Exhibit 4.19
[Execution Copy]
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$380,000,000
CREDIT AGREEMENT
dated as of May 23, 2002
among
NEWARK FINANCIAL INC.,
VCP EXPORTADORA E PARTICIPACOES S.A.,
VOTORANTIM CELULOSE E PAPEL S.A.,
VCP TRADING N.V.,
VCP NORTH AMERICA INC.,
CERTAIN LENDERS,
ABN AMRO BANK N.V.,
as the Administrative Agent,
and
THE BANK OF NEW YORK,
as the Collateral Agent
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ABN AMRO BANK N.V.,
as the Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms.......................................1
Section 1.2 Other Interpretive Provisions..............................15
ARTICLE II
LOANS, ETC
Section 2.1 Loans......................................................16
Section 2.2 Borrowing..................................................16
Section 2.3 Fees.......................................................17
Section 2.4 Several Obligations; Remedies Independent..................17
Section 2.5 Notes......................................................17
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.1 Repayment of the Loans.....................................17
Section 3.2 Interest...................................................17
Section 3.3 Optional Pre-payments......................................18
Section 3.4 Payments...................................................18
Section 3.5 Pro Rata Treatment.........................................19
Section 3.6 Certain Notices............................................19
Section 3.7 Non-Receipt of Funds by the Administrative Agent...........19
Section 3.8 Set-Off; Sharing of Payments...............................20
ARTICLE IV
YIELD PROTECTION, ETC
Section 4.1 Additional Costs...........................................21
Section 4.2 Substitute Basis...........................................22
Section 4.3 Illegality.................................................23
Section 4.4 Funding Losses.............................................23
Section 4.5 Taxes......................................................24
ARTICLE V
COLLECTION ACCOUNT, COLLATERAL ACCOUNT, ETC
Section 5.1 The Collection Account.....................................26
Section 5.2 The Collateral Account.....................................26
Section 5.3 Releases from the Collection Account,
the Collection Subaccount and the
Collateral Account.........................................27
Section 5.4 Remedies During Events of Default..........................28
Section 5.5 Certain Rights and Duties of the Collateral Agent..........29
Credit Agreement i
TABLE OF CONTENTS
(continued)
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ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Conditions Precedent.......................................29
Section 6.2 Additional Conditions......................................32
Section 6.3 Satisfaction of Conditions Precedent.......................33
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 Power and Authority........................................34
Section 7.2 Subsidiaries...............................................34
Section 7.3 Due Authorization, Etc.....................................34
Section 7.4 No Additional Authorization Required.......................35
Section 7.5 Legal Effect...............................................35
Section 7.6 Financial Statements.......................................36
Section 7.7 Ranking; Priority..........................................36
Section 7.8 No Actions or Proceedings..................................36
Section 7.9 Commercial Activity; Absence of Immunity...................36
Section 7.10 Taxes......................................................37
Section 7.11 Legal Form.................................................37
Section 7.12 Full Disclosure............................................38
Section 7.13 Security Interest..........................................38
Section 7.14 Title to Assets; Liens.....................................38
Section 7.15 No Defaults................................................39
Section 7.16 Solvency...................................................39
Section 7.17 Investment Company Act.....................................39
Section 7.18 UCC Matters................................................39
ARTICLE VIII
COVENANTS
Section 8.1 Corporate Existence; Inspection; Books and Records.........40
Section 8.2 Compliance with Applicable Laws; Insurance.................41
Section 8.3 Governmental Approvals.....................................41
Section 8.4 Reporting Requirements.....................................42
Section 8.5 Ranking; Priority..........................................43
Section 8.6 Debt.......................................................44
Section 8.7 Negative Pledge............................................46
Section 8.8 Transactions With Affiliates...............................47
Section 8.9 Line of Business, Etc......................................47
Section 8.10 Use of Proceeds............................................48
Section 8.11 Further Assurances.........................................48
Section 8.12 Merger, Etc................................................48
Section 8.13 Export Arrangements........................................50
Section 8.14 Syndication................................................51
Credit Agreement ii
TABLE OF CONTENTS
(continued)
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Section 8.15 Investment Company Act.....................................52
Section 8.16 Portuguese Translation.....................................52
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default..........................................52
ARTICLE X
THE AGENTS
Section 10.1 Appointment, Powers and Immunities.........................56
Section 10.2 Reliance by the Agents.....................................57
Section 10.3 Defaults...................................................57
Section 10.4 Rights as a Lender.........................................58
Section 10.5 Indemnification............................................58
Section 10.6 Non-Reliance upon the Agents and other Lenders.............58
Section 10.7 Failure to Act.............................................59
Section 10.8 Resignation or Removal of the Agents.......................59
ARTICLE XI
VCP EXPORTADORA'S GUARANTY OF NEWARK AND
NEWARK'S GUARANTY OF THE NEWARK SUBSIDIARIES
Section 11.1 Guaranty...................................................60
Section 11.2 Guaranty Unconditional.....................................60
Section 11.3 Discharge Only upon Payment in Full;
Reinstatement In Certain Circumstances...............61
Section 11.4 Waiver by VCP Exportadora and Newark.......................61
Section 11.5 Subrogation................................................61
Section 11.6 Stay of Acceleration.......................................62
ARTICLE XII
VCP'S GUARANTY OF VCP EXPORTADORA
Section 12.1 Guaranty...................................................62
Section 12.2 Guaranty Unconditional.....................................62
Section 12.3 Discharge Only upon Payment in Full;
Reinstatement In Certain Circumstances...............63
Section 12.4 Waiver by VCP..............................................63
Section 12.5 Subrogation................................................64
Section 12.6 Stay of Acceleration.......................................64
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Waiver.....................................................64
Credit Agreement iii
TABLE OF CONTENTS
(continued)
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Section 13.2 Notices....................................................64
Section 13.3 Expenses; Indemnity........................................65
Section 13.4 Amendments, Etc............................................66
Section 13.5 Successors and Assigns.....................................67
Section 13.6 Third Party Beneficiaries..................................68
Section 13.7 Assignments and Participations.............................69
Section 13.8 Survival...................................................71
Section 13.9 Captions...................................................71
Section 13.10 Counterparts...............................................71
Section 13.11 Governing Law..............................................71
Section 13.12 Jurisdiction, Service of Process and Venue.................71
Section 13.13 Waiver of Jury Trial.......................................73
Section 13.14 Waiver of Immunity.........................................73
Section 13.15 Judgment Currency..........................................73
Section 13.16 Use of English Language....................................74
Section 13.17 Entire Agreement...........................................74
Section 13.18 Severability...............................................74
Section 13.19 No Fiduciary Relationship or Partnership...................74
Section 13.20 Confidentiality............................................75
Section 13.21 Payments Set Aside.........................................75
Section 13.22 No Petition Covenant.......................................76
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
CREDIT AGREEMENT, dated as of May 23, 2002 (this "Agreement"), among
NEWARK FINANCIAL INC., a company organized under the laws of the British Virgin
Islands ("Newark"), VCP EXPORTADORA E PARTICIPACOES S.A., a Brazilian
corporation ("VCP Exportadora"), VOTORANTIM CELULOSE E PAPEL S.A., a Brazilian
corporation ("VCP"), VCP TRADING N.V., a public limited liability company
incorporated under the laws of the Netherlands Antilles, VCP NORTH AMERICA INC.,
a corporation duly organized under the laws of the State of Delaware (with VCP
Trading N.V., a "Newark Subsidiary"), 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, VCP, VCP Exportadora, Newark and the Newark Subsidiaries have
requested that the Lenders make loans to one or both of the Newark Subsidiaries
in an aggregate principal amount up to but not exceeding $380,000,000, and
WHEREAS, the Lenders are prepared to make such loans upon and subject
to the terms and conditions hereof, including the agreement of VCP to sell (or
cause to be sold) sufficient products to Newark so that the Loans shall be
repaid from the collections on receivables that are generated from the sale by
Newark and the Newark Subsidiaries of such products to certain eligible
customers,
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.
