EXECUTION COPY
INDENTURE
between
PETROBRAS INTERNATIONAL FINANCE COMPANY,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Relating to U.S.$400,000,000 91/8% Senior Notes due 2007
Dated as of February 4, 2002
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.........................................................4
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SECTION 1.2 Construction.......................................................15
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ARTICLE II
THE NOTES
SECTION 2.1 Designation........................................................16
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SECTION 2.2 Aggregate Amount; Issuable in Series...............................17
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SECTION 2.3 Authentication and Delivery of Notes...............................17
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SECTION 2.4 Form of Trustee's Authentication...................................18
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SECTION 2.5 Form of the Notes..................................................18
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SECTION 2.6 Maturity of the Notes..............................................20
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SECTION 2.7 Interest...........................................................21
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SECTION 2.8 Record Date........................................................22
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SECTION 2.9 Issuance...........................................................22
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SECTION 2.10 Denominations, etc.................................................22
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SECTION 2.11 Execution of Notes.................................................22
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SECTION 2.12 Registration; Restrictions on Transfer and Exchange................23
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SECTION 2.13 Exchange Offer.....................................................29
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SECTION 2.14 Mutilated, Destroyed, Lost and Stolen Notes........................29
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SECTION 2.15 Payments...........................................................30
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SECTION 2.16 Taxation...........................................................31
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SECTION 2.17 Persons Deemed Owners..............................................33
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SECTION 2.18 Cancellation.......................................................34
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SECTION 2.19 Allocation of Principal and Interest...............................34
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SECTION 2.20 CUSIP and ISIN Numbers.............................................34
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SECTION 2.21 Noteholder Lists...................................................34
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ARTICLE III
ESTABLISHMENT OF ACCOUNTS
SECTION 3.1 Establishment and Administration of Payment Account................35
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ARTICLE IV
REDEMPTION
SECTION 4.1 Mandatory Redemption...............................................35
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SECTION 4.2 No General Optional Redemption.....................................35
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SECTION 4.3 Optional Redemption in the Event of Change in Tax Treatment........35
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SECTION 4.4 Notice of Redemption...............................................36
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SECTION 4.5 Deposit of Optional Redemption Price...............................37
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SECTION 4.6 Notes Payable on Optional Redemption Date..........................37
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SECTION 4.7 Open Market Purchases..............................................37
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ARTICLE V
CREDIT AND OTHER SUPPORT
SECTION 5.1 Standby Purchase Agreement.........................................37
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SECTION 5.2 The Letter of Credit...............................................38
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SECTION 5.3 Establishment and Administration of the Reserve Account............39
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SECTION 5.4 Modifications to Credit Support Arrangements.......................41
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ARTICLE VI
COVENANTS
SECTION 6.1 Payment of Principal and Interest..................................43
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SECTION 6.2 Performance Under the Transaction Documents........................43
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SECTION 6.3 Maintenance of Corporate Existence.................................43
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SECTION 6.4 Maintenance of Properties..........................................44
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SECTION 6.5 Compliance with Laws...............................................44
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SECTION 6.6 Maintenance of Government Approvals................................44
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SECTION 6.7 Payments of Taxes and Other Claims.................................44
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SECTION 6.8 Maintenance of Insurance...........................................44
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SECTION 6.9 Maintenance of Books and Records...................................45
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SECTION 6.10 Maintenance of Office or Agency....................................45
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SECTION 6.11 Ranking............................................................45
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SECTION 6.12 Use of Proceeds....................................................45
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SECTION 6.13 Notice of Defaults and Events of Default...........................45
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SECTION 6.14 Notice of Expropriation or Inconvertibility Events.................45
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SECTION 6.15 Limitation on Consolidation, Merger, Sale or Conveyance............45
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SECTION 6.16 Negative Pledge....................................................47
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SECTION 6.17 Transactions with Affiliates.......................................47
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SECTION 6.18 Provision of Financial Statements and Reports......................47
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SECTION 6.19 Further Actions....................................................48
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SECTION 6.20 Available Information..............................................48
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SECTION 6.21 Appointment to Fill a Vacancy in Office of Trustee.................49
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SECTION 6.22 Payments and Paying Agents.........................................49
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 Events of Default..................................................50
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SECTION 7.2 Acceleration of Maturity; Rescission and Annulment.................53
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SECTION 7.3 Delay or Omission Not Waiver.......................................54
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SECTION 7.4 Waiver of Past Defaults............................................54
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SECTION 7.5 Trustee May File Proofs of Claim; Appointment of Trustee as
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Attorney-in-Fact in Judicial Proceedings........................54
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SECTION 7.6 Trustee May Enforce Claims Without Possession of Notes.............55
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SECTION 7.7 Application of Money Collected.....................................55
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SECTION 7.8 Limitation on Suits................................................55
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SECTION 7.9 Unconditional Right of Noteholders to Receive Principal
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and Interest and Other Amounts..................................56
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SECTION 7.10 Restoration of Rights and Remedies.................................56
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SECTION 7.11 Rights and Remedies Cumulative.....................................56
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SECTION 7.12 Control by Noteholders.............................................56
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SECTION 7.13 Undertaking for Costs..............................................57
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SECTION 7.14 Waiver of Stay or Extension Laws...................................57
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.1 Certain Rights and Duties of Trustee...............................57
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SECTION 8.2 Trustee Not Responsible for Recitals, etc..........................60
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SECTION 8.3 Trustee and Others May Hold Notes..................................60
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SECTION 8.4 Moneys Held by Trustee or Paying Agent.............................60
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SECTION 8.5 Compensation of the Trustee and its Lien...........................61
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SECTION 8.6 Right of Trustee to Rely on Officer's Certificates and
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Opinions of Counsel.............................................62
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SECTION 8.7 Persons Eligible for Appointment as Trustee........................62
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SECTION 8.8 Resignation and Removal of Trustee; Appointment of Successor.......63
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SECTION 8.9 Acceptance of Appointment by Successor Trustee.....................64
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SECTION 8.10 Merger, Conversion or Consolidation of Trustee.....................64
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SECTION 8.11 Maintenance of Offices and Agencies................................65
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SECTION 8.12 Reports by Trustee.................................................67
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SECTION 8.13 Trustee Risk.......................................................67
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SECTION 8.14 Appointment of Co-Trustee..........................................67
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SECTION 8.15 Knowledge of Default...............................................69
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ARTICLE IX
CONCERNING THE HOLDERS
SECTION 9.1 Acts of Noteholders................................................69
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SECTION 9.2 Notes Owned by Issuer and Affiliates Deemed Not Outstanding........70
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ARTICLE X
HOLDERS' MEETINGS
SECTION 10.1 Purposes for Which Noteholders' Meetings May Be Called.............71
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SECTION 10.2 Trustee, Issuer and Noteholders May Call Meeting...................71
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SECTION 10.3 Persons Entitled to Vote at Meeting................................71
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SECTION 10.4 Determination of Voting Rights; Conduct and Adjournment of
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Meeting.........................................................72
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SECTION 10.5 Counting Votes and Recording Action of Meeting.....................72
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ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1 Supplemental Indenture with Consent of Noteholders.................73
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SECTION 11.2 Supplemental Indentures Without Consent of Noteholders.............74
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SECTION 11.3 Execution of Supplemental Indentures...............................74
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SECTION 11.4 Effect of Supplemental Indentures..................................75
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SECTION 11.5 Conformity with Trust Indenture Act................................75
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SECTION 11.6 Reference in Notes to Supplemental Indentures......................75
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ARTICLE XII
SATISFACTION AND DISCHARGE
SECTION 12.1 Satisfaction and Discharge of Notes................................75
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SECTION 12.2 Satisfaction and Discharge of Indenture............................76
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SECTION 12.3 Application of Trust Money.........................................77
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ARTICLE XIII
DEFEASANCE
SECTION 13.1 Issuer's Option to Effect Defeasance or Covenant Defeasance........77
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SECTION 13.2 Defeasance and Discharge...........................................77
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SECTION 13.3 Covenant Defeasance................................................78
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SECTION 13.4 Conditions to Defeasance or Covenant Defeasance....................78
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SECTION 13.5 Deposited Money and U.S. Government Obligations to Be Held in
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Trust; Other Miscellaneous Provisions...........................79
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SECTION 13.6 Reinstatement......................................................80
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Compliance Certificates and Opinions...............................80
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SECTION 14.2 Form of Documents Delivered to Trustee.............................81
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SECTION 14.3 Notices, etc. to Trustee...........................................81
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SECTION 14.4 Notices to Noteholders; Waiver.....................................82
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SECTION 14.5 Conflict with Trust Indenture Act..................................83
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SECTION 14.6 Effect of Headings and Table of Contents...........................83
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SECTION 14.7 Successors and Assigns.............................................83
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SECTION 14.8 Severability Clause................................................83
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SECTION 14.9 Benefits of Indenture..............................................83
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SECTION 14.10 Legal Holidays.....................................................84
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SECTION 14.11 Currency Rate Indemnity............................................84
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SECTION 14.12 Communication by Noteholders with other Noteholders................85
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SECTION 14.13 Governing Law......................................................85
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SECTION 14.14 Waiver of Jury Trial...............................................85
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SECTION 14.15 Waiver of Immunity.................................................85
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SECTION 14.16 Submission to Jurisdiction, etc....................................85
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SECTION 14.17 Pledge of Interests................................................86
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SECTION 14.18 Execution in Counterparts..........................................86
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EXHIBIT A-1 Form of Rule 144A Restricted Global Note
EXHIBIT A-2 Form of Regulation S Unrestricted Global Note
EXHIBIT B Form of Issuer Order
EXHIBIT C Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S
EXHIBIT D Form of Transfer Certificate for Transfer to Qualified
Institutional Buyers (QIBs)
EXHIBIT E-1 Form of Partial Non-Payment Notice
EXHIBIT E-2 Form of Total Non-Payment Notice
EXHIBIT F Form of Inconvertibility Certificate
CROSS-REFERENCE TABLE
TIA Section Indenture Section
310(a)(1)....................................................................8.7
(a)(2)....................................................................8.7
(a)(3)...................................................................8.14
(a)(4).........................................................not applicable
(a)(5)....................................................................8.7
(b)............................................................8.1(e), 8.8(b)
(c)............................................................not applicable
311(a)....................................................................8.3(b)
(b)....................................................................8.3(b)
(c)............................................................not applicable
312(a)......................................................................2.21
(b).....................................................................14.13
(c).....................................................................14.13
313(a)......................................................................8.12
(b)......................................................................8.12
(c)......................................................................8.12
(d)......................................................................8.12
314(a)......................................................................6.19
(b)............................................................not applicable
(c)(1)...................................................................14.1
(c)(2)...................................................................14.1
(c)(3).........................................................not applicable
(d)............................................................not applicable
(e)......................................................................14.1
315(a)...................................................................8.1,8.6
(b)......................................................................8.15
(c)....................................................................8.1(a)
(d)....................................................................8.1(b)
(e)......................................................................7.13
316(a)(last sentence)........................................................9.2
(a)(1)(A)................................................................7.12
(a)(1)(B).................................................................7.4
(a)(2) ........................................................not applicable
(b).......................................................................7.9
(c)....................................................................9.1(g)
317(a)(1)....................................................................7.6
(a)(2).................................................................7.5(a)
(b)6.23,8.11(e)
318(a)......................................................................14.6
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
INDENTURE (the "Indenture") dated as of February 4, 2002 among
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Petrobras International Finance Company, a Cayman Islands limited company (the
"Issuer"), and The Bank of New York, a New York banking corporation, as trustee
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(the "Trustee") and as paying agent in New York (the "Paying Agent").
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W I T N E S S E T H:
WHEREAS, the Issuer is a wholly-owned subsidiary of Petroleo
Brasileiro S.A. Petrobras (the "Standby Purchaser"), a sociedade de economia
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mista organized and existing under the laws of the Federative Republic of Brazil
("Brazil");
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WHEREAS, the Issuer has duly authorized the issuance of its senior
notes in such principal amount or amounts as may from time to time be authorized
in accordance with this Indenture and is, on the date hereof, issuing
U.S.$400,000,000 of its 9 1/8% Senior Notes due 2007 under this Indenture (the
"Initial Notes");
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WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Initial Notes and the
authentication and delivery thereof by the Trustee;
WHEREAS, pursuant to the Registration Rights Agreement (the
"Registration Rights Agreement"), dated the date hereof among the Issuer, the
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Standby Purchaser and certain other parties, the Issuer and the Standby
Purchaser have agreed to register the Initial Notes under the United States
Securities Act of 1933, as amended (the "Securities Act") and to effect an
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exchange offer pursuant to which the Issuer will issue notes registered under
the Securities Act having identical terms as the Initial Notes (except for
restrictions on transfer) in exchange for the Initial Notes (the "Exchange
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Notes", and collectively with the Initial Notes, the "Notes");
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WHEREAS, the Standby Purchaser has agreed, pursuant to the Standby
Purchase Agreement (as may be amended from time to time, the "Standby Purchase
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Agreement"), dated as of the date hereof, between the Trustee and the Standby
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Purchaser, to provide Noteholders (as defined herein) with assurances that, if
the Issuer shall fail to make all required payments of principal, interest or
other amounts due under the terms of the Notes and this Indenture, the Standby
Purchaser will, without any action on the part of the Noteholders or the Trustee
(other than the provision of notice by the Trustee as provided in the Standby
Purchase Agreement), purchase the rights of the Noteholders to receive such
amounts in consideration of the payment by the Standby Purchaser of an amount of
funds equal to the amounts then owed under this Indenture and the Notes; and
WHEREAS, all things necessary to make the Notes, when executed by the
Issuer and authenticated and delivered by the Trustee as provided in this
Indenture, the valid, binding and legal obligations of the Issuer, and to
constitute these presents a valid indenture and agreement according to its
terms, have been done;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions The following capitalized terms shall have the
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meanings set forth below:
"Act" when used with respect to any Noteholder, has the meaning set
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forth in Section 9.1.
"Account Control Agreement" means the account control agreement dated
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as of February 4, 2002 between the Standby Purchaser and The Bank of New York.
"Additional Amounts" has the meaning set forth in Section 2.16.
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"Additional Notes" has the meaning set forth in Section 2.2(b).
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"Affiliate" with respect to any Person, means any other Person that,
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directly or indirectly, controls, is controlled by or is under common control
with such Person; it being understood that for purposes of this definition, the
term "control" (including the terms "controlling," "controlled by" and "under
common control with") of a Person shall mean the possession, direct or indirect,
of the power to vote 10% or more of the equity or similar voting interests of
such Person or to direct or cause the direction of the management and policies
of such Person, whether through the ownership of such interests, by contract or
otherwise.
"Applicable Procedures" has the meaning set forth in Section 2.12.
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"Authenticating Agent" means the Person acting as Authenticating Agent
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hereunder pursuant to Section 8.11.
"Authorized Agent" means any Paying Agent, Authenticating Agent or
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Note Registrar or other agent appointed by the Trustee in accordance with this
Indenture to perform any function that this Indenture authorizes the Trustee or
such agent to perform.
"Authorized Representative" of the Issuer or any other Person means
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the person or persons authorized to act on behalf of such entity by its chief
executive officer, president, chief operating officer, chief financial officer
or any vice president or its Board of Directors or any other governing body of
such entity.
"Authorized Signatory" means any officer of the Trustee or any other
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individual who shall be duly authorized by appropriate corporate action on the
part of the Trustee to authenticate Notes.
"Board of Directors", when used with respect to a corporation, means
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either the board of directors of such corporation or any committee of that board
duly authorized to act for it, and when used with respect to a limited liability
company, partnership or other entity other than a corporation, any Person or
body authorized by the organizational documents or by the voting equity owners
of such entity to act for them.
1
"Board Resolution" means a copy of a resolution certified by the
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secretary or an assistant secretary of the Issuer to have been adopted by the
Board of Directors of the Issuer and to be in full force and effect on the date
of such certification.
"Brazil" has the meaning set forth in the preamble to this Indenture.
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"Business Day" means any day except a Saturday, a Sunday or a legal
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holiday or a day on which banking institutions (including, without limitation,
the members of the Federal Reserve System) are authorized or required by law,
regulation or executive order to close in The City of New York, the Cayman
Islands or Brazil.
"Certificate of Inconvertibility" has the meaning set forth in Section
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5.2(c).
"Clearstream" means Clearstream Banking, societe anonyme.
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"Closing Date" means the date hereof.
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"Collateral" has the meaning set forth in Section 14.17.
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"Corporate Trust Office" means the principal office of the Trustee or
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Note Registrar at which the corporate trust business of the Trustee or Note
Registrar, as the case may be, shall at any particular time be principally
administered, which at the time of the execution of this Indenture is, in each
case, located at 101 Barclay Street, 21W, New York, New York 10286.
"Covenant Defeasance" has the meaning set forth in Section 13.3.
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"Custodian" has the meaning set forth in Section 2.5(e).
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"CUSIP" means the CUSIP Service Bureau.
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"Default" means an event or condition that, with the giving of notice,
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lapse of time or failure to satisfy certain specified conditions, or any
combination thereof, would become an Event of Default if not cured or remedied.
"Default Rate" has the meaning set forth in Section 2.7(b).
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"Defeasance" has the meaning set forth in Section 13.2.
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"Denomination Currency" has the meaning set forth in Section 14.11(b).
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"Distribution Compliance Period" means, with regard to Notes offered
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and sold in their initial distribution outside the United States in reliance on
Regulation S, the period of 40 consecutive days beginning on the later of (a)
the date on which the Notes are first offered to persons other than distributors
(as defined in Regulation S) in reliance on Regulation S (according to a written
notice to the Trustee by the initial purchasers thereof) and (b) the date on
which the Notes are initially issued, authenticated and sold.
"DTC" means The Depository Trust Company.
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2
"Environmental Laws" means all applicable federal, state and local
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statutes, rules, regulations, ordinances, orders, decrees and common law,
including any of the forgoing in any foreign jurisdiction, relating in any
manner to contamination, pollution or protection of human health or the
environment.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
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Euroclear System, N.V.
"Event of Default" has the meaning set forth in Section 7.1.
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"Exchange Act" means the United States Securities Exchange Act of
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1934, as amended and in effect from time to time.
"Exchange Global Notes" has the meaning set forth in Section 2.5(c).
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"Exchange Notes" has the meaning set forth in the preamble to this
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Indenture.
"Exchange Offer" means an offer by the Issuer, pursuant to the
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Registration Rights Agreement, to holders of the Initial Notes to issue and
deliver to such holders, in exchange for their Initial Notes, a like aggregate
principal amount of Exchange Notes registered under the Securities Act.
"Excluded Additional Amounts" has the meaning set forth in Section
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2.16.
"Expected Maturity Date" has the meaning set forth in Section 2.6(a).
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"Expropriation Event" means any act or series of acts taken by the
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Host Government that effectively deprives the Standby Purchaser, the Trustee or
the Issuer of the use and control of funds deposited (either in Reais or U.S.
dollars) by the Trustee, or by the Standby Purchaser for the account of the
Trustee or the Issuer, with a financial institution in Brazil, for the purpose
of making a purchase payment under the Standby Purchase Agreement.
"Final Maturity Date" has the meaning set forth in Section 2.6 hereof.
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"Global Notes" has the meaning set forth in Section 2.5(c).
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"Governmental Approval" means any authorization, consent, approval,
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order, license, franchise, ruling, permit, certification, waiver, exemption,
filing or registration by or with any Governmental Authority (including, without
limitation, environmental approvals, zoning variances, special exceptions and
non-conforming uses) relating to the execution, delivery or performance of any
Transaction Document.
"Governmental Authority" means any regulatory, administrative or other
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legal body, any court, tribunal or authority or any public legal entity or
public agency of the Cayman Islands, Brazil or the United States of America or
any other jurisdiction whether created by federal, provincial or local
government, or any other legal entity now existing or hereafter created, or now
or hereafter controlled, directly or indirectly, by any public legal entity or
public agency of any of the foregoing.
3
"Grace Period" means, in respect of each Payment Date, the 30 calendar
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day grace period for the payment of interest specified in Section 7.1(b) hereto.
"Guarantee" means an obligation of a person to pay the Indebtedness of
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another person including, without limitation:
(a) an obligation to pay or purchase such Indebtedness;
(b) an obligation to lend money or to purchase or subscribe for shares
or other securities or to purchase assets or services in order to provide
funds for the payment of such Indebtedness;
(c) an indemnity against the consequences of a default in the payment
of such Indebtedness; or
(d) any other agreement to be responsible for such Indebtedness.
"Host Government" means (i) the present or succeeding governing
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authority (without regard to the method of its succession or as to whether it is
internationally recognized) in effective control of all or any part of the
territory of Brazil or any political or territorial subdivision thereof
(including any dependant territory); and/or (ii) an other public authority in or
of Brazil on which regulatory powers are conferred by the laws of Brazil.
"Inconvertibility Event" means (a) any act or series of acts by the
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Host Government that prevents the Standby Purchaser, the Trustee or the Issuer
(as applicable) from directly or indirectly:
(i) converting Reais into U.S. dollars in order to make a payment of a
Purchase Obligation under the Standby Purchase Agreement or a portion
thereof, including the denial of such conversion in an exchange rate
category as favorable as the category applicable to determine the Reference
Rate of Exchange; or
(ii) converting, from Reais into U.S. dollars, any amounts received in
Brazil in connection with a payment or amount due under the Standby
Purchase Agreement; or
(iii) transferring outside of Brazil the funds as described in (i) or
(ii) above already converted from Reais into U.S. dollars constituting or
in respect of a payment of a Purchase Obligation under the Standby Purchase
Agreement; or
(b) the failure by the Brazilian government to effect a conversion or
transfer under (a) above on behalf of the Issuer, the Standby Purchaser or the
Trustee.
"Indebtedness" means any obligation (whether present or future, actual
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or contingent and including, without limitation, any Guarantee) for the payment
or repayment of money which has been borrowed or raised (including money raised
by acceptances and all leases which, under generally accepted accounting
principles in the country of incorporation of the relevant obligor, would
constitute a capital lease obligation).
4
"Indenture" has the meaning set forth in the preamble to this
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Indenture.
"Initial Notes" has the meaning set forth in the preamble to this
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Indenture.
"Initial Purchasers" means UBS Warburg LLC, Morgan Stanley & Co.
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Incorporated and Banco Bilbao Vizcaya Argentaria S.A., acting as such pursuant
to the Purchase Agreement.
"Interest Payment Date" has the meaning set forth in Section 2.7(a).
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"Interest Period" means the period beginning on an Interest Payment
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Date and ending on the day before the next Interest Payment Date.
"Issuer" has the meaning set forth in the preamble to this Indenture.
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"Issuer Order" means a written request or order signed in the name of
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the Issuer by one or more of its Authorized Representatives, and, in the case of
an Issuer Order given pursuant to Section 2.3, substantially in the form of
Exhibit B.
"Judgment Currency" has the meaning set forth in Section 14.11(b).
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"Law" means any constitutional provision, law, statute, rule,
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regulation, ordinance, treaty, order, decree, judgment, decision, certificate,
holding, injunction, enforceable at law or in equity, along with the
interpretation and administration thereof by any Governmental Authority charged
with the interpretation or administration thereof.
"L/C Partial Drawing Amount" means, in respect of any Payment Date,
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the sum of (a) an amount equal to the amount of accrued and unpaid interest due
on the Notes on such Payment Date, (b) any interest to be owed on the unpaid
amount described in clause (a) of this definition in accordance with Section 2.7
hereof on the fifth Business Day occurring after the Certificate of
Inconvertibility shall have been deemed to be received by the Trustee in
accordance with Section 5.2(d)(ii)(A) of this Indenture.
"Legend" has the meaning set forth in Section 2.12(k).
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"Letter of Credit" means an issued and outstanding irrevocable standby
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letter of credit that (i) is issued by a commercial bank rated not less than
"P-1" by Moody's, (ii) names the Trustee as the sole beneficiary thereof, (iii)
is unconditionally drawable in full upon the Trustee's submission of a
certification that (A) the conditions to drawing of the Letter of Credit as set
forth in Section 5.2 hereof have been satisfied, (B) the Trustee serves as
trustee for the benefit of the Noteholders under this Indenture and (C) that the
Trustee is making a draw under such letter of credit for the benefit of the
Noteholders, and (iv) expires not less than 364 days from the date of issuance
thereof and is automatically renewed in accordance with its terms unless the
issuer of the Letter of Credit notifies the Trustee in writing no later than 60
calendar days prior to the expiry thereof, it being agreed that all references
to Letter of Credit hereunder shall include, collectively, the Letter of Credit
described in Section 5.2(a) and any and all issued and outstanding replacement
letters of credit delivered to the Trustee in accordance with Section 5.4 of
this Indenture.
5
"Lien" means any mortgage, pledge, lien, hypothecation, security
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interest or other charge or encumbrance on any property or asset, including,
without limitation, any equivalent created or arising under applicable Law.
"Luxembourg Paying Agent" has the meaning set forth in Section 8.11.
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"Luxembourg Transfer Agent" has the meaning set forth in Section 8.11.
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"Majority Noteholders" means the holders of more than 50% in aggregate
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principal amount of the Notes then Outstanding at any time.
"Material Adverse Effect" means a material adverse effect on (a) the
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business, operations, assets, property, condition (financial or otherwise) of
the Issuer or its Subsidiaries, taken as a whole, (b) the validity or
enforceability of this Indenture or any other Transaction Document, or (c) the
ability of the Issuer to perform its obligations under this Indenture or any
other Transaction Document, or (d) the material rights of or benefits available
to the Noteholders or the Trustee, as representative of the Noteholders under
this Indenture or any of the other Transaction Documents.
"Material Subsidiary" means any direct or indirect subsidiary of the
-------------------
Standby Purchaser with total assets of more than U.S.$200,000,000 (or its
equivalent in another currency) as set forth on the consolidated financial
statements of the Standby Purchaser as of the end of the most recent fiscal
quarter.
"Moody's" means the Moody's Investor Service, Inc.
-------
"Non-U.S. Person" means any person who is not a "U.S. Person" as
---------------
defined in Regulation S under the Securities Act.
"Noteholder" means a Person in whose name a Note is registered in the
----------
Note Register.
"Note Rate" has the meaning set forth in Section 2.7.
---------
"Note Register" has the meaning set forth in Section 2.12(a).
-------------
"Note Registrar" means any Person acting as Note Registrar pursuant to
--------------
Section 2.12.
"Notes" has the meaning set forth in the preamble to this Indenture.
-----
"Officer's Certificate" means a certificate of an Authorized
---------------------
Representative of the Issuer in compliance with the requirements of Section
14.1.
"Opinion of Counsel" means a written opinion of counsel in compliance
------------------
with the requirements of Section 14.1 hereof from any Person either expressly
referred to herein or otherwise reasonably satisfactory to the Trustee which may
include, without limitation, counsel
6
for the Issuer or the Standby Purchaser, whether or not such counsel is an
employee of the Issuer or the Standby Purchaser, as applicable.
"Optional Redemption Date" has the meaning set forth in Section
------------------------
4.3(b).
"Optional Redemption Price" has the meaning set forth in Section
-------------------------
4.3(b).
"Outstanding", when used with respect to Notes or any principal amount
-----------
thereof, means, as of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture, except:
(a) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes for which redemption money in the necessary amount has been
theretofore deposited in trust with the Trustee; provided that if such Notes are
to be redeemed prior to the maturity thereof, notice of such redemption has been
duly given pursuant to Article IV or provision therefor satisfactory to the
Trustee has been made;
(c) Notes or portions thereof deemed to have been paid within the
meaning of Section 12.1;
(d) Notes as to which defeasance has been effected pursuant to Article
XIII; and
(e) Notes which have been paid pursuant to Section 2.13 or Section
2.14 or that have been exchanged for other Notes or Notes in lieu of which other
Notes have been authenticated and delivered pursuant to this Indenture other
than any Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands such Notes constitute valid obligations of the Issuer;
provided, however, that in determining whether the Noteholders of the
requisite principal amount of the Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Notes owned by the Issuer, the Standby Purchaser or any of their
Subsidiaries or Affiliates shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to
be so owned shall be so disregarded. Notes so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right to act with respect to
such Notes and that the pledgee is not the Issuer, the Standby Purchaser or
a Subsidiary thereof or any Affiliate of the Issuer, the Standby Purchaser
or any Subsidiary thereof.
