Exhibit 10.6
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CREDIT AGREEMENT
dated as of [December 9, 1996]
among
TVA SISTEMA DE TELEVISAO S.A.,
as Borrower,
TEVECAP S.A.
as Guarantor,
THE CHASE MANHATTAN BANK,
as Lender,
and
EXPORT-IMPORT BANK OF THE UNITED STATES
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TABLE OF CONTENTS
Page
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BACKGROUND.................................................................. 1
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION...................... 1
1.01 Defined Terms................................................... 1
1.02 Principles of Construction...................................... 7
SECTION 2. THE CREDIT; DISBURSEMENTS....................................... 7
2.01 Amount.......................................................... 7
2.02 Availability.................................................... 7
2.03 Disbursements................................................... 8
2.04 Ancillary Services.............................................. 8
SECTION 3. GUARANTEE TO LENDER AND EXIMBANK BY GUARANTOR................... 8
3.01 Guarantor Guarantee............................................. 8
3.02 Guarantee Continuing and Unconditional.......................... 8
3.03 Reinstatement................................................... 9
3.04 Endorsement of Note(s).......................................... 9
SECTION 4. EXIMBANK GUARANTEE REQUIREMENTS................................. 10
4.01 Eligibility for Eximbank Guarantee.............................. 10
4.02 Coverage of Eximbank Guarantee.................................. 11
SECTION 5. TERMS OF THE CREDIT............................................. 11
5.01 Principal Repayment............................................. 11
5.02 Interest Payment................................................ 11
5.03 Alternative Interest Rate....................................... 12
5.04 Prepayment...................................................... 13
5.05 Recapture....................................................... 13
5.06 Evidence of Debt................................................ 14
SECTION 6. CONDITIONS PRECEDENT............................................ 14
6.01 Conditions Precedent to First Utilization....................... 14
6.02 Condition Precedent to Each Utilization......................... 16
SECTION 7. FEES AND EXPENSES............................................... 17
7.01 Fees............................................................ 17
7.02 Taxes........................................................... 18
7.03 Expenses........................................................ 19
7.04 Additional or Increased Costs................................... 19
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TABLE OF CONTENTS
(continued)
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SECTION 8. PAYMENTS........................................................ 20
8.01 Method of Payment............................................... 20
8.02 Application of Payments......................................... 20
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS....................... 21
9.01 Representations and Warranties of the Borrower.................. 21
9.02 Affirmative Covenants of the Borrower........................... 24
9.03 Negative Covenants of the Borrower.............................. 25
9.04 Representations and Warranties of the Guarantor................. 26
9.05 Affirmative Covenants of the Guarantor.......................... 29
9.06 Negative Covenants of the Guarantor............................. 30
SECTION 10. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT................. 30
10.01 Cancellation by the Borrower................................... 30
10.02 Suspension and Cancellation by Eximbank........................ 31
10.03 Events of Default.............................................. 31
SECTION 11. GOVERNING LAW AND JURISDICTION................................. 34
11.01 Governing Law.................................................. 34
11.02 Submission of Jurisdiction..................................... 34
11.03 Service of Process............................................. 34
11.04 Waiver of Immunity............................................. 35
11.05 Waiver of Security Requirements................................ 35
11.06 No Limitation.................................................. 36
SECTION 12. MISCELLANEOUS.................................................. 36
12.01 Computations................................................... 36
12.02 Notices........................................................ 36
12.03 Disposition of Indebtedness.................................... 36
12.04 Benefit of Agreement........................................... 37
12.05 Termination of Eximbank Guarantee.............................. 37
12.06 Disclaimer..................................................... 37
12.07 No Waiver; Remedies Cumulative................................. 37
12.08 Entire Agreement............................................... 37
12.09 Amendment or Waiver............................................ 37
12.10 Counterparts................................................... 37
12.11 Judgment Currency.............................................. 37
12.12 English Language............................................... 38
12.13 Severability................................................... 38
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Annexes
Annex A - Form of Floating Rate Note
Annex B - Utilization Procedures
Annex C - Form of Opinion of Borrower's Counsel
Annex D - Form of Opinion of Guarantor's Counsel
Exhibit 1 - Request for Reimbursement to Borrower's Account
Exhibit 1(a) - Itemized Statement of Payments
Exhibit 2 - Supplier's Certificate
Exhibit 2(a) - Supplier's Certificate (L/C Application)
Exhibit 2(b) - Supplier's Certificate (Special Ancillary Services)
Exhibit 3 - Certificate Authorizing Reimbursement
Exhibit 4 - Request for Letter of Credit Approval
Exhibit 4(a) - Request for Approval of Amendment to Letter of Credit
Exhibit 5 - Certificate Approving Letter of Credit
Exhibit 5(a) - Certificate Approving Amendment to Letter of Credit
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Eximbank Guarantee No. AP 069910XX - Brazil
Term Sheet
1. Lender: The Chase Manhattan Bank
2. Borrower: TVA Sistema de Televisao S.A.
3. Guarantor(s): Tevecap S.A.
4. Borrower's Country: Brazil
5. Financed Portion: $29,349,780
6. Exposure Fee (per U.S.$100.00
of Financed Portion): U.S.$1,215,081
( ) financed (x) not financed
7. Credit Amount: U.S.$29,349,780
8. Guarantee Commitment Fee: one-eighth of one percent (1/8%) per annum on the
uncancelled and undisbursed amount of the Credit, accruing from August 5,
1996 to the Final Disbursement Date, and payable on each October 15 and
April 15 of each year, beginning on April 15, 1997.
9. Principal Repayment:
Tranche One - Nine (9) semi-annual installments, due and payable:
Tranche Amount Payment Dates
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$11,400,000 October 15 and April 15,
beginning April 15, 1997
Tranche Two - Ten (10) semi-annual installments, due and payable:
Tranche Amount Payment Dates
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$17,949,780 October 15 and April 15,
beginning October 15, 1997
10. Required Operative Date: December 9, 1996
11. Except as otherwise provided in the Agreement, all notices shall be directed
to the respective parties in accordance with the following:
To the Borrower
Address: TVA Sistema de Televisao S.A.
Rua do Rocio, 313-V. Olimpia
Sao Paulo - SP, Brazil CEP 04552-904
Attention: Mr. Douglas Duran
Fax: 011-55-11-821-8770
Telephone: 011-55-11-821-8554
To the Guarantor
Address: Tevecap S.A.
Rua do Rocio, 313-V. Olimpia
Sao Paulo - SP, Brazil CEP 04552-904
Attention: Mr. Douglas Duran
Fax: 011-55-11-821-8770
Telephone: 011-55-11-821-8554
To the Lender
Address: The Chase Manhattan Bank
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Anna Astriab, 16th Floor
Fax: (212) 552-3559
Telephone: (212) 552-4716
To Eximbank
Address: Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, DC 20571
Attention: Unless otherwise specified herein, Vice President -
Americas Division
Fax: (202) 565-3420 (Americas Division)
(202) 565-3380 (Bank-wide)
Telephone: (202) 565-3400
Telex: (TRT) 197681 EXIM UT
THIS AGREEMENT dated as of [December 9, 1996], is made by and among TVA
Sistema de Televisao S.A., a corporation organized and existing under the laws
of the Republic of Brazil (the "Borrower"), Tevecap S.A., a corporation
organized and existing under the laws of the Republic of Brazil (the
"Guarantor"). The Chase Manhattan Bank, a banking corporation organized and
existing under the laws of the State of New York (the "Lender"), and the
Export-Import Bank of the United States, an agency of the United States of
America ("Eximbank"). Capitalized terms used herein shall be defined as provided
in Section 1.
BACKGROUND
WHEREAS:
(A) by this Agreement, the Lender has established an export financing
credit (the "Credit") in the amount of U.S.$29,349,780, pursuant to which the
Lender shall extend financing to the Borrower for the purchase of Items in the
United States for export to the Borrower's Country;
(B) pursuant to the terms of this Agreement, the Guarantor has agreed to
guarantee the payment in full when due (whether at stated maturity, by reason of
acceleration or otherwise) of all amounts due by the Borrower to the Lender or
Eximbank, respectively, under this Agreement or the Note(s);
(C) the establishment of the Credit will facilitate exports from the
United States to the Borrower's Country;
(D) a condition to the Lender's extension of the Credit under this
Agreement is the availability of the Eximbank Guarantee pursuant to the terms
and conditions of the Master Guarantee Agreement dated as of November 3, 1995
between the Lender and Eximbank (the "Master Guarantee Agreement"); and
(E) the Credit may be utilized by the Borrower in accordance with the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.01 Defined Terms. For the purposes of this Agreement, unless otherwise
defined herein, the following terms shall have the meanings specified below.
"Acquisition List" shall mean the list furnished pursuant to Section
6.01(g).
"Agreement" shall mean this Credit Agreement, including any Annex,
Exhibit, Schedule, Term Sheet and other attachment thereto, as amended or
otherwise modified from time to time.
"Ancillary Services" shall mean all Banking Services, Financial Advisor
Services, Technical Consultant Services and Legal Services.
"Banking Services" shall mean the services of the Lender in its capacity
as a lender guaranteed by Eximbank where such services are provided in
connection with the Credit.
"Borrower" shall have the meaning set forth in the preamble to this
Agreement.
"Borrower Documents" shall mean this Agreement, any Note and all other
documents and instruments to be executed and delivered by the Borrower under
this Agreement.
"Borrower Financial Statements" shall mean the financial statements of the
Borrower at December 31, 1995 furnished to the Lender and Eximbank prior to the
date of this Agreement.
"Borrower's Country" shall mean the Republic of Brazil.
"Business Day" shall mean any day on which dealings in Dollar deposits are
carried on in the London interbank market and on which commercial banks in
London and New York City are open for domestic and foreign exchange business.
"Cash Payment" shall have the meaning set forth in Section 4.01 (a).
"Contract Price" shall mean, with respect to any Item, the invoice amount
of such Item as appearing in the Supplier's invoice therefor.
"Credit" shall have the meaning set forth in Whereas clause (A).
"Debarment Regulations" shall have the meaning set forth in Section 9.01
(a)(xiv).
"Disbursement" shall mean either a Reimbursement or an L/C Payment.
"Disbursement Date" shall mean, in relation to any Disbursement, the
Business Day on which the Lender shall make such Disbursement.
"Disposition of Indebtedness" shall have the meaning set forth in Section
12.03.
"Dollars," "U.S. Dollars," "U.S.D.," "U.S. $" or "$" shall mean the lawful
currency of the United States of America.
"Event of Default" shall have the meaning set forth in Section 10.03(a).
"Eximbank" shall have the meaning set forth in the preamble to this
Agreement.
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"Eximbank Approval" shall mean an "Eximbank Approval" (as such term is
defined in the Master Guarantee Agreement), identified by reference to the
Transaction Number.
"Eximbank Guarantee" shall mean the guarantee provided by Eximbank under
the Master Guarantee Agreement and the Eximbank Approval with respect to the
Credit.
"Exposure Fee" shall have the meaning set forth in Section 7.01(a)(ii).
"Final Disbursement Date" shall have the meaning set forth in Section
2.02.
"Financed Amount" shall mean the amount equal to the Financed Portion.
"Financed Portion" shall mean the portion of the respective Contract
Prices of the Items that may be covered under the Eximbank Guarantee in
accordance with Section 4.02(a).
"Financial Advisor Service" shall mean the services of a financial
intermediary or advisor, provided that such Person has been retained by the
Borrower, the Lender or Eximbank and such services relate to assisting the
Borrower in obtaining, structuring and/or meeting the financial requirements of
the Credit or assisting Eximbank in its analysis of the Credit, any underlying
project and/or the business of the Borrower.
"Floating Rate Note" shall mean a Note in the form of Annex A.
"Foreign Cost" shall mean, with respect to any Item, the cost to the
Supplier of any component of such Item if such component was produced or
manufactured outside the United States. Eximbank shall determine what does and
does not constitute Foreign Cost, and such determination, in the absence of
manifest error, shall be conclusive and binding for all purposes.
"Governmental Authority" shall mean the government or any political
subdivision of the government of the Borrower's Country and the Guarantor's
Country, any agency, department or any other administrative authority or
instrumentality thereof, including, without limitation, any local or other
governmental agency or other authority within the Borrower's Country or the
Guarantor's Country.
"Guarantee Certificate" shall mean, with respect to a Utilization,
Eximbank's Certificate Authorizing Reimbursement in the form of Exhibit 3 to
Annex B or Eximbank's Certificate Approving Letter of Credit in the form of
Exhibit 5 to Annex B, whichever is appropriate.
"Guarantee Commitment Fee" shall have the meaning set forth in Section
7.01(a)(i).
"Guarantor" shall have the meaning set forth in the preamble to this
Agreement.
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"Guarantor Financial Statements" shall mean the financial statements of
the Guarantor at December 31, 1995 furnished to the Lender and Eximbank prior to
the date of this Agreement.
"Guarantor Guarantee" shall mean the guarantee set forth in Section 3.
"Guarantor's Country" shall mean the Republic of Brazil.
"Interest Payment Date" shall mean April 15 and October 15 of each year,
beginning on April 15, 1997.
"Interest Period" shall mean, with respect to any Disbursement, (a) the
period commencing on the Disbursement Date and extending up to, but not
including, the next Interest Payment Date; provided, however, that if the
Disbursement Date is within forty-five (45) days of such Interest Payment Date,
the Interest Period shall end on the next succeeding Interest Payment Date; and
(b) thereafter the period commencing on each Interest Payment Date and extending
up to, but not including, the next Interest Payment Date.
"Items" shall have the meaning set forth in Section 4.01(a).
"L/C Bank" shall have the meaning set forth in Part III of Annex B.
"L/C Payment" shall have the meaning set forth in Section 2.03.
"Legal Services" shall mean the services of attorneys engaged by the
Borrower, the Guarantor, the Lender or Eximbank where such services are provided
in connection with the Credit.
"Letter of Credit" shall mean any irrevocable documentary sight letter of
credit (in compliance with the requirements of the Uniform Customs and Practices
for Documentary Credits (International Chamber of Commerce Publication 500), as
the same may be amended from time to time) for which Eximbank has issued a
Guarantee Certificate under this Agreement which shall, in any event, have an
expiration date no later than the date (2) two weeks prior to the Final
Disbursement Date.
"LIBOR" shall mean, in relation to any Interest Period, the rate of
interest per annum (rounded upward, if necessary, to the nearest 1/16 of 1%)
quoted by the principal London office of the Lender or an affiliate of the
Lender designated by the Lender at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for the offering to
leading banks in the London interbank market of U.S. Dollar deposits for a
period and in an amount comparable to such Interest Period and the principal
amount upon which interest is to be paid during such Interest Period. Promptly
after determining the applicable interest rate for an Interest Period, the
Lender shall give notice by telex or telecopy to the Borrower of such rate,
which rate, absent manifest error, shall be final, conclusive and binding on the
Borrower.
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"Lien" shall mean any lien, lease, mortgage, pledge, hypothecation,
preferential arrangement relating to payments, or other encumbrance or security
interest.
"MARAD" shall have the meaning set forth in Section 4.01(b).
"Master Guarantee Agreement" shall have the meaning set forth in Whereas
clause (D).
"Note" shall have the meaning set forth in Section 5.06(a).
"Other Governmental Authority" shall mean any government or any political
subdivision of a government, any agency, department or any other administrative
authority or instrumentality thereof, including, without limitation, any local
or other governmental agency or other authority.
"Payment Date" shall mean April 15 and October 15 of each year, beginning
on April 15, 1997 for Tranche One and October 15, 1997 for Tranche Two.
"Payment Default Date" shall have the meaning set forth in Section
5.02(b)(iii).
"Permitted Lien" shall have the meaning set forth in Section 9.03(a).
"Person" shall mean an individual corporation, partnership, trust,
unincorporated organization or any other enterprise, or a Governmental Authority
or Other Governmental Authority.
"Principals" shall have the meaning set forth in Section 9.01(a)(xiv).
"Production Cost" shall mean, with respect to any Item, the sum of (i)
direct material and component costs, (ii) direct labor costs and (iii) indirect
costs that can reasonably be attributed to the production of such Item. Eximbank
shall determine what does and does not constitute Production Cost, and such
determination, in the absence of manifest error, shall be conclusive and binding
for all purposes.
"Progress Payment" shall have the meaning set forth in Section 6.01(h).
"Purchase Contract" shall mean either (a) any contract between the
Borrower and a Supplier or any purchase order signed by the Borrower for the
purchase of goods and/or services in the United States for export to the
Borrower's Country, including, without limitation, Ancillary Services that are
not Special Ancillary Services or (b) any contract between the Borrower and a
Supplier for the purchase of Special Ancillary Services.
"Regulatory Change" shall have the meaning set forth in Section 7.04(c).
"Reimbursement" shall have the meaning set forth in Section 2.03.
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"Special Ancillary Services" shall mean Ancillary Services that fall
within one of the categories described in the proviso to Section 2.04(a).
"Special LIBOR" shall mean, with respect to any Interest Period, the rate
of interest per annum specified as the Dollar LIBOR Interbank fixing rate in the
Financial Times under the table entitled "Money Rates", in effect on the day two
Business Days prior to the first day of the relevant Interest Period for a term
similar to the term of such Interest Period. If no rate is specified for such
day, the applicable rate shall be the rate specified for the immediately
preceding day for which a rate is specified, and if more than one rate is
specified, the applicable rate shall be the highest of all such rates. In the
event the Financial Times either completely ceases publication or discontinues
publication of the Dollar LIBOR Interbank fixing rate, then Eximbank shall
determine Special LIBOR by reference to a financial publication with a similar
international or U.S. circulation, which publication shall be selected by
Eximbank in its sole discretion.
"Supplier" shall mean the Person who issues a Supplier's Certificate.
"Supplier's Certificate" shall mean a certificate of a Supplier in the
form of Exhibit 2, or Exhibit 2(a) or Exhibit 2(b) to Annex B, whichever is
appropriate.
"Taxes" shall mean any taxes, fees, levies, imposts, duties or charges of
whatsoever nature (whether imposed by withholding or deduction or otherwise)
imposed by any Governmental Authority (including, without limitation, any taxing
authority), or by any other jurisdiction from which payments required hereunder
or under the Note(s) are made.
"Technical Consultant Services" shall mean services of an advisor or
consultant with respect to technical matters (including engineering consultants,
yield consultants and insurance advisors) where: (a) Eximbank has required that
such a consultant be retained in order to assist Eximbank in its analysis of the
Credit and/or the business operations of the Borrower; (b) the services of such
consultant relate to the Credit; and (c) the experience, expertise and overall
competence of such consultant is satisfactory to Eximbank (in its sole and
absolute discretion).
"Tranche One" shall have the meaning set forth in Section 2.02.
"Tranche Two" shall have the meaning set forth in Section 2.02.
"Transaction Number" shall have the meaning set forth in the Master
Guarantee Agreement.
"Unpaid Amount" shall have the meaning set forth in Section 5.02(a)(ii).
"U.S." or "United States" shall mean the United States of America.
"U.S. Content" shall mean, with respect to any Item, the Contract Price of
such Item less the Foreign Cost associated with such Item, if any. Eximbank
shall determine
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what does and does not constitute U.S. Content, and such determination, in the
absence of manifest error, shall be conclusive and binding for all purposes.
"U.S. Treasury Rate" shall have the meaning set forth in Section
5.02(b)(iii).
"Utilization" shall mean either: (i) the making of a Reimbursement in
accordance with the Reimbursement Procedure set forth in Section II of Annex B;
or (ii) the issuance of a Letter of Credit in accordance with the Letter of
Credit Procedure set forth in Section III of Annex B.
1.02 Principles of Construction.
(a) The meanings set forth for defined terms in Section 1.01 or elsewhere
in this Agreement shall be equally applicable to both the singular and plural
forms of the terms defined.
(b) Unless otherwise specified, all references in this Agreement to
Sections, Term Sheets, Annexes, Exhibits and Schedules are to Sections, Term
Sheets, Annexes, Exhibits and Schedules in or to this Agreement.
(c) The headings of the Sections in this Agreement are included for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
SECTION 2. THE CREDIT; DISBURSEMENTS
2.01 Amount. The Lender hereby establishes the Credit, upon the terms and
conditions set forth in this Agreement, in favor of the Borrower in the amount
of U.S.$29,349,780 to enable the Borrower to finance the Financed Portion of the
costs incurred on or after September 30, 1995 by the Borrower for purchase of
the Items in the United States and their export to the Borrower's Country
(provided that Items which are Ancillary Services need not be purchased in the
United States if the requirements of the proviso to Section 2.04(a) are
satisfied).
2.02 Availability. Subject to the terms and conditions provided herein,
including, without limitation, the conditions set forth in Section 6,
Disbursements under the Credit may be made up to and including the Final
Disbursement Date. "Final Disbursement Date" shall mean either November 15, 1996
for the first tranche in the amount of U.S.$11,400,000 ("Tranche One") and
August 15, 1997 for the second tranche in the amount of U.S.$17,949,780
("Tranche Two") or, if earlier, the date on which the relevant tranche is
canceled by either (i) the Borrower in accordance with Section 10.01, or (ii)
Eximbank in accordance with Section 10.02. Notwithstanding anything herein to
the contrary, Disbursements under Tranche One may be made only in connection
with Items shipped to the Borrower's Country between September 30, 1995 and July
31, 1996, and Disbursements under Tranche Two may be made only in connection
with Items shipped to the Borrower's Country between August 1, 1996 and June 30,
1997.
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2.03 Disbursements. Upon satisfaction of the conditions set forth in
Section 6, the Credit may be disbursed under the tranche applicable to such
Disbursement in the manner described in, and subject to the conditions of, Annex
B. Disbursements may be made: (a) through drawings by a Supplier under a Letter
of Credit ("L/C Payments") and/or (b) by advances from the Lender to the
Borrower reimbursing the Borrower for payments to a Supplier and/or Eximbank
("Reimbursements"). For the avoidance of doubt, as described in Annex B, the
term "Disbursements" shall include payments made under the Credit in respect of
the Exposure Fee.
2.04 Ancillary Services.
(a) Ancillary Services relating to the Credit shall be treated in the same
manner as any other services (including, without limitation, the requirements
set forth in Section 4 of this Agreement); provided that the Foreign Cost
associated with any such Ancillary Services shall be deemed to be zero if either
(i) Eximbank requires that the Borrower or another Person pay for the provision
of such Ancillary Services by a Supplier selected by Eximbank or (ii) Eximbank
in its sole determination finds that such Ancillary Services are both necessary
in order for the underlying transaction to go forward and cannot be reasonably
obtained in the United States.
(b) Utilizations for Ancillary Services may be made under the Credit only
after there have been one or more Utilizations with respect to Items financed by
such Credit that are not Ancillary Services.
SECTION 3. GUARANTEE TO LENDER AND EXIMBANK BY GUARANTOR
3.01 Guarantor Guarantee. The Guarantor hereby unconditionally and
irrevocably guarantees to the Lender and Eximbank the full, prompt and complete
payment when due (whether at stated maturity, by acceleration or otherwise) of
the principal of and interest on the Credit, together with any and all other
amounts payable by the Borrower to the Lender or Eximbank under this Agreement
or the Note(s). If the Borrower shall fail to pay when due any or all sums
hereby guaranteed (whether at stated maturity, by acceleration or otherwise),
the Guarantor shall forthwith pay, without any demand or notice, the full amount
due and payable by the Borrower in U.S. Dollars at the place and in the manner
required by this Agreement or the Note(s). This is a guarantee of payment and
not merely of collection, and shall remain in full force and effect until all
the obligations of the Borrower hereby guaranteed are paid in full. To the
extent permitted by applicable law, the Guarantor waives all defenses of a
surety or guarantor to which it may be entitled by statute or otherwise.
