EXHIBIT 4.1
Dated as of , 2003
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COMPANHIA VALE DO RIO DOCE,
as Issuer
and
JPMORGAN CHASE BANK,
as Trustee
INDENTURE
TABLE OF CONTENTS
Page
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1 Definitions and Other Provisions of General Application...............................2
1.1 Definitions...................................................................2
1.2 Compliance Certificates and Opinions.........................................10
1.3 Form of Documents Delivered to Trustee.......................................10
1.4 Acts of Holders; Record Dates................................................11
1.5 Notices, Etc., to Trustee and Company........................................13
1.6 Notice to Holders; Waiver....................................................14
1.7 Conflict with Trust Indenture Act............................................14
1.8 Effect of Headings and Table of Contents.....................................14
1.9 Successors and Assigns.......................................................14
1.10 Separability Clause..........................................................14
1.11 Benefits of Indenture........................................................15
1.12 Governing Law................................................................15
1.13 Legal Holidays...............................................................15
1.14 Consent to Service; Jurisdiction.............................................15
1.15 Language of Notices, Etc.....................................................16
2 Security Forms.......................................................................16
2.1 Forms Generally..............................................................16
2.2 Form of Face of Security.....................................................16
2.3 Form of Reverse of Security..................................................18
2.4 Form of Trustee's Certificate of Authentication..............................24
3 The Securities.......................................................................25
3.1 Amount Unlimited; Issuable in Series.........................................25
3.2 Denominations................................................................27
3.3 Execution, Authentication, Delivery and Dating...............................27
3.4 Registration, Registration of Transfer and Exchange..........................28
3.5 Mutilated, Destroyed, Lost and Stolen Securities.............................32
3.6 Payment of Interest; Interest Rights Preserved...............................32
3.7 Persons Deemed Owners........................................................34
3.8 Cancellation.................................................................34
3.9 Computation of Interest......................................................34
3.10 CUSIP or "ISIN" Numbers......................................................34
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4 Satisfaction And Discharge...........................................................34
4.1 Satisfaction and Discharge of Indenture......................................34
4.2 Application of Trust Money...................................................36
5 Remedies.............................................................................36
5.1 Events of Default............................................................36
5.2 Illegality Events............................................................37
5.3 Acceleration of Maturity; Rescission and Annulment...........................38
5.4 Collection of Indebtedness and Suits for Enforcement by Trustee..............39
5.5 Trustee May File Proofs of Claim.............................................39
5.6 Trustee May Enforce Claims Without Possession of Securities..................40
5.7 Application of Money Collected...............................................40
5.8 Limitation on Suits..........................................................40
5.9 Unconditional Right of Holders to Receive Principal, Premium and Interest....41
5.10 Restoration of Rights and Remedies...........................................41
5.11 Rights and Remedies Cumulative...............................................41
5.12 Delay or Omission Not Waiver.................................................41
5.13 Control by Holders...........................................................42
5.14 Waiver of Past Defaults......................................................42
5.15 Undertaking for Costs........................................................42
5.16 Waiver of Usury, Stay or Extension Laws......................................42
6 The Trustee..........................................................................43
6.1 Certain Duties and Responsibilities..........................................43
6.2 Notice of Default; Potential Default.........................................43
6.3 Certain Rights of Trustee....................................................43
6.4 Not Responsible for Recitals or Issuance of Securities.......................45
6.5 May Hold Securities..........................................................45
6.6 Money Held in Trust..........................................................45
6.7 Compensation and Reimbursement...............................................45
6.8 Conflicting Interests........................................................46
6.9 Corporate Trustee Required; Eligibility......................................46
6.10 Resignation and Removal; Appointment of Successor............................46
6.11 Acceptance of Appointment by Successor.......................................48
6.12 Merger, Conversion, Consolidation or Succession to Business..................49
6.13 Preferential Collection of Claims Against Company............................49
6.14 Appointment of Authenticating Agent..........................................49
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6.15 Appointment of Luxembourg Transfer Agent.....................................51
6.16 Trustee's Application for Instructions from the Company......................51
7 Holders' Lists and Reports by Trustee and Company....................................51
