Exhibit 4.1
Dated as of March 8, 2002
VALE OVERSEAS LIMITED,
AS COMPANY
and
COMPANHIA VALE DO RIO DOCE,
AS GUARANTOR
and
JPMORGAN CHASE BANK,
AS TRUSTEE
INDENTURE
LINKLATERS
1345 Avenue of the Americas
19th Floor
New York, NY 10105
Telephone: (1-212) 424 9000
Facsimile: (1-212) 424 9100
Ref: PERR/SEYB
LINKLATERS & ALLIANCE
Linklaters is a
member firm of Linklaters & Alliance
a non-partnership association
TABLE OF CONTENTS
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PAGE
1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............. 1
1.1 DEFINITIONS.................................................. 1
1.2 COMPLIANCE CERTIFICATES AND OPINIONS......................... 9
1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE....................... 10
1.4 ACTS OF HOLDERS; RECORD DATES................................ 10
1.5 NOTICES, ETC., TO TRUSTEE, COMPANY AND GUARANTOR............. 12
1.6 NOTICE TO HOLDERS; WAIVER.................................... 13
1.7 CONFLICT WITH TRUST INDENTURE ACT............................ 13
1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS..................... 14
1.9 SUCCESSORS AND ASSIGNS....................................... 14
1.10 SEPARABILITY CLAUSE.......................................... 14
1.11 BENEFITS OF INDENTURE........................................ 14
1.12 GOVERNING LAW................................................ 14
1.13 LEGAL HOLIDAYS............................................... 14
1.14 CONSENT TO SERVICE; JURISDICTION............................. 14
1.15 LANGUAGE OF NOTICES, ETC..................................... 15
2 SECURITY FORMS...................................................... 15
2.1 FORMS GENERALLY.............................................. 15
2.2 FORM OF FACE OF SECURITY..................................... 16
2.3 FORM OF REVERSE OF SECURITY.................................. 18
2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............. 24
3 THE SECURITIES...................................................... 25
3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES......................... 25
3.2 DENOMINATIONS................................................ 27
3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING............... 27
3.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.......... 29
3.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES............. 32
3.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED............... 32
3.7 PERSONS DEEMED OWNERS........................................ 33
3.8 CANCELLATION................................................. 34
3.9 COMPUTATION OF INTEREST...................................... 34
3.10 CUSIP OR "ISIN" NUMBERS...................................... 34
</Table>
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<Table>
<Caption>
PAGE
4 SATISFACTION AND DISCHARGE......................................... 34
4.1 SATISFACTION AND DISCHARGE OF INDENTURE..................... 34
4.2 APPLICATION OF TRUST MONEY.................................. 35
5 REMEDIES........................................................... 36
5.1 EVENTS OF DEFAULT........................................... 36
5.2 ILLEGALITY EVENTS........................................... 37
5.3 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.......... 37
5.4 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE...................................... 39
5.5 TRUSTEE MAY FILE PROOFS OF CLAIM............................ 39
5.6 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES. 40
5.7 APPLICATION OF MONEY COLLECTED.............................. 40
5.8 LIMITATION ON SUITS......................................... 40
5.9 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST........................................ 41
5.10 RESTORATION OF RIGHTS AND REMEDIES.......................... 41
5.11 RIGHTS AND REMEDIES CUMULATIVE.............................. 41
5.12 DELAY OR OMISSION NOT WAIVER................................ 41
5.13 CONTROL BY HOLDERS.......................................... 42
5.14 WAIVER OF PAST DEFAULTS..................................... 42
5.15 UNDERTAKING FOR COSTS....................................... 42
5.16 WAIVER OF USURY, STAY OR EXTENSION LAWS..................... 42
6 THE TRUSTEE........................................................ 43
6.1 CERTAIN DUTIES AND RESPONSIBILITIES......................... 43
6.2 NOTICE OF DEFAULT; POTENTIAL DEFAULT........................ 43
6.3 CERTAIN RIGHTS OF TRUSTEE................................... 43
6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES...... 45
6.5 MAY HOLD SECURITIES......................................... 45
6.6 MONEY HELD IN TRUST......................................... 45
6.7 COMPENSATION AND REIMBURSEMENT.............................. 45
6.8 CONFLICTING INTERESTS....................................... 46
6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY..................... 46
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........... 46
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...................... 48
6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. 49
6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........... 49
6.14 APPOINTMENT OF AUTHENTICATING AGENT......................... 49
</Table>
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<Table>
<Caption>
6.15 APPOINTMENT OF LUXEMBOURG TRANSFER AGENT................... 51
6.16 TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.... 51
7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................. 51
7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.. 51
7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..... 51
7.3 REPORTS BY TRUSTEE......................................... 52
8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............. 52
8.1 COMPANY AND GUARANTOR MAY CONSOLIDATE, ETC.
ONLY ON CERTAIN TERMS...................................... 52
8.2 SUCCESSOR SUBSTITUTED...................................... 53
8.3 RIGHT TO REDEMPTION........................................ 53
9 SUPPLEMENTAL INDENTURES........................................... 53
9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS......... 53
9.2 SUPPLEMENTAL INDENTURES OR WAIVER WITH CONSENT OF HOLDERS.. 55
9.3 EXECUTION OF SUPPLEMENTAL INDENTURES....................... 56
9.4 EFFECT OF SUPPLEMENTAL INDENTURES.......................... 56
9.5 CONFORMITY WITH TRUST INDENTURE ACT........................ 56
9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES......... 56
9.7 EFFECT OF WAIVER........................................... 56
10 COVENANTS......................................................... 57
10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST................. 57
10.2 MAINTENANCE OF OFFICE OR AGENCY............................ 57
10.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST............ 58
10.4 STATEMENT BY OFFICERS AS TO DEFAULT........................ 59
10.5 REPORTS BY COMPANY AND GUARANTOR........................... 59
10.6 LIMITATION ON LIENS........................................ 59
10.7 PAYMENT OF ADDITIONAL AMOUNTS.............................. 60
10.8 INDEMNIFICATION OF JUDGMENT CURRENCY....................... 63
10.9 FURTHER ACTS; PROTECTION OF COLLATERAL..................... 63
10.10 NOTICE OF LATE PAYMENT..................................... 65
10.11 SECURITIES HELD BY THE COMPANY............................. 65
10.12 SECURITIES ISSUED OR OUTSTANDING........................... 65
10.13 STATUS OF GUARANTY AND SECURITIES.......................... 65
10.14 RATING..................................................... 65
10.15 MAINTENANCE OF GOOD STANDING............................... 65
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<Table>
<Caption>
10.16 MAINTENANCE OF PROPERTIES.................................. 65
10.17 PAYMENT OF TAXES........................................... 66
10.18 OWNERSHIP OF THE COMPANY AND PAYMENT OF EXPENSES........... 66
10.19 FINANCIAL STATEMENTS AND REPORTS........................... 66
10.20 NOTICE TO TRUSTEE.......................................... 66
10.21 RESTRICTIONS ON THE COMPANY................................ 67
10.22 RESTRICTIONS ON THE GUARANTOR.............................. 67
10.23 CHANGE TO CONSTITUTIVE DOCUMENTS OF THE COMPANY............ 68
11 REDEMPTION OF SECURITIES.......................................... 68
11.1 RIGHT OF REDEMPTION........................................ 68
11.2 NOTICE OF REDEMPTION....................................... 69
11.3 DEPOSIT OF REDEMPTION PRICE................................ 69
11.4 SECURITIES PAYABLE ON REDEMPTION DATE...................... 70
11.5 SECURITIES REDEEMED IN PART................................ 70
12 GUARANTY.......................................................... 70
12.1 THE GUARANTY............................................... 70
12.2 GUARANTY UNCONDITIONAL..................................... 71
12.3 DISCHARGE; REINSTATEMENT................................... 71
12.4 WAIVER BY THE GUARANTOR.................................... 71
12.5 SUBROGATION AND CONTRIBUTION............................... 72
12.6 STAY OF ACCELERATION....................................... 72
12.7 EXECUTION AND DELIVERY OF GUARANTY......................... 72
</Table>
Note: This table of contents shall not, for any purpose, be deemed
to be a part of this Indenture.
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INDENTURE, dated as of March 8, 2002 among VALE OVERSEAS LIMITED, a Cayman
exempted company incorporated with limited liability (herein called the
"COMPANY"), having its principal office at Walker House, P.O. Box 908 GT, Mary
Street, Georgetown, Grand Cayman, Cayman Islands, COMPANHIA VALE DO RIO DOCE, a
company organized under the laws of the Federative Republic of Brazil (herein
called the "GUARANTOR"), having its principal office at Avenida Graca Aranha,
No. 26, 17(0) Andar, 20005-900 Rio de Janeiro, RJ, Brazil, and JPMORGAN CHASE
BANK, a bank duly organized and existing under the laws of New York, as Trustee
(herein called the "TRUSTEE").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its debt securities (herein called
collectively the "SECURITIES"), to be issued in one or more tranches of one or
more series as in this Indenture provided. All things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have
been done.
In addition, the Guarantor has duly authorized the execution and delivery of
this Indenture as guarantor of the Securities. All things necessary to make this
Indenture a valid agreement of the Guarantor, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is hereby covenanted and agreed that the terms and conditions upon which the
Securities are issued, authenticated, delivered and accepted by all Persons (as
defined below) who shall from time to time be or become the Holders thereof, and
the terms and conditions upon which any property herein mortgaged and pledged is
to be held and disposed of, which said terms and conditions the Trustee hereby
accepts and agrees to discharge pursuant to the terms hereof, are as follows:
1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
1.1.1 the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
1.1.2 terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings
assigned to them therein;
1.1.3 all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at
the date of such computation;
1.1.4 unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as
the case may be, of this Indenture;
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1.1.5 unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be
amended from time to time; and
1.1.6 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.
"ACT", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 10.7.
"AFFILIATE" of any specified Person means (i) any other Person who
directly or indirectly, through one or more intermediaries, controls or
is controlled by, or is under common control with such specified Person
or (ii) for the purposes of the definition of Indebtedness, any other
Person in which such specified Person has a 20% or more holding of
voting shares. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"AGENT MEMBERS" has the meaning specified in Section 3.4.5.
"APPLICABLE PROCEDURES" of the Depositary means, with respect to any
matter at any time, the policies and procedures of the Depositary, if
any, that are applicable to such matter at such time.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or the Guarantor, as applicable, or any committee of that board duly
authorized to act for it in respect hereof.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of each of the Company and the
Guarantor to have been duly adopted by the Board of Directors of each
of the Company and the Guarantor and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"BRAZIL" means the Federative Republic of Brazil.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of
New York or the City of Rio de Janeiro are authorized or obligated by
law or executive order to close.
"CLEARSTREAM, LUXEMBOURG" has the meaning specified in Section 3.4.5.
"COMMISSION" means the U.S. Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of
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this instrument such Commission is not existing and performing the
duties now assigned to it under applicable law, then the body
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed on behalf of the Company by any two of its Directors or its
attorneys in fact in accordance with its Bylaws and delivered to the
Trustee.
"CONSOLIDATED NET TANGIBLE ASSETS" means total assets (stated net of
applicable reserves and other properly deductible items, to the extent
not already deducted in the computation of total assets) after
deducting therefrom (i) all current liabilities and (ii) all goodwill,
trade names, trademarks, patents and other like intangible assets, each
as set forth on the most recent balance sheet of the Guarantor and its
consolidated Subsidiaries and computed in accordance with U.S.
generally accepted accounting principles.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered which office as of the date hereof is located at 450 West
33rd Street, New York, New York 10001, Attention: Institutional Trust
Services.
"CORPORATION" means a corporation, association, company, limited
liability company, joint-stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 3.6.
"DEFAULT RATE OF INTEREST" means the rate of interest otherwise payable
on the principal of the Securities plus 1% per annum.
"DEPOSITARY" means The Depository Trust Company until a successor
Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Depositary" shall mean such
successor Depositary.
"DOLLAR" and "$" mean a U.S. Dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"EUROCLEAR" has the meaning specified in Section 3.4.5.
"EVENT OF DEFAULT" has the meaning specified in Section 5.1.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934 and any
successor statute thereto.
"EXPIRATION DATE" has the meaning specified in Section 1.4.7.
"FIRST SUPPLEMENTAL INDENTURE" has the meaning specified in Section
3.1.
"FOREIGN TAXES" has the meaning specified in Section 10.7.
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"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a
nominee thereof.
"GUARANTOR" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Guarantor" shall mean such Person.
"GUARANTY" means the guaranty of the Securities by the Guarantor
pursuant to this Indenture.
"HOLDER" means, with respect to any Security, a Person in whose name
such Security is registered in the Security Register.
"ILLEGALITY EVENT" has the meaning specified in Section 5.2.