3.02 Guarantee Continuing and Unconditional.
(a) The Guarantor Guarantee is a continuing, absolute and unconditional
guarantee of payment as primary obligor and not merely as surety, and shall
apply to all obligations of the Borrower under this Agreement and the Note(s)
whenever arising. Without limiting the
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generality of the foregoing, the Guarantor Guarantee shall not be released,
discharged or otherwise affected by: (i) the lack of genuineness, legality,
validity, regularity or enforceability of this Agreement or the Note(s) or any
other agreement or document contemplated hereby; (ii) the surrender, release,
exchange, substitution, taking of any additional collateral, or impairment of
any collateral; (iii) failure by the Borrower to comply with any of the terms of
this Agreement or the Note(s); (iv) any change in the name, authorized
activities, capital stock, corporate existence, structure, personnel or
ownership of the Borrower; (v) any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Borrower or its assets; or (vi) any other
act or omission to act or delay of any kind by the Borrower, the Guarantor, the
Lender or Eximbank or any other Person, or any other circumstance whatsoever
that might, but for the provisions of this Section 3.02, constitute a legal or
equitable discharge or defense to the Guarantor's obligations hereunder.
(b) The Guarantor hereby irrevocably and expressly waives all diligence,
presentments, demands, protests and notices of any kind whatsoever, including,
without limitation, notices of nonperformance or nonpayment, notices of default,
notices of protest, notices of dishonor, notices of acceptance of this Guarantor
Guarantee, and notices of the existence, creation or incurring of new or
additional obligations by the Borrower under this Agreement or the Note(s).
(c) The Guarantor consents that, without notice to the Guarantor and
without the necessity for any additional endorsement, consent or guarantee by
the Guarantor, the liabilities of the Borrower hereby guaranteed may, from time
to time, be renewed, extended, increased, accelerated, modified (including
without limitation any change in interest rate or a switch from a floating to
fixed rate of interest), amended, compromised, waived, released or discharged by
the Lender or Eximbank, and any security which is or in the future may be held,
or any other guarantee issued for, the payment of the indebtedness of the
Borrower under this Agreement or the Note(s) may be exchanged, sold or
surrendered by the Lender or Eximbank, all without impairing or affecting in any
way the obligation of the Guarantor hereunder. Neither the Lender nor Eximbank
shall be obliged to enforce any remedies against the Borrower or any guarantee
or security which it may hold before being entitled to payment from the
Guarantor of the obligations hereby guaranteed.
3.03 Reinstatement. The Guarantor Guarantee shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of the Borrower in respect of obligations hereby guaranteed is recovered from or
repaid by the Lender, Eximbank or any other party as a result of any proceeding
in bankruptcy, insolvency, reorganization or otherwise.
3.04 Endorsement of Note(s). To evidence further the Guarantor Guarantee
contained in this Section 3, the Guarantor agrees to endorse and execute its
guarantee legend, in the form specified in Annex A, immediately below the
signature of the duly authorized officer(s) of the Borrower on each Note issued
by the Borrower hereunder, including any replacement Note issued pursuant to
Section 5.06.
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SECTION 4. EXIMBANK GUARANTEE REQUIREMENTS
4.01 Eligibility for Eximbank Guarantee.
(a) "Items" shall mean (i) goods exported from the United States under a
Purchase Contract and (ii) services performed under a Purchase Contract
(including, without limitation, Ancillary Services), all of which goods and
services shall be specified on the Acquisition List and shall have been approved
by Eximbank as eligible under the Eximbank Guarantee and thus eligible for
financing under the Credit. Eximbank shall determine what does and does not
constitute an Item, and such determination, in the absence of manifest error,
shall be conclusive and binding for all purposes. The Foreign Cost associated
with each Item shall be less than fifty percent (50%) of the Production Cost of
such Item; and the Borrower shall have made or caused to be made a cash payment
("Cash Payment") for the purchase of such Item in an amount equal to not less
than fifteen percent (15%) of the Contract Price of such Item.
(b) To be eligible for the Eximbank Guarantee, all Items that are to be
financed under the Credit and that are to be exported by ocean vessel must be
transported from the United States in vessels of U. S. registry, as required by
46 U.S.C. ss. 1241-1 (Public Resolution No. 17 of the 73rd Congress of the
United States, as amended), except to the extent that a waiver of this
requirement is obtained from the U. S. Maritime Administration ("MARAD"), as
described in Annex B. Notwithstanding Section 4.01(a), if any Items are shipped
on vessels of non-U.S. registry without a MARAD waiver, or contrary to the
provisions of a MARAD waiver, such Items will not be eligible under the Eximbank
Guarantee and thus will not be eligible for financing under the Credit.
(c) If an Item is shipped on ocean vessels or aircraft of U.S. registry,
the cost of shipment may be included in the U.S. Content of the Item. If an Item
is shipped on ocean vessels or aircraft of non-U.S. registry, the cost of
shipment may be part of the Foreign Cost associated with such Item if such cost
has been included in the Contract Price of the Item and, in the case of ocean
vessels, a MARAD waiver has been obtained. So long as the applicable pooling
agreement with MARAD remains in full force and effect, the cost of ocean freight
for shipment of Items from the United States to the Borrower's Country on an
ocean vessel registered in such Borrower's Country ("Foreign Freight Costs") may
be deemed U.S. Content, provided that the Foreign Freight Costs are included in
the respective Contract Prices of the Items.
(d) The Borrower shall obtain or cause to be obtained insurance against
marine and transit hazards on all shipments of the Items in an amount not less
than the amount of the Disbursements that have been or are to be made with
respect to those shipments. United States insurers shall be given a
non-discriminatory opportunity to bid for such insurance business related to the
Items. The cost of the premiums for such insurance may be included in the U. S.
Content of the insured Item if: (i) the insurance is placed in the United States
with U.S. companies; and (ii) the premiums are paid in the United States in
Dollars. In all other cases, the cost of the premiums maybe included in the
Foreign Cost associated with the Item if such cost has been included in the
Contract Price of the Item.
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4.02 Coverage of Eximbank Guarantee. Subject to the terms and conditions
of this Agreement and the Master Guarantee Agreement, a Disbursement made with
respect to an Item shall be covered by the Eximbank Guarantee up to the
following maximum amount:
(a) an amount equal to the lesser of (i) eighty-five percent (85%) of the
Contract Price of such Item, or (ii) one hundred percent (100%) of the U.S.
Content of such Item; plus
(b) an amount equal to one hundred percent (100%) of the applicable
Exposure Fee.
SECTION 5. TERMS OF THE CREDIT
5.01 Principal Repayment. The Borrower shall repay all amounts disbursed
under (a) Tranche One of the Credit in nine (9) approximately equal, successive
semi-annual installments, with each such installment to be payable on a Payment
Date, and (b) Tranche Two of the Credit in ten (10) approximately equal,
successive semi-annual installments, with each such installment to be payable on
a Payment Date; provided that, on the last Payment Date, the Borrower shall
repay in full the principal amount of the Credit then outstanding.
5.02 Interest Payment.
(a) To the Lender
(i) On each Interest Payment Date, the Borrower shall pay interest
on all amounts disbursed and outstanding from time to time under the Credit,
calculated at an interest rate per annum equal to the sum of(x) 0.25 percent per
annum, and (y) LIBOR for the applicable Interest Period(s).
(ii) If all or any part of principal, accrued interest, fees or
other amounts owing to the Lender under this Agreement or any Note is not paid
in full when due (an "Unpaid Amount") whether at stated maturity, by
acceleration or otherwise, the Borrower shall pay to the Lender on demand
interest on the unpaid amount (to the extent permitted by applicable law) for
the period from the date such amount was due until such amount shall have been
paid in full at an interest rate per annum equal to (x) 1 % per annum above the
interest rate then applicable under Section 5.02(a)(i) until the end of the then
current Interest Period, and (y) thereafter (A) with to any amount of the Credit
evidenced by a Floating Rate Note, 1.25% per annum above the rate per annum
(rounded upwards to the nearest 1/16 of 1%) at which U.S. Dollar deposits are
offered to the office of the Lender in the eurodollar market in which such
office of the Lender customarily deals at 11:00 A.M., local time of such office
of the Lender, for successive interest periods selected by the Lender in its
sole discretion, two Business Days prior to the first day of each such interest
period, for the number of days of each such interest period and in an amount
equal to the aggregate principal amount of the Credit outstanding on the first
day of each such interest period. Any interest which shall have accrued under
this Section 5.02(a)(ii) in respect of an Unpaid Amount shall be due and payable
and shall be paid by the Borrower on demand on such dates as the Lender may
specify by written notice to the Borrower.
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(b) To Eximbank
(i) Notwithstanding Section 5.02(a)(i), if Eximbank shall have made
a claim payment to the Lender with respect to any Floating Rate Note, then,
beginning on the date of such claim payment, the definition of Special LIBOR
shall apply to each such Floating Rate Note (in place of the definition of LIBOR
contained in each such Floating Rate Note) for all purposes, including, without
limitation, Section 5.02(b)(ii).
(ii) Notwithstanding Section 5.02(a)(ii), if Eximbank shall have
made a claim payment to the Lender with respect to any Note, then, beginning on
the date of such claim payment, if any amount of principal of or accrued
interest on any Note then owing to Eximbank is not paid in full when due,
whether at stated maturity, by acceleration or otherwise, the Borrower shall pay
to Eximbank on demand interest on such unpaid amount (to the extent permitted by
applicable law) for the period from the date such amount was due to Eximbank
until such amount shall have been paid in full at an interest rate per annum
equal to one percent (1%) per annum above the interest rate then applicable
under Section 5.02(a)(i) (as modified, if required, by 5.02(b)(i)).
(iii) Except as otherwise provided in 5.02(b)(ii) with respect to
amounts of principal and accrued interest, if, at any time, any amount owing to
Eximbank under this Agreement or any Note is not paid in full when due, the
Borrower shall pay to Eximbank on demand interest on such unpaid amount for the
period from the date such amount was due ("Payment Default Date") until such
amount shall have been paid in full at an interest rate per annum equal to one
percent (1%) per annum above the U.S. Treasury Rate. The "U.S. Treasury Rate"
shall mean the interest rate specified in the Federal Reserve Statistical
Release H.15 (519) Selected Interest Rates for six-month (180 days) Treasury
Bills under the category entitled "Treasury Bills, Auction Average (Investment)"
(or, if not included under such category, the category entitled "Treasury
Constant Maturities"), which is in effect on the Payment Default Date.
5.03 Alternative Interest Rate.
(a) If the Lender shall have determined in its reasonable discretion
(which determination shall be conclusive and binding for all purposes, absent
manifest error), prior to the commencement of any Interest Period that: (i)
Dollar deposits of sufficient amount and maturity for funding a Disbursement are
not available to the Lender in the London interbank market in the ordinary
course of business; or (ii) by reason of circumstances affecting the relevant
market, adequate and fair means do not exist for ascertaining the rate of
interest to be applicable to a Disbursement; or (iii) the relevant rate of
interest referred to in the definition of LIBOR which is to be used to determine
the rate of interest for a Disbursement does not cover the funding cost to the
Lender of making or maintaining the Disbursement, then the Lender and the
Borrower, during the next 30-day period, shall negotiate in good faith with a
view toward agreeing upon an alternative basis for determining the applicable
interest rate. Retroactively from the beginning of such Interest Period, the
interest rate for such Interest Period shall be equal to (i) such interest rate
as may be agreed upon as aforesaid or (ii) if no such rate is agreed upon within
such 30-day period, such rate, if any, other than LIBOR, as is reasonably
determined by the Lender in good faith to be that interest
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rate generally being applied by major U.S. and European banks as a substitute
base interest rate for loans which would otherwise be based upon London
interbank rates for U.S. Dollar deposits for the relevant period, plus 0.25%.
The Lender shall promptly notify the Borrower of any rate so determined pursuant
to clause (ii) of the immediately preceding sentence, which determination shall
be final, conclusive and binding in the absence of manifest error.
(b) If, in the Lender's reasonable judgment, it becomes unlawful at any
time for the Lender to make or maintain Disbursements based upon LIBOR, the
Lender, and the Borrower, during the next 30-day period, shall negotiate in good
faith with a view toward agreeing upon an alternative basis for determining the
applicable interest rate. Retroactively from the beginning of such Interest
Period, the interest rate for such Interest Period shall be equal to (i) such
interest rate as may be agreed upon as aforesaid or (ii) if no such rate is
agreed upon within such 30-day period, such rate, if any, other than LIBOR, as
is reasonably determined by the Lender in good faith to be that interest rate
generally being applied by major U.S. and European banks as a substitute base
interest rate for loans which would otherwise be based upon London interbank
rates for U.S. Dollar deposits for the relevant period, plus 0.25%. The Lender
shall promptly notify the Borrower of any rate so determined pursuant to clause
(ii) of the immediately preceding sentence, which determination shall be final,
conclusive and binding in the absence of manifest error.
5.04 Prepayment. The Borrower may from time to time prepay, without
premium or penalty, on any Interest Payment Date all or part of the principal
amount of the Credit, provided that: (i) any partial prepayment shall be in a
minimum principal amount of U.S.$5,000,000 and integral multiples of $1,000,000
in excess thereof, or if less, the aggregate unpaid principal amount of the
Credit; (ii) the Borrower shall have given the Lender and Eximbank at least
fifteen (15) days' prior written notice of the prepayment (which notice shall be
irrevocable); and (iii) the Borrower shall have paid in full all amounts due
under the Credit as of the date of such prepayment, including interest which has
accrued to the date of prepayment on the amount prepaid. Prepayments shall be
applied to the installments of principal of the Credit in the inverse order of
their maturity, and, in cases where more than one Note is outstanding, pro rata
to each Note.
5.05 Recapture. The Borrower shall pay to the Lender, upon the written
request of the Lender, such amounts as shall be sufficient (in the reasonable
judgment of the Lender) to compensate the Lender for any loss, expense or
liability (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or redeployment of deposits from third
parties or in connection with obtaining funds to make or maintain any
Disbursement) which the Lender reasonably determines is attributable to:
(a) any payment or prepayment of the Credit other than in accordance with
Section 5.01 or 5.04 (including, without limitation, by reason of acceleration);
or
(b) any failure by the Borrower to borrow any advance that has been
requested in a Request for Reimbursement (as provided in Annex B).
The Lender shall deliver to the Borrower a statement specifying the amount of
any claim pursuant to this Section 5.05 and the method of calculation thereof.
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5.06 Evidence of Debt.
(a) The Borrower agrees that to evidence further its obligation to repay
all amounts disbursed under the Credit, with interest accrued thereon, it shall
not later than the date of the first Utilization hereunder issue and deliver to
the Lender, in accordance with the written instructions of the Lender, one
promissory note in the face amount of $11,400,000 to evidence Tranche One
Disbursements and one promissory note in the face amount of $17,949,780 to
evidence Tranche Two Disbursements (each such promissory note, or any
replacement promissory note issued pursuant to Section 5.06(b) or Section
5.06(c), a "Note"). Each Note shall be in the form of Annex A or as otherwise
agreed upon by the parties hereto, shall bear the Guarantor's guarantee
endorsement, and shall be valid and enforceable as to its principal amount at
any time only to the extent of the aggregate amounts then disbursed and
outstanding under the Credit, and, as to interest, only to the extent of the
interest accrued thereon. Any notations by the Lender on any Note regarding
payments made on account of the principal thereof, in absence of manifest error,
shall be conclusive and binding.
(b) If requested by the Lender, within ten (10) days after the Final
Disbursement Date, the Borrower shall issue and deliver to the Lender a new
Note(s) in exchange for the Note(s) previously issued and delivered in
accordance with Section 6.01(j), whereupon the Lender shall surrender such
previously issued Note(s) for cancellation to the Borrower through Eximbank. The
principal amount of such new Note(s) shall equal in the aggregate the principal
amount of the Credit then disbursed and outstanding.
(c) If requested by the Lender or Eximbank pursuant to Section
7.02(b)(ii), the Borrower shall issue and deliver to the Lender a new Note(s) in
exchange for the Note(s) previously issued and delivered in accordance with this
Agreement, whereupon the Lender shall surrender such previously issued Note(s)
for cancellation to the Borrower through Eximbank.
(d) If any Note is mutilated, lost, stolen or destroyed, the Borrower
shall issue and deliver a new Note of the same date, maturity and denomination
as the Note so mutilated, lost, stolen or destroyed; provided that, in the case
of any mutilated Note, such mutilated Note shall be returned to the Borrower
after examination by Eximbank, and, in the case of any lost, stolen or destroyed
Note, the Borrower and Eximbank shall have first received evidence of such loss,
theft or destruction as shall reasonably be considered satisfactory to each of
them.
SECTION 6. CONDITIONS PRECEDENT
6.01 Conditions Precedent to First Utilization. The obligation of the
Lender to permit the first Utilization of the Credit shall be subject to the
delivery to the Lender and Eximbank of the documents indicated below (each in
form and substance satisfactory to the Lender and Eximbank) and to the
fulfillment (in a manner satisfactory to the Lender and Eximbank) of the
conditions set forth below:
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(a) This Agreement. This Agreement fully executed by the parties hereto,
which shall be in full force and effect (with, if applicable, evidence that this
Agreement has been registered with the appropriate authorities in the Borrower's
Country and the Guarantor's Country).
(b) Existence. Evidence that (i) the Borrower is duly organized and
validly existing under the laws of the Borrower's Country, with full power,
authority and legal right to own its property and carry on its business as now
conducted, including, without limitation, a copy of any applicable enabling
legislation and (ii) the Guarantor is duly organized and validly existing under
the laws of the Guarantor's Country, with full power, authority and legal right
to own its property and carry on its business as now conducted, including,
without limitation, a copy of any applicable enabling legislation.
(c) Authority. Evidence of(i) the authority of the Borrower to execute,
deliver, perform and observe the terms and conditions of this Agreement, any
Note and any other Borrower Documents that the Borrower is or will be a party
to, (ii) authority (including specimen signatures) for each Person who, on
behalf of the Borrower, signed this Agreement, will sign any Note and/or signed
or will sign any other Borrower Documents that the Borrower is or will be a
party to, or will otherwise act as the Borrower's representative in the
operation of the Credit, (iii) the authority of the Guarantor to execute,
deliver, perform and observe the terms and conditions of the Borrower Documents
that the Guarantor is or will be a party to, and (iv) the authority (including
specimen signatures) for each person who, on behalf of the Guarantor, signed
this Agreement, will endorse the Guarantor's Guarantee on any Note, and/or
signed or will sign any other Borrower Documents that the Guarantor is a party
to, or will otherwise act as the Guarantor's representative in the operation of
the Credit.
(d) Government Authorizations. Copies, certified as true copies by a duly
authorized officer of the Borrower or Guarantor, as the case may be, of each
consent, license, authorization or approval of, and exemption by, any
Governmental Authority and any Other Governmental Authority, which are necessary
or advisable: (i) for the execution, delivery, performance and observance by the
Borrower and the Guarantor of the Borrower Documents that each is a party to,
including, without limitation, all approvals relating to the availability and
transfer of Dollars required to make all payments due under this Agreement and
any Note; (ii) for the validity, binding effect and enforceability of the
Borrower Documents; and (iii) for the execution, delivery and performance of any
Purchase Contract and the importation and use of the Items in the Borrower's
Country.
(e) Legal Opinions. Opinions of legal counsel acceptable to the Lender and
Eximbank in the Borrower's Country and the Guarantor's Country in substantially
the forms of Annexes C and D, respectively, and, if requested by Eximbank or the
Lender, an opinion from independent legal counsel selected by Eximbank or the
Lender as to such matters relating to this Agreement or the transaction
contemplated hereby as specified by Eximbank or the Lender.
(f) Appointment of Process Agent. Evidence that (i) each of the Borrower
and the Guarantor has irrevocably appointed as its agent for service of process
the Person or Persons
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so specified in Section 11.03(a), and (ii) each such agent has accepted the
appointment and has agreed to forward forthwith to the Borrower or the
Guarantor, as the case may be, all legal process addressed to the Borrower or
the Guarantor, as the case may be, received by such agent.
(g) Acquisition List. A list of the Items, containing with respect to each
Item: a brief description, the quantity, estimated invoice cost, estimated date
of shipment, Supplier's DUNS Numbers (if available) and product SIC Codes.
(h) Purchase Contract(s). With respect to the first Utilization of the
Credit for Tranche One, copies of all applicable Purchase Contract(s) for the
shipments corresponding to such tranche. If any Purchase Contract provides for
payments to a Supplier prior to completion and delivery of any Item ("Progress
Payments"), the schedule for such Progress Payments, in Eximbank's reasonable
judgment, must be reasonable and consistent with industry and financial
standards.
(i) Master Guarantee Agreement. The fully executed Master Guarantee
Agreement, and a fully executed Eximbank Approval, each of which shall be in
full force and effect.
(j) Note. The Note(s) in the aggregate principal amount of the Credit
shall have been fully executed by the Borrower, endorsed by the Guarantor, and
delivered to the Lender, with a copy to Eximbank.
(k) Registration. Evidence that the Borrower Documents have been
registered at the Public Registry of Titles and Documents in the City of Sao
Paulo.
(l) Outside Counsel. Evidence that the reasonable fees and out-of-pocket
expenses due and payable to counsel to the Lender and Eximbank have been fully
paid.
(m) No Event of Default. No Event of Default and no event which but for
the giving of notice or the lapse of time or both would constitute an Event of
Default exists at the time all the foregoing conditions have been satisfied or
waived.
6.02 Condition Precedent to Each Utilization. The obligation of the Lender
to permit any Utilization, including the first Utilization, shall be subject to
the delivery to the Lender and Eximbank of the documents indicated below (each
in form and substance satisfactory to the Lender and Eximbank) and to the
fulfillment, as of the date of such Utilization (in a manner satisfactory to the
Lender and Eximbank) of the conditions set forth below:
(a) This Agreement, Guarantor Guarantee and Master Guarantee Agreement.
This Agreement, the Guarantor Guarantee described in Section 3, the Master
Guarantee Agreement and the Eximbank Approval each shall each continue to be in
fall force and effect.
(b) No Restrictions. No law, regulation, ruling or other action of any
Governmental Authority or Other Governmental Authority shall be in effect or
shall have occurred, the
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effect of which would be to prevent any party to this Agreement from fulfilling
its obligations.
(c) Utilization Documents. The Lender and Eximbank shall have received the
documents required under Annex B with respect to the requested Utilization,
including, without limitation, invoices, Suppliers' Certificates and bills of
lading, if applicable.
(d) Legal Opinions. If, since the date of the legal opinion furnished
pursuant to Section 6.01(e), there has been a change in circumstances that could
have a material adverse effect on the ability of the Borrower or the Guarantor,
as the case may be, to perform its obligations hereunder or under any Note, then
Eximbank or the Lender may request supplemental legal opinions with respect to
the possible consequences of such changed circumstances. Such supplemental
opinions shall be dated as of the date on which the Utilization was requested,
be addressed and delivered to Eximbank and the Lender and be in form and
substance satisfactory to Eximbank and the Lender.
(e) Fees and Expenses. Eximbank shall have been paid the Exposure Fee. All
other fees and expenses then due and payable under Section 7 shall have been
paid.
(f) Guarantee Certificate. Eximbank shall have issued a Guarantee
Certificate with respect to the requested Utilization.
(g) Utilization by way of Letter of Credit. If the Utilization is by way
of a letter of credit such letter of credit shall be in form and substance
satisfactory to the Agent and Eximbank.
(h) Purchase Contract(s). For each Utilization of the Credit relating to
Tranche Two, the Lender and Eximbank shall have received copies of all
applicable Purchase Contract(s) for the shipments being financed by such
Utilization.
(i) Other Documents. Such other documents, certificates, instruments or
information relating to this Agreement or any Note or the transactions
contemplated hereby as either the Lender or Eximbank may have reasonably
requested shall have been delivered in form and substance satisfactory to
Eximbank and the Lender.