7.1 Company to Furnish Trustee Names and Addresses of Holders....................51
7.2 Preservation of Information; Communications to Holders.......................51
7.3 Reports by Trustee...........................................................52
8 Consolidation, Merger, Conveyance, Transfer or Lease.................................52
8.1 Company May Consolidate, Etc. Only on Certain Terms..........................52
8.2 Successor Substituted........................................................53
8.3 Right to Redemption..........................................................53
9 Supplemental Indentures..............................................................53
9.1 Supplemental Indentures without Consent of Holders...........................53
9.2 Supplemental Indentures or Waiver with Consent of Holders....................54
9.3 Execution of Supplemental Indentures.........................................56
9.4 Effect of Supplemental Indentures............................................56
9.5 Conformity with Trust Indenture Act..........................................56
9.6 Reference in Securities to Supplemental Indentures...........................56
9.7 Effect of Waiver.............................................................56
9.8 Notice to Luxembourg Stock Exchange..........................................56
10 Covenants............................................................................57
10.1 Payment of Principal, Premium and Interest...................................57
10.2 Maintenance of Office or Agency..............................................57
10.3 Money for Security Payments To Be Held in Trust..............................57
10.4 Statement by Officers as to Default..........................................58
10.5 Reports by Company...........................................................59
10.6 Limitation on Liens..........................................................59
10.7 Payment of Additional Amounts................................................60
10.8 Indemnification of Judgment Currency.........................................63
10.9 Further Acts; Protection of Collateral.......................................63
10.10 Notice of Late Payment.......................................................64
10.11 Securities held by the Company...............................................64
10.12 Securities Issued or Outstanding.............................................64
10.13 Status of Securities.........................................................64
10.14 Maintenance of Good Standing.................................................64
10.15 Maintenance of Properties....................................................64
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10.16 Payment of Taxes.............................................................65
11 Redemption of Securities.............................................................65
11.1 Right of Redemption..........................................................65
11.2 Notice of Redemption.........................................................66
11.3 Deposit of Redemption Price..................................................66
11.4 Securities Payable on Redemption Date........................................67
11.5 Securities Redeemed in Part..................................................67
12 DEFEASANCE AND COVENANT DEFEASANCE...................................................68
12.1 Company's Option to Effect Defeasance or Covenant Defeasance.................68
12.2 Defeasance and Discharge.....................................................68
12.3 Covenant Defeasance..........................................................69
12.4 Conditions to Defeasance or Covenant Defeasance..............................69
12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions..................................................71
12.6 Reinstatement................................................................71
Note: This table of contents shall not, for any purpose, be deemed to be a part
of this Indenture.
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Indenture, dated as of , 2003 among COMPANHIA VALE DO RIO DOCE, a company
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organized under the laws of the Federative Republic of Brazil (herein called the
"Company"), having its principal office at Avenida Graca Aranha, No. 26, 17
Andar, 20030-900 Rio de Janeiro, RJ, Brazil, and JPMORGAN CHASE BANK, a bank
duly organized and existing under the laws of New York, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its debt securities (herein called
collectively the "Securities"), to be issued in one or more tranches of one or
more series as in this Indenture provided. All things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have
been done.
Now, Therefore, This Indenture Witnesseth:
It is hereby covenanted and agreed that the terms and conditions upon which the
Securities are issued, authenticated, delivered and accepted by all Persons (as
defined below) who shall from time to time be or become the Holders thereof, and
the terms and conditions upon which any property herein mortgaged and pledged is
to be held and disposed of, which said terms and conditions the Trustee hereby
accepts and agrees to discharge pursuant to the terms hereof, are as follows:
1 Definitions and Other Provisions of General Application
1.1 Definitions
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
1.1.1 the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
1.1.2 terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the
meanings assigned to them therein;
1.1.3 all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and,
except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United
States at the date of such computation;
1.1.4 unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as
the case may be, of this Indenture;
1.1.5 unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be
amended from time to time; and
1.1.6 the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
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"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Amounts" has the meaning specified in Section 10.7.
