EXHIBIT 4.2
Dated as of March 8, 2002
VALE OVERSEAS LIMITED,
AS ISSUER
and
COMPANHIA VALE DO RIO DOCE,
AS GUARANTOR
and
JPMORGAN CHASE BANK,
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
U.S.$300,000,000
Series A and Series B
8.625% Enhanced Guaranteed Notes due 2007
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
<Table>
<Caption>
PAGE
1 DEFINITIONS....................................................... 3
1.1 PROVISIONS OF THE ORIGINAL INDENTURE......................... 3
1.2 DEFINITIONS.................................................. 3
2 GENERAL TERMS AND CONDITIONS OF THE NOTES......................... 8
2.1 DESIGNATION AND PRINCIPAL AMOUNT............................. 8
2.2 FORMS GENERALLY.............................................. 9
2.3 TRANSFERS AND EXCHANGES...................................... 21
2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.............. 25
2.5 MAINTENANCE OF OFFICE OR AGENCY.............................. 25
2.6 LUXEMBOURG LISTING........................................... 25
2.7 REGISTRATION RIGHTS.......................................... 25
2.8 SUSPENSION OF PAYMENT OF PRINCIPAL OF GUARANTY............... 25
2.9 PRESCRIPTION PERIOD.......................................... 26
3 RESERVE ACCOUNT AND LETTERS OF CREDIT............................. 26
3.1 RESERVE ACCOUNT AND LETTERS OF CREDIT........................ 26
3.2 WITHDRAWALS FROM THE RESERVE ACCOUNT AND
DRAWDOWNS ON LETTERS OF CREDIT............................... 27
3.3 RELEASE OF COLLATERAL........................................ 29
4 MISCELLANEOUS PROVISIONS.......................................... 29
4.1 SEPARABILITY OF INVALID PROVISIONS........................... 29
4.2 EXECUTION IN COUNTERPARTS.................................... 29
5 REPRESENTATIONS AND WARRANTIES.................................... 29
6 COVENANTS OF THE COMPANY AND THE GUARANTOR........................ 34
7 DISCLOSURE TO MOODY'S............................................. 34
ANNEX A........................................................... 37
ANNEX B........................................................... 39
ANNEX C........................................................... 41
ANNEX D........................................................... 44
</Table>
-i-
FIRST SUPPLEMENTAL INDENTURE, dated as of March 8, 2002, among VALE OVERSEAS
LIMITED, a Cayman Islands 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(Degree) Andar, 20005-900 Rio de Janeiro, RJ,
Brazil, and JPMORGAN CHASE BANK, a bank duly organized and existing under the
laws of the State of New York, having its principal corporate trust office at
450 West 33rd Street, New York, New York 10001, as Trustee (herein called the
"Trustee") to the Indenture, dated as of March 8, 2002, among the Company, the
Guarantor and the Trustee (herein called the "ORIGINAL INDENTURE").
W I T N E S S E T H :
WHEREAS, the Original Indenture provides for the issuance from time to time
thereunder, in series, of Securities of the Company carrying the Guaranty of the
Guarantor, and Section 9.1 of the Original Indenture provides for the
establishment of the form or terms of Securities issued thereunder through one
or more supplemental indentures;
WHEREAS, the Company and the Guarantor desire by this First Supplemental
Indenture to create two series of Securities to be issuable under the Original
Indenture, as supplemented by this First Supplemental Indenture, and to be known
as the Company's 8.625% Series A Enhanced Guaranteed Notes due 2007 (the "SERIES
A NOTES") and the Company's 8.625% Series B Enhanced Guaranteed Notes due 2007
(the "SERIES B NOTES", and, together with the Series A Notes, the "NOTES"),
which are to be limited in aggregate principal amount as specified in this First
Supplemental Indenture and the terms and provisions of which are to be as
specified in this First Supplemental Indenture;
WHEREAS, the Company and the Guarantor will be required under the Registration
Rights Agreement to exchange the Series A Notes, which are Restricted Notes (as
defined below) for Series B Notes freely tradable due to their registration
under the Securities Act;
WHEREAS, the Company and the Guarantor wish to secure the payment of the Notes
by causing to be issued in favor of the Trustee for the benefit of the Holders
(as defined in the Original Indenture) of the Notes a Letter of Credit (as
defined below) in an amount equal to the Political Risk Coverage (as defined
below);
WHEREAS, the Company and the Guarantor may, in their sole discretion, substitute
any portion or all the amounts available under the letter of credit for funds
deposited in the Reserve Account (as defined below) and vice versa, and wish to
hereby grant a security interest in favor of the Trustee for the benefit of the
Holders (as defined in the Original Indenture) of Notes over such Reserve
Account and the funds deposited therein;
WHEREAS, the Company and the Guarantor have duly authorized the execution and
delivery of this First Supplemental Indenture to establish the Notes as series
of Securities under the Original Indenture and to provide for, among other
things, the issuance of and the form and terms of the Notes and additional
covenants for the benefit of the Holders thereof and the Trustee; and
WHEREAS, all things necessary to make this First Supplemental Indenture a valid
and binding legal obligation of the Company and the Guarantor according to its
terms have been done.
-1-
NOW, THEREFORE, for and in consideration of the premises and the purchase and
acceptance of the Notes by the Holders thereof and for the purpose of setting
forth, as provided in the Original Indenture, the form of the Notes and the
terms, provisions and conditions thereof, the Company and the Guarantor covenant
and agree with the Trustee as follows:
That in order to secure the due and punctual payment of interest and the payment
of all fees and expenses (including legal fees and expenses) of the Trustee in
relation to the Notes under this First Supplemental Indenture (collectively, the
"OBLIGATIONS"), the Company hereby grants, mortgages, assigns, transfers and
pledges unto the Trustee, for the benefit and security of the Holders of the
Notes and the Trustee, and their respective successors and assigns, and grants
to the same a security interest in all of the Company's estate, right, title and
interest in the property described in clauses First and Second below, whether
now owned or hereafter acquired (all such property described in clauses First
and Second below, being herein called the "COLLATERAL"), to wit:
FIRST
THE RESERVE ACCOUNT
All right, title and interest of the Company in the Reserve Account (as defined
below), any successor account thereto, any and all property held therein or
credited thereto, including, without limitation, all instruments, money or cash,
and all amounts on deposit from time to time therein.
SECOND
PROCEEDS
All right, title and interest, present and future, of the Company in and to all
proceeds, profits, products, revenues and other income, and in and to all
proceeds and payments, from and on account of the property, rights and
privileges described in clause FIRST above.
To have and to hold the Collateral unto the Trustee and its successors and
assigns in mortgage, pledge and trust for the benefit and security of the
Holders from time to time of all the Notes issued and Outstanding hereunder and
the Trustee and for the uses and purposes and subject to the terms and
provisions set forth in this First Supplemental Indenture.
In trust nevertheless, upon the terms and trusts set forth, for the equal and
proportionate benefit and security of all Holders of the Notes issued and to be
issued hereunder, without preference, distinction or priority as to Lien (as
defined in the Original Indenture) or otherwise of any Note over any other Note
by reason of priority in time of issue, sale or negotiation thereof, or by
reason of the purpose of issue, or otherwise howsoever, except as herein
otherwise expressly provided.
The Company does hereby constitute the Trustee the true and lawful attorney of
the Company irrevocably, with full power (in the name of the Company or
otherwise) to ask, require, demand, receive, settle, compromise, compound and
give acquittance for any and all moneys and claims for moneys due and to become
due under or arising out of any of the Collateral, to endorse any checks or
other instruments or orders in connection therewith and to file any claims or
take any action or institute any proceedings which the Trustee may deem to be
necessary or advisable in the premises.
The Company agrees that any time and from time to time, upon the written request
of the Trustee, it will promptly and duly execute and deliver any and all such
further instruments and documents as the
-2-
Trustee may reasonably deem desirable in obtaining the full benefits of the
foregoing clauses FIRST and SECOND and of the rights and powers herein granted.
The Company does hereby warrant and represent that, except as otherwise
contemplated by this Indenture, it has not mortgaged, assigned or pledged, and
hereby covenants that it will not mortgage, assign or pledge, so long as this
First Supplemental Indenture shall remain in effect, any of the right, title or
interest hereby mortgaged, assigned or pledged to anyone other than the Trustee.
It is hereby covenanted and agreed that the terms and conditions upon which the
Notes are issued, authenticated, delivered and accepted by all Persons (as
defined on the Original Indenture) who shall from time to time be or become the
Holders thereof, and the terms and conditions upon which the 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
1.1 PROVISIONS OF THE ORIGINAL INDENTURE
Except insofar as herein otherwise expressly provided, all the
definitions, provisions, terms and conditions of the Original
Indenture shall remain in full force and effect. The Original
Indenture, as amended and supplemented by this First
Supplemental Indenture, is in all respects ratified and
confirmed, and the Original Indenture and this First
Supplemental Indenture shall be read, taken and considered as
one and the same instrument for all purposes.
1.2 DEFINITIONS
For all purposes of this First Supplemental Indenture and the
Notes, except as otherwise expressly provided or unless the
subject matter or context otherwise requires:
1.2.1 any reference to an "Article" or a "Section" refers to
an Article or Section, as the case may be, of this
First Supplemental Indenture;
1.2.2 the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this First Supplemental
Indenture as a whole and not to any particular Article,
Section or other subdivision;
1.2.3 all terms used in this First Supplemental Indenture that
are defined in the Original Indenture have the meanings
assigned to them in the Original Indenture, except as
otherwise provided in this First Supplemental Indenture
and except that all capitalized terms used in Section 5
shall have the meanings ascribed to such terms in the
Purchase Agreement (as defined below);
1.2.4 the term "Securities" as defined in the Original
Indenture and as used in any definition therein, shall
be deemed to include or refer to, as applicable, the
Notes; and
1.2.5 the following terms have the meanings given to them in
this Section 1.2.5.
"AGENT MEMBER TRANSFEREE" has the meaning specified in Section
2.3.2 hereof.
"AGENT MEMBER TRANSFEROR" has the meaning specified in Section
2.3.2 hereof.
-3-
"APPLICABLE PROCEDURES" means with respect to any transfer or
transaction involving a Global Note or beneficial interest
therein, the rules and procedures of the Depositary, Euroclear
and Clearstream, Luxembourg for such Global Note, in each case
to the extent applicable to such transaction and as in effect
from time to time.
"COLLATERAL" has the meaning specified in the granting clause
above.
"DISTRIBUTION COMPLIANCE PERIOD" means the period of 40
consecutive days beginning on and including the later of (i) the
day on which the Series A Notes are first offered to persons
other than distributors (as defined in Regulation S) in reliance
on Regulation S notice of such day to be given by the Company to
the Trustee and (ii) the day on which the closing of the
offering of the Original Notes pursuant to the Purchase
Agreement occurs.
