EXHIBIT 10.1
Dated as of March 8, 2002
VALE OVERSEAS LIMITED,
as Pledgor
and
JPMORGAN CHASE BANK,
as Secured Party
and
JPMORGAN CHASE BANK,
as Bank and Securities Intermediary
ACCOUNT CONTROL AGREEMENT
LINKLATERS
1345 Avenue of the Americas
19th Floor
New York, NY 10105
Telephone: (212)424-9000
Facsimile: (212)424-9100
Ref: REO/REXW
LINKLATEERS & ALLIANCE
Linklates is a member
firm of Linklaters & Alliance
a non-partnership association
This Account Control Agreement is dated as of March 8, 2002 among Vale Overseas
Limited, a Cayman Islands exempted company incorporated with limited liability
(the "Pledgor"), JPMorgan Chase Bank, a banking corporation organized under the
laws of the State of New York, as Trustee under the Indenture (defined below)
(in its capacity as such, the "Secured Party") and as bank and securities
intermediary (in its capacity as such, the "Intermediary") (the "Agreement").
Recitals
(A) The Pledgor has granted a security interest in the Collateral (as
defined in the Supplemental Indenture) in favor of the Secured Party;
and
(B) In order to perfect the security interest granted by the Pledgor with
respect to the Collateral, the parties hereto have entered into this
Account Control Agreement.
1 Definitions
Capitalized terms used herein but not otherwise defined herein shall have
the meanings assigned in the Indenture dated as of March 8, 2002 (the
"Base Indenture"), as supplemented by a first supplemental indenture dated
as of March 8, 2002 (the "Supplemental Indenture," and collectively with
the Base Indenture, the "Indenture") among the Pledgor, Companhia Vale Do
Rio Doce, as guarantor, and the Secured Party, as Trustee.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York.
2 Establishment of Reserve Account
The Intermediary hereby agrees to act as securities intermediary and
confirms and agrees that:
2.1 The Intermediary has established account number 161600 in the name
"JPMorgan Chase Bank, as Trustee FBO Holders of Vale Overseas Limited
U.S.$300,000,000 8.625% Enhanced Guaranteed Notes Due 2007 Reserve
Account" (such account and any successor account thereto, the
"Reserve Account") and the Intermediary shall not change the name or
account number of the Reserve Account without the prior written
consent of the Secured Party;
2.2 All securities and other property underlying any financial assets
credited to the Reserve Account shall be in the name of the
Intermediary and in no case will any funds credited to the Reserve
Account be in the name of the Pledgor or payable to the order of the
Pledgor except to the extent the foregoing have been specially
indorsed to the Secured Party or in blank;
2.3 All property delivered to the Intermediary pursuant to the Indenture
will be promptly credited to the Reserve Account, as specified;
2.4 The Reserve Account is an account to which financial assets are or
may be credited, and the Intermediary shall treat the Pledgor as
entitled to exercise the rights that comprise any financial
assets credited to the Reserve Account; and
2.5 The Intermediary is a securities intermediary within the meaning of
UCC Section 8-102(a)(14) or a bank within the meaning of UCC Section
9-104.
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3 "Financial Assets" Election
The Intermediary hereby agrees that each item of property (whether
including, without limitation, any investment property, financial assets,
securities, instruments, general intangibles or cash) credited to the
Reserve Account shall be treated as a "financial asset" within the meaning
of Section 8-102(a)(9) of the UCC.
4 Entitlement Orders
4.1 The Secured Party exclusively may at any time in accordance with the
Indenture (a) direct the transfer or redemption of, and give any
entitlement orders (as defined in Section 8-102(a)(8) of the UCC) with
respect to, any financial asset relating to the Reserve Account
without further consent by the Pledgor or any other Person and (b)
instruct the Intermediary to dispose of the funds in the Reserve
Account without further consent by the Pledgor or any other Person.
4.2 Irrespective of any other provision herein or in any other agreement,
the Intermediary agrees to comply with all (a) entitlement orders
issued by the Secured Party with respect to the Reserve Account and
any property held therein and (b) instructions originated by the
Secured Party directing disposition of the funds in the Reserve
Account, in each case without further consent by the Pledgor or any
other Person
4.3 The Pledgor shall not have the right to issue any entitlement orders
or originate any instructions directing disposition of the funds in
the Reserve Account with respect to any financial assets or any other
property held in or credited to the Reserve Account.
5 Subordination of Lien, Waiver of Set-Off
In the event that the Intermediary has or subsequently obtains by agreement,
by operation of law or otherwise a security interest in the Reserve Account
or any security entitlement credited thereto, the Intermediary hereby agrees
that such security interest shall be subordinate to the security interest of
the Secured Party. The financial assets and other items deposited to the
Reserve Account will not be subject to deduction, set-off, banker's lien, or
any other right in favor of any person other than the Secured Party (except
that the Intermediary may set off the face amount of any amounts which have
been credited to the Reserve Account but are subsequently returned unpaid
because of uncollected or insufficient funds).