"INDEBTEDNESS" means any amount payable (whether as a direct obligation
or indirectly through a guarantee by such person) pursuant to an
agreement involving or evidencing money borrowed or received, a
conditional sale or a transfer with recourse or with an obligation to
repurchase or pursuant to a lease with substantially the same economic
effect as any such agreement or instrument and which, under U.S.
generally accepted accounting principles, would constitute a
capitalized lease obligation, PROVIDED, HOWEVER, that as used in
Section 5.1.3, "Indebtedness" shall not include any payment made by the
Guarantor on behalf of an Affiliate, upon any Indebtedness of such
Affiliate becoming immediately due and payable as a result of a default
by such Affiliate, pursuant to a guarantee or similar instrument
provided by the Guarantor in connection with such Indebtedness,
provided that such payment made by the Guarantor is made within five
Business Days of notice being provided to the Guarantor that payment is
due under such guarantee or similar instrument.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"JUDGMENT CURRENCY" has the meaning specified in Section 10.8.
"LIEN" means any mortgage, charge, pledge, lien, hypothecation,
security interest or other encumbrance, including, without limitation,
any equivalent of the foregoing created under the laws of the Cayman
Islands, Brazil or any other jurisdiction.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of repurchase right or
otherwise.
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"MOODY'S" means Moody's Investors Service, Inc.
"NOTICE OF DEFAULT" means a written notice of the kind specified in
Section 6.2.
"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Company or the Guarantor by any two of its Directors or its attorneys
in fact in accordance with its Bylaws, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor, and who shall be reasonably
acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment, redemption or repurchase money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; PROVIDED that, if such Securities are to be
redeemed, notice of such redemption shall have been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee shall have been made; and
(iii) Securities which have been paid pursuant to Section 3.5 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given,
made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder as of any date, (A) the
principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding
shall be the Dollar equivalent, determined as of such date in the
manner provided as contemplated by Section 3.1.11, of the principal
amount of such Security, and (B) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of
such other obligor 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, waiver or other action, only Securities
which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities 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 so
to act with respect to such Securities and that the pledgee
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is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" means any Person (i) having a combined capital and
surplus of not less than $100,000,000, (ii) subject to supervision or
examination by Federal or State authority and (iii) having a long-term
unsecured debt rating with respect to U.S. dollar obligations of at
least A2 or its equivalent rating by Moody's, that is authorized by the
Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
"PERMITTED LIEN" means any Lien:
(i) granted upon or with regard to any property hereafter acquired
by the Company or the Guarantor to secure the purchase price of
such property or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such property,
PROVIDED, HOWEVER, that the maximum sum secured by such
security shall not exceed the purchase price of such property
or the Indebtedness incurred solely for the purpose of
financing the acquisition of such property;
(ii) in existence on the date hereof and any extension, renewal or
replacement thereof; PROVIDED, HOWEVER, that the total amount
of Indebtedness so secured shall not exceed the amount so
secured on the date hereof;
(iii) arising by operation of law, such as tax, merchants', maritime
or other similar liens arising in the ordinary course of the
Company's or Guarantor's business;
(iv) arising in the ordinary course of business in connection with
the financing of export, import or other trade transactions to
secure indebtedness of the Company or Guarantor;
(v) securing or providing for the payment of Indebtedness incurred
in connection with any project financing by the Guarantor,
PROVIDED that (1) such security shall not extend to any
property in existence on the date hereof, to any revenues from
such property, or to any proceeds from claims belonging to the
Guarantor which arise from the operation, failure to meet
specifications, failure to complete, exploitation, sale or loss
of, or damage to, such property ("CLAIMS PROCEEDS"), (2) such
security shall not extend to any property (or to any revenues
or Claims Proceeds therefrom) at any project in existence on
the date hereof, other than the existing power plant projects
named Vitoria Energia, Aimores, Candonga, Funil, Capim Branco I
and Capim Branco II, Foz do Chapeco, Santa Isabel, Serra
Quebrada and Estreito projects and (3) such security only
extends to properties which are the subject of such project
financing, to any revenues from such properties, or to any
Claims Proceeds from such properties;
(vi) granted upon or with regard to any present or future asset or
property of the Company or Guarantor to (i) any Brazilian
governmental credit agency (including, but not limited to the
Brazilian National Treasury, Banco Nacional de Desenvolvimento
Economico e Social, BNDES Participacoes S.A.,
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Financiadora de Estudos e Projetos and Agencia Especial de
Financiamento Industrial); (ii) any Brazilian official
financial institutions (including, but not limited to Banco da
Amazonia S.A. - BASA e Banco do Nordeste do Brasil S.A. - BNB);
(iii) any international official export-import bank or official
export-import credit insurer; or (iv) the International Finance
Corporation or any international multilateral or
government-sponsored agency;
(vii) existing on any asset prior to the acquisition thereof by the
Company or Guarantor and not created in contemplation of such
acquisition;
(viii) any Lien created over funds reserved for the payment of
principal, interest and premium, if any, due in respect of
Securities issued under this Indenture; or
(ix) hereafter granted upon or in respect of any asset of the
Company or Guarantor other than those referred to in Clauses
(i) through (viii) above, PROVIDED that the aggregate amount
of Indebtedness secured pursuant to this clause (ix) shall not,
on the date any such Indebtedness is incurred, exceed an amount
equal to 10 per cent of the Guarantor's stockholders' equity
(calculated on the basis of the Guarantor's latest quarterly
unaudited or annual audited non-consolidated financial
statements, whichever is the most recently prepared, in
accordance with accounting principles generally accepted in
Brazil and currency exchange rates prevailing on the last day
of the period covered by such financial statements).
"PERSON" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series and subject to Section 10.2, means the place or places where the
principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.6.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 3.5 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"RDA" has the meaning specified in Section 1.14.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture as set forth in such Security.
"REGISTRATION RIGHTS AGREEMENT", has the meaning specified in Section
3.1.
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"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.1.5.
"REPURCHASE DATE", when used with respect to any Security to be
repurchased, means the date fixed for such repurchase by or pursuant to
this Indenture.
"REPURCHASE PRICE", when used with respect to any Security to be
repurchased, means the price at which it is to be repurchased pursuant
to this Indenture as set forth in such Security.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any
trust officer, any assistant trust officer or any other officer of the
Trustee, in each case, located in the Institutional Trust Services
department (or successor department) of the Trustee, and also means,
with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture. All references herein to the Securities
shall be deemed to include the Guaranty of the Securities, which is an
integral part thereof.
"SECURITIES ACT" means the U.S. Securities Act of 1933 and any
successor statute thereto.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.4.
"SIGNIFICANT SUBSIDIARY" shall mean, at any time, a Subsidiary which
meets any of the following conditions: (a) the Guarantor's and its
other Subsidiaries' investments in and advances to the Subsidiary
exceed 10% of the total assets of the consolidated group as of the end
of the most recently completed fiscal year; (b) the Guarantor's and its
other Subsidiaries' proportionate share of the total assets (after
intercompany eliminations) of the Subsidiary exceeds 10% of the total
assets of the consolidated group as of the end of the most recently
completed fiscal year; or (c) the Guarantor's and its other
Subsidiaries' equity in the income from continuing operations before
income taxes, extraordinary items and cumulative effect of a change in
accounting principle of the Subsidiary exceeds 10% of such income of
the consolidated group for the most recently completed fiscal year.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.6.
"STATED MATURITY", when used with respect to any Security or any
installment of interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or
such installment of interest is due and payable.
"SUBSIDIARY" shall mean any entity of which the Guarantor directly or
indirectly owns more than 51% of the outstanding voting shares, and the
Guarantor has the ability to elect a majority of the members of the
board of directors or other governing body.
- 8 -
"SUCCESSOR CORPORATION" has the meaning specified in Section 8.1.1.
"SUCCESSOR JURISDICTION" means the jurisdiction, other than Brazil or
the Cayman Islands, in which a Successor Corporation is incorporated or
considered to be resident.
"TRANSFER" of any Security means any sale, pledge, transfer,
hypothecation or other disposition of such Security or any interest
therein.
"TRUST INDENTURE ACT" means the U.S. Trust Indenture Act of 1939 and
any successor statute thereto.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one Person,
"Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series. Each
Trustee shall be a Person that (i) is eligible pursuant to the Trust
Indenture Act to act as such, (ii) has a combined capital and surplus
of at least $100,000,000, (iii) is subject to supervision or
examination by Federal or State authority, (iv) has a long-term
unsecured debt rating with respect to U.S. dollar obligations of at
least A2 or its equivalent rating by Moody's and (v) has its Corporate
Trust Office in the United States.
"UNITED STATES" or "U.S." means the United States of America (including
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
1.2 COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company and the
Guarantor shall furnish to the Trustee such certificates and opinions
as may be required hereunder and under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company or the
Guarantor, or an Opinion of Counsel if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any
other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for
certificates provided for in Section 10.4) shall include,
1.2.1 a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
1.2.2 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;
1.2.3 a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an
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informed opinion as to whether or not such covenant or
condition has been complied with; and
1.2.4 a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE
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 or covered 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.
Any certificate or opinion of an officer of the Company or the
Guarantor 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 in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are erroneous.
Any such certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or the
Guarantor stating that the information with respect to such factual
matters is in the possession of the Company or the Guarantor, unless
such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such
matters are erroneous.
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.
1.4 ACTS OF HOLDERS; RECORD DATES
1.4.1 Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture
to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company and the
Guarantor. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "ACT" of the Holders signing such instrument
or instruments. 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 6.1)
conclusive in favor of the Trustee, the Company and the
Guarantor, if made in the manner provided in this Section.
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1.4.2 The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof
of his 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.
1.4.3 The ownership of Securities shall be proved by the Security
Register.
1.4.4 Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee,
the Company or the Guarantor in reliance thereon, whether or
not notation of such action is made upon such Security.
1.4.5 The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given,
made or taken by Holders of Securities of such series, PROVIDED
that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to,
the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date
is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no
other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record
date; PROVIDED that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by
Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically
and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at
its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 1.6.
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1.4.6 The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in
Section 5.3, (iii) any request to institute proceedings
referred to in Section 5.8.2 or (iv) any direction referred to
in Section 5.13, in each case with respect to Securities of
such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series
on such record date, and no other Holders, shall be entitled to
join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date;
PROVIDED that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by
Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from
setting a new record date for any action (whereupon the record
date previously set shall automatically and without any action
by any Person be canceled and of no effect), nor shall anything
in this paragraph be construed to render ineffective any action
taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant
to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6.
1.4.7 With respect to any record date set pursuant to this Section,
the party hereto that sets such record date may designate any
day as the "Expiration Date" and from time to time may change
the Expiration Date to any earlier or later day, PROVIDED that
no such change shall be effective unless notice of the proposed
new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant
series in the manner set forth in Section 1.6, on or prior to
the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this
Section, the party hereto that set such record date shall be
deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration
Date shall be later than the 180th day after the applicable
record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such principal
amount.
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1.5 NOTICES, ETC., TO TRUSTEE, COMPANY AND GUARANTOR
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
1.5.1 the Trustee by any Holder or by the Company or Guarantor shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (which may be by facsimile) to or
with the Trustee at its Corporate Trust Office, or
1.5.2 (i) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class
postage prepaid, to both the Company and the Guarantor and (ii)
the Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class
postage prepaid, to both the Guarantor and the Company, in
either case addressed to it at the address specified below or
at any other address previously furnished in writing to the
Trustee by the Company or the Guarantor:
Avenida Graca Aranha, No. 26, 17[degree] Andar
20005-900 Rio de Janeiro, RJ, Brazil
Attention: Financial Director
Fax: 011-5521-3814-4679
Tel: 011-5521-3814-4726
with a copy to:
Attention: General Counsel
Fax: 011-5521-3814-9921
Tel: 011-5521-3814-4566
1.6 NOTICE TO HOLDERS; WAIVER
Where this Indenture provides for notice to Holders 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 Holder affected by such event, at his address as it appears in the
Security 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. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, 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 Holders 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 case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every
purpose hereunder.
- 13 -
Notwithstanding the provisions of this Section 1.6, in case any series
of Securities are listed in any stock exchange, a notice to holders of
such Securities given in accordance with the rules and procedures of
such stock exchange shall be regarded as a valid notice under this
section 1.6.
1.7 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such 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 excluded, as the case may be.
1.8 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.
1.9 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its respective successors and assigns, whether so
expressed or not.
1.10 SEPARABILITY CLAUSE
In case any provision in this Indenture or in the Securities 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.
