EX-10.28



 Exhibit 10.28 

 
 



 
 SECOND EKF FACILITY LETTER 

DATED 22 FEBRUARY 2011 
 Between 
 Votorantim Cimentos SA 

as Borrower 

Votorantim Participações S.A. 
 and 
 Votorantim Industrial S.A. 

as Guarantors 
 HSBC Bank PLC 
 as Mandated Lead Arranger 

Eksport Kredit Finansiering A/S 
 as Lender 
 and 

HSBC Bank PLC 
 as Agent 







 CONTENTS 

 

							
	 	  	Page	 
	Clause	  			
			
	1.	 	 Interpretation
	  	 	3	  
	2.	 	 Incorporation of Framework Agreement Provisions
	  	 	6	  
	3.	 	 The Facility
	  	 	7	  
	4.	 	 Purpose
	  	 	7	  
	5.	 	 Loans
	  	 	7	  
	6.	 	 Representations and Warranties
	  	 	8	  
	7.	 	 Covenants
	  	 	8	  
	8.	 	 Mandatory Prepayment - Environment
	  	 	9	  
	9.	 	 Event of Default
	  	 	10	  
	10.	 	 Repayment
	  	 	10	  
	11.	 	 The Agent
	  	 	11	  
	12.	 	 Payments
	  	 	12	  
	13.	 	 Participation Agreement
	  	 	12	  
	14.	 	 FeeS
	  	 	12	  
	15.	 	 Pro Rata Sharing
	  	 	12	  
	16.	 	 Notices
	  	 	14	  
	17.	 	 Buyer Declaration
	  	 	14	  
	18.	 	 Counterparts
	  	 	15	  
	19.	 	 Governing Law
	  	 	15	  
		
	Schedule	  			
			
	1.	 	 Original Lender
	  	 	16	  
	2.	 	 Additional Initial Conditions Precedent
	  	 	17	  
	3.	 	 Repayment Schedule
	  	 	18	  
	4.	 	 Approved Contracts
	  	 	19	  
	5.	 	 EKF Documents
	  	 	20	  
		
	Signatories	  	 	21	  


  
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 THIS SECOND FACILITY LETTER is dated 22 February 2011 and is made 

BETWEEN: 
  

	(1)	VOTORANTIM CIMENTOS SA a company incorporated under the laws of Brazil, having its registered office at Professor Jose Lannes, 04571100 São Paulo (the
Borrower); 

  

	(2)	VOTORANTIM PARTICIPAÇÕES S.A. a company incorporated under the laws of Brazil, having its registered office at Rua Amauri 255, 10th floor,
01448-000 São Paulo and VOTORANTIM INDUSTRIAL S.A. a company incorporated under the laws of Brazil, having its registered office at Rua Amauri, 255, 10th floor, 01448-000 São Paulo (together, the Guarantors);


  

	(3)	HSBC BANK PLC as the mandated lead arranger (the Mandated Lead Arranger); 


 

	(4)	THE FINANCIAL INSTITUTION listed in Schedule 1 (Original Lender) as Original Lender (the Original Lender); and 


 

	(5)	HSBC BANK PLC as agent for the Finance Parties under (and as defined in) this Second Facility Letter (in this capacity the Agent).


 BACKGROUND 
  

	(A)	This Second Facility Letter relates to each supply contract for preheater kiln and clinker coolers for five new cement lines signed 2010 with an aggregate value of up
to US$38,000,000 and each as described more fully in Schedule 4, as such supply contracts may have been and may in the future be amended, varied or supplemented from time to time (together, the Approved Contracts and each an Approved
Contract). 

  

	(B)	This Second Facility Letter constitutes the second tranche of the EKF Facility. The EKF Facility has been divided into several tranches in order to meet different
requirements under the individual supply contracts delivered, or to be delivered, by the Exporter under the Approved Contracts. 


IT IS AGREED as follows: 
  

	1.	INTERPRETATION 

  

	1.1	Definitions 

 For the
purposes of this Second Facility Letter the following definitions shall apply: 
 Availability Period means, in relation
to a Loan, the period from the Signing Date up to and including the earlier of: 
  

	 	(a)	the Starting Point of Credit; and 

  

	 	(b)	the date on which the Facility is cancelled pursuant to the terms of this Second Facility Letter or the date on which such Facility is fully utilised,


 as such end date may be extended with the agreement of the Borrower and the Agent (acting on the instructions of
all the Lenders and the Supporting ECA). 
 Commissioning Date means the date upon which the Buyer takes physical
possession of the final equipment to be supplied by the Exporter under the supply contracts that form part of the Approved Contracts. 

  
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 Commissioning Date Certificate means any notice or certificate confirming that all
equipment supplied by the Exporter under the Approved Contracts has been accepted by the Buyer and notifying the Agent that the actual Commissioning Date has occurred. 
 Commitment means: 
  

	 	(a)	for the Original Lender, the amount set opposite its name in Schedule 1 (Original Lender) of this Second Facility Letter under the heading “Commitment” and
the amount of any other Commitment it acquires; and 

  

	 	(b)	for any other Lender, the amount of any Commitment it acquires, 

 in each case to the extent not cancelled, transferred or reduced under this Second Facility Letter. 
 Conditions Satisfaction Notice Issuance means, in relation to Loan, the issuance by the Agent of the notice to the Borrower and the Lenders as referred to in Clause 5.1 (Initial Conditions
Precedent) below. 
 ECA Support Document means the export credit guarantee cover, policy number 25042-46834 issued by the
Supporting ECA in favour of the Original Lender in respect of this Second Facility Letter. 
 EKF Facility means the total
facility of up to a maximum amount of US$150 million made available under this Second Facility Letter, the First Facility Letter and any facility letter subsequently entered into by the parties hereto designated as comprising part of the EKF
Facility, plus the aggregate of the ECA Guarantee Charge payable in relation thereto. 
 Environmental Requirements means
each of those environmental standards and requirements referred to in (a) the Equator Principles (b) the OECD Common Approaches and (c) the applicable IFC Performance Standards and EH&S Guidelines, in each case as applicable in
relation to the Project or the Approved Contracts. 
 Exporter means FLSmidth Inc. a stock corporation incorporated under
the laws of Delaware and with its registered office at 2040 Avenue C, Bethlehem, PA 18017-2188, United States of America. 