"Affiliate" of any specified Person means (i) any other Person who
directly or indirectly, through one or more intermediaries, controls
or is controlled by, or is under common control with such specified
Person or (ii) for the purposes of the definition of Indebtedness, any
other Person in which such specified Person has a 20% or more holding
of voting shares. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct
the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Members" has the meaning specified in Section 3.4.5.
"Applicable Procedures" of the Depositary means, with respect to any
matter at any time, the policies and procedures of the Depositary, if
any, that are applicable to such matter at such time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act for it
in respect hereof.
"Board Resolution" means a copy of a resolution that has been duly
adopted by the Board of Directors or the Executive Board of the
Company, as the case may be, duly certified by the Secretary or an
Assistant Secretary of such body as being in full force and effect on
the date of such certification, and delivered to the Trustee.
"Brazil" means the Federative Republic of Brazil.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of
New York or the City of Rio de Janeiro are authorized or obligated by
law or executive order to close.
"Clearstream, Luxembourg" has the meaning specified in Section 3.4.5.
"Commission" means the U.S. Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if
at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under
applicable law, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed on
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behalf of the Company by any two of its Directors or its attorneys in
fact in accordance with its Bylaws and delivered to the Trustee.
"Consolidated Net Tangible Assets" means total assets (stated net of
applicable reserves and other properly deductible items, to the extent
not already deducted in the computation of total assets) after
deducting therefrom (i) all current liabilities and (ii) all goodwill,
trade names, trademarks, patents and other like intangible assets,
each as set forth on the most recent balance sheet of the Company and
its consolidated Subsidiaries and computed in accordance with U.S.
generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered which office as of the date hereof is located at 450 West
33rd Street, New York, New York 10001, Attention: Institutional Trust
Services.
"Corporation" means a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.6.
"Default Rate of Interest" means the rate of interest otherwise
payable on the principal of the Securities plus 1% per annum.
"Depositary" means The Depository Trust Company until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean
such successor Depositary.
"Dollar" and "$" mean a U.S. Dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"Euroclear" has the meaning specified in Section 3.4.5.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the U.S. Securities Exchange Act of 1934 and any
successor statute thereto.
"Executive Board" means the executive officers of the Company that are
responsible for day to day operations and the implementation of the
general policies and guidelines set forth by the Board of Directors.
"Expiration Date" has the meaning specified in Section 1.4.7.
"Foreign Taxes" has the meaning specified in Section 10.7.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a
nominee thereof.
"Holder" means, with respect to any Security, a Person in whose name
such Security is registered in the Security Register.
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"Illegality Event" has the meaning specified in Section 5.2.
"Indebtedness" means with respect to any Person, any amount payable
(whether as a direct obligation or indirectly through a guarantee by
such Person) pursuant to (i) an agreement or instrument involving or
evidencing money borrowed, (ii) a conditional sale or a transfer with
recourse or with an obligation to repurchase or (iii) a lease with
substantially the same economic effect as any such agreement or
instrument and which, under U.S. generally accepted accounting
principles, would constitute a capitalized lease obligation, provided,
however, that as used in Section 5.1.3, "Indebtedness" shall not
include any payment made by the Company on behalf of an Affiliate,
upon any Indebtedness of such Affiliate becoming immediately due and
payable as a result of a default by such Affiliate, pursuant to a
guarantee or similar instrument provided by the Company in connection
with such Indebtedness, provided that such payment made by the Company
is made within five Business Days of notice being provided to the
Company that payment is due under such guarantee or similar
instrument.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 10.8.
"Lien" means any mortgage, charge, pledge, lien, hypothecation,
security interest or other encumbrance, including, without limitation,
any equivalent of the foregoing created under the laws of Brazil or
any other jurisdiction.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, exercise of
repurchase right or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Notice of Default" means a written notice of the kind specified in
Section 6.2.