1.11 BENEFITS OF INDENTURE
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
1.12 GOVERNING LAW
THIS INDENTURE, THE SECURITIES AND THE GUARANTY SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
1.13 LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any)
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 Interest
Payment Date, Redemption Date or at the Stated Maturity, as the case
may be; PROVIDED that no interest
- 14 -
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
1.14 CONSENT TO SERVICE; JURISDICTION
The Company, the Guarantor and the Trustee agree that any legal suit,
action or proceeding arising out of or relating to this Indenture, and
the Company and the Guarantor agree that any legal suit, action or
proceeding arising out of or relating to the Securities, may be
instituted in any federal or state court in the Borough of Manhattan,
The City of New York, in respect of actions brought against each such
party as a defendant, and each waives any objection which it may now
or hereafter have to the laying of the venue of any such legal suit,
action or proceeding, waives any immunity, to the extent permitted by
law, from jurisdiction or to service of process in respect of any such
suit, action or proceeding, waives any right to which it may be
entitled on account of place of residence or domicile and irrevocably
submits to the jurisdiction of any such court in any such suit, action
or proceeding. The Company and the Guarantor further submit to the
jurisdiction of the courts of their own corporate domiciles in any
legal suit, action or proceeding arising out of or relating to this
Indenture or the Securities. The Company and the Guarantor hereby
designate and appoint Rio Doce America, Inc. ("RDA") located at 546
5th Avenue, 12th Floor, New York, New York, 10036, as their authorized
agent upon which process may be served in any legal suit, action or
proceeding arising out of or relating to this Indenture or the
Securities which may be instituted in any federal or state court in
the Borough of Manhattan, The City of New York, New York, and agree
that service of process upon such agent, and written notice of said
service to the Company or the Guarantor, as the case may be, by the
Person serving the same, shall be deemed in every respect effective
service of process upon the Company or the Guarantor in any such suit,
action or proceeding and further designate the domicile of RDA
specified above and any domicile RDA may have in the future as their
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 Company and the Guarantor
will promptly appoint a successor agent for this purpose reasonably
acceptable to the Trustee. The Company and the Guarantor agree to take
any and all actions as may be necessary to maintain such designation
and appointment of such agent in full force and effect.
1.15 LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an
official language of the country of publication.
2 SECURITY FORMS
2.1 FORMS GENERALLY
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article or in such
other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in
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each case with 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 be required to
comply with the rules of any securities exchange or Depositary thereof
or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and the Guarantor and delivered to
the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
2.2 FORM OF FACE OF SECURITY
The following legends shall appear on the face of each Global
Security:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES
REFERRED TO IN SECTION 3.4.2. OF THE INDENTURE, THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
The following legend shall appear on the face of each Global Security
for which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 IN 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.
- 16 -
VALE OVERSEAS LIMITED
[ ]
GUARANTEED BY COMPANHIA VALE DO RIO DOCE
No. [__]
CUSIP No. [__] $[ ]
VALE OVERSEAS LIMITED, a company organized and existing under the laws
of the Cayman Islands (herein called the "COMPANY", which term
includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to [ ], or registered
assigns, the principal sum of [ ] Dollars on [ ] [IF THE SECURITY IS
TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- , and to pay interest
thereon from [ ] or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on [
] and [ ] in each year, commencing [ ], and at the Maturity thereof,
at the rate of [ ]% per annum, until the principal hereof is paid or
made available for payment [IF APPLICABLE, INSERT -- , PROVIDED that
any principal [and premium], and any such installment of interest,
which is overdue shall bear interest at the rate of [ ]% per annum (to
the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid
or made available for payment, and such interest shall be payable on
demand]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [ ] or [ ]
(whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest so payable, but not
punctually paid or duly provided for on any Interest Payment Date will
forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which this Security may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT --
The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon
redemption, upon repurchase or at Stated Maturity and in such case the
overdue principal [and any overdue premium] shall bear interest at the
rate of [ ]% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts
are due until they are paid or made available for payment. Interest on
any overdue principal [or premium] shall be payable on demand.]
Payment of the principal of [(and premium, if any)] and [IF
APPLICABLE, INSERT -- any such] interest on this Security will be made
pursuant to the Applicable Procedures of the
- 17 -
Depositary as permitted in the Indenture, PROVIDED, HOWEVER, that if
this Security is not a Global Security, payment may be made at the
office or agency of the Company maintained for that purpose in New
York, New York, in such coin or currency of the United States as at
the time of payment is legal tender for payment of public and private
debts, upon surrender of this Security in the case of any payment due
at the Maturity of the principal thereof (other than any payment of
interest payable on an Interest Payment Date); and PROVIDED, FURTHER,
that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: [______]
VALE OVERSEAS LIMITED
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
The undersigned hereby irrevocably and unconditionally guarantees the
full and punctual payment (whether at the Stated Maturity, upon
redemption, purchase pursuant to an offer to purchase or acceleration
or otherwise) of the principal, premium, interest, Additional Amounts
and all other amounts that may come due and payable under this
Security.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be
duly endorsed.
COMPANHIA VALE DO RIO DOCE
By: ______________________________
Name:
Title:
- 18 -
By: ______________________________
Name:
Title:
2.3 FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "SECURITIES"), issued and to be issued in
one or more tranches of one or more series under an Indenture, dated
as of March 8, 2002 (herein called the "INDENTURE", which term shall
have the meaning assigned to it in such instrument), among the
Company, Companhia Vale do Rio Doce, as Guarantor (herein called the
"GUARANTOR") and JPMorgan Chase Bank, as Trustee (herein called the
"TRUSTEE", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and
the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The full
and punctual payment of the principal of, premium, if any, and
interest on, and all other amounts payable under, this Security is
guaranteed by the Guarantor. This Security is one of the series
designated on the face hereof [IF APPLICABLE, INSERT -- , limited in
aggregate principal amount to $[ ]].
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than [ ] days' nor more than [ ] days'
notice, at any time [IF APPLICABLE, INSERT -- on or after [ ], 20[ ]],
as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [IF APPLICABLE, INSERT -- on or before [ ], [ ]%,
and if redeemed] during the 12-month period beginning [ ] of the years
indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ----- ---- -----
and thereafter at a Redemption Price equal to [ ]% of the principal
amount, together in the case of any such redemption with accrued
interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable
to the Holders of such Securities or one or more Predecessor
Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT -- In
the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
- 19 -
[If the Security is not subject to redemption, insert - This Security
is not redeemable prior to Stated Maturity.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT --
If an Event of Default or Illegality Event with respect to Securities
of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If
an Event of Default or Illegality Event with respect to Securities of
this series shall occur and be continuing, an amount of principal of
the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture. Such amount
shall be equal to -- INSERT FORMULA FOR DETERMINING THE AMOUNT. Upon
payment (i) of the amount of principal so declared due and payable and
(ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and premium and interest, if any, on
the Securities of this series shall terminate.]
All payments of principal[, premium] and interest in respect of the
Securities shall be made without withholding or deduction for any
present or future taxes, duties, assessments or governmental charges
of whatever nature imposed, levied, collected, withheld or assessed by
or on behalf of the Cayman Islands or Brazil or any Successor
Jurisdiction or any authority therein or thereof having power to tax
("FOREIGN TAXES") except to the extent that such Foreign Taxes are
required by the Cayman Islands, Brazil, such Successor Jurisdiction or
such authority to be withheld or deducted. In the event of any
withholding or deduction for any Foreign Taxes, the Company or the
Guarantor, as the case may be, shall pay such additional amounts
("ADDITIONAL AMOUNTS") as will result in receipt by the Holders of
Securities on the respective due dates of such amounts as would have
been received by them had no such withholding or deduction (including
for any Foreign Taxes payable in respect of Additional Amounts) been
required, except that no such Additional Amounts shall be payable with
respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable
for any such taxes, duties, assessments or other
governmental charges which would not have been imposed
but for (A) a connection between the Holder and the Cayman
Islands or Brazil other than the mere holding of such
Security and the receipt of payments with respect to such
Security or (B) failure by the Holder to comply with any
certification, identification or other reporting
requirement concerning the nationality, residence,
identity or connection with the Cayman Islands, Brazil
or a Successor Jurisdiction, or applicable political
subdivision or authority thereof or therein having power to
tax, of such Holder, if compliance is required by such
Successor Jurisdiction, or any political subdivision or
authority thereof or therein having power to tax as a
precondition to exemption from, or reduction in the rate of,
the tax, assessment or other governmental charge and the
Company has given the Holders at least 30 days' notice that
Holders will be required to provide such certification,
identification or other requirement;
- 20 -
(ii) in respect of any such taxes, duties, assessments or other
governmental charges with respect to a Security surrendered (if
surrender is required) more than 30 days after the date on
which such payment became due and payable or the date on which
payment thereof is duly provided for and notice thereof given
to Holders, whichever occurs later, except to the extent that
the Holder of such Security would have been entitled to such
Additional Amounts on surrender of such Security for payment on
the last day of such 30-day period;
(iii) in respect of estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or governmental
charge imposed with respect to a Security;
(iv) in respect of any tax, assessment or other governmental charge
payable otherwise than by deduction or withholding from
payments on any series of Securities or by direct payment by
the Company or the Guarantor in respect of claims made against
the Company or the Guarantor;
(v) where such Additional Amount is imposed on a payment to an
individual and is required to be made pursuant to any European
Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of November 26-27,
2000 or any law implementing or complying with, or introduced
in order to conform to, such directive; or
(vi) in respect of any combination of the above.
For purposes of the provisions described in clause (i) above, the term
"Holder" of any Security means the direct nominee of any beneficial
owner of such Security, which holds such beneficial owner's interest
in such Security. Notwithstanding the foregoing, the limitations on
the Company's or the Guarantor's obligation to pay Additional Amounts
set forth in clause (i) above shall not apply if the provision of
information, documentation or other evidence described in such clause
(i) would be materially more onerous, in form, in procedure or in the
substance of information disclosed, to a Holder or beneficial owner of
a Security (taking into account any relevant differences between U.S.
and Cayman Islands or Brazilian law, regulation or administrative
practice) than comparable information or other reporting requirements
imposed under U.S. tax law (including tax treaties between the United
States and the Cayman Islands or Brazil), regulation (including
proposed regulations) and administrative practice.
The Company or the Guarantor, as the case may be, shall promptly
provide the Trustee with documentation (which may consist of certified
copies of such documentation) satisfactory to the Trustee evidencing
the payment of Foreign Taxes in respect of which the Company or the
Guarantor has paid any Additional Amounts. Copies of such
documentation shall be made available to the Holders of the Securities
or the Paying Agent, as applicable, upon request therefor.
The Company or the Guarantor, as the case may be, shall pay all stamp,
issue, registration, documentary or other similar duties, if any,
which may be imposed by the Cayman Islands or Brazil or any
governmental entity or political subdivision therein or
- 21 -
thereof, or any taxing authority of or in any of the foregoing, with
respect to the Indenture or the issuance of the Securities or the
Guaranties.
All references herein or in the Indenture to principal, premium or
interest in respect of any Security or Guaranty shall be deemed to
include all Additional Amounts, if any, payable in respect of such
principal, premium or interest, unless the context otherwise requires,
and express mention of the payment of Additional Amounts in any
provision hereof shall not be construed as excluding reference to
Additional Amounts in those provisions hereof where such express
mention is not made.
In the event that Additional Amounts actually paid with respect to the
Securities pursuant to the preceding paragraph are based on rates of
deduction or withholding of taxes in excess of the appropriate rate
applicable to the Holder of such Securities, and, as a result thereof
such Holder is entitled to make claim for a refund or credit of such
excess from the authority imposing such withholding tax, then such
Holder shall, by accepting such Securities, be deemed to have assigned
and transferred all right, title, and interest to any such claim for a
refund or credit of such excess to the Company and the Guarantor.
However, by making such assignment, the Holder makes no representation
or warranty that the Company or the Guarantor will be entitled to
receive such claim for a refund or credit and incurs no other
obligation with respect thereto.
All references in the Indenture and the Securities to principal in
respect of any Security shall be deemed to mean and include any
Redemption Price or Repurchase Price payable in respect of such
Security pursuant to any redemption or repurchase right hereunder (and
all such references to the Stated Maturity of the principal in respect
of any Security shall be deemed to mean and include the Redemption
Date or Repurchase Date with respect to any such Redemption Price or
Repurchase Price), and all such references to principal, premium,
interest or Additional Amounts shall be deemed to mean and include any
amount payable in respect hereof pursuant to Section 10.7 of the
Indenture, and express mention of the payment of any Redemption Price,
or Repurchase Price or any such other amount in any provision hereof
or of the Indenture shall not be construed as excluding reference to
the payment of any Redemption Price or Repurchase Price, or any such
other amounts in those provisions hereof where such express reference
is not made.
The Company may redeem the Securities if, as a result of any amendment
to, or change in, the laws (or any rules, or regulations thereunder)
of the Cayman Islands or Brazil or any political subdivision or taxing
authority thereof or therein affecting taxation or any amendment to or
change in an official interpretation, administration or application of
such laws, rules, or regulations (including a holding by a court of
competent jurisdiction), which amendment or change of such laws,
rules, or regulations or the interpretation thereof becomes effective
on or after [Insert date specified therefor in Securities of the
applicable series], the Company would be obligated, after taking
measures the Company considers reasonable to avoid such requirement,
to pay Additional Amounts in excess of the Additional Amounts that the
Company would be obligated to pay if payments made on the Securities
were subject to withholding or deduction of Foreign Taxes at the rate
of 15%. In such event, the Securities are subject to redemption upon
not less than 30 nor more than 60 days' notice by mail, at any time,
as a whole but not in
- 22 -
part, at the election of the Company, at a cash price equal to the sum
of (i) the principal amount of the Securities being redeemed, (ii) any
accrued original issue discount thereon to the date fixed for
redemption, (iii) accrued and unpaid current interest thereon to the
date fixed for redemption, (iv) any premium applicable in the case of
redemption prior to Maturity, and (v) any Additional Amounts (as
defined in the Indenture) which would otherwise be payable.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of
a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions (i) permitting the Holders of a majority in principal
amount of the Securities at the time Outstanding of any series to be
affected under the Indenture, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and (ii) permitting the Holders of
a majority in principal amount of the Securities at the time
Outstanding of any series to be affected under the Indenture, on
behalf of the Holders of all Securities of such series, to waive
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture, or for the appointment of a
receiver or trustee, or for any other remedy thereunder, unless such
Holder shall have previously given the Trustee written notice of a
continuing Event of Default or Illegality Event with respect to the
Securities of this series, the Holders of not less than 25% in
principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default or
Illegality Event as Trustee and offered the Trustee indemnity
reasonably satisfactory to it, and the Trustee shall not have received
from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity.
