Loan Assumption Agreement

Transcription

1 Public Disclosure Authorized Public Disclosure Authorized OFFICIAL DOCumENTS LOAN NUMBER 1411 BR Loan Assumption Agreement (VALEFZRTIL Phosphate Fertilizer Project) Public Disclosure Authorized between INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT and FERTILIZANTES FOSFATADOS S.A. - FOSFERTIL Public Disclosure Authorized Dated March 25, 1981

2 LOAN NUMBER 1411 BR LOAN ASSUMPTION AGREEMENT AGREEMENT, dated March 25, 1981, between INTERNATIONAL BANK FOR RECONSTRUe;TION AND DEVELOPMENT (hereinafter called the Bank) and FERTILIZANTES FOSFATADOS S.A. - FOSFERTIL (hereinafter called FOSFERTIL). WHEREAS by a loan agreement (hereinafter called the Loan Agreement), dated April 29, 1977, between the Bank and FERTILIZANTES VALE DO RIO GRANDE S.A. - VALEFERTIL (hereinafter called VALEFERTIL), as amended, the Bank made a loan (hereinafter called the Loan) to VALEFERTIL in an amount in various currencies equivalent to eighty-two million dollars (US$82,000,000) on the terms and conditions set forth in the Loan Agreement, and the Loan Agreement has been amended by agreement dated August 17, 1979 between the Bank and VALEFERTIL in order to reflect, inter alia, the sale of shares of VALEFERTIL by COMPANHIA VALE DO RIO DOCE S.A. (hereinafter called CVRD) to FOSFERTIL; WHEREAS by a guarantee agreement (hereinafter called the Guarantee Agreement), dated April 29, 1977, between the Federative Republic of Brazil (hereinafter called the Guarantor) and the Bank, the Guarantor guaranteed the obligations of VALEFERTIL in the Loan Agreement contained, on the terms and conditions set forth in the Guarantee Agreement, and by an agreement between the Guarantor and the Bank, dated August 17, 1979 (hereinafter called the Supplemental Guarantee Agreement), the Guarantor confirmed its obligations under the Guarantee Agreement and undertook certain additional obligations to the Bank; WHEREAS by a shareholder agreement (hereinafter called the Shareholder Agreement), dated April 29, 1977, between the Bank and CVRD, CVRD undertook the obligations in the Shareholder Agreement contained, and by a shareholder assumption agreement (hereinafter called the Shareholder Assumption Agreement), dated August 17, 1979, between the Bank and FOSFERTIL and PETROBRAS FERTILIZANTES S.A. (hereinafter called PETROFERTIL) and INSUMOS BASICOS S.A. FINANCIAMENTO E PARTICIPAg0ES - FIBASE (hereinafter called FIBASE) and PETROLEO BRASILERO S.A. (hereinafter called PETROBRAS) and BANCO NACIONAL DE DESENVOLVIMENTO ECONOMICO (hereinafter called BNDE), the latter assumed, as shareholders of VALEFERTIL, the obligations of CVRD to the Batik under the Shareholder Agreement with respect to VALEFERTIL;

