Advance DERIVATIVE AGREEMENT – SWAP No. 08L13594
EXHIBIT 2.13
|
Advance DERIVATIVE AGREEMENT –
SWAP
No.
08L13594
|
I
– PARTIES
|
UNIBANCO – UNIÃO DE BANCOS
BRASILEIROS S.A., headquartered in the City of São Paulo, State of
São Paulo, at Avenida Xxxxxxx Xxxxxx, 89I, corporate taxpayer register
CNPJ/MF No. 33.700.394/000I-40, represented according to its Bylaws,
hereinafter simply referred to as UNIBANCO
|
|
NAME: XXX
CELULAR SA
|
CNPJ/CPF:
04.206.050/0001-80
|
|
ADDRESS: XXX
XXXXXXXX XXXXXXX, 0000
|
|
|
XXXX: SÃO
PAULO
|
STATE:
SP
|
|
INVESTMENT
ACCOUNT RESTRICTED TO CURRENT ACCOUNT No. BRANCH
|
|
|
Hereinafter
simply referred to as CONTRACTING PARTY,
hereby represented according to its Bylaws/Articles of
Incorporation.
|
|
II – CONDITIONS OF THE
TRANSACTION
|
1. Base Value
of Transaction:
|
R$
141,158,446.78 (one hundred and forty-one million, one hundred and
fifty-one thousand, four hundred and forty-six reais and seventy-eight
cents)
|
|
2. Parameter
of UNIBANCO:
|
100.00% OF
CDI (Interbank Deposit Certificate) – Cetip (Clearing Chamber) + 4.3000
p.a. exponential
|
|
3. Parameter
of CONTRACTING PARTY:
|
US Dollar +
3.500 p.a Linear
|
|
4. Exchange
Rate (when applicable)
a) initial
R$/Currency:
b) for
liquidation:
|
R$
2.3956
SISBACEN
(Central Bank Information System) – Ptax 800, option 5, sale quotation of
the business day immediately prior to the start date of the
transaction.
|
|
5. Period of
Transaction:
|
181 running
days
|
|
6. Due
Date:
|
06/29/2009
|
|
7.
Calculation Agent: UNIBANCO
|
|
The Parties
indicated and identified above resolve to enter into this DERIVATIVE AGREEMENT –
SWAP, hereinafter simply referred to as Contract, which will be governed by the
following clauses and conditions:
PURPOSE
1. By force of this
Contract, UNIBANCO and CONTRACTING PARTY reciprocally undertake to pay the sums
determined based on the respective Parameters and verified according to the
criteria established in this Contract, with the effect of the change of risk of
oscillations of these Parameters.
i) UNIBANCO, in
compliance with the terms of Clause 2, below, undertakes to pay to CONTRACTING
PARTY, on the Due Date (stipulated in item 6 of Chart II) the result verified
according to Clause 1.1, calculated based on the Parameter of the CONTRACTING
PARTY; and
ii) the CONTRACTING
PARTY, in compliance with the terms of Clause 2 below undertakes to pay to
UNIBANCO, on the Due Date, the result verified in clause 1.1., calculated based
on the Parameter of UNIBANCO.
1.1. The value of
the obligations of CONTRACTING PARTY and of UNIBANCO, resulting from this
Contract, will be calculated, separately, by the Calculation Agent, using the
Book of Formulas – SPR – SWAP Contracts of CETIP – Clearance and Custody
Chamber, in force on this date, available on the site of CETIP (xxx.xxxxx.xxx.xx).
In the absence of a formula applicable to the Parameter used in this Contract,
the value of the obligation will be calculated according to the average value
verified with three first class financial institutions.
1.2 The Parties
agree that the rates, indices or prices disclosed by the Central Bank of Brazil,
by CETIP, by the Commodities and Futures Exchange – BM&F or by another
source of public disclosure, will be used by the Calculation Agent for purposes
of determination of the financial results of this Contract, except in the event
contemplated in Clause 1.3 below.