Facility Commitment means the aggregate of the Commitments of all the Lenders, being US$33,657,752, as cancelled, transferred or
reduced under this Second Facility Letter. 
 Final Maturity Date means, in relation to each Loan made under this Second
Facility Letter, that date specified in Clause 10.4 (Final Maturity Date). 
 Finance Document means: 

 

	 	(a)	this Second Facility Letter; 

  

	 	(b)	the Framework Agreement; 

  

	 	(c)	any Fee Letter; 

  

	 	(d)	the Participation Agreement; 

  

	 	(e)	any Request; 

  

	 	(f)	any Transfer Certificate relating to any transfer of any rights or obligations under this Second Facility Letter; or 


 

	 	(g)	any other document designated as a Finance Document by the Agent and the Borrower. 


  
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 Finance Party means a Lender, or an Administrative Party to this Second Facility
Letter. 
 First Facility Letter means the US$36,691,791 facility letter made between the parties hereto on or about the
date of this Second Facility Letter. 
 First Repayment Date means the date falling no later than six (6) months
after the Starting Point of Credit. 
 Framework Agreement means the ECA Framework Agreement dated 8 December 2010
and as amended from time to time as agreed (and only to the extent agreed) in writing by the Agent (acting in accordance with the terms of this Second Facility Letter) or all the Finance Parties. 

Interest Payment Date means prior to the Starting Point of Credit, each 30 January and 30 July and after the Starting
Point of Credit, each Repayment Date. 
 Majority Lender means the Original Lender unless such Original Lender assigns or
transfers any of its rights and obligations under this Second Facility Letter, in which case the definition of “Majority Lender” in the Framework Agreement shall apply. 

Margin means 1.385% per annum. 
 Participant Account means the US Dollar account (number 400515 70788697) set up by the Agent in the name of Eksport Kredit Finansiering A/S and into which sums are paid in accordance with this
Second Facility Letter and the Participation Agreement. 
 Participant Bank means HSBC Bank plc and any of its assignees
pursuant to clause 5 (Assignment) of the Participation Agreement. 
 Participating Institution means Eksport Kredit
Finansiering A/S. 
 Participation Agreement means the participation agreement named the “Refinancing and
Administration Agreement” entered into between the Participating Institution and the Agent for the purpose of enabling the Participating Institution to obtain funding in connection with the transactions contemplated by this Second Facility
Letter, including all appendices and ancillary documents related thereto listed in Schedule 5 (EKF Documents). 
 Party
means any party to this Second Facility Letter. 
 Primavera Environmental Impact Assessment means the environmental and
social impact assessment for the Primavera Plant, as prepared in accordance with Environmental Law and Environmental Requirements. 
 Primavera Plant means the Borrower’s cement plant located in the city of Primavera, Para, Brazil. 
 Project means the construction, operation and maintenance of certain cement plants in Brazil owned by the Borrower or its Subsidiaries, together with any ancillary activities related thereto.

 Signing Date means the date of this Second Facility Letter. 

Starting Point of Credit means the earlier of the Commissioning Date and 30 January 2013. 

Supporting ECA means Eksport Kredit Fonden, the state owned Danish export credit agency with its registered office at Langelinie
Allé 17, 2100 Copenhagen, Denmark. 

  
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 Vidal Ramos Environmental Impact Assessment means the environmental and social impact
assessment for the Vidal Ramos Plant, as prepared in accordance with Environmental Law and Environmental Requirements. 

Vidal Ramos Plant means the Borrower’s cement plant located in the city of Vidal Ramos, State of Santa Catarina. 

 

	1.2	Other defined terms 


Unless otherwise expressly defined in this Second Facility Letter or the context otherwise requires, capitalised terms used in this Second
Facility Letter shall have the same meanings as given to them in the Framework Agreement. 
  

	1.3	Construction 

 Except as
otherwise provided in this Second Facility Letter or to the extent that the context requires otherwise, the provisions of clause 1.2 (Construction) of the Framework Agreement shall apply to this Second Facility Letter as if expressly set out in this
Second Facility Letter. 
  

	1.4	Third Party Rights 


Unless expressly provided to the contrary in this Second Facility Letter, a person who is not a party to a Finance Document (other than
the Supporting ECA or the Participant Bank) may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any term of any Finance Document, no consent of any third party is required for any amendment
(including any release or compromise of any liability) or termination of any Finance Document. The Participant Bank may (and its agent or the Lenders may on its behalf) enforce the terms of any Finance Document against any Obligor under the
Contracts (Rights of Third Parties) Act 1999. 
  

	1.5	Assignment of Guarantee 


The Lenders hereby give notice to each Obligor that under an assignment agreement dated the date of this Second Facility Letter, it has
assigned to the Participant Bank all its rights and interests in the guarantee provided by the Guarantors under clause 17 (Guarantee and Indemnity) of the Framework Agreement and each Obligor hereby acknowledges this notice of assignment.