(j) No Event of Default. No Event of Default and no event which but for
the giving of notice or the lapse of time or both would constitute an Event of
Default exists or will exist after giving effect to the requested Utilization.
SECTION 7. FEES AND EXPENSES
7.01 Fees.
(a) The Borrower shall pay or cause to be paid to Eximbank the following
fees:
(i) a guarantee commitment fee ("Guarantee Commitment Fee") of
one-eighth of one percent (1/8%) per annum on the uncancelled and undisbursed
balance from time to
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time of the Credit, computed on the basis of the actual number of days elapsed
(including the first day but excluding the last), using a 360-day year, accruing
from August 5, 1996 to the Final Disbursement Date, and payable on October 15
and April 15 of each year, beginning on April 15, 1997; and
(ii) no later than each Disbursement Date, an exposure fee (an
"Exposure Fee") equal to 4.14% of the amount of such Disbursement that
represents the Financed Portion of the Items.
For the avoidance of doubt, the parties hereto acknowledge and agree that the
Guarantee Commitment Fee shall continue to accrue and become due and payable as
described above during any period in which Utilizations are suspended as
described in Section 10.02(a).
(b) The Borrower shall pay or cause to be paid to the Lender fees in
accordance with the fee letter dated as of the date hereof.
7.02 Taxes.
(a) The Borrower and the Guarantor each agrees to pay all amounts owing by
it under this Agreement or any Note free and clear of and without deduction or
withholding for or on account of any Taxes.
(b) The Borrower and the Guarantor each further agrees:
(i) that, if the Borrower or the Guarantor, as the case may be, is
prevented by operation of law from paying any such Taxes or any such Taxes are
required to be deducted or withheld, then the interest, fees or expenses
required to be paid under this Agreement or any Note shall, on an after-tax
basis, be increased by the amount necessary to yield to the Lender or Eximbank,
as the case may be, interest, fees or expenses in the amounts provided for in
this Agreement or such Note after the provision for the payment of all such
Taxes;
(ii) that the Borrower and/or the Guarantor shall, at the request of
either the Lender or Eximbank, execute and deliver to the Lender or Eximbank, as
the case may be, such further instruments as may be necessary or desirable to
effect the payment of the increased amounts as provided for in subsection (i)
above, including new Note(s) to be issued by the Borrower and endorsed by the
Guarantor in exchange for any Note(s) previously issued;
(iii) that the Borrower and the Guarantor shall hold the Lender and
Eximbank harmless from and against any liabilities with respect to any Taxes
(whether or not properly or legally asserted); and
(iv) that, at the request of either the Lender or Eximbank, the
Borrower or the Guarantor, as the case may be, shall provided the Lender and
Eximbank, within the later of thirty (30) days after such request or thirty (30)
days after the actual payment of such Taxes, with the original or a certified
copy of evidence of the payment of any Taxes by the Borrower or the Guarantor,
or, if no Taxes have been paid, provide the Lender and
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Eximbank, at the request of either the Lender or Eximbank, with a certificate
from the appropriate taxing authority or an opinion of counsel acceptable to the
Lender and Eximbank stating that no Taxes are payable.
(c) Notwithstanding anything to the contrary contained herein, the
agreements in this Section 7.02 shall survive the termination of this Agreement
and the payment of the Note(s) and all other amounts due hereunder.
7.03 Expenses. The Borrower agrees, whether or not the transactions hereby
contemplated shall be consummated, to pay, or reimburse the Lender and Eximbank,
respectively, promptly upon demand for the payment of all reasonable and duly
documented costs and expenses arising in connection with the preparation,
printing, execution, delivery, registration, implementation, modification of or
waiver or consent under, the Borrower Documents and the Master Guarantee
Agreement, including, without limitation, the reasonable and duly documented
out-of-pocket expenses of the Lender and Eximbank (incurred in respect of
telecommunications, mail or courier service, travel and the like), the fees and
expenses of counsel for the Lender and/or Eximbank, and all Taxes (including,
without limitation, interest and penalties, if any) which may be payable in
respect of the Borrower Documents and the Master Guarantee Agreement. The
Borrower shall also pay all of the costs and expenses (including, without
limitation, the fees and expenses of counsel and all Taxes) incurred by or
charged to the Lender or Eximbank in connection with the amendment or
enforcement of any of the Borrower Documents or the protection or preservation
of any right or claim of the Lender or Eximbank arising out of any of the
Borrower Documents, All amounts payable by the Borrower pursuant to this Section
7.03 shall be paid by the Borrower in the currency in which the same has been
incurred and is payable by the Lender or Eximbank, as the case may be.
7.04 Additional or Increased Costs.
(a) If, due to any Regulatory Change that: (i) changes the basis of
taxation of any amounts payable to the Lender (other than taxes imposed on the
overall net income of the Lender or of the office out of which it is acting
hereunder); (ii) imposes or modifies any reserve, special deposit, deposit
insurance or assessment affecting the Lender; or (iii) imposes any other
condition affecting this Agreement or any Note, there shall be any increase in
the cost to the Lender of agreeing to make or making, funding or maintaining any
Utilization, then the Borrower shall from time to time, upon demand by the
Lender, pay to the Lender additional amounts sufficient to compensate the Lender
for such increased cost.
(b) Without duplication of Section 7.04(a), if the Lender, in its
reasonable judgment, determines at any time that any Regulatory Change will have
the effect of increasing the amount of capital required or expected to be
maintained by the Lender (which term, for purposes of this Section 7.04(b),
shall include any corporation controlling the Lender) based on the existence of
the Lender's obligations hereunder, then the Borrower shall pay to the Lender,
upon demand by the Lender, such additional amounts as shall be required to
compensate the Lender for the increased cost to the Lender as a result thereof
(which compensation shall include, without limitation, an amount equal to any
reduction in return on
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assets or equity of the Lender to a level below that which it could have
achieved but for such Regulatory Change, taking into account the Lender's
policies as to capital adequacy).
(c) "Regulatory Change" shall mean the introduction or change after the
date of this Agreement of or in United States or foreign national, state,
municipal laws or regulations or in the interpretation or administration
thereof, or the adoption or making after such date of any directives or requests
(whether or not having the force of law) by any United States or foreign
national, state, or municipal court or monetary authority, or other Governmental
Authority or Other Governmental Authority.
(d) The Lender shall take such reasonable steps as it shall determine in
its sole discretion to minimize amounts demanded under this Section 7.04. In the
event that the Lender transfers the booking office of the Credit to minimize
amounts demanded under this Section 7.04, any costs and expenses incurred in
such transfer shall be paid by the Borrower on demand by the Lender.
(e) Each demand for payment by the Lender under this Section 7.04 shall be
accompanied by a certificate showing in reasonable detail the basis for the
calculation of the amounts demanded, which certificate, in the absence of
manifest error, shall be conclusive and binding for all purposes.
SECTION 8. PAYMENTS
8.01 Method of Payment
(a) All payments to be made by the Borrower or the Guarantor under this
Agreement and any Note shall be made without set-off or counterclaim in Dollars
in immediately available and freely transferable funds no later than 11:00 A.M.
(New York City time) on the date on which due (as applicable):
(i) to the Lender at The Chase Manhattan Bank, 4 Chase Metrotech
Center, Brooklyn, New York 11245 for credit to the Lender's New York
International Banking Facility account no. 544748148, ABA No. 021000021; and
(ii) to Eximbank at the Federal Reserve Bank of New York for credit
to Eximbank's account: U.S. Treasury Department 021030004 TREAS NYC/CTR/BNF=/AC-
4984 OBI=Export-Import Bank Due ________ on EIB Guarantee No. AP 069910XX
- -Brazil from TVA Sistema de Televisao S.A.
(b) Except as otherwise provided herein, whenever any payment would
otherwise fall due on a day which is not a Business Day, the due date for
payment shall be the immediately succeeding Business Day and interest and fees
shall be computed in accordance with Section 12.01.
8.02 Application of Payments. The Lender and Eximbank shall each apply
payments received by it under this Agreement or any Note (whether at stated
maturity, by reason of acceleration, prepayment or otherwise), including without
limitation any payments under the
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Guarantor Guarantee, in the following order of priority: (a) interest due
pursuant to Section 5.02(a)(ii), but only to the extent such amounts are
included in the "Guaranteed Amount" as such term is defined in the Master
Guarantee Agreement; (b) Guarantee Commitment Fees, Exposure Fees and all other
amounts due to Eximbank under this Agreement and not otherwise provided for
under this Section 8.02; (c) interest due pursuant to Section 5.02(a)(i); (d)
installments of principal due; and (e) all other amounts due under this
Agreement and not otherwise provided for in this Section 8.02. Payments with
respect to the Note(s) shall be applied pro rata to each Note in accordance with
the above priorities.
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS
9.01 Representations and Warranties of the Borrower.
(a) The Borrower represents and warrants to the Lender and Eximbank that:
(i) Existence and Authority. The Borrower is duly organized and
validly existing under the laws of the Borrower's Country, with full power,
authority and legal right to own its property and carry on its business as now
conducted, and has taken all actions necessary or advisable to authorize it to
execute, deliver, perform and observe the terms and conditions of the Borrower
Documents that the Borrower is a party to.
(ii) Government Authorizations. All consents, licenses,
authorizations and approvals of, and exemptions by, any Governmental Authority
and any Other Governmental Authority that are necessary or advisable: (A) for
the execution, delivery, performance and observance by the Borrower of the
Borrower Documents that the Borrower is a party to, including, without
limitation, approvals relating to the availability and transfer of Dollars
required to make all scheduled payments due under this Agreement and any Note;
(B) for the validity, binding effect and enforceability of the Borrower
Documents; (C) for the execution, delivery and performance of any Purchase
Contract and the importation and use of the Items in the Borrower's Country,
have been obtained and are in full force and effect.
(iii) Recordation. To ensure the legality, validity, enforceability,
priority or admissibility in evidence in the Borrower's Country of any of the
Borrower Documents, it is not necessary that any of the Borrower Documents be
registered, recorded, enrolled or otherwise filed with any court or other
Governmental Authority (other than registration of the Borrower Documents at the
Public Registry of Titles and Documents in the City of Sao Paulo), or be
notarized, or that any documentary, stamp or other similar tax, imposition or
charge of any kind be paid on or in respect of any of the Borrower Documents.
(iv) Restrictions. The execution, delivery and performance or
observance by the Borrower of the terms of, and consummation by the Borrower of
the transactions contemplated by, each of the Borrower Documents that the
Borrower is a party to does not and will not conflict with or result in a breach
or violation of: (A) the charter, by-laws or similar documents of the Borrower;
(B) any law of the Borrower's Country or any other ordinance, decree,
constitutional provision, regulation or other requirement of any Governmental
Authority (including, without limitation, any restriction on interest that may
be paid by the Borrower); or (C) any order, writ, injunction, judgment or decree
of any court
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or other tribunal. Further, the execution, delivery and performance or
observance by the Borrower of the terms of, and consummation by the Borrower of
the transactions contemplated by, each of the Borrower Documents that the
Borrower is a party to does not and will not conflict with or result in a breach
of any agreement or instrument to which the Borrower is a party, or by which it
or any of its revenues, properties or assets may be subject, or result in the
creation or imposition of any Lien upon any of the revenues, properties or
assets of the Borrower pursuant to any such agreement or instrument.
(v) Binding Effect. This Agreement and the other Borrower Documents
that the Borrower is a party to which have been executed on or before the date
hereof have been duly executed and delivered by the Borrower. Each of the
Borrower Documents that the Borrower is a party to which has been executed and
delivered constitutes, and each such Borrower Document which may hereafter be
executed and delivered will constitute, a direct, general and unconditional
obligation of the Borrower which is legal, valid and binding upon the Borrower
and enforceable against the Borrower in accordance with its respective terms,
except as such enforceability may be limited by applicable insolvency,
reorganization, liquidation, moratorium, readjustment of debt or other similar
laws affecting the enforcement of creditors' rights generally and by the
application of general principles of equity regardless of whether such
enforceability is considered in a proceeding at law or in equity. The Borrower's
payment obligations under this Agreement rank, and under any Note, when issued,
will rank, in all respects at least pari passu in priority of payment and in
right of security with all other unsecured debt of the Borrower, except, in the
case of the bankruptcy or liquidation of the Borrower, for debts of the Borrower
related to taxes or wages.
(vi) Choice of Law. Under the conflict of laws principles in the
Borrower's Country, the choice of law provisions of this Agreement and the
Note(s) are valid, binding and not subject to revocation by the Borrower, and,
in any proceedings brought in the Borrower's Country for enforcement of any of
the Borrower Documents, the choice of the law of the State of New York as the
governing law of such documents will be recognized and such law will be applied,
provided that the applicable provisions of New York law are not in conflict with
Brazilian public policy, good customs or national sovereignty.
(vii) Commercial Activity. The Borrower Documents that the Borrower
is a party to and the transactions contemplated thereby constitute commercial
activities (rather than governmental or public activities) of the Borrower, and
the Borrower is subject to private commercial law with respect thereto.
(viii) Legal Proceedings. No legal proceedings are pending or, to
the best of the Borrower's knowledge, threatened before any court, Governmental
Authority or any Other Governmental Authority which might: (A) materially and
adversely affect the Borrower's financial condition, business or operations; (B)
restrain or enjoin or have the effect of restraining or enjoining the
performance or observance of the terms and conditions of any of the Borrower
Documents; or (C) in any other manner question the validity, binding effect or
enforceability of any of the Borrower Documents.
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(ix) Purchase Contract(s). No applicable law of the Borrower's
Country is or will be violated by either any Purchase Contract or the Borrower's
performance of its obligations under any Purchase Contract.
(x) Use of Items. The Items will be used for lawful purposes.
(xi) Borrower Financial Statements. The Borrower Financial
Statements present fairly the financial condition of the Borrower at the date of
such statements and the results of the operations of the Borrower for such
fiscal year. The Borrower Financial Statements have been prepared in accordance
with generally accepted accounting principles in the Borrower's Country
consistently applied. Except as fully reflected in the Borrower Financial
Statements, there are no liabilities or obligations with respect to the Borrower
of any nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) for the period to which the Borrower Financial Statements
relate that, either individually or in the aggregate, would be material to the
Borrower. Since the date of the Borrower Financial Statements, there has been no
material adverse change in the financial condition, business, prospects or
operations of the Borrower.
(xii) No Taxes. There is no Tax imposed on or in connection with:
(A) the execution, delivery or performance of any of the Borrower Documents; (B)
the enforcement of any of the Borrower Documents, other than applicable court
costs and filing fees; or (C) on any payment to be made to the Lender or
Eximbank under any of the Borrower Documents.
(xiii) No Delinquency on Amounts Due to the United States. To the
best of the Borrower's knowledge and belief after due diligence, the Borrower is
not delinquent on any amounts due and owing to any Other Governmental Authority
of the United States as of the date of this Agreement.
(xiv) Suspension and Debarment, etc. On the date of this Agreement,
neither the Borrower nor its Principals are (A) debarred, suspended, proposed
for debarment with a final determination still pending, declared ineligible or
voluntarily excluded (as such terms are defined in any of the Debarment
Regulations) from participating in procurement or nonprocurement transactions
with any United States federal government department or agency pursuant to any
of the Debarment Regulations or (B) indicted, convicted or had a civil judgment
rendered against the Borrower or any of its Principals for any of the offenses
listed in any of the Debarment Regulations. Unless authorized by Eximbank, the
Borrower will not knowingly enter into any transactions in connection with the
Items with any person who is debarred, suspended, declared ineligible or
voluntarily excluded from participation in procurement or nonprocurement
transactions with any United States federal government department or agency
pursuant to any of the Debarment Regulations. The Borrower will provide
immediate written notice to Eximbank if at any time it learns that the
certification set forth in this Section 9.01(a)(xiv) was erroneous when made or
has become erroneous by reason of changed circumstances. For the purposes
hereof, (1) "Principals", with respect to the Borrower or the Guarantor, as the
case may be, shall mean any officer, director, owner, partner, key employee, or
other Person with primary management or supervisory responsibilities with
respect to the Borrower or Guarantor, as the case may be, or any other
-23-
Person (whether or not an employee) who has critical influence on or substantive
control over the transaction covered by this Agreement and (2) the "Debarment
Regulations" shall mean (x) the Governmentwide Debarment and Suspension
(Nonprocurement) regulations (Common Rule), 53 Fed. Reg. 19204 (May 26, 1988),
(y) Subpart 9.4 (Debarment, Suspension, and Ineligibility) of the Federal
Acquisition Regulations, 48 C.F.R. 9.400-9.409 and (z) the revised
Governmentwide Debarment and Suspension (Nonprocurement) regulations (Common
Rule), 60 Fed. Reg. 33037 (June 26, 1995).
(b) The representations and warranties of the Borrower set forth in
Section 9.01 (a) shall be deemed repeated as of the date of each Utilization,
with the same force and effect as if made on such date.
9.02 Affirmative Covenants of the Borrower. The Borrower covenants and
agrees that until all amounts owing under this Agreement and the Note(s) have
been paid in full, the Borrower will, unless the Lender and Eximbank shall have
consented in writing:
(a) Notice of Defaults. Promptly but in no event later than ten (10) days
after the occurrence of an Event of Default or of any event which but for the
giving of notice or the lapse of time or both would constitute an Event of
Default notify the Lender and Eximbank by telecopier or hand delivery of the
particulars of such occurrence and the corrective action proposed to be taken by
the Borrower with respect thereto.
(b) Financial Reports. Beginning with the fiscal year in which this
Agreement is executed and continuing until all amounts owing under this
Agreement and the Note(s) have been paid in full, the Borrower shall furnish to
the Lender and Eximbank, within 180 days after the end of its fiscal year, a
copy of its annual consolidated financial statements, including its balance
sheet, statement of income, and statement of cash flow, for that fiscal year,
all of which shall have been audited by an independent accounting firm
acceptable to Eximbank. All financial reports to be submitted to the Lender or
Eximbank shall be prepared in accordance with generally accepted accounting
principles in the Borrower's Country consistently applied, shall be in the
English language (or accompanied by an accurate English translation), shall
include the auditor's opinion and any accompanying notes, and shall fairly
present the financial condition of the Borrower and the results of its
operations for the periods covered. The Borrower agrees to submit to the Lender
and Eximbank such additional financial reports and other data and information
regarding its financial condition, business and operations as the Lender or
Eximbank may reasonably request.
(c) Inspections. Permit representatives of the Lender and Eximbank to make
reasonable inspections during commercial business hours of the project using or
incorporating the Items and of the Borrower's books and records in connection
with this Agreement and the transactions contemplated hereby (including, without
limitation, records regarding the use of the Items), and cause the Borrower's
officers and employees to give full cooperation and assistance in connection
therewith.
(d) Notice of Disputes. Promptly give written notice to the Lender and
Eximbank of any material dispute which may exist between the Borrower and (i)
the Guarantor or any
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Governmental Authority, (ii) any Other Governmental Authority, or (iii) any
international financial institutions.
(e) Government Authorizations. Promptly obtain and maintain all consents,
licenses, authorizations and approvals of, and exemptions by, any Governmental
Authority and any Other Governmental Authority that are necessary or advisable:
(i) for the execution, delivery, performance and observance by the Borrower of
the Borrower Documents that the Borrower is a party to, including, without
limitation, all approvals relating to the availability and transfer of Dollars
required to make all payments due under this Agreement and any Note; (ii) for
the validity, binding effect and enforceability of the Borrower Documents; and
(iii) for the execution, delivery and performance of any Purchase Contract and
the importation and use of the Items in the Borrower's Country.
(f) Pari Passu. Ensure that its payment obligations under this Agreement
and any Note will at all times constitute the direct, general and unconditional
obligations of the Borrower and rank in all respects at least pari passu in
priority of payment and in right of security with all other unsecured debt of
the Borrower, except, in the case of the bankruptcy or liquidation of the
Borrower, for debts of the Borrower related to taxes or wages.
(g) Acquisition List. Obtain the prior written consent of the Lender and
Eximbank to any material alteration of the Acquisition List.
(h) Purchase Contract(s). Obtain the prior written consent of the Lender
and Eximbank to any assignment of the Borrower's rights or obligations under any
Purchase Contract or to any material modification to or cancellation of any
Purchase Contract.
(i) Other Acts. From time to time, do and perform any and all acts and
execute any and all documents as may be necessary or as reasonably requested by
the Lender or Eximbank in order to effect the purposes of this Agreement and to
protect the interests of the Lender and Eximbank in the Note(s) and the
interests of the Lender in the Eximbank Guarantee.
9.03 Negative Covenants of the Borrower. The Borrower covenants and agrees
that until all amounts owing under this Agreement and the Note(s) have been paid
in full, it will not, without the prior written consent of the Lender and
Eximbank:
(a) Liens on Items. Create, assume, permit or suffer to exist any Liens on
any of the Items, except the following (each, a "Permitted Lien"):
(i) Liens for taxes, assessments or governmental charges or levies
if the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than thirty (30) days past
due or which are being contested in good
-25-
faith by appropriate proceedings and for which adequate reserves shall have been
set aside on its books.
(iii) Liens granted to a bank in connection with the issuance of a
Letter of Credit, which liens shall be released automatically when such bank is
reimbursed for payments made under such Letter of Credit.
(b) Sale, Lease or Transfer of Items. Sell, lease or otherwise transfer,
or agree to sell, lease or otherwise transfer, any Item or a component of any
Item, except for leases of decoders and other equipment entered into between the
Borrower and its subscribers.
(c) Use of the Items. Use, or permit the use of, the Items outside the
Borrower's Country.
(d) Change in Business. Make any substantial change in the scope or nature
of its business or operations.
(e) Merger, Consolidation, Dissolution and Sale. (i) Merge or consolidate
with any other entity (other than a merger or consolidation with an entity that
is controlled by or is under common control with the Borrower; provided that (a)
the Borrower is the corporation surviving such merger or consolidation and (b)
no material adverse effect on the business condition (financial or otherwise) or
operations of the Borrower or on the ability of the Borrower to perform its
obligations under this Agreement or any Note results therefrom); (ii) dissolve
or terminate its legal existence; (iii) sell, lease, transfer or otherwise
dispose of any substantial part of its properties or any of its properties
essential to the conduct of its business or operations, as now or hereafter
conducted, except for leases of decoders and other equipment entered into
between the Borrower and its subscribers; or (iv) enter into any agreement to do
any of the foregoing.
9.04 Representations and Warranties of the Guarantor. (a) The Guarantor
represents and warrants to the Lender and Eximbank that:
(i) Existence and Authority. The Guarantor is duly organized and
validly existing under the laws of the Guarantor's Country, with full power,
authority and legal right to own its property and carry on its business as now
conducted. The Guarantor has taken all actions necessary or advisable to
authorize it to execute, deliver, perform and observe the terms and conditions
of the Borrower Documents that the Guarantor is a party to.
(ii) Government Authorizations. All consents, licenses,
authorizations and approvals of, and exemptions by, any Governmental Authority
and any Other Governmental Authority that are necessary or advisable: (A) for
the execution, delivery, performance and observance by the Guarantor of the
Borrower Documents that the Guarantor is a party to, including, without
limitation, approvals relating to the availability and transfer of Dollars
required to make all scheduled payments due under this Agreement and the
Note(s); and (B) for the validity, binding effect and enforceability of the
Borrower Documents, have been obtained and are in full force and effect.
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(iii) Recordation. To ensure the legality, validity, enforceability,
priority or admissibility in evidence in the Guarantor's Country of any of the
Borrower Documents, it is not necessary that any of the Borrower Documents be
registered, recorded, enrolled or otherwise filed with any court or other
Governmental Authority (other than registration of the Borrower Documents at the
Public Registry of Titles and Documents in the City of Sao Paulo), or be
notarized, or that any documentary, stamp or other similar tax, imposition or
charge of any kind be paid on or in respect of this Agreement or the Note(s).