"Paying Agent" means the person named as Paying Agent in the preamble
------------
to this Indenture and its successors and assigns.
"Payment Account" means the account contemplated in Section 3.1
---------------
hereof.
7
"Payment Date" means any of the Interest Payment Dates, the Expected
------------
Maturity Date, the Final Maturity Date, or any other date on which payments on
the Notes in respect of principal, interest or other amounts, including as a
result of any acceleration of the Notes, are required to be paid pursuant to
this Indenture and the Notes.
"Permitted Investments" shall consist of (a) direct obligations of the
---------------------
United States of America, or of any agency or instrumentality of the United
States of America, the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation of the United States of America which are not
callable or redeemable at the option of the issuer thereof at a price less than
what was paid; (b) demand and time deposit certificates of deposit of, banker's
acceptance issued by, or federal funds sold by, any depository institution or
trust company incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by United States
federal and/or state authorities so long as at the time of such investment or
contractual commitment providing for such investment the commercial paper or
other short term debt obligations of such depository institution or trust
company have a short term credit rating of at least "P-1" by Moody's; (c)
repurchase obligations with respect to (i) any security described in clause (a)
above or (ii) any other security issued and/or guaranteed by an agency or
instrumentality of the United States of America, in either case entered into
with a depository institution or trust company (acting as principal) described
in clause (b) above; (d) commercial paper which has at the time of such
investment a rating of at least "P-1" by Moody's (provided, however, that
Permitted Investments shall not include any debt obligations (or other
securities) issued by the Standby Purchaser, the Issuer or any Affiliate
thereof); (e) any money market funds investing in any of the foregoing Permitted
Investments and rated "Aaa" by Moody's and (f) The Bank of New York Cash
Reserve, any successor to The Bank of New York Cash Reserve (so long as The Bank
of New York Cash Reserve and any successor thereto maintains a rating of not
less than "Aaa" by Moody's) or any equivalent money market mutual fund rated not
less than "Aaa" by Moody's.
"Permitted Lien" means a:
--------------
(a) Lien arising by operation of law, such as merchants', maritime or
other similar liens arising in the Issuer's ordinary course of business or
that of any subsidiary or Lien in respect of taxes, assessments or other
governmental charges that are not yet delinquent or that are being
contested in good faith by appropriate proceedings;
(b) Lien arising from the Issuer's obligations under performance bonds
or surety bonds and appeal bonds or similar obligations incurred in the
ordinary course of business and consistent with the Issuer's past practice;
(c) Lien arising in the ordinary course of business in connection with
Indebtedness maturing not more than one year after the date on which such
Indebtedness was originally incurred and which is related to the financing
of export, import or other trade transactions;
(d) Lien granted upon or with respect to any assets hereafter acquired
by the Issuer or any subsidiary to secure the acquisition costs of such
assets or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of such assets,
8
including any Lien existing at the time of the acquisition of such assets;
provided, however, that the maximum amount so secured shall not exceed the
aggregate acquisition costs of all such assets or the aggregate
Indebtedness incurred solely for the acquisition of such assets;
(e) Lien granted in connection with Indebtedness of a Wholly-Owned
Subsidiary owing to the Issuer or another Wholly-Owned Subsidiary;
(f) Lien existing on any asset or on any stock of any Subsidiary prior
to the acquisition thereof by the Issuer or any Subsidiary; provided,
however, that such Lien is not created in anticipation of such acquisition;
(g) Lien existing as of the date of this Indenture; and
(h) Lien in respect of Indebtedness (not otherwise qualifying under
clauses (a)-(g) above) the principal amount of which in the aggregate does
not exceed 5% of the Issuer's consolidated total assets (as determined in
accordance with U.S. GAAP) at any date as at which the Issuer's balance
sheet is prepared and published in accordance with applicable law.
"Person" means an individual, partnership, corporation (including a
------
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Place of Payment", when used with respect to the Notes means the
----------------
office or agency of the Trustee maintained pursuant to Section 8.11 and such
other place or places, if any, where the principal of and interest on the Notes
are payable as specified herein.
"Predecessor Notes", with respect to any particular Note, means any
-----------------
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; for the purposes of this definition, any Note
authenticated and delivered under Section 2.13 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note.
"Process Agent" has the meaning set forth in Section 14.15.
-------------
"Purchase Agreement" means the Purchase Agreement, dated as of January
------------------
29, 2002 among the Issuer, the Standby Purchaser and UBS Warburg LLC and Morgan
Stanley & Co. Incorporated, as representatives of the Initial Purchasers.
"Purchase Obligation" has the meaning set forth in the Standby
-------------------
Purchase Agreement.
"QIB" means a qualified institutional buyer as defined in Rule 144A
---
under the Securities Act.
"Real" or "Reais" means the lawful currency of Brazil and any
---- -----
successor currencies thereto.
9
"Record Date" means, with respect to any payment to be made on an
-----------
Interest Payment Date, the Business Day that is ten Business Days prior to such
Interest Payment Date.
"Reference Rate of Exchange" means the official exchange rate applied
--------------------------
by the Brazilian central bank (or any equivalent entity) for the category of
remittance used to make payments under the Standby Purchase Agreement, provided
that if the Brazilian central bank does not freely execute conversions of Reais
into U.S. dollars for such category of remittance, then the Reference Rate of
Exchange will be the effective exchange rate obtained through the most active
legal and normal channel (as such rate is specified by the Trustee) in Brazil
for the conversion of Reais into U.S. dollars for the category of remittance
used to make payments under the Standby Purchase Agreement; provided, however,
that if no exchange rate can be determined pursuant to the above, the reference
rate of exchange will mean the last available official exchange rate applied by
the Brazilian central bank or equivalent entity in Brazil prior to the date the
payment of a Purchase Obligation under the Standby Purchase Agreement was to
have been made.
"Registered Depositary" means The Depository Trust Company, having a
---------------------
principal office at 55 Water Street, New York, New York 10041-0099, together
with any Person succeeding thereto by merger, consolidation or acquisition of
all or substantially all of its assets, including substantially all of its
securities payment and transfer operations.
"Registration Rights Agreement" has the meaning set forth in the
-----------------------------
preamble to this Indenture.
"Regulation S" means Regulation S promulgated under the Securities
------------
Act, as amended and in effect from time to time.
"Regulation S Global Note" has the meaning set forth in Section 2.5(b)
------------------------
hereof.
"Regulation S Note" means a Note, including a Regulation S Global
-----------------
Note, required to bear the Restrictive Legend applicable to Regulation S Notes
provided for in Exhibit A-2.
"Reserve Account" has the meaning set forth in Section 5.3.
---------------
"Reserve Account Transfer Date" means, in respect of any Payment Date
-----------------------------
the last day of the Grace Period in respect of such Payment Date.
"Reserve Account Withdrawal Date" means, with respect to any Payment
-------------------------------
Date, either (a) if the Trustee shall have made a request to draw on the Letter
of Credit in accordance with Section 5.2(d)(ii) hereof, the Business Day on
which the Trustee has received the proceeds of such drawing, or (b) to the
extent that the Trustee has not made a drawing under the Letter of Credit, the
Business Day on which the Trustee has received an executed Certificate of
Inconvertibility from the Issuer and the Standby Purchaser; provided, however,
that in the case of both (a) and (b) above, to the extent that such amount or
certificate is received by the Trustee after 12:00 p.m. on any Business Day,
such Reserve Account Withdrawal Date shall be deemed to be the next succeeding
Business Day after such receipt.
10
"Responsible Officer", when used with respect to the Trustee, means
-------------------
any officer in the Corporate Trust Office (or any successor group of the
Trustee) including any vice president, assistant vice president, assistant
secretary, assistant treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
"Restricted Global Note" has the meaning set forth in Section 2.5
----------------------
hereof.
"Restricted Note" means a Note, including a Restricted Global Note,
---------------
required to bear the Restrictive Legend applicable to Restricted Notes provided
for in Exhibit A-1.
"Restrictive Legend" means the legends required by the forms of Note
------------------
attached hereto as Exhibit A-1 and A-2.
"Rule 144" means Rule 144 promulgated under the Securities Act, as
--------
amended and in effect from time to time.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as
---------
amended and in effect from time to time.
"Securities Act" has the meaning set forth in the preamble to this
--------------
Indenture.
"SEC" means the Securities and Exchange Commission of the United
---
States.
"Standby Purchase Agreement" has the meaning set forth in the preamble
--------------------------
of this Indenture.
"Standby Purchaser" has the meaning set forth in the preamble to this
-----------------
Indenture.
"Subsidiary" shall mean, as to any Person, a corporation, company,
----------
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors (or similar governing body) of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Indenture shall refer
---------- ------------
to a Subsidiary or Subsidiaries of the Standby Purchaser.
"Successor Company" has the meaning set forth in Section 6.15(a)(i).
-----------------
"Taxes" has the meaning set forth in Section 2.16.
-----
"Taxing Jurisdiction" has the meaning set forth in Section 2.16.
-------------------
11
"Total Payment Amount" has the meaning set forth in the Standby
--------------------
Purchase Agreement.
"Transaction Documents" means, collectively, this Indenture, the
---------------------
Notes, the Standby Purchase Agreement, the Registration Rights Agreement, the
Account Control Agreement and each Letter of Credit.
"Trust Indenture Act" means the United States Trust Indenture Act of
-------------------
1939, as amended.
"Trustee" means the person named as the "Trustee" in the preamble to
-------
this Indenture and its successors and assigns.
"United States" or "U.S." means the United States of America.
-------------
"U.S. GAAP" means generally accepted accounting principles in effect
---------
in the United States applied on a basis consistent with the principles, methods,
procedures and practices employed in the preparation of the Issuer's audited
financial statements, including, without limitation, those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession.
"Wholly-Owned Subsidiary" means, with respect to any corporate entity,
-----------------------
any person of which 100% of the outstanding capital stock (other than qualifying
shares, if any) having by the terms thereof ordinary voting power (not dependent
on the happening of a contingency) to elect the Board of Directors (or
equivalent controlling governing body) of such person is at the time owned or
controlled directly or indirectly by such corporate entity, by one or more
wholly-owned subsidiaries of such corporate entity or by such corporate entity
and one or more wholly-owned subsidiaries thereof.
SECTION 1.2 Construction. For all purposes of this Indenture (and for
------------
all purposes of any other Transaction Document or any other instrument or
agreement that incorporates provisions of this Indenture by reference), except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I, and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) except as otherwise expressly provided herein, (i) all accounting
terms used herein shall be interpreted, (ii) all financial statements and all
certificates and reports as to financial matters required to be delivered to the
Trustee hereunder shall be prepared and (iii) all calculations made for the
purposes of determining compliance with this Indenture shall (except as
otherwise expressly provided herein) be made in accordance with, or by
application of, U.S. GAAP;
12
(d) all references in this Indenture (including the Appendices and
Schedules hereto) to designated "Articles", "Sections" and other subdivisions
are to the designated Articles, Sections and other subdivisions of this
Indenture;
(e) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(f) unless the context clearly indicates otherwise, pronouns having a
masculine or feminine gender shall be deemed to include the other;
(g) unless otherwise expressly specified, any agreement, contract or
document defined or referred to herein shall mean such agreement, contract or
document as in effect as of the date hereof, as the same may thereafter be
amended, supplemented or otherwise modified from time to time in accordance with
the terms of this Indenture and the other Transaction Documents and shall
include any agreement, contract, instrument or document in substitution or
replacement of any of the foregoing entered into in accordance with the terms of
this Indenture and the other Transaction Documents;
(h) any reference to any Person shall include its permitted successors
and assigns in accordance with the terms of this Indenture and the other
Transaction Documents including, in the case of any Governmental Authority, any
Person succeeding to its functions and capacities; and
(i) unless the context clearly requires otherwise, references to "Law"
or to any particular Law shall include Laws or such particular Law as in effect
at each, every and any of the times in question, including any amendments,
replacements, supplements, extensions, modifications, consolidations,
restatements, revisions or reenactments thereto or thereof, and whether or not
in effect at the date of this Indenture.
ARTICLE II
THE NOTES
SECTION 2.1 Designation. (a) There is hereby created a series of "9
-----------
1/8% Senior Notes Due 2007" in the aggregate principal amount of
U.S.$400,000,000 which are to be issued pursuant to this Indenture.
(b) Each Note shall constitute Indebtedness of the Issuer payable out
of the Issuer's general assets and properties. The Notes shall be general senior
unsecured and unsubordinated obligations of the Issuer and shall at all times
rank pari passu among themselves and at least equal in right of payment with all
of the Issuer's other present and future unsecured and unsubordinated
obligations of the Issuer from time to time outstanding that are not, by their
terms, expressly subordinated in right of payment to the Notes.
13
SECTION 2.2 Aggregate Amount; Issuable in Series.
------------------------------------
(a) The aggregate principal amount of Notes that may be authenticated
and delivered under this Indenture is unlimited.
(b) Additional Notes of the same series as the Notes (such additional
Notes being, "Additional Notes") may be issued from time to time under this
----------------
Indenture so long as, on the date of issuance of such Additional Notes: (i) the
requirements of Section 2.3 have been complied with, (ii) no Default or Event of
Default shall have occurred and then be continuing, or shall occur as a result
of the issuance of such Additional Notes, (iii) such Additional Notes shall rank
pari passu with the Notes referred to in Section 2.1 and shall have identical
terms, conditions and benefits as the Notes and be part of the same series as
the Notes, (iv) the amount available under the Letter of Credit (when aggregated
with all amounts on deposit in the Reserve Account) shall have been increased by
an amount equal to the sum of (A) three semi-annual payments of interest at the
Note Rate (calculated, so long as the Issuer and the Standby Purchaser have not
satisfied their obligations under the Registration Rights Agreement at a rate
equal to the Note Rate in effect on the Closing Date plus 0.5% per annum) on the
Additional Notes and (B) 90 days of interest on a single semi-annual payment of
interest (calculated in accordance with (A) above) at the Note Rate calculated,
so long as the Issuer and the Standby Purchaser have not satisfied their
obligations under the Registration Rights Agreement at a rate equal to the Note
Rate in effect on the Closing Date plus 0.5% per annum, (v) Moody's shall have
confirmed to the Trustee in writing, prior to the issuance of such Additional
Notes, that the issuance of such Additional Notes will not result in the
lowering or withdrawal of the rating of the Notes existing immediately prior to
any such issuance; (vi) the Issuer and the Trustee shall have executed and
delivered a supplemental indenture to this Indenture providing for the issuance
of such Additional Notes and reflecting such amendments to this Indenture as may
be required to reflect the increase in the aggregate principal amount of the
Notes resulting from the issuance of the Additional Notes, (vii) the Standby
Purchaser and the Trustee shall have executed and delivered an amended Standby
Purchase Agreement reflecting the increase in the aggregate principal amount of
the Notes resulting from the issuance of the Additional Notes, (viii) in the
event that the Issuer and the Standby Purchaser have not satisfied in full their
obligations under the Registration Rights Agreement, the Issuer, the Standby
Purchaser and the Initial Purchasers shall have executed and delivered an
amended Registration Rights Agreement reflecting the increase in the aggregate
principal amount of the Notes resulting from the issuance of the Additional
Notes, and (ix) the Trustee shall have received all such opinions and other
documents as it shall have requested.
(c) All Additional Notes issued hereunder will, when issued, be
considered Notes for all purposes hereunder and will be subject to and take the
benefit of all of the terms, conditions and provisions of this Indenture.
SECTION 2.3 Authentication and Delivery of Notes. (a) Any time and
------------------------------------
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Notes executed by the Issuer to the Trustee for authentication,
together with an Issuer Order for the authentication and delivery of such Notes,
and the Trustee shall thereupon authenticate and make
14
available for delivery such Notes in accordance with such Issuer Order, without
any further action by the Issuer.
(b) No Note shall be secured by or entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication, in the form provided for in Section 2.4
hereof, executed by the Trustee by the manual signature of any Authorized
Signatory, and such certificate upon any Notes shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
thereunder.
(c) The Trustee shall have the right to decline to authenticate and
deliver the Notes under this Section 2.3 if the Trustee, after receipt of an
Opinion of Counsel, determines that such action may not lawfully be taken by the
Issuer or the Trustee or if the Trustee in good faith by its Board of Directors,
board of trustees, executive committee, a trust committee of directors or
trustees or Responsible Officer shall determine that such action does not comply
with the provisions of this Indenture or any document or instrument delivered in
connection herewith, or could expose the Trustee to personal liability. Prior to
the authentication and delivery of the Notes, the Trustee shall also receive
such other funds, accounts, documents, certificates, instruments or opinions as
may be required thereunder or it may request in order to provide it with
assurances that all action necessary in connection therewith has been taken.
(d) Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued or sold by the Issuer,
and the Issuer shall deliver such Note to the Trustee for cancellation as
provided in Section 2.18 together with a written statement (which need not
comply with Section 14.2 and need not be accompanied by an Opinion of Counsel)
stating that such Note has never been issued or sold by the Issuer, for all
purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall never have been or be entitled
to the benefits hereof.
SECTION 2.4 Form of Trustee's Authentication.The Trustee's certificate
---------------------------------
of authentication on all Notes shall be in substantially the following form:
"This Note is one of the Notes referred to in the within-mentioned
Indenture.
The Bank of New York,
--------------------
as Trustee
By:
-------------------------------------
Authorized Signatory"
SECTION 2.5 Form of the Notes. (a) Notes offered and sold in reliance
------------------
on Rule 144A will be initially represented by one or more, permanent Global
Notes (in substantially the form of Exhibit A-1) in definitive, fully registered
book-entry form without interest coupons (collectively, the "Restricted Global
-----------------
Note") which will be registered in the name of a nominee of the Registered
- ----
Depositary and deposited on behalf of the purchasers of the Notes represented
thereby with a custodian for the Registered Depositary for credit to the
respective accounts of such purchasers (or to such other accounts as they may
direct) at the Registered Depositary. The
15
aggregate principal amount of the Restricted Global Note may from time to time
be increased or decreased by adjustments made on the records of the Note
Registrar and the Registered Depositary as hereinafter provided.
(b) Notes offered and sold in reliance on Regulation S will be
initially represented by one or more permanent Global Notes without interest
coupons (in substantially the form of Exhibit A-2) in definitive, fully
registered book-entry form (collectively, the "Regulation S Global Note") which
------------------------
will be registered in the name of a nominee of the Registered Depositary and
deposited on behalf of the purchasers of the Notes represented thereby with a
custodian for the Registered Depositary for credit to the respective accounts of
such purchasers (or to such other accounts as they may direct) at Euroclear or
Clearstream. The aggregate principal amount of the Regulation S Global Note may
from time to time be increased or decreased by adjustments made on the records
of the Note Registrar and the Registered Depositary as hereinafter provided.
(c) Exchange Notes exchanged for interests in the Restricted Global
Note, the Regulation S Global Note or any Initial Notes in definitive form will
be issued in the form of one or more permanent Global Notes (in substantially
the form of Exhibit A-1 or A-2, as applicable, but without the restrictive
legend) in definitive, fully registered book-entry form (collectively, the
"Exchange Global Notes"; and together with the Restricted Global Note and the
---------------------
Regulation S Global Notes"), which will be registered in the name of a
--------- ------------
nominee of DTC and deposited on behalf of the purchasers of the Notes
represented thereby with a custodian for DTC for credit to the respective
accounts of such purchasers (or such accounts as they may direct).
(d) The Notes shall be in registered form and may have such letters,
numbers or other marks of identification and such legends or endorsements
printed, lithographed, engraved, typewritten or photocopied thereon as may be
required to comply with the rules of any securities exchange upon which the
Notes are to be listed or to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Board of Directors of the Issuer or
by the Authorized Representative executing such Notes, such determination by
said Authorized Representative to be evidenced by its signing the Notes.
(e) The Notes may be issued in the form of (a) definitive Notes under
the circumstances described in Sections 2.12(c), (d) and (e) hereto or (b) one
or more Global Notes. Notes issued in definitive form shall be registered in the
name or names of such Persons and for the principal amounts as the Issuer may
request. The Issuer initially appoints the Registered Depositary to act as
depositary for the Global Notes. Notes issued in the form of a Global Note shall
be registered in the name of the Registered Depositary or its nominee. In the
event any of the Notes are issued in a transaction under Rule 144A of the
Securities Act, any such Person shall purchase such Notes in transactions
complying with Rule 144A under the Securities Act. The Trustee, as custodian
("Custodian"), will act as custodian of each Global Note for the Registered
---------
Depositary or appoint a sub-custodian to act in such capacity. So long as the
Registered Depositary or its nominee is the registered owner of the Global Note,
it shall be considered the holder of the Notes represented thereby for all
purposes hereunder and under the Global Note. None of the Issuer, the Trustee or
any Paying Agent shall have any responsibility or liability for any aspect of
the records relating to or payments made by the Registered Depositary on account
of beneficial interests in the Global Note. Interests in the Global Note shall
be transferred on the Registered Depositary's book-entry settlement system.
16
(f) At such time as all beneficial interests in a particular Global
Note have been exchanged for Notes in definitive form or a particular Global
Note has been redeemed, repurchased or cancelled in whole and not in part, such
Global Note shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.18. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or in the form of Notes in definitive form, the principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Registered Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Registered Depositary at the direction of the Trustee to reflect such increase.
(g) The forms of Notes may have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistent herewith, be applicable thereto or determined by officers of the
Issuer executing such Notes, as evidenced by their execution thereof. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereof on the face of the Note. If the Notes conflict or
are inconsistent with the provisions of the Indenture, then this Indenture shall
control.
(h) At such time as all beneficial interests in a particular Global
Note have been exchanged for notes in definitive form or a particular Global
Note has been redeemed, repurchased or cancelled in whole and not in part, such
Global Note shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.18. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or in the form of a definitive Note, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Registered Depositary
at the direction of the Trustee to reflect such reduction and if the beneficial
interest is being exchanged for or transferred to a person who will take
delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement shall
be made on such Global Note by the Trustee or by the Registered Depositary at
the direction of the Trustee to reflect such increase.
SECTION 2.6 Maturity of the Notes.
---------------------
(a) The Notes shall mature on February 1, 2007 (the "Expected Maturity
-----------------
Date"); provided, however, that if on or before the Business Day prior to the
- ----
Expected Maturity Date the Issuer and the Standby Purchaser deliver a
certificate, substantially in the form of Exhibit D hereto, to the Trustee
stating that (i) the Issuer is unable to repay the principal amount of the
Notes, (ii) the Standby Purchaser does not have sufficient funds available
outside Brazil to satisfy its obligations under the Standby Purchase Agreement
to pay the Total Payment Amount,
17
(iii) the Standby Purchaser has funds in Brazilian Reais but is unable to
convert such funds and transfer them outside of Brazil to the Trustee for
payment of amounts due under or in respect of the Notes due to the occurrence
and continuation of an Expropriation Event or Inconvertibility Event; (iv) the
Issuer and the Standby Purchaser have used their best efforts to convert and
transfer the funds referred to in (iii) above, then if such certificate shall be
received by the Trustee on or before the Expected Maturity Date, the Expected
Maturity Date shall be extended to the date which shall be the earliest to occur
of (i) August 1, 2008 (the date which is eighteen calendar months after the
Expected Maturity Date), (ii) the last Interest Payment Date on which funds are
available under the Letter of Credit or on deposit in the Reserve Account to pay
interest on the Notes, and (iii) 30 calendar days after the date on which the
Expropriation Event or Inconvertibility Event that prevented the Standby
Purchaser from satisfying its payment obligations under the Standby Purchase
Agreement, has ended (such actual maturity date for the Notes being, the "Final
-----
Maturity Date").
- -------------
(b) In the case of any extension of the Expected Maturity Date, the
Expected Maturity Date shall be considered a Payment Date under the terms of
this Indenture, and interest at the Note Rate shall be due on the Notes on such
Expected Maturity Date and on each Payment Date occurring thereafter until the
Final Maturity Date.
(c) Upon the occurrence of any extension of the Expected Maturity Date
under this Section 2.6, the Issuer shall promptly, but in any event within two
Business Days thereafter, deliver notice thereof to the Noteholders and to the
Luxembourg Stock Exchange in accordance with the provisions of Section 14.4 of
this Indenture.
(d) No payments in respect of the principal of the Notes shall be paid
prior to the Final Maturity Date except in the case of the occurrence of an
Event of Default and acceleration of the aggregate outstanding principal amount
of the Notes or upon redemption prior to the Final Maturity Date pursuant to
Article IV hereof.
(e) The extension of the Expected Maturity Date as permitted hereunder
shall not have any effect on any of the other rights of the Noteholders,
including any right upon the occurrence of any Event of Default.
SECTION 2.7 Interest.
--------
(a) Interest shall accrue on the Notes at the rate of 9 1/8% per annum
for each Interest Period (the "Note Rate"), provided that if the Issuer and the
---------
Standby Purchaser shall have failed to have an effective registration statement
in respect of the Notes declared effective by the SEC pursuant to the
Registration Rights Agreement prior to February 1, 2003 the Note Rate shall be
increased for all purposes hereunder to 9 5/8% per annum (0.5% above the Note
Rate) until such time as such registration statement shall have been declared
effective as contemplated in the Registration Rights Agreement, in which case
the Note Rate shall decrease to the rate stated above. All interest shall be
paid by the Issuer to the Trustee and distributed by the Trustee in accordance
with this Indenture semiannually in arrears on February 1 and August 1 of each
year (or if such date is not a Business Day, the next succeeding Business Day
following such day) during which any portion of the Notes shall be Outstanding
(each, an "Interest Payment Date"), commencing on August 1, 2002 to the Person
---------------------
in whose name a Note is
18
registered at the close of business on the preceding Record Date. Interest shall
be calculated based on a 360-day year of twelve 30-day months. Notwithstanding
anything herein to the contrary, interest on the Notes at the Note Rate shall
continue to accrue in the event such interest is not paid on the scheduled
Interest Payment Date or the Final Maturity Date (or earlier as contemplated in
Section 2.15).
(b) Upon the occurrence and during the continuation of an Event of
Default under Sections 7.1(a) and (b), (i) interest shall accrue on the Notes at
a rate equal to 1.0% per annum above the Note Rate (the "Default Rate") and (ii)
------------
to the fullest extent permitted by law, interest shall accrue on the amount of
any interest, fee, Additional Amounts, or other amount payable under this
Indenture and the Notes that is not paid when due, from the date such amount was
due until such amount shall be paid in full, excluding the date of such payment,
at a rate equal to the Default Rate; provided, however, that interest on the
Notes shall accrue at the Note Rate and not the Default Rate during the
continuance of any suspension of the Standby Purchaser's obligations to make
payments of principal under Section 3(d) of the Standby Purchase Agreement where
the Noteholders are otherwise receiving payments of interest at the Note Rate
from the Standby Purchaser under the Standby Purchase Agreement or from the
Letter of Credit or from the amounts on deposit in the Reserve Account.
SECTION 2.8 Record Date.
-----------
The Trustee may treat the Person in whose name any Note is registered
on the applicable Record Date as the Noteholder for all purposes under this
Indenture.
SECTION 2.9 Issuance.
--------
The Initial Notes shall be issued only in a transaction exempt from
registration under the Securities Act to (a) Persons and entities that are
"qualified institutional buyers pursuant to Rule 144A under the Securities Act,
and (b) other permitted Persons or entities pursuant to Regulation S under the
Securities Act. The Notes shall be subject to restrictions on transfer and
resale as provided in Section 2.12 hereof.
SECTION 2.10 Denominations, etc.