"Officers' Certificate" means a certificate signed in the name of the
Company by any two of its Directors, executive officers or attorneys
in fact in accordance with its Bylaws, and delivered to the Trustee,
provided however that an Officers' Certificate pursuant to Section
10.4 shall be signed in the name of the Company by any two of the
Company's principal executive, financial or accounting officers.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
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"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment, redemption or repurchase money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption shall have been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee
shall have been made; and
(iii) Securities which have been paid pursuant to Section 3.5 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a protected purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given,
made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder as of any date, (A) the
principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding
shall be the Dollar equivalent, determined as of such date in the
manner provided as contemplated by Section 3.1.11, of the principal
amount of such Security, and (B) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities
which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person (i) having a combined capital and
surplus of not less than $100,000,000, (ii) subject to supervision or
examination by Federal or State authority and (iii) having a long-term
unsecured debt rating with respect to U.S. dollar obligations of at
least A2 or its equivalent rating by Moody's, that is authorized by
the Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
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"Permitted Lien," with respect to any series of Securities issued
hereunder, means any Lien:
(i) granted upon or with regard to any property acquired by the
Company after the date of the issuance of Securities of such
series to secure the purchase price of such property or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition of such property, provided, however, that the maximum
sum secured by such security shall not exceed the purchase price
of such property or the Indebtedness incurred solely for the
purpose of financing the acquisition of such property;
(ii) in existence on the date of the issuance of Securities of such
series and any extension, renewal or replacement thereof;
provided, however, that the total amount of Indebtedness so
secured shall not exceed the amount so secured on the date of the
issuance of Securities of such series;
(iii) arising by operation of law, such as tax, merchants', maritime
or other similar liens arising in the ordinary course of the
Company's business;
(iv) arising in the ordinary course of business in connection with the
financing of export, import or other trade transactions to secure
Indebtedness of the Company;
(v) securing or providing for the payment of Indebtedness incurred in
connection with any project financing by the Company, provided
that (1) such security shall not extend to any property in
existence on the date of the issuance of Securities of such
series, to any revenues from such property, or to any proceeds
from claims belonging to the Company which arise from the
operation, failure to meet specifications, failure to complete,
exploitation, sale or loss of, or damage to, such property
("Claims Proceeds"), (2) such security shall not extend to any
property (or to any revenues or Claims Proceeds therefrom) at any
project in existence on the date of the issuance of Securities of
such series, other than the existing power plant projects named
Aimores, Candonga, Funil, Capim Branco I and Capim Branco II, Foz
do Chapeco, Santa Isabel, Serra Quebrada and Estreito projects
and (3) such security only extends to properties which are the
subject of such project financing, to any revenues from such
properties, or to any Claims Proceeds from such properties;
(vi) granted upon or with regard to any present or future asset or
property of the Company to (i) any Brazilian governmental credit
agency (including, but not limited to the Brazilian National
Treasury, Banco Nacional de Desenvolvimento Economico e Social,
BNDES Participacoes S.A., Financiadora de Estudos e Projetos and
Agencia Especial de Financiamento Industrial); (ii) any Brazilian
official financial institutions (including, but not limited to
Banco da Amazonia S.A. - BASA and Banco do Nordeste do Brasil
S.A. - BNB); (iii) any non-Brazilian official export-import bank
or official export-import credit insurer; or (iv)
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the International Finance Corporation or any non-Brazilian
multilateral or government-sponsored agency;
(vii) existing on any asset prior to the acquisition thereof by the
Company and not created in contemplation of such acquisition;
(viii) any Lien created over funds reserved for the payment of
principal, interest and premium, if any, due in respect of
Securities issued under this Indenture; or
(ix) hereafter granted upon or in respect of any asset of the
Company other than those referred to in Clauses (i) through
(viii) above, provided that the aggregate amount of
Indebtedness secured pursuant to this clause (ix) shall not,
on the date any such Indebtedness is incurred, exceed an
amount equal to 10 per cent of the Company's stockholders'
equity (calculated on the basis of the Company's latest
quarterly unaudited or annual audited non-consolidated
financial statements, whichever is the most recently prepared,
in accordance with accounting principles generally accepted in
Brazil and currency exchange rates prevailing on the last day
of the period covered by such financial statements).