The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof
or any [premium or] interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
and any [premium and] interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office of the Trustee or agency of the Company
- 23 -
in any place where the principal of and any [premium and] interest on
this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any multiple thereof.
As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of
like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due surrender of this Security for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether
or not this Security be overdue, and neither the Company, the
Guarantor, the Trustee nor any such agent shall be affected by notice
to the contrary.
[IF THIS SECURITY IS A GLOBAL SECURITY, INSERT - This Security is a
Global Security and is subject to the provisions of the Indenture
relating to Global Securities, including the limitations in Section
3.4 thereof on transfers and exchanges of Global Securities.]
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Security, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the [__] entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT--______________ (Cust)
Custodian _____________ under Uniform (Minor)
Gifts to Minors Act ________________(State)
Additional abbreviations may also be used though not in the above
list.
- 24 -
2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: [_______]
JPMORGAN CHASE BANK,
as Trustee
By: ________________________
Authorized Officer
3 THE SECURITIES
3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more tranches of one or more
series. No Securities may be issued before written confirmation is
received by the Trustee from Moody's that the issue of such Securities
will not result in a downgrading of the then current rating assigned
to any Outstanding Securities provided that no such written
confirmation shall be required in connection with the issuance of up
to $300,000,000 aggregate principal amount of Series A and Series B
8.625% Enhanced Guaranteed Notes due 2007 (collectively, the "2007
Notes") pursuant to the First Supplemental Indenture dated as of the
date hereof among the Company, the Guarantor and the Trustee (the
"First Supplemental Indenture") or (ii) the issuance of the "Exchange
Securities" contemplated by the Registration Rights Agreement dated as
of March 8, 2002 among the Company, the Guarantor and the Initial
Purchasers named therein (the "Registration Rights Agreement"). There
shall be established in or pursuant to a Board Resolution and, subject
to Section 3.3, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series,
3.1.1 the title of the Securities, including CUSIP Numbers, of the
series (which shall distinguish the Securities of the series
from Securities of any other series);
3.1.2 any limit upon the aggregate principal amount of the Securities
which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.4, 3.5,
9.6 or 11.5 and except for any Securities which, pursuant to
Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
3.1.3 the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest;
- 25 -
3.1.4 the date or dates on which the principal of the Securities of
the series is payable;
3.1.5 the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for
any interest payable on any Interest Payment Date;
3.1.6 the place or places where the principal of and any premium and
interest on Securities of the series shall be payable and the
manner in which any payment may be made;
3.1.7 the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of
the Company;
3.1.8 the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
3.1.9 the rights, if any, of the Holders of the series to demand
exchange of their Securities for Securities subject to a
registration statement under the Securities Act declared
effective by the Commission;
3.1.10 if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series
shall be issuable;
3.1.11 if other than the currency of the United States, the currency,
currencies or currency units in which payment of the principal
of and any premium and interest on any Securities of the series
shall be payable and the manner of determining the equivalent
thereof in the currency of the United States for purposes of
the definition of "Outstanding" in Section 1.1;
3.1.12 if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall
be determined;
3.1.13 if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of
the Company or a Holder thereof, in one or more currencies or
currency units other than that or those in which the Securities
are stated to be payable, the currency, currencies or currency
units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
3.1.14 if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.3;
- 26 -
3.1.15 any collateral or other security pledged against payment of
principal, interest or premium, if any, on the Securities;
3.1.16 the applicability, non-applicability, or variation, of Section
10.7 with respect to the Securities of such series;
3.1.17 if and as applicable, that the Securities the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any
circumstances other than those set forth in Section 3.4 in
which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name
of, a Person other than the Depositary for such Global Security
or a nominee thereof and in which any such transfer may be
registered;
3.1.18 the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable for any other
securities;
3.1.19 any addition to or change in the covenants set forth in Article
Ten which applies to the Securities of the series; and
3.1.20 any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1.5).
All Securities of any one series shall be substantially identical
except as to issue price and first payment of interest.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of
the series.
Notwithstanding Clause 3.1.2 herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and
additional Securities of such series may be issued up to the maximum
aggregate principal amount authorized with respect to such series as
increased.
3.2 DENOMINATIONS
The Securities shall be issuable only in registered form without
coupons and, unless otherwise specified as contemplated by Section
3.1.10, only in denominations of $1,000 and any integral multiple
thereof.
3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Securities shall be executed on behalf of the Company by any two
of its Directors or its attorneys in fact in accordance with its
Bylaws. The Guaranty on the Securities shall be endorsed on behalf of
the Guarantor by any two of its Directors or its attorneys in fact in
accordance with its Bylaws. The signature of any of these officers on
the Securities or the Guaranty may be manual or facsimile.
- 27 -
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such
Securities. Guaranties bearing the manual or facsimile endorsement of
individuals who were at any time the proper officers of the Guarantor
shall bind the Guarantor, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of Securities bearing such endorsement or did not hold
such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
executed by the Company and properly endorsed by the Guarantor to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have
been established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such Securities,
and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating,
3.3.1 if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that
such form has been established in conformity with the
provisions of this Indenture;
3.3.2 if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the
provisions of this Indenture;
3.3.3 that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and
3.3.4 that the Guaranty, when the Securities upon which it shall have
been endorsed shall have been authenticated and delivered by
the Trustee and when properly endorsed by the Guarantor in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Guarantor enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and the general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if, in the opinion of
counsel to the Trustee, the issue of
- 28 -
such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this
Indenture.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company
Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security
of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such
series to be issued and in that case the Trustee may rely, as to the
authorization by the Company and the Guarantor of any of such
Securities and the Guaranty, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon
the Opinion of Counsel and the other documents delivered pursuant to
Sections 2.1 and 3.1 and this Section, as applicable, in connection
with the first authentication of Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 3.8, for all purposes of this
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
3.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office herein
sometimes referred to as the "SECURITY Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "SECURITY REGISTRAR" for
the purpose of registering Securities and transfers of Securities as
herein provided. Upon surrender for registration of transfer of any
Security at an office or agency of the Company designated pursuant to
Section 10.2 for such purpose, and subject to the other provisions of
this Section, the Company shall execute and the Guarantor shall
endorse, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new
Securities of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, and subject to the other provisions of
this Section, Securities of any series may be exchanged for other
Securities of the same series, of any
- 29 -
authorized denominations and of a like aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, and
subject to the other provisions of this Section, the Company shall
execute and the Guarantor shall endorse, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing
the same debt, and subject to the other provisions of this Section,
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 9.6 or 11.5 not
involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to
issue, register the transfer of or exchange any Securities of that
series (or of that series and specified tenor, as the case may be)
during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 11.2 and ending at
the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being
redeemed in part.
The provisions of Clauses 3.4.1, 3.4.2, 3.4.3, 3.4.4 and 3.4.5 below
shall apply only to Global Securities:
3.4.1 Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary or a nominee
thereof and delivered to such Depositary or a nominee thereof
or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this
Indenture.
3.4.2 Notwithstanding any other provision in this Indenture or the
Securities, no Global Security may be exchanged in whole or in
part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of
any Person other than the Depositary or a nominee thereof
unless (A) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global
Security, (B) the Depositary has ceased to function as a
clearing agency registered under the Exchange Act or
Clearstream, Luxembourg or Euroclear is closed for business for
a continuous period of 14 days (other than by reason of
holidays, statutory or otherwise) or
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announces an intention permanently to cease doing business or
does in fact do so, (C) there shall have occurred and be
continuing an Event of Default or Illegality Event with respect
to such Global Security or (D) a request for certificates has
been made by the Company upon 60 days' prior written notice
given to the Trustee in accordance with the Depositary's
customary procedures and to the Depositary. Any Global Security
exchanged pursuant to Clause (A) or (B) above shall be so
exchanged in whole and not in part and any Global Security
exchanged pursuant to Clause (C) or (D) above may be exchanged
in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security,
PROVIDED that any such Security so issued that is registered in
the name of a Person other than the Depositary or a nominee
thereof shall not be a Global Security.
3.4.3 Securities issued in exchange for a Global Security or any
portion thereof pursuant to Clause 3.4.2 above shall be issued
in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such
Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear
any legends required hereunder. Any Global Security to be
exchanged in whole shall be surrendered by the Depositary to
the Trustee, as Security Registrar. With regard to any Global
Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof
shall be reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment made on
the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.
3.4.4 In the event of the occurrence of any of the events specified
in Clause 3.4.2 above, the Company will promptly make available
to the Trustee a reasonable supply of certificated Securities
in definitive, fully registered form, without interest coupons.
3.4.5 Neither any members of, or participants in, the Depositary
("AGENT MEMBERS") nor any other Persons on whose behalf Agent
Members may act (including Euroclear Bank S.A./N.V., as
operator of the Euroclear System ("EUROCLEAR") and Clearstream
Banking, societe anonyme ("CLEARSTREAM, LUXEMBOURG") and
account holders and participants therein) shall have any rights
under this Indenture with respect to any Global Security, or
under any Global Security, and the Depositary or such nominee,
as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute
owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any
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written certification, proxy or other authorization furnished
by the Depositary or such nominee, as the case may be, or
impair, as between the Depositary, its Agent Members and any
other person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the
exercise of the rights of a holder of any Security.
3.4.6 None of the Company, the Guarantor, the Trustee or any agent of
the Company, the Guarantor or the Trustee shall have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership
interests.
3.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
If any mutilated Security is surrendered to the Trustee, the Company
shall execute, the Guarantor shall endorse and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the
same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute, the Guarantor shall endorse and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security
upon compliance with the foregoing provisions.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security 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
Securities of that series duly issued hereunder.
The provisions of this Section 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
Securities.
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3.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "DEFAULTED INTEREST") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause 3.6.1
or 3.6.2 below:
3.6.1 The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at
his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following Clause 3.6.2.
3.6.2 The Company may make payment of any Defaulted Interest on the
Securities of any series to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the
Company to the Trustee of the
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proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
3.7 PERSONS DEEMED OWNERS
Prior to due surrender of a Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and
(subject to Section 3.6) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the
Company, the Guarantor or the Trustee shall be affected by notice to
the contrary.
3.8 CANCELLATION
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall
be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and
all Securities so delivered shall be promptly canceled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
3.9 COMPUTATION OF INTEREST
Unless otherwise specified under Section 3.1 with respect to the
Securities of a particular series, interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
3.10 CUSIP OR "ISIN" NUMBERS
The Company in issuing the Securities may use "CUSIP" or "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" or "ISIN" numbers in notices of redemption as a convenience to
Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in
the CUSIP or ISIN numbers.
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4 SATISFACTION AND DISCHARGE
4.1 SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
4.1.1 either
(i) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided
in Section 3.5 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(a) have become due and payable, or
(b) will become due and payable at their Stated Maturity
within one year, or
(c) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i) or (ii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity, Redemption Date or
Repurchase Date, as the case may be;
4.1.2 the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
4.1.3 the Company has delivered to the Trustee an Officers'
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.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under
Section 6.7, the obligations of the Company and the Guarantor to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (ii) of Clause
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4.1.1 of this Section, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3 shall survive such
satisfaction and discharge.
4.2 APPLICATION OF TRUST MONEY
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee.
