Exhibit 99.6
__________________________ , 2002
Exchange Agent Agreement
------------------------
JPMorgan Chase Bank
450 West 33rd Street
15th Floor
New York, NY 10001
Attention:
Ladies and Gentlemen:
Vale Overseas Limited (the "Company") proposes to make an offer (the
"Exchange Offer") to exchange an aggregate principal amount of up to
$300,000,000 of its Series B 8.625% Enhanced Guaranteed Notes due 2007 (the
"Registered Notes"), which have been registered under the Securities Act of
1933, as amended, for a like principal amount of the Company's outstanding
Series A 8.625% Enhanced Guaranteed Notes due 2007 (the "Private Notes"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus dated March __, 2002 (the "Prospectus"), proposed to be
distributed to all record holders of the Private Notes as of March __, 2002. The
Private Notes and the Registered Notes are collectively referred to herein as
the "Notes".
The Company hereby appoints JPMorgan Chase Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to JPMorgan Chase Bank.
The Exchange Offer is expected to be commenced by the Company on or
about March __, 2002. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Private Notes to accept the Exchange Offer, and
contains instructions with respect to the delivery of certificates for Private
Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
April __, 2002, or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer at any time and from time to time and may extend the Exchange
Offer by giving oral (promptly confirmed in writing) or written notice to you
before 9:00 A.M., New York City time, on the business day following the
previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Private Notes not theretofore
accepted for exchange, upon the occurrence of any of the events specified in the
Prospectus under the caption "The Exchange Offer - Conditions to the Exchange
Offer." The Company will give oral (promptly confirmed in writing) or written
notice of any amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus entitled "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto.
2. You will establish an account with respect to the Private Notes at
The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two business days after the date of the Prospectus,
or, if you already have established an account with the Book-Entry Transfer
Facility suitable for the Exchange Offer, you will identify such pre-existing
account to be used in the Exchange Offer, and any financial institution that is
a participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Private Notes by causing the Book-Entry Transfer Facility to
transfer such Private Notes into your account in accordance with the Book-Entry
Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Private Notes (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility) and any other documents delivered
or mailed to you by or for holders of the Private Notes to ascertain whether:
(i) the Letters of Transmittal and any such other documents are duly executed
and properly completed in accordance with instructions set forth therein and
(ii) the Private Notes have otherwise been properly tendered. In each case where
the Letter of Transmittal or any other document has been improperly completed or
executed or any of the certificates for Private Notes are not in proper form for
transfer or some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the presenters of the need
(i) for fulfillment of all requirements and (ii) to take any other action as may
be necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chairman of the Board, President or any
Vice President of the Company (such approval, if given orally, to be promptly
confirmed in writing) or any other party designated by such an officer in
writing, you are authorized to waive any defects, irregularities or conditions
of tender in connection with any tender of Private Notes pursuant to the
Exchange Offer.
5. Tenders of Private Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer - Procedures for Tendering Old Securities," and Private Notes
shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
Notwithstanding the provisions of this paragraph 5, Private Notes
which the Chairman of the Board, President or any Vice President of the Company
or any other party designated by such officer in writing shall approve as having
been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Private Notes
delivered subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Private Notes.
7. You shall accept tenders:
(a) in case where the Private Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of Private Notes
provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for
Private Notes to the transfer agent for split-up and return any untendered
Private Notes to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Private Notes properly tendered and you, on behalf of the Company,
will exchange such Private Notes for Registered Notes and cause such Private
Notes to be canceled. Delivery of Registered Notes will be made on behalf of the
Company by you at the rate of $1,000 principal amount of Registered Notes for
each $1,000 principal amount of Private Notes tendered promptly after notice
(such notice, if given orally, to be promptly confirmed in writing) of
acceptance of such Private Notes by the Company; provided, however, that in all
cases, Private Notes tendered pursuant to the Exchange Offer will be exchanged
only after timely receipt by you of certificates for such Private Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof or an Agent's Message (as defined in the Prospectus) in lieu
thereof) with any required signature guarantees and any other required document.