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series and subject to Section 10.2, means the place or places where
the principal of and any premium and interest on the Securities of
that series are payable as specified as contemplated by Section 3.1.6.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.5
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"RDA" has the meaning specified in Section 1.14.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture as set forth in such Security.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.1.5.
"Repurchase Date", when used with respect to any Security to be
repurchased, means the date fixed for such repurchase by or pursuant
to this Indenture.
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"Repurchase Price", when used with respect to any Security to be
repurchased, means the price at which it is to be repurchased pursuant
to this Indenture as set forth in such Security.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the
administration of this Indenture, and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the U.S. Securities Act of 1933 and any
successor statute thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.4.
"Significant Subsidiary" shall mean, at any time, a Subsidiary of
which the Company's and its other Subsidiaries' proportionate share of
the total assets (after intercompany eliminations) of the Subsidiary
exceeds 10% of the total assets of the consolidated group as of the
end of the most recently completed fiscal year.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.6.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or
such installment of interest is due and payable.
"Subsidiary" shall mean any entity of which the Company directly or
indirectly owns more than 51% of the outstanding voting shares, and
the Company has the ability to elect a majority of the members of the
board of directors or other governing body.
"Successor Corporation" has the meaning specified in Section 8.1.1.
"Successor Jurisdiction" means the jurisdiction, other than Brazil, in
which a Successor Corporation is incorporated or considered to be
resident.
"Transfer" of any Security means any sale, pledge, transfer,
hypothecation or other disposition of such Security or any interest
therein.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939 and
any successor statute thereto.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one Person,
"Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series. Each
Trustee shall be a Person that (i) is
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eligible pursuant to the Trust Indenture Act to act as such, (ii) has
a combined capital and surplus of at least $100,000,000, (iii) is
subject to supervision or examination by Federal or State authority,
(iv) has a long-term unsecured debt rating with respect to U.S. dollar
obligations of at least A2 or its equivalent rating by Moody's and (v)
has its Corporate Trust Office in the United States.
"United States" or "U.S." means the United States of America
(including the States thereof and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
1.2 Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be
required hereunder and under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by any two officers of the Company, or an
Opinion of Counsel if to be given by counsel, and shall comply with
the requirements of the Trust Indenture Act and any other requirements
set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for
certificates provided for in Section 10.4) shall include,
1.2.1 a statement that each individual signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
1.2.2 a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
1.2.3 a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
1.2.4 a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
1.3 Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of any two officers of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel,
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10
unless such officers know, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with
respect to the matters upon which the certificate or opinion is based
are erroneous. Any such certificate or opinion of counsel may be
based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
1.4 Acts of Holders; Record Dates
1.4.1 Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture
to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 6.1) conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section.
1.4.2 The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
1.4.3 The ownership of Securities shall be proved by the Security
Register.
1.4.4 Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
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11
1.4.5 The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given,
made or taken by Holders of Securities of such series, provided
that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to,
the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date
is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no
other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by
Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically
and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at
its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 1.6.
1.4.6 The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in
Section 5.3, (iii) any request to institute proceedings
referred to in Section 5.8.2 or (iv) any direction referred to
in Section 5.13, in each case with respect to Securities of
such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series
on such record date, and no other Holders, shall be entitled to
join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by
Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from
setting a new record date for any action (whereupon the record
date previously set shall automatically and without any action
by any Person be canceled and of no effect), nor shall anything
in this paragraph be construed to render ineffective any action
taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant
to this paragraph, the Trustee, at
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12
the Company's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder
of Securities of the relevant series in the manner set forth in
Section 1.6.