3 -2- WHEREAS VALEFERTIL and MINERAgAO VALE DO PARAMAOBA S.A. - VALEP (hereinafter called VALEP) have merged into FOSFERTIL, and FOSFERTIL, PETROFERTIL, FIBASE, CVRD, PETROBAS, BNDE and the Guarantor have requested the Bank to approve such merger and to agree to the undertaking by FOSFERTIL of all of VALEFERTIL's covenants, agreements and obligations in the Loan Agreement contained and, for that purpose, to enter into this Agreement and into the agreements described below with PETROFERTIL, FIBASE, CVRD, PETROBRAS, BNDE, and the Guarantor; WHEREAS CVRD, PETROFERTIL and FIBASE own approximately 99% of the shares in the capital of FOSFERTIL; WHEREAS PETROFERTIL and FIBASE, PETROBRAS and BNDE have agreed to confirm, mutatis mutandi, their obligations in the Shareholder Assumption Agreement contained and to undertake certain additional obligations to the Bank in respect of FOSFERTIL in a new Shareholder Assumption Agreement (hereinafter called the Second Shareholder Assumption Agreement) of even date herewith; WHEREAS CVRD has agreed to undertake certain obligations to the Bank in the Second Shareholder Assumption Agreement; WHEREAS the Guarantor has agreed to confirm its obligations in the Guarantee Agreement and in the Supplemental Guarantee Agreement and to undertake certain additional obligations to the Bank in a new supplemental guarantee agreement (hereinafter called the Second Supplemental Guarantee Agreement) of even date herewith; WHEREAS upon the basis, inter alia, of the foregoing the Bank and FOSFERTIL have agreed to enter into this Agreement (hereinafter called the Loan Assumption Agreement) upon the terms and condition3 hereinafter set forth; NOW THEREFORE, it is hereby agreed as follows: ARTICLE I Definitions Section Except as otherwise provided in Section 3.01 of this Agreement, where used in this Agreement, unless the context requires otherwise, the several terms defined in the General Conditions Applicable to Loan and Guarantee Agreements of the

4 -3- Bank, dated October 27, 1980, and in the Loan Agreement have the respective meanings therein set forth. ARTICLE II Particular Covenants of FOSFERTIL Section FOSFERTIL hereby assumes, and agrees to carry out and fulfill, all of the covenants, agreements and obligations of VALEFERTIL in the Loan Agreement, as amended, contained, and the Bank hereby recognizes the succession of FOSFERTIL to the rights of VALEFERTIL uader the Loan Agreement, all with the same effect as though FOSFERTIL were substituted for VALEFERTIL as a party to and Borrower under the Loan Agreement. Section All action taken under the Loan Agreement by VALEFERTIL shall be valid and binding on FOSFERTIL as though FOSFERTIL were VALEFERTIL and the coming into effect of this Agreement shall not affect any right acquired or obligation incurred or the consequences of action taken or omitted to be taken by the Bank or VALEFERTIL under the Loan Agreement, ARTICLE III Amendments to the Loan Agreement Section The Loan Agreement is hereby amended as follows: (a) by deleting paragraph (c) of Section 1.02 and substituting therefor: "(c) "Estatutos" means the Estatutos of the Borrower approved at the General Extraordinary Meeting on December 31, 1980, as amended to the date of this Agreement"; (b) by deleting paragraph (g) of Section 1.02 and substituting therefor: "(g)" VALEFERTIL Private Bank Loan" means a loan in the amount of $20,000,000 made by Chemical Bank to VALEFERTIL pursuant to the Loan Agreement, dated November 29, 1977, between VALEFERTIL and Chemical Bank and assumed by FOSFERTIL under a Loan Assumption Agreement, dated as of March 25, 1981, between Chemical Bank and FOSFERTIL"; (c) by adding at the end of Section 1.02 the following paragraphs:

5 "(i) "VALEP Private Bank Loan" means a loan in the amount of $30,000,000 made by certain private banks for VALEP pursuant to the loan agreement as of August 23, 1978 between VALEP and such bank, with Chemical Bank acting on its own behalf and as agent for such banks, and assumed by FOSFERTIL under a Loan Assumption Agreement, dated as of March 25, 1981, between such banks and FOSFERTIL; (j) "PETROFERTIL" means PETROBRAS FERTILIZANTES S.A. - PETROFERTIL, Sociedade de Economia Mista, Subsidiary of PETROBRAS, established and operating in Brazil which owns about 33% of the shares in the Borrower's capital; (k) "FIBASE" means Insumos Basicos S.A. Financiamento e Participa.5es - FIBASE, Sociedade por ASoes, Subsidiary of BNDE, established and operating in Brazil which owns about 33% of the shares in the Borrower's capital; (1) "CVRD" means Companhia Vale Do Rio Doce S.A., Sociedade por Agoes de Economia Mista, established and operating in Brazil which owns about 34% of the shares in the Borrower's capital; (m) "PETROBRAS" means Petroleo Brasileiro S.A; (n) "BNDE" means Banco Nacional de Desenvolvimento Economico; (o) "VALEP" means Minerago Vale do Paranaiba S.A.; (p) "Second Shareholder Assumption Agreement" means an agreement of even date herewith between the Bank and PETROFERTIL, FIBASE, CVRD, PETROBRAS and BNDE"; (d) by deleting paragraph (e) of Section 6.01 and substituting therefor: "(e) PETROFERTIL, FIBASE, CVRD, PETROBRAS or BNDE shall have failed to perform any of its obligations under the Second Shareholder Assumption Agreement"; (e) reference to the Shareholder Assumption Agreement in Section 6.01 (c) shall be deemed to be reference to the Second Shareholder Assumption Agreement; and