1.3. If the rate,
index or price to be used in the verification of the final net value due by one
Party to the other, in the terms of this Contract, is not available in the
official bodies or body responsible for their issue or determination, the
Parties hereby irrevocably agree that the Calculation Agent shall adopt the
rate, indices or price, which officially substitutes the previous rate, index or
price and, in the event of non-disclosure, will perform the calculations
necessary for determination thereof for the assessment of the final
value due by one Party to the other, always acting in good faith and within the
most ethical limits of the market.
1.4. The Parties
hereby recognize as established and agreed, including for collection purposes by
execution, the obligations verified by the Calculation Agent, according to this
Contract.
LIQUIDATION
BY DIFFERENCE
2. The Parties stipulate that,
once they become due, their obligations, resulting from this Contract shall be
liquidated solely by their difference, as contemplated in Article 816 of the
Civil Code, so that: i) if the obligations of CONTRACTING PARTY are in value
superior to the obligations of UNIBANCO, the former shall pay to UNIBANCO the
surplus difference; (ii) if the obligations of UNIBANCO are in value superior to
the obligations of CONTRACTING PARTY, the former shall pay to CONTRACTING PARTY
the surplus difference; or (iii) if the obligations of CONTRACTING PARTY are in
a value equal to the obligations of UNIBANCO, no payment shall be
made.
EARLY
INVOLUNTARY LIQUIDATION
3. Any of the
Parties may require early liquidation of this Contract, in the event of the
noncompliance, by the other Party, with any obligation contemplated in this
Contract. In this case, the early liquidation shall occur in 5 (five) business
days counted from the date of receipt, by the Party that did not comply with the
obligation, of the notification issued to this effect by the Party, who decrees
the early liquidation.
3.1. Without
prejudice to the provisions in the heading of this Clause, UNIBANCO may require
early liquidation of this Contract if: (i) the CONTRACTING PARTY incurs in
arrears with respect to any payment due by it to UNIBANCO by force of any
derivative transaction contracted between them; ii) there is legitimate protest
of a financial instrument against CONTRACTING PARTY in a value, individual or
aggregate, equal or superior to R$ 15,000,000.00 (fifteen million reais); iii)
CONTRACTING PARTY files for bankruptcy, or has its bankruptcy or civil
insolvency required or decreed; if) there is merger, split, incorporation,
incorporation of shares, of or by the CONTRACTING PARTY, except among companies
of the same economic group as CONTRACTING PARTY, or any other corporate
restructuring procedure, or, dissolution of CONTRACTING PARTY, without previous
and express consent by UNIBANCO, provided that, at the discretion of UNIBANCO,
such corporate restructuring jeopardizes compliance with the obligations
resulting here from. In this case, the early liquidation shall occur on the date
indicated by UNIBANCO.
3.2. Without
prejudice to the provisions in the heading of this Clause, CONTRACTING PARTY may
demand the early liquidation of the Contract, if there is liquidation or
extrajudicial intervention by UNIBANCO.
2
3.3. The
obligations of the Parties, resulting from this Contract shall, further, be
liquidated early if: i) by supervention of the legal or regulatory rules, any of
the Parameters is extinguished; ii) the current operating conditions of the
Financial Institutions are altered, so that the transaction contemplated in this
Contract is prohibited or has its conditions modified so as to make the
transaction unfeasible; or iii) any taxes or contributions, which have a
significant impact on this transaction, are created, altered or increase. In
this case, the early liquidation shall occur on the day on which are published
said legal or regulatory measures.
3.3.1. If, due to
any alteration in the legislation or norms, there is an increase in the taxes
and contributions accruing on this transaction, or any new tax or contribution
accrues thereon, the Parties shall contact each other, by recorded telephone
call, to discuss who shall bear with the respective additional costs. If the
Parties do not reach an agreement within 3 (three) business days from the
beginning of said discussions, any of Parties may liquidate early this
transaction, in compliance with the form of calculation set forth in Clause 3.5
below.
3.4. In the event
of early liquidation of this Contract, UNIBANCO may compensate its eventual
credits resulting from this Contract, with the adjustment of any derivatives
transaction (including options), which has been executed with CONTRACTING PARTY
and is due or enforceable. In this case, the value of each transaction will be
determined according to the respective contract or, in the absence of criteria
of verification of this value, according to market practices.