-------------------
The Notes shall be issued only in fully registered form, without
coupons and as otherwise provided herein. Notes sold pursuant to Rule 144A shall
be issued in the form of beneficial interests in one or more Global Notes in
minimum denominations of U.S.$100,000 and integral multiples of U.S.$1,000 in
excess thereof. Notes sold pursuant to Regulation S and any Exchange Notes shall
be issued in the form of beneficial interests in one or more Global Notes in
minimum denominations of U.S.$1,000 and integral multiplies thereof. Beneficial
interests in any Global Notes shall be shown on, and transfers thereof shall be
effected only through, the book-entry records maintained by the Registered
Depositary and its participants. Notes issued in physical, certificated form
shall not be permitted to be traded through the facilities of the Registered
Depositary, except in connection with a transfer of a Note in certificated form
to a transferee that takes delivery in the form of beneficial interests in a
Global Note pursuant to Rule 144A or Regulation S, as the case may be.
SECTION 2.11 Execution of Notes.
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19
(a) The Notes shall be executed on behalf of the Issuer by one of its
Authorized Representatives. The signature of any such officers on the Notes may
be manual or facsimile. Notes bearing the manual or facsimile signatures of
individuals who were, at the time such signatures were affixed, the proper
officers of the Issuer shall bind the Issuer, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
(b) Pending the preparation of definitive Notes as contemplated in
Section 2.12, the Issuer may execute, and upon instructions from the Issuer, the
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Authorized Representatives executing
such Notes may determine, as conclusively evidenced by their execution of such
Notes.
(c) Following the issuance of temporary Notes, the Issuer will cause
definitive Notes to be prepared without unreasonable delay. The definitive Notes
shall be printed, lithographed or engraved, or provided by any combination
thereof, or in any other manner permitted by the rules and regulations of any
applicable securities exchange, all as determined by the Authorized
Representatives executing such definitive Notes. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency maintained by the
Issuer for such purpose pursuant to Section 8.11, without charge to the
Noteholder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute, and the Trustee shall authenticate and deliver, in
exchange therefor the same aggregate principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 2.12 Registration; Restrictions on Transfer and Exchange.
---------------------------------------------------
(a) The Issuer shall cause to be kept at the Corporate Trust Office of
the Note Registrar a register which, subject to such reasonable regulations as
the Issuer may prescribe, shall provide for the registration of Notes and for
the registration of transfers and exchanges of Notes. This register and, if
there shall be more than one Note Registrar, the combined registers maintained
by each such Note Registrar, are herein sometimes referred to as the "Note
----
Register". The Trustee is hereby appointed the initial Note Registrar for the
- --------
purpose of registering Notes and transfers and exchanges of Notes as herein
provided. Upon any resignation or removal of the Note Registrar, the Issuer
shall promptly appoint a successor, or in the absence of such appointment,
assume the duties of such Note Registrar. The Issuer may appoint one or more
coregistrars.
(b) If a Person other than the Trustee is appointed by the Issuer as
Note Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of a Note Registrar and of the location, and any change in the
location of the Note Register, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to rely upon such Note Register as to the names and
addresses of the Noteholders and the principal amounts and numbers of such
Notes.
20
(c) Any Global Note deposited with the Registered Depositary shall be
exchanged for definitive Notes, without coupons, and delivered to and registered
in the name of Persons named by the Registered Depositary, rather than to the
nominee for the Registered Depositary, if (i) the Issuer advises the Trustee in
writing that the Registered Depositary is no longer willing or able to discharge
properly its responsibilities as Registered Depositary with respect to the Notes
and the Issuer is unable to appoint a qualified successor, or that the
Registered Depositary has ceased to be a clearing agency registered under the
Exchange Act or (ii) the Issuer, at its option, elects to terminate the
book-entry system through the Registered Depositary with respect to the Notes
and cause issuance of certificated Notes.
(d) Upon the occurrence of any of the events in clauses (i) or (ii) of
the preceding paragraph, the Trustee shall, by forwarding any notice received
from the Issuer to the Registered Depositary, be deemed to have notified all
Persons who hold a beneficial interest in the Global Note through participants
in the Registered Depositary or indirect participants through participants in
the Registered Depositary of the availability of certificated Notes. Any Global
Note that is transferable to the beneficial owners thereof pursuant to Section
2.12(c) shall be surrendered by the Registered Depositary to the Note Registrar,
to be so transferred, in whole or from time to time in part, without charge, and
the Trustee shall authenticate and deliver, upon such transfer of each portion
of such Global Note, an equal aggregate principal amount of Notes of authorized
denominations. Any portion of a Global Note transferred pursuant to Section
2.12(c) and 2.12(d) shall be executed, authenticated and delivered only in the
denominations specified in the form of Note and registered in such names as the
Registered Depositary shall direct. Any certificated Note delivered in exchange
for an interest in the Restricted Global Note shall bear the legend regarding
transfer restrictions applicable to the Restricted Global Note set forth on the
form of Note attached as Exhibit A-1 hereto. Any Note delivered in exchange for
an interest in the Regulation S Global Note shall bear the legend regarding
transfer restrictions applicable to the Regulation S Global Note set forth on
the form of Note attached as Exhibit A-2 hereto. In the event of the occurrence
of any of the events specified in clauses (i) or (ii) of Section 2.12(c), the
Issuer will promptly make available to the Trustee a reasonable supply of
certificated Notes in certificated, fully registered form without interest
coupons.
(e) Notwithstanding any provisions to the contrary in this Indenture,
so long as any Global Note remains outstanding and is held by or on behalf of
the Registered Depositary, transfers of such Global Note, in whole or in part,
shall only be made in accordance with this Section 2.12(e) and Section 2.12(d).
(i) Subject to this Section 2.12(e) and Section 2.12(d), transfers of
a Global Note shall be limited to transfers of such Global Note in whole,
or in part, to nominees of the Registered Depositary or to a successor of
the Registered Depositary or such successor's nominee.
(ii) Transfers of beneficial interests in Global Notes may be effected
only through the book entry system maintained by the Registered Depositary
in compliance with applicable rules and procedures of the Registered
Depositary and its direct or indirect participants (including Euroclear and
Clearstream, if applicable), in each case to the extent applicable to such
transaction and in effect from time to time the "Applicable Procedures").
---------------------
21
(iii) In the event that a Global Note is exchanged for Notes in
certificated registered form without interest coupons pursuant to Section
2.12(d) hereof, such Notes may be exchanged for one another only in
accordance with such procedures as are substantially consistent with the
provisions of clauses (iv) and (v) below (including the certification
requirements) and as may be from time to time adopted by the Issuer and the
Trustee.
(iv) If the owner of a beneficial interest in a Restricted Global Note
wishes at any time to transfer such interest (or portion thereof) to a
Non-U.S. Person pursuant to Regulation S who wishes to hold its interest in
the Notes through a beneficial interest in the Regulation S Global Note,
such transfer may be effected only (A) upon receipt by the Note Registrar
of:
(1) an order given by the Registered Depositary or its authorized
representative directing the Note Registrar to credit or cause to be
credited a beneficial interest in the Regulation S Global Note equal
to the principal amount of the beneficial interest in the Restricted
Global Note to be transferred, and
(2) a certificate in the form of Exhibit C duly executed by the
transferor, or his attorney duly authorized in writing.
and (B) subject to the Applicable Procedures, the Note Registrar shall
increase the Regulation S Global Note and decrease the Restricted Global
Note by such amount in accordance with the foregoing. Any beneficial
interest in the Restricted Global Note that is transferred to a Person that
takes delivery in the form of a beneficial interest in the Regulation S
Global Note will, upon transfer, cease to be an interest in the Restricted
Global Note and will become an interest in the Regulation S Global Note
subject to all transfer restrictions and other procedures applicable to
beneficial interests in the Regulation S Global Note.
(v) If the owner of an interest in a Regulation S Global Note wishes
at any time to transfer such interest (or any portion thereof) to a Person
who wishes to take delivery thereof in the form of a beneficial interest in
the Restricted Global Note, such transfer may be effected only, (A) upon
receipt by the Note Registrar of:
(1) an order given by the Registered Depositary or its authorized
representative directing the Note Registrar to credit or cause to be
credited a beneficial interest in the Restricted Global Note equal to
the principal amount of the beneficial interest in the Regulation S
Global Note to be transferred, and
(2) if such transfer is to occur during (but only during) the
Distribution Compliance Period, a certificate in the form of Exhibit D
duly executed by the transferor or his attorney duly authorized in
writing, (accompanied, in the case of a transfer under an exemption
from the registration requirements under the Securities Act other than
pursuant to Rule 144A or Rule 144 under the
22
Securities Act, by an opinion of counsel stating that such exemption
is available to the transferor), and
(B) in accordance with the Applicable Procedures, the Note Registrar shall
increase the Restricted Global Note and decrease the Regulation S Global
Note by such amount in accordance with the foregoing. Any beneficial
interest in the Regulation S Global Note that is transferred to a Person
that takes delivery in the form of a beneficial interest in the Restricted
Global Note will, upon transfer, cease to be an interest in the Regulation
S Global Note and will become an interest in the Restricted Global Note
subject to all transfer restrictions and other procedures applicable to
beneficial interest in the Restricted Global Note.
(vi) If the holder of a Restricted Note (other than a Global Note)
wishes at any time to transfer such Restricted Note (or a portion thereof)
to a Person who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Note or the Regulation S Global Note,
such transfer may be effected only, (A) upon receipt by the Note Registrar
of:
(1) such Restricted Note, duly endorsed as provided herein,
(2) instructions from such holder directing the Note Registrar to
credit or cause to be credited a beneficial interest in the Restricted
Global Note or Regulation S Global Note equal to the principal amount
(or portion thereof) of such certificated Note to be transferred, and
(3) a certificate in the form of Exhibit C if the specified
account to be credited with a beneficial interest in the Regulation S
Global Note, or a certificate in the form of Exhibit D if the
specified account is to be credited with a beneficial interest in the
Restricted Global Note, in either case duly executed by the transferor
or his attorney duly authorized in writing, and
(B) subject to the Applicable Procedures of the Registered Depositary,
the Note Registrar shall:
(1) cancel the Restricted Note delivered to it (and issue a new
Note in respect of any untransferred portion thereof), and
(2) increase the Restricted Global Note or the Regulation S
Global Note, as the case may be, in accordance with the foregoing;
(vii) If the holder of a Regulation S Note (other than a Global Note)
wishes to transfer such Regulation S Note (or a portion thereof) to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Note or the Regulation S Global Note,
such transfer may be effected only, (A) upon receipt by the Note Registrar
of:
(1) such Regulation S Note, duly endorsed as provided herein,
23
(2) instructions from the holder of such certificated Note
directing the Registrar to credit or cause to be credited a beneficial
interest in the Restricted Global Note or the Regulation S Global Note
equal to the principal amount of the certificated Note (or portion
thereof) to be transferred, and
(3) if the transfer is to occur during (but only during) the
Distribution Compliance Period and the specified account is to be
credited with a beneficial interest in the Restricted Global Note, a
certificate in the form of Exhibit D, or if the specified account is
to be credited with a beneficial interest in the Regulation S Global
Note, a certificate in the form of Exhibit C, in each case, duly
executed by the transferor or his attorney duly authorized in writing,
and (B) subject to the Applicable Procedures of the Registered Depositary, the
Note Registrar shall:
(1) cancel the Regulation S Note delivered to it, (and issue a
new Note in respect of any untransferred portion thereof) and
(2) increase the Restricted Global Note or the Regulation S
Global Note, as the case may be, for such amount in accordance with
the foregoing.
(viii) A beneficial interest in a Restricted Global Note or a
Regulation S Global Note may be exchanged for a Note that is not a Global
Note as provided in Section 2.12(c) and (d); provided, that, if such
interest is a beneficial interest in the Restricted Global Note, or if such
interest is a beneficial interest in the Regulation S Global Note and such
exchange is to occur during the Distribution Compliance Period, then such
interest shall be exchanged for a Restricted Note or a Regulation S Note,
as the case may be. A Restricted Note or Regulation S Note that is not a
Global Note may be exchanged for a beneficial interest in a Global Note
only if (A) such exchange occurs in connection with clause (e)(vi) or (vii)
above, (B) such Note is a Regulation S Note and such exchange occurs after
the Distribution Compliance Period or (C) such exchange occurs pursuant to
an Exchange Offer or for Exchange Notes registered under a shelf
registration statement pursuant to the Registration Rights Agreement.
(f) After the expiration of the Distribution Compliance Period, at the
option of the Noteholder, beneficial interests in Global Notes may be exchanged
in whole or in part for certificated Notes to be registered in the name of such
Noteholder, of authorized denominations and of like tenor, maturity, interest
rate and aggregate principal amount, upon prior written notice to the Trustee by
or on behalf of the Registered Depositary and surrender of the Notes to be
exchanged at any office or agency maintained for such purpose pursuant to
Section 8.11. Whenever any Notes are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and make available for
delivery, the Notes which the Noteholder making the exchange is entitled to
receive. The Issuer shall execute and deliver to the Trustee, on the Closing
Date and from time to time thereafter, for safekeeping and subsequent
authentication, a stock of physical registered Notes of such quantities as the
Issuer, after consultation with the
24
Trustee, determines to be sufficient to permit the issuance of physical Notes
and the exchanges contemplated by this Section.
(g) Upon surrender for registration of transfer of any Note, together
with a written instrument of transfer satisfactory to the Note Registrar, as the
case may be, at an office or agency of the Issuer appointed in or pursuant to
Section 8.11 for such purposes, the Issuer shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination or
denominations and of the same aggregate principal amount. At the option of each
Noteholder, Notes may be exchanged for other Notes of any authorized
denomination or denominations and of the same aggregate principal amount, upon
surrender of the Notes to be exchanged at any such office or agency. Whenever
any Notes are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Notes that the Noteholder making the
exchange is entitled to receive. All Notes issued upon any registration of
transfer or exchange of Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same security and benefits under
this Indenture and the other Transaction Documents, as the Notes surrendered
upon such registration of transfer or exchange.
(h) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Note Registrar or any
transfer agent, duly executed by the Noteholder thereof or such Noteholder's
attorney duly authorized in writing.
(i) No service charge shall be required of any Noteholders
participating in any transfer or exchange of Notes in respect of such transfer
or exchange, but the Note Registrar may require payment of a sum sufficient to
cover any Tax that may be imposed in connection with any transfer or exchange of
Notes, other than exchanges pursuant to Section 2.12(c), 2.13 or 11.6 not
involving any transfer.
(j) The Note Registrar shall not be required (x) to issue, register
the transfer of or exchange any Note during a period beginning at the opening of
business in the City of New York 15 days before the day of the mailing of a
notice of redemption of Notes selected for redemption under Section 4.3 and
ending at the close of business on the day of such mailing or (y) to issue,
register the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note redeemed in part.
(k) If Notes are issued upon the transfer, exchange or replacement of
Notes subject to restrictions on transfer and bearing the legends set forth on
the forms of Note attached hereto as Exhibit A-1 and Exhibit A-2, setting forth
such restrictions (collectively, the "Legend"), or if a request is made to
------
remove the Legend on a Note, the Notes so issued shall bear the Legend, or the
Legend shall not be removed, as the case may be, unless it is delivered to the
Issuer and the Note Registrar such satisfactory evidence, which shall include an
Opinion of Counsel, as may be reasonably required by the Issuer, that neither
the Legend nor the restrictions on transfer set forth therein are required to
ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144
or Regulation S under the Securities Act or that such Notes are not "restricted
securities" within the meaning of Rule 144 under the Securities Act. Upon
provision of such satisfactory evidence, the Trustee, at the direction of the
Issuer, shall
25
authenticate and deliver a Note that does not bear the Legend. If a Legend is
removed from the face of a Note and the Note is subsequently held by an
Affiliate of the Issuer, the Legend shall be reinstated.
(l) None of the Trustee or the Note Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including transfers
between or among participants in the Registered Depositary or beneficial owners
of interest in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 2.13 Exchange Offer. Upon occurrence of the Exchange Offer in
--------------
accordance with the Registration Rights Agreement or the effectiveness of a
registration statement pursuant to the Securities Act, the Issuer will issue,
and upon receipt of an Issuer Order in accordance with Section 2.3 hereof, the
Trustee shall authenticate, (a) the Exchange Global Note in a principal amount
equal to the principal amount of the beneficial interests in the Restricted
Global Note and the Regulation S Global Note tendered for exchange in the
Exchange Offer or for exchange for Exchange Notes registered under the
registration statement, as the case may be, by Persons that certify in the
applicable letters of transmittal or via the Registered Depositary's book-entry
system that (i) they are not broker-dealers, (ii) they are not participating in
a distribution of Exchange Notes, and (iii) they are not affiliates (as defined
in Rule 144 under the Securities Act) and (b) Exchange Notes in definitive form
in an aggregate principal amount equal to the principal amount of the Initial
Notes in definitive form accepted for exchange in the Exchange Offer or for
exchange for Exchange Notes registered under the registration statement, as the
case may be. Concurrently with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the Restricted Global Note and
Regulation S Global Note to be reduced accordingly, and the Issuer shall
execute, and the Trustee shall authenticate and make available for delivery to
the Persons designated by the holders of Initial Notes in definitive form so
accepted, Exchange Notes in definitive form in the appropriate principal amount.
SECTION 2.14 Mutilated, Destroyed, Lost and Stolen Notes.
-------------------------------------------
(a) If (i) any mutilated or defaced Note is surrendered to the Trustee
or the Issuer, and the Note Registrar and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and (ii) there is
delivered to the Issuer, the Note Registrar and the Trustee evidence to their
satisfaction of the ownership and authenticity thereof, and such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the Trustee that such
Note has been acquired by a bona fide purchaser, the Issuer shall execute and
upon the Issuer's request the Trustee shall authenticate and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a new Note of like tenor, interest rate and principal amount,
bearing a number not then outstanding and registered in the same manner. If,
after the delivery of such new Note, a bona fide purchaser of the original Note
in lieu of which such new Note was issued presents for payment such original
Note, the Issuer and the Trustee shall be entitled to recover such new Note from
the Person to whom it was delivered or any Person taking
26
therefrom, except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expenses incurred by the Issuer or the Trustee in connection therewith.
(b) Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Note has become or is about to become due and payable,
the Issuer, upon satisfaction of the conditions set forth in clauses (i) and
(ii) of clause (a) hereof may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section 2.14, the
Issuer may require the payment of a sum sufficient to cover any Tax that may be
imposed in relation thereto and any other expenses connected therewith.
(d) Every new Note issued pursuant to this Section 2.14 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(e) The provisions of this Section 2.14 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.15 Payments.
--------
(a) The Issuer hereby acknowledges and confirms that it is and at all
times shall remain absolutely and unconditionally obligated to pay all amounts
due and owing by the Issuer hereunder and under any other Transaction Document,
as the same shall become due and owing. All payments of principal and interest
required to be made by the Issuer hereunder shall be made, pursuant to the terms
hereof, by the Issuer to the Trustee, by 1:00 p.m. (New York time) one Business
Day prior to the scheduled date therefor. All such payments to the Trustee shall
be made by the Issuer by depositing immediately available funds in U.S. dollars
to the Payment Account provided for herein.
(b) So long as any of the Notes remain Outstanding, the Issuer will
maintain one or more agents in New York City to whom (i) the Notes may be
presented for payment and (ii) the Notes may be presented for exchange,
transfer, redemption or registration of transfer as provided in this Indenture.
The Issuer may have one or more additional paying agents. Unless otherwise
specified, the Issuer hereby initially designates the Corporate Trust Office as
the office to be maintained by it for each such purpose and where the Note
Register will be maintained. If the Issuer shall fail to so designate or
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate Trust Office. Principal or
interest on any Note that is payable, and punctually paid or duly provided for,
on any Interest Payment Date or the Expected Maturity Date (as the same may be
extended as provided hereunder) or earlier as provided herein upon any
acceleration of the Notes shall be paid to the Person in whose name that Note
(or one or more Predecessor Notes) is registered at the close of business on the
Record
27
Date for such payment. Payment of principal of and interest on the Notes shall
be made at the Place of Payment (or, if such office is not in the City of New
York, at either such office or an office to be maintained in such city) payable
as provided herein. No Notes need be surrendered in order to receive payment of
principal interest or other amounts as provided herein.
(c) Subject to the foregoing provisions of this Section 2.15, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.16 Taxation.
--------
(a) All payments of or in respect of principal and interest on the
Notes and other amounts, if any, hereunder shall be made free and clear of, and
without withholding or deduction for or on account of, any present or future
taxes, penalties, fines, duties, assessments or other governmental charges (or
interest on any of the foregoing) of whatsoever nature (collectively, "Taxes")
-----
imposed, levied, collected, withheld or assessed by, within or on behalf of the
Cayman Islands, the United States or any jurisdiction from or through which
payment is made, or any political subdivision or governmental authority thereof
or therein having power to tax ("Taxing Jurisdiction"), unless such withholding
-------------------
or deduction is required by law. In that event, the Issuer shall pay such
additional amounts ("Additional Amounts") as may be necessary to ensure that the
------------------
amounts received by the Noteholders or the Trustee, as the case may be, after
such withholding or deduction shall equal the respective amounts of principal
and interest that would have been receivable in respect of the Notes in the case
of the Noteholders, or pursuant to Section 8.5, in the case of the Trustee, in
the absence of such withholding or deduction. The Issuer will not, however, pay
any Additional Amounts in connection with any tax, duty, assessment or other
governmental charge that is imposed due to any of the following ("Excluded
--------
Additional Amounts"):
- ------------------
(i) the Noteholder or beneficial owner has some connection with the
Taxing Jurisdiction other than merely holding the Notes or receiving
principal or interest payments on the Notes (such as citizenship,
nationality, residence, domicile, or existence of a business, a permanent
establishment, a dependent agent, a place of business or a place of
management present or deemed present within the Taxing Jurisdiction);
(ii) any tax imposed on, or measured by, net income;
(iii) the Noteholder or beneficial owner fails to comply with any
certification, identification or other reporting requirements concerning
its nationality, residence, identity or connection with the Taxing
Jurisdiction, if (A) such compliance is required by applicable law,
regulation, administrative practice or treaty as a precondition to
exemption from all or a part of the tax, duty, assessment or other
governmental charge, (B) the Noteholder or beneficial owner is able to
comply with such requirements without undue hardship and (C) at least 30
calendar days prior to the first payment date with respect to which such
requirements under the applicable law, regulation, administrative practice
or treaty shall apply, the Issuer has notified all Noteholders that they
will be required to comply with such requirements;
28
(iv) the Noteholder fails to present (where presentation is required)
its Note within 30 calendar days after the Issuer has made available to the
Noteholder a payment of principal or interest, provided that the Issuer
will pay Additional Amounts which a Noteholder would have been entitled to
had the Note owned by such Noteholder been presented on any day (including
the last day) within such 30-day period;
(v) any estate, inheritance, gift, value added, use or sales taxes or
any similar taxes, assessments or other governmental charges;
(vi) where any Additional Amounts are imposed on a payment on the
Notes to an individual and is required to be made pursuant to any European
Union Directive on the taxation of savings income relating to the proposal
for a Directive on the taxation of savings income published by the European
Commission on July 18, 2001 or otherwise implementing the conclusions of
the Economic and Financial Council of Ministers of the member states of the
European Union (ECONFIN) Council meeting of 26 and 27 November 2000 or any
law implementing or complying with, or introduced in order to conform to,
any such Directive;
(vii) where the Noteholder or beneficial owner could avoid any
Additional Amounts by requesting that a payment on the Notes be made by, or
presenting the relevant Notes for payment to, another Paying Agent located
in a Member State of the European Union; or
(viii) any combination of (i), (ii), (iii), (iv), (v), (vi) and (vii)
above.
(b) The Issuer will (i) make such withholding or deduction on its
payments of principal and interest on the Notes as required by the relevant
Taxing Jurisdiction and (ii) remit the full amount withheld or deducted to the
relevant taxing authority in accordance with applicable law. The Issuer will
furnish to the Trustee, within 30 calendar days after the date of payment of any
such taxes, duties, assessments or other governmental charges due pursuant to
applicable law, certified copies of tax receipts or, if such receipts are not
obtainable, documentation reasonably satisfactory to the Trustee evidencing such
payment. Upon request, copies of such receipts or other documentation, as the
case may be, will be made available to the Noteholders.
(c) At least 10 Business Days prior to the first Interest Payment Date
for the Notes, and, if there has been any change with respect to the matters set
forth in the belowmentioned certificate at least 10 Business Days prior to each
Interest Payment Date for the Notes, the Issuer shall furnish to the Trustee an
Officer's Certificate instructing the Trustee as to any circumstances in which
payments of principal of or interest on the Notes (including Additional Amounts)
due on such date shall be subject to deduction or withholding for or on account
of any taxes and the rate of any such deduction or withholding. The Issuer
covenants to indemnify the Trustee and any other Paying Agents for, and to hold
each harmless against, any loss, liability or expense reasonably incurred
without negligence, bad faith or willful misconduct on their part, arising out
of or in connection with actions taken or not taken by any of them in reliance
on any certificate furnished to them pursuant to this paragraph or the failure
to furnish any such certificate. The obligations of the Issuer under the
preceding sentence shall survive the
29
resignation or removal of the Trustee, the Registrar or any Paying Agent. Any
certificate required by this Section 2.16 to be provided to the Trustee and any
other Paying Agent shall be deemed to be duly provided if telecopied to the
Trustee and such other Paying Agent. Upon request, the Issuer shall provide the
Trustee with documentation reasonably satisfactory to the Trustee evidencing the
payment of taxes in respect of which the Issuer has paid any Additional Amounts.
Copies of such documentation shall be made available by the Trustee to the
Noteholders or the other Paying Agents, as applicable, upon request therefor.
(d) The Issuer will, upon written request of any Noteholder or
beneficial owner of a Note, indemnify and hold harmless and reimburse such
Noteholder for the amount of taxes, duties, assessments or other governmental
charges of a Taxing Jurisdiction so levied or imposed and paid by such
Noteholder as a result of payments made under or with respect to the Note, so
that the net amount received by such Noteholder after such reimbursement would
not be less than the net amount the Noteholder would have received if such
taxes, duties, assessments or other governmental charges of such Taxing
Jurisdiction would not have been imposed or levied.
(e) The Issuer shall promptly pay when due any present or future
stamp, court or documentary taxes or any other excise or property taxes, charges
or similar levies that arise in a Taxing Jurisdiction from the execution,
delivery, enforcement or registration of each Note or any other document or
instrument referred to herein or therein. The Issuer shall indemnify and make
whole the Noteholders for any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies payable
by the Issuer as provided in this clause (e) paid by such Noteholders.
(f) All references in this Indenture to principal, interest, and other
amounts payable hereunder shall be deemed to include references to any
Additional Amounts payable under this Section 2.16 with respect to such
principal, interest, or other amounts. The foregoing obligations shall survive
any termination, defeasance or discharge of the Notes and this Indenture.
(g) If the Issuer shall at any time be required to pay Additional
Amounts to Noteholders pursuant to the terms of this Indenture, the Issuer will
use its reasonable endeavors to obtain an exemption from the payment of (or
otherwise avoid the obligation to pay) the tax, assessment or other governmental
charge which has resulted in the requirement that it pay such Additional
Amounts.
SECTION 2.17 Persons Deemed Owners Subject to Section 2.12, prior to
---------------------
due presentment of a Note for registration of transfer, the Person in whose name
any Note is registered shall be deemed to be the owner of such Note for the
purpose of receiving payment of principal of and interest on such Note and for
all other purposes whatsoever, whether or not such Note be overdue, regardless
of any notice to anyone to the contrary. The Noteholder may grant proxies and
otherwise authorize any Person, including members of, or participants in, the
Registered Depositary and Persons that may hold interests through such members
of, or participants in, the Registered Depositary, to take any action that a
Noteholder is entitled to take under this Indenture or the Notes.
30
SECTION 2.18 Cancellation.
------------
All Notes surrendered for payment, redemption, registration of
transfer or exchange or deemed lost or stolen shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee for cancellation and
may not be reissued or sold. The Issuer may at any time deliver to the Trustee
for cancellation any Notes previously authenticated and delivered hereunder
which the Issuer may have acquired in any manner whatsoever. All Notes so
delivered shall be promptly cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section 2.18, except as expressly permitted by this Indenture. All
cancelled Notes held by the Trustee shall be held by the Trustee in accordance
with its standard retention policy, unless the Issuer shall direct by an Issuer
Order that they be returned to it.