"EVENT OF DEFAULT" shall have the same meaning as set forth in
the Original Indenture, except that:
(A) the failure of the Company and Guarantor to (i) notify the
Trustee in a notice in the form of Annex D attached hereto of
the occurrence of a Political Risk Event within five Business
Days of such occurrence, or (ii) to notify the Trustee in a
notice in the form of Annex D attached hereto of the termination
of a Political Risk Event within five Business Days after such
termination or (iii) notify the Trustee in a notice in the form
of Annex E attached hereto at least one Business Day prior to
each Interest Payment Date during the period when a Political
Risk Event is in existence or (iv) notify the Trustee in a
notice in the form of Annex E attached hereto, contemporaneously
with a notice pursuant to paragraph (i) above, if there was an
Interest Payment Date falling on or after the occurrence of a
Political Risk Event and prior to notice being given pursuant to
paragraph (i) above, shall constitute an Event of Default;
(B) the giving of notice of the existence of a Political Risk
Event by the Company or the Guarantor when a Political Risk
Event is not in existence shall also constitute an Event of
Default and such Event of Default shall be cause for
acceleration of the maturity of the Notes upon the affirmative
vote of only 10% of the principal amount of the Notes then
Outstanding; PROVIDED, HOWEVER, that the Trustee, for all
purposes of this First Supplemental Indenture shall not be
charged with notice or knowledge of the occurrence, continuance
or termination of a Political Risk Event unless it shall have
received written notice thereof from the Company or the
Guarantor; and
(C) the incorrectness in any material respect of any
representation or warranty made by the Company or the Guarantor
in this First Supplemental Indenture or any notice in the form
of Annex D or Annex E delivered hereunder or any other notice or
certificate delivered hereunder (and which other notice or
certificate, if it is incorrect in any material respect, is not
corrected by the Company or the Guarantor within 30 days of its
delivery) when made shall constitute an Event of Default.
"EXCHANGE OFFER" means the "Exchange Offer" contemplated by the
Registration Rights Agreement, i.e. the exchange of the Series A
Notes for Series B Notes which are subject to a registration
statement declared effective by the Commission.
-4-
"GLOBAL NOTE" means a Note that evidences all or part of the
Notes and is authenticated and delivered to, and registered in
the name of, the Depositary for such Notes or a nominee thereof.
Global Notes shall include Restricted Global Notes, Regulation S
Global Notes and Unrestricted Global Notes and shall be Global
Securities for purposes of the Original Indenture.
"GOVERNMENTAL AUTHORITY" means any public legal entity or public
agency of Brazil, including, but not limited to, any central
bank, whether created by any competent authority, federal, state
or local government, or any other legal entity now existing or
hereafter created, or now or hereafter owned or controlled,
directly or indirectly, by any public legal entity or public
agency of Brazil including, but not limited to, any central
bank.
"GOVERNMENT OF BRAZIL" means the government of Brazil or any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"INITIAL PURCHASERS" means the initial purchasers of the Series
A Notes listed in Schedule I to the Purchase Agreement.
"LETTER OF CREDIT" means an irrevocable stand-by letter of
credit issued by a qualifying institution naming the Trustee as
the sole beneficiary and being drawable at the Trustee's sole
request. Each institution serving as the issuer of a Letter of
Credit must be a bank or a trust company (a) organized and
located in a country (other than Brazil) which is a member of
the Organization for Economic Cooperation and Development, (b)
with a long-term unsecured debt rating with respect to U.S.
dollar obligations of at least Aa3 or its equivalent rating by
Moody's and (c) with commercial paper rated P-1 or better by
Moody's.
"MOODY'S" means Moody's Investors Service, Inc.
"NOTES" has the meaning specified in the recitals hereof.
"OBLIGATIONS" has the meaning specified in the granting clause
above. "OWNER TRANSFEREE" has the meaning specified in Section
2.3.2 hereof.
"OWNER TRANSFEROR" has the meaning specified in Section 2.3.2
hereof.
"PERMITTED HOLDER" at any time means any Person who, at such
time, is the holder of at least $5,000,000 in aggregate
principal amount of Notes.
"PERMITTED INVESTMENTS" means, with respect to amounts on
deposit in the Reserve Account:
(i) direct obligations of the United States (including
obligations issued or held in book-entry form on the
books of the Department of the Treasury of the United
States) or obligations the timely payment of the
principal of and interest on which is fully guaranteed by
the United States;
(ii) obligations, debentures, notes or other evidence of
indebtedness issued or guaranteed by agencies or
instrumentalities of the United States and backed by
-5-
the full faith and credit of the United States,
including, but not limited to, any of the following:
United States Treasury, Export-Import Bank of the
United States and Government National Mortgage
Association;
(iii) repurchase agreements with financial institutions
(including the Trustee) or savings and loan associations
with a long-term rating of Aa2 and a short-term rating of
P-1 or better by Moody's and having a combined capital
and surplus of at least two hundred fifty million dollars
($250,000,000) fully secured by collateral security,
actually delivered to the Trustee or its agent, described
in clauses (i) or (ii) of this definition and
continuously having a market value at least equal to the
amount so invested;
(iv) banker's acceptances issued by, or interest-bearing
demand or time deposits (including certificates of
deposit) in, a bank with either (x) a long-term credit
rating of Aa2 or better by Moody's or (y) a short-term
rating of P-1 or better by Moody's;
(v) commercial paper rated P-1 or better by Moody's; and
(vi) money market funds rated Aaa or better by Moody's.
Notwithstanding the foregoing, a Permitted Investment must have
a stated maturity at least one Business Day prior to the
immediately following Interest Payment Date. Nothing contained
herein shall be construed to prohibit the Company, the Guarantor
and the Trustee from entering into any transactions or
agreements that, except for the identity of the parties, would
otherwise be permitted hereunder.
"POLITICAL RISK COVERAGE" means an amount represented by
deposits in the Reserve Account and/or available under Letters
of Credit with an aggregate value of $41,421,565 comprising the
sum of (i) 18 months interest on the principal amount of the
Notes, (ii) an amount equal to 0.50% interest on the principal
amount of the Notes for 18 months, (iii) 30 days Default Rate of
Interest on the amounts described in (i) and (ii) above, and
(iv) the fees and reasonable expenses of the Trustee hereunder
for 18 months; provided, however, that (A) Political Risk
Coverage shall be reduced by the amount equal to (ii) above upon
the earlier of (x) the completion of the Exchange Offer
(regardless of how many Notes are exchanged therein), (y) the
effectiveness of the Shelf Registration Statement and (z) the
Notes are freely transferable under the Securities Act; and (B)
Political Risk Coverage shall be reduced to zero at such time as
the Guarantor has obtained a long-term foreign currency rating
(without the benefit of pledging collateral or any other credit
support) from Moody's of Baa2 or better, or none of the Notes
remain Outstanding and all Obligations hereunder have been
satisfied. The reduction of the Political Risk Coverage allowed
under items (A) and (B) above shall not occur without the
Trustee first receiving in writing from Moody's confirmation
that any such reduction will not reduce the rating then
currently assigned to the Notes. The Trustee shall not be
charged with notice or knowledge of the fact that the Guarantor
has obtained such a rating unless it shall have received written
notice thereof from the Company or the Guarantor.
-6-
"POLITICAL RISK EVENT" means (i) any measures taken, directed,
authorized, ratified or approved by the Government of Brazil or
Governmental Authority that prevent the Company or the Guarantor
from converting Brazilian currency into U.S. dollars and/or
remitting U.S. dollars outside Brazil, or (ii) the failure of
the Government of Brazil or Governmental Authority (or of
entities authorized under the laws of Brazil to operate in the
foreign exchange markets) to effect such conversion and/or
remittance by the Company or the Guarantor, in each case as
otherwise required in accordance with the terms and conditions
of the Notes or (iii) expropriation, confiscation,
nationalization, discriminatory legislative actions or other
governmental measures taken by the Government of Brazil or
Governmental Authority which have the effect of depriving the
Company or the Guarantor of the use or control of Brazilian
currency or U.S. dollars in connection with its Obligations
hereunder. A Political Risk Event shall be deemed to have
occurred without regard to whether the Company or the Guarantor
may be able to make a scheduled interest payment under the Notes
in U.S. dollars from offshore sources outside of Brazil. Where
an event meets the definition of Political Risk Event and
Illegality Event, it shall be considered a Political Risk Event
and shall not constitute an Illegality Event.
"PREDECESSOR NOTE" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section
3.5 of the Original Indenture in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Note.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated March
1, 2002, among the Company, the Guarantor and the Initial
Purchasers.
"QUALIFIED INSTITUTIONAL BUYER" means a "qualified institutional
buyer" as defined in Rule 144A(a)(1) under the Securities Act.
"REGISTRATION RIGHTS AGREEMENT" has the meaning specified in
Section 2.7 hereof.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S GLOBAL NOTE" has the meaning specified in Section
2.2 hereof.
"RELEVANT DATE" in respect of any payment means the date on
which such payment first becomes due or (if the full amount of
the monies payable has not been received by the Trustee on or
prior to such due date) the date on which notice is given to the
Holders that such monies have been so received.
"RESERVE ACCOUNT" has the meaning specified in Section 3.1
hereof.
"RESTRICTED GLOBAL NOTE" has the meaning specified in Section
2.2 hereof.
"RESTRICTED GLOBAL TRANSFERRED AMOUNT" has the meaning specified
in Section 2.3.2 hereof.
"RESTRICTED NOTES" means Notes offered and sold in their initial
distribution in transactions exempt from the registration
requirements of the Securities Act other than
-7-
pursuant to Regulation S and shall include all Notes issued upon
registration of transfer of, in exchange for or in lieu of
Restricted Notes except as otherwise provided in Section 2.3
hereof.
"RESTRICTIVE LEGENDS" has the meaning specified in Section 2.3.1
hereof.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES INTERMEDIARY" means JPMorgan Chase Bank.
"SERIES A NOTES" has the meaning specified in the recitals
hereof.
"SERIES B NOTES" has the meaning specified in the recitals
hereof.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement contemplated by the Registration Rights Agreement,
i.e. a registration statement with respect to the Series A Notes
declared effective by the Commission.
"STATED MATURITY DATE" has the meaning specified in Section 2.1
hereof.
"UNRESTRICTED GLOBAL NOTE" has the meaning specified in Section
2.2 hereof.
2 GENERAL TERMS AND CONDITIONS OF THE NOTES
2.1 DESIGNATION AND PRINCIPAL AMOUNT
There is hereby authorized and established two series of
Securities designated the 8.625% Series A Enhanced Guaranteed
Notes due 2007 and the 8.625% Series B Enhanced Guaranteed Notes
due 2007, initially limited to an aggregate principal amount of
$300,000,000 (which amount does not include Notes authenticated
and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such series pursuant to
Sections 3.4, 3.5, 9.6 or 11.5 of the Original Indenture), which
amount shall be specified in the Company Order for the
authentication and delivery of Notes pursuant to Section 3.3 of
the Original Indenture. The principal of the Notes shall be due
and payable at the Stated Maturity Date.