5 REMEDIES
5.1 EVENTS OF DEFAULT
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have
occurred and be continuing:
5.1.1 a failure to pay any interest (or Additional Amounts, if any)
on any of the Securities on the date when due and such failure
shall continue for a period of 30 days;
5.1.2 a failure to pay any principal or premium, if any, (or
Additional Amounts, if any) on any of the Securities on the
date when due;
5.1.3 any default or event of default by the Company or the Guarantor
or any Significant Subsidiary occurring and continuing under
any agreement, instrument or other document evidencing
outstanding Indebtedness in excess of $50,000,000 in aggregate
(or its equivalent in other currencies) and such default or
event of default results in the actual acceleration of such
Indebtedness;
5.1.4 the Company or the Guarantor shall fail to perform or observe
any other material covenant or agreement in respect of the
Securities contained in this Indenture or in a supplemental
indenture (other than a covenant which has been expressly
included in this Indenture solely for the benefit of series of
Securities other than that series) and such failure shall
continue for a period of 30 days after it occurs; or
5.1.5 the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company, the
Guarantor or any Significant Subsidiary in an involuntary case
or proceeding under any applicable bankruptcy, insolvency,
suspension of payments, reorganization or other similar law, or
(B) a decree or order adjudging the Company, the Guarantor or
any Significant Subsidiary a bankrupt or insolvent, or
suspending payments, or approving as
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properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company, the
Guarantor or any Significant Subsidiary under any applicable
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company,
the Guarantor or any Significant Subsidiary or of any
substantial part of the property of the Company, the Guarantor
or any Significant Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company, the Guarantor or any
Significant Subsidiary, and the continuance of any such decree
or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
5.1.6 the commencement by the Company, the Guarantor or any
Significant Subsidiary of a voluntary case or proceeding under
any applicable bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the
Company, the Guarantor or any Significant Subsidiary to the
entry of a decree or order for relief in respect of the
Company, the Guarantor or any Significant Subsidiary in an
involuntary case or proceeding under any applicable bankruptcy,
insolvency, suspension of payments, reorganization or other
similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company, the
Guarantor or any Significant Subsidiary, or the filing by the
Company, the Guarantor, or any Significant Subsidiary of a
petition or answer or consent seeking reorganization or relief
under any applicable law or the consent by the Company, the
Guarantor or any Significant Subsidiary to the filing of such
petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company, the Guarantor
or any Significant Subsidiary or of any substantial part of the
property of the Company, the Guarantor or any Significant
Subsidiary, or the making by the Company, the Guarantor or any
Significant Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company, the Guarantor or
any Significant Subsidiary in writing of its inability to pay
its debts generally as they become due or the taking of
corporate action by the Company, the Guarantor or any
Significant Subsidiary in furtherance of any such action
(evidenced by the adoption of a corporate resolution in favor
of any such actions or an action of any of the officers of the
Company, the Guarantor or such Significant Subsidiary that
similarly binds the Company, the Guarantor or such Significant
Subsidiary, as the case may be), or the general inability of
the Company, the Guarantor or any Significant Subsidiary to
make payment of their obligations as they come due.
5.2 ILLEGALITY EVENTS
"ILLEGALITY EVENT", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason
for such Illegality Event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have
occurred and be continuing:
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5.2.1 any governmental authorization necessary for the performance of
any obligation of the Company or the Guarantor under this
Indenture or the Securities fails to enter into or come into
full force and effect or remain in full force and effect;
5.2.2 it is or will become unlawful for the Company or the Guarantor
to perform or comply with any one or more of its obligations
under any of the Securities; or
5.2.3 any event occurs which under the laws of Brazil or the Cayman
Islands has an analogous effect to any of the events referred
to in paragraph 5.2.1 above.
5.3 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
If an Event of Default or Illegality Event with respect to any series
of Securities (other than those Events of Default in Sections 5.1.5
and 5.1.6 insofar as they relate to the Company and the Guarantor but
not to a Significant Subsidiary of the Guarantor), occurs and is
continuing, then and in every such case, including an Event of Default
in Sections 5.1.5 and 5.1.6 relating to a Significant Subsidiary of
the Guarantor, the Trustee shall, at the written request of the
Holders of not less than 25% in principal amount of the Outstanding
Securities of that series, by notice in writing to the Company,
declare the principal of all the Securities to be due and payable
immediately, and upon any such declaration such principal and any
accrued interest and any unpaid Additional Amounts thereon shall
become immediately due and payable. If an Event of Default specified
in Sections 5.1.5 and 5.1.6 occurs and is continuing with respect to
the Company or the Guarantor (but not a Significant Subsidiary of the
Guarantor), the principal and any accrued interest, together with any
Additional Amounts thereon, on all of the Securities of that series
then Outstanding shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series at the time Outstanding has been made 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
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences
if
5.3.1 the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest and any Additional Amounts thereon
on all of the Securities of that series,
(ii) the principal of any Securities of that series which
have become due otherwise than by such declaration of
acceleration,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by (or
prescribed therefor in) the Securities of that series,
and
(iv) all sums paid or advanced by the Trustee hereunder and
all amounts owing the Trustee under Section 6.7;
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and
5.3.2 all Events of Default or Illegality Events, other than the
non-payment of the principal of Securities which have become
due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.14.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
5.4 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE The
Company covenants that if
5.4.1 default is made in the payment of any interest (including any
Additional Amounts) on any Security when such interest becomes
due and payable and such default continues for a period of 30
days, or
5.4.2 default is made in the payment of the principal (including any
Redemption Price or Repurchase Price) of (or premium, if any,
on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and any premium and
interest, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and
on any overdue interest, at the rate borne by (or prescribed therefor
in) such Securities, together with any Additional Amounts thereon,
and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all amounts due the Trustee under
Section 6.7.
If an Event of Default or Illegality Event with respect to Securities
of any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of
the Holders of that series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
5.5 TRUSTEE MAY FILE PROOFS OF CLAIM
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee
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shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding; PROVIDED, HOWEVER, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or
other similar committee.
5.6 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession
of any of the Securities 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 agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been
recovered.
5.7 APPLICATION OF MONEY COLLECTED
Any money collected by the Trustee pursuant to this Article 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 any premium or interest, upon presentation of the
Securities 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 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Securities for principal and any premium and interest,
respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
5.8 LIMITATION ON SUITS
No Holder of any Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
5.8.1 such Holder has previously given written notice to the Trustee
of a continuing Event of Default or Illegality Event with
respect to the Securities of that series;
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5.8.2 the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default or Illegality Event in its own name as
Trustee hereunder;
5.8.3 such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request;
5.8.4 the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
5.8.5 no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
5.9 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium
and (subject to Section 3.6) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the
case of redemption or repurchase, on the Redemption Date or Repurchase
Date, as the case may be), and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the
consent of such Holder.
5.10 RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Guarantor, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
5.11 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.5, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders 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
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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.
5.12 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default or
Illegality Event shall impair any such right or remedy or constitute a
waiver of any such Event of Default or Illegality Event or an
acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
5.13 CONTROL BY HOLDERS
The Holders of a majority in principal amount of the Outstanding
Securities of any series 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 Securities of such series, PROVIDED that
5.13.1 such direction shall not be in conflict with any rule of law
or with this Indenture,
5.13.2 the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
5.13.3 subject to the provisions of Section 6.1, the Trustee shall
have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability
against which indemnity would not be satisfactory.
5.14 WAIVER OF PAST DEFAULTS
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past Event of Default or
Illegality Event hereunder with respect to such series and its
consequences, except a default
5.14.1 in the payment of the principal of or any premium or interest
on any Security of such series, or
5.14.2 in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default or Illegality Event shall cease to
exist, and any Event of Default or Illegality Event 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 Illegality Event or impair any right consequent thereon.
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5.15 UNDERTAKING FOR COSTS
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,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs, including reasonable attorneys' fees and
expenses, against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; PROVIDED that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or to make such an assessment in
any suit instituted by the Company, the Guarantor, or the Trustee or
in any suit to require the Company to repurchase any Security in
accordance with its terms.
5.16 WAIVER OF USURY, STAY OR EXTENSION LAWS
Each of the Company and the Guarantor 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 usury, 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 each of the Company and the
Guarantor (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.
6 THE TRUSTEE
6.1 CERTAIN DUTIES AND RESPONSIBILITIES
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section. The
Trustee shall deliver a copy of all notices, documents, certificates
and other items (including reports and opinions) received or delivered
pursuant to this Indenture to Moody's. The agreement of the Trustee
made in the preceding sentence has been made as a matter of courtesy
and accommodation only and the Trustee shall not be liable to any
Person for its failure to comply with the agreement contained therein.
6.2 NOTICE OF DEFAULT; POTENTIAL DEFAULT
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such
series notice of such default as and to the extent provided by the
Trust Indenture Act (a "NOTICE OF DEFAULT"). Specifically, the Trustee
shall provide Notice of Default to each Holder promptly, but in no
event later than within
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15 days of occurrence, and in the manner provided by Section 313(c) of
the Trust Indenture Act or any successor section thereto, of any
default of which the Trustee is aware. The Trustee shall also provide
a notice to each Holder of any claim of default within 30 days of
receiving a written assertion of such claim from Holders of no less
than 10% of the aggregate principal amount of Notes then outstanding.
For the purpose of this Section, the term "DEFAULT" means any event
which is, or after notice or lapse of time or both would become, an
Event of Default or Illegality Event with respect to Securities of
such series. If on the Business Day prior to an Interest Payment Date
the Company has not deposited with the Trustee funds sufficient to pay
the interest due on the next Interest Payment Date, then the Trustee
shall provide written notice to the Guarantor of such failure.
6.3 CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 6.1:
6.3.1 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, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to
be genuine and to have been signed or presented by the proper
party or parties;
6.3.2 any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution. Any request or
direction of the Guarantor mentioned herein shall be
sufficiently evidenced by a written request or direction signed
on behalf of the Guarantor by any two of its Directors or its
attorneys in fact in accordance with its Bylaws;
6.3.3 whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
6.3.4 the Trustee may consult with counsel of its own choice and the
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
6.3.5 the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with
such request or direction;
6.3.6 the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion,
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report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document in connection with this Indenture, but the Trustee,
in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney and shall incur no liability or additional
liability of any kind by reason of such inquiry or
investigation;
6.3.7 the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
PROVIDED that the Trustee shall be required to terminate any
such agent if it has actual knowledge of any wilful or
negligent failure by such agent to perform its delegated
duties; and
6.3.8 the Trustee shall not be deemed to have notice of any default
or Event of Default or Illegality Event 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,
Event of Default or Illegality Event is received by the Trustee
at the Corporate Trust Office of the Trustee from the Company,
the Guarantor or any Holder, and such notice references the
Securities and this Indenture.
6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
Neither the Trustee nor any Authenticating Agent assume any
responsibility for the correctness of the recitals contained herein
and in the Securities, except the Trustee's certificates of
authentication. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company or the Guarantor of
Securities or the proceeds thereof.
6.5 MAY HOLD SECURITIES
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company and the Guarantor with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
6.6 MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
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6.7 COMPENSATION AND REIMBURSEMENT
6.7.1 The Company and the Guarantor agree to pay to the Trustee from
time to time such compensation as shall be agreed in writing
between the parties for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust).
6.7.2 The Company and the Guarantor agree, except as otherwise
expressly provided herein, to reimburse the Trustee upon its
request for all reasonable and itemized expenses, disbursements
and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or willful misconduct.
6.7.3 The Guarantor agrees to fully indemnify each of the Trustee and
any predecessor Trustee for, and to hold it harmless against,
any and all losses, liabilities, damages, claims or expenses
incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim
(whether asserted by the Company, a Holder or any other Person)
or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1.5 or Section 5.1.6,
the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or
State bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the Company and
the Guarantor under this Section, the Trustee shall have a claim prior
to the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of (premium, if any) or interest on such Securities.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture.
6.8 CONFLICTING INTERESTS
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. To the extent permitted by the Trust Indenture Act, the
Trustee shall not be deemed to have a conflicting interest by virtue
of being a trustee under this Indenture with respect to Securities of
more than one series.
- 46 -
6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be a Trustee
hereunder for Securities of one or more other series. Each Trustee
shall be a Person that (i) is eligible pursuant to the Trust Indenture
Act to act as such, (ii) has a combined capital and surplus of at
least $100,000,000, (iii) is subject to supervision or examination by
Federal or State authority, (iv) has a long-term unsecured debt rating
with respect to U.S. dollar obligations of at least A2 or its
equivalent rating by Moody's and (v) has its Corporate Trust Office in
the United States. If any such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person 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 the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 45
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
If at any time:
6.10.1 the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six
months, or
6.10.2 the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the
Company or by any such Holder, or
6.10.3 the Trustee shall become incapable of acting or shall be
adjudged a 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 Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to
Section 5.15, any Holder who has
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been a bona fide Holder of a Security 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 with
respect to all Securities and the appointment of a successor Trustee
or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of
any series to all Holders of Securities of such series in the manner
provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
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In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
Any corporation 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 corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such
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authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
6.14 APPOINTMENT OF AUTHENTICATING AGENT
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration
of transfer, or partial redemption or pursuant to Section 3.5, and
Securities 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. Wherever reference is made in
this Indenture to the authentication and delivery of Securities 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. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating
Agent, have a combined capital and surplus of at least $100,000,000,
be subject to supervision or examination by Federal or State authority
and have a long-term unsecured debt rating with respect to U.S. dollar
obligations of at least A2 or its equivalent rating by Moody's. If
such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating 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
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination,
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or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders as
their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company and the Guarantor agree to pay to each Authenticating
Agent from time to time reasonable compensation for its services under
this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
JPMorgan Chase Bank,
as Trustee
By: ____________________________
as Authenticating Agent
By: ____________________________
Authorized Officer
6.15 APPOINTMENT OF LUXEMBOURG TRANSFER AGENT
For so long as the rules of the Luxembourg Stock Exchange so require,
the Company and the Guarantor shall appoint and maintain a transfer
agent located in Luxembourg with respect to Securities listed on the
Luxembourg Stock Exchange.
The Company and the Guarantor agree to pay to each such agent from
time to time reasonable compensation for its services under this
Section.