SECTION 2.19 Allocation of Principal and Interest.
------------------------------------
Each payment of principal of and interest on each Note shall be
applied, first, to the payment of accrued but unpaid interest on such Note (as
-----
well as any interest on overdue principal or, to the extent permitted by
applicable Law, overdue interest) to the date of such payment, second, to the
------
payment of the principal amount of and interest on such Note then due (including
any overdue installment of principal) thereunder, and third, the balance, if
-----
any, to the payment of the principal amount of such Note remaining unpaid.
SECTION 2.20 CUSIP and ISIN Numbers. The Issuer in issuing the Notes
----------------------
may use CUSIP and ISIN numbers (if then generally in use), and, if so, the
Trustee shall use CUSIP and ISIN numbers in notices of redemption as a
convenience to Noteholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Issuer will promptly notify the Trustee of any initial CUSIP and/or
ISIN numbers and any change in the CUSIP or ISIN numbers.
SECTION 2.21 Noteholder Lists. The Trustee shall preserve in as
----------------
current form as is reasonably practicable the most recent list available to it
of the names and addresses of Noteholders and shall otherwise comply with
Section 312(a) of the Trust Indenture Act. If the Trustee is not the Note
Registrar, or to the extent otherwise required under the Trust Indenture Act,
the Issuer shall furnish to the Trustee, in writing at least seven Business Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Noteholders, and the Issuer
shall otherwise comply with Section 312(a) of the Trust Indenture Act.
31
ARTICLE III
ESTABLISHMENT OF ACCOUNTS
SECTION 3.1 Establishment and Administration of Payment Account. (a)
---------------------------------------------------
On the Closing Date, the Trustee shall establish (and shall promptly notify the
Issuer of the establishment of such account, including the relevant account
numbers and other relevant identifying details) and, until the Notes and all
accounts due in respect thereof have been paid in full, maintain a special
purpose non-interest bearing trust account (the "Payment Account") into which
---------------
all payments required to be made by the Issuer under or with respect to the
Notes shall be deposited. The Issuer agrees that the Payment Account shall be
maintained in the name of the Trustee and under its sole dominion and control
(acting on behalf of the Noteholders) and used solely to make payments of
principal, interest and other amounts from time to time due and owing on, or
with respect to, the Notes. No funds contained in the Payment Account shall be
used for any other purpose or in any manner not expressly provided for herein
nor shall the Issuer or any other Person have an interest therein or amounts on
deposit therein.
(b) The Trustee shall apply all such amounts as from time to time are
on deposit in the Payment Account to all such amounts as are due to the
Noteholders pursuant to this Indenture or otherwise. All such amounts shall be
applied ratably, without preference or priority of any kind among Noteholders,
in accordance with this Indenture.
ARTICLE IV
REDEMPTION
SECTION 4.1 Mandatory Redemption. The Issuer shall be required to
--------------------
mandatorily redeem the Notes on the Expected Maturity Date (as the same may be
extended as provided in Section 2.6 or earlier upon any acceleration thereof in
accordance with this Indenture) by making a payment to the Trustee, on behalf of
the Noteholders, equal to the principal amount of the Notes Outstanding together
with all accrued but unpaid interest thereon and other amounts due and payable
under the terms of the Notes and this Indenture.
SECTION 4.2 No General Optional Redemption. The Issuer shall have no
------------------------------
right to redeem all or any portion of the Notes except as provided in Section
4.3.
SECTION 4.3 Optional Redemption in the Event of Change in Tax
-------------------------------------------------
Treatment. (a) The Notes may be redeemed at the election of the Issuer, as a
- ---------
whole, but not in part, at any time upon the giving of notice as provided in
Section 4.4, solely if (i) the Issuer certifies to the Trustee immediately prior
to the giving of such notice that it has or will become obligated to pay
Additional Amounts with respect to the Notes as a result of any generally
applicable change in or amendment to the laws or regulations of a Taxing
Jurisdiction, or any generally applicable change in the application or official
interpretation of such laws or regulations, which change or amendment, in each
case, occurs after the date of issuance of any of the Notes and (ii) such
obligation cannot be avoided by the Issuer taking reasonable measures available
to it; provided,
32
however, that no such notice of redemption shall be given earlier than 60 days
prior to the earliest date on which the Issuer would be obligated to pay such
Additional Amounts, if a payment in respect of the Notes were then due. Prior to
the giving of any notice of redemption of the Notes pursuant to this Section
4.3, the Issuer shall deliver to the Trustee an Officers' Certificate, stating
that the Issuer is entitled to effect such a redemption pursuant to this
Indenture, and setting forth in reasonable detail a statement of the facts
giving rise to such right of redemption. Concurrently, the Issuer will deliver
to the Trustee a written Opinion of Counsel, in form and substance satisfactory
to the Trustee, stating, among other things, that the Issuer has become
obligated to pay such Additional Amounts as a result of a change or amendment
described in this Section 4.3 and that the Issuer cannot avoid payment of such
Additional Amounts by taking reasonable measures available to it and that all
Governmental Approvals necessary for the Issuer to effect such redemption have
been obtained and are in full force and effect or specifying any such necessary
approvals that as of the date of such opinion have not been obtained.
(b) In the event the Issuer determines to redeem the Notes as
permitted hereunder, the Issuer shall be required to specify in its notice the
proposed date of redemption (the "Optional Redemption Date") and shall pay to
------------------------
the Trustee (on behalf of the Noteholders) on the Optional Redemption Date an
amount equal to the sum of (i) the aggregate principal amount of the Notes that
are then Outstanding, (ii) all accrued but unpaid interest on the Notes at the
applicable Note Rate through and including the Optional Redemption Date and
(iii) all other amounts then due on the Notes as provided in this Indenture or
the Notes (collectively, the "Optional Redemption Price"). The Notes shall not
-------------------------
be deemed repaid and cancelled unless and until the Trustee shall have received
in the Payment Account the Optional Redemption Price.
(c) For purposes of this Section 4.3 and notwithstanding anything to
the contrary under the terms of this Indenture, the Notes or the Standby
Purchase Agreement, any payment made by the Issuer to the Standby Purchaser with
respect to a Note or the Standby Purchase Agreement shall constitute or be
deemed to constitute a payment of other than (i) Additional Amounts or (ii)
taxes, duties, assessments or other governmental charges whatsoever imposed by a
Taxing Jurisdiction.
SECTION 4.4 Notice of Redemption. Notice of redemption contemplated by
---------------------
Section 4.3 shall be given by the Issuer by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the proposed Optional
Redemption Date, to each Noteholder, at its address appearing in the Note
Register. All notices of redemption shall state:
(i) the Optional Redemption Date;
(ii) the Optional Redemption Price (as calculated as of the specified
Optional Redemption Date);
(iii) the names and addresses of the Paying Agents;
(iv) that Notes called for redemption must be surrendered to a Paying
Agent to collect the Optional Redemption Price;
33
(v) that on the Optional Redemption Date the Optional Redemption Price
will become due and payable upon each such Note, and that interest, if any,
thereon shall cease to accrue from and after said date; and
(vi) the CUSIP number, if any.
SECTION 4.5 Deposit of Optional Redemption Price. At least one
------------------------------------
Business Day prior to any Optional Redemption Date, the Issuer shall deposit
with the Trustee an amount of money sufficient to pay the Optional Redemption
Price of all the Notes. The Issuer will cause the bank through which payment on
the Notes is to be made to deliver to the Paying Agent and Trustee by 1.00 p.m.
New York time, one Business Day prior to the due date for such irrevocable
confirmation (by tested telex, facsimile or authenticated Swift MT 100 Message)
of its intention to make such payment. At least one Business Day prior to any
Optional Redemption Date, the Issuer will provide to the Paying Agent a notice
regarding the payment by the Issuer to the Paying Agent of the Optional
Redemption Price.
SECTION 4.6 Notes Payable on Optional Redemption Date.
-----------------------------------------
Notice of Optional Redemption having been given as aforesaid, the
Notes so to be redeemed shall, on the Optional Redemption Date, become due and
payable at the Optional Redemption Price therein specified and from and after
such date (unless the Issuer shall default in the payment of the Optional
Redemption Price) such Notes shall cease to bear interest. Upon surrender of
such Notes for redemption in accordance with the notice, such Notes shall be
paid by the Issuer at the Optional Redemption Price. Installments of interest
due on or prior to the Optional Redemption Date shall be payable to the
Noteholders registered as such on the relevant Record Dates. If any Note called
for redemption shall not be so paid upon surrender thereof for redemption, the
principal shall, until paid, bear interest from the Redemption Date at the Note
Rate.
SECTION 4.7 Open Market Purchases. The Issuer, the Standby
---------------------
Purchaser or any Subsidiary or Affiliate thereof may at any time purchase any
Notes in the open market or otherwise at any price; provided, however, that, in
determining whether Noteholders holding any requisite principal amount of Notes
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Issuer, the Standby Purchaser and each of
their respective Subsidiaries or Affiliates shall be deemed not Outstanding for
the purposes thereof.
ARTICLE V
CREDIT AND OTHER SUPPORT
SECTION 5.1 Standby Purchase Agreement. The Issuer and the Trustee
--------------------------
hereby acknowledge that the purpose and intent of the Standby Purchaser in
providing the Standby Purchase Agreement is to give effect to the agreement of
the Standby Purchaser, from time to time upon the receipt of a specified notice
from the Trustee in substantially the form of either
34
Exhibit E-1 or E-2, as applicable, to this Indenture that the Issuer has failed
to make the required payments under the Notes and this Indenture, to purchase
the Noteholders' claims against the Issuer, whether such claims are in respect
of principal, interest or any other amounts (including Additional Amounts). Each
such notice shall be delivered by the Trustee to the Standby Purchaser no later
than 5:00 p.m. (New York time) on the Business Day prior to each Payment Date to
the extent that the Issuer has failed to make any payment hereunder in
accordance with the provisions of Section 2.14(a) hereof by 1:00 p.m. (New York
time) on the Business Day before such Payment Date. The Noteholders (by
acceptance of the Notes upon issuance) shall be deemed to have consented to the
sale by the Trustee, on behalf of the Noteholders, of all rights such
Noteholders may have to receive amounts due on or in respect of the Notes that
are not paid by the Issuer in accordance with the requirements of this Indenture
and receipt by such Noteholder of funds paid by the Standby Purchaser under the
Standby Purchase Agreement in respect of such unpaid amounts shall extinguish
such Noteholder's claims against the Issuer in respect of any such unpaid
amounts. The Trustee agrees to treat the Standby Purchase Agreement in
substantially the same fashion as it would a guarantee or similar obligation and
shall promptly deposit in the Payment Account any funds it receives from the
Standby Purchaser under or pursuant to the Standby Purchase Agreement.
SECTION 5.2 The Letter of Credit. (a) On the Closing Date the Issuer
--------------------
and the Standby Purchaser shall cause a Letter of Credit to be delivered to the
Trustee in an amount equal to U.S.$55,166,328.
(b) The Letter of Credit described in Section 5.2(a) above may be
replaced at the option of the Issuer and the Standby Purchaser by one or more
Letters of Credit in accordance with the procedure described in Section 5.4.
(c) Promptly, but in no event later than two Business Days after the
date on which the Standby Purchaser fails to convert Reais into U.S. dollars and
transfer U.S. dollars outside of Brazil in satisfaction of its payment
obligations under the Standby Purchase Agreement, the Issuer and the Standby
Purchaser shall deliver to the Trustee a certificate in substantially the form
of Exhibit F hereto (the "Certificate of Inconvertibility") (i) certifying that
-------------------------------
the occurrence of an Inconvertibility Event or an Expropriation Event that
resulted in the Standby Purchaser's inability to perform its payment obligations
under the Standby Purchase Agreement, (ii) certifying that no other funds are
otherwise available to make any payments due under the Notes and (iii)
specifying the amount to be drawn from the Letter of Credit in accordance with
Section 5.2(d)(ii)(A).
(d) The Trustee shall be required to draw upon the Letter of Credit,
as follows:
(i) Drawing in full. Pursuant to the Letter of Credit, the
---------------
Trustee shall draw on the Letter of Credit for its full amount:
(A) immediately after the Trustee receives written notice from
Moody's that it has either withdrawn the short term debt rating of the
financial institution that is the issuer of the Letter of Credit or
lowered such rating to below "P-1"; or
35
(B) on the tenth calendar day prior to the expiry of the Letter
of Credit in accordance with its terms, if the issuer of the Letter of
Credit shall have notified the Trustee of its intention to not renew
or replace the Letter of Credit prior to its expiry and neither the
Issuer nor the Standby Purchaser shall have (i) complied with the
provisions of Section 5.4(a) hereof and (ii) caused an executed
replacement Letter of Credit to be delivered to the Trustee prior to
such tenth calendar day; or
(ii) Drawings in part. Pursuant to the Letter of Credit, the Trustee
----------------
shall, from time to time draw on the Letter of Credit in part:
(A) in an amount equal to the L/C Partial Drawing Amount less any
amounts on deposit in the Payment Account therefor, which such drawing
shall be made no later than the date of receipt by the Trustee of a
Certificate of Inconvertibility from the Issuer and the Standby
Purchaser; provided, however, that any Certificate of Inconvertibility
received by the Trustee after 12:00 p.m. New York time on any Business
Day shall be deemed for the purposes of this Section 5.2 to be
received on the next succeeding Business Day.
(B) to the extent that more than one Letter of Credit is
outstanding on any drawing date as set forth in Section 5.2(d)(ii)(A)
above, the Trustee shall, in relation to a drawing made under Section
5.2(d)(ii)(A), draw from each such Letter of Credit in an amount which
is equal to the pro-rata portion (based on the then outstanding
amounts of all such Letters of Credit) of the amounts required to be
drawn under Section 5.2(d)(ii)(A); provided, however, that if the
issuer of any Letter of Credit fails to pay any amount due under such
Letter of Credit by 10:00 a.m. (New York time) on the Business Day
after any request for drawing has been made pursuant to Section
5.2(d)(ii)(A), the Trustee shall draw on each other Letter of Credit
in the manner specified in this subsection (B) for the unpaid balance
of amounts drawn under this Section 5.2(d)(ii).
(e) The Trustee shall deposit all of the proceeds from any drawing
under the Letter of Credit into the Reserve Account. All withdrawals from the
Reserve Account shall be made in accordance with the provisions of Section 5.3
hereof.
SECTION 5.3 Establishment and Administration of the Reserve Account.
-------------------------------------------------------
(a) On the Closing Date, the Trustee shall establish a segregated non-interest
bearing trust account (the "Reserve Account") with The Bank of New York for the
---------------
benefit of the Noteholders. The Reserve Account shall initially be funded by or
on behalf of the Issuer in an amount equal to U.S.$3,046,875, which amount shall
be equal to the sum of (b) eighteen months of interest on the Outstanding
principal amount of the Notes on the Closing Date at a rate equal to 0.5% per
annum, (c) 90 days of interest on the amount of interest (calculated at the Note
Rate in effect on the Closing Date) due on any Interest Payment Date at a rate
equal to 0.5% per annum and (d) 90 days of interest on an amount equal to 0.25%
of the Outstanding principal amount of the Notes on the Closing Date at a rate
equal to the Note Rate plus 0.5% per annum. All of the proceeds of a drawing on
any Letter of Credit shall, pursuant to the terms hereof and thereof, be
deposited in
36
the Reserve Account when and if a drawing is made on any such Letter of Credit
pursuant to Section 5.2 hereof and the terms thereof.
(e) The Issuer agrees that the Reserve Account shall be maintained in
the name of the Trustee and under its sole dominion and control (acting on
behalf of the Noteholders), shall only contain funds deposited by the Issuer or
the issuer of the Letter of Credit as expressly permitted hereunder and shall be
used solely to make payments of principal, interest and other amounts from time
to time due and owing on, or with respect to, the Notes. No funds contained in
the Reserve Account shall be used for any other purpose or in any manner not
expressly provided for herein nor shall the Issuer or any other Person have any
right of withdrawal or any other interest therein or in amounts on deposit
therein.
(f) So long as no Default or Event of Default shall have occurred and
be continuing, (i) the amounts on deposit in the Reserve Account shall be
invested by the Trustee in Permitted Investments as directed by the Issuer in
writing so long as all Permitted Investments purchased by the Trustee during any
Interest Period must mature no later than two Business Days prior to the next
succeeding Interest Payment Date occurring after the investment of such amounts
and (ii) interest earned on Permitted Investments deposited in the Reserve
Account, if any, shall be paid on the ninth calendar day of each month (or if
such calendar day is not a Business Day, the next succeeding Business Day
following such calendar day), to an account specified by the Issuer in writing.
On the Closing Date, the Issuer shall provide account details for the amounts
mentioned in clause (ii) above which shall remain valid until the Final Maturity
Date unless the Issuer informs the Trustee otherwise. Upon the occurrence and
during the continuance of a Default or an Event of Default, all interest earned
on amounts on deposit in the Reserve Account shall be retained by the Trustee in
the Reserve Account and all such interest shall be available to the Trustee to
make any payment of principal, interest and/or other amounts due under the Notes
and this Indenture. The Trustee shall, within two Business Days after the
Trustee receives written notice thereof, notify the Issuer in writing (with a
copy of such notice to Moody's) of the occurrence of any decrease in the rating
of any Permitted Investment of the type referred to in clauses (b) and (d) of
the definition thereof to a level below "P-1".
(g) If a Default or Event of Default shall have occurred and be
continuing or the Trustee shall not have received any direction from the Issuer
as to the Permitted Investments to be purchased as provided in Section 5.3(c),
all amounts on deposit in the Reserve Account will be invested by the Trustee in
investments of the type described in clause (f) of the definition of Permitted
Investments.
(h) On the Reserve Account Withdrawal Date, and as long as the funds
on deposit in the Payment Account are insufficient to pay all accrued and unpaid
interest due on the Notes on such Reserve Account Withdrawal Date, the Trustee
shall withdraw from the Reserve Account and pay to the Payment Account, to the
extent that funds are available therefor an amount equal to (i) the interest due
on the Notes on the Interest Payment Date related to such Reserve Account
Withdrawal Date and (ii) the amount of interest due on the amount specified in
clause (i) in accordance with Section 2.7 hereof on such Reserve Account
Withdrawal Date.
(i) Upon the Issuer and the Standby Purchaser having satisfied their
obligations under the Registration Rights Agreement in respect of the Notes, the
Trustee shall, (i) upon the
37
receipt of an Officer's Certificate from both the Issuer and the Standby
Purchaser certifying to the registration of the Notes under the Securities Act
and the satisfaction of their obligations under the Registration Rights
Agreement, and (ii) so long as no Default or Event of Default is continuing,
withdraw from the Reserve Account and pay to the Issuer all amounts, if any, on
deposit in the Reserve Account (when aggregated with all amounts available under
the Letter of Credit after giving effect to any reduction in the Letter of
Credit made pursuant to Section 5.4(d)) in excess of the amount represented by
the Letter of Credit on the Closing Date as set forth in Section 5.2(a) hereto.
(j) Upon the Trustee having allowed the Letter of Credit to expire in
accordance with Section 5.4(d) hereof and so long as no Default or Event of
Default is continuing, the Trustee shall withdraw from the Reserve Account and
pay to the Issuer, within two Business Days from the date of such expiration,
all funds on deposit in the Reserve Account and shall terminate the Reserve
Account or cause the Reserve Account to be terminated.
(k) Upon all obligations on the Notes and this Indenture being
satisfied in full and this Indenture being terminated, the Trustee shall release
from the Reserve Account and promptly pay to the Issuer any funds then on
deposit in the Reserve Account and shall terminate the Reserve Account or cause
the Reserve Account to be terminated.
SECTION 5.4 Modifications to Credit Support Arrangements.
--------------------------------------------
(a) Replacement of the Letter of Credit with Multiple Letters of
------------------------------------------------------------
Credit. The Letter of Credit issued on the Closing Date may at any time be
- ------
replaced at the option of the Issuer and the Standby Purchaser by one or more
Letters of Credit having in the aggregate a collective face or drawable amount
equal to the amount then available under the Letter of Credit issued on the
Closing Date provided that, at such time:
(i) no Default or Event of Default shall have occurred or be
continuing or will occur as a result of the replacement of the Letter of
Credit by one or more Letters of Credit as aforesaid;
(ii) Moody's reconfirms that the then current rating of the Notes both
before and after the replacement of the Letter of Credit by one or more
Letters of Credit is and will be not less than "Baa1";
(iii) the Issuer shall have submitted a draft of such letter of credit
to the Trustee not less than five Business Days prior to the proposed
delivery thereof;
(iv) the Trustee shall have approved of the form of the Letter of
Credit; and
(v) on the date that such replacement Letter of Credit is to be
delivered, the Issuer shall deliver, or cause to be delivered, an executed
replacement Letter of Credit in the form supplied to, and approved by, the
Trustee as contemplated above.
(b) Replacement of Letters of Credit with Cash. The Letter of Credit
------------------------------------------
issued on the Closing Date or replaced as contemplated in (a) above may be
replaced with an equivalent
38
amount of U.S. dollars deposited in the Reserve Account by or on behalf of the
Issuer provided that:
(i) no Default or Event of Default shall have occurred or be
continuing or will occur as a result of the replacement of the Letter of
Credit;
(ii) Moody's reconfirms that the then current rating of the Notes both
before and after the replacement of the Letter of Credit with U.S. dollars
deposited in the Reserve Account as contemplated herein is and will be not
less than "Baa1";
(iii) the Trustee receives an Opinion of Counsel containing no
material qualification and otherwise reasonably acceptable to the Trustee
and Moody's issued by a counsel experienced in international securities
transactions stating that (A) the U.S. dollars to be deposited in the
Reserve Account are and will not be subject to avoidance as a preference,
fraudulent conveyance or similar circumstance under applicable bankruptcy,
insolvency or similar laws and (B) the Reserve Account and the funds
deposited and to be deposited therein are and will be subject to a valid
and properly perfected first priority security interest, pledge, charge or
similar encumbrance in favor of the Trustee (on behalf of the Noteholders)
under applicable law; and
(iv) the Trustee certifies that it is satisfied that the replacement
of the Letter of Credit will not have an adverse effect on the rights of
the Noteholders, and in making such determination the Trustee shall be
entitled to conclusively rely on an Opinion of Counsel to such effect.
(c) Replacement of Cash with Letter of Credit. In the event that the
-----------------------------------------
Issuer wishes to replace the amounts on deposit in the Reserve Account with one
or more Letters of Credit, the Issuer may do so provided it shall have complied
with the following:
(i) the Issuer shall have submitted a draft of such Letter of Credit
to the Trustee not less than five Business Days prior to the proposed
delivery thereof;
(ii) the Trustee shall have approved of the form of the Letter of
Credit;
(iii) on the date that such Letter of Credit is to be delivered, the
Issuer shall deliver, or cause to be delivered an executed letter of credit
in the form supplied to, and approved by, the Trustee as contemplated
above; and
(iv) Moody's reconfirms that the current rating of the Notes both
before and after replacement of the amounts on deposit in the Reserve
Account with the Letter of Credit is and will not be less than "Baa1".
Upon receipt of the executed Letter of Credit as contemplated above, the Trustee
shall, on the next Business Day after such receipt, release from the Reserve
Account and pay to the Issuer an amount equal to the amount available under any
such Letter of Credit delivered in accordance with subsection (ii) above;
provided, however, that if the executed Letter of Credit submitted to the
Trustee as contemplated above is received by the Trustee after 4:00 p.m. (New
York time) on
39
any Business Day such Letter of Credit shall be deemed to have been received on
the next Business Day after such receipt.
(d) Permitted Cancellation of the Letter of Credit. Notwithstanding
----------------------------------------------
the provisions of Section 5.2(d)(i)(B) hereof, at any time after the Closing
Date and so long as no Default or Event of Default has occurred and is
continuing, the Trustee, at the written direction of the Issuer, may allow the
Letter of Credit to expire in accordance with its terms without drawing on such
Letter of Credit upon receipt of confirmation from Moody's that its then current
t such rating will not be lowered or withdrawn
- --------------------------------
as a result of such expiration.Additionally, upon the Issuer and the Standby
Purchaser having satisfied their obligations under the Registration Rights
Agreement in respect of the Notes, the Trustee shall at the request of the
Issuer and, (i) upon the receipt of an Officer's Certificate from both the
Issuer and the Standby Purchaser certifying to the registration of the Notes
under the Securities Act and the satisfaction of their obligations under the
Registration Rights Agreement, and (ii) so long as no Default or Event of
Default is continuing, reduce the amount on deposit in the Reserve Account
and/or exchange the Letter of Credit for a new or replacement Letter of Credit
in an amount (when aggregated with all amounts on deposit in the Reserve Account
after giving effect to any reduction in such account pursuant to Section 5.3(f))
equal to U.S.$55,166,328.
ARTICLE VI
COVENANTS
For so long as the Notes remain outstanding or any amount remains
unpaid on such Notes under this Indenture, the Issuer will, and will cause each
of its Subsidiaries to, comply with the terms and covenants set forth below
(except as otherwise provided in a Board Resolution duly amending this Indenture
as provided herein).
SECTION 6.1 Payment of Principal and Interest.
---------------------------------
The Issuer will duly and punctually pay the principal of and interest
and other amounts (including any Additional Amounts) on the Notes in accordance
with the terms of the Notes and this Indenture.
SECTION 6.2 Performance Under the Transaction Documents.
-------------------------------------------
The Issuer will agree to duly and punctually perform, comply with and
observe all obligations and agreements to be performed by it under the terms of
the Transaction Documents.
SECTION 6.3 Maintenance of Corporate Existence.
----------------------------------
The Issuer will, and will cause each of its Subsidiaries to, (a)
maintain in effect its corporate existence and all registrations necessary
therefor except as otherwise permitted by Section 6.15 and (b) take all
reasonable actions to maintain all rights, privileges, titles to property,
franchises, concessions and the like necessary or desirable in the normal
conduct of its business, activities or operations; provided, however, that this
Section 6.3 shall not require the
40
Issuer to maintain or cause any Subsidiary thereof to maintain any such right,
privilege, title to property or franchise or to preserve the corporate existence
of any Subsidiary, if, the Board of Directors of the Issuer shall determine in
good faith that (i) the maintenance or preservation thereof is no longer
necessary or desirable in the conduct of the business of the Issuer and that
(ii) the failure to do so does not, and will not, have a Material Adverse
Effect.
SECTION 6.4 Maintenance of Properties. The Issuer will, and will cause
-------------------------
each of its Subsidiaries to, maintain and keep in good condition, repair and
working order (normal wear and tear excepted) all its properties used or useful
in the conduct of its or its Subsidiaries businesses and will cause, and will
cause each of its Subsidiaries to cause, to be made all necessary repairs,
renewals, replacements and improvements thereof, all as in the judgment of the
Issuer shall be necessary properly to conduct at all times the business carried
on in connection therewith; provided that this Section 6.4 shall not require the
Issuer to maintain or cause any Subsidiary thereof to maintain any of such
properties if the Board of Directors of the Issuer shall determine in good
faith, that (i) the maintenance thereof is no longer necessary or desirable in
the conduct of the business of the Issuer and (ii) the failure to maintain such
properties does not, and will not, have a Material Adverse Effect.
SECTION 6.5 Compliance with Laws. The Issuer will comply, and will
--------------------
cause its Subsidiaries to comply, at all times in all material respects with all
applicable Laws (including, without limitation, Environmental Laws) of any
Governmental Authority having jurisdiction over the Issuer, the Issuer's
business or any of the transactions contemplated herein, except where the
failure so to comply would not have a Material Adverse Effect.
SECTION 6.6 Maintenance of Government Approvals. The Issuer will, and
-----------------------------------
will cause its Subsidiaries to, duly obtain and maintain in full force and
effect all approvals, consents or licenses of any Governmental Authority which
are necessary under the laws of Brazil, the Cayman Islands or any other
jurisdiction having jurisdiction over the Issuer or the Issuer's business, or
the transactions contemplated herein in order for the Issuer to conduct its
business or for the Issuer to perform its obligations under this Indenture, the
Notes each of the Transaction Documents or the validity or enforceability
thereof except, in the case of such approval, consent or license relating to the
conduct of the Issuer's business, where the failure so to comply would not have
a Material Adverse Effect.