(iv) Restrictions. The execution, delivery and performance or
observance by the Guarantor of the terms of, and consummation by the Guarantor
of the transactions contemplated by, each of the Borrower Documents that the
Guarantor is a party to, does not and will not conflict with or result in a
breach or violation of: (A) the charter, by-laws or similar documents of the
Guarantor; (B) any law of the Guarantor's Country or any other ordinance,
decree, constitutional provision, regulation or other requirement of any
Governmental Authority (including, without limitation, any restriction on
interest that may be paid); or (C) any order, writ, injunction, judgment or
decree of any court or other tribunal. Further, the execution, delivery and
performance or observance by the Guarantor of the terms of the Borrower
Documents that the Guarantor is a party to does not and will not conflict with
or result in a breach of any agreement or instrument to which the Guarantor is a
party, or by which it or any of its revenues, properties or assets may be
subject, or result in the creation or imposition of any Lien upon any of the
revenues, properties or assets of the Guarantor pursuant to any such agreement
or instrument.
(v) Binding Effect. This Agreement and the other Borrower Documents
that the Guarantor is a party to which have been executed on or before the date
hereof have been, and the Notes when executed will be, duly executed and
delivered by the Guarantor. Each of the Borrower Documents that the Guarantor is
a party to which has been executed and delivered constitutes, and each such
Borrower Document which may hereafter be executed and delivered will constitute,
a direct, general and unconditional obligation of the Guarantor which is legal,
valid and binding upon the Guarantor and enforceable against the Guarantor in
accordance with its respective terms, except as such enforceability may be
limited by applicable insolvency, reorganization, liquidation, moratorium,
readjustment of debt or other similar laws affecting the enforcement of
creditors' rights generally and by the application of general principles of
equity regardless of whether such enforceability is considered in a proceeding
at law or in equity. The Guarantor's payment obligations under this Agreement
rank, and under any Note, when issued, will rank, in all respects at least pari
passu in priority of payment and in right of security with all other unsecured
debt of the Guarantor, except, in the case of the bankruptcy or liquidation of
the Guarantor, for debts of the Guarantor related to taxes or wages.
(vi) Choice of Law. Under the conflict of laws principles in the
Guarantor's Country, the choice of law provisions of this Agreement and the
Note(s) are valid, binding and not subject to revocation by the Guarantor, and,
in any proceedings brought in the Guarantor's Country for enforcement of any of
the Borrower Documents, the choice of the law of the State of New York as the
governing law of such documents will be recognized and such law will be applied,
provided that the applicable provisions of New York law are not in conflict with
Brazilian public policy, good customs or national sovereignty.
-27-
(vii) Commercial Activity. The Borrower Documents that the Guarantor
is a party to and the transactions contemplated thereby constitute commercial
activities (rather than governmental or public activities) of the Guarantor, and
the Guarantor is subject to private commercial law with respect thereto.
(viii) Legal Proceedings. No legal proceedings are pending or, to
the best of the Guarantor's knowledge, threatened before any court, Governmental
Authority or Other Governmental Authority which might: (A) restrain or enjoin or
have the effect of restraining or enjoining the performance or observance of the
terms and conditions of any of the Borrower Documents; or (B) in any other
manner question the validity, binding effect or enforceability of any of the
Borrower Documents; or (C) materially or adversely affect the Guarantor's
financial condition, business or operations.
(ix) Guarantor Financial Statements. The Guarantor Financial
Statements present fairly the financial condition of the Guarantor at the date
of such statements and the results of the operations of the Guarantor for such
fiscal year. The Guarantor Financial Statements have been prepared in accordance
with generally accepted accounting principles in the Guarantor's Country
consistently applied. Except as fully reflected in the Guarantor Financial
Statements, there are no liabilities or obligations with respect to the
Guarantor of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) for the period to which the Guarantor
Financial Statements relate that, either individually or in the aggregate, would
be material to the Guarantor. Since the date of the Guarantor Financial
Statements, there has been no material adverse change in the financial
condition, business, prospects or operations of the Guarantor.
(x) No Taxes. There is no Tax imposed on or in connection with: (A)
the execution, delivery or performance of any of the Borrower Documents; (B) the
enforcement of any of the Borrower Documents, other than applicable court costs
and filing fees; or (C) on any payment to be made to the Agent or Eximbank under
any of the Borrower Documents.
(xi) Suspension and Debarment, etc. On the date of this Agreement
neither the Guarantor nor its Principals are (A) debarred, suspended, proposed
for debarment with a final determination still pending, declared ineligible or
voluntarily excluded (as such terms are defined any of the Debarment
Regulations) from participating in procurement or nonprocurement transactions
with any United States federal government department or agency pursuant to any
of the Debarment Regulations or (B) indicted, convicted or had a civil judgment
rendered against the Guarantor or any of its Principals for any of the offenses
listed in any of the Debarment Regulations. Unless authorized by Eximbank, the
Guarantor will not knowingly enter into any transactions in connection with the
Items with any person who is debarred, suspended, declared ineligible or
voluntarily excluded from participation in procurement or nonprocurement
transactions with any United States federal government department or agency
pursuant to any of the Debarment Regulations. The Guarantor will provide
immediate written notice to Eximbank if at any time it learns that the
certification set forth in this Section 9.04(a)(xii) was erroneous when made or
has become erroneous by reason of changed circumstances.
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(b) The representations and warranties of the Guarantor set forth in this
Section 9.04 shall be deemed repeated as of the date of each Utilization, with
the same force and effect as if made on such date.
9.05 Affirmative Covenants of the Guarantor. The Guarantor covenants and
agrees that until all amounts owing under this Agreement and the Note(s) have
been paid in full, the Guarantor will, unless the Lender and Eximbank shall have
consented in writing:
(a) Notice of Defaults. Promptly but in no event later than ten (10) days
after the occurrence of an Event of Default, or of any event which but for the
giving of notice or the lapse of time or both would constitute an Event of
Default, notify the Lender and Eximbank by telecopier or hand delivery of the
particulars of such occurrence and the corrective action proposed to be taken by
the Guarantor with respect thereto.
(b) Financial Reports. Beginning with the fiscal year in which this
Agreement is executed and continuing until all amounts owing under this
Agreement and the Note(s) have been paid in full, the Guarantor shall furnish to
the Lender and Eximbank, within 180 days after the end of its fiscal year, a
copy of its annual consolidated financial statements, including its balance
sheet, statement of income, and statement of cash flow, for that fiscal year,
all of which shall have been audited by an independent accounting firm
acceptable to Eximbank. All financial reports to be submitted to the Lender or
Eximbank shall be prepared in accordance with generally accepted accounting
principles in the Guarantor's Country consistently applied, shall be in the
English language (or accompanied by an accurate English translation), shall
include the auditor's opinion and any accompanying notes, and shall fairly
present the financial condition of the Guarantor and the results of its
operations for the periods covered. The Guarantor agrees to submit to the Lender
and Eximbank such additional financial reports and other data and information
regarding its financial condition, business and operations as the Lender or
Eximbank may reasonably request.
(c) Inspections. Permit representatives of the Lender and Eximbank to make
reasonable inspections during commercial business hours of the Guarantor's books
and records in connection with this Agreement, and cause the Guarantor's
officers and employees to give full cooperation and assistance in connection
therewith.
(d) Notice of Disputes. Promptly give written notice to the Lender and
Eximbank of any material dispute which may exist between the Guarantor and (i)
the Borrower, (ii) any Governmental Authority or (iii) any international
financial institutions.
(e) Government Authorizations. Promptly obtain and maintain all consents,
licenses, authorizations and approvals of and exemptions by, any Governmental
Authority and any Other Governmental Authority that are necessary or advisable:
(i) for the execution, delivery, performance and observance by the Guarantor of
the Borrower Documents that the Guarantor is a party to, including, without
limitation, approvals relating to the availability and transfer of dollars
required to make all payments due under this Agreement and any Note; and (ii)
for the validity, binding effect and enforceability of the Borrower Documents.
-29-
(f) Pari Passu. Ensure that its payment obligations under this Agreement
and the Note(s) will at all times constitute the direct, general and
unconditional obligations of the Guarantor and rank in all respects at least
pari passu in priority of payment and in right of security with all other
unsecured debt of the Guarantor, except, in the case of the bankruptcy or
liquidation of the Guarantor, for debts of the Guarantor related to taxes or
wages.
(g) Other Acts. From time to time, do and perform any and all acts and
execute any and all documents as may be necessary or as reasonably requested by
the Lender or Eximbank in order to effect the purposes of this Agreement and to
protect the interests of the Lender and Eximbank in the Note(s) and the
interests of the Lender in the Eximbank Guarantee.
9.06 Negative Covenants of the Guarantor. The Guarantor covenants and
agrees that until all amounts owing under this Agreement and the Note(s) have
been paid in full, it will not, without the prior written consent of the Lender
and Eximbank
(a) Interference. Take any action which would prevent or interfere with
the observance and performance by the Borrower of any covenant, agreement or
obligation of the Borrower set forth in any of the Borrower Documents.
(b) Subrogation. Exercise any rights of subrogation which it may acquire
due to its payment of the Borrower's obligations pursuant to the Guarantor
Guarantee unless and until all sums payable under this Agreement and the Note(s)
have been paid in full, and if any payment shall be made to the Guarantor on
account of such rights of subrogation, it shall promptly pay such amount to the
Lender.
(c) Change in Business. Make any substantial change in the scope or nature
of its business or operations.
(d) Merger, Consolidation, Dissolution and Sale. (i) Merge or consolidate
with any other entity (other than a merger or consolidation with an entity that
is controlled by or is under common control with the Guarantor; provided that
(a) the Guarantor is the corporation surviving such merger or consolidation and
(b) no material adverse effect on the business condition (financial or
otherwise) or operations of the Guarantor or on the ability of the Guarantor to
perform its obligations under this Agreement or any Note results therefrom);
(ii) dissolve or terminate its legal existence; (iii) sell, lease, transfer or
otherwise dispose of any substantial part of its properties or any of its
properties essential to the conduct of its business or operations, as now or
hereafter conducted, except for leases of decoders and other equipment entered
into between the Guarantor and its subscribers; or (iv) enter into any agreement
to do any of the foregoing.
SECTION 10. CANCELLATION, SUSPENSION AND EVENTS OF DEFAULT
10.01 Cancellation by the Borrower. The Borrower may cancel at any time
all or any part of the undisbursed and uncancelled amount of the Credit for
which Letters of Credit have not been issued, advised or confirmed, provided
that thirty (30) days' prior written notice
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is given to the Lender and Eximbank. In the event of a cancellation of all or
part of the Credit by the Borrower, the Borrower, on or before the proposed date
of cancellation, shall pay (a) to Eximbank all Guarantee Commitment Fees accrued
and unpaid under Section 7.01(a) and all other amounts due and payable to
Eximbank under this Agreement as of the proposed date of cancellation and (b) to
the Lender any commitment fees accrued and unpaid under Section 7.01(b) and all
other amounts due and payable to the Lender under this Agreement as of the
proposed date of cancellation.
10.02 Suspension and Cancellation by Eximbank.
(a) If an Event of Default should occur and be continuing, Eximbank, by
written notice to the Lender, the Borrower and the Guarantor, may: (i) suspend
further Utilizations of the Credit until Eximbank is satisfied that the cause of
such suspension has been removed; or (ii) cancel the unutilized and uncancelled
amount of the Credit, provided, however, that Eximbank shall not suspend or
cancel any portion of the Credit for which Letters of Credit have been issued,
advised or confirmed. In the event of a cancellation of all or part of the
Credit by Eximbank, the Borrower shall pay (1) to Eximbank all Guarantee
Commitment Fees accrued and unpaid under Section 7.01 (a) and all other amounts
due and payable to Eximbank under this Agreement as of the date of cancellation
and (2) to the Lender any commitment fees accrued and unpaid under Section
7.01(b) and all other amounts due and payable to the Lender under this Agreement
as of the date of cancellation.
(b) If all of the conditions precedent to the first Utilization, as
described in Section 6, are not fulfilled to the satisfaction of Eximbank (in
its sole discretion) on or prior to the "Required Operative Date" specified on
the Term Sheet hereof, then, after taking into account the circumstances of such
failure, Eximbank may, by written notice to the Lender and the Borrower, cancel
the Credit.
10.03 Events of Default. (a) Each of the following events or conditions
shall be an "Event of Default" under this Agreement:
(i) any failure by the Borrower to pay when due any amount owing
under this Agreement or any Note;
(ii) any failure by the Borrower or the Guarantor to comply with its
obligations under Sections 9.02(a) or 9.05(a), respectively;
(iii) any representation or warranty made or deemed made by the
Borrower or the Guarantor in this Agreement or in connection herewith, or any
statement made in any certificate, report or financial statement furnished by
the Borrower or the Guarantor to the Lender or Eximbank or any statement made in
the legal opinions of the Borrower or the Guarantor concerning facts relating to
the Borrower or the Guarantor, as the case may be, or the transactions
contemplated hereby, has proven to have been false or misleading in any material
respect when made;
(iv) any failure by the Borrower or the Guarantor to perform or
comply with any of the covenants or provisions set forth in this Agreement
(exclusive of any events
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specified as an Event of Default in any other subsection of this Section
10.03(a)), which failure, if capable of being cured, remains uncured for a
period of thirty (30) days after written notice thereof has been given to the
Borrower or the Guarantor, as the case may be, by the Lender or Eximbank;
(v) except for payments in all cases described below not exceeding
in the aggregate the amount of U.S.$10,000,000 or its equivalent, any failure by
the Borrower to pay when due, including any period of grace provided to the
Borrower with respect thereto, any amounts payable under any other agreement or
instrument providing for the payment by the Borrower of borrowed money or for
the deferred purchase price of property or services received, or any such amount
has, prior to the stated maturity thereof, become due, or any event specified in
any such agreement or instrument shall occur the effect of which event is to
cause, or (with the giving of notice or lapse of time or both) to permit any
Person to cause, such amounts to become due, or to be repaid in full, prior to
their stated maturity;
(vi) except for payments in all cases described below not exceeding
in the aggregate the amount of U.S.$10,000,000 or its equivalent, any failure by
the Guarantor to pay when due, including any period of grace provided to the
Guarantor with respect thereto, any amounts payable under any other agreement or
instrument providing for the payment by the Guarantor of borrowed money or for
the deferred purchase price of property or services received, or any such amount
has, prior to the stated maturity thereof, become due, or any event specified in
any such agreement or instrument shall occur the effect of which event is to
cause, or (with the giving of notice or lapse of time or both) to permit any
Person to cause, such amounts to become due, or to be repaid in full, prior to
their stated maturity;
(vii) either the Borrower or the Guarantor shall be unable to pay
its debts as they fall due or shall admit in writing its inability to pay its
debts as they fall due or shall become insolvent; or the Borrower or the
Guarantor shall apply for or consent to the appointment of any liquidator,
receiver, trustee or administrator for all or a substantial part of its
business, properties, assets or revenues; or a liquidator, receiver, trustee or
administrator shall be appointed for the Borrower or the Guarantor and such
appointment shall continue undismissed, undischarged or unstayed for a period of
thirty (30) days; or the Borrower or the Guarantor shall institute (by petition,
application, answer, consent or otherwise) any bankruptcy, arrangement,
readjustment of debt, dissolution, liquidation or similar executory or judicial
proceeding; or a bankruptcy, arrangement, readjustment of debt, dissolution,
liquidation or similar executory or judicial proceeding shall be instituted
against the Borrower or the Guarantor and shall remain undismissed, undischarged
or unstayed for a period of thirty (30) days;
(viii) any involuntary Lien other than Permitted Liens shall have
been created upon the property of the Borrower or the Guarantor in an amount
that, in the reasonable judgment of Eximbank, if the Borrower or the Guarantor,
as the case may be, were required to pay such amount, would affect materially
and adversely the ability of the Borrower or the Guarantor, as the case may be,
to pay its indebtedness under this Agreement or any Note, and such Lien has not
been removed or discharged for a period of thirty (30) days from the date of its
creation;
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(ix) any judgment against the Borrower or the Guarantor shall have
been entered on a claim not covered by insurance in an amount which, in the
reasonable judgment of Eximbank, if the Borrower or the Guarantor, as the case
may be, were required to pay such amount, would affect materially and adversely
the ability of the Borrower or the Guarantor, as the case may be, to pay its
indebtedness under this Agreement or any Note, and such judgment has remained
unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period of
thirty (30) days from the date of its entry;
(x) any Governmental Authority or Other Governmental Authority shall
have: (A) condemned, seized or expropriated all or substantially all of the
property of the Borrower or the Guarantor; or (B) taken any action which, in the
reasonable judgment of Eximbank, would affect materially and adversely the
ability of the Borrower or the Guarantor to pay its indebtedness under this
Agreement or any Note;
(xi) any authorization, approval, consent, license, exemption,
filing, registration, notarization or other requirement of any governmental,
judicial or public body or authority necessary to enable each of the Borrower or
the Guarantor to comply with its obligations hereunder or under any Note shall
have been revoked, rescinded, suspended, held invalid or otherwise limited in
effect in a manner that would affect materially and adversely the Borrower's or
the Guarantor's respective ability to perform its obligations hereunder or under
any Note; or any law, rule or regulation, decree or directive of any competent
authority shall be enacted or issued that shall impair materially and adversely
the ability or the right of the Borrower or the Guarantor, as the case may be,
to perform such obligations; or it shall become unlawful for the Borrower or the
Guarantor to perform any such obligations;
(xii) any Purchase Contract, or the performance by any party thereto
of such party's obligations under any Purchase Contract, in the reasonable
judgment of Eximbank, contravenes any applicable law;
(xiii) the Guarantor repudiates the Guarantor Guarantee or the
Guarantor Guarantee ceases for any reason to be in full force and effect; and
(xiv) any other event occurs or any other circumstance arises which,
in the reasonable judgment of Eximbank, is likely materially and adversely to
affect the ability of the Borrower or the Guarantor to perform all or any of its
obligations under this Agreement or under any Note.
(b) Upon the occurrence of any Event of Default, and at any time
thereafter, if such event is continuing, Eximbank, by written notice to the
Borrower, the Guarantor and the Lender, may declare immediately due and payable
(i) all or any portion of the principal amount of the Credit and any Note then
outstanding, including accrued interest thereon to the date of payment, and (ii)
all other amounts owing under this Agreement. Except as expressly provided in
Section 10.03(a), presentment, demand, protest and all other notices of any kind
are hereby expressly waived. The aforementioned right to accelerate is in
addition to and not a substitute for any other rights and remedies available to
the Lender and/or Eximbank under this Agreement and any Note and under
applicable laws.
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SECTION 11. GOVERNING LAW AND JURISDICTION
11.01 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, U.S.A.
11.02 Submission of Jurisdiction. The Borrower and the Guarantor hereby
each irrevocably agrees that any legal suit, action or proceeding arising out of
or relating to any of the Borrower Documents, or any of the transactions
contemplated thereby, may be instituted by the other parties hereto or any party
to any Borrower Document in the Courts of the State of New York or the Federal
Courts sitting in the Borough of Manhattan, City of New York, State of New York.
Each of the Borrower and the Guarantor hereby irrevocably waives, to the fullest
extent permitted by law, any objection which the Borrower or the Guarantor, as
the case may be, may have now or hereafter to the laying of the venue or any
objection based on forum non conveniens, or based on the grounds of jurisdiction
with respect to any such legal suit, action or proceeding, and irrevocably
submits generally and unconditionally to the jurisdiction of any such court in
any such suit, action or proceeding. The Borrower and the Guarantor each agrees
that a judgment in any such action or proceeding may be enforced in any other
jurisdiction, including without limitation the Borrower's Country and the
Guarantor's Country, by suit upon such judgment, a certified copy of which shall
be conclusive evidence of the judgment.
11.03 Service of Process.
(a) In the case of the Courts of the State of New York or of the Federal
Courts sitting in the State of New York, the Borrower and Guarantor each hereby
designates, appoints and empowers CT Corporation, 1633 Broadway, New York, New
York 10019, as its respective authorized agents to accept, receive and
acknowledge, for and on behalf of the Borrower and the Guarantor, respectively,
its properties and revenues, service of any and all process which may be served
in any action, suit or proceeding of the nature referred to above in the State
of New York, which appointment shall be irrevocable until the appointment and
acceptance of a successor authorized agent pursuant to the provisions of Section
11.03(d).
(b) The Borrower and the Guarantor each further agrees that such service
of process may be made personally or by mailing or delivering a copy of the
summons and complaint or other legal process in any such legal suit, action or
proceeding to the Borrower or the Guarantor, as the case may be, in care of its
respective agent designated above at the aforesaid address, and each such agent
is hereby authorized, respectively, to accept, receive and acknowledge the same
for and on behalf of the Borrower or the Guarantor, as the case may be, and to
admit service with respect thereto. Service upon each such agent shall be deemed
to be personal service on the Borrower or the Guarantor, as the case may be, and
shall be legal and binding upon the Borrower and the Guarantor, as the case may
be, for all purposes notwithstanding any failure to mail copies of such legal
process to the Borrower or the Guarantor, as the case may be, or any failure on
the part of the Borrower or the Guarantor, as the case may be, to receive the
same, and shall be deemed completed upon the delivery thereof to such agent
whether or not such respective agent shall give notice
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thereof to the Borrower or the Guarantor, as the case may be, or upon the
earliest other date permitted by applicable law (including, without limitation,
the United States Foreign Sovereign Immunities Act of 1976, as amended).
(c) To the extent permitted by applicable law, including, without
limitation, treaties by which the United States and the Borrower's Country or
the Guarantor's Country, as the case may be, are bound, the Borrower and the
Guarantor each further irrevocably agrees to the service of process of any of
the aforementioned courts in any suit, action or proceeding by the mailing of
copies thereof by certified mail, postage prepaid, return receipt requested, to
the Borrower or the Guarantor, as the case may be, at the address referenced in
Section 12.02, such service to be effective upon the date indicated on the
postal receipt returned from the Borrower or the Guarantor, as the case may be.
(d) The Borrower and the Guarantor each agrees that it will at all times
continuously maintain an agent to receive service of process in the State of New
York on behalf of itself and its properties and revenues, and, in the event that
for any reason its agent designated above shall not serve as agent for the
Borrower or the Guarantor, as the case may be, to receive service of process in
the State of New York on its behalf, the Borrower or the Guarantor, as the case
may be, shall promptly appoint a successor satisfactory to the Lender and
Eximbank so to serve, advise the Lender and Eximbank thereof, and deliver to the
Lender and Eximbank evidence in writing of the successor agent's acceptance of
such appointment. The foregoing provisions constitute, among other things, a
special arrangement for service between the parties to this Agreement for the
purposes of 28 U.S.C, ss. 1608.
11.04 Waiver of Immunity. The Borrower and the Guarantor hereby each
irrevocably agrees that, to the extent that the Borrower or the Guarantor, as
the case may be, or any of its assets has or may hereafter acquire any right of
immunity, whether characterized as sovereign immunity or otherwise, from any
legal proceedings, whether in the United States, the Borrower's Country, the
Guarantor's Country or elsewhere, to enforce or collect upon the Credit or any
Note or any other liability or obligation of the Borrower or the Guarantor
related to or arising from the transactions contemplated by any of the Borrower
Documents, including, without limitation, immunity from service of process,
immunity from jurisdiction or judgment of any court or tribunal, immunity from
execution of a judgment, and immunity of any of its property from attachment
prior to any entry of judgment, or from attachment in aid of execution upon a
judgment, the Borrower and the Guarantor each hereby expressly and irrevocably
waives any such immunity and agrees not to assert any such right or claim in any
such proceeding, whether in the United States, the Borrower's Country the
Guarantor's Country or elsewhere.