6.16 TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be
taken or such omission shall be effective. The Trustee shall not be
liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after
the date specified in such application (which date shall not be less
than five Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any
such action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
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7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the Trustee
7.1.1 semi-annually, not more than 15 days after each Regular
Record Date with respect to each series of Securities, a
list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of
such series as of such Regular Record Date, and
7.1.2 at such other times as the Trustee may reasonably request
in writing, within 30 days after the receipt by the Company
of any such request, a list of similar form and content as
of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
7.2.1 The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee
as provided in Section 7.1 and the names and addresses of
Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it
as provided in Section 7.1 upon receipt of a new list so
furnished.
7.2.2 The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under
the Securities, and the corresponding rights and duties of
the Trustee, shall be as provided by the Trust Indenture
Act.
7.2.3 Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
7.3 REPORTS BY TRUSTEE
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after each
March 8 following the date of this Indenture deliver to Holders a
brief report, dated as of such March 8, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission (unless at the
time no Outstanding Securities have been registered with the
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Commission pursuant to the Securities Act) and with the Company. The
Company will promptly notify the Trustee when any Securities are
listed on any stock exchange.
8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
8.1 COMPANY AND GUARANTOR MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS
Neither the Company nor the Guarantor shall, without the consent of
the Holders of a majority in aggregate principal amount of the
Securities in accordance with this Indenture, consolidate with or
merge into any other corporation or (x) in the case of the Company,
convey or transfer all or substantially all of its properties or
assets to any other Person or (y) in the case of the Guarantor,
convey or transfer all or substantially all of its mining properties
or assets to any other Person, unless:
8.1.1 the corporation formed by such consolidation or into which
the Company or Guarantor is merged or the Person which
acquires by conveyance or transfer all or substantially all
of the properties or assets of the Company or all or
substantially all of the mining properties or assets of the
Guarantor (the "Successor Corporation") shall expressly
assume, pursuant to this Indenture, the due and punctual
repayment of the principal and interest on all the
Securities and all other obligations of the Company or the
Guarantor, as applicable, under the Indenture and the
Securities;
8.1.2 immediately after giving effect to such transaction, no
Event of Default or Illegality Event with respect to any
Security shall have occurred and be continuing;
8.1.3 the Company and the Guarantor have delivered to the Trustee
(a) a certificate signed by an executive officer of the
Company and an executive officer of the Guarantor stating
that such consolidation, merger, conveyance or transfer
complies with this Article and that all conditions
precedent herein provided, which relate to such
transaction, have been complied with and (b) an Opinion of
Counsel of recognized standing as to the legal issues
relating thereto; and
8.1.4 the Successor Corporation shall expressly agree to withhold
against any tax, duty, assessment or other governmental
charge thereafter imposed or levied by Brazil, the Cayman
Islands, a Successor Jurisdiction or any political
subdivision or authority thereof or therein having power to
tax as a consequence of such consolidation, merger,
conveyance or transfer with respect to the payment of
principal of or interest on the Securities, and to pay such
Additional Amounts as may be necessary to ensure that the
net amounts receivable by Holders after any withholding or
deduction of any such tax, assessment, duty or other
governmental charge shall equal the respective amounts of
principal, premium (if any) and interest which would have
been receivable in respect of the Securities in the absence
of such consolidation, merger, conveyance or transfer;
provided, however, that Holders will not be subject to the
exceptions and limitations contained in Section 10.7 in
relation to the Successor Jurisdiction.
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8.2 SUCCESSOR SUBSTITUTED
Upon any consolidation, merger, conveyance, or transfer in
accordance with this Article, the Successor Corporation shall
succeed to, and be substituted for, and may exercise every right and
power of the Company or the Guarantor, as applicable, under the
Securities with the same effect as if the Successor Corporation had
been named as the issuer or guarantor of the Securities herein.
8.3 RIGHT TO REDEMPTION
No Successor Corporation shall have the right to redeem the
Securities unless the Company and the Guarantor would have been
entitled to redeem the Securities in similar circumstances.
9 SUPPLEMENTAL INDENTURES
9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, the Guarantor, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
9.1.1 to evidence the succession of another Person to the Company
or the Guarantor and the assumption by any such successor
of the covenants of the Company or the Guarantor herein and
in the Securities; or
9.1.2 to add to the covenants of the Company or the Guarantor for
the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit
of less than all series of Securities, stating that such
covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power
herein conferred upon the Company or the Guarantor; or
9.1.3 to add any additional Events of Default or Illegality
Events for the benefit of the Holders of all or any series
of Securities (and if such additional Events of Default or
Illegality Events are to be for the benefit of less than
all series of Securities, stating that such additional
Events of Default or Illegality Events are expressly being
included solely for the benefit of such series); or
9.1.4 to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
9.1.5 to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of
Securities, PROVIDED that any such addition, change or
elimination (A) shall neither (i) apply to any Security of
any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any
such Security with
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respect to such provision or (B) shall become effective
only when there is no such Security Outstanding; or
9.1.6 to secure the Securities pursuant to the requirements of
Article Ten or otherwise; or
9.1.7 to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
9.1.8 to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11; or
9.1.9 to cure any ambiguity, to correct or supplement any
provision herein which 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 that such action pursuant to
this clause 9.1.9 shall not adversely affect the interests
of the Holders of Securities of any series in any material
respect; or
9.1.10 to issue an unlimited amount of 2007 Notes pursuant to the
First Supplemental Indenture, to issue an unlimited amount
of "Exchange Securities" contemplated by the Registration
Rights Agreement and to comply with the obligations of the
Company and the Guarantor thereunder.
9.2 SUPPLEMENTAL INDENTURES OR WAIVER WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series
affected by such supplemental indenture or waiver, by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, the Guarantor, when authorized by
a Board Resolution, and the Trustee may (i) enter into an indenture
or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this
Indenture or (ii) waive the application of any provision of this
Indenture; PROVIDED, HOWEVER, that no such supplemental indenture or
waiver shall, without the consent of the Holder of each Outstanding
Security affected thereby,
9.2.1 change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of any
Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section
5.3, or modify in any way the Company's or the Guarantor's
obligation to pay Additional Amounts pursuant to Section
10.7 or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit
for the
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enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, or
repurchase on or after the Redemption Date or Repurchase
Date), or
9.2.2 change the terms of payment from, or control over, or
release or reduce any collateral or security interest that
may be created or provided pursuant to Section 10.6 or any
supplemental indenture to secure the payment of principal,
interest or premium, if any, under any Security, except as
allowed under the terms of any such supplemental indenture,
or
9.2.3 reduce the percentage in principal amount of the
Outstanding Securities of any series, 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
9.2.4 modify any of the provisions of this Section, Section 5.14
or Section 10.9, 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 the
Holder of each Outstanding Security affected thereby,
PROVIDED, HOWEVER, that this clause shall not be deemed to
require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes
in this Section and Section 10.9, or the deletion of this
proviso, in accordance with the requirements of Section
6.11.
A supplemental indenture or waiver which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such Act shall
approve the substance thereof.
9.3 EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by, any
supplemental indenture or waiver permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture or waiver
is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental
indenture or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
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9.4 EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
9.5 CONFORMITY WITH TRUST INDENTURE ACT
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series.
9.7 EFFECT OF WAIVER
A waiver shall be effective to waive compliance with the particular
provision and for the particular instance for which the waiver was
made and, until such waiver shall become effective, the obligations
of the Company or the Guarantor and the duties of the Trustee in
respect of any such provision shall remain in full force and effect.
9.8 NOTICE TO LUXEMBOURG STOCK EXCHANGE
So long as any Securities of a series are listed on the Luxembourg
Stock Exchange, the Company shall give notice to the Luxembourg
Stock Exchange of any supplemental indenture or waiver of any
covenant in regards such series effected pursuant to this Article 9.
10 COVENANTS
10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST The Company will duly and
punctually pay the principal of and any premium and interest
(together with any Additional Amounts payable thereon) on the
Securities in accordance with the terms of the Securities and this
Indenture.
10.2 MAINTENANCE OF OFFICE OR AGENCY
With respect to any Global Security, and except as otherwise may be
specified for such Global Security as contemplated by Section 3.1,
the Corporate Trust Office of the Trustee shall be the Place of
Payment where such Global Security may be presented or surrendered
for payment or for registration of transfer or exchange, or where
successor
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Securities may be delivered in exchange therefor; PROVIDED, HOWEVER,
that any such payment, presentation, surrender or delivery effected
pursuant to the Applicable Procedures of the Depositary for such
Global Security shall be deemed to have been effected at the Place
of Payment for such Global Security in accordance with the
provisions of this Indenture.
With respect to any Securities that are not in the form of a Global
Security, the Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Company in respect of the
Securities (in this case, without regard to the form of the
Securities) and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, the
City of New York) where the Securities of one or more series,
notices and other items may be presented or surrendered for any or
all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation
to maintain an office or agency in the Borough of Manhattan, The
City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or
agency.
10.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action
or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on the business day prior to each due
date of the principal of or any premium or interest on any
Securities of that series, deposit in Dollars with a Paying Agent in
New York, New York a sum sufficient to pay such amount, such sum to
be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to 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, that such
Paying
Agent will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of
any default by the Company (or any other obligor upon the Securities
of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company 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 money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or
any premium or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or interest
has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company and the
Guarantor for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before
being required to make any such repayment, may, at the expense of
the Company, cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and
of general circulation in The City of New York, notice that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
10.4 STATEMENT BY OFFICERS AS TO DEFAULT
The Company and the Guarantor will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending
after the date hereof, an Officers' Certificate, stating whether or
not to the best knowledge of the signers thereof the Company or the
Guarantor is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided
hereunder) and, if the Company or the Guarantor shall be in default,
specifying all such defaults and the nature and status thereof of
which they may have knowledge.
The Company and the Guarantor will deliver to the Trustee, as soon
as possible and in any event within 15 days after the Company or the
Guarantor becomes aware of the occurrence of any Event of Default or
Illegality Event or an event which, with notice or the lapse of time
or both, would constitute an Event of Default or Illegality Event,
an
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Officers' Certificate setting forth the details of such Event of
Default or Illegality Event or default and the action which the
Company proposes to take with respect thereto.
10.5 REPORTS BY COMPANY AND GUARANTOR
The Company (unless at the time no Outstanding Securities have been
registered with the Commission pursuant to the Securities Act) and
the Guarantor shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports,
and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to
such Act.
Notwithstanding that the Guarantor may not be required to remain
subject to the reporting requirements of Section 12, 13 or 15(d) of
the Exchange Act, the Guarantor will continue to file with the
Commission and provide the Trustee with such annual reports and such
information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may by rules and
regulations prescribe) which are specified in Sections 12, 13 and
15(d) of the Exchange Act.
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 Company's and the Guarantor's compliance with
any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers' Certificates).
10.6 LIMITATION ON LIENS
Neither the Company nor the Guarantor will create, incur, issue or
assume any Indebtedness secured by any Lien, other than a Permitted
Lien, without in any such case effectively providing that the
Securities (together with, if the Company or Guarantor shall so
determine, any other indebtedness of the Company or Guarantor) shall
be secured equally and ratably with or prior to such secured
Indebtedness.
For the purposes of this Section, the (i) giving of a guarantee
which is secured by a Lien upon or in respect of any asset of the
Company or the Guarantor, and (ii) the creation of a Lien upon or in
respect of any asset of the Company or the Guarantor to secure
Indebtedness which existed prior to the creation of such Lien, shall
be deemed to involve the incurrence of Indebtedness in an amount
equal to the principal amount of such Indebtedness effectively
secured by such Lien.
10.7 PAYMENT OF ADDITIONAL AMOUNTS
10.7.1 All payments of principal, premium and interest in respect
of the Securities shall be made without withholding or
deduction for any present or future taxes, duties,
assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or on
behalf of the Cayman Islands, Brazil or any Successor
Jurisdiction or any authority therein or thereof having
power to tax ("FOREIGN TAXES"), except to the extent that
such Foreign Taxes are required by the Cayman Islands,
Brazil, such Successor Jurisdiction or any such authority
to be withheld or deducted. In the event of any withholding
or
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deduction for any Foreign Taxes, the Company or the Guarantor,
as the case may be, shall pay such additional amounts
("ADDITIONAL Amounts") as will result in receipt by the Holders
of Securities on the respective due dates of such amounts as
would have been received by them had no such withholding or
deduction (including for any Foreign Taxes payable in respect
of Additional Amounts) been required, except that no such
Additional Amounts shall be payable with respect to any payment
on a Security:
(i) to, or to a third party on behalf of, a Holder who is
liable for any such taxes, duties, assessments or
other governmental charges which would not have been
imposed but for (A) a connection between the Holder and
the Cayman Islands or Brazil other than the mere
holding of such Security and the receipt of payments
with respect to such Security or (B) failure by
the Holder to comply with any certification,
identification or other reporting requirement
concerning the nationality, residence, identity or
connection with the Cayman Islands, Brazil or a
Successor Jurisdiction, or applicable political
subdivision or authority thereof or therein having
power to tax, of such Holder, if compliance is
required by such Successor Jurisdiction, or any
political subdivision or authority thereof or
therein having power to tax as a precondition to
exemption from, or reduction in the rate of, the
tax, assessment or other governmental charge and the
Company has given the Holders at least 30 days'
notice that Holders will be required to provide such
certification, identification or other requirement;
(ii) in respect of any such taxes, duties, assessments or
other governmental charges with respect to a
Security surrendered (if surrender is required) more
than 30 days after the date on which such payment
became due and payable or the date on which payment
thereof is duly provided for and notice thereof given
to Holders, whichever occurs later, except to the
extent that the Holder of such Security would have
been entitled to such Additional Amounts on surrender
of such Security for payment on the last day of such
30-day period;
(iii) in respect of estate, inheritance, gift, sales,
transfer, personal property or similar tax, assessment
or governmental charge imposed with respect to a
Security;
(iv) in respect of any tax, assessment or other governmental
charge payable otherwise than by deduction or
withholding from payments on any series of Securities or
by direct payment by the Company or the Guarantor in
respect of claims made against the Company or the
Guarantor;
(v) where such Additional Amount is imposed on a payment to
an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings
implementing the conclusions of the
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ECOFIN Council meeting of November 26-27, 2000 or any
law implementing or complying with, or introduced in
order to conform to, such directive; or
(vi) in respect of any combination of the above.
