LOAN AGREEMENT
This Loan Agreement (the "Agreement"), dated as of June 20, 2000 is
entered into by and between:
(i) ALGAR S.A. - EMPREENDIMENTOS E PARTICIPACOES, a company duly organized and
validly existing in accordance with the laws of the Federative Republic of
Brazil, with its head office at Avenida Alexandrino Garcia, 2689, Distrito
Industrial, in the City of Uberlandia, State of Minas Gerais, enrolled
before the National Registry of Legal Entities of the Ministry of Finance
(CNPJ/MF) under No 17.835.026-0001-52 here represented by its duly
authorized representative (hereinafter referred to as the "Lender"); and
(ii) FIBERCORE, INC., a company duly organized and validly existing in
accordance with the laws of the state of Nevada, United States of America,
with its head office at 253, Worcester Road, Charlton, MA, here
represented by its duly authorized representative(s) (hereinafter referred
to as the "Borrower");
and as Intervening and Consenting Party:
(iii) FIBERCORE LTDA., a corporation duly organized and validly existing under
the laws of the Federal Republic of Brazil, with head offices in the City
of Sao Paulo, State of Sao Paulo, at Rua Libero Badaro, 293, enrolled
before the National Registry of Legal Entities of the Ministry of Finance
(CNPJ/MF) under No. 03.767.078/0001-24, herein represented by its duly
authorized representative (hereinafter referred to as "FCI Brazil")
WHEREAS the Lender proposes to lend to the Borrower, and the Borrower proposes
to borrow from the Lender, the aggregate principal amount of US$ 2,500,000.00
(two million and five hundred thousand United States dollars).
NOW, THEREFORE, the parties hereto agree as follows:
1. THE LOAN AND DISBURSEMENT PROCEDURE
1.1. The Lender hereby lends to the Borrower, and the Borrower hereby
borrows from the Lender, the amount of US$ 2,500,000.00 (two million and five
hundred thousand United States dollars) (the "Loan").
1.2. The disbursement of the Loan shall be made within one business day
from the date hereof (the "Disbursement Date") upon execution and delivery of
the Notes (as defined in Section 4.1. below). The Loan shall be disbursed in
Reais, calculated in accordance with the commercial exchange market valid for
the day immediately prior to the date of the disbursement, as published by the
Central Bank of Brazil through the SISBACEN system under PTAX 800 rate, option
5, or any other rate publicly available that may replace the PTAX 800 rate. The
Borrower hereby gives irrevocable instructions to the Lender to disburse the
proceeds of the Loan, as provided herein, in the account no. 00907202, held in
Bank Boston Banco Multiplo S.A. (the "Bank") by FCI Brazil.
1.2.1. The Borrower hereby agrees and confirms that deposit confirmation
issued by the Bank in name of FCI Brazil shall constitute evidence of the
disbursement of the Loan provided for in this Agreement.
1.3. It is hereby agreed and understood that the Borrower shall apply the
proceeds of the Loan to the investment in Mamore Participacoes S.A., a company
duly organized and validly existing in accordance with the laws of the
Federative Republic of Brazil, with its head office at Avenida Alexandrino
Garcia, 2689, Suite 7, room A, Distrito Industrial, in the City of Uberlandia,
State of Minas Gerais (hereinafter referred to as "Mamore"), as provided for in
the Investment Agreement dated of June 1st 2000, entered into between the Lender
and the Borrower.
2. PAYMENT OF THE LOAN
2.1. The Borrower promises to repay the Loan in two (2) equal consecutive
installments ("Installment(s)"), each one in the amount of US$ 1,250,000.00 (one
million and , two hundred and fifty thousand United State dollars). The first
installment shall mature on September 20, 2001 (the "First Installment") and the
second installment shall mature on December 20, 2002 (the "Second Installment")
(the "Maturity Dates").
2.1.1 Notwithstanding any terms and conditions contained herein, each
Installment shall be proportionately reduced in the event that Gross Profit of
Xtal (as defined below) for the year 2000 (for the First Installment) and 2001
(for the Second Installment) does not achieve the levels described in Exhibit A
(the "Projected Gross Profit"), in accordance with the following formula:
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Reduced Installment = Amount of the Installment X [Gross Profit/Projected Gross
Profit] Amount
Amount of the Installment - means the principal amount of the First Installment
for the year 2000 and the principal amount of the Second Installment for the
year 2001, as the case may be.
Gross Profit - means the gross profit for the year 2000 and the gross profit for
the year 2001, as the case may be, and as defined in Section 2.1.2. herein.
Projected Gross Profit - means the projected gross profit for the year 2000 and
the projected gross profit for the year 2001, as the case may be, and as defined
in Exhibit A hereto.