6 Choice of Law
Both this Agreement and the Reserve Account shall be governed by the laws of
the State of New York. Regardless of any provision in any other agreement,
for purposes of the UCC, New York shall be deemed to be the Intermediary's
jurisdiction and the Reserve Account (as well as the securities entitlements
related thereto) shall be governed by the laws of the State of New York.
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7 Conflict with Other Agreements
7.1 In the event of any conflict between this Agreement (or any portion
thereof) and any other agreement now existing or hereafter entered
into, the terms of this Agreement shall prevail.
7.2 No amendment or modification of this Agreement or waiver of any right
hereunder shall be binding on any party hereto unless it is in writing
and is signed by all of the parties hereto.
7.3 The Intermediary hereby confirms and agrees that:
7.3.1 There are no other agreements entered into between the
Intermediary and the Pledgor with respect to the Reserve
Account except for the Indenture;
7.3.2 It has not entered into, and until the termination of this
Agreement will not enter into, any agreement with any other
person relating to the Reserve Account and/or any financial
assets credited thereto pursuant to which it has agreed to
comply with entitlement orders (as defined in Section
8-102(a)(8) of the UCC) of such other person; and
7.3.3 It has not entered into, and until the termination of this
Agreement will not enter into, any agreement with the Pledgor
or the Secured Party purporting to limit or condition the
obligation of the Intermediary to comply with entitlement
orders as set forth in Section 4 hereof.
8 Adverse Claims
Except for the claims and interest of the Secured Party and of the Pledgor
in the Reserve Account, the Intermediary does not know of any claim to, or
interest in, the Reserve Account or in any "financial asset" (as defined in
Section 8-102(a) of the UCC) credited thereto. If any person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment
judgment, warrant of attachment, execution or similar process) against the
Reserve Account or in any financial asset carried therein, the Intermediary
will, after becoming aware thereof, promptly notify the Secured Party and
the Pledgor thereof.
9 Maintenance of the Reserve Account
In addition to, and not in lieu of, the obligation of the Intermediary to
honor entitlement orders as agreed in Section 4 hereof, the Intermediary
agrees to maintain the Reserve Account and promptly send copies of all
statements, confirmations and other correspondence concerning the Reserve
Account and/or any financial assets credited thereto to each of the Pledgor
and the Secured Party at the address set forth for each in Section 13 of
this Agreement.
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10 Representations, Warranties and Covenants of the Intermediary
The Intermediary hereby makes the following representations, warranties
and covenants:
10.1 The Reserve Account has been established as set forth in Section 2
above and the Reserve Account will be maintained in the manner set
forth herein until termination of this Agreement.
10.2 This Agreement is the valid and legally binding obligation of the
Intermediary.
11 Indemnification of Intermediary
The Pledgor and the Secured Party hereby agree that (a) the Intermediary
is released from any and all liabilities to the Pledgor and the Secured
Party arising from the terms of this Agreement and the compliance of the
Intermediary with the terms hereof (save for clause 5), except to the
extent that such liabilities arise from the Intermediary's gross
negligence and (b) the Pledgor, its successors and assigns shall at all
times indemnify and save harmless the Intermediary from and against any
and all claims, actions and suits of others arising out of the terms of
this Agreement or the compliance of the Intermediary with the terms
hereof, except to the extent that such arises from the Intermediary's
gross negligence, and from and against any and all liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature
and character arising by reason of the same. This Section 11 shall
survive the termination of this Agreement.
12 Successors, Assignment
The terms of this Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective corporate successors
or heirs and personal representatives who obtain such rights solely by
operation of law.
13 Notices
Any notice, request or other communication required or permitted to be
given under this Agreement shall be in writing and deemed to have been
properly given when delivered in person, or when sent by telecopy or other
electronic means and electronic confirmation of error free receipt is
received or two days after being sent by certified or registered mail,
return receipt requested, postage prepaid, addressed to the party at the
address set forth below.
Pledgor:
Companhia Vale do Rio Doce
Avenida Graca Aranha, 26 - 17th Floor
Rio de Janeiro, RJ - Brazil
20005-900
Telephone no: 55-21-3814-4726
Fax no: 55-21-3814-4679
Attention: CVRD Financial Director
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Secured Party:
JPMorgan Chase Bank
450 West 33rd Street, 15th Floor
New York, NY 10001-2697
Attention: Institutional Trust Services
Intermediary:
JPMorgan Chase Bank
450 West 33rd Street, 15th Floor
New York, NY 10001-2697
Attention: Institutional Trust Services
or at such other address or facsimile number as shall have been furnished
in writing by any person described above to the party required to give
notice hereunder.
14 Termination
The obligations of the Intermediary to the Secured Party pursuant to this
Agreement shall continue in effect until the security interests of the
Secured Party in the Reserve Account have been terminated pursuant to the
terms of the Indenture and the Secured Party has notified the Intermediary
of such termination in writing. The Secured Party agrees to provide Notice
of Termination in substantially the form of Exhibit A hereto to the
Intermediary upon the request of the Pledgor on or after the termination
of the Secured Party's security interest in the Reserve Account. The
termination of this Agreement shall not terminate the Reserve Account or
alter the obligations of the Intermediary and the Pledgor to each other
pursuant to any other agreement with respect to the Reserve Account.