  

	2.	INCORPORATION OF FRAMEWORK AGREEMENT PROVISIONS 

  

	(a)	Except to the extent provided otherwise in this Second Facility Letter, the provisions of the Framework Agreement are incorporated into this Second Facility Letter as
if expressly set out in full in this Second Facility Letter (and any reference to “this Second Facility Letter” in the provisions of this Second Facility Letter (other than this Clause 2) shall be deemed to include the terms of such
provisions so incorporated). In the event of any conflict or inconsistency between the provisions of this Second Facility Letter and the provisions of the Framework Agreement as so incorporated, the provisions of this Second Facility Letter shall
prevail. 

  

	(b)	For the avoidance of doubt, any amendment to the terms of the Framework Agreement shall not apply (and shall be deemed not to apply) for the purposes of any Finance
Document unless, in each case, such amendment has been agreed by the Agent (acting in accordance with the terms of this Second Facility Letter) or all the Finance Parties. 


  
 6 









	3.	THE FACILITY 

  

	3.1	The Facility 

  

	(a)	Subject to the terms of this Second Facility Letter and the Framework Agreement, the Lenders agree to make available to the Borrower a term loan facility (the
Facility) in an aggregate amount not to exceed the Facility Commitment consisting of: 

  

	 	(i)	US$31,675,310 for the purposes set out in Clause 4(a) (Purpose) below; and 


 

	 	(ii)	US$1,982,442 for the purposes set out in Clause 4(b) (Purpose) below. 

  

	(b)	This Second Facility Letter forms part of the aggregate amount of the EKF Facility. 


 

	3.2	Commissioning Date Certificate 

 The Borrower shall provide or shall procure that the Exporter shall provide a Commissioning Date Certificate to the Agent promptly upon the Commissioning Date occurring. 

 

	4.	PURPOSE 

 Each Loan made
under this Second Facility Letter may only be used: 
  

	 	(a)	for the purposes set out in clause 3.1 (Use of proceeds) of the Framework Agreement; and 


 

	 	(b)	to finance up to one hundred per cent. (100%) of the ECA Guarantee Charge paid or payable (as the case may be) to the Supporting ECA under or pursuant to the ECA
Support Document. 

  

	5.	LOANS 

  

	5.1	Initial Conditions Precedent 

 No Request under or in relation to this Second Facility Letter may be delivered unless and until the Agent has notified the Borrower and the Lenders in writing (a Conditions Precedent Satisfaction
Notice) that it has received in form and substance satisfactory to it (or, where one or more of these conditions precedent is not in form and substance satisfactory to it, the Agent (acting on the instructions of all the Lenders) has otherwise
waived such requirement): 
  

	 	(a)	all of the documents and evidence set out in Schedule 1 (Conditions Precedent Documents) of the Framework Agreement in accordance with clause 6.1 (Conditions precedent
documents) of the Framework Agreement as applicable to the Facility; and 

  

	 	(b)	each of the documents and evidence set out in Schedule 2 (Additional Initial Conditions Precedent). 


 

	5.2	Conditions precedent to utilisation of each Loan 

 The obligations of each Lender to participate in any Loan under this Second Facility Letter are subject to the further conditions precedent that on both the date of the relevant Request and the
Utilisation Date for that Loan: 
  

	 	(a)	the conditions precedent set out in clause 6.2 (Conditions precedent to utilisation of each Loan) of the Framework Agreement are satisfied; and


  

	 	(b)	the Lenders are satisfied (by way of an irrevocable payment instruction from the Participant Bank to the Lender) that the Participant Bank has funded, or will on the
relevant Utilisation Date fund, an amount equal to the proposed Loan in accordance with the terms of the Participation Agreement. 


  
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	5.3	Completion of Request in relation to the Facility 

  

	(a)	Only 4 Reimbursement Requests or 4 Disbursement Requests and 1 Guarantee Charge Request may be submitted under this Second Facility Letter in any calendar period during
the Availability Period. 

  

	(b)	Unless the Agent otherwise agrees, the latest time for receipt by the Agent of a duly completed Request is 10.00a.m. seven (7) Business Days before the Quotation
Date for the proposed borrowing. 

  

	6.	REPRESENTATIONS AND WARRANTIES 

  

	(a)	Each Obligor hereby confirms that the representations and warranties made by the Borrower under clause 18 (Representations and Warranties) of the Framework Agreement
are made by each Obligor to and for the benefit of each Finance Party as at the date of the Framework Agreement and as at the date of this Second Facility Letter by reference to the facts and circumstances existing as of the date of the Framework
Agreement and this Second Facility Letter respectively. Such representations shall take effect as if expressly set out in this Second Facility Letter in full mutatis mutandis. 


 

	(b)	In addition, each Obligor makes the following representations and warranties set out in this Clause 6 to each of the Finance Parties on the date of this Second Facility
Letter: 

  

	 	(i)	all necessary Authorisations to import the related goods and services into Brazil and/or perform the necessary services in Brazil in relation to each Approved Contract
have been obtained; 

  

	 	(ii)	the copy of each Approved Contract which the Borrower has delivered to the Agent pursuant to Clause 5.1 (Initial Conditions Precedent) above is a true and complete
copy, and no amendments have been made or waivers granted in relation thereto, except as disclosed in writing to the Agent; and 

  

	 	(iii)	no applicable law of Brazil is or will be violated by any Approved Contract or the Buyer’s performance of its obligations thereunder. 


 

	(c)	Each of the representations and warranties referred to or set out in this Clause 6 are deemed to be made or repeated by each Obligor to each Finance Party on the date
of each Request delivered in relation to the Facility and the first day of each Interest Period, in each case with reference to the facts and circumstances then existing. 


 

	7.	COVENANTS 

 The
undertakings in this Clause 7 remain in force from the date of this Second Facility Letter for so long as any amount is outstanding under any Finance Document or any Commitment is in force. 