The Company may, from time to time and without the consent of
the Holders, issue additional notes on terms and conditions
identical to those of the Notes, which additional notes shall
increase the aggregate principal amount of, and shall be
consolidated and form a single series with, the Notes. The Notes
shall be known and designated as the "8.625% Enhanced Guaranteed
Notes due 2007" of the Company. Their Stated Maturity Date shall
be on March 8, 2007, (the "STATED MATURITY DATE"). If a
Political Risk Event is in existence at the Stated Maturity
Date, then the Stated Maturity Date will automatically be
extended to the earlier of (i) the date five Business Days after
the Political Risk Event terminates, (ii) September 8, 2008 and
(iii) the Interest Payment Date after the Reserve Account and
all amounts available to be drawn under any Letters of Credit
have been fully depleted. The Notes shall bear interest at the
rate of 8.625% per annum, from March 8, 2002 or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on
March 8 and September 8, commencing September 8, 2002 (an
"INTEREST PAYMENT DATE"), until the principal thereof is paid or
made available for payment. To the extent interest due on any
-8-
Interest Payment Date is not paid, interest shall accrue thereon
at the Default Rate of Interest, except as provided herein,
until such unpaid interest and interest accrued thereon are paid
in full. As provided in the Registration Rights Agreement, in
the event that either the Exchange Offer is not completed or the
Shelf Registration Statement, if required by the Registration
Rights Agreement, is not declared effective on or prior to
September 8, 2002 then, pursuant to and subject to the
Registration Rights Agreement, the interest rate on the Notes
will increase by 0.25% per annum, and will increase an
additional 0.25% per annum if the same is not completed or
effective on December 8, 2002, for an aggregate maximum
additional interest of 0.50% per annum. These additional amounts
will be payable on the Notes, pursuant to and subject to the
Registration Rights Agreement, until the earlier of (i)
completion of the Exchange Offer, regardless of how many Notes
are exchanged therein, (ii) effectiveness of the Shelf
Registration Statement or (iii) the Notes becoming freely
tradable under the Securities Act. The Notes shall have such
other terms as are set forth therein.
The Series A Notes and the Series B Notes shall be considered
collectively to be a single class for all purposes of this
Indenture, including, without limitation, waivers, amendments,
redemptions and offers to purchase.
2.2 FORMS GENERALLY
The Notes shall be in substantially the forms set forth in this
Section 2.2, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this First Supplemental 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 as may, consistently
herewith, be determined by the officers executing such Notes, as
evidenced by their execution thereof.
The Trustee shall authenticate (i) the Series A Notes for
original issue on the date hereof in the aggregate principal
amount of $300,000,000 and (ii) the Series B Notes from time to
time for issue only in exchange for a like principal amount of
Series A Notes, in each case upon a Company Order, which written
order shall specify the amount of Series B Notes to be
authenticated and the date of original issue thereof.
Upon their original issuance, Notes offered and sold to
Qualified Institutional Buyers in accordance with Rule 144A
shall be issued in the form of one or more Global Notes in
definitive, fully registered form without coupons, substantially
in the form set forth in this Section 2.2, with such applicable
legends as provided herein (each, a "RESTRICTED GLOBAL NOTE").
Such Restricted Global Notes shall be registered in the name of
the Depositary, or its nominee, and deposited with the Trustee,
at its Corporate Trust Office, as custodian for the Depositary,
duly executed by the Company, and by the Guarantor, in the case
of the Guaranty endorsed thereon, and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount
of any Restricted Global Notes may from time to time be
increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary, as provided in Section
2.3 hereof.
Upon their original issuance, Notes offered and sold in reliance
on Regulation S shall initially be issued in the form of one or
more Global Notes in definitive, fully registered
-9-
form without coupons, substantially in the form set forth in
this Section 2.2, with such applicable legends as provided
herein (each, a "REGULATION S GLOBAL NOTE"). Such Regulation S
Global Notes shall be registered in the name of the Depositary,
or its nominee, and deposited with the Trustee, at its Corporate
Trustee Office, as custodian for the Depositary, duly executed
by the Company, and by the Guarantor, in the case of the
Guaranty endorsed thereon, and authenticated by the Trustee as
herein provided, for credit by the Depositary to the respective
accounts of beneficial owners of such Notes (or to such other
accounts as they may direct) at Euroclear or Clearstream,
Luxembourg. After such time as the applicable Distribution
Compliance Period shall have terminated, each such Regulation S
Global Note shall be referred to herein as an "UNRESTRICTED
GLOBAL NOTE". The aggregate principal amount of any Regulation S
Global Note or any Unrestricted Global Note may from time to
time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary, as
provided in Section 2.3 hereof.
Notwithstanding the foregoing, upon consummation of an Exchange
Offer, the Company shall issue and, upon receipt of a Company
Order as described above, the Trustee shall authenticate one or
more Unrestricted Global Notes in aggregate principal amount
equal to the principal amount of the Global Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance
of such Unrestricted Global Notes, the Trustee shall reduce
accordingly the aggregate principal amount of the Global Notes
accepted for exchange.
2.2.1 FORM OF FACE OF NOTE
[INCLUDE IF NOTE IS A GLOBAL NOTE -- THIS IS A GLOBAL
NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO, AS SUPPLEMENTED BY THE FIRST SUPPLEMENTAL
INDENTURE, AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE
TREATED BY VALE OVERSEAS LIMITED, COMPANHIA VALE DO RIO
DOCE AND THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND
HOLDER OF THIS NOTE FOR ALL PURPOSES.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR REGISTERED NOTES IN DEFINITIVE REGISTERED FORM IN
THE LIMITED CIRCUMSTANCES REFERRED TO IN SECTION 3.4.2
OF THE INDENTURE, AS SUPPLEMENTED BY THE FIRST
SUPPLEMENTAL INDENTURE, THIS GLOBAL NOTE 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.]
[INCLUDE IF NOTE IS A GLOBAL NOTE AND THE DEPOSITARY IS
THE DEPOSITORY TRUST COMPANY -- UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
-10-
DEPOSITORY TRUST COMPANY TO VALE OVERSEAS LIMITED OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR
THIS CERTIFICATE OR ANY PORTION HEREOF IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN THE
DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.]
[INCLUDE IF NOTE IS A RESTRICTED GLOBAL NOTE (UNLESS,
PURSUANT TO SECTION 2.3 OF THE FIRST SUPPLEMENTAL
INDENTURE, THE COMPANY DETERMINES AND CERTIFIES TO THE
TRUSTEE THAT THE LEGEND MAY BE REMOVED) -- NEITHER THIS
GLOBAL NOTE, THE GUARANTY HEREOF NOR ANY BENEFICIAL
INTEREST HEREIN HAS BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER OR BUYERS IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT (PROVIDED THAT AS A
CONDITION TO REGISTRATION OF TRANSFER OF THIS GLOBAL
NOTE AS SET FORTH ABOVE, VALE OVERSEAS LIMITED MAY
REQUIRE DELIVERY OF ANY DOCUMENTS OR OTHER EVIDENCE
THAT IT, IN ITS ABSOLUTE DISCRETION, DEEMS NECESSARY OR
APPROPRIATE TO EVIDENCE COMPLIANCE WITH SUCH
EXEMPTION), AND, IN EACH CASE, IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS. NOTES OWNED BY AN
INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR
A NON U.S. PERSON MAY NOT BE HELD IN BOOK-ENTRY FORM
AND MAY NOT BE TRANSFERRED WITHOUT CERTIFICATION THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS,
AS PROVIDED IN THE FIRST SUPPLEMENTAL INDENTURE UNDER
WHICH THE NOTES ARE ISSUED.]
-11-
[INCLUDE IF NOTE IS A REGULATION S GLOBAL NOTE (UNLESS,
PURSUANT TO SECTION 2.3 OF THE FIRST SUPPLEMENTAL
INDENTURE, THE COMPANY DETERMINES AND CERTIFIES TO THE
TRUSTEE THAT THE LEGEND MAY BE REMOVED) -- THIS NOTE
AND THE GUARANTY HEREOF HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD OR
DELIVERED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS SUCH
NOTES AND GUARANTY ARE REGISTERED UNDER THE SECURITIES
ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF IS AVAILABLE. THE FOREGOING SHALL NOT APPLY
FOLLOWING THE EXPIRATION OF FORTY DAYS FROM THE LATER
OF (i) THE DATE ON WHICH THESE NOTES WERE FIRST OFFERED
AND (ii) THE DATE OF ISSUANCE OF THESE NOTES.]
VALE OVERSEAS LIMITED
[SERIES A] [SERIES B]
8.625% ENHANCED GUARANTEED NOTES DUE 2007
GUARANTEED BY COMPANHIA VALE DO RIO DOCE
[If Restricted Global Note - CUSIP Number
91911TAA1/ISIN Number US91911TAA16]
[If Regulation S Global Note - CINS Number
G9317UAA3/ ISIN
Number USG9317UAA37/Common Code Number 014456856]
No. [ ] $[ ]
Vale Overseas Limited, a company duly organized and
existing under the laws of the Cayman Islands (herein
called the "COMPANY", which term includes any successor
Person under the Indenture, as supplemented by the
First Supplemental Indenture hereinafter referred to),
for value received, hereby promises to pay to [ ], or
registered assigns, the principal sum of [ ] Dollars
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- , or such
other principal amount as set forth in the Schedule of
Increases or Decreases in Global Note attached hereto]
on March 8, 2007, or if a Political Risk Event is in
existence on such date, on the earlier of (i) the date
five Business Days after the Political Risk Event
terminates, (ii) September 8, 2008 and (iii) the
Interest Payment Date after the Reserve Account and all
amounts available to be drawn under any Letter of
Credit have been fully depleted, and to pay interest
thereon from March 8, 2002 or from the most recent
Interest Payment Date to which interest has been paid
or duly provided for, as the case may be, semi-annually
on March 8 and September 8 in each year, commencing
September 8, 2002 at the rate of 8.625% per annum,
until the principal hereof is paid or made available
for payment, PROVIDED that any amount of interest on
this Note which is overdue shall bear interest (to the
extent that payment thereof shall be legally
enforceable) at the Default Rate of Interest, except as
provided for herein, from the date such amount is due
to but not including the day it is paid
-12-
or made available for payment, and such overdue
interest shall be paid as provided in Section 3.6 of
the Original Indenture. As provided in the Registration
Rights Agreement, in the event that either the Exchange
Offer is not completed or the Shelf Registration
Statement, if required by the Registration Rights
Agreement, is not declared effective on or prior to
September 8, 2002 then, pursuant to and subject to the
Registration Rights Agreement, the interest rate on the
Notes will increase by 0.25% per annum, and will
increase an additional 0.25% per annum if the same is
not completed or effective on December 8, 2002, for an
aggregate maximum additional interest of 0.50% per
annum. These additional amounts will be payable on the
Notes, pursuant to and subject to the Registration
Rights Agreement, until the earlier of (i) completion
of the Exchange Offer, regardless of how many Notes are
exchanged therein, (ii) effectiveness of the Shelf
Registration Statement or (iii) the Notes becoming
freely tradable under the Securities Act.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as
provided in such Indenture and First Supplemental
Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered
at the close of business on the Regular Record Date for
such interest, which shall be February 21 or August 24
(whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on the
relevant Regular Record Date and may either be paid to
the Person in whose name this Note (or one or more
Predecessor Notes) 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 the Notes
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 the Notes may be listed,
and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture
or First Supplemental Indenture. Interest on this Note
shall be computed on the basis set forth in the
Indenture, as supplemented by the First Supplemental
Indenture.