1.4.7 With respect to any record date set pursuant to this Section,
the party hereto that sets such record date may designate any
day as the "Expiration Date" and from time to time may change
the Expiration Date to any earlier or later day, provided that
no such change shall be effective unless notice of the proposed
new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant
series in the manner set forth in Section 1.6, on or prior to
the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this
Section, the party hereto that set such record date shall be
deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration
Date shall be later than the 180th day after the applicable
record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
principal amount.
1.5 Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
1.5.1 the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed
in writing (which may be by facsimile) to or with the Trustee
at its Corporate Trust Office, or
1.5.2 the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage
prepaid, to the Company, addressed to it at the address
specified below or at any other address previously furnished in
writing to the Trustee by the Company:
Avenida Graca Aranha, No. 26, 17 Andar
20030-900 Rio de Janeiro, RJ, Brazil
Attention: Financial Director
Fax: 011-5521-3814-4679
Tel: 011-5521-3814-4726
with a copy to:
Attention: General Counsel
Fax: 011-5521-3814-9921
Tel: 011-5521-3814-4566
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13
1.6 Notice to Holders; Waiver
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving
of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
Notwithstanding the provisions of this Section 1.6, in case any series
of Securities are listed in any stock exchange, a notice to holders of
such Securities given in accordance with the rules and procedures of
such stock exchange shall be regarded as a valid notice under this
section 1.6.
1.7 Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act
to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
1.8 Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
1.9 Successors and Assigns
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
1.10 Separability Clause
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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14
1.11 Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
1.12 Governing Law
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
1.13 Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest
Payment Date, Redemption Date or at the Stated Maturity, as the case
may be; provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
1.14 Consent to Service; Jurisdiction
The Company and the Trustee agree that any legal suit, action or
proceeding arising out of or relating to this Indenture, and the
Company agrees that any legal suit, action or proceeding arising out
of or relating to the Securities, may be instituted in any federal or
state court in the Borough of Manhattan, The City of New York, in
respect of actions brought against each such party as a defendant, and
each waives any objection which it may now or hereafter have to the
laying of the venue of any such legal suit, action or proceeding,
waives any immunity, to the extent permitted by law, from jurisdiction
or to service of process in respect of any such suit, action or
proceeding, waives any right to which it may be entitled on account of
place of residence or domicile and irrevocably submits to the
jurisdiction of any such court in any such suit, action or proceeding.
The Company further submits to the jurisdiction of the courts of their
own corporate domiciles in any legal suit, action or proceeding
arising out of or relating to this Indenture or the Securities. The
Company hereby designates and appoints Rio Doce America, Inc. ("RDA")
located at 546 5th Avenue, 12th Floor, New York, New York, 10036, as
its authorized agent upon which process may be served in any legal
suit, action or proceeding arising out of or relating to this
Indenture or the Securities which may be instituted in any federal or
state court in the Borough of Manhattan, The City of New York, New
York, and agree that service of process upon such agent, and written
notice of said service to the Company, as the case may be, by the
Person serving the same, shall be deemed in every respect effective
service of process upon the Company in any such suit, action or
proceeding and further designate the domicile of RDA specified above
and any domicile RDA may have in the future as their domicile to
receive service of process. If for any reason RDA (or any successor
agent for this purpose) shall cease to act as agent for service of
process as provided above, the Company will promptly appoint a
successor agent for this purpose reasonably acceptable to the Trustee.
The
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15
Company agrees to take any and all actions as may be necessary to
maintain such designation and appointment of such agent in full force
and effect.
1.15 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an
official language of the country of publication.