15 Jurisdiction; Waiver of Immunity; Appointment of Process Agent
Each of the parties hereto irrevocably and unconditionally submits to the
jurisdiction of any New York State or United States federal court sitting
in the Borough of Manhattan, the City of New York and of any court of its
own corporate domicile, with respect to any proceedings arising out of or
relating to this Agreement. Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of
any such proceedings brought in such a court and any claim that any such
proceedings brought in such a court have been brought in an inconvenient
forum. Each of the parties hereto hereby waives any rights to which it may
be entitled on account of place of residence or domicile. To the extent
that the Pledgor has or hereafter may acquire any immunity from the
jurisdiction of any court or from any legal process with respect to itself
or its property, the Pledgor irrevocably waives, to the fullest extent
permitted by law, such immunity in respect of its obligations hereunder.
The Pledgor agrees that final judgment in any such Proceedings brought in
such a court shall be conclusive and binding on it and may be enforced in
any court to the jurisdiction of which the Pledgor is subject by a suit
upon such judgment or in any manner provided by law, provided that service
of process is effected upon the Pledgor as permitted by law. The Pledgor
hereby irrevocably waives, to the fullest extent permitted by law,
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any requirement or other provision of law, rule, regulation or practice
which requires or otherwise establishes as a condition to the institution,
prosecution or completion of any proceedings (including appeals) arising
out of or relating to this Agreement, the posting of any bond or the
furnishing, directly or indirectly, of any Note.
The Pledgor hereby designates and appoints Rio Doce America, Inc. ("RDA")
located at 546 5th Avenue, 12th Floor, New York, New York, 10036, as its
authorized agent upon which process may be served in any legal suit,
action or proceeding arising out of or relating to this Agreement which
may be instituted in any federal or state court in the Borough of
Manhattan, The City of New York, New York, and agrees that service of
process upon such agent, and written notice of said service to the Pledgor
by the person serving the same, shall be deemed in every respect effective
service of process upon the Pledgor in any such suit, action or proceeding
and further designates the domicile of RDA specified above and any
domicile RDA may have in the future as its domicile to receive service of
process. If for any reason RDA (or any successor agent for this purpose)
shall cease to act as agent for service of process as provided above, the
Pledgor will promptly appoint a successor agent for this purpose
reasonably acceptable to the Trustee. The Pledgor agrees to take any and
all actions as may be necessary to maintain such designation and
appointment of such agent in full force and effect.
16 Counterparts
This Agreement may be executed in any number of counterparts, all of which
shall constitute one and the same instrument, and any party hereto may
execute this Agreement by signing and delivering one or more counterparts.
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In Witness Whereof, the parties hereto have caused this Agreement to be
executed by their duly elected officers duly authorized as of the date first
above written.
VALE OVERSEAS LIMITED, as Pledgor
By: /s/ Jorge Tadeu Moura Pinho
---------------------------------------
Name: Jorge Tadeu Moura Pinho
Title: Attorney
By: /s/ Bernadeth Vieira de Souza
---------------------------------------
Name: Bernadeth Vieira de Souza
Title: Attorney
JPMORGAN CHASE BANK, as Secured Party
By: /s/ Lesley Daley
----------------------------------------
Name: Lesley Daley
Title: Trust Officer
Sworn to before me this 8th day of March, 2002.
/s/ James M. Foley
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Notary Public
JPMORGAN CHASE BANK, as Intermediary
By: /s/ Lesley Daley
----------------------------------------
Name: Lesley Daley
Title: Trust Officer
Sworn to before me this 8th day of March, 2002.
/s/ James M. Foley
- -------------------------------------------
Notary Public
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Exhibit A
[Letterhead of Secured Party]
[Date]
JPMorgan Chase Bank
450 West 33rd Street, 15th Floor
New York, NY 10001-2697
Attention: Institutional Trust Services
Ladies and Gentlemen:
Re: Termination of Control Agreement
You are hereby notified that the Account Control Agreement between you, Vale
Overseas Limited and the undersigned dated March 8, 2002 (a copy of which is
attached) is terminated and you have no further obligations to the undersigned
pursuant to such Agreement. Notwithstanding any previous instructions to you,
you are hereby instructed to accept all future directions with respect to the
Reserve Account 161600 from Vale Overseas Limited. This notice terminates any
obligations you may have to the undersigned with respect to such accounts;
however, nothing contained in this notice shall alter any obligations which you
may otherwise owe to Vale Overseas Limited pursuant to any other agreement.
You are instructed to deliver a copy of this notice by facsimile transmission to
Vale Overseas Limited.
Very truly yours,
JPMORGAN CHASE BANK
By: _______________________
Name:
Title:
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