"Administrative Agent" has the meaning set forth in the
introduction hereto.
Credit Agreement 1
"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 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.
"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.
Credit Agreement 2
"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.
"Bank Percentage" has the meaning set forth in the Security
Agreement.
"BNDES" means Banco Nacional de Desenvolvimento Economico e
Social, the Brazilian national development bank.
"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 3
instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the government of the Untied 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) 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 the date on which the conditions precedent
specified in Section 6.1 have been 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 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 all Payment
Dates scheduled to occur within the three month period beginning with
the first day of such Interest Period (with respect to
Credit Agreement 4
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 Other Debt Service Amount for such
Interest Period (and the Payment Date at the end thereof) to (b) the
Debt Service Amount 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
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
Credit Agreement 5
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" means, for any Payment Date, the aggregate
amount of principal, interest, fees, expenses and other amounts
scheduled (i.e., without regard to any increase payable under the Loan
Documents due to an Event of Default) under the Loan Documents to be
payable on such Payment Date or during the Interest Period ending on
such Payment Date (plus any such amounts overdue from prior periods).
"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 6
"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 VCP Trading N.V. is a
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 from time to time that
has its principal place of business in an OECD Country other than
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 from time to time (each of which shall have its principal place
of business in an OECD Country other than Brazil) hereafter approved
in writing by the Majority Lenders, (d) each other Person designated
in writing to the Administrative Agent by Newark 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 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
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 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.
Credit Agreement 7
"Eligible Financial Institution" has the meaning set forth in
clause (d) of the definition of "Eligible Buyer."
"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."
"Export Agreement" means, with respect to each Stand-by Exporter,
the Export Agreement, dated as of the date hereof, 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.
"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.
"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
Credit Agreement 8
(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.
(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
Credit Agreement 9
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 Notes, the Security Agreement, the Account Control
Agreements, the Export Agreements, the Letters of Instructions, the
Agents' Fee Letters, the Subordination Agreement 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 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).
"Maximum Debt Service Amount" means, as of any date of
determination, the highest sum of the Debt Service Amount and the
Other Debt Service Amount scheduled to be paid on any Payment Date (or
during the Interest Period ending on such Payment Date) on or after
such determination date (provided that interest payable for each item
of Debt shall be calculated as the product of: (a) the then-current
interest rate corresponding to such Debt plus, for any Debt with a
floating interest rate, an additional 1% per annum, (b) the
outstanding principal amount of such Debt scheduled to be in effect on
such Payment Date immediately before the payment of principal (if any)
scheduled to be paid on such Payment Date and (c) the number of days
in the applicable Interest Period (with respect to fixed interest
rates, based upon a month of 30 days) divided by 360 (or 365/366 to
the extent so provided in the documentation for such Debt)).
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
Credit Agreement 10
"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.
"Organizational Documents" means, with regard to any Person: (a)
its articles of incorporation or other similar document, (b) its
estatutos sociais, by-laws or other similar document, (c) any
certificate of designation or other document relating to the rights of
preferred shareholders or other equity holders 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.
"Other Agent" means the agent, trustee or other Person identified
by Newark as such to the Agents at the time of Newark's entering into
the Other Facility (if any), which Person shall have delivered to the
Collateral Agent (in form and substance satisfactory to
Credit Agreement 11
the Collateral Agent) its acknowledgment of (and agreement to be bound
by) the provisions of the Security Agreement. The Agents shall not
comply with notice of any change in such Person without the written
notice of the existing Other Agent and the receipt of an
acknowledgment and agreement from the new Other Agent similar to the
one described in the preceding sentence.
"Other Debt Service Amount" has the meaning set forth in the
Security Agreement.
"Other Facility" means a separate loan, securities or other
facility entered into by Newark and/or the Newark Subsidiaries that,
to the extent described in the Security Agreement, is secured by the
Sales Collateral and the Collection Account.
"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 (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',
warehousemen's 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,
Credit Agreement 12
(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
(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 by VCP or a Stand-by Exporter in
Brazil, (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 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 Debt under this Agreement and the other Loan
Documents) that is secured by (or otherwise expected to be repaid
from) collections relating to export sales of VCP's 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 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.
Credit Agreement 13
"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).
"Reference Banks" means the principal London offices of ABN AMRO,
Citibank, N.A. and Barclays Bank PLC.
"Register" has the meaning set forth in Section 13.7(b).
"Required Payment" has the meaning set forth in Section 3.7.
"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 Newark or 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" means the Lenders, the Administrative Agent,
the Collateral Agent and any other Person (other than an Obligor, any
Affiliate of any thereof or a customer of Newark) that has a right to
receive any payment from an Obligor under the Loan Documents.
"Security Agreement" means the Security Agreement, dated as of
the date hereof, among Newark, the Newark Subsidiaries 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 Subordination Agreement,
dated as of the date hereof, among VCP, VCP Exportadora, each Newark
Subsidiary, Newark and the Administrative 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.
Credit Agreement 14
"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 Secured Party by the jurisdiction under the
laws of which such Secured Party is organized, in which such 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
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 agreement 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.
"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 Party" means each of VCP, each of its Subsidiaries
(including VCP Exportadora, Newark and the Newark Subsidiaries) and
each Stand-by Exporter.
Credit Agreement 15
"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."
(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
Credit Agreement 16
Agents or any other 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 one or both Newark Subsidiaries 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 Newark Subsidiaries solely to make to Newark a
prepayment for the sale of Products by Newark to such Newark Subsidiary. 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. Each Newark Subsidiary 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 available funds, for the account of the applicable Newark
Subsidiary. The amount so received by the Administrative Agent shall, on the
Borrowing Date, be applied by the Administrative Agent (on behalf of the
applicable Newark Subsidiary) 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
Credit Agreement 17
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 Newark Subsidiaries, 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 a Newark Subsidiary to Newark
shall be evidenced by a promissory note of Newark, substantially in the form of
Exhibit A-2 (each a "Newark Note"), dated the Borrowing Date, payable to such
Newark Subsidiary 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. Each Newark Subsidiary agrees,
jointly and severally with the other Newark Subsidiary, 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. Each
Newark Subsidiary agrees that its obligations under this Agreement and the other
Loan Documents are general obligations of such Newark Subsidiary and that the
recourse of the Lenders, the Administrative Agent and the other Secured Parties
in respect thereof is not limited to the Collateral or any portion thereof.
Section 3.2 Interest. (a) Each Newark Subsidiary agrees, jointly and
severally with the other Newark Subsidiary, 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 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, each Newark Subsidiary agrees,
jointly and severally with the other Newark Subsidiary, 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.
Credit Agreement 18
(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 Newark Subsidiaries 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 Newark Subsidiaries 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 Newark Subsidiaries to the 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 Newark Subsidiaries 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 pursuant to Section 5.3(c)) for the account
of any 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 Newark Subsidiaries fail 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
Credit Agreement 19
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 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 Newark Subsidiaries, (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 Newark Subsidiaries) of a payment to the Administrative Agent
for the account of one 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 Newark Subsidiaries, 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 Newark Subsidiaries, 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.