11.05 Waiver of Security Requirements. To the extent the Borrower and the
Guarantor may, in any action or proceeding arising out of or relating to any of
the Borrower Documents brought in the Borrower's Country, the Guarantor's
Country or elsewhere, be entitled under applicable law to require or claim that
the Lender or Eximbank post security for costs or take similar action, the
Borrower and the Guarantor hereby each irrevocably waives and agrees not to
claim the benefit of such entitlement.
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11.06 No Limitation. Nothing in this Section 11 shall affect the right of
the Lender or Eximbank to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the Borrower or the
Guarantor in the Borrower's Country, the Guarantor's Country or in any other
jurisdiction.
SECTION 12. MISCELLANEOUS
12.01 Computations. Each determination of an interest rate or fee by the
Lender or Eximbank pursuant to any provision of this Agreement or any Note, in
the absence of manifest error, shall be conclusive and binding on the Borrower
and the Guarantor. All computations of interest and fees hereunder and under any
Note shall be made on the basis of a year of 360 days and actual days elapsed.
All such calculations shall include the first day and exclude the last day of
the period of calculation.
12.02 Notices. Except as otherwise specified, all notices given hereunder
shall be in writing in the English language, shall include the applicable
Transaction Number and shall be given by mail, telecopier, tested telex or
personal delivery and shall be deemed to be given for the purposes of this
Agreement on the day that such notice is received by the intended recipient
thereof, except for notices given by Eximbank pursuant to Section 10, which
shall be deemed given on the earlier of: (a) the day on which such notice is
received by the intended recipient; or (b) the day on which such notice is
deposited in the mail or sent by telecopier, tested telex or personal delivery.
Unless otherwise specified in a notice delivered in accordance with this Section
12.02, all notices shall be delivered to the parties hereto at their respective
addresses indicated on the Term Sheet.
12.03 Disposition of Indebtedness. The Lender may sell, assign, transfer,
pledge, negotiate, grant participations in or otherwise dispose of all or any
part of its interest in all or any part of the Borrower's indebtedness under
this Agreement and any Note) to any party (collectively, a "Disposition of
Indebtedness"), and any such party shall enjoy all the rights and privileges of
the Lender under this Agreement and each Note that is the subject of such
Disposition of Indebtedness; provided, however, that such Disposition of
Indebtedness shall not, without the prior written consent of Eximbank, relieve
the Lender of its duties under this Agreement or the Master Guarantee Agreement.
The Borrower and the Guarantor shall, at the request of the Lender, execute and
deliver to the Lender, or to any party that the Lender may designate, any such
further instruments as may be necessary or desirable to give full force and
effect to a Disposition of Indebtedness by the Lender. Notwithstanding anything
to the contrary contained herein, neither the Borrower nor the Guarantor may
assign or otherwise transfer any of its debts or obligations under this
Agreement or any Note without the prior written consent of Eximbank and the
Lender. The Lender and Eximbank acknowledge that any Disposition of Indebtedness
(other than from the Lender to Eximbank) must be registered with the Central
Bank of the Borrower's Country (the "Central Bank") in order for the Borrower or
the Guarantor to be authorized to make payments due under this Agreement or any
Note. The Lender shall promptly notify the Borrower and the Guarantor of any
Disposition of Indebtedness, and the Borrower shall register such Disposition of
Indebtedness with the Central Bank within ten (10) days of receipt of such
notice. The Borrower and the Guarantor each hereby appoints the Lender or any of
its affiliates or assigns as the Borrower's and the Guarantor's agent and
attorney-in-fact to apply for the
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registration with the Central Bank of any Disposition of Indebtedness if the
Borrower or the Guarantor has not done so within such ten (10) day period.
12.04 Benefit of Agreement. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto.
12.05 Termination of Eximbank Guarantee. In the event the Eximbank
Guarantee terminates in its entirety pursuant to terms and conditions of the
Master Guarantee Agreement, as of the date of termination, the rights of
Eximbank under Section 10 shall automatically be deemed to have been assigned to
the Lender.
12.06 Disclaimer. Neither Eximbank nor the Lender shall be responsible in
any way for the performance of any Purchase Contract, and no claim against the
Supplier or any other person with respect to the performance of any Purchase
Contract will affect the obligations of the Borrower or the Guarantor under any
of the Borrower Documents.
12.07 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Lender or Eximbank in exercising any right, power or privilege under this
Agreement or the Note(s) and no course of dealing between or among the Borrower,
the Guarantor, the Lender and/or Eximbank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under the Note(s) preclude any other right, power or privilege hereunder or
thereunder. The rights and remedies expressly provided herein are cumulative and
not exclusive of any rights or remedies which the Lender or Eximbank would
otherwise have. No notice to or demand on the Borrower or the Guarantor in any
case shall entitle the Borrower or the Guarantor, as the case may be, to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Lender or Eximbank to any other or
further action in any circumstances without notice or demand.
12.08 Entire Agreement. This Agreement (together with the Borrower
Documents) contains the entire agreement among the parties hereto regarding the
Credit except for the Master Guarantee Agreement and any agreements between or
among the Lender, the Borrower and the Guarantor regarding obligations of the
Borrower and/or the Guarantor not covered by the Eximbank Guarantee.
12.09 Amendment or Waiver. This Agreement may not be changed, discharged
or dated without the written consent of the parties hereto, and no provision
hereof may be waived without the written consent of the party to be bound
thereby.
12.10 Counterparts. This Agreement may be signed in separate counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
12.11 Judgment Currency. All payments of principal, interest, fees or
other amounts due hereunder and under any Note shall be made in Dollars,
regardless of any law, rule, regulation or statute, whether now or hereafter in
existence or in effect in any jurisdiction, which affects or purports to affect
such obligations. The obligation of the
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Borrower and the Guarantor in respect of any amount due under this Agreement or
any Note, notwithstanding any payment in any other currency (whether pursuant to
a judgment or otherwise), shall be discharged only to the extent of the amount
in Dollars that the Person entitled to receive that payment may, in accordance
with normal banking procedures, purchase with the sum paid in that other
currency (after any premium and costs of exchange) on the Business Day
immediately succeeding the day on which that Person receives that payment. If
the amount in Dollars that may be so purchased for any reason falls short of the
amount originally due, the Borrower and the Guarantor shall pay such additional
amounts, in Dollars, to compensate for the shortfall. Any obligation of the
Borrower or the Guarantor not discharged by that payment shall be continued to
be due as a separate and independent obligation and shall accrue interest in
accordance with Section 5.02 until discharged as provided herein.
12.12 English Language. All documents to be delivered by any party hereto
pursuant to the terms hereof shall be in the English language or, if originally
written in another language, shall be accompanied by an accurate English
translation upon which the other parties hereto shall have the right to rely for
all purposes under this Agreement and any Note.
12.13 Severability. To the extent permitted by applicable law, the
illegality or unenforceability of any provision of this Agreement shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Credit
Agreement to be duly executed and delivered as of the date first written.
TVA SISTEMA DE TELEVISAO S.A., as Borrower
By: ______________________________________
(Signature)
Name: ____________________________________
(Print)
Title: ___________________________________
(Print)
TEVECAP S.A., as Guarantor
By: ______________________________________
(Signature)
Name: ____________________________________
(Print)
Title: ___________________________________
(Print)
THE CHASE MANHATTAN BANK, as Lender
By: ______________________________________
(Signature)
Name: ____________________________________
(Print)
Title: ___________________________________
(Print)
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EXPORT-IMPORT BANK OF THE UNITED STATES
By: ______________________________________
(Signature)
Name: ____________________________________
(Print)
Title: ___________________________________
(Print)
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Annex A
TVA SISTEMA DE TELEVISAO, S.A.
PROMISSORY NOTE
U.S.$ ____________________ ___________________,19__
FOR VALUE RECEIVED, TVA Sistema de Televisao S.A., 313 V. Olimpia, Sao
Paulo, Brazil Cep 04552-904 (the "Maker") by this promissory note (this "Note")
hereby unconditionally promises to pay to the order of The Chase Manhattan Bank
(the "Lender") at 1 Manhattan Plaza, Brooklyn, New York 10081 the principal sum
of __________________________________ Dollars (U.S.$________) in installments as
hereinafter provided and to pay interest on the principal balance hereof from
time to time outstanding, as hereinafter provided, at the rate of 0.25 percent
(0.25 %) per annum above LIBOR. Beginning on the Eximbank Claim Payment Date
(hereinafter defined), the definition of Special LIBOR shall apply for all
purposes, including, without limitation, the fifth paragraph hereof, in place of
the definition of LIBOR. All capitalized terms not defined herein have the
meanings assigned to them in the Credit Agreement (hereinafter defined).
The principal hereof shall be paid in ______ (______) installments, the
first of which shall be in the sum of __________________________________ Dollars
(U.S.$________) and shall be due and payable on ____________ 15, 19__. The
remaining installments shall each be in the sum of Dollars (U.S.$________) and
shall be due and payable semi-annually thereafter on ____________ 15 and
____________ 15 of each year (each, a "Payment Date"), provided that on the last
Payment Date, the Maker shall repay in full the principal amount hereof then
outstanding.
Interest on this Note is payable on each Payment Date, beginning on
____________ 15, 19__. Interest will be calculated on the basis of the actual
number of days elapsed (including the first day, but excluding the last day)
over a year of 360 days.
In the event that any amount of the principal hereof or accrued interest
on this Note is not paid in full when due (whether at stated maturity, by
acceleration or otherwise), the Maker shall pay to the Lender on demand interest
on such unpaid amount (to the extent permitted by applicable law) for the period
from the date such amount was due until such amount shall have been paid in full
at an interest rate per annum equal to (x) 1% per
A-1
annum above the interest rate then applicable under first paragraph hereof until
the end of the then current Interest Period, and (y) thereafter 1.25% per annum
above the rate per annum (rounded upward, if necessary, to the nearest 1/16 of
1%) at which U.S. Dollar deposits are offered to the office of the Lender in the
eurodollar market in which such office of the Lender customarily deals at 11:00
a.m., local time of such office of the Lender, for successive interest periods
selected by the Lender in its sole discretion, two Business Days prior to the
first day of such interest period, for the number of days of each such interest
period and in an amount equal to the aggregate principal amount of the Credit
evidenced by Floating Rate Notes outstanding on the first day of each such
interest period.
Notwithstanding the fourth paragraph hereof, beginning on the date on
which Eximbank shall have made a claim payment to the Lender under the Master
Guarantee Agreement ("Eximbank Claim Payment Date"), in the event any amount of
principal of or accrued interest on this Note owing to Eximbank is not paid in
full when due (whether at stated maturity, by acceleration or otherwise), the
Maker shall pay to Eximbank on demand interest on such unpaid amount (to the
extent permitted by applicable law) for the period from the date such amount was
due until such amount shall have been paid in full at an interest rate per annum
equal to one percent (1%) per annum above the interest rate then applicable
under the first paragraph hereof.
This is one of the Notes referenced in Section 5.6 of the Credit Agreement
dated as of [____________], 19__ (the "Credit Agreement") by and among the
Maker, the Guarantor, the Lender and the Export-Import Bank of the United
States. This Note is entitled to the benefits of, and is governed in all
respects by, the terms of the Credit Agreement, which Credit Agreement, among
other things, contains provisions for the payment of principal and interest
(including default interest) hereon without set-off, counterclaim, deduction,
withholding on account of taxes levied or imposed under the laws of the
Government of Brazil, restrictions and conditions of whatever nature, and for
acceleration of the maturity hereof upon the happening of certain stated events.
The principal amount hereof may be prepaid in accordance with terms of the
Credit Agreement. All payments received hereunder shall be applied in accordance
with the order of priority set forth in Section 8.02 of the Credit Agreement.
The Maker hereby waives demand, diligence, presentment, protest and notice
of every kind, and warrants to the holder that all actions and approvals
required for the execution and delivery hereof as a legal, valid and binding
obligation of the undersigned, enforceable in accordance with the terms hereof,
have been duly taken and obtained.
A-2
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, U.S.A.
TVA SISTEMA DE TELEVISAO, S.A.
By: ____________________________
(Signature)(2)
Name: __________________________
(Print)
Title: _________________________
(Print)
Promissory Note No. ________
- ----------
(2) Personal makers should sign in their personal capacities only. Corporate
makers should sign only in their corporate capacities with proper reference to
their corporate titles.
A-3
GUARANTEE
FOR VALUE RECEIVED, the undersigned, as primary obligor, hereby
unconditionally and irrevocably guarantees the full, prompt and complete payment
when due (whether at scheduled maturity, by reason of acceleration or otherwise)
of the principal of and the interest on the foregoing promissory note, and
hereby waives acceptance, diligence, presentment, demand, protest or notice of
any kind whatsoever (including notice of default or non-payment), as well as any
requirements that the holder exhaust any right or take any action against the
maker of the foregoing promissory note, and hereby consents to any extension of
time or renewal or other modification thereof. This is a continuing, absolute
and unconditional guarantee of payment and not merely of collection. To the
extent permitted by applicable law, the undersigned hereby waives all defenses
of a surety or guarantor to which it may be entitled by statute or otherwise.
This Guarantee is issued pursuant to the terms of the Credit Agreement,
and is subject to the terms and is entitled to the benefits thereof.
TEVECAP S.A.
By: __________________________________
(Signature)
Name: ________________________________
(Print)
Title: _______________________________
(Print)
A-4
UTILIZATION PROCEDURES A-5 (CA)
FOR LONG-TERM CREDITS GUARANTEED BY EXIMBANK Annex B
I. Introduction
In order to be guaranteed by Eximbank, funds must be disbursed under the Credit
in accordance with the "Reimbursement Procedure" and/or the "L/C Procedure,"
both of which are described below. No other disbursement methods are permitted.
II. Reimbursement Procedure
The Borrower may from time to time request that Disbursements be made by the
Lender to the Borrower's account at a commercial bank in the United States
selected by the Borrower and acceptable to the Lender and Eximbank to: (i)
reimburse the Borrower for the Financed Portion of any payments made by the
Borrower to the Supplier(s) or Special Ancillary Supplier(s) and (ii) charge the
Borrower for the related Exposure Fee due to Eximbank.
To obtain Disbursements under the Reimbursement Procedure:
A. The Borrower shall deliver to the Lender for submission to Eximbank copies
of the following documents (collectively, the "Reimbursement Documents"),
all of which must be satisfactory in form and substance to the Lender and
Eximbank:
1. The original Request for Reimbursement to Borrower's Account, in the
form of Exhibit 1, signed by an authorized representative of the
Borrower, accompanied by an Itemized Statement of payments, in the
form of Exhibit 1(a).
2. Copies of the invoice(s) for the Items to be financed under the
requested Disbursement, bearing or accompanied by evidence that the
Supplier(s) or Special Ancillary Supplier(s) thereof has been paid.
Evidence of payment may be any of the following: (a) a "paid" stamp
on the invoice signed by the Supplier or Special Ancillary Supplier;
(b) a copy of a U.S. commercial bank's "Advice of Payment" to the
Supplier or Special Ancillary Supplier; (c) a copy of both sides of
a cancelled check made payable to the Supplier or Special Ancillary
Supplier; or (d) a letter from the Supplier or Special Ancillary
Supplier acknowledging payment.
3. The original Supplier's Certificate(s) in the form of Exhibit 2,
signed by an authorized representative of the Supplier, with
paragraph 3(b) (Production Cost
B-1
- Item) checked, either clause (a) or (b) of paragraph 8 (Suspension
and Debarment, etc.) checked (with the attachment required by clause
(b) provided if such clause is checked) and paragraphs 2 (Origin),
6(f) (Other Payments) and 6(g) (Barter agreements, etc.) each
completed "None" or in a manner otherwise satisfactory to Eximbank;
or, with respect to Special Ancillary Services, the original Special
Ancillary Supplier's Certificate in the form of Exhibit 2(b), signed
by an authorized representative of the Special Ancillary Supplier,
with either clause (a) or (b) of paragraph 5 (Suspension and
Debarment, etc.) checked (with the attachment required by clause (b)
provided if such clause is checked).
4. Copies of clean on-board ocean, airway, railway or other bills of
lading evidencing shipment of the Items from the United States to
the Borrower's Country (or, in the case that the Borrower's Country
is either Canada or Mexico, a destination in the United States which
is a point of importation into Canada or Mexico, respectively).
Ocean bills of lading must either show shipment on vessels of U.S.
registry or be accompanied by an appropriate MARAD waiver (as
described in Section IV below). Bills of lading are not required for
cases that do not involve the transportation of goods.
5. Such other documents, statements, certificates, information and
evidence as Eximbank may from time to time reasonably request (e.g.,
in aircraft financings: FAA certificates of airworthiness, insurance
certificates and certificates of acceptance by the Borrower.)
Eximbank may receive copies of the Reimbursement Documents, except for the
Supplier's Certificate and any Special Ancillary Supplier's Certificate,
which shall be the original document.
B. Upon approval of the Reimbursement Documents, Eximbank shall issue
to the Lender a Certificate Authorizing Reimbursement, in the form
of Exhibit 3.
C. Upon receipt of the Certificate Authorizing Reimbursement, the
Lender will reimburse the Borrower for the Financed Portion of the
Items as approved by Eximbank in the Certificate, and will
simultaneously pay to Eximbank the Exposure Fee that is due on such
Financed Portion, in accordance with the terms of the Agreement. The
sum of the amounts so reimbursed to the Borrower and so paid to
Eximbank shall constitute a Disbursement under the Credit.
B-2
III. L/C Procedure
The Borrower may request a commercial bank located in the United States that is
acceptable to the Lender and Eximbank ("L/C Bank") to issue, confirm or advise
letters of credit ("Letters of Credit") in favor of the Supplier(s) and Special
Ancillary Supplier(s). (For the avoidance of doubt, the Lender may also be the
L/C Bank if the Lender is a commercial bank located in the U.S.) The Letters of
Credit may be drawn down by the Supplier(s) or Special Ancillary Supplier(s) as
payments come due under the Purchase Contract(s). Efforts should be made to
avoid a large number of letters of credit. Whenever possible all Items to be
purchased from one Supplier or Special Ancillary Supplier should be covered
under a single Letter of Credit.
To obtain Disbursements under the L/C Procedure:
A. The Borrower shall cause the L/C Bank to submit to Eximbank copies
of the following documents (collectively, the "L/C Documents"), all
of which must be satisfactory in form and substance to the L/C Bank,
the Lender and Eximbank:
1. The original Request for Letter of Credit Approval, in the
form of Exhibit 4, signed by an authorized representative of
the Borrower.
2. Three (3) copies of the proposed letter of credit in favor of
the Supplier or Special Ancillary Supplier, complete in all
respects, except for date and signature by the L/C Bank and
accompanied by a copy of the related pro forma invoice. The
Borrower's instructions to the L/C Bank with respect to the
proposed letter of credit shall provide that the documents to
be presented for drawings under such letter of credit meet the
documentary requirements of the Agreement, including the
submission of invoices, Supplier's Certificates in the form of
Exhibit 2 (or Special Ancillary Supplier's Certificates in the
form of Exhibit 2(b)) and bills of lading, in form and
substance as specified in Section II above, except that
invoices need not be accompanied by evidence of payment.
3. The original Supplier's Certificate (L/C Application) in the
form of Exhibit 2(a), signed by an authorized representative
of the Supplier or Special Ancillary Supplier.
4. Such other documents, statements, certificates, information
and evidence as Eximbank may from time to time reasonably
request.
B-3
B. Upon approval of the L/C Documents, Eximbank shall issue to the L/C
Bank, with a copy to the Lender, a Certificate Approving Letter of
Credit, in the form of Exhibit 5.
C. Upon receipt of the Certificate Approving Letter of Credit, the L/C
Bank shall issue, advise or confirm the Letter of Credit.
D. If the Exposure Fee is included in the Letter of Credit, before any
drawings are permitted under the Letter of Credit, the L/C Bank
shall have received from the beneficiary of such letter of credit
its irrevocable instructions, in form and substance satisfactory to
the Lender, L/C Bank and Eximbank, to: (i) deduct from the amount of
each payment under the Letter of Credit an amount equal to the
Exposure Fee payable to Eximbank; and (ii) to pay such amount
directly to Eximbank.
E. The L/C Bank will pay the Supplier or Special Ancillary Supplier
under the Letter of Credit upon presentation of the documents
required by the Letter of Credit ("Drawing Documents"), and will
simultaneously pay to Eximbank the applicable Exposure Fee. A
Disbursement shall be deemed to occur when the L/C Bank makes
payment of a draft drawn under the Letter of Credit ("L/C Payment").
The sum of the amounts so paid to the beneficiary and to Eximbank
shall constitute the amount of the Disbursement.
F. Promptly after the date of an L/C Payment, the Lender shall deliver,
or cause the L/C Bank to deliver, to Eximbank copies of the Drawing
Documents related to such L/C Payment, except the Supplier's
Certificate and a Special Ancillary Supplier's Certificate, each of
which shall be a manually signed original.
Any amendments to a Letter of Credit must be approved by Eximbank, as well as
the Lender(s) and the L/C Bank. The Borrower's request for Eximbank's approval
of an amendment shall be made in the form of Exhibit 4(a), completed and signed
by an authorized representative of the Borrower, accompanied by any relevant
documents. If Eximbank approves the proposed amendment, it shall issue to the
L/C Bank, with a copy to the Lender, a Certificate Approving Amendment of Letter
of Credit, in the form of Exhibit 5(a).
IV. Ocean Transportation - MARAD Waivers
If any of the Items are to be exported on ocean vessels that are not
vessels of U.S. registry, the Borrower must obtain a waiver from the provisions
of 46 U.S.C. ss. 1241-1 (Public Resolution No. 17 of the 73rd Congress of the
United States, as amended). An
B-4
application for waiver must be submitted to the U.S. Maritime Administration
("MARAD") at the following address: Director, Office of Market Development, Room
7207, Maritime Administration, Department of Transportation, 400 7th Street,
S.W., Washington, DC 20590 (with a copy to Eximbank). There are two types of
waivers available for shipment on non-U.S. vessels. A general waiver permits
ocean vessels of the Borrower's Country to carry up to fifty percent (50%) of
the cargo exported and may be obtained if the country does not discriminate in
any way against U.S. flag shipping. This type of waiver is granted for the life
of the Credit and is subject to submission of reports showing continued
compliance with its terms. A statutory waiver may be granted if the applicant
can establish and document to the satisfaction of MARAD that the applicant has
made a reasonable, timely and bona fide effort to arrange for shipment on ocean
vessels of U.S. registry, and that such vessels are not available or are not
available at reasonable rates. A statutory waiver must be obtained for each
separate shipment, and each application for such waiver must be submitted to
MARAD sufficiently in advance of the intended shipping date in order to allow
MARAD adequate opportunity to process the application. If any Items are shipped
on ocean vessels of non-U.S. registry without a MARAD waiver, or contrary to the
provisions of a MARAD waiver, such Items will not be eligible for financing
under the Credit.
Exhibits to Annex B:
1 - Request for Reimbursement to Borrower's Account
1(a) - Itemized Statement of Payments
2 - Supplier's Certificate
2(a) - Supplier's Certificate (L/C Application)
2(b) - Special Ancillary Supplier's Certificate
3 - Certificate Authorizing Reimbursement
4 - Request for Letter of Credit Approval
4(a) - Request for Approval of Amendment to Letter of Credit
5 - Certificate Approving Letter of Credit
5(a) - Certificate Approving Amendment to Letter of Credit
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
The following is included for informational purposes only, and is not part of
the Agreement:
Because the Supplier, any Special Ancillary Supplier and the L/C Bank is a party
to the Agreement, the Borrower and Lender will need to take the following steps
to ensure that the Credit is disbursed in a timely fashion:
B-5
1. The Borrower should advise each Supplier and Special Ancillary Supplier
of the provisions of this Agreement that will require their cooperation,
including, without limitation, the requirement that the Supplier's Certificate
or Special Ancillary Supplier's Certificate, as applicable, be completed and
attached to the invoice to which it relates.