Payment of the principal of and interest on this Note
will be made to the Person entitled thereto according
to the Security Register at the office of the Trustee
or agency of the Company in the Borough of Manhattan,
The City of New York, New York, maintained for such
purpose and at any other office or agency maintained by
the Company for such purpose, in such coin or currency
of the United States of America as at the time of
payment is legal tender for payment of public and
private debts upon surrender of this Note 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); PROVIDED, HOWEVER, 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; PROVIDED, FURTHER, that all payments
of the principal of and
-13-
interest on this Note, the Permitted Holders of which
have given wire transfer instructions to the Trustee,
the Company, or its agent at least 10 Business Days
prior to the applicable payment date, will be required
to be made by wire transfer of immediately available
funds to the accounts with financial institutions in
the United States specified by such Permitted Holders
in such instructions. [IF THE NOTE IS A GLOBAL NOTE,
THEN INSERT -- Notwithstanding the foregoing, payment
of any amount payable in respect of a Global Note will
be made in accordance with the Applicable Procedures of
the Depositary.]
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which
further provisions shall for all purposes have the same
effect as if set forth at this place.
Payment of interest on the Notes has been secured in
part by the establishment of the Reserve Account (as
defined in the First Supplemental Indenture) or the
issue of Letters of Credit (as defined in the First
Supplemental Indenture) or any combination of the
foregoing, which provide funds sufficient to pay up to
18 months of interest on the Notes plus certain fees
and expenses, such funds to be paid to the Holders of
the Notes upon the occurrence of certain
inconvertibility, transferability or expropriation
events.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse
hereof by manual signature, this Note shall not be
entitled to any benefit under the Indenture, as
supplemented by the First Supplemental Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to
be duly executed under its corporate seal.
Dated:
VALE OVERSEAS LIMITED
By: _____________________
Name:
Title:
By: _____________________
Name:
Title:
The undersigned (the "GUARANTOR") hereby irrevocably
and unconditionally guarantees the full and punctual
payment (whether at the Stated Maturity Date, 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 Note.
-14-
IN WITNESS WHEREOF, the Guarantor has caused this
instrument to be duly endorsed.
COMPANHIA VALE DO RIO DOCE
By: _____________________
Name:
Title:
By: _____________________
Name:
Title:
2.2.2 FORM OF REVERSE OF NOTE
This Note is a duly authorized issue of securities of
the Company issued in one or more series (the
"SECURITIES") 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), as
supplemented by a First Supplemental Indenture dated as
of March 8, 2002 (herein called the "FIRST SUPPLEMENTAL
INDENTURE"), among the Company, 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, as supplemented by the First
Supplemental 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. This Security is one of
the series designated on the face hereof (herein called
the "NOTES"), initially limited in aggregate principal
amount to $300,000,000.
The full and punctual payment of the principal,
premium, if any, and interest and all other amounts
payable under this Note is irrevocably and
unconditionally guaranteed by the Guarantor. Payment of
principal under such guaranty shall be suspended in the
event (i) the payment of principal and other amounts
due under the Notes is automatically accelerated in
accordance with Sections 5.1.5 or 5.1.6 of the Original
Indenture with respect to the Company, (ii) the
Guarantor is not the subject of Event of Default under
Section 5.1.5 or 5.1.6 of the Original Indenture and
(iii) at that time there exists a Political Risk Event.
In that case, the Guarantor's obligations to make
payment of principal under the Guaranty will be
suspended until the earlier of (x) five Business Days
after the Political Risk Event terminates, (y) the date
on which the funds in the Reserve Account or available
under the Letters of Credit have been fully depleted
and (z) 18 months after the date of acceleration.
-15-
Additional notes on terms and conditions identical to
those of this Note may be issued by the Company without
the consent of the Holders of the Notes. The amount
evidenced by such additional Notes shall increase the
aggregate principal amount of, and shall be
consolidated and form a single series with, the Notes.
If an Event of Default or Illegality Event with respect
to Notes shall occur and be continuing, the principal
of all of the Notes may be declared due and payable in
the manner and with the effect provided in the
Indenture, as supplemented by the First Supplemental
Indenture.
All payments of principal and interest in respect of
the Notes 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
any 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
Notes 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 Note:
(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 Note and the receipt of payments with
respect to such Note or (B) failure by the Holder
to comply with any certification, identification
or other reporting requirement concerning the
nationality, residence, identity or connection
between 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
Note 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
-16-
provided for and notice thereof given to Holders,
whichever occurs later, except to the extent that
the Holder of such Note would have been entitled
to such Additional Amounts on surrender of such
Note 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 Note;
(iv) in respect of any tax, assessment or other
governmental charge payable otherwise than by
deduction or withholding from payments on the
Notes 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 Note means the direct
nominee of any beneficial owner of such Note, which
holds such beneficial owner's interest in such Note.
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 (a) 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 Note
(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 Notes 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 thereof, or any
taxing authority of or in any of the
-17-
foregoing, with respect to the Indenture, the First
Supplemental Indenture or the issuance of the Notes or
the Guaranty.
All references herein, in the Indenture or in the First
Supplemental Indenture, to principal, premium or
interest in respect of any Note 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 Notes 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
Notes, 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 Notes, 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. However, by making such
assignment, the Holder makes no representation or
warranty that the Company 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, the First Supplemental
Indenture and the Notes to principal in respect of any
Note shall be deemed to mean and include any Redemption
Price payable in respect of such Note pursuant to any
redemption right hereunder (and all such references to
the Stated Maturity Date of the principal in respect of
any Note shall be deemed to mean and include the
Redemption Date with respect to any such Redemption
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.
The Notes 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 part, at the election of the
Company, at a cash price equal to the sum of (i) the
principal amount of the Notes being redeemed, (ii)
accrued and unpaid current interest thereon to but not
including the date fixed for redemption, and (iii) any
Additional Amounts (as defined in the Indenture) which
would otherwise be payable up to but not including the
date fixed for redemption, if, as a result of any
amendment to, or change in, the laws (or any laws,
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 the date of the
First Supplemental Indenture, the Company would be
obligated, after taking measures the Company considers
reasonable
-18-
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 Notes were
subject to withholding or deduction of Foreign Taxes at
the rate of 15 percent.
The Indenture, as supplemented by a supplemental
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, as supplemented, 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, as supplemented, on behalf of the Holders of
all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture,
as supplemented, 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 as supplemented, on behalf of the Holders of
all Securities of such series, to waive certain past
defaults under the Indenture as supplemented by the
First Supplemental Indenture and their consequences.
Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note
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
Note.
As provided in and subject to the provisions of the
Indenture, as supplemented by the First Supplemental
Indenture, the Holder of this Note shall not have the
right to institute any proceeding with respect to the
Indenture, the First Supplemental 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 Notes, the Holders of not less than 25%
(or 10% in the instance of Event of Default due to a
false report of a Political Risk Event) in principal
amount of the Notes 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 Notes 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 Note for the
enforcement of any payment of principal hereof or any
interest hereon on or after the respective due dates
expressed herein.
-19-
No reference herein to the Indenture or the First
Supplemental Indenture and no provision of this Note or
of the Indenture or the First Supplemental Indenture
shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the
principal of and any interest on this Note at the
times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and the First Supplemental
Indenture and subject to certain limitations therein
set forth (including, without limitation, the
restrictions on transfer under Sections 2.2 and 2.3 of
the First Supplemental Indenture) the transfer of this
Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at
the office of the Trustee or agency of the Company in
any place where the principal of and any interest on
this Note 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 Notes 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 Notes are issuable only in registered form without
coupons in denominations of [IF THE NOTE IS NOT A
RESTRICTED CERTIFICATED NOTE, THEN INSERT -- $1,000 and
any multiple thereof] [IF THE NOTE IS A RESTRICTED
CERTIFICATED NOTE, THEN INSERT -- $100,000 and any
integral multiple of $1,000 in excess thereof]. As
provided in the Indenture, as supplemented by the First
Supplemental Indenture, and subject to certain
limitations therein set forth, Notes are exchangeable
for a like aggregate principal amount of Notes 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 Note for registration of
transfer, the Company, the Guarantor, the Trustee and
any agent of the Company, the Guarantor or of the
Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes,
whether or not this Note is overdue, and neither the
Company, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- This Note
is a Global Note and is subject to the provisions of
the Indenture and the First Supplemental Indenture
relating to Global Notes, including the limitations in
Section 2.3 of the First Supplemental Indenture on
transfers and exchanges of Global Notes.]
This Note, the Indenture and the First Supplemental
Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
-20-
All terms used in this Note which are defined in the
Indenture, as supplemented by the First Supplemental
Indenture, shall have the meanings assigned to them in
the Indenture, as supplemented by the First
Supplemental Indenture.
ABBREVIATIONS
The following abbreviations, when used in the
inscription of the face of this Note, 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.
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ]. The following
increases or decreases in this Global Note have been made:
PRINCIPAL AMOUNT OF SIGNATURE OF
AMOUNT OF DECREASE AMOUNT OF INCREASE THIS GLOBAL NOTE AUTHORIZED OFFICER
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT FOLLOWING SUCH OF TRUSTEE OR NOTES
DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE DECREASE OR INCREASE CUSTODIAN
- ------------------------ ---------------------- --------------------- ---------------------- ----------------------
- ------------------------ ---------------------- --------------------- ---------------------- ----------------------
- ------------------------ ---------------------- --------------------- ---------------------- ----------------------
- ------------------------ ---------------------- --------------------- ---------------------- ----------------------
2.3 TRANSFERS AND EXCHANGES
2.3.1 RESTRICTED NOTES Restricted Notes shall be subject to the
restrictions on transfer (the "TRANSFER RESTRICTIONS") provided
in the applicable legend(s) (the "RESTRICTIVE LEGENDS")
required to be set forth on the face of each Restricted
-21-
Note pursuant to Section 2.2, unless compliance with the
Transfer Restrictions shall be waived by the Company in writing
delivered to the Trustee.
The Transfer Restrictions shall cease and terminate with
respect to any particular Restricted Note upon receipt by the
Company of evidence satisfactory to it (which may include an
opinion of independent counsel experienced in matters of United
States federal securities law) that, as of the date of
determination, such Restricted Note (a) has been transferred by
the Holder thereof pursuant to Rule 144 promulgated under the
Securities Act, (b) has been sold pursuant to an effective
registration statement under the Securities Act, or (c) has
been transferred in a transaction satisfying all the
requirements of Rule 903 or 904 (as applicable) of Regulation
S, and receipt by the Trustee of an Officer's Certificate
certifying that the Company has received such evidence which
may include an opinion of counsel stating that the Transfer
Restrictions have ceased and terminated with respect to such
Note. All references in the preceding sentence to any
regulation, rule or provision thereof shall be deemed also to
refer to any successor provisions thereof. In addition, the
Company may terminate the Transfer Restrictions with respect to
any particular Restricted Note in such other circumstances as
it determines are appropriate for this purpose and shall
deliver to the Trustee an opinion of counsel, if any, and
Officer's Certificate certifying that the Transfer Restrictions
have ceased and terminated with respect to such Note.