Credit Agreement 20
Section 3.8 Set-Off; Sharing of Payments. (a) Without limiting any of
the obligations of a Newark Subsidiary or the rights of any 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 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
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 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 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 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 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 Secured Party's
share thereof, then it shall promptly notify the Administrative Agent thereof
and purchase from the applicable other Secured Parties participations in (or, if
and to the extent specified by any such other Secured Party, direct interests
in) the Loans or such other amounts, respectively, owing to such other 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 Secured Parties shall share the benefit of such excess
payment (net of any expenses that may be incurred by such Secured Party in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans or such other amounts,
respectively, owing to each of the Secured Parties under the Loan Documents. To
such end, all such 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 Secured Party
to exercise any such right or shall affect the right of any 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.
Credit Agreement 21
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 the date hereof), 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 Newark Subsidiaries, jointly and severally, 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 the date
hereof), 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
Newark Subsidiaries, jointly and severally, 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.
(c) Each Lender shall promptly (and, in any event, within 90 days of
its actual knowledge thereof) notify the Newark Subsidiaries of any event of
which it has knowledge that will entitle such Lender to compensation pursuant to
this Section and shall provide the Newark Subsidiaries 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 Newark Subsidiaries 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
Credit Agreement 22
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 Newark Subsidiaries in the
absence of manifest error and such amounts shall be payable by the Newark
Subsidiaries, jointly and severally, 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 Newark Subsidiaries 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 Newark Subsidiaries and shall apply in
lieu of the LIBO Rate for such Interest Period in the absence of
manifest error.
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 the date hereof) 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 Newark Subsidiaries 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
Credit Agreement 23
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 Newark
Subsidiaries (jointly and severally), together with accrued and unpaid interest
thereon and all other amounts payable to such Lender by the Newark Subsidiaries
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 Newark Subsidiaries (jointly and
severally) 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 Newark Subsidiaries 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 Newark Subsidiaries 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 Newark
Subsidiaries 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 Newark Subsidiaries to or for the account of
either Agent, any Lender or any other Secured Party, including amounts payable
under clauses (b) and (c), shall (except to the extent required by Applicable
Law) be made free and clear of and without reduction or liability for or on
account of any Taxes.
(b) The Newark Subsidiaries, jointly and severally, shall indemnify
each Secured Party against, and reimburse each Secured Party on demand for, any
Taxes and any loss, liability, claim or expense, including interest, penalties
and legal fees, that such 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.
Credit Agreement 24
(c) If a Newark Subsidiary, 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 Secured Party on, under or in respect of the Loan
Documents or the Loans, then the Newark Subsidiaries, jointly and severally,
shall promptly (and, in any event, within five Business Days after either Newark
Subsidiaries' knowledge of the application of such Taxes) pay the Administrative
Agent (on behalf of the 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 Secured
Party to receive on the due date thereof an amount equal to the full amount
stated to be payable to such Secured Party under the Loan Documents.
(d) Except to the extent prohibited by Applicable Law, the Newark
Subsidiaries shall furnish to the Administrative Agent, upon the request of any
Secured Party (through the Administrative Agent), together with certified copies
for distribution to each 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 Secured Party (through the Administrative Agent) any other information,
documents and receipts that the Administrative Agent or such Secured Party may
reasonably request to establish that full and timely payment has been made of
all Taxes required to be paid under this Section with respect to any payment to
such Secured Party.
(e) Each 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 Newark Subsidiaries shall apply this paragraph, such Obligor shall have
notified the relevant Secured Party that such Secured Party will be required to
comply with such requirement; provided that the exemption or reduction of
withholding taxes set forth herein shall not apply to the extent that it would
require disclosure by a Secured Party of information that such Secured Party
reasonably considers to be confidential or otherwise materially disadvantageous
to disclose. Notwithstanding the foregoing, each Secured Party that is not
organized under the laws of the United States of America or any state thereof
will deliver to the Administrative Agent and to VCP North America Inc., on or
before the Closing Date (or, in the case of a Secured Party that becomes a
Secured Party after the Closing Date, on or before such later date on which such
Secured Party acquires its interest in the Loan Documents) to the extent such
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 payments of interest by VCP North America Inc. pursuant to this Agreement
will be exempt from United States federal withholding taxes. For the avoidance
of doubt, the preceding sentence shall not relieve the Newark Subsidiaries of
their obligations under clauses (b) and (c) should it be finally determined
under Applicable Law that a Secured Party was subject to United States federal
withholding taxes on payments of interest by VCP North America Inc.
Credit Agreement 25
(f) Any 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 Newark Subsidiaries 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 Secured Party, be otherwise disadvantageous to
it.
(g) If either Newark Subsidiary reasonably determines that any Taxes as
to which it made a payment of additional amounts to a Secured Party pursuant to
clause (c) were erroneously assessed, then such Newark Subsidiary may notify
such Secured Party of its determination thereof (along with a detailed
description of the reason why such Newark Subsidiary believes that such Taxes
were erroneously assessed) and request that such Secured Party refund to such
Newark Subsidiary the amount of such additional amounts. Upon its receipt of any
such notice, and if such Secured Party determines (in good faith) that such
Newark Subsidiaries' determination with respect to such matter is correct, then
such Secured Party shall (at the request and expense of such Newark Subsidiary):
(i) refund to such Newark Subsidiary such amounts (without any interest thereon)
that have been actually received by such Secured Party and/or (ii) reasonably
cooperate with such Newark Subsidiary in seeking a refund from the appropriate
Governmental Authority of any such Taxes erroneously assessed by, and paid to,
such Governmental Authority.
(h) The Newark Subsidiaries, jointly and severally, agree 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) a Newark Subsidiary 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 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
Credit Agreement 26
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
earlier of: (i) the final payment in full of all amounts payable under the Loan
Documents, (ii) such time as the Guaranties of Newark, 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 Newark and all of the Lenders. Upon
the Collateral Account Termination Date and the release of all funds therein to
(or on behalf of) Newark, 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 first Payment Date. Thereafter until the Collateral
Account Termination Date, by no later than the first day of any Interest Period,
Newark 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 Account, the Collection
Subaccount and the Collateral Account. In addition to the provisions of Section
2.3 of the Security Agreement, the Collateral Agent shall apply the collected
credit balance of the Collection Account, the Collection Subaccount and the
Collateral Account as follows:
(a) If on any 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 thereto or carried therein exceeds
the Debt Service Amount for the next Payment Date, and (ii) no Default
exists, then the Collateral Agent shall (by no later than the next
Business Day on which it is open) release from the Collection
Subaccount and remit to Newark, in each case in such manner as may be
requested by Newark, an amount equal to such excess. Notwithstanding
the above, Newark may at any time during each Interest Period notify
the Collateral Agent to retain in the Collection Subaccount all or any
portion of such
Credit Agreement 27
amounts up to an amount equal to the Tested Collections received
during such Interest Period minus the sum of the Debt Service Amount
and the Other Debt Service Amount for such Interest Period 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 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 next Interest Period. In addition, the
parties acknowledge the provisions of Section 2.3(c) of the Security
Agreement with respect to the potential remitting of excess amounts to
the Other Agent before releasing any such amounts to Newark.
(b) On the first Business Day of any Interest Period, or at any
other time upon the request of Newark on any Business Day on which it
is open, the Collateral Agent shall calculate the sum of cash in the
Collateral Account plus the lower of: (i) the face value and (ii) the
market value of the investments credited thereto or carried therein,
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 Business Day on
which it is open) release from the Collateral Account and remit to
Newark, in each case in such manner as may be requested by Newark, an
amount equal to such excess.