2. If the Borrower would like to use the L/C Procedure, the Borrower must
make appropriate arrangements with the L/C Bank regarding the issuance,
confirmation or advice of the letters of credit and the payment of any fees that
the L/C Bank may charge. The Lender and the L/C Bank must enter into a
reimbursement agreement with respect to the L/C Payments, which reimbursement
agreement, along with Eximbank's Certificate Approving Letter of Credit, will be
conditions precedent to the issuance, confirmation or advice of a letter of
credit by the L/C Bank.
B-6
REIMBURSEMENT PROCEDURE A-5(CA)
Annex B
Exhibit 1
REQUEST FOR REIMBURSEMENT TO BORROWER'S ACCOUNT
_______________, 19__
[NAME OF LENDER]
[ADDRESS OF LENDER]
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, DC 20571
Attention: Credit Administration Division
Subject: Eximbank Guarantee No. - [Country]
[Name of Borrower] ("Borrower")
Request for Disbursement No.
Ladies and Gentleman:
In accordance with the terms and conditions of the Credit Agreement
("Agreement"), dated as of ____________, 199_, by and among the Borrower, [names
of other parties to the agreement], and the Export-Import Bank of the United
States ("Eximbank"), we hereby request the Lender(s) to make a Disbursement
under the Credit thereby established in the amount set forth below, with the
Reimbursement amount thereof being paid to the account of (identify the
Borrower's account as it is carried on the books of the payee bank) (complete
name and address of the payee bank)[.] [, and with the Exposure Fee amount
thereof being paid to Eximbank.]
Reimbursement amount U.S.$_______________
[[Exposure Fee amount U.S.$_______________
TOTAL U.S.$_______________]]
B1-1
We enclose our Itemized Statement of Payments No. __, dated ____________, 199_.
We hereby certify with respect to the payments made by us for the goods
and services specified in Itemized Statement of Payments No. __ that:
1. All such payments were made exclusively for the purchase (a) in the
United States of goods and services of U.S. origin or manufacture (except as
disclosed in the enclosed Supplier's Certificate(s)) or (b) Special Ancillary
Services, and in either case that these goods and services will be used for
lawful purposes in accordance with the terms of the Agreement.
2. We have not previously requested Disbursements on account of these
payments.
3. Copies of invoices and bills of lading with attached Supplier's
Certificate(s) or Special Ancillary Supplier's Certificate, as applicable
(accompanied by evidence that the Suppliers or Special Ancillary Suppliers have
been paid) and other documents required by Eximbank's "Utilization Procedures"
(set forth in Annex B to the Agreement) relating to the goods and services
specified in Itemized Statement of Payments No. ___ are submitted herewith.
4. All of those goods which have been or will be transported to [insert
name of country] on ocean vessels have been or will be shipped on vessels of
U.S. registry, except to the extent that a waiver of this requirement has been
obtained from the U.S. Maritime Administration.
We further certify that: (i) we have paid the exact amounts set forth in
Itemized Statement of Payments No. ___ for the goods and services specified
therein, and, in connection with the acquisition of such goods and services, we
have not received or agreed to receive any discount, allowance, rebate,
commission, fee or other payment except as disclosed in the enclosed Supplier's
Certificate(s); (ii) in connection with the sale of or the obtaining of any
contract to sell such goods and services or with the establishment or operation
of the Eximbank-supported financing (including any letter of interest or
preliminary commitment relating thereto issued by Eximbank), we have not (a)
paid or agreed to pay any commission, fee or other payment or (b) entered into
any barter, buyback, countertrade or offset agreement or other similar agreement
and, to the best of our knowledge and belief, no Supplier has (x) granted, paid
or agreed to grant or pay any discount, allowance, rebate, commission, fee or
other payment or (y) entered into any barter, buyback, countertrade or offset
agreement or other similar agreement, other than as disclosed in the enclosed
Supplier's Certificate(s); (iii) as of the date of this request, no event has
occurred and is continuing which constitutes, or but for the requirement of
giving notice or lapse of time, or both, would constitute, an Event of Default
under the provisions of the Agreement; and (iv) as of the date of this request,
the representations and warranties made by us in the Agreement are true.
B1-2
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned thereto in the Agreement.
Very truly yours,
[BORROWER]
By: _______________________________
(Signature)(1)
Name: _____________________________
(Print)
Title: ____________________________
(Print)
Enclosures
Itemized Statement of Payments
and supporting documents
- ----------
(1) May only be signed by one of the authorized representatives designated by
the Borrower pursuant to Section 6.01(c) of the Agreement.
B1-3
REIMBURSEMENT PROCEDURE A-5 (CA)
Annex B
Exhibit 1(a)
ITEMIZED STATEMENT OF PAYMENTS
__________, 199_
Page __ of __
Eximbank Guarantee No. __________
Itemized Statement of Payments No. _________
(Attachment to Request for Reimbursement No. _______,
Covering period from _____ to _____ 199_
Name and
Item Acquisition List Invoice Date of Amount of Address of Brief Description Bill of Lading
No.(1) Reference No. No. Payment Payment(2) Supplier(3) of Items(4) Date No. Remarks
- ------------------------------------------------------------------------------------------------------------------------
U.S.$
TOTAL U.S.$________
________
________
(1) Number each item starting with 1, on each separate Itemized Statement.
(2) If the amount of payment is not for the total invoice value, explain in
Remarks.
(3) Name, address and zip code of company facility that produced the Item(s).
(4) Include Standard Industrial Classification (SIC) Code, if available.
B1(a)-1
REIMBURSEMENT AND L/C PROCEDURE A-5 (CA)
Annex B
Exhibit 2
FORM OF SUPPLIER'S CERTIFICATE(1)
[Letterhead of Supplier or Ancillary Supplier]
___________ __, 19__
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, DC 20571
Re: Eximbank Credit/Guarantee No. ________-[Country]
[Purchaser] ("Purchaser")
Supplier's Certificate
Ladies and Gentlemen:
We the undersigned supplier (the "Supplier") understand that the sale of
the goods and services (the "Items") covered by our enclosed invoice(s), which
are listed below (the "Invoices") may be financed by a credit or guarantee
provided by the Export-Import Bank of the United States ("Eximbank"), an agency
of the United States of America ("United States").
Name and Address of Brief Description of Items,
Purchaser including Standard Industrial
Number Date Amount ("Purchaser") Classification ("SIC") Code
- --------------------------------------------------------------------------------
[complete with respect to each enclosed invoice]
(1) This form should be completed and submitted by Suppliers or Ancillary
Suppliers of all Items (including, without limitation, Items that are
Ancillary Services) except for (i) Special Ancillary Services and (ii) any
local cost items specifically authorized by Eximbank.
B2-1
We, the Supplier, hereby represent and warrant with respect to the Items that:
1. Cash Payment. In connection with the OECD Arrangement's requirement for
a minimum cash payment from the Purchaser equivalent to 15% of export value,
[check all boxes that are applicable]:
|_| a) We have received a cash payment in the amount of US$_________________
representing ___ percent of the amount of the Invoice(s).
|_| (b) We are financing at market rates of interest the required cash payment
in the amount of US$____________ representing ___ percent of the amount of
the Invoice(s).
|_| (c) We have not received any cash payment with respect to the Invoices.
2. Origin. The Items were either originated or manufactured by us in the
United States or, if not originated or manufactured by us in the United States,
were acquired by us from sources in the United States, and, to the best of our
knowledge and belief, except as disclosed below, no component part or value
added by fabrication, services or otherwise (exclusive of raw materials) was
originated or manufactured outside the United States.
Non-U.S. Foreign Costs
Item Component (U.S. Dollars) Source of Item(2) Country of Origin
- --------------------------------------------------------------------------------
(If none, the word "NONE" must be inserted in order for this Certificate
to be considered complete.)
We understand that (a) all information disclosed in paragraph 2 above must be
satisfactory to Eximbank and (b) Eximbank is under no obligation to support the
sale of any part of the Items that is of non-U.S. origin or manufacture or that
was acquired by us from sources outside the United States.
(2) Provide the name of the entity (whether domestic or foreign) from which
you obtained the foreign item.
B2-2
3. Production Cost. (indicate if the statements below are true by checking
either the "YES" or "NO" box that follows each statement:3
(a) The aggregate Foreign Cost (as defined below) associated with the
Items is less than 50% of the aggregate Production Cost (as defined below)
of such Items.
|_| YES |_| NO
(b) The Foreign Cost associated with each of the Items is less than 50% of
the Production Cost of each such Item.
|_| YES |_| NO
"Production Cost" shall mean, with respect to any Item, the sum of (i)
direct material and component costs, (ii) direct labor costs and (iii) indirect
costs that can reasonably be attributed to the production of such Item.
"Foreign Cost" shall mean, with respect to any Item, the cost to the
Supplier of such Item or any component of such Item, as the case may be, if such
Item or such component was produced or manufactured outside the United States.
4. Licenses and Purchase Contract. All export licenses, all import
licenses, and all permits required by the Government of the United States or the
Government of [the Purchaser's country] in connection with the shipment of the
Items have been obtained. To the best of our knowledge, as of the date of
shipment, or, where no shipment occurred, as of the date of the work performed,
the contract to sell the Items, and the performance by the parties of their
respective obligations thereunder, did not violate any law then applicable.
5. Shipment. The Items were shipped from the United States to the
Purchaser in [the Purchaser's country] as evidenced by the enclosed
transportation document(s) (e.g., bill(s) of lading) or, in cases that do not
involve the transportation of goods, other evidence satisfactory to Eximbank has
been submitted.
6. Discounts, Allowances and Special Agreements. In connection with the
sale of, or obtaining the contract to sell, the Items or with the establishment
or operation of the Eximbank credit/guarantee (including any letter of interest
or preliminary commitment relating thereto issued by Eximbank), we have not,
directly or indirectly: (a) granted or paid,
(3) In order to obtain financing on a medium-term basis, statement (a) must be
true. In order to obtain financing on a long-term basis, statement (b)
must be true.
B2-3
agreed or offered to grant or pay, or arranged for, any discount, allowance,
rebate, commission, fee or other payment; or (b) entered into any barter,
buyback, countertrade or offset agreement or other similar agreement except:
(i) Any discounts, allowances or rebates to the Purchaser that are
disclosed in the Invoices;
(ii) Amounts payable to our regular full-time employees to the
extent of their regular compensation;
(iii) Regular commissions or fees paid or to be paid in the ordinary
course of business to our regular sales agents or sales representatives and
readily identifiable on our books and records as to amount, purpose and
recipient;
(iv) Any letter of credit fees paid to commercial banks in
connection with the Eximbank credit/guarantee;
(v) Any payments made to Eximbank in connection with the Eximbank
credit/guarantee;
(vi) Other payments, as follows:
Payee Or Intended Payee Address Purpose
- ----------------------- ------- -------
(If none, then the word "NONE" must be inserted in order for this
Certificate to be considered complete. If any payee is named, a statement
must be attached showing for each the nature and extent of the services
and the method of computation of the payment.)
We understand that all payments disclosed in subparagraph 6(b)(vi) above must be
satisfactory to Eximbank.
(vii) Barter, buyback, countertrade or offset agreement or other similar
agreement:
Type of Agreement Other Parties Goods/Services
----------------- ------------- --------------
(If none, then the word "NONE" must be inserted in order for this
Certificate to be considered complete. If any agreement is disclosed, a
statement must be attached describing the basic terms of the agreement.)
B2-4
We understand that all agreements disclosed in subparagraph 6(b)(vii) above must
be satisfactory to Eximbank.
7. Munitions List. Only the following goods and services covered by our
invoices are articles, services, or related technical data that are listed on
the United States Munitions List (part 121 of title 22 of the Code of Federal
Regulations):
Item Invoice Amount
---- --------------
(If none, the word "NONE" must be inserted in order for this Certificate
to be considered complete.)
We understand that all goods and services disclosed in paragraph 7 above must be
satisfactory to Eximbank.
8. Suspension and Debarment, etc. We certify that either:
|_| (a) neither we nor our Principals (as defined below) are at present (i)
debarred, suspended, proposed for debarment with a final determination
still pending, declared ineligible or voluntarily excluded (as such terms
are defined in any of the Debarment Regulations referred to below) from
participating in procurement or nonprocurement transactions with any
United States federal government department or agency pursuant to any of
the Debarment Regulations (as defined below) or (ii) indicted, convicted
or had a civil judgment rendered against us or any of our Principals for
any of the offenses listed in any of the Debarment Regulations; or
|_| (b) if we are unable to make the certification set forth in clause (a) of
this Section 8, we have attached a detailed explanation of the grounds for
this failure (including dates, identification of any debarring official or
suspending official (as such terms are defined in any of the Debarment
Regulations) and his or her agency, and details of any proposed or actual
debarment, suspension, declaration of ineligibility, voluntary exclusion,
indictment, conviction or civil judgment).
We further certify that, unless authorized by Eximbank, we will not
knowingly enter into any transactions in connection with the Items with any
person who is debarred, suspended, declared ineligible or voluntarily excluded
from participation in procurement or nonprocurement transactions with any United
States federal government department or agency pursuant to any of the Debarment
Regulations.
We agree that we will provide immediate written notice to Eximbank if at
any time we learn that the certification set forth in clause (a) of this Section
8, if made, was erroneous when made or has become erroneous by reason of changed
circumstances. For the purposes hereof, (i) "Principals" shall mean any officer,
director, owner, partner, key employee, or other person with primary management
or supervisory responsibilities, or any other person (whether or not an
employee) who has critical influence on or substantive control over the
transaction financed by the credit or guarantee provided by Eximbank which is
referred to
B2-5
above and (ii) the "Debarment Regulations" shall mean (x) the Governmentwide
Debarment and Suspension (Nonprocurement) regulations (Common Rule), 53 Fed.
Reg. 19204 (May 26, 1988), (y) Subpart 9.4 (Debarment, Suspension, and
Ineligibility) of the Federal Acquisition Regulations, 48 C.F.R. 9.400 - 9.409
and (z) the revised Governmentwide Debarment and Suspension (Nonprocurement)
regulations (Common Rule), 60 Fed. Reg.
33037 (June 26, 1995).
9. Acknowledgement of Eximbank Reliance. We acknowledge that the
certifications set forth in this Supplier's Certificate are material
representations of fact upon which reliance will be placed by Eximbank in
connection with the financing of the purchase of the Items and that, if it is
later determined that we knowingly entered into an erroneous certification,
Eximbank may pursue any available remedies, which may include remedies available
to the United States government such as suspension or debarment pursuant to the
Debarment Regulations.
10. Original Certificate. This Supplier's Certificate is the only
Supplier's Certificate that we have issued with respect to the Invoices.
[SUPPLIER](4)
By: ____________________________________
(Signature)(5)
Name: __________________________________
(Print)
Title: _________________________________
(Print)
Address: _______________________________
________________________________________
_____________________________________(6)
(4) List complete name of company and include its Dun & Bradstreet number.
Note: this company must regularly do business in the United States.
(5) This Certificate must be signed by a senior officer of the
Supplier/Ancillary Supplier, such as the President, a Vice President, the
Secretary, the Treasurer or Assistant Treasurer. If any other individual signs,
evidence of his or her authority, in form and substance acceptable to Eximbank,
must be submitted with this Certificate.
(6) Include complete street address, including zip code, of the company facility
that produced Items. This address must be in the United States.
B2-6
Enclosures
Invoices
Transportation Documents
cc: [Lender]
[Address of Lender]
B2-7
L/C PROCEDURE A-5(CA)
Annex B
Exhibit 2(a)
EXIMBANK SUPPLIER'S CERTIFICATE (L/C APPLICATION)
(SUPPLIERS AND SPECIAL ANCILLARY SUPPLIERS)
[Letterhead of Supplier/Special Ancillary Supplier]
Date ______________
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, DC 20571
Re: Eximbank Credit/Guarantee No._________-[Country]
[Name of Purchaser] ("Purchaser")
Ladies and Gentlemen:
We the undersigned supplier (the "Supplier") understand that the Borrower
is requesting [name of L/C Bank] to issue, confirm or advise a letter of credit
("Letter of Credit") in our favor to finance the purchase of [U.S. goods and
services ("Items")]/ [Financial Advisor Services, Technical Consultant Services,
Legal Services or Banking Services related to the above-mentioned
credit/guarantee ("Items")](1), and that the Letter of Credit may be funded by a
credit supported by the Export-Import Bank of the United States ("Eximbank"), an
agency of the United States of America ("United States").
(2)[We understand that Eximbank is under no obligation to support the sale
of any part of the Items that is of non-U.S. origin or manufacture or that was
acquired by us from sources outside the United States.]
We, the [Supplier]/[Special Ancillary Supplier], hereby represent and
warrant with respect to the Items that:
- ----------
(1) The second bracketed text is to be used by Special Ancillary Suppliers who
will issue a Special Ancillary Supplier's Certificate instead of a
standard Eximbank Supplier's Certificate.
(2) Only include this paragraph in certificates executed by Special Ancillary
Suppliers who will issue a Special Ancillary Supplier's Certificate
instead of a standard Eximbank Supplier's Certificate.
B2(a)-1
(3)[1. Origin. The Items will be either originated or manufactured by us
in the United States or, if not originated or manufactured by us in the United
States, will be acquired by us from sources in the United States, and, to the
best of our knowledge and belief, except as disclosed below, no component part
or value added by fabrication, services or otherwise (exclusive of raw
materials) will be originated or manufactured outside the United States.
Non-U.S. Foreign Costs
Item Component (Dollars) Source of Item(4) Country of Origin
- --------------------------------------------------------------------------------
(If none, the word "NONE" must be inserted in order for this Certificate
to be considered complete.)
We understand that (a) all information disclosed in paragraph 1 above must be
satisfactory to Eximbank and (b) Eximbank is under no obligation to support the
sale of any part of the Items that is of non-U.S. origin or manufacture or that
was acquired by us from sources outside the United States.]
[2.] Discounts, Allowances and Special Agreements. In connection with the
sale of or obtaining the contract to sell the Items or with the establishment or
operation of the Eximbank credit/guarantee (including any letter of interest or
preliminary commitment relating thereto issued by Eximbank), we have not,
directly or indirectly: (a) granted or paid, agreed or offered to grant or pay,
or arranged for, any discount, allowance, rebate, commission, fee or other
payment; or (b) entered into any barter, buyback, countertrade or offset
agreement or other similar agreement except:
(i) Any discounts, allowances or rebates to the Purchaser that are
disclosed in the Invoices;
(ii) Amounts payable to our regular full-time employees to the
extent of their regular compensation;
(iii) Regular commissions or fees paid or to be paid in the ordinary
course of business to our regular sales agents or sales representatives and
readily identifiable on our books and records as to amount, purpose and
recipient;
- ----------
(3) This representation and warranty need not be included in certificates
executed by Special Ancillary Suppliers who will issue a Special Ancillary
Supplier's Certificate instead of a standard Eximbank Supplier's
Certificate.
(4) Provide the name of the entity (whether domestic or foreign) from which
you obtained the foreign item.
B2(a)-2
(iv) Any letter of credit fees paid to commercial banks in
connection with the Eximbank credit/guarantee;
(v) Any payments made to Eximbank in connection with the Eximbank
credit/guarantee;
(vi) Other payments, as follows:
Payee Or Intended Payee Address Purpose
- ----------------------- ------- -------
(If none, then the word "NONE" must be inserted in order for this
Certificate to be considered complete. If any payee is named, a statement
must be attached showing for each the nature and extent of the services
and the method of computation of the payment.)
We understand that all payments disclosed in subparagraph 2(b)(vi) above must be
satisfactory to Eximbank.
(vii) Barter, buyback, countertrade or offset agreement or other
similar agreement:
Type of Agreement Other Parties Goods/Services
----------------- ------------- --------------
(If none, then the word "NONE" must be inserted in order for this
Certificate to be considered complete. If any agreement is disclosed, a
statement must be attached describing the basic terms of the agreement.)
We understand that all agreements disclosed in subparagraph 2(b)(vii) above must
be satisfactory to Eximbank
[3.] Munitions List. Only the following Items are articles, services, or
related technical data that are listed on the United States Munitions List (part
121 of title 22 of the Code of Federal Regulations):
[List Items]
(If none, the word "NONE" must be inserted in order for this Certificate
to be considered complete.)
B2(a)-3
We understand that all goods and services disclosed in paragraph 3 above must be
satisfactory to Eximbank.
[4.] Suspension and Debarment, etc. We certify that either:
|_| (a) neither we nor our Principals (as defined below) are at present (i)
debarred, suspended, proposed for debarment with a final determination
still pending, declared ineligible or voluntarily excluded (as such terms
are defined in any of the Debarment Regulations referred to below) from
participating in procurement or nonprocurement transactions with any
United States federal government department or agency pursuant to any of
the Debarment Regulations (as defined below) or (ii) indicted, convicted
or had a civil judgment rendered against us or any of our Principals for
any of the offenses listed in any of the Debarment Regulations; or
|_| (b) if we are unable to make the certification set forth in clause (a) of
this Section 4, we have attached a detailed explanation of the grounds for
this failure (including dates, identification of any debarring official or
suspending official (as such terms are defined in any of the Debarment
Regulations) and his or her agency, and details of any proposed or actual
debarment, suspension, declaration of ineligibility, voluntary exclusion,
indictment, conviction or civil judgment).
We further certify that, unless authorized by Eximbank, we will not
knowingly enter into any transactions in connection with the Items with any
person who is debarred, suspended, declared ineligible or voluntarily excluded
from participation in procurement or nonprocurement transactions with any United
States federal government department or agency pursuant to any of the Debarment
Regulations.
We agree that we will provide immediate written notice to Eximbank if at
any time we learn that the certification set forth in clause (a) of this Section
4, if made, was erroneous when made or has become erroneous by reason of changed
circumstances. For the purposes hereof, (i) "Principals" shall mean any officer,
director, owner, partner, key employee, or other person with primary management
or supervisory responsibilities, or any other person (whether or not an
employee) who has critical influence on or substantive control over the
transaction financed by the credit or guarantee provided by Eximbank which is
referred to above and (II) the "Debarment Regulations" shall mean (x) the
Governmentwide Debarment and Suspension (Nonprocurement) regulations (Common
Rule), 53 Fed. Reg. 19204 (May 26, 1988), (y) Subpart 9.4 (Debarment,
Suspension, and Ineligibility) of the Federal Acquisition Regulations, 48 C.F.R.
9.400 - 9.409 and (z) the revised Governmentwide Debarment and Suspension
(Nonprocurement) regulations (Common Rule), 60 Fed. Reg. 30337 (June 26, 1995).
[5.] Acknowledgment of Eximbank Reliance. We acknowledge that the
certifications set forth in this Supplier's Certificate are material
representations of fact upon which reliance will be placed by Eximbank in
connection with the financing of the purchase of the Items and that, if it is
B2(a)-4
later determined that we knowingly entered into an erroneous certification,
Eximbank may pursue any available remedies, which may include remedies available
to the United States government such as suspension or debarment pursuant to the
Debarment Regulations.
[NAME OF SUPPLIER/SPECIAL ANCILLARY SUPPLIER](5)
By: _____________________________________
(Signature)(6)
Name: ___________________________________
(Print)
Title: __________________________________
(Print)
Address: ________________________________(7)
- ----------
(5) List complete name of company and include its Dun & Bradstreet number.
(6) This Certificate must be signed by a senior officer of the Supplier or
Special Ancillary Supplier, such as the President, a Vice President, the
Secretary, the Treasurer or Assistant Treasurer. If any other individual
signs, evidence of his or her authority, in form and substance acceptable
to Eximbank, must be submitted with this Certificate.
(7) Include complete address, including zip code, of the company facility that
has produced or will produce the Items.