At the request of the Holder and upon the surrender of such
Restricted Notes to the Trustee or Security Registrar for
exchange in accordance with the provisions of this Section 2.3,
any Restricted Note as to which the Transfer Restrictions shall
have terminated in accordance with the preceding paragraph
shall be exchanged for a new Note of like aggregate principal
amount, but without the Restrictive Legends. Any Restricted
Note as to which the Restrictive Legends shall have been
removed pursuant to this paragraph (and any Note issued upon
registration of transfer of, exchange for or in lieu of such
Restricted Note) shall thereupon cease to be a "Restricted
Note" for all purposes of this First Supplemental Indenture.
The Trustee shall not be liable for any action taken or omitted
to be taken by it in good faith and without negligence on its
part in accordance with such notice or any opinion of counsel.
As used in this Section 2.3.1, the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any Notes
referred to herein.
2.3.2 TRANSFERS BETWEEN GLOBAL NOTES
(i) RESTRICTED GLOBAL NOTE TO REGULATION S GLOBAL NOTE
If the owner of a beneficial interest (an "OWNER
TRANSFEROR") in a Restricted Global Note wishes at
any time to transfer such beneficial interest to a
Person (an "OWNER TRANSFEREE") who wishes to take
delivery thereof in the form of a beneficial interest
in a Regulation S Global Note, such transfer may be
effected, subject to the Applicable Procedures, only in
-22-
accordance with the provisions of this Section 2.3.2(i).
Upon receipt by the Trustee, as Security Registrar, at
the Corporate Trust Office of (l) written instructions
given in accordance with the Applicable Procedures
from the Agent Member, whose account is to be
debited (an "AGENT MEMBER TRANSFEROR") with respect
to the Restricted Global Note, directing the
Trustee, as Security Registrar, to credit or cause to
be credited to a specified account of another Agent
Member (an "AGENT MEMBER TRANSFEREE") (which shall be
an account with Euroclear or Clearstream, Luxembourg or
both) a beneficial interest in a Regulation S
Global Note in a principal amount equal to the
beneficial interest in the Restricted Global Note to
be so transferred (the "RESTRICTED GLOBAL
TRANSFERRED AMOUNT"), (2) a written order given in
accordance with the Applicable Procedures containing
information regarding the account of the Agent Member
Transferee to be credited with, and the Agent Member
Transferor to be debited by, the Restricted Global
Transferred Amount, and (3) a certificate in
substantially the form set forth in Annex A given by
the Owner Transferor, the Trustee, as Security
Registrar, shall instruct the Depositary to reduce the
principal amount of the Restricted Global Note, and to
increase the principal amount of the Regulation S Global
Note, by the Restricted Global Transferred Amount, and
to credit, or cause to be credited to, the account of
the Agent Member Transferee a beneficial interest in
the Regulation S Global Note, and to debit, or cause
to be debited to, the account of the Agent Member
Transferor a beneficial interest in the Restricted
Global Note, in each case having a principal amount
equal to the Restricted Global Transferred Amount.
(ii) RESTRICTED GLOBAL NOTE TO UNRESTRICTED GLOBAL NOTE If an
Owner Transferor wishes at any time to transfer a
beneficial interest in a Restricted Global Note to an
Owner Transferee who wishes to take delivery thereof
in the form of a beneficial interest in an
Unrestricted Global Note, such transfer may be
effected, subject to the Applicable Procedures, only
in accordance with this Section 2.3.2(ii). Upon receipt
by the Trustee, as Security Registrar, at the
Corporate Trust Office of (l) written instructions
given in accordance with the Applicable Procedures
from the Agent Member Transferor directing the
Trustee, as Security Registrar, to credit or cause to
be credited to a specified account of an Agent Member
Transferee (which may but need not be an account with
Euroclear or Clearstream, Luxembourg) a beneficial
interest in the Unrestricted Global Note in a
principal amount equal to the Restricted Global
Transferred Amount, (2) a written order given in
accordance with the Applicable Procedures containing
information regarding the account of the Agent Member
Transferee to be credited with, and the account of the
Agent Member Transferor to be debited for, the
Restricted Global Transferred Amount, and (3) a
certificate in substantially the form set forth in
Annex B given by the Owner Transferor, the Trustee,
as
-23-
Security Registrar, shall instruct the Depositary
to reduce the principal amount of the Restricted
Global Note, and to increase the principal amount
of the Unrestricted Global Note, by the Restricted
Global Transferred Amount, and to credit, or cause to be
credited to, the account of the Agent Member Transferee
a beneficial interest in the Unrestricted Global Note,
and to debit, or cause to be debited to, the account of
the Agent Member Transferor a beneficial interest in
the Restricted Global Note, in each case having a
principal amount equal to the Restricted Global
Transferred Amount.
(iii) REGULATION S GLOBAL NOTE OR UNRESTRICTED GLOBAL NOTE TO
RESTRICTED GLOBAL NOTE If an Owner Transferor wishes at
any time to transfer a beneficial interest in a
Regulation S Global Note or an Unrestricted Global Note
to an Owner Transferee who wishes to take delivery
thereof in the form of a beneficial interest in a
Restricted Global Note, such transfer may be effected,
subject to the Applicable Procedures, only in accordance
with this Section 2.3.2(iii). Upon receipt by the
Trustee, as Security Registrar, at the Corporate Trust
Office of (1) written instructions given in accordance
with the Applicable Procedures from the Agent Member
Transferor, directing the Trustee, as Security
Registrar, to credit, or cause to be credited to, a
specified account of an Agent Member Transferee a
beneficial interest in the Restricted Global Note in a
principal amount equal to that of the beneficial
interest in the Regulation S Global Note or Unrestricted
Global Note to be so transferred, (2) a written order
given in accordance with the Applicable Procedures
containing information regarding the account of the
Agent Member Transferee to be credited with, and the
account of the Agent Member Transferor (which, in the
case of beneficial interest in the Regulation S Global
Note, must be an account with Euroclear or Clearstream
or both) to be debited for, such beneficial interest,
and (3) with respect to a transfer of a beneficial
interest in the Regulation S Global Note (but not the
Unrestricted Global Note), a certificate in
substantially the form set forth in Annex C given by the
Owner Transferor, the Trustee, as Security Registrar,
shall instruct the Depositary to reduce the principal
amount of the Regulation S Global Note or Unrestricted
Global Note, as the case may be, and increase the
principal amount of the Restricted Global Note, by the
principal amount of the beneficial interest in the
Regulation S Global Note or Unrestricted Global Note to
be so transferred, and to credit, or cause to be
credited to, the account of the Agent Member Transferee
such beneficial interest in the Restricted Global Note,
and to debit, or cause to be debited to, the account of
the Agent Member Transferor such beneficial interest in
the Regulation S Global Note or Unrestricted Global
Note, as the case may be.
2.3.3 In case of any transfer or exchange the procedures and
requirements for which are not addressed in detail in this
Section 2.3, such transfer or exchange will be
-24-
subject to such procedures and requirements as may be
reasonably prescribed by the Company from time to time and, in
the case of a transfer or exchange involving a Global Note, the
Applicable Procedures.
2.3.4 Notwithstanding the foregoing, during the period of two years
after the issue date of the Notes, the Company shall not, and
shall not permit any of its Affiliates that are Subsidiaries
to, purchase or agree to purchase or otherwise acquire any
Restricted Notes, whether as beneficial owner or otherwise
(except as agent on behalf of and for the account of customers
in the ordinary course of business as a securities broker in
unsolicited broker's transactions) unless, immediately upon any
such purchase, the Company or any such Affiliate shall submit
such Restricted Notes to the Trustee for cancellation. The
Company further agrees to ask its Affiliates that are not
Subsidiaries to agree not to purchase or otherwise acquire any
Restricted Notes, whether as beneficial owner or otherwise,
except as permitted in the preceding sentence.
2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Notes referred to in the within mentioned Indenture,
as supplemented by the First Supplemental Indenture.
Dated:
JPMORGAN CHASE BANK
as Trustee
By: _____________________
Authorized Officer
2.5 MAINTENANCE OF OFFICE OR AGENCY
With respect to any Notes that are not in the form of a Global Note, the
Company will maintain (i) in the Borough of Manhattan, The City of New
York and (ii) in Luxembourg, so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules and regulations of the Luxembourg
Stock Exchange so require, an office or agency, in each case in
accordance with Section 10.2 of the Original Indenture.
2.6 LUXEMBOURG LISTING
The Company shall use all reasonable efforts to cause the Notes to be
duly authorized for listing on the Luxembourg Stock Exchange or another
recognized securities exchange and shall from time to time take such
other actions as shall be necessary or advisable to maintain the listing
of the Notes thereon.
2.7 REGISTRATION RIGHTS
The Holders of the Notes are entitled to the benefits of a Registration
Rights Agreement dated the date hereof among the Company, the Guarantor
and the Initial Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), which
Registration Rights Agreement provides
-25-
for the registration of the Notes with the Commission or the issue of
notes so registered in exchange for the outstanding Notes.
2.8 SUSPENSION OF PAYMENT OF PRINCIPAL OF GUARANTY
In the event payment of principal and other amounts due under the Notes
is accelerated due to an Event of Default of the Company pursuant to
Section 5.1.5 or 5.1.6 of the Original Indenture, if the Guarantor is not
also the subject of such an Event of Default and a Political Risk Event
is then in existence, then payments of principal under the Guaranty shall
be suspended until the earlier of (i) five Business Days after such
Political Risk Event terminates, (ii) the date on which the funds in the
Reserve Account or available under the Letters of Credit have been
depleted and (z) 18 months after the date of acceleration. During such
suspension, the Notes will continue to accrue interest and pay such
accrued interest on the Interest Payment Dates at the rate of 8.625% per
annum.
2.9 PRESCRIPTION PERIOD
Claims for payment of principal in respect of the Notes shall be
prescribed upon the expiration of 10 years, and claims for payment of
interest in respect of the Notes shall be prescribed upon the expiration
of 5 years, in each case from the Relevant Date thereof.
3 RESERVE ACCOUNT AND LETTERS OF CREDIT
3.1 RESERVE ACCOUNT AND LETTERS OF CREDIT
3.1.1 On the date hereof, the Company or the Guarantor shall deliver
to the Trustee a Letter of Credit in the amount of the
Political Risk Coverage, as determined on the date hereof.
3.1.2 The Company or the Guarantor may at any time substitute all or
a portion of any Letters of Credit held by the Trustee for
deposits in the Reserve Account, and deposits in the Reserve
Account may also be so substituted for Letters of Credit;
PROVIDED, HOWEVER, that before any Letter of Credit may be so
substituted, the Trustee shall have received a confirmation in
writing from Moody's that such substitution will not result in
a downgrading of the then current rating assigned to the Notes.