For purposes of the provisions described in Clause (i) above,
the term "Holder" of any Security means the direct nominee of
any beneficial owner of such Security, which holds such
beneficial owner's interest in such Security. Notwithstanding
the foregoing, the limitations on the Company's or the
Guarantor's obligation to pay Additional Amounts set forth in
Clause (i) above shall not apply if the provision of
information, documentation or other evidence described in such
Clause (i) would be materially more onerous, in form, in
procedure or in the substance of information disclosed, to a
Holder or beneficial owner of a Security (taking into account
any relevant differences between U.S. and Cayman Islands or
Brazilian law, regulation or administrative practice) than
comparable information or other reporting requirements imposed
under U.S. tax law (including tax treaties between the United
States and the Cayman Islands or Brazil), regulation
(including proposed regulations) and administrative practice.
The Company or the Guarantor, as the case may be, shall
promptly provide the Trustee with documentation, if any,
(which may consist of certified copies of such documentation)
reasonably satisfactory to the Trustee evidencing the payment
of Foreign Taxes in respect of which the Company or the
Guarantor has paid any Additional Amounts. Copies of such
documentation shall be made available to the Holders of the
Securities or the Paying Agent, as applicable, upon request
therefor.
In respect of the Securities issued hereunder, at least 10
days prior to the first date of payment of interest on the
Securities and at least 10 days prior to each date, if any, of
payment of principal or interest thereafter if there has been
any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company and the
Guarantor shall furnish the Trustee and each Paying Agent with
an Officers' Certificate instructing the Trustee and such
Paying Agent as to whether such payment of principal of or any
interest on such Securities shall be made without deduction or
withholding for or on account of any tax, duty, assessment or
other governmental charge. If any such deduction or
withholding shall be required by the Cayman Islands or Brazil
or any Successor Jurisdiction or any authority therein having
power to tax, then such certificate shall specify, by country,
the amount, if any, required to be deducted or withheld on
such payment to Holders of such Securities, and the Company or
the Guarantor, as the case may be, (if payment is then due
under the Guaranty) shall pay or cause to be paid to the
Trustee or such Paying Agent Additional Amounts, if any,
required by this Section. The Company and the Guarantor agree
to indemnify the Trustee and each Paying Agent for, and to
hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their
part arising out of
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or in connection with actions taken or omitted by them in
reliance on any Officers' Certificate furnished pursuant to
this Section, the obligation of the Company and the Guarantor
to so indemnify being joint and several.
10.7.2 The Company or the Guarantor, as the case may be, shall pay
all stamp, issue, registration, documentary or other similar
duties, if any, which may be imposed by the Cayman Islands or
Brazil or any other governmental entity or political
subdivision therein or thereof, or any taxing authority of or
in any of the foregoing, with respect to the Indenture or the
issuance of the Securities or the Guaranty.
10.7.3 The Company or the Guarantor, as the case may be, shall
provide each Paying Agent and any withholding agent under
relevant tax regulations with copies of each certificate
received by the Company or the Guarantor from a Holder of a
Security pursuant to the text of such Security. Each such
Paying Agent and withholding agent shall retain each such
certificate received by it for as long as any Security is
outstanding and in no event for less than four years after its
receipt, and for such additional period thereafter, as set
forth in an Officers' Certificate, as such certificate may
become material in the administration of applicable tax laws.
10.7.4 In the event that Additional Amounts actually paid with
respect to the Securities pursuant to the preceding paragraph
are based on rates of deduction or withholding of withholding
taxes in excess of the appropriate rate applicable to the
Holder of such Securities, and, as a result thereof, such
Holder is entitled to make claim for a refund or credit of
such excess from the authority imposing such withholding tax,
then such Holder shall, by accepting such Securities, be
deemed to have assigned and transferred all right, title, and
interest to any such claim for a refund or credit of such
excess to the Company or the Guarantor. However, by making
such assignment, the Holder makes no representation or
warranty that the Company or the Guarantor will be entitled to
receive such claim for a refund or credit and incurs no other
obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to
principal, premium or interest in respect of any Security
shall be deemed to mean and include all Additional Amounts, if
any, payable in respect of such principal, premium or
interest, unless the context otherwise requires, and express
mention of the payment of Additional Amounts in any provision
hereof shall not be construed as excluding reference to
Additional Amounts in those provisions hereof where such
express mention is not made. All references in this Indenture
and the Securities to principal in respect of any Security
shall be deemed to mean and include any Redemption Price or
Repurchase Price payable in respect of such Security pursuant
to any redemption or repurchase right hereunder (and all such
references to the Stated Maturity of the principal in respect
of any Security shall be deemed to mean and include the
Redemption Date or Repurchase Date with respect to any such
Redemption Price or Repurchase Price), and all such references
to principal, premium, interest or Additional Amounts shall be
- 63 -
deemed to mean and include any amount payable in respect
hereof pursuant to Section 10.7, and express mention of the
payment of any Redemption Price or Repurchase Price, or any
such other amount in any provision hereof shall not be
construed as excluding reference to the payment of any
Redemption Price or Repurchase Price, or any such other
amounts in those provisions hereof where such express
reference is not made.
10.8 INDEMNIFICATION OF JUDGMENT CURRENCY
The Company and the Guarantor shall indemnify the Trustee and any
Holder of a Security against any loss incurred by the Trustee or such
Holder, as the case may be, as a result of any judgment or order being
given or made for any amount due under this Indenture or such Security
and being expressed and paid in a currency (the "JUDGMENT CURRENCY")
other than Dollars, and as a result of any variation between (i) the
rate of exchange at which the Dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii)
the spot rate of exchange in The City of New York at which the Trustee
or such Holder, as the case may be, on the date of payment of such
judgment or order is able to purchase Dollars with the amount of the
Judgment Currency actually received by the Trustee or such Holder. The
foregoing indemnity shall constitute a separate and independent
obligation of the Company and the Guarantor and shall continue in full
force and effect notwithstanding any such judgment or order as
aforesaid. The term "spot rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or
conversion into, Dollars.
10.9 FURTHER ACTS; PROTECTION OF COLLATERAL
10.9.1 The Company and the Guarantor will each take any action,
satisfy any condition or do any thing (including the obtaining
or effecting of any necessary consent, approval,
authorization, exemption, filing, license, order, recording or
registration) at any time required in accordance with the
applicable laws and regulations to be taken, fulfilled or done
in order (i) to enable it lawfully to enter into, exercise its
rights and perform and comply with its obligations under the
Securities, this Indenture and any supplemental indenture, as
the case may be, including any security interest created
thereby, (ii) to ensure that those obligations are legally
binding and enforceable, (iii) to make the Securities, this
Indenture and any supplemental indenture admissible in
evidence in the courts of the State of New York, the Cayman
Islands and Brazil and (iv) to enable the Trustee to exercise
and enforce its respective rights under this Indenture and any
supplemental indenture and to carry out the terms, provisions
and purposes of this Indenture and any supplemental indenture;
10.9.2 The Company shall from time to time prepare (or shall cause to
be prepared), execute, file and deliver all such supplements
and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and
other instruments (including any additional financing
statements, instruments, control agreements or other documents
necessary due to a change in applicable law, rule or
regulation or otherwise), and shall take such other action
necessary or advisable to:
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(i) maintain or preserve any Lien and first priority
security interest that may be created pursuant to any
supplemental indenture or carry out more effectively the
purposes thereof;
(ii) perfect, publish notice of or protect the validity of
any Lien and first priority security interest that may
be created pursuant to any supplemental indenture;
(iii) enforce the rights of the Trustee and the Holders of
Securities in any collateral or security interest that
may be created pursuant to any supplemental indenture;
or
(iv) preserve and defend title to any collateral or security
interest that may be created pursuant to any
supplemental indenture and the rights of the Trustee and
the Holders of Securities in any collateral or security
interest that may be created pursuant to any
supplemental indenture against the claims of all Persons
and parties.
10.9.3 The Company hereby authorizes the Trustee to file any
financing statement, including any amendments or continuations
of any original financing statements, with respect to any
collateral and or security interest that may be created
pursuant to any supplemental indenture and identifying the
Company as the debtor as the Trustee deems necessary or
desirable.
The Company hereby designates the Trustee its agent and
attorney-in-fact to execute any financing statement, continuation
statement or other instrument required to be filed by the Company
pursuant to this Section. Notwithstanding anything herein to the
contrary, the Trustee shall have no duty as to maintaining, perfecting
or collecting any collateral or security interest that may be created
pursuant to any supplemental indenture.
10.10 NOTICE OF LATE PAYMENT
So long as any Security is Outstanding, the Company will forthwith
upon request by the Trustee give notice to the Holders of Securities
of any unconditional payment to the Trustee of any sum due in respect
of the Securities made after the Business Day prior to the due date
for such payment.
10.11 SECURITIES HELD BY THE COMPANY
So long as any Security is Outstanding, the Company will send to the
Trustee, as soon as practicable after being so requested by the
Trustee, an Officer's Certificate of the Company stating the aggregate
principal amount of Securities held or beneficially owned, at the date
of such certificate by or on behalf of the Company, the Guarantor or
any of its Subsidiaries. The Company will promptly notify the Trustee
when it, the Guarantor or any of its Subsidiaries holds or
beneficially owns Securities.
10.12 SECURITIES ISSUED OR OUTSTANDING
So long as any Security is Outstanding, the Company will send to the
Trustee within fourteen (14) days after any written request by the
Trustee, an Officer's Certificate
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confirming the aggregate principal amount of Securities issued and/or
Outstanding under this Indenture.
10.13 STATUS OF GUARANTY AND SECURITIES
The Guarantor will ensure that the Guaranty will rank at least PARI
PASSU with any current and future unsecured and unsubordinated
Indebtedness of the Guarantor. The Company will ensure that the
Securities will rank at least PARI PASSU with any current and future
Indebtedness of the Company.
10.14 RATING
Upon the further issue of Securities under this Indenture and any
supplemental indentures, the Company will obtain a rating confirmation
of any other applicable series of Securities then outstanding.
10.15 MAINTENANCE OF GOOD STANDING
The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and rights to
conduct its business under Cayman Islands law as currently
contemplated in its Memorandum and Articles of Association. The
Guarantor will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence. The Company and the
Guarantor will comply with all laws, regulations, rules and orders of
Brazil and the Cayman Islands, or any political subdivision thereof,
which apply to its existence, property and business, including
applicable environmental and labor laws, except to the extent such
failure to comply would not individually or in the aggregate have a
material adverse effect on the general affairs, business, prospects,
management, financial position, stockholder's equity or results of
operations of the Company or the Guarantor.
10.16 MAINTENANCE OF PROPERTIES
The Company and the Guarantor will cause all properties that are
material to the conduct of their business to be maintained and kept in
good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Company and the Guarantor may be necessary so
that the business carried on in connection therewith may be properly
and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company or the Guarantor
from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company
or the Guarantor, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders of Notes. The
Company or the Guarantor will cause all of its properties and its
business to be insured against all damages, claims, interruptions and
loss encountered in the normal course of business.
10.17 PAYMENT OF TAXES
The Company and the Guarantor will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, all
taxes, assessments and
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governmental charges levied or imposed upon the Company or the
Guarantor or upon the income, profits or property of the Company or
the Guarantor (the "TAXES") which, if unpaid, might by law become a
Lien upon the property of the Company and the Guarantor; PROVIDED,
HOWEVER, that (x) the Company and the Guarantor shall not be required
to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is
then-currently being contested in good faith by appropriate
proceedings and (y) the Company and the Guarantor shall be in
compliance with this Section 10.17 if the individual or the aggregate
amount of the Taxes not paid would not have a material adverse effect
on the ability of the Guarantor to comply with its obligations under
this Indenture.
10.18 OWNERSHIP OF THE COMPANY AND PAYMENT OF EXPENSES
The Guarantor will at all times own, either directly or indirectly,
100% of the capital stock of the Company. The Guarantor will determine
and timely pay all fees, taxes, tariffs, service company expenses and
other monies required to be paid in connection with the establishment
and maintenance of the existence of the Company under Cayman Islands
law.