(c) Without limiting the obligations of Newark 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
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) and deliver such
funds to (or at the instruction of) the Administrative Agent for
application to the payment of the Debt Service Amount 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 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 Secured Parties under the Loan Documents.
(d) 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 in excess of the Collateral Account Reserve Amount
for the next Interest Period (in each case, with respect to Permitted
Investments credited thereto, 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 payable on such Payment Date, then the Collateral Agent
shall so notify Newark and the Newark Subsidiaries on such day and
Newark and/or the Newark Subsidiaries (jointly and severally) 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
Credit Agreement 28
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 Newark 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 Newark
(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 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 Newark 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 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 Newark or the Newark Subsidiaries 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 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.
(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 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 shall be fully protected in acting or
Credit Agreement 29
refraining from acting upon any document that it believes to be genuine and to
have been signed or presented by or on 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 Newark 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.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Conditions Precedent. The obligation of each Lender to make
its Loan(s) hereunder 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, (b) the Lenders shall be 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 at
the date hereof) 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 be in form and substance satisfactory to the Administrative
Agent:
(i) Executed Agreement. This Agreement, duly executed and
delivered by the parties hereto.
(ii) 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 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.
Credit Agreement 30
(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 Newark and
the Newark Subsidiaries, the Sales Agreements (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)).
(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.
Credit Agreement 31
(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 VCP Trading
N.V.
(F) An opinion, dated the Closing Date, of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel to VCP North
America, Inc.
(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 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
reasonably request in connection with this Agreement and the
other Loan Documents.
Credit Agreement 32
Without limiting the rights or obligations of the Administrative Agent
hereunder, the Administrative Agent shall be 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 obligation of the Lenders to
make the Loans hereunder is 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 exist 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 be 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, in the judgment of the Majority Lenders,
restrain, prevent or impose 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 be 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 Notes in accordance
with the last sentence of Section 2.2, (iii) duly executed Notes evidencing
the Loans and (iv) duly executed Newark Notes 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 payable on the first Payment Date (it being understood that
Newark may request the Administrative Agent to fund such amount from the
proceeds of the prepayment of Products contemplated hereby), and
(f) the Administrative Agent shall have received such other documents
as it may reasonably request 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
Credit Agreement 33
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.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
As of the date hereof, the Closing Date and the Borrowing 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, Newark
and the Newark Subsidiaries) and VCP (with respect to itself, Newark, VCP
Exportadora and the Newark Subsidiaries) represents and warrants to the Agents
and the Lenders that:
Section 7.1 Power and Authority. Each of Newark, each Newark
Subsidiary, VCP Exportadora and VCP: (a) is a corporation 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 Newark Subsidiaries, to borrow the Loans hereunder and, with
respect to Newark and 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 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.
Credit Agreement 34
(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 and VCP 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 action), and do
not contravene: (a) its Organizational Documents, (b) any Applicable Law,
decree, judgment, award, injunction or similar legal 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 and VCP Exportadora 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).
Section 7.4 No Additional Authorization Required. Except for: (i) the
registration with the Central Bank of any export pre-payment arrangements
entered into between Newark and VCP (or any of its Subsidiaries) pursuant to
Section 8.6(b), (ii) any prior approval of the Central Bank for any capital
contribution from VCP Exportadora to Newark pursuant to Section 8.13(a), and
(iii) the filing of a UCC financing statement in the District of Columbia (with
respect to Newark and VCP Trading N.V.) and Delaware (with respect to VCP North
America Inc.) 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 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
Credit Agreement 35
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 Notes) and the Sales Agreements to which it
is a party have been duly executed and delivered by Newark, each Newark
Subsidiary, VCP and/or VCP Exportadora (as applicable) and are, and each Note
and 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, VCP and/or VCP Exportadora (as
applicable), enforceable against Newark, each Newark Subsidiary, 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); 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, no other Debt or other obligations shall benefit from Liens on the
Collateral that shall have priority over the Liens securing the Debt under the
Loan Documents. The Liens created by 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.
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 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.
Credit Agreement 36
(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.
Section 7.9 Commercial Activity; Absence of Immunity. Each of Newark,
each Newark Subsidiary, 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, 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 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% in case of
payments made to a Person that is a resident of or domiciled in a country that
does not tax income or taxes it at a maximum rate of 20%), or such other 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 VCP Trading
N.V. pursuant to the Sales Agreements, (B) fees paid by VCP Trading N.V.
pursuant to Sections 2.3 and 13.3 to the parties mentioned in those Sections,
(C) payments deemed made by VCP Trading N.V. to Newark and VCP Exportadora in
connection with the Guaranties by Newark and VCP Exportadora as provided in
Articles XI and XII, and (D) payments deemed made by VCP Trading N.V. to VCP
North America Inc. and/or by VCP North America Inc. to VCP Trading N.V. in
connection with the joint liability of VCP Trading N.V. and VCP North America
Inc. as provided in Section 3.1, and (iv) Netherlands Antilles profit tax due by
VCP Trading N.V. 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
Credit Agreement 37
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)(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 or (ii) such
document must be registered with the competent Registry of Deeds and Documents
and (b) such document must be translated into Portuguese by a sworn translator.
Subject to the preceding sentence, all formalities required in the British
Virgin Islands, the Netherlands Antilles 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, 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, Newark, each
Newark Subsidiary, VCP Exportadora and/or VCP shall promptly inform the
Administrative Agent thereof. All written information furnished after the date
hereof by (or on behalf of) Newark, either Newark Subsidiary, 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. The Collateral Agent's security interests
described above will be, as of the Closing Date (and, with respect to all
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. All
necessary action (including as described in the last sentence of Section 7.4)
will have been taken as of the Closing Date under the Applicable Laws of Brazil,
Credit Agreement 38
the British Virgin Islands, the Netherlands Antilles 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.
SECTION 7.15 No Defaults. No Default exists.
SECTION 7.16 Solvency. (a) Neither Newark, either Newark Subsidiary,
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, 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, 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.
SECTION 7.18 UCC Matters. Neither Newark or either Newark Subsidiary:
(a) has a place of business in the United States of America; provided that VCP
North America Inc. is organized in and has a place of business in Delaware, (b)
has used any trade names, assumed names or prior corporate names within the last
five years, except that VCP Trading N.V. has used the corporate name Kologo
Investments N.V. until June 28, 2001, (c) has changed its corporate structure or
jurisdiction of organization within the last five years, 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 and the British Virgin
Islands do not require that information
Credit Agreement 39
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, held by Newark or a
Newark Subsidiary or relates to Property located or held by Newark or a Newark
Subsidiary outside Brazil.
ARTICLE VII
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, Newark and each Newark Subsidiary) and VCP (with respect to itself,
Newark, VCP Exportadora 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 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 representatives of any 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, 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 amend, modify or otherwise change any of its Organizational Documents in
any way that would
Credit Agreement 40
adversely affect the Secured Parties without the prior written consent (which
consent shall not be unreasonably withheld or delayed) of the Majority Lenders;
provided that each of VCP and VCP Exportadora may, without such consent, amend
its Organizational Documents to the extent necessary to comply with Law No.
10,303 enacted on October 31, 2001 and so long as such amendment is not
reasonably likely to affect any Secured Party adversely (a copy of any such
amendment to be delivered to the Administrative Agent promptly (and in any event
within 10 Business Days) after its effectiveness).