SECTION 6.7 Payments of Taxes and Other Claims. The Issuer will, and
----------------------------------
will cause each of its Subsidiaries to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all Taxes, assessments
and governmental charges levied or imposed upon the Issuer or such Subsidiary,
as the case may be, and (ii) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Issuer or
such Subsidiary, as the case may be; provided, however, that this Section 6.7
shall not require the Issuer to, or cause any Subsidiary thereof to, pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
and, if appropriate, by appropriate legal proceedings or where the failure to do
so would not have a Material Adverse Effect.
SECTION 6.8 Maintenance of Insurance. The Issuer will, and will cause
------------------------
each of its Subsidiaries to, maintain insurance with insurance companies that
the Issuer reasonably
41
believes to be financially sound in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and owning or
operating properties or facilities similar to those owned or operated by the
Issuer or its Subsidiaries, as the case may be, in the same general locations in
which the Issuer and its Subsidiaries own or operate their properties or
facilities, except when the failure to do so would not have a Material Adverse
Effect.
SECTION 6.9 Maintenance of Books and Records.The Issuer shall, and
--------------------------------
shall cause each of its Subsidiaries to, maintain books, accounts and records in
accordance with U.S. GAAP.
SECTION 6.10 Maintenance of Office or Agency.So long as any of the
-------------------------------
Notes are Outstanding, the Issuer will maintain in the Borough of Manhattan, the
City of New York, an office or agency where notices to and demands upon the
Issuer in respect of this Indenture and the Notes may be served, and the Issuer
will not change the designation of such office without prior notice to the
Trustee and designation of a replacement office in the same general location. If
at any time the Issuer shall fail to maintain any required office or agency or
shall fail to furnish the Trustee with the address thereof, all presentations,
surrenders, notices and demands may be served at the Corporate Trust Office and
the Issuer hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 6.11 Ranking.The Issuer shall ensure that the Notes will at
-------
all times constitute general senior, unsecured and unsubordinated obligations of
the Issuer and will rank pari passu, without any preferences among themselves,
with all other present and future unsecured and unsubordinated obligations of
the Issuer (other than obligations preferred by statute or by operation of law).
SECTION 6.12 Use of Proceeds.The Issuer will use the proceeds from the
---------------
offer and sale of the Notes principally to finance the purchase of oil imports
and to repay short-term indebtedness.
SECTION 6.13 Notice of Defaults and Events of Default.The Issuer will
----------------------------------------
give notice to the Trustee, as soon as is practicable and in any event within
ten calendar days after the Issuer becomes aware or should reasonably become
aware of the occurrence, of any Default or any Event of Default, accompanied by
an Officer's Certificate of the Issuer setting forth the details thereof and
stating what action that the Issuer proposes to take with respect thereto.
SECTION 6.14 Notice of Expropriation or Inconvertibility Events. The
--------------------------------------------------
Issuer will give notice to the Trustee, as soon as is practicable and in any
event within five calendar days after the Issuer becomes aware of any action
taken by the Brazilian government that could give rise to an Expropriation Event
or an Inconvertibility Event. The Issuer shall request that the Standby
Purchaser give similar notice to the Trustee.
SECTION 6.15 Limitation on Consolidation, Merger, Sale or Conveyance
-------------------------------------------------------
(a) The Issuer will not, in one or a series of transactions, consolidate or
amalgamate with or merge into any corporation or convey, lease or transfer
substantially all of its properties, assets or revenues to any Person (other
than a direct or indirect Subsidiary of the Standby Purchaser) or
42
permit any Person (other than a direct or indirect Subsidiary of the Issuer) to
merge with or into it, unless:
(i) either the Issuer is the continuing entity or the Person (the
"Successor Company") formed by such consolidation or into which the Issuer
-----------------
is merged or that acquired or leased such property or assets of the Issuer
will be a corporation organized and validly existing under the laws of the
Cayman Islands and shall assume (jointly and severally with the Issuer
unless the Issuer shall have ceased to exist as a result of such merger,
consolidation or amalgamation), by a supplemental indenture (the form and
substance of which shall be previously approved by the Trustee), all of the
Issuer's obligations under this Indenture;
(ii) the Successor Company (jointly and severally with the Issuer
unless the Issuer shall have ceased to exist as part of such merger,
consolidation or amalgamation) agrees to indemnify each Noteholder against
any tax, assessment or governmental charge thereafter imposed on such
Noteholder solely as a consequence of such consolidation, merger,
conveyance, transfer or lease with respect to the payment of principal of,
or interest on, the Notes;
(iii) immediately after giving effect to such transaction, no Event of
Default and no Default has occurred and is continuing;
(iv) the Issuer has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel each stating that such merger consolidation,
sale, transfer or other conveyance or disposition and the amendment to this
Indenture complies with the terms of this Indenture and that all conditions
precedent provided for herein and relating to such transaction have been
complied with; and
(iv) the Issuer has delivered notice of any such transaction to
Moody's (which notice shall contain a description of such merger,
consolidation or conveyance).
(b) Notwithstanding anything to the contrary in the foregoing, so long
as no Default or Event of Default shall have occurred and be continuing at the
time of such proposed transaction or would result therefrom:
(i) the Issuer may merge, amalgamate or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or substantially all of
its properties, assets or revenues to a direct or indirect Subsidiary of
the Issuer or the Standby Purchaser in cases when the Issuer is the
surviving entity in such transaction and such transaction would not have a
material adverse effect on the Issuer and its Subsidiaries taken as a
whole, it being understood that if the Issuer is not the surviving entity,
the Issuer shall be required to comply with the requirements set forth in
the previous paragraph; or
(ii) any direct or indirect Subsidiary of the Issuer may merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose
of assets to, any person (other than the Issuer or any of its Subsidiaries
or Affiliates) in cases when such transaction would not have a material
adverse effect on the Issuer and its Subsidiaries taken as a whole; or
43
(iii) any direct or indirect Subsidiary of the Issuer may merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose
of assets to, any direct or indirect Subsidiary of the Issuer or the
Standby Purchaser; or
(iv) any direct or indirect Subsidiary of the Issuer may liquidate or
dissolve if the Issuer determines in good faith that such liquidation or
dissolution is in the best interests of the Standby Purchaser, and would
not result in a material adverse effect on the Issuer and its Subsidiaries
taken as a whole and if such liquidation or dissolution is part of a
corporate reorganization of the Issuer or the Standby Purchaser.
SECTION 6.16 Negative Pledge. So long as any Note remains outstanding,
---------------
the Issuer will not create or permit any Lien, other than a Permitted Lien, on
any of the Issuer's assets to secure (a) any of the Issuer's Indebtedness or (b)
the Indebtedness of any other Person, unless the Issuer contemporaneously
creates or permits such Lien to secure equally and ratably the Issuer's
obligations under the Notes and this Indenture or the Issuer provides such other
security for the Notes as is duly approved by a resolution of the Noteholders in
accordance with Article X. In addition, the Issuer will not allow any of the
Issuer's Subsidiaries to create or permit any Lien, other than a Permitted Lien,
on any of its assets to secure (a) any of the Issuer's Indebtedness, (b) any of
its own Indebtedness or (c) the Indebtedness of any other Person, unless it
contemporaneously creates or permits the Lien to secure equally and ratably the
Issuer's obligations under the Notes and this Indenture or the Issuer provides
such other security for the Notes as is duly approved by a resolution of the
Noteholders.
SECTION 6.17 Transactions with Affiliates. The Issuer shall not, and
----------------------------
shall not permit any of its Subsidiaries to, enter into or carry out (or agree
to enter into or carry out) any transaction or arrangement with any Affiliate,
except for any transaction or arrangement entered into or carried out on terms
no less favorable to the Issuer or such Subsidiary than those which could have
been obtained on an arm's-length basis with a Person that is not an Affiliate;
provided, however, that the foregoing shall not apply to transactions (a)
between the Issuer and the Standby Purchaser or (b) between or among the Issuer,
the Standby Purchaser and any of their respective Subsidiaries not involving any
other Person so long as consummation of any such transaction will not have a
Material Adverse Effect.
SECTION 6.18 Provision of Financial Statements and Reports. (i) In the
---------------------------------------------
event that the Issuer shall file any financial statements or reports with the
SEC or shall publish or otherwise make such statements or reports publicly
available in Brazil, the United States or elsewhere, the Issuer shall furnish a
copy of such statements or reports to the Trustee within 15 calendar days of the
date of filing or the date the information is otherwise made publicly available,
as the case may be.
(ii) The Issuer will provide, together with each of the financial
statements delivered pursuant to clause (i) above, an Officer's Certificate
stating (A) that a review of the Issuer's activities has been made during the
period covered by such financial statements with a view to determining whether
the Issuer has kept, observed, performed and fulfilled its covenants and
agreements under this Indenture; (B) a schedule specifying the amount of
Indebtedness of the type described under clause (c) of "Permitted Lien" under
Section 1.1 and the value of property securing such Indebtedness, in each case
as of the last day covered by the financial
44
statements specified above; and (C) that no Default or Event of Default has
occurred during such period or, if one or more have actually occurred,
specifying all such events and what actions have been taken and will be taken
with respect to such Event of Default.
(iii) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 6.19 Further Actions. The Issuer will, at its own cost and
---------------
expense, and will cause its Subsidiaries to, at their own cost and expense, take
any action, satisfy any condition or take any action (including the obtaining or
effecting of any necessary consent, approval, authorization, exemption, filing,
license, order, recording or registration) at any time required, in the
reasonable opinion of the Trustee, in accordance with applicable Laws (as
applicable) to be taken, fulfilled or done in order (a) to perfect and maintain
the validity, effectiveness and priority of any Liens created hereunder (b) to
enable the Issuer to lawfully enter into, exercise its rights and perform and
comply with its obligations under the Notes, this Indenture and each of the
other Transaction Documents, as the case may be, (c) to ensure that the Issuer's
obligations under the Notes, this Indenture and each of the other Transaction
Documents are legally binding and enforceable, (d) to make the Notes, this
Indenture and each of the other Transaction Documents admissible in evidence in
the courts of the State of New York, Brazil or the Cayman Islands and (e) to
enable the Trustee to exercise and enforce its rights under and carry out the
terms, provisions and purposes of this Indenture and each of the other
Transaction Documents (f) to take any and all action necessary to preserve the
enforceability of, and maintain the Trustee's rights hereunder and the other
Transaction Documents, including, without limitation, refraining from taking any
action that reasonably can be expected to have an adverse effect on the
enforceability of, or any of the Trustee's rights under, this Indenture and the
other Transaction Documents, and (g) to assist the Trustee in the Trustee's
performance of its obligations under this Indenture and the other Transaction
Documents; provided, however, that the Issuer shall not be required to take any
action contemplated herein if it promptly (and in no event later than two
Business Days after any such request) provides to the Trustee a written Opinion
of Counsel reasonably acceptable to the Trustee specifying that the failure to
take such action or satisfy such condition would not have an adverse effect on
the rights of the Noteholders under this Indenture or any other Transaction
Documents.
SECTION 6.20 Available Information. For so long as the Notes are
---------------------
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Issuer will furnish to any Noteholder, or to any prospective
purchaser designated by such Noteholder, upon request of such Noteholder,
financial and other information described in paragraph (d)(4) of Rule 144A with
respect to the Issuer and the Standby Purchaser to the extent required in order
to permit such Noteholder to comply with Rule 144A (as amended from time to time
and including any successor provision) with respect to any resale of such Note,
unless, at the time of such request, the Issuer is subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act or is exempt
from such requirements pursuant to Rule 12g3-2(b) under the Exchange Act (as
amended from time to time and including any successor provision) and no such
Information about the Issuer is otherwise required pursuant to Rule 144A.
45
SECTION 6.21 Appointment to Fill a Vacancy in Office of Trustee. The
--------------------------------------------------
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint in the manner provided in Section 8.8, a successor Trustee, so that
there shall at all times be a Trustee with respect to the Notes.
SECTION 6.22 Payments and Paying Agents(a) The Issuer will, at least
--------------------------
one Business Day prior to each due date of the principal of or interest on the
Notes or other amounts (including Additional Amounts), deposit with the Trustee
a sum sufficient to pay such principal, interest or other amounts (including
Additional Amounts) so becoming due.
(b) Whenever the Issuer shall appoint a Paying Agent other than the
Trustee with respect to the Notes, it will cause such Paying Agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section:
(i) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on any Notes (whether such sums have
been paid to it by or on behalf of the Issuer or by any other obligor on the
Notes) in trust for the benefit of the Noteholders or of the Trustee;
(ii) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Notes) to make any payment of the principal of
or interest on any Notes (including Additional Amounts) and any other payments
to be made by or on behalf of the Issuer under this Indenture or the Notes when
the same shall be due and payable; and
(iii) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the continuance of
the failure referred to in clause (ii) above.
(c) The Trustee shall arrange with all such Paying Agents for the
payment, from funds furnished by the Issuer to the Trustee pursuant to this
Indenture, of the principal of and interest and other amounts due on the Notes
(including Additional Amounts) and of the compensation of such Paying Agents for
their services as such.
(d) If the Issuer shall act as its own Paying Agent with respect to
any Notes, it will, on or before each due date of the principal of or interest
on such Notes, set aside, segregate and hold in trust for the benefit of the
Noteholders of such Notes a sum sufficient to pay such principal or interest
(including Additional Amounts) so becoming due. The Issuer will promptly notify
the Trustee of any failure to take action.
(e) Anything in this Section 6.22 to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to any Notes hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for such Notes by the
Issuer or any Paying Agent hereunder, as required by this Section, such sums to
be held by the Trustee upon the trusts herein contained.
(f) Anything in this Section 6.22, to the contrary notwithstanding,
the agreements to hold sums in trust as provided in this Section are subject to
the provisions of Section 12.3.
46
(g) The Issuer agrees to indemnify the Noteholders against any failure
on the part of any Paying Agent to pay, in accordance with the terms hereof, any
sum due in respect of the Notes on the applicable Payment Date.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 Events of Default. The following events shall each be an
----------------
"Event of Default" under the terms of the Notes and this Indenture:
----------------
(a) The Issuer shall fail to make any payment in respect of principal
on any of the Notes whether on the Expected Maturity Date (as the same may be
extended as permitted hereunder), upon redemption or prior to the Final Maturity
Date or otherwise in accordance with the terms of the Notes and this Indenture,
and the Trustee shall not have otherwise received such amounts from the Standby
Purchaser under the Standby Purchase Agreement, from a drawing under the Letter
of Credit, from amounts on deposit in the Reserve Account or otherwise by the
Payment Date therefor;
(b) The Issuer shall fail to make any payment in respect of any
interest or other amounts due on or with respect to the Notes (including
Additional Amounts, if any) in accordance with the terms of the Notes and this
Indenture, non-payment of which shall continue for a period of 30 calendar days
and the Trustee shall not have otherwise received such amounts from the Standby
Purchaser under the Standby Purchase Agreement, from a drawing under the Letter
of Credit, from amounts on deposit in the Reserve Account or otherwise by the
end of such 30 calendar day period;
(c) Any representation or warranty made by either the Issuer or the
Standby Purchaser in any of the Transaction Documents shall prove to be
incorrect as of the time when the same shall have been made and as a result
thereof there is a Material Adverse Effect;
(d) The Issuer or the Standby Purchaser shall fail to perform, observe
or comply with any term, covenant, agreement or obligation contained in any of
the Transaction Documents and such failure (other than any failure to make any
payment under the Standby Purchase Agreement for which there is no cure) is
either incapable of remedy or continues for a period of 60 calendar days
(inclusive of any time frame contained in any such term, covenant, agreement or
obligation for compliance thereunder) after written notice of such failure has
been received by the Issuer or the Standby Purchaser from the Trustee;
(e) (i) The acceleration of any Indebtedness of the Issuer, the
Standby Purchaser or any Material Subsidiary thereof in accordance with the
terms of such Indebtedness, unless such acceleration is at the option of the
Issuer, the Standby Purchaser or the relevant Material Subsidiary thereof; (ii)
the Issuer, the Standby Purchaser or any Material Subsidiary thereof shall fail
to pay any Indebtedness when due or, as the case may be, beyond any applicable
grace period specified in the underlying transaction document or (iii) the
Issuer, the Standby Purchaser or any Material Subsidiary thereof shall fail to
pay when due any amount
47
payable by it under any Guarantee for, or indemnity in respect of, the
Indebtedness of any other Person except in the case of both clause (ii) and
(iii) above where the failure to pay such Indebtedness is the result of an
Inconvertibility Event or an Expropriation Event; provided, however, that the
aggregate amount of any such Indebtedness falling within (i), (ii) and (iii)
above (as to which the time for payment has not been extended by the relevant
obligees) equals or exceeds U.S.$50,000,000 (or its equivalent in another
currency);
(f) One or more final and non-appealable judgments or final decrees
are entered against the Issuer, the Standby Purchaser or any Material Subsidiary
thereof involving in the aggregate a liability (not theretofore paid or
reimbursed by insurance) of U.S.$50,000,000 (or its equivalent in another
currency) or more, and all such judgments or final decrees shall not have been
vacated, discharged or stayed within 120 calendar days after the rendering
thereof;
(g) The Issuer, the Standby Purchaser or any Material Subsidiary
thereof stops payment of, or is generally unable to pay, its debts as and when
they become due, or the Issuer, the Standby Purchaser or any Material Subsidiary
thereof ceases or threatens to cease to carry on its business except (i) as is
otherwise expressly provided under this Indenture or the Standby Purchase
Agreement, (ii) in the case of a winding-up, dissolution or liquidation for the
purpose of and followed by a consolidation, merger, conveyance or transfer or,
in the case of a Material Subsidiary, whereby the undertaking, business and
assets of such Material Subsidiary are transferred to or otherwise vested in the
Issuer, the Standby Purchaser or any Material Subsidiary thereof, as applicable,
or the terms of which shall have been approved by a resolution of a meeting of
the Noteholders or (iii) in the case of a voluntary winding-up, dissolution or
liquidation of a Material Subsidiary where there are surplus assets in such
Material Subsidiary attributable to the Issuer or the Standby Purchaser, as
applicable, or any other Material Subsidiary, and such surplus assets are
distributed to the Issuer or the Standby Purchaser, as applicable, or such
Material Subsidiary;
(h) Proceedings are initiated against the Issuer, the Standby
Purchaser or any Material Subsidiary thereof under any applicable bankruptcy,
reorganization, insolvency, moratorium or intervention law or law with similar
effect, or under any other law for the relief of, or relating to, debtors, and
any such proceeding is not dismissed or stayed within 90 days after the entering
of such proceeding, or an administrator, receiver, trustee, manager, fiduciary,
statutory manager, intervener or assignee for the benefit of creditors (or other
similar official) is appointed to take possession or control of all or any
material part of the undertaking, property, assets or revenues of the Issuer,
the Standby Purchaser or any Material Subsidiary thereof;
(i) The Issuer, the Standby Purchaser or any Material Subsidiary
thereof initiates or consents to judicial, administrative or other proceedings
relating to it under any applicable bankruptcy, reorganization, insolvency,
moratorium or intervention law or law with similar effect, or under any other
law for the relief of, or relating to, debtors, or makes or enters into a
conveyance, assignment, arrangement or composition with or for the benefit of
its creditors, or appoints or applies for the appointment of an administrator,
receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee
for the benefit of creditors (or other similar official) to take possession or
control of the whole or any material part of its undertaking, property, assets
or revenues, or takes any judicial, administrative or other similar proceeding
under any law for a readjustment or deferment of its Indebtedness or any part of
it;
48
(j) Either (i) an effective resolution is passed for, or any
authorized action is taken by the Standby Purchaser or any Subsidiary thereof or
any shareholder, director or executive officer thereof or by any Governmental
Authority, directing the winding-up, dissolution or liquidation of the Issuer,
the Standby Purchaser or any Material Subsidiary thereof or (ii) the Issuer, the
Standby Purchaser or any Material Subsidiary thereof ceases or threatens to
cease to carry on all or a material part of its businesses or operations (other
than, in the case of both (i) and (ii), in any of the circumstances referred to
as exceptions in paragraph (g) above);
(k) A moratorium is agreed or declared in respect of, or affecting all
or any part of, the Indebtedness of the Issuer, the Standby Purchaser or any
Material Subsidiary thereof (other than any moratorium imposed by the government
of Brazil that amounts to an Expropriation Event or an Inconvertibility Event);
(l) Any event occurs that under the laws of any relevant jurisdiction
has substantially the same effect as any of the events referred to in any of
paragraphs (g), (h), (i), (j) or (k).
(m) Any action, condition or thing (including the obtaining or
effecting of any necessary consent, approval, authorization, exemption, filing,
license, order, recording or registration) at any time required to be taken,
fulfilled or done in order to (i) enable the Issuer and the Standby Purchaser
lawfully to enter into, exercise their rights and perform and comply with their
obligations under the Transaction Documents to which they are a party, (ii)
ensure that those obligations under such Transaction Documents are legally
binding and enforceable or (iii) make the Transaction Documents admissible in
evidence in the courts of Brazil and the Cayman Islands that is not taken,
fulfilled or done within ten calendar days after notice thereof has been given
to the Issuer or the Standby Purchaser, as applicable, by the Trustee or once
any such authorization or consent has been given, is removed, withdrawn,
modified, withheld or otherwise fails to remain valid and subsisting in full
force and effect;
(n) Any of the Transaction Documents (other than a Letter of Credit
which is replaced, cancelled or otherwise terminated in accordance with the
terms of Section 5.4 of this Indenture), or any part thereof, shall cease to be
in full force and effect or binding and enforceable against the Issuer or the
Standby Purchaser, it becomes unlawful for the Issuer or the Standby Purchaser
to perform any material obligation under any Transaction Document to which it is
a party, or the Issuer or the Standby Purchaser shall contest the enforceability
of any Transaction Document or deny that it has liability under any Transaction
Document to which it is party;
(o) The Standby Purchaser fails to retain at least 51% direct or
indirect ownership of the outstanding voting and economic interests (equity or
otherwise) of and in the Issuer;
(p) Other than in connection with Trustee allowing for the expiration
thereof in accordance with Section 5.4(d), the Letter of Credit is cancelled or
terminated by the issuer thereof in accordance with its terms or otherwise
ceases to be in full force and effect, binding and enforceable against the
issuer thereof unless a substantially equivalent Letter of Credit or U.S.
49
dollars in an amount equivalent to the amount then available under any such
Letter of Credit immediately prior to its cancellation is promptly provided to
the Trustee.
SECTION 7.2 Acceleration of Maturity; Rescission and Annulment. (a) If
--------------------------------------------------
an Event of Default described in paragraphs (a), (b), (c), (d), (e), (f), (m),
(n), (o) or (p) of Section 7.1 occurs and is continuing with respect to the
Notes, then and in each and every such case, unless the principal of all the
Notes shall have already become due and payable, the Trustee, upon the request
of Noteholders holding not less than 25% in aggregate principal amount of the
Notes then Outstanding hereunder, by notice in writing to the Issuer (and to the
Trustee if given by the Noteholders), may declare the principal amount of all
the Notes then Outstanding and all accrued interest thereon to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Notes
contained to the contrary notwithstanding. If an Event of Default described in
paragraphs (g), (h), (i), (j), (k) or (l) of Section 7.1 occurs and is
continuing, then and in each and every such case, the principal amount of the
Notes then Outstanding and all accrued interest and other amounts thereon shall,
without any notice to the Issuer or any other act on the part of the Trustee or
any Noteholder, become and be accelerated and immediately due and payable,
anything in this Indenture or in the Notes contained to the contrary
notwithstanding.
(b) At any time after a declaration of acceleration has been made with
respect to the Notes and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Majority Noteholders, by written notice to the Issuer and the Trustee, may
receive and annul such declaration and its consequences if:
(i) there shall have been paid to or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on the Notes;
(B) the principal of any Notes that have become due other than by
such declaration of acceleration and interest thereon at the
respective rates provided in the Notes for late payments of principal;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the respective rates
provided in the Notes for late payments of interest; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements, and advances of the
Trustee, its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been
cured or waived as provided in Section 7.4.
(c) No such rescission shall affect any subsequent default or impair
any right consequent thereon.
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(d) In the event of any acceleration of the Notes under Section
7.2(a), the Trustee shall, at the request of Noteholders holding not less than
25% in aggregate principal amount of the Notes then Outstanding hereunder, apply
all amounts on deposit in the Reserve Account to satisfy the obligations of the
Issuer hereunder. Other than in connection with this Section 7.2(d) and any
withdrawal provided for with or in connection with the provisions of Section 5.3
hereof, the Trustee shall not withdraw or apply any amounts on deposit in the
Reserve Account for any other purpose.
SECTION 7.3 Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Noteholder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Noteholders, as the case may be. No waiver of any Event of
Default, whether by the Trustee or by the Noteholders, shall extend to or shall
affect any subsequent Event of Default or shall impair any remedy or right
consequent thereon.
SECTION 7.4 Waiver of Past Defaults. (a) The Majority Noteholders may
-----------------------
on behalf of the Noteholders of all the Notes waive any past default hereunder
and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of or interest on any Note, or
(ii) in respect of a covenant or provision hereof which under Article
VI cannot be modified or amended without the consent of the Noteholder of
each Outstanding Note.
(b) Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 7.5 Trustee May File Proofs of Claim; Appointment of Trustee
---------------------------------------------------------
as Attorney-in-Fact in Judicial Proceedings. (a) In case of pendency in any
- -------------------------------------------
receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization
or any other judicial proceedings relating to the Issuer or any obligor on the
Notes or the property of the Issuer or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Issuer for
payment of overdue principal or interest) shall be entitled and empowered by
intervention in such proceedings or otherwise to:
(i) file and prove a claim for the whole amount of principal and
interest owed and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary and advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and all other amounts due to the Trustee under Section 8.5) and of the
Noteholders allowed in such judicial proceeding; and
51
(ii) collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same.
(b) In any such event, any receiver, assignee, trustee, liquidator or
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Noteholder to make such payment to the Trustee and in the
event that the Trustee shall consent to the making of such payments directly to
the Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 8.5.
(c) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Noteholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Noteholder thereof, or to authorize the Trustee to
vote in respect of the claim of any Noteholder in any such proceeding.
SECTION 7.6 Trustee May Enforce Claims Without Possession of Notes.
------------------------------------------------------
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, be for the ratable benefit of the
Noteholders.
SECTION 7.7 Application of Money Collected. Any money collected by the
------------------------------
Trustee with respect to the Notes shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Notes and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.5
hereof.
SECOND: To the payment of the amounts then due and unpaid upon the
Notes for principal and interest, in respect of which or for the benefit of
which such money has been collected, ratably among the Notes, without preference
or priority of any kind, according to the amounts due and payable on such Notes
for principal and interest, respectively.
SECTION 7.8 Limitation on Suits. No Noteholder shall have any right to
-------------------
institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Notes or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Noteholder has previously given written notice to the Trustee
of a continuing Event of Default with respect to Notes;
(b) the Noteholders of not less than 25% in aggregate principal amount
of the then Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
52
(c) such Noteholder or Noteholders have offered to the Trustee
adequate security and indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 calendar days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Majority Noteholders;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Noteholder, or to obtain or to seek to obtain priority or preference over any
other such Noteholder or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and proportionate benefit of all
the Noteholders.
SECTION 7.9 Unconditional Right of Noteholders to Receive Principal
-------------------------------------------------------
and Interest and Other Amounts. Notwithstanding any other provisions in this
- ------------------------------
Indenture, the Noteholders shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest and other
amounts (including Additional Amounts) on Notes on the respective maturities
expressed in such Note (or, in the case of redemption or repayment, on the
Optional Redemption Date or the Expected Maturity Date, as the same may be
extended as permitted hereunder, as the case may be) and to institute suit for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such Noteholder.