 

	 	(a)	The Borrower shall comply in all respects with any instructions received from a Transaction Party where that instruction arises directly as a result of any request made
upon such Transaction Party by the Supporting ECA or the Lenders. 


  
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	 	(b)	Each Obligor shall promptly notify the Agent if it becomes aware of any: 

  

	 	(i)	Environmental Claim current or, to its knowledge, pending or threatened; and 


 

	 	(ii)	any circumstances which could reasonably be expected to result in an Environmental Claim, 


and shall promptly provide all relevant information in relation to the Environmental Claim to the Agent and the Supporting ECA (including,
but not limited to, the matter of the claim, the response to such claim, reactions from other parties to such claim including in the public and the media and the provision of a remedial plan). Unless otherwise agreed with the Agent and the
Supporting ECA, the Borrower must respond to any claimant within 10 Business Days of becoming aware of such Environmental Claim. 
  

	 	(c)	The Borrower shall procure that the Agent is provided within 90 days of the anniversary of the Signing Date in each calendar year, a monitoring report in form and
substance satisfactory to the Agent (acting on the instructions of the Supporting ECA) summarising compliance with respect to all applicable Environmental Laws, Environmental Requirements and Environmental Approvals in connection with the planning,
implementation and operation of the Project. The Borrower shall immediately notify the Agent of any such non-compliance with any applicable Environmental Law, Environmental Requirements or Environmental Approval (an Environmental Compliance
Event) and provide a remedial plan (including a timetable for rectification of such non-compliance) promptly after becoming aware of such non-compliance. 


 

	 	(d)	The Borrower shall procure that the Agent is provided with the Primavera Environmental Impact Assessment and the Vidal Ramos Environmental Impact Assessment within 3
calendar months of Signing Date. To the extent that the Primavera Environmental Impact Assessment and/or the Vidal Ramos Environmental Impact Assessment demonstrates, in the reasonable opinion of the Agent (acting on the instructions of the
Supporting ECA), a material adverse environmental impact or any material breach of any applicable Environmental Law or Environmental Requirements (each a Material Environmental Breach), the Borrower shall promptly deliver a remedial plan to
the Agent following which the Agent, the Supporting ECA and the Borrower shall agree a timetable for the rectification of such Material Environmental Breach. If a timetable cannot be agreed, this shall be deemed to be 30 days from the date that the
Environmental Impact Assessment was delivered to the Agent. 

  

	8.	MANDATORY PREPAYMENT - ENVIRONMENT 

  

	(a)	The Borrower must promptly notify the Agent if following the occurrence of an Environmental Compliance Event or a Material Environmental Breach, it fails to achieve
rectification within due time as indicated as part of the remedial plan provided to the Agent under Clauses 7(c) and 7(d) above, as applicable. 

  

	(b)	After notification under paragraph (a) above or after any Finance Party otherwise becoming aware that the event listed in paragraph (a) above has occurred, if
the Lenders so require and the Agent considers it necessary in accordance with the terms of the ECA Support Document to obtain the consent of the Supporting ECA, after having obtained the prior written consent of the Supporting ECA, the Agent must
send a notice (an Environmental Mandatory Prepayment Notice) in respect of the Facility to the Borrower requiring cancellation and prepayment in accordance with paragraph (c) or (d) below. If the Agent considers it necessary in
accordance with the terms of the ECA Support Document to obtain the consent of the Supporting ECA to any requirement of the Lenders pursuant to this paragraph (b), it will promptly inform the Lenders of its opinion. 


  
 9 









	(c)	On the issuing by the Agent of an Environmental Mandatory Prepayment Notice in relation to the Facility under Clause 7(c) above: 


 

	 	(i)	the total undrawn Commitments under the Facility will be automatically immediately cancelled; and 


 

	 	(ii)	the Borrower must immediately repay or prepay all outstanding Loans under the Facility, together with accrued interest and all other amounts accrued to the Transaction
Parties under the Finance Documents, 

 provided that, no mandatory prepayment shall be required under this Clause
8(c) if the Borrower demonstrates to the satisfaction of the Agent and the Supporting ECA that the Borrower is diligently pursuing rectification of the Environmental Compliance Event and such rectification is reasonably likely to be achieved with 30
days of the end of the original period for rectification. 
  

	(d)	On the issuing by the Agent of an Environmental Mandatory Prepayment Notice in relation to the Facility under Clause 7(d) above: 


 

	 	(i)	the total undrawn Commitment under the Facility related to the Primavera Project and/or Vidal Ramos Project, as applicable, will be automatically and immediately
cancelled; and 

  

	 	(ii)	the Borrower must immediately repay or prepay all outstanding Loans under the Facility, together with accrued interest and all other amounts accrued to the Transaction
Parties under the Finance Documents in relation to the Primavera Project and/or Vidal Ramos Project, as applicable, 

 provided that, no mandatory prepayment shall be required under this Clause 8(d) if the Borrower demonstrates to the satisfaction of the Agent and the Supporting ECA that the Borrower is diligently
pursuing rectification of the Material Environmental Breach and such rectification is reasonably likely to be achieved with 30 days of the end of the original period for rectification. 

 

	9.	EVENT OF DEFAULT 

 Each of
the events or circumstances set out in this Clause 9 is an Event of Default. 
  

	9.1	Cross default 

 An event
of default (however described) has occurred and is continuing under any Facility Letter comprising the EKF Facility. 
  

	10.	REPAYMENT 

  

	10.1	Repayment 

 All Loans made
under the Facility shall be repaid in full in accordance with clause 8 (Repayment of Loans) of the Framework Agreement as incorporated into this Second Facility Letter and this Clause 10. 