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2.1.2. For purposes of this Agreement "Gross Profit" means the gross
profit of Xtal for a specific year determined in accordance with the Generally
Accepted Accounting Principles used in Brazil ("Brazilian GAAP") based on the
conditions and assumptions contained in the projections attached hereto as
Exhibit B. Lender shall have the right to appoint an independent accountant of
its choice to verify and confirm the Gross Profit presented by Xtal. In the
event that there is any discrepancy in the Gross Profit presented by Xtal and
the Gross Profit determined by the independent accountant selected by Lender and
that the Gross Profit in either year is lower than as projected due to actions
taken by Xtal at the direction of Borrower, its management and/or employees,
then the parties mutually agree to jointly appoint a third party independent
accountant (whose costs, fees and expenses shall be equally divided between the
parties) to make an independent evaluation of the Gross Profit and to evaluate
the effect on Gross Profit caused by such actions. The actual Gross Profit shall
be adjusted based on the evaluation performed by such independent accountant
jointly appointed by the parties disregarding the effects of such actions (the
"Adjusted Gross Profit") and such Adjusted Gross Profit shall be used in
determining the payments due pursuant to Sections 2.1. and 2.1.1. above.
2.1.3. In the event that the Gross Profit for any year is less then the
related Projected Gross Profit, the interests due by the Borrower with respect
to the related Installment shall be calculated based on the Reduced Installment
Amount from the Disbursement Date until the payment in full of such Installment.
2.1.4.In the event that the Gross Profit for any year is negative, the
amount of the related Installment shall be reduced to zero (0).
2.1.5. In the event that the Gross Profit for any year exceeds the
Projected Gross Profit for such year, the principal amount of the related
Installment shall be US$ 1,250,000 (one million, two hundred and fifty thousand
United State dollars).
2.3. The Borrower further promises to pay interest to the Lender on the
unpaid Principal Amount of the Loan at the rate per annum equal to 6% (six per
cent), calculated pro rata tempore, from the Disbursement Date until the date on
which the Loan is paid in full. Interest on the Loan shall also be paid by the
Borrower to the Lender on the respective Maturity Dates.
2.4. Whenever any payment under this Agreement shall be stated to be due
on a day which is not a business day (a business day shall be any day on which
dealings in currencies and exchange between banks may be carried on in the City
of Sao Paulo, Brazil, and Boston, Massachusetts, such payment shall be made on
the next succeeding business day, unless such a day shall fall in the first day
of the next succeeding calendar month, in which event such payment shall be made
on the preceding business day.
2.5. All payments to be made under this Agreement by the Borrower shall be
made free and clear of any cost (for instance, exchange or other bank fees), as
well as of any deduction for any present or future taxes or similar charges
imposed by Federative Republic of Brazil or United States of America or any
other jurisdiction through which payments are made (or any political subdivision
or taxing authority thereof or therein).
2.6. If any applicable law, regulation or directive, or any change therein
or in the interpretation thereof, or compliance by the Lender with any request
(whether or not having the force of law) of any relevant Central Bank or other
comparable agency, subjects the Lender to any tax of any kind whatsoever with
respect to this Agreement or changes the basis of taxation of payments to the
Lender of principal, interest or any other amount payable hereunder (except for
changes in the rate of tax on the overall net income of the Lender imposed in
Brazil) or imposes, modifies or deems applicable any reserve, special deposit or
similar requirement against foreign assets held by, or deposits in or for the
account of, or advances or loans by, or any other acquisition of funds by, any
office of the Lender or to this Agreement or the Loan made hereunder, and the
result of any of the foregoing is to increase the cost to the Lender of
maintaining the Loan or to reduce any amount receivable in respect thereof, then
the Borrower shall pay to the Lender, upon its demand, additional amounts which
will compensate the Lender for such increased cost or reduced amount receivable,
as determined by the Lender with respect to this Agreement. A certificate as to
any additional amounts payable pursuant to the preceding sentence submitted by
the Lender to the Borrower shall be conclusive, absent manifest error.
2.7. If the Borrower shall fail to make any payment due hereunder on the
Maturity Dates, the Borrower shall pay to the Lender an additional interest of
1% (one per cent) per month, calculated from the date of the failure until the
date the respective outstanding amount is paid in full, and a penalty equivalent
to 10% (ten per cent) of the due amount.