SECTION 7.10 Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Noteholder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, then and in every such case the Issuer, the Trustee and the Noteholders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and the Noteholders shall continue as though no such
proceeding had been instituted.
SECTION 7.11 Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided in the last paragraph of Section 2.13, no right or remedy herein
conferred upon or reserved to the Trustee or to the Noteholders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 7.12 Control by Noteholders. Subject to Section 316(a) of the
----------------------
Trust Indenture Act, the Majority Noteholders shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Notes; provided that:
(a) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not
53
lawfully be taken or would conflict with this Indenture or if the Trustee
in good faith shall, by a Responsible Officer, determine that the
proceedings so directed would involve it in personal liability or it
reasonably believes it will not adequately be indemnified against the
costs, expenses and liabilities which might be incurred by it in complying
with the request or be unjustly prejudicial to the Noteholders not taking
part in such direction; and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 7.13 Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Noteholder by its acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit in the manner and to the extent provided in the
Trust Indenture Act of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but neither the provisions of this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such
assessment in any suit instituted by the Trustee, in any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than 10% in
principal amount of then Outstanding Notes, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of or interest on
any Note on or after the respective maturities expressed in such Note (or, in
the case of redemption or repayment, on or after the Optional Redemption Date or
the Expected Maturity Date, as the same may be extended as provided hereunder).
SECTION 7.14 Waiver of Stay or Extension Laws. The Issuer covenants
--------------------------------
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.1 Certain Rights and Duties of Trustee. (a) The Trustee,
------------------------------------
prior to the occurrence of an Event of Default and after curing or waiving all
Events of Default that may have occurred, undertakes to perform only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee. In case an
Event of Default has occurred (which has not been cured or waived) and prior to
the receipt of instructions (if any) from the Noteholders, the Trustee shall
exercise such
54
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) Except as otherwise provided in Section 315 of the Trust Indenture
Act:
(i) The Trustee may conclusively rely and shall be fully protected in
acting, or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Note, debenture or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties; provided that in the case of any such certificates or opinions
which by the provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture
but need not verify the contents thereof.
(ii) Any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors shall be evidenced to the Trustee
by a copy thereof certified by the secretary or an assistant secretary of
the Issuer.
(iii) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture, and may refuse to perform
any duty or exercise any such rights or powers unless it shall have been
offered reasonable security or indemnity to its satisfaction against the
costs, expenses and liabilities which may reasonably be incurred therein or
thereby.
(iv) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture (provided that the Trustee's conduct does not constitute
negligence or willful misconduct) or with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
from Noteholders holding a sufficient percentage of Notes to give such
direction as permitted by this Indenture.
(v) Subject to Section 8.1(a), the Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, Note, debenture or other paper or
document with respect to the Notes unless requested in writing so to do by
the Majority Noteholders then Outstanding, provided that, if the payment
within a reasonable time to the Trustee of the reasonable costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require indemnity reasonably satisfactory to it against
such expenses or liabilities as a condition to such proceeding. The
reasonable expense of every such investigation shall be paid by the Issuer
or, if paid by the Trustee, shall be repaid by the Issuer upon demand.
55
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney
custodian or nominee appointed with due care by it hereunder.
(vii) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts
or the action or failure to act by such Responsible Officers was
unreasonable.
(viii) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with any
direction of the Issuer given under this Indenture, as long as the
Trustee's conduct does not constitute negligence or willful misconduct.
(ix) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order,
approval or other paper or document.
(x) Subject to Section 5.3(d), the Trustee shall have no obligation to
invest and reinvest any cash held pursuant to this Indenture in the absence
of timely and specific written investment direction from the Issuer. In no
event shall the Trustee be liable for the selection of investments or for
investment losses incurred thereon. The Trustee shall have no liability in
respect of losses incurred as a result of the liquidation of any investment
prior to its stated maturity or the failure of the Issuer to provide timely
written investment direction.
(xi) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture;
provided however that the Trustee shall be deemed to have actual knowledge
of the existence of any Default or Event of Default which has arisen
pursuant to the provisions of Sections 7.1(a) or (b).
(xii) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder and under the Standby Purchase Agreement,
the Registration Rights Agreement and each Letter of Credit, and each
agent, custodian and other Person employed to act hereunder; and
(xiii) The Trustee may request that the Issuer deliver an Officer's
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person
authorized to sign an Officer's Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
56
(c) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be a reasonable ground for
believing that the repayment of such funds or indemnity satisfactory to it
against such liability is not reasonably assured to it.
(d) The Trustee may reasonably request information, including an
Officer's Certificate, from time to time, as necessary or appropriate in order
to ascertain compliance with the requirements of this Indenture and the Notes
and may consult with counsel and the advice or Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such advice or
opinion of counsel.
(e) If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 8.2 Trustee Not Responsible for Recitals, etc. The recitals
-----------------------------------------
contained herein and in the Notes, except the Trustee's certificate of
authentication, shall be taken as the statements of the Issuer and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Issuer of any of the Notes or of the proceeds of such Notes.
SECTION 8.3 Trustee and Others May Hold Notes. (a) The Trustee or any
---------------------------------
Paying Agent or Note Registrar or any other Authorized Agent of the Trustee, or
any Affiliate thereof, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Issuer, or any other
obligor on the Notes with the same rights it would have if it were not Trustee,
Paying Agent, Note Registrar or such other Authorized Agent.
(b) The Trustee is subject to Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. If the Trustee resigns or is removed, such Trustee shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 8.4 Moneys Held by Trustee or Paying Agent. . (a) Whenever the
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Issuer shall have one or more Paying Agents, the Issuer will make the payments
contemplated by Sections 6.1 and 6.2 by depositing with a Paying Agent an amount
sufficient to make such payments, such amount to be held in trust by the Paying
Agent for the benefit of the Persons entitled thereto, and (unless such Paying
Agent is the Trustee) will promptly notify the Trustee of its action or failure
so to act. Each Paying Agent other than the Trustee shall execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, to the effect that such
Paying Agent will:
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(i) hold all amounts held by it for the making of payments in respect
of the Notes in trust for the benefit of the Persons entitled thereto until
such amounts shall be paid to such Persons or otherwise disposed of as
herein provided;
(ii) provide the Trustee notice of any Default by the Issuer in the
making of payments in respect of the Notes; and
(iii) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all amounts so
held in trust by such Paying Agent.
(b) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay or
deliver, or direct any Paying Agent to pay or deliver, to the Trustee all
amounts held in trust by the Issuer or such Paying Agent, such amounts to be
held by the Trustee upon the same trusts as those upon which such amounts were
held by the Issuer or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
(c) Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuer in trust for the making of any payment in respect of any Note
and remaining unclaimed for two years after such payment has become due and
payable (if then held by the Trustee or any Paying Agent) shall be paid or
returned to the Issuer upon request by the Issuer or (if then held by the
Issuer) shall be discharged from such trust; and Noteholders shall thereafter,
as unsecured general creditors, seek recourse only to the Issuer for payment
thereof (unless an applicable abandoned property law designates another Person),
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer, as trustee thereof, shall thereupon
cease; provided that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Issuer provide notice to
Noteholders in the manner set forth in Section 14.4, that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the latest date of mailing, any unclaimed balance of such money
then remaining will be repaid or redelivered to the Issuer.
SECTION 8.5 Compensation of the Trustee and its Lien. (a) The Issuer
----------------------------------------
covenants and agrees to pay to the Trustee (all references in this Section 8.5
to the Trustee shall be deemed to apply to the Trustee in its capacities as
Trustee, Paying Agent and Note Registrar) from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall be agreed to from time to time by the Issuer and the
Trustee and which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as herein otherwise
expressly provided, the Issuer will pay or reimburse the Trustee upon its
request for all reasonable expenses and disbursements incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the reasonable expenses, advances and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense or disbursement as may arise from its gross negligence
or bad faith. The Issuer also covenants and agrees to indemnify the Trustee and
any predecessor Trustee for, defend, and hold
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harmless the Trustee and any predecessor Trustee and their officers, directors,
employees, representatives and agents from and against, any loss, liability,
claim, damage or expense incurred without gross negligence or bad faith on the
part of the Trustee or any of its employees, officers or agents, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder and this Indenture, including liability which the Trustee may incur as
a result of failure to withhold, pay or report Taxes and including the costs and
expenses of defending itself against any claim or liability in the premises and
including, without limitation, any loss, liability, claim, damage or expense
relating to or arising out of any Environmental Law. The obligations of the
Issuer under this Section shall constitute additional Indebtedness hereunder. In
no event shall the Trustee be liable for special, indirect or consequential loss
or damages whatsoever (including, but not limited to lost profits), even if the
Trustee has been advised of the likelihood of such damage and regardless of the
form of action taken.
(b) The obligations of the Issuer under this Section 8.5 shall survive
payment in full of the Notes, the resignation or removal of the Trustee and the
termination of this Indenture.
(c) When the Trustee or any predecessor Trustee incurs expenses or
renders services in connection with the performance of its obligations hereunder
(including its services as Paying Agent, if so appointed by the Issuer) after an
Event of Default occurs, the expenses and compensation for such services are
intended to constitute expenses of administration under applicable bankruptcy,
insolvency or other similar United States Federal or state law to the extent
provided in Section 503(b)(5) of the Federal Bankruptcy Code.
(d) The Trustee shall have a lien prior to the Notes as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 8.5, except with respect to funds
held in trust for the benefit of the holders of particular Notes.
SECTION 8.6 Right of Trustee to Rely on Officer's Certificates and
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Opinions of Counsel. Before the Trustee acts or refrains from acting with
- ------------------
respect to any matter contemplated by this Indenture, it may require an
Officer's Certificate of the Issuer or an Opinion of Counsel, which shall
conform to the provisions of Section 14.1. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such
certificate or opinion as set forth in Section 8.1(b)(v).
SECTION 8.7 Persons Eligible for Appointment as Trustee. There shall
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at all times be a Trustee hereunder which shall at all times be a bank which
complies with the eligibility requirements of the Trust Indenture Act, having a
combined capital and surplus of at least $100,000,000 and have a long term
unsecured debt rating of at least "A2" by Moody's. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of a supervising or examining authority referred to in Section 310(a) of the
Trust Indenture Act, then for the purposes of this Section 8.7, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with this Section 8.7, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.8.
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SECTION 8.8 Resignation and Removal of Trustee; Appointment of
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Successor. (a) The Trustee, or any trustee or trustees hereafter appointed, may
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at any time resign by giving written notice to the Issuer and by giving notice
of such resignation to the Noteholders in the manner provided in Section 14.4.
(b) In case at any time any of the following shall occur with respect
to any Notes:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act, after written request thereafter by the
Issuer or by any Noteholder who has been a bona fide Noteholder for at least six
months,
(ii) the Trustee shall cease to be eligible under Section 8.7 and
shall fail to resign after written request therefore by the Issuer or by any
Noteholder, or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (A) the Issuer may remove the Trustee, and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, or (B) subject to the requirements of Section
315(e) of the Trust Indenture Act, any Noteholder who has been a bona fide
Noteholder for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor Trustee.
(c) The Majority Noteholders at the time Outstanding may at any time
remove the Trustee and appoint a successor Trustee by delivering to the Trustee
so removed, to the successor Trustee so appointed and to the Issuer, the
evidence provided for in Section 8.1 of the action taken by the Noteholders,
provided that unless a Default or Event of Default shall have occurred and be
continuing, the Issuer shall consent (such consent not to be unreasonably
withheld).
(d) If the Trustee shall resign, be removed, or become incapable of
acting or if a vacancy shall occur in the office of Trustee with respect to the
Notes for any cause, the Issuer shall promptly appoint a successor Trustee or
Trustees by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
former Trustee and one copy to the successor Trustee. If no successor Trustee
shall have been so appointed and have accepted such appointment pursuant to
Section 8.9 within 30 days after the mailing of such notice of resignation or
removal, the former Trustee may, at the Issuer's expense, petition any court of
competent jurisdiction for the appointment of a successor Trustee, or any
Noteholder who has been a bona fide Noteholder for at least six months may,
subject to the requirements of Section 315(e) of the Trust Indenture Act, on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
Trustee.
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(e) Any resignation or removal of the Trustee and any appointment of a
successor Trustee pursuant to this Section shall become effective only upon
acceptance of appointment by the successor Trustee as provided in Section 8.9.
SECTION 8.9 Acceptance of Appointment by Successor Trustee (a) Any
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successor Trustee appointed under Section 8.8 shall execute, acknowledge and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts, duties and obligations of its predecessor Trustee hereunder,
with like effect as if originally named as Trustee herein; but, nevertheless, on
the written request of the Issuer or of the successor Trustee, the Trustee
ceasing to act shall, upon payment of any such amounts then due it pursuant to
the provisions of Section 8.5, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the Trustee so
ceasing to act, and shall assign, transfer and deliver to such successor Trustee
all property and money as may be held by such Trustee ceasing to act. Upon
request of any such successor Trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to Section 8.5.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.9 unless at the time of such acceptance such successor Trustee shall
be eligible under Section 8.7.
(c) Upon acceptance of appointment by a successor Trustee, the Issuer
shall give notice of the succession of such Trustee hereunder to the Noteholders
in the manner provided in Section 14.4. If the Issuer fails to give such notice
within 10 days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be given at the expense of the
Issuer.
SECTION 8.10 Merger, Conversion or Consolidation of Trustee. (a) Any
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Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto; provided that
such successor Trustee shall be qualified under the Trust Indenture Act and
eligible under the provisions of Section 8.7 hereof and Section 310(a) of the
Trust Indenture Act.
(b) In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such Notes
so authenticated and, in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
trustee, and in such cases such certificate shall have the same force under the
Notes and under this Indenture as if authenticated by such predecessor Trustee;
provided that the certificate of the Trustee shall have
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provided that the right to adopt the certificate of authentication of any
predecessor Trustee or the authenticated Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 8.11 Maintenance of Offices and Agencies. (a) There shall at
-----------------------------------
all times be maintained in the Borough of Manhattan, The City of New York, and
in such other Places of Payment, if any, as shall be specified for the Notes, an
office or agency where Notes may be presented or surrendered for registration of
transfer or exchange and for payment of principal and interest. Such office
shall be initially located at the address set forth in Section 14.3 hereto.
Notices and demands to or upon the Trustee in respect of the Notes or this
Indenture may be served at the Corporate Trust Office. Written notice of the
location of each of such other office or agency and of any change of location
thereof shall be given by the Issuer to the Trustee and by the Trustee to the
Noteholders in the manner specified in Section 14.4. In the event that no such
office or agency shall be maintained or no such notice of location or of change
of location shall be given, presentations, surrenders and demands may be made
and notices may be served at the Corporate Trust Office.
(b) There shall at all times be a Note Registrar and a Paying Agent
hereunder. So long as the Notes are listed on the Luxembourg Stock Exchange
there shall at all times be maintained a Luxembourg Paying Agent and Luxembourg
Transfer Agent in Luxembourg. In addition, at any time when any Notes remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents with
respect to the Notes which shall be authorized to act on behalf of the Trustee
to authenticate Notes issued upon original issuance, exchange, registration of
transfer or redemption thereof or pursuant to Section 2.12, and Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder (it being understood that wherever reference is made in this Indenture
to the authentication and delivery of Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent).
(c) Any Authorized Agent shall be a bank or trust company and (except
for any Luxembourg Paying Agent) shall be a Person (i) organized and doing
business under the laws of the United States or any State thereof, (ii) with a
combined capital and surplus of at least $50,000,000, (iii) authorized under
such laws to exercise corporate trust powers, subject to supervision by United
States Federal or state authorities and (iv) be rated at least A2 by Moody's. If
such Authorized Agent publishes reports of its condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.11, the combined capital and
surplus of such Authorized Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authorized Agent shall cease to be eligible in accordance with the
provisions of this Section 8.11, such Authorized Agent shall resign immediately
in the manner and with the effect specified in this Section 8.11.
(d) The Trustee at its office specified in the first paragraph of this
Indenture, is hereby appointed as Paying Agent and Note Registrar hereunder.
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(e) Any Paying Agent (other than the Trustee) or any Luxembourg Paying
Agent from time to time appointed hereunder shall execute and deliver to the
Trustee an instrument in which said Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 8.11, that such Paying Agent or
Luxembourg Paying Agent will:
(i) hold all sums held by it for the payment of principal of and
interest on Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(ii) give the Trustee within five days thereafter notice of any
Default by any obligor upon the Notes in the making of any such payment of
principal or interest; and
(iii) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
(f) Notwithstanding any other provision of this Indenture, any payment
required to be made to or received or held by the Trustee may, to the extent
authorized by written instructions of the Trustee, be made to or received or
held by a Paying Agent in the Borough of Manhattan, The City of New York, for
the account of the Trustee.
(g) Any Person into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, consolidation or conversion to which any Authorized Agent shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of any Authorized Agent, shall be the successor of such
Authorized Agent hereunder, if such successor Person is otherwise eligible under
this Section 8.11, without the execution or filing of any paper or any further
act on the part of the parties hereto or such Authorized Agent or such successor
Person.
(h) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee and the Issuer. The Issuer may, and at the
request of the Trustee shall, at any time, terminate the agency of any
Authorized Agent by giving written notice of such termination to the Authorized
Agent and to the Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section 8.11 (when, in either case, no other Authorized
Agent performing the functions of such Authorized Agent shall have been
appointed), the Issuer shall promptly appoint one or more qualified successor
Authorized Agents approved by the Trustee to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section 8.11. The Issuer shall give
written notice of any such appointment to all Noteholders as their names and
addresses appear on the Note Register.
(i) The Issuer initially appoints The Bank of New York as Note
Registrar and Paying Agent and Kredietbank S.A. Luxembourgeoise as a paying
agent (the "Luxembourg Paying Agent") in connection with the Notes. The Issuer
-----------------------
will appoint the Kredietbank S.A. Luxembourgeoise as transfer agent (the
"Luxembourg Transfer Agent") in the event the Notes are issued in definitive
-------------------------
registered form.
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(j) So long as the Notes are listed on the Luxembourg Stock Exchange
and the rules of such stock exchange so require, the Issuer will maintain a
paying agent and transfer agent in Luxembourg. If the Notes are listed on any
other securities exchange, the Issuer will satisfy any requirement at such
securities exchange as to paying agents. So long as the Notes are listed on the
Luxembourg Stock Exchange, any change in the Luxembourg Paying Agent or
Luxembourg Transfer Agent shall be notified to holders of the Notes by
publication of notices to the holders of the Securities in accordance with the
provisions of Section 14.4 of this Indenture.
(k) Copies of all written information provided by the Issuer
hereunder, including without limitation, all such information and financial
statements provided to the Trustee under Section 6 hereof, shall be sent by
first class mail to the Luxembourg Paying Agent at its offices at 43, Boulevard
Royal, L-2955 Luxembourg, or such other address as shall be designated by the
Luxembourg Paying Agent to the Trustee and the Issuer.
SECTION 8.12 Reports by Trustee. On or before March 15 in every year,
------------------
so long as any Notes are Outstanding hereunder, the Trustee shall transmit to
the Noteholders specified in Section 313(a) of the Trust Indenture Act a brief
report, dated as of the preceding December 31, to the extent required by Section
313 of the Trust Indenture Act in accordance with the procedures set forth in
said Section. A copy of such report at the time of its mailing to Noteholders
shall be filed with the SEC and each stock exchange, if any, on which the Notes
are listed. The Issuer shall promptly notify the Trustee if the Notes become
listed on any stock exchange or any de-listing thereof, and the Trustee shall
comply with Section 313(d) of the Trust Indenture Act.
SECTION 8.13 Trustee Risk. None of the provisions contained in this
------------
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable ground
for believing that the repayment of such funds or liability is not reasonably
assured to it. Whether or not expressly provided herein, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to Section 8.1 and the requirements
of the Trust Indenture Act.
SECTION 8.14 Appointment of Co-Trustee. (a) It is the purpose of this
-------------------------
Indenture that there shall be no violation of any law of any jurisdiction,
denying or restricting the right of banking corporations or associations to
transact business as Trustee in such jurisdiction. It is recognized that in case
of litigation under this Indenture or any Transaction Document, and in
particular in case of the enforcement of any such document on default, or in
case the Trustee deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the powers, rights or remedies herein
granted to the Trustee or hold title to the properties, in trust, as herein
granted, or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that the Trustee appoint an additional
individual or institution as a separate or co-trustee. The following provisions
of this Section 8.14 are adopted to these ends.
(b) In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised
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by or vested in or conveyed to the Trustee with respect thereto shall be
exercisable by and vested in such separate or co-trustee but only to the extent
necessary to enable such separate or co-trustee to exercise such powers, rights
and remedies, and every covenant and obligation necessary to the exercise
thereof by such separate or co-trustee shall run to and be enforceable by either
of them.
(c) Should any instrument in writing be required by the separate
trustee or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer. In case any
separate trustee or co-trustee, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties, rights,
powers, trusts, duties and obligations of such separate trustee or co-trustee,
so far as permitted by law, shall vest in and be exercised by the Trustee until
the appointment of a new trustee or successor to such separate trustee or
co-trustee.
(d) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to any
property or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder;
(iii) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(iv) each co-trustee appointed hereunder shall at all times be a bank
that complies with the eligibility requirements set forth in Section 310(a)
of the Trust Indenture Act, have a combined capital and surplus of
U.S.$100,000,000, have its corporate trust office in the Borough of
Manhattan, the City of New York and have a long-term unsecured debt rating
of at least "A2" by Moody's. If such bank publishes reports of condition at
least annually, pursuant to law or to the requirements of a supervising or
examining authority referred to in Section 301(a) of the Trust Indenture
Act, then for the purposes of this subsection, the combined capital and
surplus of such bank shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
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SECTION 8.15 Knowledge of Default. If a Default or Event of Default
--------------------
occurs and is continuing, and if a Responsible Officer of the Trustee has actual
knowledge thereof, as determined pursuant to Section 8.1(b)(xi) hereof, the
Trustee shall transmit to each Noteholder, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, notice of the Default or
Event of Default by the earlier of 90 days after it occurs or 30 days after the
Trustee has knowledge of such Default or Event of Default. Except in the case of
a Default or Event of Default in payment of principal, interest or other amounts
due on any Note, the Trustee may withhold the notice if and so long as its Board
of Directors in good faith determines that withholding the notice is in the
interests of the Noteholders.
ARTICLE IX
CONCERNING THE HOLDERS
SECTION 9.1 Acts of Noteholders. (a) Any request, demand,
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authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders (collectively, an "Act" of
---
such Noteholders, which term also shall refer to the instruments or record
evidencing or embodying the same) may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Noteholders in
person or by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Noteholders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Noteholders duly called and held in accordance with the provisions of Article X,
or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record, or both, are delivered to the Trustee, and
when it is specifically required herein, to the Issuer. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 8.1)
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section 9.1. The record of any meeting of Noteholders shall be
proved in the manner provided in Section 10.5.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to such
officer the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer, and where such execution
is by an officer of a corporation or association or of the Issuer, on behalf of
such corporation, association or the Issuer, such certificate or affidavit shall
also constitute sufficient proof of such Person's authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of the Notes, the principal amount and serial
numbers of Notes held by any Person, and the date or dates of holding the same,
shall be proved by the Note Register and the Trustee shall not be affected by
notice to the contrary.
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(d) Any Act by any Noteholder (i) shall bind the holder of such Note
and every future Noteholder of the same Note and the Noteholder of every Note
issued upon the transfer thereof or the exchange therefore or in lieu thereof,
whether or not notation of such action is made upon such Note and whether or not
such Noteholder has given its consent (unless required under this Indenture) to
such act or was present at any duly held meeting, and (ii) shall be valid
notwithstanding that such Act is taken in connection with the transfer of such
Note to any other Person, including the Issuer or any Affiliate thereof.
(e) Until such time as written instruments shall have been delivered
with respect to the requisite percentage of principal amount of Notes for the
Act contemplated by such instruments, any such instrument executed and delivered
by or on behalf of a Noteholder may be revoked with respect to any or all of
such Notes by written notice by such Noteholder (or its duly appointed agent) or
any subsequent Noteholder (or its duly appointed agent), proven in the manner in
which such instrument was proven unless such instrument is by its terms
expressly irrevocable.
(f) Notes authenticated and delivered after any Act of Noteholders
may, and shall if required by the Issuer, bear a notation in form approved by
the Issuer as to any action taken by such Act of Noteholders. If the Issuer
shall so determine, new Notes so modified as to conform, in the opinion of the
Issuer, to such action, may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
(g) The Issuer may, in the circumstances permitted under the Trust
Indenture Act, but shall not be obligated to, fix a record date for the purpose
of determining the Noteholders entitled to sign any instrument evidencing or
embodying an Act of the Noteholders. If a record date is fixed, those Persons
who were Noteholders at such record date (or their duly appointed agents), and
only those Persons, shall be entitled to sign any such instrument evidencing or
embodying an Act of Noteholders or to revoke any such instrument previously
signed, whether or not such Persons continue to be Noteholders after such record
date. No such instrument shall be valid or effective if signed more than 90 days
after such record date, and may be revoked as provided in paragraph (e) above.
(h) The Initial Notes and the Exchange Notes shall vote and consent
together on all matters as one class, and none of the Notes, and no tranche of
Notes, shall have the right to vote or consent as a separate class on any
matter.
SECTION 9.2 Notes Owned by Issuer and Affiliates Deemed Not
-----------------------------------------------
Outstanding. In determining whether the holders of the requisite aggregate
- -----------
principal amount of Notes have concurred in any request, demand, authorization,
direction, notice, consent and waiver or other act under this Indenture, Notes
which are owned by the Issuer, the Standby Purchaser, or any Affiliate of either
of the foregoing shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Notes for which a Responsible Officer of the Trustee has
received written notice of such ownership as conclusively evidenced by the Note
Register shall be so disregarded. The Issuer shall furnish the Trustee, upon its
reasonable request, with a list of such Affiliates. Subject to the provisions of
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Section 315 of the Trust Indenture Act, in case of a dispute as to such right,
any decision by the Trustee, taken upon the advice of counsel, shall be full
protection to the Trustee.
ARTICLE X
HOLDERS' MEETINGS
SECTION 10.1 Purposes for Which Noteholders' Meetings May Be Called. A
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meeting of Noteholders may be called at any time and from time to time pursuant
to this Article X for any of the following purposes:
(a) to give any notice to the Issuer or to the Trustee, or to give any
directions to the Trustee, or to waive or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Noteholders pursuant to Article VII;
(b) to remove the Trustee and appoint a successor Trustee pursuant to
Article VIII;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 11.1; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Notes under
any other provision of this Indenture or under applicable law.
SECTION 10.2 Trustee, Issuer and Noteholders May Call Meeting. The
------------------------------------------------
Trustee, the Issuer and the Noteholders may call a meeting of the Noteholders at
any time by giving notice thereof as provided in Section 14.4. In case the
Issuer, pursuant to a Board Resolution, or the holders of at least 10% in
aggregate principal amount of the Notes then Outstanding shall have requested
the Trustee to call a meeting of Noteholders, by written request setting forth
in general terms the action proposed to be taken at the meeting, and the Trustee
shall not have made the mailing of the notice of such meeting within 20 days
after receipt of such request, then the Issuer or such Noteholders in the amount
above specified may determine the time and the place in the Borough of
Manhattan, The City of New York, for such meeting and may call such meeting to
take any action authorized in Section 10.1 by giving notice thereof as provided
in Section 14.4. Notice of every meeting of the Noteholders shall set forth the
time and place of such meeting and, in general terms, the action proposed to be
taken at such meeting and shall be given not less than 30 nor more than 60 days
prior to the date fixed for the meeting.
SECTION 10.3 Persons Entitled to Vote at Meeting. To be entitled to
-----------------------------------
vote at any meeting of Noteholders a person shall be (a) Noteholder of one or
more Notes with respect to which such meeting is being held or (b) a person
appointed by an instrument in writing as proxy for the Noteholder or Noteholders
of such Notes by a Noteholder of one or more such Notes. The only persons who
shall be entitled to be present or to speak at any meeting of Noteholders shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Issuer and its counsel.