Any Letter of Credit so substituted or otherwise required to be
disposed of under this First Supplemental Indenture shall be
returned to its issuer for cancellation.
3.1.3 The Trustee shall establish and maintain in the United States a
U.S. dollar account (Account No. 161600) designated as
"JPMorgan Chase Bank, as Trustee FBO Holders of Vale Overseas
Limited U.S.$300,000,000 8.625% Enhanced Guaranteed Notes Due
2007 Reserve Account" with the Securities Intermediary (the
"RESERVE ACCOUNT"). All right, title and interest in and to the
amounts on deposit from time to time in the Reserve Account and
any property held therein or credited thereto, together with
any Permitted Investment from time to time made pursuant to
this Section, shall constitute part of the Collateral and shall
be held for the benefit of the Holders of Notes and the Trustee
as
-26-
their interests shall appear hereunder, and shall not
constitute payment of the Obligations (or any other obligations
to which such funds are provided hereunder to be applied) until
applied thereto as hereinafter provided. Neither the Company
nor the Guarantor shall have any right of withdrawal from the
Reserve Account nor any interest therein.
3.1.4 Prior to the delivery to the Trustee of any such Letter of
Credit, the Company shall deliver to the Trustee an Officers'
Certificate to the effect that such Letter of Credit qualifies
as such under this First Supplemental Indenture.
3.1.5 Amounts on deposit in the Reserve Account shall be invested and
reinvested by the Trustee at the written direction of the
Company from time to time in Permitted Investments, which
Permitted Investments shall mature at least one Business Day
prior to the next Interest Payment Date, which direction shall
specify the particular investment to be made and shall certify
that such investment constitutes a Permitted Investment
hereunder. The Trustee shall have no liability for any losses
resulting from any such Permitted Investments. Any income
received by, or on behalf of, the Trustee with respect to the
balance from time to time on deposit in the Reserve Account,
including any interest or capital gains on Permitted
Investments made with amounts on deposit in the Reserve
Account, shall remain, or be deposited, in the Reserve Account
and shall constitute part of the Reserve Account.
3.1.6 The Reserve Account shall be under the sole dominion and
control of the Trustee and the Trustee shall have the sole
right to make withdrawals and disbursements from the Reserve
Account, to give any other instructions concerning the account
to the respective bank or Securities Intermediary maintaining
the account and to exercise all rights with respect to the
Collateral from time to time deposited therein in accordance
with the Original Indenture and this First Supplemental
Indenture. All Collateral delivered to or held by or on behalf
of the Trustee pursuant hereto shall be held in the Reserve
Account in accordance with the terms hereof and any
supplemental indenture, and shall be controlled solely by the
Trustee.
3.2 WITHDRAWALS FROM THE RESERVE ACCOUNT AND DRAWDOWNS ON LETTERS OF CREDIT
Funds on deposit in the Reserve Account and available under the
Letters of Credit shall be applied by the Trustee at the following
times and in the following amounts:
3.2.1 First, if on any Business Day prior to an Interest Payment
Date, (i) a Political Risk Event is in effect as noticed to the
Trustee by the Company or the Guarantor, (ii) the Company and
the Guarantor have sent a notice to the Trustee in the form
attached hereto as Annex E and (iii) the Company or the
Guarantor has not deposited, or caused to be deposited, with
the Trustee funds sufficient to pay the Trustee's fees and
reasonable expenses for the next six months of service as
Trustee, then the Trustee shall pay such amounts to itself from
the Reserve Account or by drawing funds from any Letters of
Credit within 30 days of such Interest Payment Date.
-27-
3.2.2 Second, if on any Business Day prior to an Interest Payment
Date, (i) a Political Risk Event is in effect as noticed to the
Trustee by the Company or the Guarantor, (ii) the Company and
the Guarantor have sent a notice to the Trustee in the form
attached hereto as Annex E and (iii) the Company or the
Guarantor has not deposited, or caused to be deposited, with
the Trustee funds sufficient to pay the interest and/or
Additional Amounts then due on the Notes, then the Trustee
shall pay such amounts to the Holders of the Notes from the
Reserve Account or by drawing funds from any Letters of Credit.
3.2.3 Third, if on any Interest Payment Date (i) the Company or the
Guarantor has not deposited, or caused to be deposited, with
the Trustee funds sufficient to pay the interest and/or
Additional Amounts then due on the Notes, (ii) a Political Risk
Event was in effect on that Interest Payment Date as noticed to
the Trustee by the Company or the Guarantor after that Interest
Payment Date and (iii) the Company and the Guarantor have sent
a notice to the Trustee in the form attached hereto as Annex E
then as soon as practicable after receiving that notice the
Trustee shall pay such unpaid amounts together with default
interest thereon at the applicable default rate to the Holders
of the Notes from the Reserve Account or by drawing funds from
any Letters of Credit.
3.2.4 Fourth, two Business Days after each Interest Payment Date the
Trustee shall, to the extent the aggregate amount of funds in
the Reserve Account and available under the Letters of Credit
exceed the Political Risk Coverage on that date, (i) pay to the
Company funds, if any, from the Reserve Account equal to such
excess or (ii) notify the issuer(s) of the Letter of Credit
requesting and allowing the reduction in the amount available
under the Letters of Credit in an amount equal to such excess,
or any combination of the foregoing; PROVIDED, HOWEVER, that
where the Political Risk Coverage has been reduced to zero,
such funds shall be payable to the Company and Letters of
Credit delivered to the issuer(s) for cancellation, in each
case as soon as practicable.
3.2.5 Fifth, all funds available under a Letter of Credit shall be
drawn by the Trustee and deposited in the Reserve Account (i)
not less than 30 days before the Letter of Credit expires if
(x) the issuer of the Letter of Credit notifies the Trustee as
beneficiary of the Letter of Credit that the Letter of Credit
will not be automatically renewed and (y) the Company and the
Guarantor have failed to substitute such Letter of Credit for
another Letter of Credit or make a deposit in the Reserve
Account at least 40 days before the existing Letter of Credit
expires or (ii) if the issuer of the Letter of Credit suffers a
reduction in its long-term unsecured U.S. dollar debt rating
below Aa3 or its short-term debt rating below P-1 by Moody's.
The Trustee shall not be charged with notice or knowledge of
such a rating reduction unless it shall have received written
notice thereof from the Company or the Guarantor.
3.2.6 If the Company provides for the substitution of any portion or
all of the amount available under a Letter of Credit for cash
deposits in the Reserve Account, the Trustee shall notify the
issuer of the Letter of Credit that the amount available
-28-
thereunder shall be reduced by the amount of the cash deposit
and shall, at the option of the issuer thereof either surrender
the Letter of Credit to the issuer thereof in return for a
Letter of Credit having a stated amount reduced by the amount
of such cash or permit an amendment of the Letter of Credit
providing for the reduction of the stated amount thereof by the
amount of said cash deposit. If the Company provides for the
substitution of cash deposits in the Reserve Account for a
Letter of Credit having a stated amount equal to such cash, the
Trustee shall return such cash to the Company promptly after
receipt of such Letter of Credit and the effectiveness thereof
and the receipt of the Officers' Certificate required by
Section 3.1.4, subject to Section 3.1.2.
3.3 RELEASE OF COLLATERAL
All funds paid from the Reserve Account in accordance with Sections 3.1
and 3.2 hereof shall be released from the Lien created hereby, and the
Trustee shall, at the request and direction of the Company, take all
reasonable steps and make all filings necessary to release the
Collateral from the Liens created pursuant to this First Supplemental
Indenture.
4 MISCELLANEOUS PROVISIONS
4.1 SEPARABILITY OF INVALID PROVISIONS
In case any one or more of the provisions contained in this First
Supplemental Indenture should be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions contained in this First Supplemental
Indenture, and to the extent and only to the extent that any such
provision is invalid, illegal or unenforceable, this First Supplemental
Indenture shall be construed as if such provision had never been
contained herein.
4.2 EXECUTION IN COUNTERPARTS
This First Supplemental Indenture may be simultaneously executed and
delivered in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original, and such counterparts
shall together constitute but one and the same instrument.