 

	10.2	Number of Repayment Instalments 

 The number of consecutive semi-annual instalments in relation to this Second Facility Letter shall be 20 (the Relevant Number). “X” for the purposes of clause 8 (Repayment of Loans) of
the Framework Agreement as applicable to each Loan made under this Second Facility Letter shall be 20. 

  
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	10.3	First Repayment Date 

 The
First Repayment Date for all Loans made under this Second Facility Letter is that date which falls no later than six months after the Starting Point of Credit and being on either 30 January or 30 July and subsequent Repayment Instalments
must be repaid on each 30 January and 30 July falling after the First Repayment Date. 
  

	10.4	Final Maturity Date 

 The
Final Maturity Date for all Loans made under this Second Facility Letter is the date falling ten years after the date upon which the Availability Period expires. 
  

	11.	THE AGENT 

  

	(a)	Each Finance Party (other than the Agent) hereby irrevocably appoints the Agent to act as its agent under and in connection with this Second Facility Letter, the
Framework Agreement and the other Finance Documents and each ECA Support Document. 

  

	(b)	Each Finance Party hereby irrevocably appoints the Agent to act as holder of the ECA Support Document on its behalf. 


 

	(c)	Each Finance Party hereby irrevocably authorises the Agent on its behalf to perform the duties and to exercise the rights, powers and discretions that are specifically
given to it under this Second Facility Letter, the Framework Agreement and the other Finance Documents and any other instruments referred to herein and therein, together with any other incidental rights, powers and discretions.


  

	(d)	Each Finance Party hereby irrevocably authorises and instructs the Agent on its behalf: 


 

	 	(i)	on the date of this Second Facility Letter, to enter into each Finance Document expressed to be entered into by the Agent on behalf of such Finance Party or the Finance
Parties; and 

  

	 	(ii)	on the date of this Second Facility Letter and from time to time thereafter, to enter into and deliver each Finance Document expressed to be entered into by the Agent
and all documents, consents, waivers and/or determinations under or in respect of this Second Facility Letter or any other Finance Document as are expressed to be executed by that Agent for and on behalf of such Finance Party; and


  

	 	(iii)	to execute each ECA Support Document on its behalf and be its agent for the purposes of (A) executing in the name and on behalf of the Lenders each ECA Support Document
and (B) taking any action under each ECA Support Document in accordance with the terms thereof, 

 provided
that nothing in this Clause 11 will permit the Agent to execute any document, consent, waiver and/or determination other than as expressly provided for in, or in accordance with, this Second Facility Letter or the other Finance Documents.

  

	(e)	For the avoidance of doubt, each Finance Party hereby irrevocably authorises and instructs any successor to (or transferee of) that person acting as Agent as at the
date of this Second Facility Letter to enter into each agreement or deed necessary to enable it to benefit from the rights of the Agent under this Second Facility Letter, the Framework Agreement or any other Finance Document.



  
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	(f)	The relevant Agent has only those duties which are expressly specified in the Finance Documents and the Agent’s duties under the Finance Documents are solely of a
mechanical and administrative nature. 

  

	(g)	Whenever an Agent shall execute one of the documents referred to in paragraph (d) over, the Borrower shall be entitled to assume without enquiry that the Agent has
the necessary authority for that purpose. 

  

	12.	PAYMENTS 

 All payments by
a Party (other than the Agent) under the Finance Documents for the Lenders or the Participant Bank must be made by the Borrower to the Participant Account in US$. 
  

	13.	PARTICIPATION AGREEMENT 

  

	(a)	Each Lender agrees (for the benefit of the Participant Bank and other Lenders) to take such action (as advised by the Agent) as may be necessary or advisable at any
time to comply with its obligations under the conditions of the Participation Agreement or to enable the Agent to comply with its obligations under or the conditions of the Participation Agreement. 


 

	(b)	Each Lender irrevocably authorises the Agent to take such action and exercise such rights, powers and discretions, notwithstanding the other provisions of this Second
Facility Letter, as it may deem necessary for the purposes of preserving the Lenders’ rights under the Participation Agreement. 

  

	14.	FEES 

  

	14.1	Commitment Fee 

  

	(a)	The Borrower shall pay to the Agent (for the account of the Lenders) a commitment fee in US$ (or euro equivalent), calculated and payable in accordance with clause 24.3
(Facility commitment fees) of the Framework Agreement. 

  

	(b)	The rate of the commitment fee to apply in relation to this Second Facility Letter for the purposes of clause 24.3 (Facility commitment fees) of the Framework Agreement
shall be 0.55% per annum. 

  

	14.2	Structuring Fee 

  

	(a)	The structuring fee payable to the Agent for the account of each Arranger in connection with this Second Facility Letter is in aggregate US$336,577.52 (being an amount
equal to 100 basis points calculated on the Facility Commitment as at the date of this Second Facility Letter (and prior to any Loan being made under the Facility)). 


 

	(b)	The structuring fee is payable in accordance with the terms of the invoice to be provided by the Agent to the Borrower on or after the Signing Date.


  

	15.	PRO RATA SHARING 

  

	15.1	Redistribution 

 If a
Finance Party (the recovering Finance Party) receives or recovers any amount from an Obligor other than in accordance with this Second Facility Letter and the Framework Agreement (a recovery) and applies that amount to a payment due
under a Finance Document, then: 
  

	 	(a)	the recovering Finance Party must, within three Business Days, supply details of the recovery to the Agent; 


  
 12 










	 	(b)	the Agent must calculate whether the recovery is in excess of the amount which the recovering Finance Party would have received if the recovery had been received and
distributed by the Agent in accordance with this Second Facility Letter and the Framework Agreement without taking account of any Tax which would be imposed on the Agent in relation to the recovery or distribution; and 


 

	 	(c)	the recovering Finance Party must pay to the Agent an amount equal to the excess (the redistribution). 