2.8. Any and all payments to be made by the Borrower hereunder, including
principal of and interest on the Loan, shall be made in immediately available
funds, at the account no49.964-1 , held by the Lender at Banco Bradesco S.A.,
branch 0265-8, of the amount in Reais of the United State dollars amount then
due and payable converted at the PTAX 800 rate, option 5, issued by the Central
Bank of Brazil through the SISBACEN system, obtained in the day immediately
prior to the date of the respective payment, or any other rate publicly
available that may replace the PTAX 800 rate.
2.9 It is hereby expressly agreed by the parties that the Borrower may
indicate any of its subsidiaries duly organized and validly existing in
accordance with the laws of the Federative Republic of Brazil to effectuate the
payment of the Loan.
3. REPRESENTATIONS AND WARRANTS
3.1. The Borrower hereby represents and warrants that: (a) the Borrower is
a corporation duly organized, validly existing and in good standing under the
laws of the state of Nevada, United States of America, and has full power,
authority and legal right to own its assets and to transact its business and to
execute, deliver and perform this Agreement and the Note, and has taken all
necessary corporate and legal action to authorize the execution, delivery and
performance of this Agreement, the Note and the borrowing hereunder on the terms
and conditions hereof; (b) this Agreement and the Note constitute legal, valid
and binding obligations of the Borrower enforceable against it in accordance
with its terms; (c) the execution, delivery and performance by the Borrower of
this Agreement and the Note will not violate the charter, by-laws or other
corporate rules of the Borrower or any provision of law or regulation or any
judgment, order or decree of any court, arbitrator or governmental authority or
of any agreement of any nature whatsoever, binding upon the Borrower and its
assets; (d) all consents and exemptions required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement
and the Note have been obtained and are in full force and effect; and (e) the
execution, delivery and performance by the Borrower of this Agreement and the
Note constitute private and commercial acts rather than governmental and public
acts.
3.2. If: (a) the Borrower fails to pay when due any amount due by it under
this Agreement or the Note; or (b) the Borrower fails to make any payment on any
pecuniary obligation (other than this Agreement) of any nature whatsoever
(including contingent obligations), or defaults in the performance of any
agreement under which any such obligation is created if the effect of such
default is to cause such obligation or to permit the holder or holders of such
obligation or a trustee or trustees on behalf of the holder or holders to
declare such obligation, due prior to its normal maturity; or (c) the Borrower
becomes insolvent or unable to pay its debts as they mature, or consents to the
appointment of a trustee, intervening party or receiver for it or for all or a
substantial part of its property, or any such trustee, intervening party or
receiver is appointed; or (d) bankruptcy, dissolution, reorganization,
intervention, arrangement or liquidation proceedings (or similar proceedings
analogous in purpose or effect) are instituted by or against the Borrower; or
(e) a warrant of attachment or execution or similar process against any
substantial part of the assets of the Borrower is issued; or (f) any
representation or warranty made by the Borrower in this Agreement proves to have
been incorrect; or (g) any consent or exemption referred to in this Agreement is
revoked or terminated or fails to be issued or ceases to be in full force and
effect; or (h) in the opinion of the Lender, there occurs an impairment of the
financial condition of the Borrower, then, and in any such event, the Lender
may, by notice of default given to the Borrower, declare the outstanding amount
under this Agreement and the Note to be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower.
4. NOTES
4.1. Prior to and as a condition precedent to the making of the Loan
hereunder and to evidence further the obligation of the Borrower to pay the
Loan, the Borrower shall execute and deliver to the Lender two (2) promissory
notes of the Borrower ("Notes"), one Note related to the First Installment (in
the form of Exhibit C hereto) and the other Note related to the Second
Installment (in the form of Exhibit D hereto), both appropriately completed,
dated the date of the Loan and in the total amount due by the Borrower on the
respective Maturity Date (including the Principal Amount and interest).
5. MISCELLANEOUS
5.1. The Borrower shall indemnify the Lender for, and hold the Lender
harmless from, any present or future claim or liability for any registration
charge or any stamp, excise or other similar taxes and any penalties or interest
with respect thereto, which may be imposed by any jurisdiction in connection
with this Agreement or any modification or enforcement hereof.
5.2. No action or omission by the Lender shall constitute a waiver of any
rights or remedies of the Lender hereunder. Such rights and remedies are
cumulative and not exclusive of any rights or remedies provided by law. Payment
of the Principal Amount of and interest on this Agreement and the Note shall not
discharge the Borrower's obligation with respect to any other amounts payable
hereunder.
5.3. The Borrower agrees to indemnify the Lender and to hold the Lender
harmless from any loss or expense which the Lender may sustain or incur as a
consequence of the default by the Borrower in payment of any amount due under
this Agreement, including any reasonable legal and court fees incurred by Lender
in the process of enforcing its rights provided for in this Agreement the Note
or other related documents. This covenant shall survive payment of this
Agreement and the Note.