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SECTION 10.4 Determination of Voting Rights; Conduct and Adjournment
-------------------------------------------------------
of Meeting. (a) Notwithstanding any other provisions of this Indenture, the
- ----------
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Noteholders, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 9.1 or other proof.
Except as otherwise permitted or required by any such regulations, the holding
of Notes shall be proved in the manner specified in Section 9.1 and the
appointment of any proxy shall be proved in the manner specified in said Section
9.1 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or firm satisfactory to the
Trustee.
(b) The Issuer or the Noteholders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Noteholders of a
majority in aggregate principal amount of the Notes represented at the meeting
and entitled to vote.
(c) Subject to the provisions of Section 9.2, at any meeting each
Noteholder proxy shall be entitled to one vote for each U.S.$1,000 principal
amount of Notes held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Note challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Notes held by him or instruments in writing as aforesaid duly designating him as
the person to vote on behalf of other Noteholders. Any meeting of Noteholders
duly called pursuant to Section 10.2 may be adjourned from time to time, and the
meeting may be held as so adjourned upon notice as set forth in Section 10.2. At
any meeting, the presence of persons holding or representing Notes with respect
to which such meeting is being held in an aggregate principal amount sufficient
to take action upon the business for the transaction of which such meeting was
called shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Notes represented
at the meeting may adjourn such meeting with the same effect, for all intents
and purposes, as though a quorum had been present.
SECTION 10.5 Counting Votes and Recording Action of Meeting. The vote
----------------------------------------------
upon any resolution submitted to any meeting of Noteholders shall be by written
ballots on which shall be subscribed the signatures of the Noteholders or of
their representatives by proxy and the serial numbers and principal amounts of
the Notes held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Noteholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting.
The record shall show the serial numbers of the Notes voting in favor of or
against any resolution. The record
69
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Issuer and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1 Supplemental Indenture with Consent of Noteholders. (a)
--------------------------------------------------
With the consent of the Majority Noteholders, the Issuer may, and the Trustee,
subject to Sections 11.3 and 11.4, shall, enter into an indenture or indentures
supplemental hereto for the purpose of amending the provisions of this
Indenture; provided, however, that without the consent of the Noteholder of each
Outstanding Note directly affected thereby, no such supplemental indenture shall
(with respect to any Notes held by non-consenting Noteholder of such Notes)
cause any of the following:
(i) change the maturity of any payment of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon, or change the method of computing
the amount of principal thereof or interest payable thereon on any date or
change any place of payment where, or the coin or currency in which, the
principal of or interest (including Additional Amounts) on any Note is
payable, or impair the right of the Noteholders to institute suit for the
enforcement of any such payment on or after the maturity or the date of
payment, as the case may be, thereof (or, in the case of redemption or
repayment, on or after the Optional Redemption Date or the Payment Date, as
the case may be); or
(ii) reduce the percentage in aggregate principal amount of the
Outstanding Notes, the consent of whose holders is required for any such
supplemental indenture, or the consent of whose holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences, provided for in this Indenture;
or
(iii) modify any of the provisions of this Section or Section 7.4,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of each Noteholder.
(b) Upon receipt by the Trustee of Board Resolutions and such other
documentation as the Trustee may reasonably require and upon the filing with the
Trustee of evidence of the Act of said Noteholders, the Trustee shall join in
the execution of such supplemental indenture or other instrument, as the case
may be, subject to the provisions of Sections 11.3 and 11.4.
(c) It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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(d) The Trustee may execute and deliver any amendment to the Standby
Purchase Agreement or grant any waiver thereof with the consent of the majority
Noteholders.
SECTION 11.2 Supplemental Indentures Without Consent of Noteholders.
------------------------------------------------------
Notwithstanding anything to the contrary provided for in Section 11.1 hereof the
Issuer, at any time and from time to time, may, without the consent of any
Noteholders, enter into one or more indentures supplemental hereto in form
satisfactory to the Trustee for any of the following purposes:
(a) to establish the form and terms of Notes permitted by Sections 2.1
and 2.5; or
(b) to evidence the succession of another entity to the Issuer and the
assumption by any such successor of the covenants of the Issuer herein
contained; or
(c) to evidence the succession of a new Trustee hereunder pursuant to
Section 8.9; or
(d) to add further covenants of the Issuer and any restrictions,
conditions or provisions as the Board of Directors shall consider to be for
the protection of the Noteholders, and to make the occurrence, or the
occurrence and continuance of a default in any such covenants,
restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; or
(e) to convey, transfer and assign to the Trustee properties or assets
to secure the Notes, and to correct or amplify the description of any
property at any time subject to this Indenture or the Transaction Documents
or to assure, convey and confirm unto the Trustee any property subject or
required to be subject to this Indenture or the Transaction Documents; or
(f) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to qualify it under the Trust Indenture
Act, if necessary, or under any similar United States federal statute
hereafter enacted, and to add to this Indenture such other provisions as
may be expressly permitted by the Trust Indenture Act, excluding, however,
the provisions referred to in Section 316(a)(2) of the Trust Indenture Act
as in effect at the date as of which this instrument was executed or any
corresponding provision in any similar United States federal statute
hereafter enacted; or
(g) to permit or facilitate the issuance of Notes in uncertificated
form; or
(h) to cure any ambiguity, to correct or supplement any provision in
this Indenture or the Transaction Documents that may be defective or
inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interest of
the Noteholders in any material respect.
SECTION 11.3 Execution of Supplemental Indentures. In executing
------------------------------------
supplemental indentures permitted by this Article XI or the modifications
thereby of the trusts
71
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 8.1) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture and all conditions precedent to the execution of
such supplemental indenture have been met. The Trustee may, but shall not be
obligated to, enter into any supplemental indentures which affect the Trustee's
own rights, duties or immunities under this Indenture, the Notes or otherwise.
SECTION 11.4 Effect of Supplemental Indentures. Upon the execution of
---------------------------------
any supplemental indenture under this Article XI, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Noteholder theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 11.5 Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article XI shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 11.6 Reference in Notes to Supplemental Indentures. Notes
---------------------------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article XI may, and shall if required by the Issuer, bear a
notation in form approved by the Issuer as to any matter provided for in such
supplemental indenture; and, in such case, suitable notation may be made upon
Outstanding Notes after proper presentation and demand. If the Issuer shall so
determine, new Notes so modified as to conform, in the opinion of the Issuer and
the Trustee, to any such supplemental indenture may be prepared and executed by
the Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE XII
SATISFACTION AND DISCHARGE
SECTION 12.1 Satisfaction and Discharge of Notes. (a) The Notes shall,
-----------------------------------
on or prior to the Payment Date with respect to the repayment of principal
thereof, be deemed to have been paid for all purposes of this Indenture, and the
entire indebtedness of the Issuer in respect of this Indenture and the Notes
shall be deemed to have been satisfied and discharged, upon satisfaction of the
following conditions:
(i) the Issuer shall have irrevocably deposited or caused to be
deposited in the Payment Account with the Trustee, in trust, money in an
amount which shall be sufficient to pay when due the principal of and
interest due and to become due on the Notes on or prior to the Payment Date
with respect to the repayment of principal thereof or upon redemption;
(ii) if any such deposit of money shall have been made prior to the
Payment Date with respect to the repayment of principal or the Optional
Redemption Date of such
72
Notes, the Issuer shall have delivered to the Trustee an Issuer Order
stating that such money shall be held by the Trustee, in trust;
(iii) in the case of redemption of Notes, the Issuer Order with
respect to such redemption pursuant to Article IV shall have been given to
the Trustee; and
(iv) there shall have been delivered to the Trustee an Opinion of
Counsel to the effect that such satisfaction and discharge of the
indebtedness of the Issuer with respect to the Notes shall not be deemed to
be, or result in, a taxable event with respect to the Noteholders for
purposes of United States federal income taxation unless the Trustee shall
have received documentary evidence that each Noteholder either is not
subject to, or is exempt from, United States federal income taxation.
(b) Upon satisfaction of the aforesaid conditions with respect to the
Notes, the Trustee shall, upon receipt of an Issuer Order, execute proper
instruments acknowledging satisfaction and discharge of the Notes.
(c) In the event that Notes which shall be deemed to have been paid as
provided in this Section 12.1 do not mature and are not to be redeemed within
the 60-day period commencing on the date of the deposit with the Trustee of
moneys, the Issuer shall, as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such Notes, to such Noteholders
to the effect that such Notes are deemed to have been paid and the circumstances
thereof.
(d) Notwithstanding the satisfaction and discharge of any Notes as
aforesaid, the obligations of the Issuer and the Trustee in respect of such
Notes under Sections 2.12, 2.13, 2.14 and 8.5 and this Article XII shall
survive.
SECTION 12.2 Satisfaction and Discharge of Indenture. (a) This
---------------------------------------
Indenture shall upon the Issuer Order cease to be of further effect (except as
hereinafter expressly provided), and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when:
(i) either:
(x) all Notes theretofore authenticated and delivered (other than
(A) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.13 and (B) Notes deemed
to have been paid in accordance with Section 12.1) have been delivered
to the Trustee for cancellation; or
(y) all Notes not theretofore delivered to the Trustee for
cancellation shall be deemed to have been paid in accordance with
Section 12.1;
(ii) all other sums due and payable hereunder have been paid; and
73
(iii) the Issuer has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
(b) Upon satisfaction of the aforesaid conditions, the Trustee shall,
upon receipt of an Issuer Order, execute proper instruments acknowledging
satisfaction and discharge of this Indenture and take all other action
reasonably requested by the Issuer to evidence the termination of any and all
Liens created by or with respect to this Indenture.
(c) Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Issuer and the Trustee under Sections 2.12,
2.13, 2.14 and 8.5 and this Article XII shall survive.
(d) Upon satisfaction and discharge of this Indenture as provided in
this Section 12.2, the Trustee shall assign, transfer and turn over to or upon
the order of the Issuer, any and all money, securities and other property then
held by the Trustee for the benefit of the Noteholders, other than money
deposited with the Trustee pursuant to Section 12.1(a) and interest and other
amounts earned or received thereon.
SECTION 12.3 Application of Trust Money. The money deposited with the
--------------------------
Trustee pursuant to Section 12.1 shall not be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment of the principal of and
interest on the Notes or portions of principal amount thereof in respect of
which such deposit was made.
ARTICLE XIII
DEFEASANCE
SECTION 13.1 Issuer's Option to Effect Defeasance or Covenant
------------------------------------------------
Defeasance. The Issuer may at its option by a Board Resolution, at any time,
- ----------
elect to have either Section 13.2 or Section 13.3 applied to the Notes upon
compliance with the conditions set forth below in this Article XIII.
SECTION 13.2 Defeasance and Discharge. Upon the Issuer's exercise of
-------------------------
the option provided in Section 13.1 to have this Section 13.2 applied to all the
Notes, the Issuer shall be deemed to have been discharged from its obligations
with respect to the Notes Outstanding on the date the conditions in Section 13.4
are satisfied (a "Defeasance"). For this purpose, such Defeasance means that the
----------
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Notes and to have satisfied all its other obligations under
the Notes and this Indenture, including the provisions of Article XII (and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same) except for the following, which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of such Noteholders
to receive, solely from the trust fund described in Section 13.4 and as more
fully set forth in such Section, payments in respect of the principal of and
interest (including any Additional Amounts) on the Notes when such payments are
due, (b) the Issuer's obligations with respect to such Notes under Sections
2.12, 2.13, 2.14, 2.15, 2.16, 6.10, 8.4, (c) the rights, powers,
74
trusts, duties and immunities of the Trustee hereunder and (d) this Article XIII
and the Issuer's obligations to the Trustee under Section 8.5. Subject to
compliance with this Article XIII, the Issuer may exercise its option under this
Section 13.2 notwithstanding the prior exercise of its option under Section
13.3.
SECTION 13.3 Covenant Defeasance. Upon the Issuer's exercise of the
-------------------
option provided in Section 13.1 to have this Section 13.3 applied to the Notes,
(i) the Issuer shall be released from its obligations under Article VI with
respect to the Notes and (ii) the occurrence of an event with respect to such
Notes specified in Article VII (except with respect to Section 7.1(a), (b), (g),
(h), (i), (j) and (k)), shall not be deemed to be an Event of Default on and
after the date the conditions set forth in Section 13.4 are satisfied (a
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that,
-------------------
with respect to the Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or clause, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or clause or by reason of any reference in
any such Section or clause to any other provision herein or in any other
document, but the remainder of this Indenture shall be unaffected thereby.
SECTION 13.4 Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of either Section 13.2 or
Section 13.3 to the then Outstanding Notes:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee in trust for the purpose of making the following
payments specifically pledged as security for, and dedicated solely to, the
benefit of the Noteholders, (i) U.S. dollars, or (ii) U.S. government
obligations or (iii) a combination thereof, in an amount which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any
payment, money in an amount, sufficient, in the opinion of an internationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of and each installment of interest (including
Additional Amounts) on the Notes on the Final Maturity Date of such principal of
or installment of interest (including Additional Amounts) in accordance with the
terms of this Indenture and the Notes.
(b) In the case of an election under Section 13.2, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer
has received from, or there has been published by, the U.S. Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable United States federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Noteholders will not recognize gain or loss for United States federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount, in the same
manner and at the same time as would have been the case if such deposit,
defeasance and discharge had not occurred.
(c) In the case of an election under Section 13.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Noteholders will not recognize gain or
75
loss for United States federal income tax purposes as a result of such deposit
and Covenant Defeasance and will be subject to United States federal income tax
on the same amount, in the same manner and at the same time as would have been
the case if such deposit and Covenant Defeasance had not occurred.
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 7.1 (i) and
(j) inclusive are concerned, at any time during the period ending on the 121st
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(e) Such Defeasance or Covenant Defeasance shall not (i) cause the
Trustee to have a conflicting interest for the purposes of the Trust Indenture
Act with respect to any securities of the Issuer or (ii) result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Issuer is a party or by which it is bound.
(f) The Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that payment of amounts deposited in trust with the
Trustee as provided in clause (a) hereof will not be subject to future taxes,
duties, fines, penalties, assessments or other governmental charges imposed,
levied, collected, withheld or assessed by, within or on behalf of a Taxing
Jurisdiction, except to the extent that Additional Amounts in respect thereof
shall have been deposited in trust with the Trustee as provided in clause (a)
hereof.
(g) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all conditions precedent
provided for relating to either the Defeasance under Section 13.2 or the
Covenant Defeasance under Section 13.3, as the case may be, have been complied
with.
(h) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company as defined in
the Investment Company Act of 1940, as amended.
SECTION 13.5 Deposited Money and U.S. Government Obligations to Be
-----------------------------------------------------
Held in Trust; Other Miscellaneous Provisions. (a) Subject to the provisions of
- ---------------------------------------------
Section 8.4, all money and U.S. government obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 13.4 in respect of the
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer acting as its own Paying Agent)
as the Trustee may determine, to the Noteholders, of all sums due and to become
due thereon in respect of principal and interest, but such money need not be
segregated from other funds except to the extent required by law.
(b) The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the money or the U.S.
government obligations deposited pursuant to Section 13.4 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Noteholders.
(c) Anything in this Article XIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon request any
money or U.S. government
76
obligations held by it as provided in Section 13.4 which, in the opinion of an
internationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
SECTION 13.6 Reinstatement. If the Trustee or the Paying Agent is
-------------
unable to apply any money in accordance with Section 13.2 or 13.3 by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations of
the Issuer under this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article XIII until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 13.2 or 13.3; provided, however, that if the Issuer makes any
payment of principal of or interest on or Additional Amounts in respect of the
Notes following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Noteholders to receive such payment from the
money held by the Trustee or the Paying Agent.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Compliance Certificates and Opinions. (a) Except as
------------------------------------
otherwise expressly provided by this Indenture, upon any application or request
by the Issuer to the Trustee that the Trustee take any action under any
provision of this Indenture, the Issuer shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and, if so requested by the Trustee, an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any particular application or request
as to which the furnishing of documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, such
examination or investigation has been made as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
77
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
(c) With the delivery of this Indenture, the Issuer is furnishing to
the Trustee, and from time to time thereafter may furnish, an Officer's
Certificate identifying and certifying the incumbency and specimen signatures of
the Authorized Representatives. Until the Trustee receives a subsequent
Officer's Certificate, the Trustee shall be entitled to conclusively rely on the
last such Officer's Certificate delivered to it for purposes of determining the
Authorized Representatives of the Issuer.
SECTION 14.2 Form of Documents Delivered to Trustee. (a) In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
(b) Any certificate or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows or has reason to
believe that the certificate or opinion or representations with respect to the
matters upon which such officer's certificate or opinion is based are erroneous
or otherwise inaccurate. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate of, or
representations by, an Authorized Representative of the Issuer stating that the
information with respect to such factual matters is in the possession of the
Issuer, unless such counsel knows that the certificate or representations with
respect to such matters are erroneous.
(c) Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
(d) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 14.3 Notices, etc. to Trustee. Any Act of Noteholders or other
------------------------
document required or permitted by this Indenture shall be deemed to have been
made or given, as applicable, only if such notice is in writing and delivered
personally, or by registered or certified first-class United States mail with
postage prepaid and return receipt requested, or made, given or furnished in
writing by confirmed telecopy or facsimile transmission, or by prepaid courier
service to the appropriate party as set forth below:
Trustee: The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Department
Telecopier No.: (212) 328-7318
78
Telephone No.: (212) 328-7529
Issuer: Petrobras International Finance Company, Ltd.
Avenida Republica do Chile, 65, 20035-900
Rio de Janeiro, RJ, Brazil
Attention : Servio Tulio Tinoco
Head of Trade Finance & Foreign Exchange
Telephone : (55-21) 2534-4477
Telecopier :(55-21) 2534-4278
Copies of all notices received or given by the Trustee hereunder or under each
other Transaction Document as well as any drafts of any amendments thereto shall
be delivered concurrently with their delivery or promptly after their receipt,
as applicable, (but in any event within one Business Day) hereunder to Moody's
at:
Moody's Investor Services
99 Church Street
New York, New York 10007
Attention: Latin American ABS Monitoring
Any party may change its address by giving notice of such change in the manner
set forth herein. Any notice given to a party by mail or by courier shall be
deemed delivered upon receipt thereof (unless the party refuses to accept
delivery, in which case the party shall be deemed to have accepted delivery upon
presentation). Any notice given to a party by telecopy or facsimile transmission
shall be deemed effective on the date it is actually sent to the intended
recipient by confirmed telecopy or facsimile transmission to the telecopier
number specified above.
SECTION 14.4 Notices to Noteholders; Waiver. Where this Indenture
------------------------------
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Noteholder, at its address as
it appears in the Note Register, not later than the latest date, if any, and not
earlier than the earliest date, if any, prescribed for the giving of such
notice. So long as the Notes are listed on the Luxembourg Stock Exchange and so
long as it is required by the rules of the Luxembourg Stock Exchange,
publication of any notice to the Noteholders shall be made in English in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxemburger Wort) or, if such publication is not practicable, in a
leading English language daily newspaper with general circulation in Europe,
such newspaper being published on each business day in morning editions, whether
or not it shall be published in Saturday, Sunday or holiday editions. Where this
Indenture provides for notice, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Noteholders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver. In any case where notice to Noteholders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Noteholder shall affect the sufficiency of such notice with respect
to other
79
Noteholders, and any notice that is mailed in the manner herein provided shall
be conclusively presumed to have been duly given.
SECTION 14.5 Conflict with Trust Indenture Act. This Indenture is
---------------------------------
subject to the provisions of the Trust Indenture Act, that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions, which are incorporated by reference in and made a part of this
Indenture. If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
As used within the Trust Indenture Act, the following terms have the
following meanings:
"indenture securities" means the Notes,
"indenture security holder" means a Noteholder,
"indenture to be qualified" means this Indenture,
"indenture trustee" or "institutional trustee" means the Trustee, and
"obligor" on the indenture securities means the Issuer.
All other Trust Indenture Act terms used in this Indenture that are
defined (i) by the Trust Indenture Act, (ii) by Trust Indenture Act reference to
another statute or (iii) by SEC rule under the Trust Indenture Act have the
meanings assigned to them by such definitions.
SECTION 14.6 Effect of Headings and Table of Contents. The Article and
----------------------------------------
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 14.7 Successors and Assigns. All covenants, agreements,
----------------------
representations and warranties in this Indenture by the Trustee and the Issuer
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not.
SECTION 14.8 Severability Clause. In case any provision in this
-------------------
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 14.9 Benefits of Indenture. Nothing in this Indenture or in
---------------------
the Notes, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Noteholders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
80
SECTION 14.10 Legal Holidays. In any case where the redemption date or
--------------
any Interest Payment Date with respect to any Note or of any installment of
principal thereof or payment of interest thereon, or any date on which any
defaulted interest is proposed to be paid, shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or such Note) payment of
interest and/or principal need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
Redemption Date or on the Interest Payment Date, or on the date on which the
defaulted interest is proposed to be paid, and, except as provided in any
supplemental indenture setting forth the terms of such Note, if such payment is
timely made, no interest shall accrue for the period from and after such
Redemption Date or Interest Payment Date, or date for the payment of defaulted
interest, as the case may be, to the date of such payment.
SECTION 14.11 Currency Rate Indemnity. (a) The Issuer shall (to the
-----------------------
extent lawful) indemnify the Trustee and the Noteholders and keep them
indemnified against:
(i) in the case of nonpayment by the Issuer of any amount due to the
Trustee, on behalf of the Noteholders, under this Indenture any loss or
damage incurred by any of them arising by reason of any variation between
the rates of exchange used for the purposes of calculating the amount due
under a judgment or order in respect thereof and those prevailing at the
date of actual payment by the Issuer; and
(ii) any deficiency arising or resulting from any variation in rates
of exchange between (i) the date as of which the local currency equivalent
of the amounts due or contingently due under this Indenture or in respect
of the Notes is calculated for the purposes of any bankruptcy, insolvency
or liquidation of the Issuer, and (ii) the final date for ascertaining the
amount of claims in such bankruptcy, insolvency or liquidation. The amount
of such deficiency shall be deemed not to be increased or reduced by any
variation in rates of exchange occurring between the said final date and
the date of any bankruptcy, insolvency or liquidation or any distribution
of assets in connection therewith.
(b) The Issuer agrees that, if a judgment or order given or made by
any court for the payment of any amount in respect of its obligations hereunder
is expressed in a currency (the "Judgment Currency") other than U.S. dollars
-----------------
(the "Denomination Currency"), it will indemnify the relevant Noteholder against
---------------------
any deficiency arising or resulting from any variation in rates of exchange
between the date at which the amount in the Denomination Currency is notionally
converted into the amount in the Judgment Currency for the purposes of such
judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and independent
obligations of the Issuer from its obligations hereunder, will give rise to
separate and independent causes of action, will apply irrespective of any
indulgence granted from time to time and will continue in full force and effect
notwithstanding any judgment or the filing of any proof or proofs in any
bankruptcy, insolvency or liquidation of the Issuer for a liquidated sum or sums
in respect of amounts due under this Indenture or the Notes.
81
SECTION 14.12 Communication by Noteholders with other Noteholders.
---------------------------------------------------
Noteholders may communicate pursuant to Section 312(b) of the Trust Indenture
Act with other Noteholders with respect to their rights under this Indenture and
the Notes. The Issuer, the Trustee, the Note Registrar and anyone else shall
have the protection of Section 312(c) of the Trust Indenture Act.
SECTION 14.13 Governing Law. This Indenture shall be governed by, and
-------------
construed in accordance with, the laws of the State of New York.
SECTION 14.14 Waiver of Jury Trial. THE ISSUER AND THE TRUSTEE HERBY
--------------------
IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS INDENTURE OR THE ACTIONS OF THE TRUSTEE IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
SECTION 14.15 Waiver of Immunity. This Indenture and any other
------------------
documents delivered pursuant hereto, and any actions taken hereunder, constitute
commercial acts by the Issuer. The Issuer irrevocably and unconditionally and to
the fullest extent permitted by law, waives, and agrees not to plead or claim,
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) for itself of any of its property, assets or
revenues wherever located with respect to its obligations, liabilities or any
other matter under or arising out of or in connection with this Indenture or any
document delivered pursuant hereto, in each case for the benefit of each
assigns, it being intended that the foregoing waiver and agreement will be
effective, irrevocable and not subject to withdrawal in any and all
jurisdiction, and, without limiting the generality of the foregoing, agrees that
the waivers set forth in this Section 14.15 shall have the fullest scope
permitted under the United States Foreign Sovereign Immunities Act of 1976 and
are intended to be irrevocable for the purposes of such act.
SECTION 14.16 Submission to Jurisdiction, etc. (a) The Issuer and the
-------------------------------
Trustee irrevocably submit to the non-exclusive jurisdiction of any court of the
State of New York or any United States federal court sitting in the Borough of
Manhattan, The City of New York, New York, United States, and any appellate
court from any thereof. The Issuer and the Trustee irrevocably waive, to the
fullest extent permitted by law, any objection to any suit, action, or
proceeding that may be brought in connection with this Indenture in such courts
whether on the grounds of venue, residence or domicile or on the ground that any
such suit, action or proceeding has been brought in an inconvenient forum. The
Issuer and the Trustee agree that final judgment in any such suit, action or
proceeding brought in such court shall be conclusive and binding upon the Issuer
or the Trustee, as the case may be, and may be enforced in any court to the
jurisdiction of which the Issuer or the Trustee is subject by a suit upon such
judgment, as the case may be; provided that service of process is effected upon
the Issuer or the Trustee in the manner provided by this Indenture.
(b) The Issuer hereby irrevocably appoints and empowers the New York
office of Petroleo Brasileiro S.A., located at 570 Lexington Avenue, 43rd Floor,
New York, New York 10022 as its authorized agent (the "Process Agent") to accept
-------------
and acknowledge for and on its
82
behalf and on behalf of its property service of any and all legal process,
summons, notices and documents which may be served in any such suit, action or
proceedings in any New York State court or United States federal court sitting
in the State of New York in the Borough of Manhattan and any appellate court
from any thereof, which service may be made on such designee, appointee and
agent in accordance with legal procedures prescribed for such courts. The Issuer
will take any and all action necessary to continue such designation in full
force and effect and to advise the Trustee of any change of address of such
Process Agent; should such Process Agent become unavailable for this purpose for
any reason, the Issuer will promptly and irrevocably designate a new Process
Agent within New York, New York, which will agree to act as such, with the
powers and for the purposes specified in this subsection (b). The Issuer
irrevocably consents and agrees to the service and any and all legal process,
summons, notices and documents out of any of the aforesaid courts in any such
action, suit or proceeding by hand delivery, to it at its address set forth in
Section 14.3 or to any other address of which it shall have given notice
pursuant to Section 14.3 or to its Process Agent. Service upon the Issuer or the
Process Agent as provided for herein will, to the fullest extent permitted by
law, constitute valid and effective personal service upon it and the failure of
the Process Agent to give any notice of such service to the Issuer shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
SECTION 14.17 Pledge of Interests. (a) The Issuer hereby pledges to
-------------------
the Trustee (for the benefit of the Noteholders) and grants a continuing
security interest in, all of its interest (if any) in (a) the Payment Account,
(b) the Reserve Account, (c) each Letter of Credit issued from time to time as
contemplated hereunder, (d) all funds from time to time on deposit in the
Payment Account and/or the Reserve Account, (e) all Permitted Investments
obtained with proceeds of the Reserve Account or the Payment Account, (f) all
interest, dividends, distributions, cash, instruments and other property from
time to time received, receivable or on deposit in the Reserve Account or the
Payment Account, and (g) all proceeds of any of the foregoing (together, the
"Collateral"). The Issuer agrees to take all such action as is necessary or as
----------
the Trustee may require, including delivering Opinions of Counsel in form and
substance acceptable to the Trustee, as to the grant and perfection of the
foregoing security interests.