5 REPRESENTATIONS AND WARRANTIES
Each of the Company and the Guarantor, jointly and severally, represents and
warrants to the Trustee, solely for the benefit of the holders of the Notes,
that, except as otherwise provided herein and except as would not have a
material adverse effect on the ability of the Guarantor to comply with its
obligations under the Notes, on and as of the date hereof:
5.1 the Final Offering Memorandum, in the form used by the Initial
Purchasers to confirm sales of the Securities and as of the Closing
Date, did not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such dates, not
misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or
-29-
statements or omissions made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Company
and the Guarantor in writing by such Initial Purchaser through the
Representative expressly for use therein;
5.2 the financial statements, and the related notes thereto, included in
the Final Offering Memorandum present fairly the consolidated financial
position of the Guarantor and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified; and said
financial statements have been prepared in conformity with generally
accepted accounting principles and practices of the United States
applied on a consistent basis throughout the periods covered thereby;
5.3 since the respective dates as of which information is given in the
Final Offering Memorandum, (i) there has not been (x) any change in
the capital stock or long-term debt of the Guarantor or any of
its Subsidiaries, or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company or the
Guarantor on any class of capital stock, except to the extent that
such change in capital stock or long-term debt or distribution or
dividend do not, in the aggregate, have a material adverse effect on
the general affairs, business, management, financial position,
stockholders' equity or results of operations of the Guarantor and its
Subsidiaries taken as a whole, or (y) any material adverse change
in or affecting the general affairs, business, management,
financial position, stockholders' equity or results of operations of
the Guarantor and the Subsidiaries, taken as a whole; (ii) neither
the Guarantor nor any of its Subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Guarantor and its Subsidiaries taken as a
whole; and (iii) neither the Company, the Guarantor nor any of its
Subsidiaries has sustained any material loss or interference with its
business (x) from fire, explosion, flood or other calamity not
covered by insurance or (y) from any action, order or decree of any
court or arbitrator or governmental or regulatory authority material
to the Guarantor and its Subsidiaries taken as a whole, except in
each case described in this Section 5.3 as otherwise disclosed in the
Final Offering Memorandum or as would not materially adversely
affect the ability of the Guarantor to comply with its obligations
under the Notes;
5.4 each of the Company and the Guarantor has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Final Offering Memorandum, and neither the Company nor the
Guarantor is the subject of any bankruptcy, insolvency, liquidation,
reorganization or other related insolvency proceeding in or order of a
court of competent jurisdiction and neither the Company nor the
Guarantor has petitioned or sought consent for a plan of
reorganization, receivership or liquidation;
5.5 all of the outstanding shares of capital stock of the Company,
Guarantor and Albras have been duly and validly authorized and issued,
are fully paid and non-assessable, and in the case of the Company
(except for any directors' qualifying shares and except as otherwise
set forth in the Final Offering Memorandum or required pursuant hereto)
-30-
are owned directly or indirectly by the Guarantor, free and clear of
all liens, charges, security interests, restriction on voting or
transfer, encumbrances, equities or claims;
5.6 the Securities have been duly authorized, and when issued and
delivered pursuant to the Purchase Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Company or the Guarantor, as
applicable, entitled to the benefits provided by this Indenture,
enforceable in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium and other similar laws affecting the rights of creditors
generally and the application of general equitable principles (the
"Enforceability Exceptions"), this Indenture, the First
Supplemental Indenture, the Exchange Securities and the Registration
Rights Agreement have been duly authorized and, when executed,
authenticated and delivered by the parties thereto, will constitute
valid and binding instruments, enforceable in accordance with their
terms, except as such enforceability may be limited by the
Enforceability Exceptions and except that, with respect to the
Registration Rights Agreement, the indemnity and contribution
provisions thereunder may be limited by applicable law and public
policy; and on the Closing Date, this Indenture will conform in all
material respects to the requirements of the Trust Indenture Act, and
the rules and regulations of the Commission applicable to an indenture
that is qualified thereunder;
5.7 on the Closing Date, the Exchange Securities (including the related
Guaranty) will have been duly authorized by the Company and the
Guarantor and, when duly executed, authenticated, issued and delivered
as contemplated by the Registration Rights Agreement, will be duly and
validly issued and outstanding and will constitute valid and legally
binding obligations of the Company, as issuer, and the Guarantor, as
guarantor, enforceable against the Company and the Guarantor in
accordance with their terms, subject to the Enforceability Exceptions,
and will be entitled to the benefits of this Indenture;
5.8 neither the Company nor the Guarantor is, or with the giving of notice
or lapse of time or both would be, in violation of its constitutive
documents nor is the Company or the Guarantor in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note or any other material agreement or
instrument to which it is a party or by which it is bound or to which
any of its material properties or assets is subject; the issue and sale
by the Company of the Notes and by the Guarantor of the Guaranty and
the performance by each of the Company and the Guarantor of all its
obligations under the Securities, the Exchange Securities, this
Indenture, the First Supplemental Indenture, the Registration Rights
Agreement and the Purchase Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of any existing
law applicable to the Company or the Guarantor or any of the terms or
provisions of, or constitute a default under, the constitutive
documents of the Company or the Guarantor, or any material indenture,
trust deed, mortgage or other material agreement or instrument to which
the Company or the Guarantor is a party or by which it is bound or to
which the Company or the Guarantor or any of its properties or assets
are subject or
-31-
contravene any existing applicable law, rule, regulation, judgment,
order or decree of any government, governmental body or agency or
court, domestic or foreign, having jurisdiction over the Company or the
Guarantor or any of its material properties or assets; and no consent,
approval (including, but not limited to, exchange control approval),
authorization, order, registration or qualification of or with any
Brazilian or Cayman Islands court, government or governmental agency or
body or any third party is required for the issue, sale, delivery or
performance of the Securities or the consummation of the other
transactions contemplated hereby, except in each case described in this
Section 5.8 (i) for those which have been obtained and are in full
force and effect; (ii) as may be required under federal or state
securities or Blue Sky Laws; (iii) as would not have a material adverse
effect on the ability of the Guarantor to comply with its obligations
under the Notes; or (iv) for the approval of Banco Central do Brazil
(the "Central Bank") for remittance of any payment in U.S. dollars, in
case the Guarantor is required to make any payment under the Guaranty
(it being understood that the approval of the Central Bank for the
Guarantor to issue the Guaranty has been obtained pursuant to Circular
No. 1504 dated June 30, 1989 and Carta Circular No. 2619 dated February
14, 1996 of the Central Bank);
5.9 other than as set forth or contemplated in the Final Offering
Memorandum, there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company and
the Guarantor, threatened against or affecting the Guarantor or any of
its Subsidiaries or any of their respective properties or to which the
Guarantor or any of its Subsidiaries is or may be a party or to which
any property of the Guarantor or any of its Subsidiaries is or may be
the subject which could individually or in the aggregate reasonably be
expected to have, a material adverse effect on the ability of the
Guarantor to perform its obligations under this Indenture or the
Securities, and, to the best of the Company's and the Guarantor's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
5.10 the Guarantor and its Subsidiaries have good and marketable title,
or have valid rights to lease or otherwise use, all items of real and
personal property that are material to the respective businesses of the
Guarantor and its Subsidiaries, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title
except those that (i) do not materially interfere with the use made
and proposed to be made of such property by the Guarantor and its
Subsidiaries or (ii) could not reasonably be expected, individually
or in the aggregate, to have a material adverse effect on the general
affairs, business, prospects, management, financial position,
stockholder's equity or results of operations of the Guarantor or its
Subsidiaries taken as a whole;
5.11 on September 30, 2001, the capitalization of the Guarantor was as set
forth in the Final Offering Memorandum under the caption
"Capitalization";
5.12 (i) the Company, the Guarantor and Albras have filed or caused to be
filed all tax returns required to be filed and have paid all taxes
shown to be due and payable on said returns or on any assessments made
against it or any of its properties and all other taxes, assessments,
fees or other charges imposed on them or any of their properties by any
governmental authority (other than those the amount or validity of
which is currently being contested in good faith by appropriate
proceedings and with respect to which
-32-
reserves in conformity with Brazilian generally accepted accounting
principles have been provided on its books); unless failure to file or
pay said returns or any other taxes, fees, assessments or charges would
not, in the aggregate, have a material adverse effect on the ability of
the Guarantor to comply with its obligations under the Notes; (ii) all
such tax returns so filed are correct and complete in all material
aspects; and (iii) no material tax liens or material liens with respect
to any assessments, fees or other charges have been filed and, to such
respective parties' knowledge, no claims are being, or could reasonably
be expected to be, asserted against the Company, the Guarantor or
Albras or any of their respective properties or assets with respect to
any such taxes, assessments, fees or other charge with such exceptions
in (ii) and (iii) as would not have a material adverse effect on the
ability of the Guarantor to comply with its obligations under the
Notes;
5.13 the Guarantor and its Subsidiaries (i) are in compliance with any and
all applicable federal, provincial, local and foreign laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, "Environmental Laws"), and
none of them has received notice of any outstanding violations of any
Environmental Laws; (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws
to conduct their respective businesses; and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except in any such case described in items (i), (ii) and (iii) for any
such failure to comply or violations, or failure to receive required
permits, licenses or approvals, as 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 Guarantor and its Subsidiaries
taken as a whole;
5.14 neither the Company nor the Guarantor nor any of their material
properties or material assets has any immunity from the jurisdiction of
any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution
or otherwise), except for immunity under Brazilian law relating to
public concessions granted by the Brazilian government to the
Guarantor;
5.15 on the date hereof and on the Closing Date, to ensure the legality,
validity, enforceability or admissibility into evidence of each of the
Exchange Securities, this Indenture, the First Supplemental
Indenture and the Registration Rights Agreement in Brazil and in the
Cayman Islands, it is not necessary that any such document be
submitted to, filed or recorded with any court or other authority in
Brazil or the Cayman Islands or that any tax, imposition or charge be
paid in Brazil or the Cayman Islands on or in respect of any such
document except that (i) in order to be enforceable and admissible
into evidence in the courts of Brazil (A) signatures of the parties to
such documents affixed outside Brazil must be notarized by a
notary public licensed to act as such under the laws of the place of
signing and the signature of such notary public must be authenticated
by a consular office of Brazil and (B) each such document must be
translated into Portuguese by a sworn translator in Brazil; (ii) in
order to be produced in evidence before a court in the Cayman Islands,
stamp duty will be payable, being a nominal stamp duty in respect of
the Exchange Securities, this Indenture, the First Supplemental
Indenture, the
-33-
Registration Rights Agreement and the Purchase Agreement and stamp
duty in an amount of CI$0.25 per CI$100 or part thereof of the face
value of each Note, subject to a maximum of CI$250 being payable
(the current rate of exchange being US$1.25 to CI$1.00) and (iii) the
enforceability of such documents in the courts of Brazil is also
subject to the payment of certain expenses and court fees in
connection with enforcement thereof by the courts of Brazil;
5.16 the payment obligations of the Company under the Notes and of the
Guarantor under the Guaranty will rank at least pari passu with all
other present and future unsecured and unsubordinated obligations of
the Company and the Guarantor, respectively, except those which rank
higher because of applicable law;
5.17 the Guarantor maintains systems of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences;
5.18 the Guarantor and its Subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including
business interruption, which insurance is in amounts and insures
against such losses and risks as are adequate to protect the Guarantor
and its Subsidiaries and their respective businesses taken as a whole;
and neither the Guarantor nor any of its Subsidiaries has (i) received
notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made
in order to continue such insurance or (ii) any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage at reasonable
cost from similar insurers as may be necessary to continue its business
except in each case (i) and (ii) as would not materially adversely
affect the ability of the Guarantor to comply with its obligations
under the Notes; and
5.19 the Company has not, prior to the issue of the Notes on the date hereof
entered into any material transactions, entered into any material
agreements, taken any material actions or otherwise done anything
material, other than those things necessary to establish and maintain
its corporate existence and issue the Notes.
6 COVENANTS OF THE COMPANY AND THE GUARANTOR
The Company and the Guarantor agree with the Trustee, solely for the
benefit of the holders of the Notes, to give prompt written notice to the
Trustee of the occurrence or termination of a Political Risk Event, in no
case later than five Business Days after such occurrence or termination.
For so long as any of the Notes are listed on the Luxembourg Stock
Exchange, a copy of any such notice shall be delivered to the Luxembourg
Stock Exchange and published in a newspaper with general circulation in
Luxembourg, which is expected to be the Luxembourg
-34-
Wort. The Company and the Guarantor also agree with the Trustee, solely for
the benefit of the holders of the Notes, not to give a false notice of such
occurrence or termination.
7 DISCLOSURE TO MOODY'S
The Company and the Guarantor covenant and agree to provide to Moody's
all financial statements, reports, notices, certificates, opinions and
any other documents required to be delivered, or received, by the Company
or the Guarantor to, or from, the Trustee or any of the Holders under the
Original Indenture or this First Supplemental Indenture, in each case
within one Business Day of the same being so received or delivered. In
addition, the Company and the Guarantor covenant and agree to provide to
Moody's, within 45 days of the end of each fiscal quarter of the
Guarantor (or, in the case of Sections 7.2 and 7.3, within 60 days of the
end of its first three fiscal quarters and within 90 days of the end of
its final fiscal quarter), the following information as of the end of the
most recent fiscal quarter:
7.1 a list detailing the principal amount, rate of interest, maturity,
credit enhancement, if any (including a guarantee by the Guarantor),
rating trigger, if any, and other significant features of any
Indebtedness of a Subsidiary in excess of $25,000,000 (or its
equivalent);
7.2 a list of all Significant Subsidiaries;
7.3 (i) for the final fiscal quarter of the fiscal year, the annual audited
financial statements of the Guarantor, as well as the consolidated
annual audited financial statements of the Guarantor, prepared in
accordance with Brazilian generally accepted accounting principles and
standards; (ii) the quarterly consolidated unaudited financial
statements of the Guarantor, prepared in accordance with Brazilian
generally accepted accounting principles and standards; (iii) for the
fiscal quarter that it is made available to the Commission, the most
recent quarterly consolidated financial statements of the Guarantor
prepared in accordance with U.S. generally accepted accounting
principles, translated into U.S. Dollars; and (iv) for the fiscal
quarter that it is made available to the Commission, a copy of the
Guarantor's Form 20-F, which will include consolidated annual audited
financial statements of the Guarantor prepared in accordance with U.S.
generally accepted accounting principles and translated into U.S.