 

	15.2	Effect of redistribution 

  

	(a)	The Agent must treat a redistribution as if it were a payment by that Obligor under this Second Facility Letter and distribute it among the Finance Parties, other than
the recovering Finance Party, accordingly. 

  

	(b)	When the Agent makes a distribution under paragraph (a) above, the recovering Finance Party will be subrogated to the rights of the Finance Parties which have
shared in that redistribution. 

  

	(c)	If and to the extent that the recovering Finance Party is not able to rely on any rights of subrogation under paragraph (b) over, that Obligor will owe the
recovering Finance Party a debt which is equal to the redistribution, immediately payable and of the type originally discharged. 

  

	(d)	If: 

  

	 	(i)	a recovering Finance Party must subsequently return a recovery, or an amount measured by reference to a recovery, to the relevant Obligor; and 


 

	 	(ii)	the recovering Finance Party has paid a redistribution in relation to that recovery, 


each Finance Party on the request of the Agent must reimburse the recovering Finance Party all or the appropriate portion of the
redistribution paid to that Finance Party, together with interest for the period while it held the redistribution. In this event, the subrogation in paragraph (b) over will operate in reverse to the extent of the reimbursement. 

 

	15.3	Exceptions 


Notwithstanding any other term of this Clause, a recovering Finance Party need not pay a redistribution to the extent that: 

 

	 	(a)	it would not, after the payment, have a valid claim against the relevant Obligor in the amount of the redistribution; or 


 

	 	(b)	it would be sharing with another Finance Party any amount which the recovering Finance Party has received or recovered as a result of legal or arbitration proceedings,
where: 

  

	 	(i)	the recovering Finance Party notified the Agent of those proceedings; and 

  


	 	(ii)	the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as
reasonably practicable after receiving notice of them. 


  
 13 










	16.	NOTICES 

  

	(a)	For the purposes of this Second Facility Letter, notices can be given to the Borrower at: 


Votorantim Cimentos SA 
 Professor Jose Lannes 
 04571100 São Paulo, SP 

Brazil 

Attention: Lorival Luz / Daniela Wahba 
 Tel: 5511 37043351 / 5511 37043358 
 Fax: 5511 31671550 

 

	(b)	For the purposes of this Second Facility Letter, notices can be given to the Guarantors at: 


Votorantim Participações S.A. 
 R. Amauri, 255 - 10th Floor 
 01448-000- São Paulo, SP 

Brazil 

Attention: Lorival Luz / Daniela Wahba 
 Tel: 5511 37043351 / 5511 37043358 
 Fax: 5511 31671550 

Votorantim Industrial S.A. 
 R. Amauri, 255 - 10th Floor 
 01448-000- São Paulo, SP 

Brazil 

Attention: Lorival Luz / Daniela Wahba 
 Tel: 5511 37043351 / 5511 37043358 
 Fax: 5511 31671550 

 

	(c)	For the purposes of this Second Facility Letter, notices can be given to the Original Lender at: 


Eksport Kredit Finansiering A/S 
 Langelinie Allé 17 
 2100 Copenhagen Ǿ 

Tel: +45 35 46 61 00 
 Fax: +45 35 46 61 11 
  

	(d)	For the purposes of this Second Facility Letter, notices can be given to the Agent at: 


HSBC Bank PLC 

Level 18 
 8
Canada Square 
 London E14 5HQ 
 United Kingdom 
 Tel: +44 (0) 20 7991 6293 

Fax: +44 (0) 20 7991 4428 
 Attention: Bharat K Patel and Zamir Mohammed 
 Reference: FC1360 

 

	17.	BUYER DECLARATION 

  

	(a)	The parties hereby acknowledge that the Supporting ECA may disclose any information contained in the anti-bribery and openness declaration issued by the Borrower to the
Supporting ECA (the Buyer Declaration), notwithstanding any previous confidentiality undertaking given by any Transaction Party or the Supporting ECA in connection with this Facility Letter. 


 

	(b)	The Borrower hereby confirms that the Buyer Declaration has been provided with reference to all Approved Contracts listed in Schedule 4 (Approved Contracts) on behalf
of itself and its Subsidiaries. 


  
 14 










	18.	COUNTERPARTS 

 This Second
Facility Letter may be executed in any number of counterparts and by the different parties on separate counterparts, each of which when so executed and delivered shall be an original, but all counterparts shall together constitute one and the same
instrument. 
  

	19.	GOVERNING LAW 

 This
Second Facility Letter and any non-contractual rights arising in connection with it are governed by and construed in accordance with English law. 
 IN WITNESS WHEREOF, each of the parties acting through their representatives thereunto authorised, have caused this Second Facility Letter to be duly executed in duplicate in the English language
and signed in their respective names on the dates written below. This Second Facility Letter shall come into effect on the date specified at the beginning of this Second Facility Letter. 

  
 15 









 SCHEDULE 1 
 ORIGINAL LENDER 
  

					
	Name of Original Lender	  	Commitment
(US$)	 
		
	 Eksport Kredit Finansiering A/S
	  	 	33,657,752	  
		
	 TOTAL
	  	 	33,657,752	  


  
 16 









 SCHEDULE 2 
 ADDITIONAL INITIAL CONDITIONS PRECEDENT 
  

	1.	A legal opinion of Nielsen Nørager Law Firm, legal advisers in the Kingdom of Denmark addressed to the Mandated Lead Arranger in relation to the ECA Support
Document. 

  

	2.	An original copy of each ECA Support Document with all conditions to the effectiveness thereof satisfied (including payment of the ECA Guarantee Charge, receipt of
environmental approvals and expiry of the notification period without objection). 