6 -5- (f) by deleting paragraph (b) of Section 6.02 and substituting therefor: "(b) The VALEFERTIL Private Bank Loan or the VALEP Private Bank Loan or any other debt for money borrowed by the Borrower with an original maturity of one year or more shall have become due and payable before its agreed maturity in accordance with the terms thereof." ARTICLE IV Effective Date Section (a) The Loan Assumption Agreement and the amendments to the Loan Agreement provided in Article III thereof shall become effective on the date upon which the Bank dispatches to PETROFERTIL, FIBASE, CVRD, PETROBRAS, BNDE and the Guarantor notice of its acceptance of evidence that: (i) the Loan Assumption Agreement has been registered with Banco Central do Brasil; and (ii) the execution and delivery of the Loan Assumption Agreement, the Second Shareholder Assumption Agreement and the Second Supplemental Guarantee Agreement on behalf of the parties thereto have been duly authorized or ratified by all necessary governmental and corporate action. (b) As part of such evidence, there shall be furnished to the Bank an opinion or opinions satisfactory to the Bank of counsel acceptable to the Bank showing: (i) on behalf of FOSFERTIL, that the Loan Assumption Agreement has been duly authorized or ratified, and executed and delivered on behalf of, FOSFERTIL and is legally binding upon FOSFERTIL in accordance with its terms; (ii) on behalf of FIBASE, CVRD, BNDE, PETROBRAS and PETROFER'IL, that the Second Shareholder Assumption Agreement has been duly authorized or ratified by, and executed and delivered on behalf of, and is legally binding upon, FIBASE, CVRD, BNDE, PETROBRAS and PETROFERTIL, respectively, in accordance with its terms; and (iii) on behalf of the Guarantor, that the Second Supplemental Guarantee Agreement has been duly authorized or ratified by and delivered on behalf of, the Guarantor and is legally binding upon the Guarantor in accordance with its terms.

7 ARTICLE V Addresses Section The following addresses are specified for the purposes of any notice required or permitted to be given pursuant to this Agreement: For the Bank: International Bank for Reconstruction and Development 1818 H Street, N.W. Washington, D.C United States of America Cable address: Telex: INTBAFRAD Washington, D.C (ITT) (RCA) or (WUI) For FOSFERTIL: Fertilizantes Fosfatados S.A. - Rua Arthur Machado Uberaba, Minas Gerais Brazil FOSTERTIL Telex: (034) 3326 FVRG IN WITNESS WHEREOF, the parties hereto, acting through their representatives thereunto duly authorized, have caused this Agreement to be signed in their respective names in

8 - 7 - New York, New York, United States of America, as of the day and year first above written. INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT By Authorized presentative FERTILIZANTES FOSFATADOS S.A. - FOSFERTIL By Authorized Representative

9 INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT CERTIFICATE I hereby certify that the foregoing is a true copy of the original in the archives of the International Bank for Reconstruction and Development. In witness whereof I have signed this Certificate and affixed the Seal of the Bank thereunto this a2& day of AA. 198 L. FOR SECRETARY