10.19 FINANCIAL STATEMENTS AND REPORTS
So long as any Note is Outstanding, the Company (but only if required
to prepare the requested information under Cayman Islands law) and the
Guarantor will send to the Trustee at the time of their issue, and in
the case of annual financial statements (which shall be audited) in
any event within one hundred twenty (120) days after the end of each
financial year, four (4) copies in English of every balance sheet and
profit and loss account of the Company and the Guarantor; PROVIDED
that unaudited quarterly financial reports must be sent to the Trustee
within sixty (60) days of the end of each fiscal quarter.
10.20 NOTICE TO TRUSTEE
The Guarantor will provide written notice to the Trustee within five
Business Days of depositing funds with the Trustee in satisfaction of
the Guaranty.
10.21 RESTRICTIONS ON THE COMPANY
So long as any Securities are Outstanding, the Company shall not,
without the prior consent in writing of the Trustee if so directed by
the holders of not less than 25% of the principal amount of the
Securities Outstanding:
10.21.1 engage in any business other than issuing Securities,
acquiring and holding any collateral for the payment of
Securities, issuing further Securities, entering into
agreements and transactions related to all or any of the
foregoing and performing any act incidental to or necessary
in connection with any of the foregoing;
10.21.2 dispose of any part of any collateral or any interest
therein, or create any mortgage, charge or other security or
right of recourse in respect thereof in favor of any person;
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10.21.3 declare or pay any dividends or make any distribution of its
assets;
10.21.4 release any party to this Indenture from any existing
obligations thereunder;
10.21.5 have any subsidiaries;
10.21.6 consolidate or merge with any other person (other than as
contemplated by this Indenture);
10.21.7 take or omit to take any action, or make or omit to make any
filing, or consent to the taking or omission to take any
action or the making or omission to make any filing, which
could lead to the Company becoming subject to any of the
events specified in Section 5.1.5 or Section 5.1.6;
10.21.8 have any employees;
10.21.9 incur any indebtedness for borrowed moneys, other than
issuing Securities to the extent permitted under this
Indenture and provided that:
(i) Moody's shall have confirmed in advance to the Trustee
in writing that the issue of any further Securities
shall not result in a downgrading of the then current
rating assigned to any Outstanding Securities; and
(ii) following the issue of such further Securities, the
Issuer will not be deemed to be an "investment
company" as defined in the U.S. Investment Company Act
of 1940; or
10.21.10 purchase, own, lease or otherwise acquire any real property
(including office premises or like facilities).
10.22 RESTRICTIONS ON THE GUARANTOR
So long as any Securities are Outstanding, the Guarantor and the
Company shall not:
10.22.1 without the prior consent in writing of the Trustee, if so
directed by the holders of not less than 25% of the principal
amount of the Securities Outstanding, cause to be made or
approve any changes to the constitutive documents of the
Company allowing the Company to be engaged in any business or
carry out any activities other than the ones contemplated by
Section 10.23; or
10.22.2 take or omit to take any action, or make or omit to make any
filing, or consent to the taking or omission to take any
action or the making or omission to make any filing, which
could lead to the Company becoming subject to any of the
events specified in Section 5.1.5 or Section 5.1.6.
10.23 CHANGE TO CONSTITUTIVE DOCUMENTS OF THE COMPANY
The Guarantor shall take any and all action as the sole shareholder of
the Company to effect a change in the constitutive documents of the
Company within 90 days of the date hereof. That change shall be to
restrict the objects of the Company to acting as a finance company for
the CVRD Group by issuing Securities under this Indenture and
activities incidental or related thereto and such other purposes as
the Trustee may
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approve if so directed by holders of not less than 25% in principal
amount of the Outstanding Securities.
11 REDEMPTION OF SECURITIES
11.1 RIGHT OF REDEMPTION
11.1.1 The Securities of any series which are redeemable before
their Stated Maturity may not be redeemed at the election of
the Company except in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.1 for
such Securities) in accordance with the provisions of this
Article.
11.1.2 The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, at least 45
days prior to the Redemption Date fixed by the Company,
notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities specified therefor
in the Securities of a series to be redeemed.
11.1.3 If, as a result of any amendment to, or change in, the laws
(or any rules or regulation thereunder) of the Cayman Islands
or Brazil or any political subdivision or taxing authority
thereof or therein affecting taxation or any amendment to or
change in an official interpretation, administration or
application of such laws, rules or regulations (including a
holding by a court of competent jurisdiction), which
amendment or change of such laws, rules or regulations or the
interpretation thereof becomes effective on or after the date
specified therefor in the Securities of a series, the Company
would be obligated to pay Additional Amounts in respect of
the Securities of such series pursuant to the terms and
conditions thereof in excess of those attributable to Cayman
Islands or Brazilian withholding tax on the basis of a
statutory rate of 15%, and if such obligation cannot be
avoided by the Company after taking measures the Company
considers reasonable to avoid it, then, at the Company's
option, the Securities of such series may be redeemed in
whole, but not in part, at any time, on giving not less than
30 nor more than 60 days' notice to the Holders of such
Securities, at a Redemption Price equal to 100% of the
principal amount thereof and any premium applicable thereto,
together with accrued interest up to but not including the
Redemption Date and any Additional Amounts which would
otherwise be payable; PROVIDED, HOWEVER, that (1) no notice
of such redemption may be given earlier than 90 days prior to
the earliest date on which the Company would but for such
redemption be obligated to pay such Additional Amounts were a
payment on such Securities then due, and (2) at the time such
notice is given, such obligation to pay such Additional
Amounts remains in effect.
11.1.4 Before any notice of redemption pursuant to Section 11.1.3 is
given to the Trustee or the Holders of Securities of the
relevant series, the Company shall deliver to the Trustee (i)
an Officers' Certificate stating that the Company is entitled
to effect such redemption and setting forth a statement of
facts showing
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that the condition or conditions precedent to the right of
the Company so to redeem have occurred or been satisfied and
(ii) an Opinion of Counsel to the effect that the Company has
or shall become obligated to pay such Additional Amounts as a
result of such change or amendment. Such notice, once given
to the Trustee, shall be irrevocable.
11.2 NOTICE OF REDEMPTION
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
11.2.1 the Redemption Date,
11.2.2 the Redemption Price and amount of accrued interest, if any,
11.2.3 that on the Redemption Date the Redemption Price and any
accrued interest shall become due and payable upon each
Security to be redeemed and that interest thereon shall cease
to accrue on and after said date,
11.2.4 the conversion rate (if applicable), the date on which the
right to convert the Securities to be redeemed shall
terminate and the place or places where such Securities may
be surrendered for conversion,
11.2.5 the place or places where such Securities are to be
surrendered for payment of the Redemption Price and any
accrued interest, and
11.2.6 applicable CUSIP or ISIN Numbers.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company,
and such notice, when given to the Holders, shall be irrevocable.
11.3 DEPOSIT OF REDEMPTION PRICE
On the Business Day prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
11.4 SECURITIES PAYABLE ON REDEMPTION DATE
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with
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said notice, such Security shall be paid by the Company to the Person
in whose name such Security is registered at the Redemption Price,
together with accrued interest to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.6.
If any Security 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 rate borne by (or
prescribed therefor in) the Security.
11.5 SECURITIES REDEEMED IN PART
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security
or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
12 GUARANTY
12.1 THE GUARANTY
Subject to the provisions of this Article, the Guarantor hereby
irrevocably and unconditionally guarantees to each Holder of a
security of each series authenticated and delivered by the Trustee and
to the Trustee the full and punctual payment (whether at the Stated
Maturity, upon redemption, purchase pursuant to an offer to purchase
or acceleration or otherwise) of the principal, premium, interest,
Additional Amounts and all other amounts that may come due and payable
under each Security and the full and punctual payment of all other
amounts payable by the Company under the Indenture as they come due.
Upon failure by the Company to pay punctually any such amount, the
Guarantor shall forthwith pay the amount not so paid at the place and
time and in the manner specified in the Indenture.
12.2 GUARANTY UNCONDITIONAL
The obligations of the Guarantor hereunder are unconditional and
absolute and, without limiting the generality of the foregoing, will
not be released, discharged or otherwise affected by
12.2.1 any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Company under the
Indenture or any Security, by operation of law or otherwise;
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12.2.2 any modification or amendment of or supplement to the
Indenture or any Security;
12.2.3 any change in the corporate existence, structure or ownership
of the Company, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Company or its
assets or any resulting release or discharge of any
obligation of the Company contained in the Indenture or any
Security;
12.2.4 the existence of any claim, set-off or other rights which the
Guarantor may have at any time against the Company, the
Trustee or any other Person, whether in connection with the
Indenture or any unrelated transactions, PROVIDED that
nothing herein prevents the assertion of any such claim by
separate suit or compulsory counterclaim;
12.2.5 any invalidity or unenforceability relating to or against the
Company for any reason of the Indenture or any Security, or
any provision of applicable law or regulation purporting to
prohibit the payment by the Company of the principal of or
interest on any Security or any other amount payable by the
Company under the Indenture; or
12.2.6 any other act or omission to act or delay of any kind by the
Company, the Trustee or any other Person or any other
circumstance whatsoever which might, but for the provisions
of this paragraph, constitute a legal or equitable discharge
of or defense to such Guarantor's obligations hereunder.
12.3 DISCHARGE; REINSTATEMENT
The Guarantor's obligations hereunder will remain in full force and
effect until the principal of, premium, if any, and interest on the
Securities and all other amounts payable by the Company under the
Indenture have been paid in full. If at any time any payment of the
principal of, premium, if any, or interest on any Security or any
other amount payable by the Company under the Indenture is rescinded
or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, the
Guarantor's obligations hereunder with respect to such payment will be
reinstated as though such payment had been due but not made at such
time.
12.4 WAIVER BY THE GUARANTOR
12.4.1 The Guarantor unconditionally and irrevocably waives
acceptance hereof, presentment, demand, protest and any
notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against
the Company or any other Person. The Guaranty constitutes a
guaranty of payment and not of collection.
12.4.2 The Guarantor unconditionally and irrevocably waives any and
all rights provided under Articles 1491, 1498 through 1500
and 1502 through 1504 of the Brazilian Civil Code, Articles
261 and 262 of the Brazilian Commercial Code and Article 595
of the Brazilian Civil Procedure Code.
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12.5 SUBROGATION AND CONTRIBUTION
Upon making any payment with respect to any obligation of the Company
under this Article, the Guarantor making such payment will be
subrogated to the rights of the payee against the Company with respect
to such obligation; PROVIDED, HOWEVER, that the Guarantor shall not be
entitled to enforce, or to receive any payments arising out of or
based upon, such right of subrogation until the principal of (and
premium, if any) and interest on all Securities of the relevant series
shall have been paid in full.
12.6 STAY OF ACCELERATION
If acceleration of the time for payment of any amount payable by the
Company under the Indenture or the Securities is stayed upon the
insolvency, bankruptcy or reorganization of the Company, all such
amounts otherwise subject to acceleration under the terms of the
Indenture are nonetheless payable by the Guarantor forthwith on demand
by the Trustee or the Holders.
12.7 EXECUTION AND DELIVERY OF GUARANTY
The execution by the Guarantor of the Indenture or a supplemental
indenture evidences the Guaranty of such Guarantor, whether or not the
person signing as an officer of the Guarantor still holds that office
at the time of authentication of any Security. The delivery of any
Security by the Trustee after authentication constitutes due delivery
of the Guaranty set forth in the Indenture on behalf of the Guarantor.
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This instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, as of the day and year first above written.
EXECUTED AS A DEED BY
VALE OVERSEAS LIMITED,
as Issuer
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
COMPANHIA VALE DO RIO DOCE,
as Guarantor
By: /s/ Leonardo Moretzsohm de Andrade
---------------------------------------
Name: Leonardo Moretzsohm de Andrade
Title: Attorney
By: /s/ Andrea Marques de Almeida
---------------------------------------
Name: Andrea Marques de Almeida
Title: Attorney
JPMORGAN CHASE BANK,
as Trustee
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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CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTION 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss.310(a)(1)....................................................6.9
(a)(2)....................................................6.9
(a)(3).........................................Not Applicable
(a)(4).........................................Not Applicable
(a)(5)....................................................6.9
(b).......................................................6.8
.........................................................6.10
ss.311(a)......................................................6.13
(b)......................................................6.13
ss.312(a).......................................................7.1
..........................................................7.2
(b).......................................................7.2
(c).......................................................7.2
ss.313(a).......................................................7.3
(b).......................................................7.3
(c)(1)....................................................7.3
(c)(2)....................................................7.3
(c)(3)....................................................7.3
(d).......................................................7.3
ss.314(a)......................................................10.5
(b)......................................................10.5
(c)......................................................10.5
(d)......................................................10.5
ss.315(a).......................................................6.1
(b).......................................................6.2
(c).......................................................6.1
(d).......................................................6.1
(e)......................................................5.15
ss.316(a)(1)(A)................................................5.13
(a)(1)(B)................................................5.14
(a)(2).........................................Not Applicable
(b).......................................................5.9
(c).......................................................1.4
ss.317(a)(1)....................................................5.4
(a)(2)....................................................5.5
(b)......................................................10.3
ss.318(a).......................................................1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of this Indenture.
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