  

	3.	A certified copy of the invoice from the Supporting ECA in respect of the ECA Guarantee Charge. 


 

	4.	A certified copy of the letters of indemnity and anti-bribery declaration (or similar) submitted by the Exporter to the Supporting ECA in relation to any ECA Support
Document, in each case to the extent customarily required by the Supporting ECA. 

  

	5.	A certified copy of the Buyer Declaration (as defined in Clause 17(a)) (or similar) issued by the Borrower to the Supporting ECA in relation to any ECA Support
Document, in each case to the extent customarily required by the Supporting ECA. 

  

	6.	Evidence that all necessary authorisations to import the related goods into Brazil and/or perform the necessary services in Brazil related to each Approved Contract
have been obtained. 

  

	7.	A duly executed original Participation Agreement entered into by the Agent and Participating Institution in connection with this Second Facility Letter and each
document related thereto as listed in Schedule 5 (EKF Documents). 

  

	8.	Such other documents as may be required by the Lenders, the Supporting ECA, the Participating Institution or the Participant Bank. 


  
 17 









 SCHEDULE 3 
 REPAYMENT SCHEDULE 
  

							
	 US$ 33,657,752 EKF Covered
Facility
	 
	 Instalment No.
	  	Repayment Date	  	Amount
(in US$)	 
			
	 1
	  	30 July 2013	  	 	1,682,887.60	  
			
	 2
	  	30 January 2014	  	 	1,682,887.60	  
			
	 3
	  	30 July 2014	  	 	1,682,887.60	  
			
	 4
	  	30 January 2015	  	 	1,682,887.60	  
			
	 5
	  	30 July 2015	  	 	1,682,887.60	  
			
	 6
	  	30 January 2016	  	 	1,682,887.60	  
			
	 7
	  	30 July 2016	  	 	1,682,887.60	  
			
	 8
	  	30 January 2017	  	 	1,682,887.60	  
			
	 9
	  	30 July 2017	  	 	1,682,887.60	  
			
	 10
	  	30 January 2018	  	 	1,682,887.60	  
			
	 11
	  	30 July 2018	  	 	1,682,887.60	  
			
	 12
	  	30 January 2019	  	 	1,682,887.60	  
			
	 13
	  	30 July 2019	  	 	1,682,887.60	  
			
	 14
	  	30 January 2020	  	 	1,682,887.60	  
			
	 15
	  	30 July 2020	  	 	1,682,887.60	  
			
	 16
	  	30 January 2021	  	 	1,682,887.60	  
			
	 17
	  	30 July 2021	  	 	1,682,887.60	  
			
	 18
	  	30 January 2022	  	 	1,682,887.60	  
			
	 19
	  	30 July 2022	  	 	1,682,887.60	  
			
	 20
	  	30 January 2023	  	 	1,682,887.60	  


  
 18 









 SCHEDULE 4 
 APPROVED CONTRACTS 
  

									
	 Number
	  	 Contract Date and Parties
	  	 Plant and Description
	  	Value	 
				
	1	  	1 July 2010 for the supply by FLS to Votorantim (as defined in the Contract and amended from time to time)	  	Cement Plant Edealina - one preheater, one kiln and one clinker cooler for the plant located in the city of Edealina, State of Goias.	  	USD	8,812,030	  
				
	2	  	1 July 2010 for the supply by FLS to Votorantim (as defined in the Contract and amended from time to time)	  	Cement Plant Cuiabá - one preheater, one kiln and one clinker cooler for the plant located in the city of Nossa Senhora da Guia, State of Mato
Grosso.	  	USD	6,420,420	  
				
	3	  	1 July 2010 for the supply by FLS to Votorantim (as defined in the Contract and amended from time to time)	  	Cement Plant Ituaçu - one preheater, one kiln and one clinker cooler for the plant located in the city of Ituacu, State of Bahia.	  	USD	6,384,430	  
				
	4	  	1 July 2010 for the supply by FLS to Votorantim (as defined in the Contract and amended from time to time)	  	Cement Plant Primavera - one preheater, one kiln and one clinker cooler for the plant located in the city of Primavera State of Para	  	USD	6,520,160	  
				
	5	  	1 July 2010 for the supply by FLS to Votorantim (as defined in the Contract and amended from time to time)	  	Cement Plant Rio Branco do Sul - one preheater, one kiln and one clinker cooler for the plant located in the city of Rio Branco do Sul State of Parana	  	USD	9,128,030	  


  
 19 









 SCHEDULE 5 
 EKF DOCUMENTS 
  

	(a)	The participation account standing instruction dated on or about the date of this Second Facility Letter and issued by the Participating Institution to the Agent.


  

	(b)	The ECA Guarantee assignment agreement dated on or about the date of this Second Facility Letter between the Participating Institution and the Participant Bank
transferring the rights and obligations of the Participating Institution (in its capacity as Lender) under the ECA Support Document to the Participant Bank and the notice of assignment and acknowledgement related thereto. 


 

	(c)	The guarantee dated on or about the date of this Second Facility Letter from the Supporting ECA to the Participant Bank covering the insolvency risk related to the
Participating Institution. 

  

	(d)	The parent guarantee assignment agreement dated on or about the date of this Second Facility Letter between the Participating Institution and the Participant Bank
transferring the rights and obligations of the Participating Institution (in its capacity as Lender) under the guarantee in clause 17 (Guarantee and Indemnity) of the Framework Agreement and the notice of assignment and acknowledgement relating
thereto. 