You shall issue Registered Notes only in denominations of $1,000 or any integral
multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Private Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Private Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Private Notes tendered
shall be given (such notice, if given orally, shall be promptly confirmed in
writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Private Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer - Conditions to the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Private Notes (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Private Notes, unaccepted Private
Notes or for Registered Notes shall be forwarded by (a) first-class mail,
postage prepaid under a blanket surety bond protecting you and the Company from
loss or liability arising out of the nonreceipt or nondelivery of such
certificates or (b) by registered mail insured separately for the replacement
value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates or the Private Notes represented thereby
deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value
or genuineness of the Exchange Offer ;
(b) shall not be obligated to take any action hereunder which might
in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(c) may rely on and shall be protected in acting in good faith in
reliance upon any certificate, instrument, opinion, notice, letter,
facsimile or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by
the proper party or parties;
(d) may act upon any tender, statement, request, comment, agreement
or other instrument whatsoever not only as to its due execution and
validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which you in good
faith reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written or
oral instructions from any officer of the Company with respect to the
Exchange Offer;
(f) shall not advise any person tendering Private Notes pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Private
Notes ;
(g) may consult with your counsel and the written opinion of such
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in
good faith and in accordance with such written opinion of such
counsel; and
15. You shall take such action as may from time to time be requested
by the Company or its counsel (and such other action as you may reasonably deem
necessary) to furnish copies of the Prospectus, the Letter of Transmittal and
the Notice of Guaranteed Delivery, as defined in the Prospectus, or such other
forms as may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company will furnish you with copies of such documents as you may
request. All other requests for information relating to the Exchange Offer shall
be directed to the Company, Attention: ________.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to ___________, ______ of the Company,
__________, Esq. of _________, counsel for the Company, and such other person or
persons as the Company may request, daily on each business day, and more
frequently if reasonably requested, up to and including the Expiration Date, as
to the number of Private Notes which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement, separately
reporting and giving cumulative totals as to items properly received and items
improperly received; provided, however, that if, on a particular business day,
no additional Private Notes have been tendered, no additional items have been
received by you and such totals have not changed since you last provided such
information as required above, you need not provide the information referred to
above in this paragraph 16 on such day. In addition, you will also confirm, and
cooperate in making available to, the Company or any such other person or
persons as the Company requests from time to time prior to the Expiration Date
of such other information as it or he or she reasonably requests. Such
cooperation shall include, without limitation, the granting by you to the
Company and such person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Private Notes tendered and the
aggregate principal amount of Private Notes accepted and deliver said list to
the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt and shall, except as
provided in paragraph 11, be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities (or, if earlier, until such time as such documents are
delivered to the Company upon termination of this Agreement, pursuant to
paragraph 29).
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reason of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation of $_______and you shall be entitled to reimbursement
of your reasonable out-of-pocket expenses (including reasonable attorneys' fees
and expenses of your counsel, which fees are expected under normal circumstances
to be not in excess of $5,000) incurred in connection with your services
hereunder.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them to the extent
necessary to perform your duties hereunder. Any inconsistency between this
Agreement, on the one
hand, and the Prospectus and the Letter of Transmittal (as
they may be amended from time to time), on the other hand, shall be resolved in
favor of the latter two documents, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent which shall be
controlled by this Agreement.
21. The Company agrees to indemnify and hold harmless you, in your
capacity as Exchange Agent hereunder, and your officers, employees and agents,
against any liability, cost or expense, including reasonable attorneys' fees,
arising out of or in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document believed by you in
good faith to be valid and genuine and in accepting any tender or effecting any
transfer of Private Notes believed by you in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect any transfer
of Private Notes or otherwise arising out of or in connection with your acting
as Exchange Agent hereunder; provided, however, that the Company shall not be
liable for indemnification or otherwise for any loss, liability, cost or expense
to the extent arising out of your negligence, wilful misconduct or bad faith. In
no case shall the Company be liable under this indemnity with respect to any
claim against you unless the Company shall be notified by you, by letter or
cable or by facsimile confirmed by letter, of the written assertion of a claim
against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or written notice of the
commencement of any such action. The Company shall be entitled to participate at
its own expense in the defense of any such claim or other action, and, if the
Company so elects, the Company shall assume the defense of any suit brought to
enforce any such claim. In the event that the Company shall assume the defense
of any such suit, the Company shall not be liable for the fees and expenses of
any additional counsel thereafter retained by you so long as the Company shall
retain counsel reasonably satisfactory to you to defend such suit.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
23. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Private Notes, your check in the amount of all transfer taxes
so payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Private Notes; provided,
however, that, subject to such reimbursement by the Company, you shall reimburse
the Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
New York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be effected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company:
Facsimile:
Attention:
With a copy to:
Facsimile:
Attention:
If to the Exchange Agent:
JPMorgan Chase Bank
450 West 33rd Street (15th Floor)
New York, New York 10001
Facsimile:
Attention:
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 14(c), 18, 19, 21 and 23 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property (including,
without limitation, Letters of Transmittal and any other documents relating to
the Exchange Offer) then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
VALE OVERSEAS LIMITED
By: _________________________
Name:
Title:
Accepted as of the date
first above written:
JPMORGAN CHASE BANK
By:________________________
Name:
Title: