquired by assignment, whether
absolute or contingent, shall, unless the holder hereof shall otherwise elect,
forthwith be due and payable, without demand or notice. The BORROWER, if more
than one, shall be jointly and severally liable hereunder, and all provisions
hereof apply to each or any of the BORROWER. The holder of this Note shall have
a lien and security interest in the deposit balances or credit balances of any
obligor hereunder, and may at any time and without notice apply said balances to
this Note, or any payment hereunder, when due. The principal and all other
payments under this Note shall be paid by the BORROWER to Chase Manhattan Bank -
New York - NY, USA, ABA No. 00000000, for the account of UNIBANCO Nassau Branch,
account No. 000-000-000, without setoff or counterclaim, free and clear of all
restrictions of whatsoever nature imposed thereon, and without deduction or
withholding for or on account of any and all taxes, duties, levies, imposts,
deductions, surcharges or other charges and all liabilities with respect
thereto, of any kind, nature or description past, present or future, imposed by
or payable to or in any jurisdiction or any political subdivision or taxing
authority thereof or therein, or for any federal, state of local income tax
specified above, which may be required or permitted to be deducted or withheld
therefrom (such taxes, duties, levies, imposts, deductions, surcharges, or other
charges and all liabilities with respect thereto hereinafter referred to as
"Tax" or "Taxes"), and the BORROWER will pay any such Tax, for the account of
UNIBANCO Nassau Branch. Any reference herein to the face amount of or interest
on this Note or any other payment under this Note shall not be deemed to define
the maximum obligation of the BORROWER to pay, but rather the net amount which
UNIBANCO Nassau Branch is entitled to receive any deductions or withholdings
which may be incident to any such Taxes, and such references shall not relieve
the BORROWER of the obligation to pay or restrict the right of UNIBANCO Nassau
Branch to be paid a gross face amount of interest or any other payment under
this Note which may be greater than the amount or rate so specified. If any
amount payable under this Note as stated above should become subject to
withholding at source of any Tax applicable by the Law of any jurisdiction or
political subdivision thereof, then the BORROWER undertakes to furnish, at the
request of UNIBANCO Nassau Branch, proper evidence of withholding and deposit
with the tax collection agency of such jurisdiction of the amount of such Tax.
Trial by jury and the right to impose any counterclaims or setoffs of any kind
in any litigation relating to this Note or any liability hereunder are hereby
waived. This Note shall be construed according to and governed by the internal
laws of the Bahamas, without regard to the principles of conflict of laws
hereof. The BORROWER hereby irrevocably (a) submits to the non-exclusive
jurisdiction of any Bahamas Court over any suit, action or proceedings arising
out of or relating to this Note, (b) agrees that all claims with respect to such
action or proceeding arising out of, or relating to this Note may be heard or
determined in such Bahamas Court, (c) waives to the fullest possible extent the
defense of inconvenient forum, and (d) agrees that service of process may be
made personally or by mailing or delivering a copy of the summons and complaint
or other legal process in any legal suit, action or proceeding to the BORROWER
in care of the General Manager thereof at the aforesaid address, and such
General Manager is hereby authorized to accept, receive and acknowledge the
same for and on behalf of the BORROWER and to admit service with respect
thereto. Failure by the holder of this Note to enforce any provisions shall not
constitute a waiver of such provision or provisions, nor shall the holder hereof
be stopped from enforcing any such provision at a later time.
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This Note is the one referred to in the Loan Agreement, dated as of October 26,
2001, by and between the BORROWER and UNIBANCO, which among other things
contains provisions for the acceleration of the payment of principal and
interest hereof upon the happening of certain stated events therein specified.
Terms used herein shall have the same meaning as of defined in such Loan
Agreement.
/s/
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NEWARK FINANTIAL INC.
For value received, the undersigned Votorantim Celulose e Papel S.A. (the
"Guarantor") hereby irrevocably and unconditionally guarantees, as primary
obligor and not merely as surety, the prompt payment in full when and as due of
all amounts payable under this Note in accordance with its terms (whether upon
maturity, acceleration or otherwise). The Guarantor hereby waives all
requirements as to diligence, presentment, demand of payment, protest and notice
of any kind with respect to this Note and any requirement that the holder
exhausts any right or takes any action against the maker of this Note. The
obligations of the Guarantor are continuing, absolute and unconditional,
irrespective of the genuineness, validity, irregularity, enforceability or value
of this Note or of any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a surety or a guarantor all of which
are hereby expressly waived. This guarantee shall be enforceable notwithstanding
any legal limitation, disability, incapacity or other circumstance relating to
the maker of this Note.
Per Aval:
VOTORANTIM CELULOSE E PAPEL S.A.
/s/
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Title:
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