B2(a)-5
REIMBURSEMENT AND L/C PROCEDURE A-5 (CA)
Annex B
Exhibit 2(b)
FORM OF SPECIAL ANCILLARY SUPPLIER'S CERTIFICATE(1)
[Letterhead of Ancillary Supplier]
Date________________
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, DC 20571
Re: Eximbank Credit/Guarantee No._____________-[Country]
[Name of Borrower] ("Borrower")
Supplier's Certificate (Special Ancillary Services)
Ladies and Gentlemen:
We the undersigned supplier (the "Ancillary Supplier") understand that the
sale of services (the "Special Ancillary Services") covered by our enclosed
invoice(s), which are listed below (the "Invoices"), may be financed by a credit
or guarantee provided by the Export-Import Bank of the United States
("Eximbank"), an agency of the United States of America ("United States").
Description of Special
Name and Address Ancillary Services, including
of Borrower Standard Industrial
Number Date Amount ("Borrower") Classification ("SIC") Code
- --------------------------------------------------------------------------------
[complete with respect to each enclosed invoice]
[Each invoice must contain a detailed description of the services provided and
the specific fees and expenses charged with respect to each such service. In
addition, each expense must be separately itemized, with a notation as to the
date, purpose, recipient and amount of such expense.]
- ----------
(1) This form should be completed and submitted by Ancillary Suppliers of all
Items that are Special Ancillary Services. Suppliers or Ancillary Suppliers of
all other Items (including, without limitation, Ancillary Services that are not
Special Ancillary Services) should not complete or submit this form.
B2(b)-1
We, the Ancillary Supplier, hereby represent and warrant with respect to
the Special Ancillary Services that:
1. Type of Special Ancillary Service: (Please check one):
|_| (a) Banking Services: The attached invoice describes fees charged
by the undersigned in our capacity as a lender guaranteed by
Eximbank with respect to the Eximbank transaction noted above.
Such fees are non- recurring charges that have become due and
payable on or prior to the date which the credit agreement
executed in connection with the transaction noted above
provides is the final date for disbursements (the "Final
Disbursement Date"). Eximbank has indicated that it has found
that such services both are necessary in order for the
underlying action to go forward and cannot be reasonably
obtained in the United States.
|_| (b) Financial Advisor Services: The attached invoice describes
fees and expenses charged by the undersigned in our capacity
as financial advisor to [the Borrower][the
Guarantor][Eximbank][the Lender] in connection with the
Eximbank transaction noted above. Such fees and expenses
relate to services provided in assisting [the
[Borrower][Guarantor] in obtaining, structuring and/or meeting
the requirements of the Eximbank [guarantee][credit] with
respect to such transaction.]/[[Eximbank][the Lender] in its
analysis of the Eximbank [guarantee][credit] with respect to
such transaction, the project and/or the business operations
of the Borrower [or Guarantor]]. Such fees and expenses have
become due and payable on or prior to the Final Disbursement
Date for the Eximbank [guarantee][credit]. [We have been
selected by Eximbank to perform the services to which such
fees relate, and Eximbank has required that the Borrower or
other Person pay for the provision of such services.]
[Eximbank has indicated that it has found that such services
both are necessary in order for the underlying transaction to
go forward and cannot be reasonably obtained in the United
States.]2
|_| (c) Legal Services: The attached invoice describes fees and
expenses charged by the undersigned in our capacity as legal
counsel to [the Borrower] [the Guarantor][Eximbank][the
Lender] in connection with the Eximbank transaction noted
above. Such fees and expenses relate to services provided in
connection with the Eximbank [guarantee] [credit] with respect
to the transaction noted above. Such fees and expenses have
become due and payable on or prior to Final Disbursement Date
for such Eximbank [guarantee][credit]. [We have
- ----------
(2) One of the last two bracketed sentences must be applicable.
B2(b)-2
been selected by Eximbank to perform the services to which
such fees relate, and Eximbank has required that the Borrower
or other Person pay for the provision of such services.]
[Eximbank has indicated that it has found that such services
both are necessary in order for the underlying transaction to
go forward and cannot be reasonably obtained in the United
States.]3
(d) Technical Consultant Services: The attached invoice describes
fees and expenses charged by the undersigned in our capacity
as a technical consultant to [the Borrower][Eximbank][Lender]
[name any other Person] in connection with the Eximbank
transaction noted above. [Eximbank][the Lender] has required
that a technical consultant with expertise in [describe area
of expertise] be retained in order to assist [Eximbank][the
Lender] in its analysis of the Eximbank [guarantee][credit]
with respect to such transaction, the project and/or the
business operations of a Borrower [or Guarantor]. The
[Engineering Division][Project Finance Division][Aircraft
Finance Division] [name of relevant area division][Lender] has
indicated that it is prepared to accept the undersigned acting
in such capacity. Such fees and expenses relate to services
provided in connection with the Eximbank [guarantee][credit].
Such fees and expenses have become due and payable on or prior
to the Final Disbursement Date for such Eximbank
[credit][guarantee]. [We have been selected by Eximbank to
perform the services to which such fees relate, and Eximbank
has required that the Borrower or other Person pay for the
provision of such services.] [Eximbank has indicated that it
has found that such services both are necessary in order for
the underlying transaction to go forward and cannot be
reasonably obtained in the United States.]4
We understand that Eximbank has the right to evaluate the reasonableness
and appropriateness of each Ancillary Service and each fee and expense
charged in connection with such service and that Eximbank, in its sole and
absolute discretion, may determine not to support one or more Special
Ancillary Services, fees or expenses under said credit/guarantee.
2. Cash Payment. In connection with the OECD Arrangement's requirement for
a minimum cash payment from the Borrower equivalent to 15% of export value,
[check all boxes that are applicable]:
- ----------
(3) One of the last two bracketed sentences must be applicable.
(4) One of the last two bracketed sentences must be applicable.
B2(b)-3
(a) We have received a cash payment in the amount of US$______
representing ___ percent of the amount of the Invoice(s).
(b) We are financing at market rates of interest the required cash
payment in the amount of US$______ representing ___ percent of the amount
of the Invoice(s).
(c) We have not received any cash payment with respect to the
Invoices.
3. Legality. To the best of our knowledge, the Special Ancillary Services,
and the performance by the parties of their respective obligations under any
agreement relating to such services, do not violate any provision of U.S. or any
other applicable law.
4. Discounts, Allowances and Special Agreements. In connection with the
sale of, or obtaining the contract to sell, the Items or with the establishment
or operation of the Eximbank credit/guarantee (including any letter of interest
or preliminary commitment relating thereto issued by Eximbank), we have not,
directly or indirectly: (a) granted or paid, agreed or offered to grant or pay,
or arranged for, any discount, allowance, rebate, commission, fee or other
payment; or (b) entered into any barter, buyback, countertrade or offset
agreement or other similar agreement except:
(i) Any discounts, allowances or rebates to the Borrower that are
disclosed in the Invoices;
(ii) Amounts payable to our regular full-time employees to the
extent of their regular compensation;
(iii) Regular commissions or fees paid or to be paid in the ordinary
course of business to our regular sales agents or sales representatives and
readily identifiable on our books and records as to amount, purpose and
recipient;
(iv) Any letter of credit fees paid to commercial banks in
connection with the Eximbank credit/guarantee;
(v) Any payments made to Eximbank in connection with the Eximbank
credit/guarantee;
(vi) Other payments, as follows:
Payee Or Intended Payee Address Purpose
- ----------------------- ------- -------
(If none, then the word "NONE" must be inserted in order for this
Certificate to be considered complete. If any payee is named, a statement
must be attached showing the nature and extent of the services and the
method of computation of the payment.)
B2(b)-4
We understand that all payments disclosed in subparagraph 4(b)(vi) above must be
satisfactory to Eximbank.
(vii) Barter, buyback, countertrade or offset agreement or other
similar agreement:
Type of Agreement Other Parties Goods/Services
----------------- ------------- --------------
(If none, then the word "NONE" must be inserted in order for this
Certificate to be considered complete. If any agreement is disclosed, a
statement must be attached describing the basic terms of the agreement.)
We understand that all agreements disclosed in subparagraph 4(b)(vii) above must
be satisfactory to Eximbank.
5. Suspension and Debarment, etc. We certify that either:
|_| (a) neither we nor our Principals (as defined below) are at present
(i) debarred, suspended, proposed for debarment with a final
determination still pending, declared ineligible or voluntarily
excluded (as such terms are defined in any of the Debarment
Regulations referred to below) from participating in procurement or
nonprocurement transactions with any United States federal
government department or agency pursuant to any of the Debarment
Regulations (as defined below) or (ii) indicted, convicted or had a
civil judgment rendered against us or any of our Principals for any
of the offenses listed in any of the Debarment Regulations; or
|_| (b) if we are unable to make the certification set forth in clause
(a) of this Section 5, we have attached a detailed explanation of
the grounds for this failure (including dates, identification of any
debarring official or suspending official (as such terms are defined
in any of the Debarment Regulations) and his or her agency, and
details of any proposed or actual debarment, suspension, declaration
of ineligibility, voluntary exclusion, indictment, conviction or
civil judgment).
We further certify that, unless authorized by Eximbank, we will not
knowingly enter into any transactions in connection with the Special Ancillary
Services with any person who is debarred, suspended, declared ineligible or
voluntarily excluded from participation in procurement or nonprocurement
transactions with any United States federal government department or agency
pursuant to any of the Debarment Regulations.
We agree that we will provide immediate written notice to Eximbank if at
any time we learn that the certification set forth in clause (a) of this Section
5, if made, was erroneous when made or has become erroneous by reason of changed
circumstances. For the purposes
B2(b)-5
hereof, (i) "Principals" shall mean any officer, director, owner, partner, key
employee, or other person with primary management or supervisory
responsibilities, or any other person (whether or not an employee) who has
critical influence on or substantive control over the transaction financed by
the credit or guarantee provided by Eximbank which is referred to above and (ii)
the "Debarment Regulations" shall mean (x) the Governmentwide Debarment and
Suspension (Nonprocurement) regulations (Common Rule), 53 Fed. Reg. 19204 (May
26, 1988), (y) Subpart 9.4 (Debarment, Suspension, and Ineligibility) of the
Federal Acquisition Regulations, 48 C.F.R. 9.400 - 9.409 and (z) the revised
Governmentwide Debarment and Suspension (Nonprocurement) regulations (Common
Rule), 60 Fed. Reg. 30337 (June 26, 1995).
6. Acknowledgment of Eximbank Reliance. We acknowledge that the
certifications set forth in this Supplier's Certificate (Special Ancillary
Services) are material representations of fact upon which reliance will be
placed by Eximbank in connection with the financing of the purchase of the
Special Ancillary Services and that, if it is later determined that we knowingly
entered into an erroneous certification, Eximbank may pursue any available
remedies, which may include remedies available to the United States government
such as suspension or debarment pursuant to the Debarment Regulations.
7. Original Certificate. This Supplier's Certificate (Special Ancillary
Services) is the only Supplier's Certificate (Special Ancillary Services) that
we have issued with respect to the Invoices.
[NAME OF SUPPLIER OF SPECIAL
ANCILLARY SERVICES](5)
By: ____________________________________
(Signature)(6)
Name: __________________________________
(Print)
Title: _________________________________
(Print)
Address: _______________________________
_______________________________
____________________________(7)
Enclosures
Invoices
cc: [Name of Lender]
[Address of Lender]
- ----------
(5) List complete name of company and include its Dun & Bradstreet number.
(6) This Certificate must be signed by a senior officer of the Ancillary
Supplier, such as the President, a Vice President, the Secretary, the Treasurer
or Assistant Treasurer. If any other individual signs, evidence of his or her
authority, in form and substance acceptable to Eximbank, must be submitted with
this Certificate.
(7) Include complete street address, including zip code, of the company facility
that produced the Special Ancillary Services.
B2(b)-6
REIMBURSEMENT PROCEDURE A-5 (CA)
Annex B
Exhibit 3
CERTIFICATE AUTHORIZING REIMBURSEMENT
Date __________
[Name of Lender]
[Address of Lender]
Subject: Eximbank Guarantee No. - [Name of Country] [Name of Borrower]
("Borrower")
Certificate Authorizing Reimbursement No.
Ladies and Gentlemen:
In accordance with the terms and conditions of the Credit Agreement (the
"Agreement"), dated as of __________, 199_, by and among the Borrower, [names of
other parties to the Agreement], and the Export-Import Bank of the United States
("Eximbank"), and with the Borrower's Request for Reimbursement to Account of
Borrower, we hereby authorize the Lender to make a Reimbursement under the
Credit in the amount of U.S.$_________ on or after _______ __, 199_, by paying
[[to Eximbank from the proceeds of the Reimbursement the applicable Exposure Fee
payable to Eximbank in the amount of U.S.$_________, and then paying the balance
of]] the proceeds of the Reimbursement to the account of [identify the
Borrower's account as it is carried on the books of the payee bank] at [complete
name and address of the payee bank].
Further, we hereby acknowledge that the Reimbursement, when so made, shall
constitute a Disbursement under the Credit, and, as such, together with the
interest accrued thereon at the Guaranteed Interest Rate (as defined in the
Master Guarantee Agreement dated as of _________, 199_ (the "Master Guarantee
Agreement"), between the Lender and Eximbank)1, are guaranteed by Eximbank
pursuant to the terms of, and subject to the conditions of, the Master Guarantee
Agreement.
- ----------
(1) If the Eximbank Guarantee for your transaction is documented under a
stand-alone guarantee agreement instead of a Lender's Master Guarantee Agreement
then replace this parenthetical with the following: "(as defined in the
Guarantee Agreement dated as of __________, 199_ (the "Guarantee Agreement"),
between the Lender and Eximbank)" and globally change all references to "Master
Guarantee Agreement" in this document to instead refer to "Guarantee Agreement".
B3-1
The defined terms in this Certificate shall have the respective meanings
specified in the Agreement.
EXPORT-IMPORT BANK OF THE
UNITED STATES
By: _______________________________
(Signature)
_______________________________
(Name)
_______________________________
(Title)
B3-2
L/C PROCEDURE A-5 (CA)
Annex B
Exhibit 4
REQUEST FOR LETTER OF CREDIT APPROVAL
Date ________________
[Name of Lender]
[Address of Lender]
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, DC 20571
Attention: Credit Administration Division
Subject: Eximbank Guarantee No. - [Name of Country)
[Name of Borrower] ("Borrower")
Request for Letter of Credit Approval
Ladies and Gentlemen:
In accordance with the terms and conditions of the Credit Agreement
("Agreement"), dated as of ____________, 199_, by and among the Borrower, [names
of other parties to the Agreement], and the Export-Import Bank of the United
States ("Eximbank"), we enclose for your approval three copies of a proposed
Letter of Credit No. ________ ("Proposed L/C"), prepared by [name of L/C
Bank].(1)
- ----------
(1) If the Eximbank Exposure Fee is to be financed under the Credit, the
following language, or substantially similar language acceptable to Eximbank,
must appear in the subject letter of credit:
This letter of credit is irrevocable, unless we are notified by Eximbank
that an Event of Default (as defined in the Credit Agreement among [the
Borrower], [the Lender] and Eximbank) has occurred, in which event,
following receipt of such notice, the irrevocable amount available to the
beneficiary hereunder for documents presented after receipt of such
notice, the irrevocable amount available to the beneficiary hereunder for
documents presented after receipt of such notice will be limited to the
lesser of (i) US$_________ or (ii) the remaining undisbursed balance of
the letter of credit. The balance of this letter of credit (US$_________)
represents the maximum amount of the Eximbank Exposure Fee, a portion of
which is payable to Eximbank each time that you make a drawing under this
letter of credit.
B4-1
Identifying data with respect to the Proposed L/C are as follows:
Beneficiary:
Amount: U.S.$
Expiry Date:
Description of Items being purchased:
Reference No. from Acquisition List:
If the terms and conditions of this letter of credit meet with your
approval, please issue your Certificate Approving Letter of Credit in the form
of Exhibit 5 to the Agreement.
CERTIFICATE
We hereby certify that: (i) all the payments to be made under the Proposed
L/C will be made exclusively for the purchase (a) in the United States of goods
and/or services which are of U.S. origin or manufacture (except as disclosed in
the Supplier's Certificate(s) to be presented in support of drawings under the
Proposed L/C), or (b) of Special Ancillary Services, and that in either case
these goods and/or services will be used for lawful purposes in accordance with
the Agreement; (ii) in connection with the acquisition of such goods and/or
services, we have not received or agreed to receive any discount, allowance,
rebate, commission, fee or other payment except as will be disclosed in the
aforementioned Supplier's Certificate(s) (or in Special Ancillary Supplier's
Certificate(s) to be presented in support of drawings under the Proposed L/C);
(iii) in connection with the sale of or the obtaining of any contract to sell
such goods and/or services or with the establishment or operation of the
Eximbank-supported financing (including any letter of interest or preliminary
commitment relating thereto issued by Eximbank), we have not (a) paid or agreed
to pay any commission, fee or other payment or (b) entered into any barter,
buyback, countertrade or offset agreement or other similar agreement and, to the
best of our knowledge and belief, the beneficiary of the Proposed L/C has not
(x) granted, paid or agreed to grant or pay any discount, allowance, rebate,
commission, fee other payment or (y) entered into any barter, buyback,
countertrade or offset agreement or other similar agreement, other than as
disclosed in the enclosed Suppliers Certificate(s) (L/C Application); (iv) as of
the date of this request, no event has occurred and is continuing which
constitutes, or but for the requirement of the giving of notice or lapse of
time, or
- ----------
Prior to your first drawing hereunder, we require as a condition of
payment that you authorize and direct us in writing to charge this letter
of credit and to remit to Eximbank, at the time we honor each draw, the
applicable portion of the Exposure Fee, equal to ___% of the amount of
each draft presented hereunder. Upon receipt of those instructions, we
agree to calculate and remit such fee to Eximbank each time we pay a draft
to you.
B4-2
both, would constitute, an Event of Default under the provisions of the
Agreement; and (v) as of the date of this request, the representations and
warranties made by us in the Agreement are true.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned thereto in the Agreement.
Very truly yours,
[BORROWER]
By: ____________________________________
(Signature)(2)
Name: __________________________________
(Print)
Title: _________________________________
(Print)
Enclosures
3 copies of Proposed L/C
1 copy of supplier's pro forma invoice,
purchase contract, or other document
covering purchase, and Supplier's Certificate
(L/C Application) (Exhibit 2(a))
- ----------
(2) May only be signed by one of the authorized representatives designated by
the Borrower pursuant to Section 6.01(c) of the Agreement.
B4-3
L/C PROCEDURE A-5 (CA)
Annex B
Exhibit 4(a)
REQUEST FOR APPROVAL OF
AMENDMENT TO LETTER OF CREDIT
[Name of Lender]
[Address of Lender]
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, DC 20571
Attention: Credit Administration Division
Subject: Eximbank Guarantee No. (Name of Country)
[Name of Borrower] ("Borrower")
Request for Amendment to Letter of Credit No. ___
Ladies and Gentlemen:
In accordance with the terms and conditions of the Credit Agreement
("Agreement") dated as of ________, 199_, by and among the Borrower, [names of
other parties to the Agreement], and Export-Import Bank of the United States
("Eximbank"), we enclose for your approval three copies of a proposed amendment
("Amendment") to Letter of Credit No. ________ ("Letter of Credit"), prepared by
[name of L/C Bank]. The Letter of Credit needs to be amended because [list
reason(s)].
If this Amendment meets with your approval, please issue your Certificate
Approving Amendment to Letter of Credit with respect to the Letter of Credit, as
amended ("Amended Letter of Credit").
CERTIFICATE
We hereby certify that: (i) all the payments to be made under the Letter
of Credit, as amended (the "Amended Letter of Credit") will be made exclusively
for the purchase (a) in the United States of goods and/or services of U.S.
origin or manufacture (except as disclosed in the Supplier's Certificate(s) to
be presented in support of drawings under the Amended Letter of Credit) or (b)
of Special Ancillary Services, and that in either case that these goods and/or
B4(a)-1
services will be used for lawful purposes in accordance with the Agreement; (ii)
in connection with the acquisition of such goods and/or services, we have not
received or agreed to receive any discount, allowance, rebate, commission, fee
or other payment, except as will be disclosed in the aforementioned Supplier's
Certificate(s) (or in Special Ancillary Supplier's Certificate(s) to be
presented in support of drawings under the Proposed L/C); (iii) in connection
with the sale of or the obtaining of any contract to sell such goods and/or
services or with the establishment or operation of the Eximbank-supported
financing (including any letter of interest or preliminary commitment relating
thereto issued by Eximbank), we have not (a) paid or agreed to pay any
commission, fee or other payment or (b) entered into any barter, buyback,
countertrade or offset agreement or other similar agreement and, to the best of
our knowledge and belief, the beneficiary of the Amended Letter of Credit has
not (x) granted, paid or agreed to grant or pay any discount, allowance, rebate,
commission, fee other payment or (y) entered into any barter, buyback,
countertrade or offset agreement or other similar agreement, other than as
disclosed in the Supplier's Certificate(s) (L/C Application) furnished to you
when the Letter of Credit was issued; (iv) as of the date of this request, no
event has occurred and is continuing which constitutes, or but for the
requirement of the giving of notice or lapse of time, or both, would constitute,
an Event of Default under the provisions of the Agreement; and (v) as of the
date of this request, the representations and warranties made by us in the
Agreement are true.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned thereto in the Agreement.
Very truly yours,
[BORROWER]
By: _______________________________
(Signature)(1)
_______________________________
(Name)
_______________________________
(Title)
Enclosures
3 copies of proposed Amendment of L/C
1 copy of purchase order or other document
evidencing need for amendment
- ----------
(1) May only be signed by one of the authorized representatives designated by
the Borrower pursuant to Section 6.01(c) of the Agreement.
B4(a)-2
L/C PROCEDURE A-5 (CA)
Annex B
Exhibit 5
CERTIFICATE APPROVING LETTER OF CREDIT
Date __________
[Name of Letter of Credit Bank]
[Address of Letter of Credit Bank]
Subject: Eximbank Guarantee No. ___________-[Name of Country]
[Name of Borrower] ("Borrower")
Certificate Approving Letter of Credit No. ______
Ladies and Gentlemen:
In accordance with the terms and conditions of the Credit Agreement
("Agreement"), dated as of ____________, 199_, between the Borrower, [name of
Lender] ("Lender"), [names of other parties to the Agreement] and the
Export-Import Bank of the United States ("Eximbank"), and with the Borrower's
Request for Certificate Approving Letter of Credit, we hereby approve the
[issuance, confirmation or advice] by the L/C Bank of Letter of Credit No. __
("Letter of Credit"), in the amount of U.S.$______.
Further, we hereby acknowledge that all payments made under the Letter of
Credit [including any payments to Eximbank of the applicable Exposure Fee],
which are made in accordance with the terms of the Letter of Credit will
constitute Disbursements under the Credit, and, as such, together with interest
accrued thereon at the Guaranteed Interest Rate (as defined in the Master
Guarantee Agreement dated as of ___________, 199__ ("Master Guarantee
Agreement"), between the Lender(s) and Eximbank)(2), are guaranteed by Eximbank
pursuant to the terms of, and subject to the conditions of, the Master Guarantee
Agreement.
- ----------
(2) If the Eximbank Guarantee for your transaction is documented under a
stand-alone guarantee agreement instead of a Lender's Master Guarantee Agreement
then replace this parenthetical with the following: "(as defined in the
Guarantee Agreement dated as of __________, 199_ (the "Guarantee Agreement"),
between the Lender and Eximbank)" and globally change all references to "Master
Guarantee Agreement" in this document to instead refer to "Guarantee Agreement".
B5-1
The defined terms used in this Certificate shall have the respective
meanings specified in the Agreement.