3.5. In the event
of early liquidation of this Contract, the obligations of UNIBANCO and of
CONTRACTING PARTY, resulting from this Contract, shall be calculated separately,
by the Calculation Agent, according to the cost of reinstatement of this
derivative transaction for the remaining period, on the date of liquidation,
based on market standards and practices, in compliance with the following
criteria:
i) the Calculation
Agent shall verify the values due, projecting the future value of each
obligation, based on the Parameter applicable, and bringing this future value to
present value based on a Reversal Rate.
ii) the Reversal
Rate, expressed on annual basis, shall be equivalent to the rate in force in the
domestic market, at the time of early liquidation, for derivative transactions
equivalent to the Transaction, for its remaining period.
3.6. In any of the
events contemplated in Clause 3, the liquidation of the obligations of the
Parties, resulting from this Contract, shall occur always and exclusively by the
difference, according to Clause 2 above.
EARLY
VOLUNTARY LIQUIDATION
4. The Parties, by
common agreement and at any time, even prior to the Due Date, may decide for the
partial or total liquidation of this Contract; for such, both the obligations of
UNIBANCO and of CONTRACTING PARTY shall be calculated in the same manner as
mentioned in Clause 3.5 above, except with regard to the Reversal Rate and the
base value, which, if necessary, shall be established by the Parties, by common
agreement, on the date of early liquidation.
4.1. In any of the
events contemplated in this Clause, the liquidation of the obligations of the
Parties, resulting from this Contract, shall occur always and exclusively by the
difference, according to Clause 2, above.
3
FORM
OF PAYMENT
5. The values
eventually due by UNIBANCO to CONTRACTING PARTY by force of this Contract, shall
be paid by: i) credit in the investment account restricted to the current
account of CONTRACTING PARTY, described in the preamble; or ii) XXX (Electronic
Transfer of Funds) to the Investment Account maintained by CONTRACTING PARTY
with another financial institution according to the payment instructions
informed by CONTRACTING PARTY.
5.1. The values
eventually due by UNIBANCO to CONTRACTING PARTY by force of this Contract shall
be paid by: i) debit into current account or investment account restricted to
the current account of CONTRACTING PARTY, described in the preamble; or ii) in
the case of insufficiency of funds in said accounts, by XXX, forwarded by
CONTRACTING PARTY, according to the payment instructions informed by
UNIBANCO.
5.2. The quittance
of the obligations of CONTRACTING PARTY, as contemplated in this Clause, will be
subject, depending on the case: i) to effective entry or clearance of the
financial resources transmitted by XXX; or ii) to the effective availability of
limit for withdrawals in the accounts where the respective debits are
processed.
5.3. The financial
liquidation of this Contract will occur on the Due Date or, in the event of
early liquidation, as indicated in Clause 3, or agreed by the parties, in the
event of Clause 4.
INTEREST
AND ARREARS CHARGES
6. If any of the
Parties incurs in arrears with regard to the payment of any obligation assumed
in this Contract, on the amount in arrears, from the due date to the date of
effective payment, there shall accrue: I) the average rate practiced by the
financial market (CDI – EXTRAGROUP disclosed by CETIP), at the time of default;
ii) arrears interest at the rate of 1% (one percent) per month. On the
outstanding balance, accreted of the arrears charges stipulated above, a
non-indemnity fine of 2% (two percent) shall accrue.
6.1. It shall
further be due by the Party in arrears the reimbursement of all the expenses
incurred with the collection of any credit of the other Party, resulting from
this Contract, as well as lawyers’ fees set by the Courts.
DEBIT
IN CURRENT OR INVESTMENT ACCOUNT
7. UNIBANCO is,
hereby, irrevocably and irreversibly authorized to debit, from the current or
investment account restricted to the current account held by CONTRACTING PARTY,
indicated in the Preamble, the total or partial amount of any obligations due by
it by force of this Contract, at any title.
7.1. The quittance
of any of the obligations of CONTRACTING PARTY, resulting from this Contract, is
subject to the existence of balance in the current or investment account in
which the debit is processed in a value sufficient for its full or partial
liquidation.
IMPUTATION
OF PAYMENTS
8. Any guarantees
paid by force of this Contract shall be imputed, first, in the payment of
interest and arrears charges, fines and expenses with collection, if any, and,
subsequently, the balance outstanding, in the liquidation of the value of
principal of the obligations due.