(e) Each of Newark, each Newark Subsidiary, VCP Exportadora and VCP
shall satisfy customary corporate formalities, including the holding of regular
board of directors' and shareholders' meetings and the maintenance of corporate
offices and records. No bank account of Newark, either Newark Subsidiary, VCP
Exportadora or VCP shall be commingled with any bank account of any other
Person. Neither Newark, either Newark Subsidiary, 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 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, 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 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 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
Credit Agreement 41
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
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
Credit Agreement 42
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, 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, (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,
(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 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); 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
Credit Agreement 43
definition thereof, no other Debt shall benefit from Liens on the
Collateral that shall have priority over the Liens securing the Debt under the
Loan Documents.
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 to create, incur, issue or suffer to exist) any
Debt, except:
(i) with respect to Newark and the Newark Subsidiaries: (A) Debt
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 Newark
Subsidiaries 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 as permitted in clause (b), (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) 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, (E) Debt with non-Affiliates that is
unsecured or is secured by Property that is neither part of the
Collateral nor Capital Stock of Aracruz (or any interests therein,
including dividends payable thereon) and (F) 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
(ii) with respect to VCP Exportadora and VCP (and their
respective Subsidiaries), any additional Debt (with respect to Debt
incurred after the date hereof, 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
and the Newark Subsidiaries is limited to that permitted in clause
(i).
(b) Newark and the Newark Subsidiaries may enter into the Other
Facility at any time and, from time to time, incur Debt thereunder so long as,
as of the date of the issuance of any such Debt (and as of the date of any
amendment, restatement or other modification thereof that increases the Other
Debt Service Amount with respect to any Payment Date 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 or 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 shall be the Payment Dates (with the
exception that the first payment date applicable to any such Debt may be the
second Payment Date after the issuance of such Debt), (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 Newark's other Debt (including the repayment
of the prepayment for the sale of Products contemplated by Section 2.1 or the
repayment of any other Debt under the Other Facility), the making of a payment
for Products previously purchased by Newark or to make an export pre-payment to
VCP or any of its Brazilian Subsidiaries (including VCP Exportadora) for future
Products, (iv) the Agents shall have received from Newark, the Newark
Subsidiaries and the Other Agent confirmation that,
Credit Agreement 44
pursuant to the Security Agreement, Newark and (to the extent the Newark
Subsidiaries are obligors under the Other Facility) the Newark Subsidiaries have
granted the creditors under the Other Facility a security interest in the Sales
Collateral and the Collection Account and that the creditors under the Other
Facility agree to share such security interest (and otherwise manage the
collections on the Receivables) in the manner described in the Security
Agreement, (v) 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.
(c) Before any Debt under the Other Facility may be incurred (it being
understood that the following provisions shall apply with respect to each
issuance of Debt under the Other Facility), 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 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 Bank Percentage (to the extent applicable, as to be
established pursuant to Section 2.3(e) of the Security Agreement in
connection with the issuance 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 Interest Period is
less than 1:1, the amount of additional collections that would be
required during such Interest Period in order to obtain such ratio for
such Interest Period, and
(ii) if any additional collections 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 (including 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 Newark 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 Newark, 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 collections 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
Credit Agreement 45
the time of the incurrence of such new Debt Newark 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 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 Newark if Newark 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 under the Loan Documents and no such
amounts would be payable to the Other Agent for application in
connection with the Other 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, Newark 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.
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 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 created under the Loan Documents,
(d) Liens granted in connection with the Other Facility
(including Liens on the Sales Collateral and the Collection Account in
the manner described herein and in the Security Agreement), and
(e) other Liens granted to secure other Debt as permitted by
Section 8.6(a) or other obligations; provided that: (i) no such Liens
shall cover any of VCP Exportadora's
Credit Agreement 46
or VCP's Products exported outside Brazil (or identified to be so
exported), (ii) with respect to Newark and the Newark Subsidiaries
only, no such Liens shall cover any of the Collateral or any Capital
Stock of Aracruz (or any interests therein, including dividends
payable thereon), and (iii) 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.
Notwithstanding anything herein or elsewhere in the Loan Documents to
the contrary, in no event shall Newark or any of the Newark Subsidiaries permit
there to be any Lien on any of the Collateral other than Permitted Liens of the
type described in clauses (a) and (b) of the definition thereof and Liens
pursuant to the Security Agreement.
SECTION 8.8 Transactions With Affiliates. Neither Newark, either
Newark Subsidiary, VCP Exportadora nor VCP shall (or shall permit any of their
respective Subsidiaries to) directly or indirectly enter into any transaction
with any Affiliate (other than its 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 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
Newark Subsidiaries 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) 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) 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).
SECTION 8.10 Use of Proceeds. The Newark Subsidiaries 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
Credit Agreement 47
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, 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, each of Newark, each
Newark Subsidiary, VCP Exportadora and VCP shall, 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 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 Newark and each Newark Subsidiary intended to be covered by such
Liens is subject to a valid and enforceable first priority Lien in favor of the
Collateral Agent (on behalf of the Secured Parties). Neither Newark nor either
Newark Subsidiary shall transfer all or any portion of the Collateral to any
Person except as expressly permitted or required under the Loan Documents.
SECTION 8.12 Merger, Etc. (a) Except as specifically provided in
Section 13.5(b), neither Newark, either Newark Subsidiary, VCP Exportadora nor
VCP shall 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 or any Newark Subsidiary, VCP owns a majority
of the Voting Stock of the surviving Person and has the power to
direct or cause the direction of the management and policies of
such surviving Person, and (y) with respect to any such
transaction by either Newark Subsidiary, such other Person has no
existing business,
Credit Agreement 48
(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,
(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 otherwise disposition are
promptly (and, in any event, within five Business Days of such transaction)
applied to a prepayment of the Loans; 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 payment to VCP Exportadora
for Products previously purchased or to make an export prepayment to VCP
Exportadora for future Products.
(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
Credit Agreement 49
deliver to the Administrative Agent: (A) a Guaranty (in form and substance
satisfactory to the Majority Lenders) 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 at any time have
insufficient funds to pay for any Products purchased from VCP Exportadora by the
date on which VCP Exportadora is required to receive such payment pursuant to
Brazilian Applicable Law, VCP Exportadora 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 (including, to the extent possible,
by converting such payment obligation into additional capital of Newark). 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 or any other Person that has sold
Products to Newark 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).
(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 Newark and 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 one of its Subsidiaries, including VCP
Exportadora, to) sell to Newark 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 Newark or 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 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
Credit Agreement 50
the Stand-by Exporters, request that one or both Stand-by Exporters promptly
sell Products to Newark from time to time until such time as all of the Loans
and other amounts payable to the Secured Parties under the Loan Documents have
been paid in full.
(f) Newark and 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 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 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,
Newark and VCP. Upon receipt of such notice by Newark, 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 Newark'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.
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 Closing Date, Newark shall deliver to each of the Agents a complete and
accurate translation (made by a sworn translator) of this Agreement, the
Security Agreement, the Subordination Agreement and each
Credit Agreement 51
Export 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).