Dollars;
7.4 a list of all unencumbered liquid assets of the Company and the
Guarantor; and
7.5 a list of any sale of assets during such fiscal quarter involving
assets with a then current market value at the date of sale in excess
of $100,000,000.
-35-
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed on their respective behalves, all as of the day
and year first written above.
EXECUTED AS A DEED BY
VALE OVERSEAS LIMITED,
the Company
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
-36-
ANNEX A
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO REGULATION S GLOBAL NOTE
(TRANSFERS PURSUANT TO SS. 2.3.2(I)
OF THE SUPPLEMENTAL INDENTURE)
JPMorgan Chase Bank,
as Trustee
RE: 8.625% SERIES A ENHANCED GUARANTEED NOTES DUE 2007 OF VALE OVERSEAS LIMITED
(THE "NOTES")
Reference is hereby made to the First Supplemental Indenture, dated March 8,
2002 (the "SUPPLEMENTAL INDENTURE"), among Vale Overseas Limited, Companhia Vale
do Rio Doce, as Guarantor, and JPMorgan Chase Bank, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Supplemental Indenture.
This letter relates to $[ ] principal amount of Notes which are evidenced
by one or more Restricted Global Notes (CUSIP No. 91911TAA1) and held with the
Depositary in the name of [INSERT NAME OF TRANSFEROR] (the "TRANSFEROR"). The
Transferor has requested a transfer of such beneficial interest in the Notes to
a person who will take delivery thereof in the form of an equal principal amount
of Notes evidenced by one or more Regulation S Global Notes (CINS No.
G9317UAA3), which amount, immediately after such transfer, is to be held with
the Depositary through Euroclear or Clearstream, Luxembourg or both (Common
Code: 14456856; ISIN: USG9317UAA37).
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with Rule 903 or Rule 904 (as applicable) or Rule 144 under the
United States Securities Act of 1933 (the "SECURITIES ACT"), and accordingly the
Transferor does hereby further certify that:
(i) If the transfer is being effected pursuant to Rule 903 and Rule 904:
(1) the offer of the Notes was not made to a person in the United States;
(2) either:
(A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside
the United States, or
(B) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulations S, as applicable;
-37-
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary
through Euroclear or Clearstream, Luxembourg or both.
(ii) If the transfer is being effected pursuant to Rule 144, the Notes are being
transferred in a transaction permitted by Rule 144.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company and the underwriters or initial purchasers, if
any, of the initial offering of such Notes being transferred. Terms used in this
certificate and not otherwise defined in the Supplemental Indenture have the
meanings set forth in Regulation S or Rule 144 under the Securities Act.
[INSERT NAME OF TRANSFEROR]
By: ___________________
Name:
Title:
Date: _________________
cc: Vale Overseas Limited
-38-
ANNEX B
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO UNRESTRICTED GLOBAL NOTE
(TRANSFERS PURSUANT TO SS. 2.3.2(II)
OF THE SUPPLEMENTAL INDENTURE)
JPMorgan Chase Bank,
as Trustee
RE: 8.625% SERIES A ENHANCED GUARANTEED NOTES DUE 2007 OF VALE OVERSEAS LIMITED
(THE "NOTES")
Reference is hereby made to the First Supplemental Indenture, dated March 8,
2002 (the "SUPPLEMENTAL INDENTURE"), among Vale Overseas Limited, Companhia Vale
do Rio Doce, as Guarantor, and JPMorgan Chase Bank, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Supplemental Indenture.
This letter relates to $[ ] principal amount of Notes which are evidenced
by one or more Restricted Global Notes (CUSIP No. 91911TAA1) and held with the
Depositary in the name of [INSERT NAME OF TRANSFEROR] (the "TRANSFEROR"). The
Transferor has requested a transfer of such beneficial interest in the Notes to
a person that will take delivery thereof in the form of an equal principal
amount of Notes evidenced by one or more Unrestricted Global Notes (CINS No.
G9317UAA3).
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with either (i) Rule 903 or Rule 904 (as applicable) under the United
States Securities Act of 1933 (the "SECURITIES ACT"), or (ii) Rule 144 under the
Securities Act, and accordingly the Transferor does hereby further certify that:
(i) If the transfer has been effected pursuant to Rule 903 and Rule 904:
(1) the offer of the Notes was not made to a person in the United States;
(2) either:
(A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside
the United States, or
(B) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
-39-
(ii) If the transfer has been effected pursuant to Rule 144, the Notes have
been transferred in a transaction permitted by Rule 144.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company and the underwriters or initial purchasers, if
any, of the Notes being transferred. Terms used in this certificate and not
otherwise defined in the Supplemental Indenture have the meanings set forth in
Regulation S under the Securities Act.
[INSERT NAME OF TRANSFEROR]
By: ___________________
Name:
Title
Dated: _________________
cc: Vale Overseas Limited
-40-
ANNEX C
FORM OF TRANSFER CERTIFICATES
FOR TRANSFER FROM REGULATION S GLOBAL
NOTE OR UNRESTRICTED GLOBAL NOTE
TO RESTRICTED GLOBAL NOTE
(TRANSFERS PURSUANT TO SS. 2.3.2(III)
OF THE SUPPLEMENTAL INDENTURE)
[TRANSFEROR CERTIFICATE]
JPMorgan Chase Bank,
as Trustee
RE: 8.625% SERIES A ENHANCED GUARANTEED NOTES DUE 2007 OF VALE OVERSEAS LIMITED
(THE "NOTES")
Reference is hereby made to the First Supplemental Indenture, dated March 8,
2002 (the "SUPPLEMENTAL INDENTURE"), among Vale Overseas Limited, Companhia Vale
do Rio Doce, as Guarantor, and JPMorgan Chase Bank, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Supplemental Indenture.
This letter relates to $[ ] principal amount of Notes which are
evidenced by one or more Regulation S Global Notes (CINS No. G9317UAA3) and held
with the Depositary through [Euroclear] [Clearstream, Luxembourg] (Common Code:
14456856; ISIN: USG9317UAA37) in the name of [INSERT NAME OF TRANSFEROR] (the
"TRANSFEROR"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a person that will take delivery thereof (the
"TRANSFEREE") in the form of an equal principal amount of Notes evidenced by one
or more Restricted Global Notes (CUSIP No. 91911TAA1).
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that:
(1) Such transfer is being effected in accordance with all applicable
securities laws of any state of the United States or any other
jurisdiction;
(2) the Notes are being transferred in accordance with Rule 144A to a
transferee whom the Transferor reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A(a)(1) and is
purchasing the Notes for its own account or any account with respect to
which the transferee exercises sole investment discretion, in each case
in a transaction meeting the requirements of Rule 144A; and
(3) it has notified the transferee that it has relied on Rule 144A as a
basis for the exemption from the registration requirements of the
Securities Act used in connection with the transfer.
-41-
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company and the underwriters and initial purchasers, if
any, of the Notes being transferred.
[INSERT NAME OF TRANSFEROR]
By: ___________________
Name:
Title
Dated: _________________
cc: Vale Overseas Limited
-42-
ANNEX D
NOTICE OF OCCURRENCE OF A POLITICAL RISK EVENT
To: JPMorgan Chase Bank (the "TRUSTEE")
450 West 33rd Street, 15th Floor
New York, NY 10001
[Date]
Ladies and Gentlemen,
VALE OVERSEAS LIMITED (THE "ISSUER")
U.S.$300,000,000
8.625% ENHANCED GUARANTEED NOTES DUE 2007 (THE "NOTES")
UNCONDITIONALLY GUARANTEED BY COMPANHIA VALE DO RIO DOCE (THE "GUARANTOR")
We refer to the indenture dated as of March 8, 2002, among the Issuer, the
Guarantor and the Trustee (the "INDENTURE"), as supplemented by a first
supplemental indenture dated as of March 8, 2002, among the Issuer, the
Guarantor and the Trustee (the "FIRST SUPPLEMENTAL INDENTURE").
In compliance with the requirement in the First Supplemental Indenture to give
notice of the occurrence or termination of a Political Risk Event, as defined in
Section 1.2.5 of the First Supplemental Indenture, we hereby give notice that,
as of [Date], a Political Risk Event [came into existence][has terminated]. As
evidence of the [existence][termination] of the such Political Risk Event, we
attach hereto copies of [law, regulation, resolution, official release, bona
fide newspaper reports or any other material which demonstrates the
[existence][termination] of the Political Risk Event or an alteration as to its
existence].
Yours faithfully,
VALE OVERSEAS LIMITED
By:
COMPANHIA VALE DO RIO DOCE
By:
-43-
ANNEX E
NOTICE OF NON-PAYMENT OF INTEREST DUE TO A POLITICAL RISK EVENT
To: JPMorgan Chase Bank (the "TRUSTEE")
450 West 33rd Street, 15th Floor
New York, NY 10001
[Date]
Ladies and Gentlemen,
VALE OVERSEAS LIMITED (THE "ISSUER")
U.S.$300,000,000
8.625% ENHANCED GUARANTEED NOTES DUE 2007 (THE "NOTES")
UNCONDITIONALLY GUARANTEED BY COMPANHIA VALE DO RIO DOCE (THE "GUARANTOR")
We refer to the indenture dated as of March 8, 2002, among the Issuer, the
Guarantor and the Trustee (the "INDENTURE"), as supplemented by a first
supplemental indenture dated as of March 8, 2002, among the Issuer, the
Guarantor and the Trustee (the "FIRST SUPPLEMENTAL INDENTURE").
Prior to or contemporaneously with this notice, we have notified you of the
occurrence of a Political Risk Event, as defined in Section 1.2.5 of the First
Supplemental Indenture, and have not notified you of the termination of the
Political Risk Event. In connection with the payment of interest and/or
Additional Amounts due on the Notes on [insert date] (the "PAYMENT"), we
represent to you as follows:
1 The Issuer does not have the funds to make the Payment.
2 The Guarantor has sufficient local currency funds in Brazil to make the
Payment.
3 The Guarantor is unable to convert local currency funds into Dollars or to
transfer Dollars outside Brazil to make the Payment and has used its best
efforts to do so.
4 Neither the Issuer nor the Guarantor has funds available outside Brazil to
make the Payment.
Yours faithfully,
VALE OVERSEAS LIMITED
By:
COMPANHIA VALE DO RIO DOCE
By:
-44-