4
GENERAL
PROVISIONS
9. On the date of
liquidation of the obligations resulting from this Contract, the Calculation
Agent shall send to CONTRACTING PARTY the “Statement of Settlement of
Transaction”, which will be issued according to the models set forth in
Attachment I hereof, as applicable, and which will describe the liquidation of
this transaction as well as determine the payments, which shall be effected by
force thereof.
9.1 Failure to
receive the Statement of Settlement of Transaction, contemplated in the heading
of this Clause 9 or its untimely receipt shall not release the parties from
their obligation to pay the sums due, in the periods and conditions agreed in
this Contract. The parties shall request, to the Due Date or to the date of
early settlement, by telephone, to the Calculation Agent, the value to be paid
or received, in the event of failure to receive or untimely receipt of the
Statement of Settlement of Transaction.
9.2. The
CONTRACTING PARTY may request clarifications on the sums paid or received under
this Contract within 3 (three) days of receipt of the Statement of Settlement of
Transaction.
10. The CONTRACTING
PARTY declares that it is aware that all its telephone contacts with UNIBANCO,
pertaining to this Contract, may be recorded and that said recording, if it
occurs, shall constitute sufficient evidence of notification, for purposes of
Clause 9.1. above, as well as of any existing agreement by the parties in
relation to this Contract, including with relation to determination of the
Reversal Rate.
11. None of the
Parties may dispose of, assign, transfer or encumber, in any way, its rights or
obligations resulting from this Contract, without previous consent, in writing,
by the other Party.
12. The transaction
resulting from this Contract will be recorded and settled according to the
Regulation of the Financial Risks Protection System – SPR, administered with
CETIP.
13. The Calculation
Agent will be responsible for: (a) calculation of the indices and floating or
fixed rates; (b) by the calculation of the monetary value of a currency in
relation to another currency; (c) by selection of the bodies or agents
responsible for disclosure of the rate, index or price, when those indicated in
this Contract are not disclosed; and (d) by the performance of any other
function, which has been specified in this Contract as being the responsibility
of the Calculation Agent. Whenever the Calculation Agent is requested to act or
to exercise judgment in any other way, it will do so in good faith.
14. Without
prejudice to the provisions of Clause 10 above, all the alterations to this
Contract shall be made by contractual addendum as written.
15. The Parties
hereby recognize that XXX, its directors, administrators, employees and eventual
subcontractors, are subject to observance and compliance with the “Ethics Code”
of XXX, which proscribes that all the business of XXX, including this Contract,
be based on respect: (i) for the environment, including regarding disposal of
batteries, issuance of pollutants, recycling of waste (ii) for the safety and
health rules in the workplace, (iii) for honesty and transparency to its
partners, suppliers, contractors, the market and governmental bodies; (iv) the
interests of the company and the Parties, above the individual interests of its
employees, representatives and service providers, who may not obtain for
themselves or for another, information, opportunities, business, advantages,
gifts or benefits, using TIM’s name and reputation or as a result of the
performance of their activities. TIM’s Ethics Code is filed at the headquarters
of XXX and in all of its establishments, available for public
consultation.
5
ARBITRATION
16. Any disputes or
controversies, which may arise among the parties, resulting from or related to
the interpretation or performance of this Contract, shall be finally submitted
to arbitration, pursuant to the terms of Law 9.307, of September 23, 1996, which
shall be conducted according to the Arbitration Regulation of the Brazil-Canada
Chamber of Commerce, in force on this date, available, in other ways, on the
website xxx.xxxx.xxx.xx,
which the Parties declare to be fully aware of in the act of execution of this
Contract (the “Arbitration Regulation”), and according to the provisions of the
Arbitration Convention according to Clause 17, below.
ARBITRATION
CONVENTION – COMMITMENT CLAUSE
17. When brought as
a result of the provisions in Clause 16 above, the arbitration among the parties
to this Contract, shall be governed by the following provisions, as well as by
those set forth in the Arbitration Regulation.
17.1. The
arbitration will have its headquarters in the city of São Paulo – SP, in the
Arbitration Center of the Brazil-Canada Chamber of Commerce
(“Center”).