  
 20 









 SIGNATORIES 

 

							
	Borrower	 		 		 	
	VOTORANTIM CIMENTOS SA	 		 		 	
	By:	 		 		 	
		 	)	 		 	
				
	Guarantors	 		 		 	
	VOTORANTIM PARTICIPAÇÕES S.A.	 		 		 	
	By:	 		 		 	
		 	)	 		 	
				
	VOTORANTIM INDUSTRIAL S.A.	 		 		 	
	By:	 		 		 	
		 	)	 		 	
				
	Agent	 		 		 	
	HSBC BANK PLC	 	)	 		 	
	By:	 	)	 		 	
		 	)	 		 	
				
	Mandated Lead Arranger	 		 		 	
	HSBC BANK PLC	 	)	 		 	
	By:	 	)	 		 	
		 	)	 		 	
				
	Name:	 		 		 	
	Title:	 		 		 	
	Address:	 		 		 	
				
	Lender	 		 		 	
	EKSPORT KREDIT FINANSIERING A/S    	 	)	 		 	
	By:	 	)	 		 	
	 ANETTE EBERHARD
	 	)	 	/s/ ANETTE EBERHARD	 	


  
 21 









 



 
 This is to certify that 
 Ms. Anette Eberhard, 
 whose identity was proved to me by her driving licence and who
on this day in my presence has signed this document, according to the register of the Danish Commerce and Companies Agency is entitled to sign on behalf of the company 
 EKSPORT KREDIT FINANSIERING A/S 
 There were no obvious amendments or additions to the
document, with the exception of those denoted by my signature (initials). 
 In testimony whereof I have hereunto signed my name and affixed the
notarial seal of office. 
 Notariate of Frederiksberg, Denmark February 11th, 2011. 

					
		 	 /s/    Johnna Lund        

Johnna Lund
  

Notary Public of Frederiksberg
	  	












 



 







 



 
  

			
	 




	 	 I, ANDREW NICHOLAS ROBINSON, Notary Public of the City of London, England, by Royal Authority duly admitted
and sworn, practising in the said City,
  
 DO HEREBY
CERTIFY AND ATTEST:
  
 THAT the
signature set and subscribed to the hereunto annexed Facility Letter for and on behalf of HSBC BANK PLC, a public limited company duly incorporated and existing in accordance with the laws of England, registered at the Companies Registration
Office for and England and Wales under No. 14259 and having its Registered Office at 8 Canada Square, London E14 5HQ, England, is in each case genuine, the said signature having been subscribed thereto by MARK MING WEI LOOI, a duly
appointed Attorney-in-Fact of the said Company, whose personal identity I attest, he being duly authorised to sign the said Facility Letter under and by virtue of a Power of Attorney granted in his favour by the said Company dated 21st June 2010, a certified copy of which has been produced to me, the
undersigned Notary.
  
 IN TESTIMONY WHEREOF I
have hereunto set my hand and affixed my Seal of Office in the City of London aforesaid, this fourteenth day of February in the year Two thousand and eleven.
  

    /s/    ANDREW NICHOLAS
ROBINSON            
 ANDREW NICHOLAS
ROBINSON
 Notary Public of London, England

 
 






 DE PINNA 

35 Piccadilly London W1J 0LJ 
 Telephone: +44 (0)20 7208 2900    Facsimile: +44 (0)20 7208 0066 







  
 



 







 SIGNATORIES 

 

							
	 Borrower

VOTORANTIM CIMENTOS SA
	 		  	
	By:	 		 		  	
		 		 	)	  	
			
	 Guarantors

VOTORANTIM PARTICIPAÇÕES S.A.
	 		  	
	By:	 		 		  	
		 		 	)	  	
			
	VOTORANTIM INDUSTRIAL S.A.	 		  	
	By:	 		 		  	
		 		 	)	  	
			
	Agent	 		  	
	HSBC BANK PLC	 	)	  	
	By:	 	MARK LOOI	 	)	  	/s/ MARK LOOI
		 	DIRECTOR PROJECT AND EXPORT FINANCE	 	)	  	
		 	 8 CANADA SQUARE
 LONDON E14
5HQ
	 		  	
		 		 		  	
	Mandated Lead Arranger	 		  	
	HSBC BANK PLC	 	)	  	
	By:	 		 	)	  	/s/ MARK LOOI
		 		 	)	  	
	Name:	 	MARK LOOI	 		  	
	Title:	 	DIRECTOR PROJECT & EXPORT FINANCE	 		  	
	Address:	 	 8 CANADA SQUARE
 LONDON E14
5HQ
	 		  	
		 		 		  	
	 Lender

EKSPORT KREDIT FINANSIERING A/S
	 	)	  	
	By:	 		 	)	  	
		 		 	)	  	


  
 21 









 SIGNATORIES 

 

							
	Borrower	 		  		  	
	VOTORANTIM CIMENTOS SA	 		  		  	
	By:	 		  	/s/ illegible	  	/s/ illegible
		 	)	  		  	
		 		  		  	
	Guarantors	 		  		  	
	VOTORANTIM PARTICIPAÇÕES S.A.	 		  		  	
	By:	 		  	/s/ illegible	  	/s/ illegible
		 	)	  		  	
		 		  		  	
	VOTORANTIM INDUSTRIAL S.A.	 		  		  	
	By:	 		  	/s/ illegible	  	/s/ illegible
		 	)	  		  	
		 		  		  	
	Agent	 		  		  	
	HSBC BANK PLC	 	)	  		  	
	By:	 	)	  		  	
		 	)	  		  	
		 		  		  	
	Mandated Lead Arranger	 		  		  	
	HSBC BANK PLC	 	)	  		  	
	By:	 	)	  		  	
		 	)	  		  	
		 		  		  	
	Name:	 		  		  	
	Title:	 		  		  	
	Address:	 		  		  	
				
	Lender	 		  		  	
	EKSPORT KREDIT FINANSIERING A/S	 	)	  		  	
	By:	 	)	  		  	
		 	)	  		  	

  
 



 

  
 21