(b) The security interest granted in the Collateral, except to the
extent that withdrawals from them Reserve Account are otherwise limited as set
forth in Section 5.3 hereof, shall secure the payment of all obligations of the
Issuer now or hereafter existing under the Transaction Documents, whether direct
or indirect, absolute or contingent, and whether for principal, reimbursement
obligations, interest, fees, premiums, penalties, indemnifications, contract
causes of action, costs, expenses or otherwise. The Issuer represents and
warrants that it has not heretofor pledged conveyed, granted a lien on, or
security interest in, or otherwise encumbered any of the Collateral in favor of
any Person under U.S., Cayman, Brazilian or other law.
SECTION 14.18 Execution in Counterparts. This Indenture may be
-------------------------
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
83
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
PETROBRAS INTERNATIONAL FINANCE
COMPANY
By:
----------------------------
Name:
Title: Attorney-in-Fact
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------
Name: Thomas E. Tabor
Title: Vice President
WITNESSES:
1.
-----------------------------
Name:
2.
-----------------------------
Name:
84
EXHIBIT A-1
FORM OF RESTRICTED GLOBAL NOTE
RESTRICTED GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER,
85
IN A PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$100,000, FOR THE PURCHASER AND FOR
EACH SUCH ACCOUNT, TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
86
PETROBRAS INTERNATIONAL FINANCE COMPANY
9 1/8% SENIOR NOTES DUE 2007
GLOBAL RESTRICTED NOTE
No. R-1
CUSIP No.: 71646FAC1
ISIN No.: US71646FAC14
Common Code: 14289534
Principal Amount: U.S.$225,425,000
Initial Issuance Date: February 4, 2002
This Note is one of a duly authorized issue of Notes of Petrobras
International Finance Company, a limited company organized under the laws of the
Cayman Islands (the "Issuer"), designated as its 9 1/8% Senior Notes Due 2007
------
(the "Notes"), issued in an initial aggregate principal amount of
-----
U.S.$400,000,000 under an indenture (the "Indenture") dated as of February 4,
---------
2002, between the Issuer and The Bank of New York, as Trustee (the "Trustee",
-------
which term includes any successor trustee under the Indenture), to which
Indenture reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Issuer, the Trustee and the Noteholders, and of the terms upon which the Notes
are, and are to be, authenticated and delivered. All terms used in this Note
which are defined in the Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co.
or its registered assigns, as nominee of The Depositary Trust Company ("DTC")
---
and the holder of record of this Note (the "Holder" or "Noteholder"), the
------ ----------
principal amount specified above in U.S. dollars on February 1, 2007 (or earlier
as hereinafter referred to) upon presentation and surrender hereof, at the
office or agency of the Trustee referred to below; provided, however, if the
Issuer and the Standby Purchaser have provided the certificate required to be
presented under Section 2.6 of the Indenture, the principal amount of the Notes
shall be due as provided in the Indenture.
The Issuer promises to pay interest on the outstanding principal
amount hereof from the Initial Issuance Date, or from the most recent Payment
Date to which interest has been paid or duly provided for, semi-annually on
February 1 and August 1 of each year (or if such date is not a Business Day, the
next succeeding Business Day following such day), commencing August 1, 2002,
(each an "Interest Payment Date"), at a rate equal to 9 1/8% per annum. Interest
---------------------
payable, and punctually paid or duly provided for, on this Note on any Interest
Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the relevant Record Date for such interest payment.
87
Payment of the principal of and interest on this Note will be payable
by wire transfer to a U.S. dollar account maintained by the Holder of this Note
as reflected in the Note Register. In the event the date for any payment of the
principal of or interest on any Note is not a Business Day, then payment will be
made on the next Business Day with the same force and effect as if made on the
nominal date of any such date for such payment and no additional interest will
accrue on such payment as a result of such payment being made on the next
succeeding Business Day. Interest accrued with respect to this Note shall be
calculated based on a 360-day year of twelve 30-day months.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for information with respect to interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby.
The Notes are subject to redemption by the Issuer on the terms and
conditions specified in the Indenture.
If an Event of Default shall occur and be continuing, the outstanding
principal amount of all the Notes may become or may be declared due and payable
in the manner and with the effect provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the
Trustee only to the extent and in the circumstances permitted by the Indenture.
The Notes shall be issued only in fully registered form, without
coupons. Notes sold pursuant to Rule 144A shall be issued in the form of
beneficial interests in one or more global securities in denominations of
U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof. Notes sold
pursuant to Regulation S shall be issued in the form of beneficial interests in
one or more global securities in denominations of U.S.$1,000 and integral
multiplies thereof.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Issuer, the Trustee, the Note Registrar and any
agent of the Issuer, the Registrar or the Trustee may treat the Person in whose
name this Note is registered as the owner hereof for all purposes, whether or
not this Note is overdue, and neither the Issuer, the Trustee, the Note
Registrar nor any agent thereof shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been duly executed
by the Authenticating Agent by manual signature, this Note shall not be entitled
to any benefit under the Indenture, or be valid or obligatory for any purpose.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK.
88
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
PETROBRAS INTERNATIONAL FINANCE
COMPANY
By
-----------------------------
Name: Theodore Helms
Title: Attorney-in-Fact
WITNESSES:
1.
-----------------------------
Name:
2.
-----------------------------
Name:
89
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------
Authorized Signatory
Date: February 4, 2002
90
ASSIGNMENT FORM
For value received
hereby sells, assigns and transfers unto
(Please insert social security or
other identifying number of assignee)
(Please print or type name and address,
including zip code, of assignee:)
the within Note and does hereby irrevocably constitute and appoint
-------------
Attorney to transfer the Note on the books of the Note Registrar with full power
of substitution in the premises.
Date: Your Signature:
(Sign exactly as your name
appears on the face of this
Note)
91
EXHIBIT A-2
FORM OF REGULATION S GLOBAL NOTE
REGULATION S GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE') WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR
ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
92
REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER
OF (A) THE DAY ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN
DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE
ORIGINAL OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
93
PETROBRAS INTERNATIONAL FINANCE COMPANY
9 1/8% SENIOR NOTES DUE 2007
GLOBAL REGULATION S NOTE
No. S-1
CUSIP: G7028BAD3
ISIN No.: USG7028BAD31
Common Code: 14289500
Principal Amount: U.S.$174,575,000
Initial Issuance Date: February 4, 2002
This Note is one of a duly authorized issue of Notes of Petrobras
International Finance Company, a limited company organized under the laws of the
Cayman Islands (the "Issuer"), designated as its 9 1/8% Senior Notes Due 2007
------
(the "Notes"), issued in an initial aggregate principal amount of
-----
U.S.$400,000,000 under an indenture (the "Indenture") dated as of February 4,
---------
2002, between the Issuer and The Bank of New York, as Trustee (the "Trustee",
-------
which term includes any successor trustee under the Indenture), to which
Indenture reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Issuer, the Trustee and the Noteholders, and of the terms upon which the Notes
are, and are to be, authenticated and delivered. All terms used in this Note
which are defined in the Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
The Issuer, for value received, hereby promises to pay to the Cede&Co.
or its registered assigns, as nominee of the Depositary Trust Company ("DTC")
---
and the holder of record of this Note (the "Holder" or "Noteholder"), the
------ ----------
principal amount specified above in U.S. dollars on February 1, 2007 (or earlier
as hereinafter referred to) upon presentation and surrender hereof, at the
office or agency of the Trustee referred to below; provided, however, if the
Issuer and the Standby Purchaser have provided the certificate required to be
presented under Section 2.6 of the Indenture, the principal amount of the Notes
shall be due as provided in the Indenture.
The Issuer promises to pay interest on the outstanding principal
amount hereof from the Initial Issuance Date, or from the most recent Payment
Date to which interest has been paid or duly provided for, semi-annually on
February 1 and August 1 of each year (or if such date is not a Business Day, the
next succeeding Business Day following such day), commencing August 1, 2002,
(each an "Interest Payment Date"), at a rate equal to 9 1/8% per annum. Interest
---------------------
payable, and punctually paid or duly provided for, on this Note on any Interest
Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on the relevant Record Date for such interest payment.
Payment of the principal of and interest on this Note will be payable
by wire transfer to a U.S. dollar account maintained by the Holder of this Note
as reflected in the Note
94
Register. In the event the date for any payment of the principal of or interest
on any Note is not a Business Day, then payment will be made on the next
Business Day with the same force and effect as if made on the nominal date of
any such date for such payment and no additional interest will accrue on such
payment as a result of such payment being made on the next succeeding Business
Day. Interest accrued with respect to this Note shall be calculated based on a
360-day year of twelve 30-day months.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for information with respect to interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby.
The Notes are subject to redemption by the Issuer on the terms and
conditions specified in the Indenture.
If an Event of Default shall occur and be continuing, the outstanding
principal amount of all the Notes may become or may be declared due and payable
in the manner and with the effect provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the
Trustee only to the extent and in the circumstances permitted by the Indenture.
The Notes shall be issued only in fully registered form, without
coupons. Notes sold pursuant to Rule 144A shall be issued in the form of
beneficial interests in one or more global securities in denominations of
U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof. Notes sold
pursuant to Regulation S shall be issued in the form of beneficial interests in
one or more global securities in denominations of U.S.$1,000 and integral
multiplies thereof.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Issuer, the Trustee, the Note Registrar and any
agent of the Issuer, the Registrar or the Trustee may treat the Person in whose
name this Note is registered as the owner hereof for all purposes, whether or
not this Note is overdue, and neither the Issuer, the Trustee, the Note
Registrar nor any agent thereof shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been duly executed
by the Authenticating Agent by manual signature, this Note shall not be entitled
to any benefit under the Indenture, or be valid or obligatory for any purpose.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK.
95
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
PETROBRAS INTERNATIONAL FINANCE
COMPANY
By
-----------------------------
Name: Theodore Helms
Title: Attorney-in-Fact
WITNESSES:
1.
-------------------------
Name:
2.
-------------------------
Name:
96
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------------
Authorized Signatory
Date: February 4, 2002
97
ASSIGNMENT FORM
For value received
hereby sells, assigns and transfers unto
(Please insert social security or
other identifying number of assignee)
(Please print or type name and address,
including zip code, of assignee:)
the within Note and does hereby irrevocably constitute and appoint
------------.
Attorney to transfer the Note on the books of the Note Registrar with full
power of substitution in the premises.
Date: Your Signature:
(Sign exactly as your name
appears on the face of this
Note)
98
EXHIBIT B
FORM OF ISSUER ORDER
The Bank of New York
as Trustee
101 Barclay Street, 21 W
New York, New York 10286
Attention: Global Finance Unit
Ladies and Gentlemen:
Pursuant to Section 2.3 of the Indenture dated as of February 4, 2002
(the "Indenture") by and among Petrobras International Finance Company (the
"Issuer") and The Bank of New York, as Trustee, Registrar and Paying Agent, you
are hereby ordered in your capacity as such to authenticate U.S.$400,000,000 of
the Issuer's 9 1/8% Senior Notes due 2007, in the manner provided in this
Indenture, in global form in the amount of U.S.$ [_________] in respect of the
Restricted Global Note (CUSIP No.71646FAC1) and U.S.$[______] in respect of the
Regulation S Global Note (CUSIP No. G7028BAD3) heretofore duly executed by the
proper Authorized Officer of the Issuer and delivered to you as provided in this
Indenture and to hold the Notes in your capacity as custodian for The Depository
Trust Company.
PETROBRAS INTERNATIONAL FINANCE COMPANY
By:
---------------------------------
Name:
Title:
99
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
[Date]
The Bank of New York
as Trustee
101 Barclay Street 21W
New York, New York 10286
Re: Petrobras International Finance
Company 9 1/8% Notes due 2007 (the
"Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of February 4,
2002 (as amended and supplemented from time to time, the "Indenture"), between
Petrobras International Finance Company (the "Company"), as issuer and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given them in the Indenture.
In connection with our proposed sale of US$ aggregate
---------------
principal amount of the Notes [in the case of a transfer of an interest in a
Restricted Global Note: , which represent an interest in a Restricted Global
Note beneficially owned by] [in the case of a transfer of a certificated Note:
held in the name of] the undersigned ("Transferor"), we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Notes was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States (within the meaning of Regulation S) or (ii) the transaction is
being executed in, on or through the facilities of a designated off-shore
securities market (within the meaning of Regulation S) and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
100
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(d) if the transfer is being effected in accordance with Rule 903
under the Securities Act, the requirements of Rule 903(b)(2) have been
satisfied;
(e) if the transfer is being effected in accordance with Rule 904
under the Securities Act, we are not a distributor of the Notes, an
affiliate of the Company, an affiliate of any distributor of the Notes or a
person acting on behalf of any of the foregoing;
(f) if the transfer is being effected in accordance with Rule 904
under the Securities Act and we are a dealer in Notes or have received a
selling concession, fee or other remuneration in respect of the Notes
transferred hereby, and the transfer is to occur during the Distribution
Compliance Period, then the requirements of Rule 904(b)(1) have been
satisfied;
(g) if the transfer is being effected in accordance with Rule 904
under the Securities Act and we are an affiliate of the Company or of a
distributor solely by virtue of holding a position as an officer or
director of such person, then requirements of Rule 904(b)(2) have been
satisfied;
(h) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(i) we are the beneficial owner of the principal amount of Notes being
transferred.
In addition, if the sale is made during the period ending forty (40)
days after the original issuance of the Notes and the transferee will take
delivery in the form of a beneficial interest in the Regulation S Global Note,
such beneficial interest will be held immediately after such transfer only in or
through accounts maintained at the Registered Depositary by Euroclear or
Clearstream (or by agent members acting for the account thereof).
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
----------------------------
-------------------------------
Authorized Signature]
101
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO
QUALIFIED INSTITUTIONAL BUYERS (QIBS)
[Date]
The Bank of New York
as Trustee
101 Barclay Street 21 W
New York, New York 10286
Re: Petrobras International Finance
Company 9 1/8% Notes due 2007 (the
"Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of February 4,
2002 (as amended and supplemented from time to time, the "Indenture"), between
Petrobras International Finance Company (the "Company"), as issuer and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given them in the Indenture.
This letter relates to US$ aggregate principal amount of
------------
Notes [in the case of a transfer of an interest in a Regulation S Global Note:
which represents an interest in a Regulation S Global Note beneficially owned
by] [in the case of a transfer of a certificated Note: which are held in the
name of] the undersigned (the "Transferor") to effect the transfer of such Notes
in exchange for an equivalent beneficial interest in the Restricted Global Note.
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction. The Transferor and any person acting on its behalf have taken
reasonable steps to ensure that the transferee is aware that the Transferor may
be relying on Rule 144A in connection with the transfer.
102
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
----------------------------
Authorized Signature
103
EXHIBIT E-1
FORM OF PARTIAL NON-PAYMENT NOTICE
[Date]
VIA FACSIMILE
- -------------
Petroleo Brasileiro S.A. --Petrobras
Avenida Republica do Chile, 65
20035-900,Rio de Janeiro
Brazil
Attention : Servio Tulio Tinoco
- ---------
Head of Trade Finance & Foreign Exchange
Petrobras International Finance Company
---------------------------------------
U.S.$400,000,000 9 1/8% Senior Notes due 2007
---------------------------------------------
Dear Sirs:
Reference is made to that certain Indenture (the "Indenture") dated
February 4, 2002 between Petrobras International Finance Company ("PIFCo") and
The Bank of New York, ee"). Reference is also made to that certain Standby
------
Purchase Agreement (the "Standby Purchase Agreement") dated February 4, 2002
between the Trustee and Petroleo Brasileiro, S.A.--Petrobras ("Petrobras")
pursuant to which Petrobras has undertaken to purchase from the holders of
PIFCo's 9 1/8% Senior Notes due July 2007 (the "Notes") such holders' right to
receive unpaid amounts due and owing on such Notes. Capitalized terms not
defined herein shall have the meanings set forth in the Standby Purchase
Agreement.
By this notice, the undersigned, acting on behalf of the holders of
the Notes, hereby advises you as follows:
1. On [date], PIFCO was obligated to make a payment of [principal]
[interest] [Additional Amounts] [other amounts under the
Indenture] in an amount equal to U.S.$ in respect of
---------
[principal] [interest] [Additional Amounts] [other amounts due
under the Indenture] (the "Overdue Amount"). This notice
constitutes a Partial Non-Payment Notice as contemplated in the
Standby Purchase Agreement.
104
2. Pursuant to the Standby Purchase Agreement, you are obligated to
purchase from the holders of the Notes their right to receive the
Overdue Amount.
3. Pursuant to the Standby Purchase Agreement, you are hereby
directed to purchase the right of the holders of the Notes to
receive the Overdue Amount and to make a payment to the Trustee,
on behalf of the holders of the Notes, in partial satisfaction of
your obligation to purchase the right to Overdue Amounts.
4. You are hereby requested to pay the Overdue Amount to the Payment
Account established under this Indenture (Account No. by the
----
date that payment is due pursuant to Section 2 of the Standby
Purchase Agreement together with interest on such Overdue Amount,
at the rates specified in the Standby Purchase Agreement, from
the date PIFCo was itself obligated to pay the Overdue Amount
(the "Liability Date"), through to the date of payment by you is
actually made (the "Payment Date"), of U.S.$ (the "Interest
------
Amount").
5. Petrobras is requested to acknowledge receipt of this notice by
countersigning in the space provided below and returning a copy
of the same to the Representative at the address provided in the
Standby Purchase Agreement with a copy by facsimile to the
Trustee at fax: (212) 815-3522 (Attention: Global Finance Unit).
THE BANK OF NEW YORK, as
Trustee
By:
---------------------
Name:
Title:
ACKNOWLEDGED & AGREED
- ---------------------
PETROLEO BRASILEIRO S.A.--PETROBRAS
By:
--------------------
Name:
Title:
Date:
105
EXHIBIT E-2
FORM OF TOTAL NON-PAYMENT NOTICE
[Date]
VIA FACSIMILE
- -------------
Petroleo Brasileiro S.A.--Petrobras
Avenida Republica do Chile, 65
20035-900, Rio de Janeiro
Brazil
Attention : Servio Tulio Tinoco
- ---------
Head of Trade Finance & Foreign Exchange
Petrobras International Finance Company
---------------------------------------
9 1/8% Senior Notes due 2007
----------------------------
Dear Sirs:
Reference is made to that certain Indenture (the "Indenture") dated
February 4, 2002 between Petrobras International Finance Company ("PIFCo") and
The Bank of New York, as trustee (the "Trustee"). Reference is also made to that
certain Standby Purchase Agreement (the "Standby Purchase Agreement") dated
February 4, 2002 between the Trustee and Petroleo Brasileiro, S.A.--Petrobras
("Petrobras") pursuant to which Petrobras has undertaken to purchase from the
holders of PIFCo's 9 1/8% Senior Notes due July 2007 (the "Notes") such holders'
right to receive unpaid amounts due and owing on such Notes. Capitalized terms
not defined herein shall have the meanings set forth in the Standby Purchase
Agreement.
By this notice, the undersigned, acting on behalf of the holders of
the Notes, hereby advises you as follows:
1. On [date], PIFCO was obligated to make a payment of [principal]
[interest] [Additional Amounts] [other amounts under the
Indenture] in an amount equal to U.S.$ in respect of
-----------
[principal] [interest] [Additional Amounts] [other amounts due
under the Indenture] (the "Overdue Amount"). This notice
constitutes a Total Non-Payment Notice as contemplated in the
Standby Purchase Agreement.
2. Pursuant to the Standby Purchase Agreement, you are obligated to
purchase from the holders of the Notes their right to receive the
Overdue Amount.
106
3. Pursuant to the Standby Purchase Agreement, you are hereby
directed to purchase the right of the holders of the Notes to
receive the Overdue Amount and to make a payment to the Trustee,
on behalf of the holders of the Notes, in partial satisfaction of
your obligation to purchase the right to Overdue Amounts.
4. You are hereby requested to pay the Overdue Amount to the Payment
Account established under this Indenture (Account No. ) by the
---
date that payment is due pursuant to Section 3 of the Standby
Purchase Agreement together with interest on such Overdue Amount,
at the rates specified in the Standby Purchase Agreement, from
the date PIFCo was itself obligated to pay the Overdue Amount
(the "Liability Date"), through to the date that payment by you
is actually made (the "Payment Date"), of U.S.$ (the
------
"Interest Amount").
5. Petrobras is requested to acknowledge receipt of this notice by
countersigning in the space provided below and returning a copy
of the same to the Representatives at the addresses provided in
the Standby Purchase Agreement with a copy by facsimile to the
Trustee at fax: (212) 815-3522 (Attention: Global Finance Unit).
THE BANK OF NEW YORK, as
Trustee
By:
-------------------
Name:
Title:
ACKNOWLEDGED & AGREED
- ---------------------
PETROLEO BRASILEIRO S.A. --PETROBRAS
By:
-------------------
Name:
Title:
Date:
107
EXHIBIT F
FORM OF INCONVERTIBILITY CERTIFICATE
[DATE]
The Bank of New York
101 Barclay Street
21 W
New York, New York 10286
Attention: Global Finance Unit
Dear Sirs,
Reference is made to that certain (i) Indenture (the "Indenture")
dated February 4, 2002 between Petrobras International Finance Company (the
"Issuer") and you, as trustee (the "Trustee") and (ii) Standby Purchase
Agreement (the "Standby Purchase Agreement") dated February 4, 2002 between you
and Petroleo Brasileiro S.A.--Petrobras, as the standby purchaser (the "Standby
Purchaser"). Capitalized terms not defined herein shall have the meanings set
forth in the Indenture.
Pursuant to Section 5.2 of the Indenture and Section 10(m) of the
Standby Purchase Agreement, the Issuer and the Standby Purchaser hereby certify
to you, the Trustee, acting on behalf of the holders of the Issuer's 9 1/8%
Senior Notes due 2007, as follows:
(i) [PLEASE DELETE ONE OF THE FOLLOWING AS APPROPRIATE]
(A) [The Issuer is unable to repay the principal amount of the
Notes and the Standby Purchaser does not have funds
available to satisfy its obligations under the Standby
Purchase Agreement to pay the Total Payment Amount;]
(B) [The Issuer is unable to pay interest on the Notes and the
Standby Purchaser does not have funds available to it to
satisfy its obligations under the Standby Purchase Agreement
to pay a Partial Non-Payment Amount;]
(ii) The Standby Purchaser has funds in Brazilian Reais but is unable
to convert such funds and transfer them outside of Brazil to the Trustee
for payment of amounts due under or in respect of the Notes due to the
occurrence and continuation of an Expropriation Event or Inconvertibility
Event which occurred on ; and
-------- ---------
108
(iii) The Issuer and the Standby Purchaser have used their best
efforts to either convert and transfer the funds referred to in clause
(iii) above; and
(iv) Neither the Issuer nor the Standby Purchaser has funds available
to it outside of Brazil to satisfy its obligations under the Indenture or
Standby Purchase Agreement, respectively.
PETROBRAS INTERNATIONAL FINANCE COMPANY
By:
-----------------------------------
Name:
Title:
PETROLEO BRASILEIRO S.A.--PETROBRAS
By:
-----------------------------------
Name:
Title:
109
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 4th day of February, 2002 before me, a notary public within
and for said county, personally appeared , to me personally
-------------------
known who being duly sworn, did say that he is of The Bank of
---------------
New York, one of the persons described in and which executed the foregoing
instrument, and acknowledge said instrument to be the free act and deed of said
corporation.
On this 4th day of February, 2002, before me personally came
and to me personally known, who being by me
- ----------------- ----------------
sworn, did depose and say that they signed their names to the foregoing
instrument as witnesses.
--------------------------------
Notary Public
110
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 4th day of February, 2001, before me personally came
, to me known, who, being by me duly sworn, did depose and say
- -----------------
that he is the of Petrobras International Finance Company -
--------------------
PIFCo, a corporation described in and which executed the foregoing instrument
and acknowledges that said instrument to be the free act and deed of said
entity.
[Notarial Seal]
--------------------------------
Notary Public
COMMISSION EXPIRES
111
INDEX OF DEFINED TERMS
Act........................................................................4, 67
Additional Amounts.........................................................4, 31
Additional Notes...........................................................4, 16
Affiliate......................................................................4
Authenticating Agent...........................................................4
Authorized Agent...............................................................4
Authorized Representative......................................................4
Authorized Signatory...........................................................4
Board of Directors.............................................................4
Board Resolution...............................................................4
Brazil......................................................................3, 5
- ------
Business Day...................................................................5
Certificate of Inconvertibility............................................5, 38
Clearstream....................................................................5
Closing Date...................................................................5
Collateral.................................................................5, 85
Corporate Trust Office.........................................................5
Covenant Defeasance........................................................5, 76
CUSIP..........................................................................5
Custodian..................................................................5, 19
Default Rate...............................................................5, 21
Defeasance.................................................................5, 76
Denomination Currency......................................................5, 83
Distribution Compliance Period.................................................5
DTC............................................................................5
Environmental Laws.............................................................5
Euroclear......................................................................6
Event of Default...............................................................6
Exchange Act...................................................................6
Exchange Global Note...........................................................6
Exchange Global Notes.........................................................18
Exchange Notes..............................................................3, 6
Exchange Offer.................................................................6
Excluded Additional Amounts................................................6, 31
Expected Maturity Date.....................................................6, 20
Expropriation Event............................................................6
Final Maturity Date........................................................6, 20
Global Note....................................................................6
Global Notes..................................................................18
Governmental Approval..........................................................6
Governmental Authority.........................................................6
Grace Period...................................................................6
Guarantee......................................................................7
Host Government................................................................7
Inconvertibility Event.........................................................7
112
Indebtedness...................................................................7
Indenture...................................................................3, 7
Initial Notes...............................................................3, 7
Initial Purchasers.............................................................8
Interest Payment Date.........................................................21
Interest Payment Dates.........................................................8
Interest Period................................................................8
Issuer......................................................................3, 8
Issuer Order...................................................................8
Judgment Currency..........................................................8, 83
L/C Partial Drawing Amount.....................................................8
Law............................................................................8
Legend.....................................................................8, 28
Letter of Credit...............................................................8
Lien...........................................................................8
Luxembourg Paying Agent....................................................9, 65
Luxembourg Transfer Agent..................................................9, 65
Majority Noteholders...........................................................9
Material Adverse Effect........................................................9
Material Subsidiary............................................................9
Moody's........................................................................9
Non-U.S. Person................................................................9
Note Rate..................................................................9, 21
Note Register..............................................................9, 23
Note Registrar.................................................................9
Noteholder.....................................................................9
Notes.......................................................................3, 9
Officer's Certificate..........................................................9
Opinion of Counsel.............................................................9
Optional Redemption Date...................................................9, 35
Optional Redemption Price.................................................10, 36
Outstanding...................................................................10
Paying Agent...............................................................3, 10
- ------------
Payment Account...........................................................10, 34
Payment Date..................................................................10
Permitted Investments.........................................................11
Permitted Lie.................................................................11
Person........................................................................12
Place of Payment..............................................................12
Predecessor Notes.............................................................12
Process Agent.................................................................12
Purchase Agreement............................................................12
Purchase Obligation...........................................................12
QIB...........................................................................12
Record Date...................................................................12
Reference Rate of Exchange....................................................12
113
Registered Depositary.........................................................13
Registration Rights Agreement..............................................3, 13
Regulation S..................................................................13
Regulation S Global Note..................................................13, 18
Reserve Account...........................................................13, 39
Reserve Account Transfer Date.................................................13
Reserve Account Withdrawal Date...............................................13
Responsible Officer...........................................................13
Restricted Global Note....................................................13, 18
Rule 144......................................................................14
Rule 144A.....................................................................14
SEC...........................................................................14
Securities Act.............................................................3, 14
Standby Purchase Agreement.................................................3, 14
Standby Purchaser..........................................................3, 14
Subsidiary....................................................................14
Successor Company.........................................................14, 45
Tax...........................................................................14
Taxes.........................................................................30
Taxing Jurisdiction.......................................................14, 31
Total Payment Amount..........................................................14
Transaction Documents.........................................................14
Trust Indenture Act...........................................................14
Trustee....................................................................3, 14
U.S. GAAP.....................................................................14
United States.................................................................14
Wholly-Owned Subsidiary.......................................................15
114