17.2. The
arbitration proceedings shall occur in Portuguese, the registration of the acts
being performed by any means available for this, including shorthand,
audiovisual and electronic. Said means shall enable the storage and subsequent
consultation by the Parties of data, maintaining the integrity, authorship and
authenticity of the information stored intact, at any time.
17.3. Pursuant to
the terms of the Arbitration Regulation, the Parties shall deposit in the
Center, on the date of institution of the Arbitration, 20% (twenty percent) of
the value of the fees estimated of the arbiters and all the expenses to be
incurred with the bringing of arbitration proceedings, so that each Party bear
with equal parts of the totality of the costs involved in the
arbitration.
17.3.1. If any of
the Parties fails to make the deposit of the values as mentioned in Clause 17.3,
above, the other Party will be authorized to make the missing
deposit.
17.3.2 The Party
who fails to make the deposit as mentioned in Clause 17.3.1 above shall, in
addition to the payment of the values mentioned in Clause 17.3 above, pay to the
other Party, as a fine, the value equivalent to 20% (twenty percent) of the
amount resulting from the sum of the value of the fees estimated of the arbiters
and of all expenses to be incurred with the bringing of the arbitration
proceedings.
17.4 The
Arbitration Court (“Arbitration Court”) shall consist of three arbiters,
indicated as follows.
17.5 Each of the
Parties will indicate an arbiter and his respective deputies, duly identifying
them on the occasion of execution of the Arbitration Term.
17.6. If any of the
Parties fails to appoint an arbiter, by omission or default, even though it has
submitted to arbitration, the arbiter of such Party will be appointed by the
Arbitration Center of the Brazil-Canada Chamber of Commerce.
17.7. Pursuant to
the terms of the Arbitration Regulation, it is agreed that the third arbiter,
who will be the Chairman of the Arbitration Court, will be elected by the
arbiters appointed by the Parties, as determined in the items
above.
17.8. The
Arbitration Court will be authorized, pursuant to the terms of Article 11, IV of
the Arbitration Law, to apply, with respect to the merits of the question
submitted to the Arbitration Court, the following rules, by order: (i) rules
resulting from the uses and customs of the national and international financial
market; (ii) Brazilian law, especially norms directed at the Brazilian financial
institutions; (iii) general principles of the Law; and (iv) those issued from
international treaties and conventions. The arbiters are not authorized to
decide by equity.
6
17.8.1. The
normative systems mentioned above shall be applied in the order stipulated
above, whereas a previous system may only be pretermitted by the following
system of the listing, if the rules of that system, in the grounded opinion of
the arbiters, are insufficient to decide on the purpose of the
arbitration.
17.9. The
Arbitration Court shall expressly prohibit all decisions of an injunctive or
provisional nature, in the arbitration proceedings.
17.10. The
arbitration sentence will be rendered in the City of São Paulo, in writing,
justifying the foundations of the decision and analyzing the matters of fact and
of law, at the headquarters of the Center, within 120 days counted from the date
of the institution of the arbitration proceeding, corresponding to the date of
receipt by the Center of the notification by the Initiating Party of the
arbitration proceedings, pursuant to the terms of the Regulation.
17.11. The
arbitration sentence rendered will be final and unappealable, generating all the
effects of a judicial sentence, including formal and material res
judicata.
17.12. The Parties
agree to comply with the arbitration sentence faithfully and timely, waiving,
hereby, irrevocably and irreversibly, the presentation of any appeal in any
instance or Court.
17.13. Pursuant to
the terms of Article 31 of the Arbitration Law, any of the Parties may request
in Court the execution of the arbitration sentence, with the objective of
compelling the other Party to the corresponding compliance, exclusively in the
venue of the Judiciary District of the City of São Paulo.
17.14. The
arbitration sentence will establish that the defeated party shall reimburse the
other party for all and any expenses incurred, including those in connection
with the fees of the arbiters and lawyers, established by the Arbitration Court,
according to the relevant tables of fees, including in the reimbursement, the
amounts advanced pursuant to the terms of Clause 17.3 above.