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) 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 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 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,
(c)(i) any default, early amortization event or similar event
shall occur with respect to any other Debt of any VCP Party (other
than under the Other Facility) 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) any
default, early amortization event or similar event shall occur with
respect to any Debt under the Other Facility 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 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 (iii)) 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
Credit Agreement 52
and franchises) and Sections 4.1(b) through (e) thereof, the default
of any of which shall be covered in clause (iii)), or (iii) 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 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 to comply with any of its obligations under any of the Loan
Documents or Sales
Credit Agreement 53
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 of any obligation
thereunder shall become unlawful, (iii) any Obligor shall so assert in
writing, (iv) the validity or enforceability thereof shall be
contested by any Obligor or by any Governmental Authority or (v) any
Lien provided for in the Loan Documents shall cease to exist or cease
to give the Collateral Agent (on behalf of the Secured Parties) a
first priority perfected security interest,
(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 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 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
Secured Parties) that is sufficient in amount to cover all amounts
thereafter to be paid by Newark 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,
Credit Agreement 54
(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
Other Debt Service Amount for the applicable Interest Period and (ii)
the amount described in clause (a) of the definition of Tested
Collection for such Interest Period relating to Products produced by
VCP) relating to Products produced by VCP or a Stand-by Exporter in
Brazil shall be less than 50% of the Debt Service Amount 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),
(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 forthwith, whereupon the Commitments shall forthwith terminate, or
(2) the principal amount then outstanding of, and the accrued interest on, the
Loans and all other amounts payable by Newark 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) to the payment of
amounts owing 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).
Credit Agreement 55
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):
(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 Secured Party,
(ii) shall not be responsible to the 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.
Credit Agreement 56
(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 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 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 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 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 each
Agent (to the extent not reimbursed under Section 13.3, but without limiting the
obligations of Newark and the
Credit Agreement 57
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 of the
terms hereof or of any such other documents; provided that no Lender shall be
liable to any Agent for any of the foregoing to the extent that it arises from
the gross negligence or willful misconduct of such Agent as determined by a
final, nonappealable judgment by a court of competent jurisdiction. In no event
shall any Lender be liable to either 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 an Agent.
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
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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 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 GUARANTY OF NEWARK AND NEWARK'S GUARANTY
OF THE NEWARK SUBSIDIARIES
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
Newark Subsidiaries under the Loan Documents and (ii) VCP Exportadora hereby
unconditionally Guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the payment obligations of Newark
under the Loan Documents (including its 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.
(b) All payments made by VCP Exportadora or Newark under this Article
shall be payable in the manner required for payments by the Newark Subsidiaries
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 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:
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(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 the Newark Subsidiaries 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 or Newark may have at any time against the Newark
Subsidiaries, 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 Newark Subsidiaries under the Loan Documents.
SECTION 11.3 Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. VCP Exportadora's and Newark's obligations hereunder
shall remain in full force and effect until all of the Newark Subsidiaries'
payment obligations 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 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 Newark
Subsidiaries or any other Person or otherwise, then VCP Exportadora'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 and Newark. Each of VCP
Exportadora 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
Credit Agreement 60
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 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 1006, 1491, 1493,
1494, 1498, 1499, 1500, 1502, 1503 and 1504 of the Brazilian Civil Code, Article
595 of the Brazilian Civil Procedure Code and Articles 261 and 262 of the
Brazilian Commercial Code.
SECTION 11.5 Subrogation. Upon VCP Exportadora's or Newark's making
payment under this Article, it shall be subrogated to the rights of the payee
against Newark or the Newark Subsidiaries, as applicable, with respect to such
obligation; provided that neither VCP Exportadora nor Newark shall enforce any
payment by way of subrogation, indemnity or otherwise, or exercise any other
right, against 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
the Newark Subsidiaries 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 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 and Newark hereunder forthwith 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 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 Newark Subsidiaries 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:
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(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 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 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 any Secured Party exhaust any right, power,
privilege or remedy, or mitigate any damages
Credit Agreement 62
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 1006, 1491, 1493,
1494, 1498, 1499, 1500, 1502, 1503 and 1504 of the Brazilian Civil Code and
Article 595 of the Brazilian Civil Procedure Code and Articles 261 and 262 of
the Brazilian Commercial 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 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 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 forthwith 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 Xxxxxx Xxxxx Junior
(Facsimile No.: (5511) 0000-0000; Telephone No.: (5511) 0000-0000),
(b) if to VCP Trading N.V., to it at Xxxxxxx Xxxxxx 0000, 0x
xxxxx, Xxx Xxxxx - XX, Xxxxxx 01419-908, Attention of Xxxxxx Xxxxx
Junior (Facsimile No.: (5511) 0000-0000; Telephone No.: (5511)
3269-4165),
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(c) if to VCP North America Inc., to it at Xxxxxxx Xxxxxx 0000,
0x xxxxx, Xxx Xxxxx - XX, Xxxxxx 01419-908, Attention of Xxxxxx Xxxxx
Junior (Facsimile No.: (5511) 0000-0000; Telephone No.: (5511)
3269-4165),
(d) if to VCP Exportadora, to it at Xxxxxxx Xxxxxx 0000, 0x
xxxxx, Xxx Xxxxx - XX, Xxxxxx 01419-908, Attention of Xxxxxx Xxxxx
Junior (Facsimile No.: (5511) 0000-0000; Telephone No.: (5511)
3269-4165),
(e) if to VCP, to it at Xxxxxxx Xxxxxx 0000, 0x xxxxx, Xxx Xxxxx
- XX, Xxxxxx 01419-908, Attention of Xxxxxx Xxxxx Junior (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. 1. Whether or not the transactions
contemplated hereby are consummated, the Newark Subsidiaries agree, jointly and
severally, 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, 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,
Credit Agreement 64
supplement or waiver of any of the terms of 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 Newark Subsidiaries hereby agree, jointly and severally, to
indemnify each 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
Newark Subsidiaries 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 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 Newark Subsidiaries 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 Secured Party in respect to any
matter payable or indemnifiable under this Section shall, if not so paid or
reimbursed by the Newark Subsidiaries before the date that is ten Business Days
after the date on which the Newark Subsidiaries 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 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) 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 for the payment of
principal of or interest on any Loan or any fee payable to the Lenders under the
Loan Documents, (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 expressly
otherwise provided in the Loan Documents); it being understood that sharing the
Collateral in the manner described in the Security Agreement does
Credit Agreement 65
not require any such consent of the Lenders except to the extent set forth
therein, (vii) except as provided in Section 13.5(b), release any of VCP
Exportadora, VCP 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 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 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.
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. (a) 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 and clauses (b) through (d) below) neither Newark, either Newark
Subsidiary, VCP Exportadora nor VCP may 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).
(b) Each of Newark and the Newark Subsidiaries may at any time assign
all (but not less than all) of its rights and obligations under the Loans and
under the Loan Documents to another Person so long as: (i) such Person assumes
all of the rights and obligations of Newark and/or the Newark Subsidiaries under
the Loans and under the Loan Documents, which assumption shall be made in a
document in form and substance reasonably satisfactory to the Majority Lenders,
(ii) such Person acquires from Newark and/or the Newark Subsidiaries all of its
rights in, to and under all of its Products and Receivables and all of its
rights and obligations in, to and under all Sales Agreements and contracts with
VCP (or any of its Subsidiaries) for the purchase by Newark of Products
therefrom, (iii) such Person is a single-purpose vehicle that is created solely
for the purpose of incurring the Loans and Debt under the Other Facility (and,
so long as such entities are also single-purpose vehicles related to the sale of
products to customers, for the purpose of the ownership of the Newark
Subsidiaries) and entering into transactions related thereto, (iv) such Person
is either: (A) a direct wholly-owned Subsidiary of VCP Exportadora, in which
event the Guaranty by VCP Exportadora under Article XI shall continue (or, in
form and substance reasonably satisfactory to the Majority Lenders, be replaced
by a Guaranty of VCP Exportadora) with respect to such Person's obligations
under the Loans and under the Loan
Credit Agreement 66
Documents, (B) a direct wholly-owned Subsidiary of VCP, in which event the
Guaranty by VCP Exportadora under Article XI, and its other obligations
hereunder, shall terminate and the Guaranty by VCP under Article XII shall
convert to (or, in form and substance reasonably satisfactory to the Majority
Lenders, be replaced by) a Guaranty of the obligations of such Person under the
Loans and the Loan Documents, or (C) an indirect wholly-owned Subsidiary of VCP
(in which event there shall be a chain of Guaranties from VCP and each
intermediary Person in form and substance satisfactory to the Majority Lenders),
(v) each Stand-by Exporter shall have agreed to the assignment by Newark to such
new Person of Newark's rights and obligations in, to and under the applicable
Export Agreement, (vi) all necessary Governmental Approvals shall have been
obtained and be in full force and effect, (vii) the Agents shall have received
all other documents (and evidence of the occurrence of all other events) as the
Agents consider necessary in connection with such assignment and assumption and
(viii) the Agents shall have received, in form and substance satisfactory to
them and the Majority Lenders, opinions of counsel with respect to each of the
matters addressed above and such other matters as the Agents or the Majority
Lenders consider relevant.