5.4. This Agreement and the Note shall be governed by, and construed in
accordance with, the laws of the Federative Republic of Brazil. The Borrower
hereby irrevocably submits in any legal proceeding relating to this Agreement to
the non-exclusive in personam jurisdiction of the Courts of the City of Sao
Paulo, State of Sao Paulo, Brazil.
5.5. The Lender may at any time assign its rights and obligations under
this Agreement to any party of its choice, provided that the Borrower is
notified of such assignment. The Borrower is prohibited from assigning any of
its rights and obligations under this Agreement without prior written approval
of the Lender.
In witness hereof the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
ALGAR S.A. - EMPREENDIMENTOS E PARTICIPACOES
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By: Nelson Cascelli Reis
Title: Attorney-in-fact
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By: Jose Mauro Leal Costa
Title: Chief Executive Officer
FIBERCORE, INC.
---------------------------------------------------
By: Mohd A. Aslami
Title: President Chief Executive Officer
and as Intervening and Consenting Party:
FIBERCORE LTDA.
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By: Regina Maria Piza de Assumpcao Ribeiro do Valle
Title: Delegate Manager
WITNESSES:
1. ___________________________________
Name: Giseli Aparecida Perez Araujo
RG: 16.978.964
CPF: 074.393.068-13
2. ___________________________________
Name: Eliane Barbosa Mari
RG: 8.690.203
CPF: 762.429.948-87
<PAGE>
PROMISSORY NOTE
US$ 1,250,000.00 Date: June 20, 2000.
FOR VALUE RECEIVED, FIBERCORE, INC. a company duly organized and validly
existing in accordance with the laws of the state of Nevada, United States of
America, with its head office at 253, Worcester Road, Charlton, MA, by this
promissory note hereby unconditionally promises to pay to the order of ALGAR
S.A. - EMPREENDIMENTOS E PARTICIPACOES ("ALGAR"), a company duly organized and
validly existing in accordance with the laws of the Federative Republic of
Brazil, with its head office at Avenida Alexandrino Garcia, 2689, Distrito
Industrial, in the City of Uberlandia, State of Minas Gerais (the "Payee"), on
September 20, 2001 at the bank account no. 49.964-1, held by Algar at Banco
Bradesco S.A., Branch 0265-8, the correspondent amount, in Reais, to US$
1,250,000.00, free and clear of any taxes and/or withholdings whatsoever, in
immediately available funds.
The exchange rate to be used in order to exchange the above-referred amount in
Reais shall be the PTAX 800 rate, option 5, issued by the Central Bank of Brazil
through the SISBACEN system, obtained in the day immediately prior to the date
of the respective payment, or any other rate publicly available that may replace
the PTAX 800 rate.
This promissory note is issued in accordance with the Loan Agreement dated June
20, 2000, between FIBERCORE, INC. and ALGAR S.A. - EMPREENDIMENTOS E
PARTICIPACOES.
FIBERCORE, INC.
By: Mohd A Aslami
Title: President Chief Executive Officer
<PAGE>
PROMISSORY NOTE
US$ 1,250,000.00 Date: June 20, 2000.
FOR VALUE RECEIVED, FIBERCORE, INC. a company duly organized and validly
existing in accordance with the laws of the state of Nevada, United States of
America, with its head office at 253, Worcester Road, Charlton, MA, by this
promissory note hereby unconditionally promises to pay to the order of ALGAR
S.A. - EMPREENDIMENTOS E PARTICIPACOES ("ALGAR"), a company duly organized and
validly existing in accordance with the laws of the Federative Republic of
Brazil, with its head office at Avenida Alexandrino Garcia, 2689, Distrito
Industrial, in the City of Uberlandia, State of Minas Gerais (the "Payee"), on
December 20, 2002 at the bank account no. 49.964-1, held by Algar at Banco
Bradesco S.A., Branch 0265-8, the correspondent amount, in Reais, to US$
1,250,000.00, free and clear of any taxes and/or withholdings whatsoever, in
immediately available funds.
The exchange rate to be used in order to exchange the above-referred amount in
Reais shall be the PTAX 800 rate, option 5, issued by the Central Bank of Brazil
through the SISBACEN system, obtained in the day immediately prior to the date
of the respective payment, or any other rate publicly available that may replace
the PTAX 800 rate.
This promissory note is issued in accordance with the Loan Agreement dated June
20, 2000, between FIBERCORE, INC. and ALGAR S.A. - EMPREENDIMENTOS E
PARTICIPACOES.
FIBERCORE, INC.
By: Mohd A Aslami
Title: President Chief Executive Officer