17.15. The lawyers
of the Parties, when constituted pursuant to the terms of the Arbitration
Regulation, shall receive a copy of all the communications, notifications,
correspondence, notices and other information on the acts and determinations of
the Arbitration Court sent to the Parties, it being allowed sending of
information by email, fax or regular post at the choice of the
sender.
17.16. Pursuant to
the terms of the Arbitration Regulation, the arbitration proceeding, is strictly
confidential. It is prohibited to the members of the Center, to the arbiters and
to the Parties themselves, as well as any others eventually involved, to
disclose any information related to it, to which they have had access as a
result of the job or participation in said procedure, except by express
authorization by the Parties.
17.17. The Parties
elect the forum of the Judiciary District of São Paulo, State of São Paulo, to
settle any claims arising out of this Contract, with waiver of any other,
however privileged, provided that the use of the Judiciary respects the limits
established in the Arbitration Law, or its purpose is the requirement of urgent
legal measures.
7
17.18. The Parties
shall observe and comply with the rules, terms and procedures for compliance
with the arbitration procedure, as determined by the Arbitration
Regulation.
ACCEPTANCE OF THE COMMITMENT CLAUSE
OF THE DERIVATIVES CONTRACT – SWAP:
We
declare that we have read, initialed and accepted, expressly and irrevocably,
the terms of the arbitration convention, composed by Clause 17 of the
DERIVATIVES CONTRACT – SWAP.
XXX CELULAR
SA
CONTRACTING
PARTY
17.19. To settle
eventual doubts and claims, the client may contact its manager. If the expected
solution is not achieved, UNIBANCO provides the telephone of its Ombudsman’s
Office (0800-7226281).
IN WITNESS WHEREOF,
the Parties sign this Contract in 02 (two) counterparts of equal tenor and with
the same effect, which are subscribed by two witnesses.
São Paulo,
<<OPDATAINISWXDIA>> of <<OPDATAINISWxMESEXT>> OF
<<OPDATAINISWxANO>>
______________________________________TIM
CELULAR
UNIBANCO
– UNIÃO DE BANCOS BRASILEIROS S/A
_________________________________________________
<<client>>
CONTRACTING PARTY
WITNESSES:
|
1.
______________________
|
2.___________________________
|
||
|
Name:
|
Name:
|
||
|
Taxpayer
Register – CPF:
|
CPF:
|
8
MODEL
ATTACHMENT I – STATEMENT OF SETTLEMENT OF DERIVATIVES
TRANSACTION – SWAP
São Paulo,
___________________200
TO
(CONTRACTING
PARTY)
Address
Corporate Taxpayer
Register - CNPJ/MF:
C/O
Xx.
Xxxxxx/Investment Account linked to Current
Account:
Ref.: DERIVATIVE
CONTRACT – SWAP – No. <<OPSWCONTRCLEAR>>, signed on
<<OPDATAINSWxxDDMMAA>>
We inform that, on
this date, as stipulated in the CONTRACT in reference, the swap transaction
specified below is being [partially/totally] liquidated , according to the
conditions below:
CHARACTERISTICS
OF THE SWAP TRANSACTION
|
1) Settled
Base
Value R$
|
|
2) Gross
Adjustment R$
|
|
3) Income
Tax R$
|
|
4) Net
Adjustment R$
|
|
5) Date of
Transaction ___/___/____
|
|
6) Settlement
Date ___/___/____
|
|
7) Parameter
of CONTRACTING PARTY Percentage:
___%Indexer:
|
|
9) Parameter
of
UNIBANCO Percentage:___%Indexer:
|
|
10) Reversal
Rate (if applicable) ___%
p.a.
|
The debits and
credits of values due by force of the CONTRACT shall be made into the Investment
Account restricted to the Current Account of CONTRACTING PARTY.
This Statement is
an integral part of the relevant CONTRACT, to which it is subordinated
inseparably and complementarily.
___________________________________________________
UNIBANCO
– UNIÃO DE BANCOS BRASILEIROS S/A
in
the capacity of Calculation Agent
WITNESSES:
|
1.
______________________
|
2.___________________________
|
||
|
Name:
|
Name:
|
||
|
Taxpayer
Register – CPF:
|
CPF:
|
9