(c) Without prejudice to the Obligors' rights under clause (a), the
Newark Subsidiaries may at any time assign their rights and obligations as a
borrower hereunder to Newark, and Newark may at any time assign its rights and
obligations as a guarantor hereunder to the Newark Subsidiaries (jointly and
severally), in each case so long as: (i) such assignee Person assumes all of the
rights and obligations of such assignor Person under the Loans and under the
Loan Documents, which assumption shall be made in a document in form and
substance reasonably satisfactory to the Majority Lenders, (ii) all necessary
Governmental Approvals shall have been obtained and be in full force and effect,
(iii) the Agents shall have received all other documents (and evidence of the
occurrence of all other events) as the Agents consider necessary in connection
with such assignment and assumption and (iv) the Agents shall have received, in
form and substance satisfactory to them and the Majority Lenders, opinions of
counsel with respect to each of the matters addressed above and such other
matters as the Agents or the Majority Lenders consider relevant.
(d) In connection with any such assignment and assumption under clause
(b) or (c), the Administrative Agent shall cause this Agreement, the Security
Agreement and the other Loan Documents to be amended and restated to the extent
applicable to reflect such assignment and assumption, a copy of each of which
amended and restated Loan Documents shall be delivered by the Administrative
Agent to VCP, VCP Exportadora (if applicable), each Newark Subsidiary, each
Lender and the new borrower hereunder promptly after being available (and, in
any event, no later than 15 Business Days after such assignment and assumption).
Promptly after its receipt thereof, each party to such amended and restated Loan
Documents shall deliver to the Administrative Agent an original executed copy of
its signature page(s) thereon (it being understood that the failure of any such
party to do so shall not affect the effectiveness of such amended and restated
Loan Documents) and such new borrower shall promptly (and, in any event, within
five Business Days of such assignment and assumption) deliver to the
Administrative Agent new Notes for each Lender hereunder, each duly executed by
the new borrower and all guarantors thereof.
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 Secured Parties and their permitted
Credit Agreement 67
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 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 Newark, the Newark Subsidiaries 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
Newark has consented to such assignment.
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 Newark.
Notwithstanding anything to the contrary contained herein, the Newark
Subsidiaries 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 Newark
Subsidiaries 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
Newark. Notwithstanding the foregoing, no such assignment shall be allowed if
the assignor thereof (if it is assigning less than all of its Loan
Credit Agreement 68
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 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
Credit Agreement 69
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 Newark Subsidiaries
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;
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 Newark Subsidiaries 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 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
Credit Agreement 70
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 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 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. ss.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
Credit Agreement 71
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 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
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
Credit Agreement 72
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.
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 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 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 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
Credit Agreement 73
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 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 Secured Party, or any 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
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 Secured Party) received any such
amounts upon demand its pro rata share of any amount so recovered from or repaid
by such Agent.
SECTION 13.22 No Petition Covenant. Notwithstanding any prior
termination of this Agreement, none of the 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 obligations under the Loan Documents
(other than the Export Agreements) and the Other Facility shall have been paid
in full, 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
Credit Agreement 74
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 Secured Parties may do so if the Other Agent has done so.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Credit Agreement 75
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/ Xxxx Calfat
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
VCP EXPORTADORA E PARTICIPACOES S.A.
By: /s/ Xxxx Calfat
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
VOTORANTIM CELULOSE E PAPEL S.A.
By: /s/ Xxxx Calfat
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
Witnesses: 1.___________________________________
2.___________________________________
(the above witnesses having witnessed the signature hereon by each of the
signatories above).
Credit Agreement 76
VCP TRADING N.V.
By: /s/ Xxxx Calfat
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
VCP NORTH AMERICA INC.
By: /s/ Xxxx Calfat
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
Witnesses: 1.___________________________________
2.___________________________________
(the above witnesses having witnessed the signature hereon by each of the
signatories above).
Credit Agreement 77
LENDERS
ABN AMRO BANK N.V.
By: /s/ Xxxxxx Xxxx
---------------------------------------------
Name: Xxxxxx Xxxx
------------------------------------------
Title:
----------------------------------------
By: /s/ Xxxx Xxxxx X.X. Xxxx
---------------------------------------------
Name: Xxxx Xxxxx F.S. Rito
------------------------------------------
Title: Global Trade & Advisory Senior
Vice President
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 78
BRAZILIAN AMERICAN MERCHANT BANK
By: /s/ Salvador Siqucara
---------------------------------------------
Name: Salvador Siqucara
------------------------------------------
Title: Managing Director
----------------------------------------
By:
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
Credit Agreement 00
XXXXX XXXXXXXX XXXXX XX,
XXXXXX BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
------------------------------------------
Title: Vice President
----------------------------------------
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------------
Title: Vice President
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 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.
___________________________
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: _______
Credit Agreement 80
BIE - BANK & TRUST, LIMITED
By: /s/ Xxxxx Vignoto
---------------------------------------------
Name: Xxxxx Vignoto
------------------------------------------
Title: Director
----------------------------------------
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------------
Title: Director
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 BIE - BANK & TRUST, LIMITED, 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 81
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
------------------------------------------
Title: Vice President
----------------------------------------
By:
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 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.
___________________________
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: _______
Credit Agreement 82
BNP PARIBAS NEW YORK
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------------------------
Title: Director
----------------------------------------
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------------
Title: Director
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 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.
___________________________
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: _______
Credit Agreement 83
COMERICA BANK
By: /s/ Xxxxxxx Scripture
---------------------------------------------
Name: Xxxxxxx Scripture
------------------------------------------
Title: First Vice President
----------------------------------------
By:
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 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.
___________________________
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: _______
Credit Agreement 84
CREDIT AGRICOLE INDOSUEZ
By: /s/ Florence Gayhard
---------------------------------------------
Name: Glorence Gayhard
------------------------------------------
Title: Director Latin America Export and
International Finance Dpt
----------------------------------------
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
------------------------------------------
Title: Manager Latin America Export and
International Finance Dpt
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 CREDIT AGRICOLE INDOSUEZ, 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 85
ING BANK N.V., CURACAO BRANCH
By: /s/ Antonio Xxxxxx De Biast
---------------------------------------------
Name: Antonio Xxxxxx De Biast
------------------------------------------
Title: Attorney-in-fact
----------------------------------------
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
------------------------------------------
Title: Attorney-in-fact
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 ING BANK N.V., CURACAO 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 86
BANCO LLOYDS TSB S/A - CAYMAN
ISLAND BRANCH
By: /s/ Xxxxxx Xxxxxxx Xx Xxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx Xx Xxxxx
------------------------------------------
Title: Senior Manager
----------------------------------------
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxxx
------------------------------------------
Title: Manager
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 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 _________.