EXPORT-IMPORT BANK OF THE
UNITED STATES
By: _______________________________
(Signature)
_______________________________
(Name)
_______________________________
(Title)
B5-2
L/C PROCEDURE A-5 (CA)
Annex B
Exhibit 5(a)
CERTIFICATE APPROVING AMENDED LETTER OF CREDIT
Date____________
[Name of Letter of Credit Bank]
[Address of Letter of Credit Bank]
Subject: Eximbank Guarantee No. ______ -[Name of Country]
[Name of Borrower] ("Borrower")
Certificate Approving Amendment to Letter of Credit No. _______
Ladies and Gentlemen:
In accordance with the terms and conditions of the Credit Agreement
("Agreement"), dated as of ___________, 199_, between the Borrower, [name of
Lender] ("Lender"), [names of other parties to the Agreement] and the
Export-Import Bank of the United States ("Eximbank"), and with the Borrower's
Request for Certificate Approving Amendment to Letter of Credit, we hereby
approve the proposed amendment to Letter of Credit No. _________, ("Letter of
Credit").
Further, we hereby acknowledge that all payments made under the Letter of
Credit, as amended, [including any payments to Eximbank of the applicable
Exposure Fee], which are made in accordance with the terms of the Letter of
Credit, as amended, will constitute Disbursements under the Credit, and, as such
together with accrued interest thereon at the Guaranteed Interest Rate (as
defined in the Master Guarantee Agreement) dated as of _________, 199_ ("Master
Guarantee Agreement"), between the Lender(s) and Eximbank)(1), are guaranteed by
Eximbank pursuant to the terms of, and subject to the conditions of, the Master
Guarantee Agreement.
- ----------
(1) If the Eximbank Guarantee for your transaction is documented under a
stand-alone guarantee agreement instead of a Lender's Master Guarantee Agreement
then replace this parenthetical with the following: "(as defined in the
Guarantee Agreement dated as of ___________, 199_ (the "Guarantee Agreement"),
between the Lender and Eximbank)" and globally change all references to "Master
Guarantee Agreement" in this document to instead refer to "Guarantee Agreement".
B5(a)-1
The defined terms used in this Certificate shall have the respective
meanings specified in the Agreement.
EXPORT-IMPORT BANK OF THE
UNITED STATES
By: _______________________________
(Signature)
_______________________________
(Name)
_______________________________
(Title)
B5(a)-2
FORM OF OPINION OF BORROWER'S COUNSEL A-5 (CA)
Annex C
We have been and are acting as counsel for ______________ ("Borrower").
You have requested our opinion as to certain matters concerning the Credit
Agreement (the "Agreement") dated as of ______________, among the Borrower,
__________________, as Lender, ________________, as Guarantor, and the
Export-Import Bank of the United States. Terms not otherwise defined in this
opinion shall have the meanings assigned to them in the Agreement.
In connection with this opinion, we have reviewed such matters of law, and
have examined originals, or copies identified to our satisfaction, of such
agreements, corporate records, public records, communications of public
officials and other documents and instruments, as we have considered necessary
or appropriate.
Based upon the foregoing we are of the opinion that:
(1) Existence. The Borrower is duly organized and validly existing under
the laws of the Borrower's Country. The Borrower's existence is not limited by:
(i) any applicable law; (ii) the terms of any charter, by-law or other similar
document of the Borrower; or (iii) any other agreement, instrument or document
to which the Borrower is a party or by which it is bound.
(2) Authority. The Borrower has the full power, authority and legal right
to own and use its properties and carry on its business as now conducted, and to
execute, deliver, perform and observe the terms and conditions of the Agreement
and the other Borrower Documents. All corporate and other actions have been
taken which are necessary or advisable to: (i) authorize the Borrower to
execute, deliver, perform and observe the terms and conditions of the Agreement
and the other Borrower Documents; and (ii) authorize the officer(s) of the
Borrower who has (have) signed the Agreement and the other Borrower Documents
which have been signed on or before the date hereof to take such action.
(3) Government Authorizations. All consents, licenses, approvals and other
authorizations of, and exemptions by, any Governmental Authority in the
Borrower's Country and, to my knowledge, any governmental authorities within the
United States or elsewhere, which are necessary or advisable: (i) for the
execution, delivery, performance and observance by the Borrower of the Borrower
Documents; (ii) for the validity, binding effect and enforceability of the
Borrower Documents; and (iii) for the execution, delivery and performance of the
Purchase Contract and the importation and use of the Items in the Borrower's
Country, have been obtained and are in full force and effect. Without limiting
the generality of the previous sentence, all legal requirements of the
Borrower's Country with respect to the availability and transfer of foreign
exchange (including Dollars) required to make all scheduled payments due under
the Agreement and the Note(s) have been satisfied.
C-1
(4) Recordation. To ensure the legality, validity, enforceability,
priority or admissibility in evidence in the Borrower's Country of any of the
Borrower Documents, it is not necessary that any of the Borrower Documents be
registered, recorded, enrolled or otherwise filed with any court or other
Governmental Authority in the Borrower's Country (other than registration of the
Borrower Documents at the Public Registry of Titles and Documents in the City of
Sao Paulo), or be notarized, or that any documentary, stamp or other similar
tax, imposition or charge of any kind be paid on or in respect of any of the
Borrower Documents.
(5) Restrictions. The execution, delivery and performance or observance by
the Borrower of the terms of and consummation by the Borrower of the
transactions contemplated by, each of the Borrower Documents does not and will
not conflict with or result in a breach or violation of (i) the charter, by-laws
or similar documents of the Borrower; (ii) any law of the Borrower's Country or
any other ordinance, decree, constitutional provision, regulation or other
requirement of any Governmental Authority in the Borrower's Country (including,
without limitation, any restriction on interest that may be paid by the
Borrower); or (iii) any order, writ, injunction, judgment or decree of any court
or other tribunal. Further, the execution, delivery and performance or
observance by the Borrower of the terms of, and consummation by the Borrower of
the transactions contemplated by, each of the Borrower Documents does not and
will not conflict with or result in a breach of any agreement or instrument to
which the Borrower is a party, or by which it or any of its revenues, properties
or assets may be bound, or result in the creation or imposition of any Lien upon
any of the revenues, properties or assets of the Borrower pursuant to any such
agreement or instrument.
(6) Conflict of Laws and Enforceability.
(i) Under the conflict of laws principles in the Borrower's Country,
the choice of law provisions of the Agreement and the Note(s) are valid,
binding and not subject to revocation by the Borrower, and, in any
proceedings brought in the Borrower's Country for enforcement of any of
the Borrower Documents, the choice of the law of the State of New York as
the governing law of such documents will be recognized and such law will
be applied, provided that the applicable provisions of New York law are
not in conflict with Brazilian public order, good customs or national
sovereignty. In our opinion, the provisions of the Agreement, although
governed by New York law, are not in conflict with Brazilian public
policy, good customs or national sovereignty. We note, however, that these
concepts have not been clearly and consistently deemed by the courts of
Brazil and that the issue as to whether a conflict exists between
applicable foreign and Brazilian law can, in many instances, only be
determined on a case by case basis.
(ii) The Agreement and the other Borrower Documents which have been
executed on or before the date hereof have been duly authorized, executed
and delivered by the Borrower. Assuming that the Borrower Documents are
legal, valid, binding and enforceable under the law of the State of New
York, each of the Borrower Documents which has been executed and delivered
constitutes, and each of the Borrower Documents which may hereafter be
executed and delivered will
C-2
constitute, an obligation of the Borrower which is legal, valid and
binding upon the Borrower and enforceable against the Borrower in
accordance with its respective terms, except as such enforceability may be
limited by applicable insolvency, reorganization, liquidation, moratorium
readjustment of debt or other similar laws affecting the enforcement of
creditors' rights generally and by the application of general principles
of equity regardless of whether such enforceability is considered in a
proceeding at law or in equity.
(iii) Notwithstanding paragraph (i) above, if any of the Borrower
Documents were by their terms governed by and construed in accordance with
the law of the Borrower's Country, or if a court in the Borrower's Country
were to apply the law of the Borrower's Country to any of the Borrower
Documents, each of the Borrower Documents which has been executed and
delivered, and each of the Borrower Documents which may hereafter be
executed and delivered, would constitute an obligation of the Borrower
which is legal, valid and binding upon the Borrower and enforceable
against the Borrower in accordance with its respective terms, except as
such enforceability may be limited by applicable insolvency,
reorganization, liquidation, moratorium, readjustment of debt or other
similar laws affecting the enforcement of creditors' rights generally and
by the application of general principles of equity regardless of whether
such enforceability is considered in a proceeding at law or in equity.
(7) Submission to Jurisdiction, etc. The submission to jurisdiction,
appointment for service of process and waiver of security requirements by the
Borrower set forth in Sections 11.02, 11.03 and 11.05 of the Agreement,
respectively, are each effective and irrevocably binding on the Borrower. It is
not necessary that the appointment for service of process described in said
Section 11.03 be registered, recorded or filed with any court or other authority
in the Borrower's Country or be notarized, or that any documentary, stamp or
similar tax, imposition, or charge be paid on or in respect of such appointment.
(8) Commercial Activity. The Borrower Documents and the transactions
contemplated thereby constitute commercial activities (rather than governmental
or public activities) of the Borrower, and the Borrower is subject to private
commercial law with respect thereto. The Borrower has waived, pursuant to
Section 11.04 of the Agreement, any right of immunity which it or any of its
assets has or may hereafter acquire, whether characterized as sovereign immunity
or otherwise, from any legal proceedings in the Borrower's Country to enforce or
collect upon the Credit or the Note(s), or any other liability or obligation of
the Borrower related to or arising from the transactions contemplated by any of
the Borrower Documents, and such waiver is effective and irrevocably binding on
the Borrower.
(9) Legal Form, Judgements, etc. This Agreement, the Note(s) and each of
the other Borrower Documents are in proper legal form for enforcement against
the Borrower, in the Borrower's Country, in the most expeditious manner
available under the law of the Borrower's Country. We note, however, that the
form of the Note does not satisfy the requirements of an extrajudicial executory
title under the law of the Borrower's Country. In the event a final judgment of
any state or Federal court in the United States is rendered
C-3
against the Borrower under any of the Borrower Documents, the same would be
enforced by the courts of the Borrower's Country without any further review on
the merits, provided that such judgment has been ratified ("homlogado") by the
Supreme Court of the Borrower's Country. Such ratification will occur if the
foreign judgment (a) complies with all formalities required for enforceability
under the laws of the country wherein it was issued, (b) has been given by a
competent court of law in the country wherein it was issued after proper service
of process on the parties or after sufficient evidence of the parties' absence
has been given in accordance with applicable law of the country in which the
judgment was entered, (c) is not subject to appeal in the jurisdiction in which
it was issued, (d) has been authenticated by the Brazilian Consulate in the
country wherein it was issued accompanied by a sworn translation thereof into
Portuguese, and (e) is not contrary to Brazilian sovereignty, public policy and
good customs (as set forth in Section 17 of the law of introduction to the
Brazilian Civil Code). In our opinion, the enforcement of a foreign judgment
relating to any of the Borrower Documents would not be contrary to the law,
public policy or good customs of the Borrower's Country, any international
treaties binding in the Borrower's Country or generally accepted principles of
international law.
(10) Pari Passu. The payment obligations of the Borrower under the
Agreement and the Note(s) rank in all respects pari passu in priority of payment
and in right of security with all other unsecured debt of the Borrower, except,
in the case of the bankruptcy or liquidation of the Borrower, for debts of the
Borrower related to taxes or wages.
(11) Legal Proceedings. No legal proceedings are pending or, to the best
of the undersigned's knowledge, threatened before any court or governmental
agency which might: (i) materially and adversely affect the Borrower's financial
condition, business or operations; (ii) restrain or enjoin or have the effect of
restraining or enjoining the performance or observance of the terms and
conditions of any of the Borrower Documents; or (iii) in any other manner
question the validity, binding effect or enforceability of any of the Borrower
Documents.
(12) No Taxes. There is no Tax imposed on or in connection with: (i) the
execution, delivery or performance of any of the Borrower Documents; (ii) the
enforcement of any of the Borrower Documents; or (iii) on any payment to be made
to the Lender or Eximbank under any of the Borrower Documents.
(13) Licensing & Qualification. Under the law of the Borrower's Country,
neither the Lender nor Eximbank will, by reason of their entering into the
Borrower Documents and performing their obligations and enforcing their rights
thereunder: (i) be required to be qualified, licensed or otherwise entitled to
do business in the Borrower's Country, or be required to comply with any
requirement as to foreign registration or qualification in the Borrower's
Country; (ii) be subject to taxation in the Borrower's Country; or (iii) be
required to make any filing with any court or other governmental authority in
the Borrower's Country prior to any enforcement of any of the Borrower Documents
or performance of any of the transactions contemplated by the Borrower
Documents.
C-4
FORM OF OPINION OF GUARANTOR'S COUNSEL A-5 (CA)
Annex D
We have been and are acting as counsel for _______________ ("Guarantor").
You have requested our opinion as to certain matters concerning the Credit
Agreement (the "Agreement") dated as of _______________, among the Borrower,
_______________, as Lender, Guarantor and the Export-Import Bank of the United
States. Terms not otherwise defined in this opinion shall have the meanings
assigned to them in the Agreement.
In connection with this opinion, we have reviewed such matters of law, and
have examined originals, or copies identified to our satisfaction, of such
agreements, corporate records, public records, communications of public
officials and other documents and instruments, as we have considered necessary
or appropriate.
Based upon the foregoing we are of the opinion that:
(1) Existence. The Guarantor is duly organized and validly existing under
the laws of the Guarantor's Country. The Guarantor's existence is not limited
by: (i) any applicable law; (ii) the terms of any charter, by-law or other
similar document of the Guarantor; or (iii) any other agreement, instrument or
document to which the Guarantor is a party or by which it is bound.
(2) Authority. The Guarantor has the full power, authority and legal right
to own and use its properties and carry on its business as now conducted, and to
execute, deliver, perform and observe the terms and conditions of the Agreement
and the Note(s). All corporate and other actions have been taken which are
necessary or advisable to: (i) authorize the Guarantor to execute, deliver,
perform and observe the terms and conditions of the Agreement and the Note(s);
and (ii) authorize the officer(s) of the Guarantor who has (have) signed the
Agreement and the Note(s) which have been signed on or before the date hereof to
take such action.
(3) Government Authorizations. All consents, licenses, approvals and other
authorizations of, and exemptions by, any Governmental Authority in the
Guarantor's Country and, to my knowledge, any governmental authorities within
the United States or elsewhere, which are necessary or advisable: (i) for the
execution, delivery, performance and observance by the Guarantor of the
Agreement and the Note(s); (ii) for the validity, binding effect and
enforceability of the Agreement and the Note(s), have been obtained and are in
full force and effect. Without limiting the generality of the previous sentence,
all legal requirements of the Guarantor's Country with respect to the
availability and transfer of foreign exchange (including Dollars) required to
make all scheduled payments due under the Agreement and the Note(s) have been
satisfied.
(4) Recordation. To ensure the legality, validity, enforceability,
priority or admissibility in evidence in the Guarantor's Country of the
Agreement or the Note(s), it is not necessary that any such documents be
registered, recorded, enrolled or otherwise filed
D-1
with any court or other Governmental Authority in the Guarantor's Country (other
than registration of the Borrower Documents at the Public Registry of Titles and
Documents in the City of Sao Paulo), or be notarized, or that any documentary,
stamp or other similar tax, imposition or charge of any kind be paid on or in
respect of any of such documents.
(5) Restrictions. The execution, delivery and performance or observance by
the Guarantor of the terms of, and consummation by the Guarantor of the
transactions contemplated by, each of the Agreement and the Note(s) does not and
will not conflict with or result in a breach or violation of: (i) the charter,
by-laws or similar documents of the Guarantor; (ii) any law of the Guarantor's
Country or any other ordinance, decree, constitutional provision, regulation or
other requirement of any Governmental Authority in the Borrower's Country
(including, without limitation, any restriction on interest that may be paid by
the Guarantor); or (iii) any order, writ, injunction, judgment or decree of any
court or other tribunal. Further, the execution, delivery and performance or
observance by the Guarantor of the terms of, and consummation by the Guarantor
of the transactions contemplated by, each of Agreement and the Note(s) does not
and will not conflict with or result in a breach of any agreement or instrument
to which the Guarantor is a party, or by which it or any of its revenues,
properties or assets may be bound, or result in the creation or imposition of
any Lien upon any of the revenues, properties or assets of the Guarantor
pursuant to any such agreement or instrument.
(6) Conflict of Laws and Enforceability.
(i) Under the conflict of laws principles in the Guarantor's
Country, the choice of law provisions of the Agreement and the Note(s) are
valid, binding and not subject to revocation by the Guarantor, and, in any
proceedings brought in the Guarantor's Country for enforcement of any of
such documents, the choice of the law of the State of New York as the
governing law of such documents will be recognized and such law will be
applied, provided that the applicable provisions of New York law are not
in conflict with Brazilian public order, good customs or national
sovereignty. In our opinion, the provisions of the Agreement, although
governed by New York law, are not in conflict with Brazilian public
policy, good customs or national sovereignty. We note, however, that these
concepts have not been clearly and consistently defined by the courts of
Brazil and that the issue as to whether a conflict exists between
applicable foreign and Brazilian law can, in many instances, only be
determined on a case by case basis.
(ii) The Agreement and the Note(s) which have been executed on or
before the date hereof have been duly authorized, executed and delivered
by the Guarantor. Assuming that such documents are legal, valid, binding
and enforceable under the law of the State of New York, each of the
Agreement and the Note(s) which has been executed and delivered
constitutes, and each of the Note(s) which may hereafter be executed and
delivered will constitute, an obligation of the Guarantor which is legal,
valid and binding upon the Guarantor and enforceable against the Guarantor
in accordance with its respective terms, except as such enforceability may
be finished by applicable insolvency, reorganization, liquidation,
moratorium, readjustment of debt or other similar laws affecting the
enforcement of creditors' rights generally and
D-2
by the application of general principles of equity regardless of whether
such enforceability is considered in a proceeding at law or in equity.
(iii) Notwithstanding paragraph (i) above, if the Agreement or the
Note(s) were by their terms governed by and construed in accordance with
the law of the Guarantor's Country, or if a court in the Guarantor's
Country were to apply the law of the Guarantor's Country to any of such
documents, each of the Agreement and the Note(s) which has been executed
and delivered, and each of Note(s) which may hereafter be executed and
delivered, would constitute an obligation of the Guarantor which is legal,
valid and binding upon the Guarantor and enforceable against the Guarantor
in accordance with its respective terms, except as such enforceability may
be limited by applicable insolvency, reorganization, liquidation,
moratorium, readjustment of debt or other similar laws affecting the
enforcement of creditors' rights generally and by the application of
general principles of equity regardless of whether such enforceability is
considered in a proceeding at law or in equity.
(7) Submission to Jurisdiction, etc. The submission to jurisdiction,
appointment for service of process and waiver of security requirements by the
Guarantor set forth in Sections 11.02, 11.03 and 11.05 of the Agreement,
respectively, are each effective and irrevocably binding on the Guarantor. It is
not necessary that the appointment for service of process described in said
Section 11.03 be registered, recorded or filed with any court or other authority
in the Guarantor's Country or be notarized, or that any documentary, stamp or
similar tax, imposition, or charge be paid on or in respect of such appointment.
(8) Commercial Activity. The Agreement and the Note(s) and the
transactions contemplated thereby constitute commercial activities (rather than
governmental or public activities) of the Guarantor, and the Guarantor is
subject to private commercial law with respect thereto. The Guarantor has
waived, pursuant to Section 11.04 of the Agreement, any right of immunity which
it or any of its assets has or may hereafter acquire, whether characterized as
sovereign immunity or otherwise, from any legal proceedings in the Guarantor's
Country to enforce or collect upon the Credit or the Note(s), or any other
liability or obligation of the Guarantor related to or arising from the
transactions contemplated by the Agreement and the Note(s), and such waiver is
effective and irrevocably binding on the Guarantor.
(9) Legal Form, Judgments, etc. This Agreement and the Note(s) are in
proper legal form for enforcement against the Guarantor, in the Guarantor's
Country, in the most expeditious manner available under the law of the
Guarantor's Country. We note, however, that the form of the Note does not
satisfy the requirements of an extra-judicial executory title under the law of
the Guarantor's Country. In the event a final judgment of any state or Federal
court in the United States is rendered against the Guarantor under any of such
documents, the same would be enforced by the courts of the Guarantor's Country
without any further review on the merits, provided that such judgment has been
ratified ("homlogado") by the Supreme Court of the Borrower's Country. Such
ratification will occur if the foreign judgment (a) complies with all
formalities required for enforceability under the laws the country wherein it
was issued, (b) has been given by a competent court of law in the country
wherein it was issued after proper service of process on the parties or
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after sufficient evidence of parties' absence has been given in accordance with
applicable law of the country in which the judgment was entered, (c) is not
subject to appeal in the jurisdiction in which it was issued, (d) has been
authenticated by the Brazilian Consulate in the country wherein it was issued
accompanied by a sworn translation thereof into Portuguese, and (e) is not
contrary to Brazilian sovereignty, public policy and good customs (as set forth
in Section 17 of the law of introduction to the Brazilian Civil Code). In our
opinion, the enforcement of a foreign judgment relating to the Agreement or the
Note(s) would not be contrary to the law, public policy or good customs of the
Guarantor's Country, any international treaties binding in the Guarantor's
Country or generally accepted principles of international law.
(10) Pari Passu. The payment obligations of the Guarantor under the
Agreement and the Note(s) rank in all respects at least pari passu in priority
of payment and in right of security with all other unsecured debt of the
Guarantor except, in the case of the bankruptcy or liquidation of the Guarantor,
for debts of the Guarantor related to taxes or wages.
(11) Legal Proceedings. No legal proceedings are pending or, to the best
of the undersigned's knowledge, threatened before any court or governmental
agency which might: (i) materially and adversely affect the Guarantor's
financial condition, business or operations; (ii) restrain or enjoin or have the
effect of restraining or enjoining the performance or observance of the terms
and conditions of any of the Agreement or the Note(s); or (iii) in any other
manner question the validity, binding effect or enforceability of the Agreement
or the Note(s).
(12) No Taxes. There is no Tax imposed on or in connection with: (i) the
execution, delivery or performance of the Agreement or the Note(s); (ii) the
enforcement of the Agreement or the Note(s); or (iii) on any payment to be made
to the Lender or Eximbank under the Agreement or the Note(s).
(13) Licensing & Qualification. Under the law of the Guarantor's Country,
neither the Lender nor Eximbank will, by reason of their entering into the
Borrower Documents and performing their obligations and enforcing their rights
thereunder: (i) be required to be qualified, licensed or otherwise entitled to
do business in the Guarantor's Country, or be required to comply with any
requirement as to foreign registration or qualification in the Guarantor's
Country; (ii) be subject to taxation in the Guarantor's Country; or (iii) be
required to make any filing with any court or other governmental authority in
the Guarantor's Country prior to any enforcement of any of the Borrower
Documents or performance of any of the transactions contemplated by the Borrower
Document.
D-4
IN WITNESS WHEREOF, each of the parties hereto has caused this Credit
Agreement to be duly executed and delivered as of the date first above written.
TVA SISTEMA DE TELEVISAO S.A., as Borrower
By: _________________________________
(Signature)
Name: _______________________________
(Print)
Title: ______________________________
(Print)
TEVECAP S.A., as Guarantor
By: _________________________________
(Signature)
Name: _______________________________
(Print)
Title: ______________________________
(Print)
TEVECAP S.A., as Guarantor
By: _________________________________
(Signature)
THE CHASE MANHATTAN BANK, as Lender
By: _________________________________
(Signature)
Name: _______________________________
(Print)
Title: ______________________________
(Print)
EXPORT-IMPORT BANK OF THE UNITED STATES
By: _________________________________
(Signature)
Name: _______________________________
(Print)
Title: ______________________________
(Print)
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