My Commission expires: _______
Credit Agreement 87
BANCO SAFRA S.A.-CAYMAN ISLAND
BRANCH
By: /s/ Dionvese Feebles
---------------------------------------------
Name: Dionvese Feebles
------------------------------------------
Title: Attorney-in-fact
----------------------------------------
By: /s/ Xxxxxxx X. xx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. xx Xxxxxxx
------------------------------------------
Title: Attorney-in-fact
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 BANCO SAFRA 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 _________.
My Commission expires: _______
Credit Agreement 88
STANDARD CHARTERED BANK, NEW
YORK
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------------------
Title: Senior Vice President
----------------------------------------
By: /s/ Cameron Letters
---------------------------------------------
Name: Cameron Letters
------------------------------------------
Title: Senior Vice President
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 89
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ X.X. Xxxxxxx
---------------------------------------------
Name: X.X. Xxxxxxx
------------------------------------------
Title: SVP/Director
----------------------------------------
By:
---------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 WACHOVIA BANK, NATIONAL ASSOCIATION, 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 90
AGENTS
ABN AMRO BANK, N.V.
as the Administrative Agent
By: /s/ Xxxxx Xxxxxx xx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx xx Xxxxxxx
------------------------------------------
Title:
----------------------------------------
By: /s/ Xxxx Xxxxx X.X. Xxxx
---------------------------------------------
Name: Xxxx Xxxxx F.S. Rito
------------------------------------------
Title:
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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 Xxxxxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
------------------------------------------
Title: Assistant Vice President
----------------------------------------
STATE OF ___________________________)
)
COUNTY OF )
On this ____of May, 2002, 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.
___________________________
NOTARY PUBLIC in and for
The State of _________.
My Commission expires: _______
Credit Agreement 92
ANNEX I
to Credit Agreement
LENDERS AND COMMITMENTS
LENDERS COMMITMENT
ABN AMRO Bank N.V. $98,500,000
Brazilian 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 Island Branch 5,000,000
Standard Chartered Bank, New York 10,000,000
Wachovia Bank, National Association 35,000,000
Total $380,000,000
Credit Agreement Annex I-1
SCHEDULE I
to Credit Agreement
INITIAL ELIGIBLE BUYERS
NAME COUNTRY
---- -------
M-Real Sittingbourne Ltd.(Former UK Paper) United Kingdom
Papierfabrik Scheufelen GmbH Germany
Xxxxxxxx Xxxxxxx France
Xxxxxxxx Dalle France
Fedrigoni Cartiere S.p.A. Italy
Xxxxxxx Kehl Gmbh Germany
Xxxxxxxx Xxxxx Corp. USA
Marubeni Corporation Japan
Itochu Corporation Japan
Amicell Inc USA
Cellmark AB Sweden
Xxxxxxxxxxx Xxxxxx-Maine USA
TST Impresso INC USA
Xxxx Xxxxxxx Paper & Board Inc. USA
Diamond Paper Corporation USA
X. XxXxxxxxxx Paper Group Ltd England
Antalis S.N.C. France
Allcart S.R.L. Italy
IMPECO, S.L. Spain
Trent Paper England
Roxcel Handelsges M.B.H. Austria
Norse Paper A.S. Norway
Premier Paper Group LTD England
MoDoVan Gelder Netherlands
Credit Agreement Schedule I-1
EXHIBIT A-1
to Credit Agreement
FORM OF NOTE
U.S.$_________________ Dated: May [__], 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, each of VCP TRADING N.V., a corporation duly
organized and validly existing under the laws of the Netherlands Antilles and
VCP NORTH AMERICA INC., a corporation duly organized and validly existing under
the laws of the State of Delaware (collectively, the "Borrowers"), hereby
unconditionally jointly and severally promises to pay to the order of
[__________________] (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 [_______________] 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 each of the Borrowers, 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 each of
the Borrowers 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 ___, 2002 (as from time to
time amended, the "Credit Agreement"), among the Borrowers, VCP Exportadora e
Participacoes S.A., 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.
Each Borrower hereby waives diligence, presentment, demand of payment,
protest or notice in connection with this Note.
Credit Agreement Exhibit A-1
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.
Each 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. Each 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, each Borrower jointly and severally agrees to pay
such additional sums for expenses and attorney fees as the court may adjudge
reasonable.
Credit Agreement Exhibit A-2
VCP TRADING N.V.
By: ______________________________
Name:
Title:
VCP NORTH AMERICA INC.
By: ______________________________
Name:
Title:
NEWARK FINANCIAL INC., as guarantor of the
Newark Subsidiary obligations hereunder
By: ______________________________
Name:
Title:
ACKNOWLEDGED BY: VCP EXPORTADORA E PARTICIPACOES S.A.,
as guarantor of the Newark Subsidiary
obligations hereunder
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
Witnesses: 1._________________
2._________________
Credit Agreement Exhibit X-0
XXXXXXX X-0
to Credit Agreement
FORM OF NEWARK NOTE
U.S.$_________________ Dated: May [__], 0000
Xxx Xxxx, Xxx Xxxx
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./VCP North America Inc.] (the "Newark Subsidiary") the principal sum of
______________ Dollars 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 one of the Newark Notes referred to in the Credit
Agreement dated as of May ___, 2002 (as from time to time amended, the "Credit
Agreement"), among Newark, VCP Exportadora e Participacoes S.A., Votorantim
Celulose e Papel S.A., the Newark Subsidiary, [VCP Trading N.V./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.
Credit Agreement Exhibit A-1
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: ___________________________
Name:
Title:
Credit Agreement Exhibit A-2
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 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 S.A., Votorantim Celulose e Papel S.A. ("VCP"), VCP Trading N.V.,
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) 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 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) 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),
(iv) the processing fee referred to in Section 2(b) shall have
been paid to the Administrative Agent, and
Credit Agreement Exhibit B-2
(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 Newark 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 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,
Credit Agreement Exhibit B-3
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 Newark'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 Newark 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 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
Credit Agreement Exhibit B-4
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 Credit Agreement, dated as of May 23, 2002 (as amended
or otherwise modified from time to time, the "Credit Agreement"), among Newark
Financial Inc., VCP Exportadora e Particiapacoes S.A., 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 Schedule I-1
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: Newark Financial Inc.
Credit Agreement Schedule I-2
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 S.A., Votorantim Celulose e
Papel S.A., VCP Trading N.V., 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:
Each of 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
$____________, to be made $__________ to VCP Trading N.V. and
$_________ to VCP North America Inc..
(b) The proposed Borrowing Date is May __, 2002.
The Newark Subsidiaries hereby request that the proceeds of the
proposed borrowing be applied to make a prepayment for Products to Newark, to be
evidenced by a Newark Note. To the extent not already delivered to you, attached
hereto is an original signed Note for each of the Lenders.
Each Newark Subsidiary 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 payable on the first Payment Date.
Credit Agreement Exhibit C-1
VCP TRADING N.V.
By:_____________________________________
Name:_______________________________
Title:______________________________
VCP NORTH AMERICA INC.
By:_____________________________________
Name:_______________________________
Title:______________________________
Credit Agreement Exhibit C-2