2 Security Forms
2.1 Forms Generally
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article or in such
other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or Depositary thereof
or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of such board and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 3.3
for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
2.2 Form of Face of Security
The following legends shall appear on the face of each Global
Security:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES
REFERRED TO IN SECTION 3.4.2. OF THE INDENTURE, THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
The following legend shall appear on the face of each Global Security
for which The Depository Trust Company is to be the Depositary:
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16
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
COMPANHIA VALE DO RIO DOCE
No. [ ]
-----
CUSIP No. [ ] $[ ]
------ ---
COMPANHIA VALE DO RIO DOCE, a company organized under the laws of the
Federative Republic of Brazil (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to [ ], or registered
--
assigns, the principal sum of [ ] Dollars on [ ] [if the Security is
-- --
to bear interest prior to Maturity, insert -- , and to pay interest
thereon from [ ] or from the most recent Interest Payment Date to
--
which interest has been paid or duly provided for, semi-annually on
[ ] and [ ] in each year, commencing [ ], and at the Maturity
-- -- --
thereof, at the rate of [ ]% per annum, until the principal hereof is
--
paid or made available for payment [if applicable, insert -- ,
provided that any principal [and premium], and any such installment of
interest, which is overdue shall bear interest at the rate of [ ]%
--
per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be
payable on demand. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be
the [ ] or [ ] (whether or not a Business Day), as the case may be,
-- --
next preceding such Interest Payment Date. Any such interest so
payable, but not punctually paid or duly provided for on any Interest
Payment Date will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which this Security may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture].
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17
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon
redemption, upon repurchase or at Stated Maturity and in such case the
overdue principal [and any overdue premium] shall bear interest at the
rate of [ ]% per annum (to the extent that the payment of such
--
interest shall be legally enforceable), from the dates such amounts
are due until they are paid or made available for payment. Interest on
any overdue principal [or premium] shall be payable on demand.]
Payment of the principal of [(and premium, if any)] and [if
applicable, insert -- any such] interest on this Security will be made
pursuant to the Applicable Procedures of the Depositary as permitted
in the Indenture, provided, however, that if this Security is not a
Global Security, payment may be made at the office or agency of the
Company maintained for that purpose in New York, New York, in such
coin or currency of the United States as at the time of payment is
legal tender for payment of public and private debts, upon surrender
of this Security in the case of any payment due at the Maturity of the
principal thereof (other than any payment of interest payable on an
Interest Payment Date); and provided, further, that at the option of
the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in
the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed.
Dated: [ ]
--------
COMPANHIA VALE DO RIO DOCE
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
2.3 Form of Reverse of Security
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in
one or more tranches of one or more series under an Indenture, dated
as of , 2003 (herein called the "Indenture",
---------
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18
which term shall have the meaning assigned to it in such instrument),
among the Company and JPMorgan Chase Bank, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the 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 [if applicable, insert -- , limited in
aggregate principal amount to $[ ]].
--
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than [ ] days' nor more than [ ] days'
-- --
notice, at any time [if applicable, insert -- on or after [ ],20[ ],
-- --
as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert -- on or before [ ],
--
[ ]%, and if redeemed] during the 12-month period beginning [ ] of
-- --
the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to [ ]% of the principal
--
amount, together in the case of any such redemption with accrued
interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable
to the Holders of such Securities or one or more Predecessor
Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the
Indenture.]
[If the Security is subject to redemption of any kind, insert -- In
the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
[If the Security is not subject to redemption, insert - This Security
is not redeemable prior to Stated Maturity.]
[If applicable, insert - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security]
[or] [certain restrictive covenants and Events of Default with respect
to this Security] [,in each case] upon compliance with certain
conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default or Illegality Event with respect to Securities
of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]
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19
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default or Illegality Event with respect to Securities of
this series shall occur and be continuing, an amount of principal of
the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture. Such amount
shall be equal to -- insert formula for determining the amount. Upon
payment (i) of the amount of principal so declared due and payable and
(ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and premium and interest, if any, on
the Securities of this series shall terminate.]
All payments of principal[, premium] and interest in respect of the
Securities shall be made without withholding or deduction for any
present or future taxes, duties, assessments or governmental charges
of whatever nature imposed, levied, collected, withheld or assessed by
or on behalf of 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 Brazil, such Successor
Jurisdiction or such authority to be withheld or deducted. In the
event of any withholding or deduction for any Foreign Taxes, the
Company shall pay such additional amounts ("Additional Amounts") as
will result in receipt by the Holders of Securities on the respective
due dates of such amounts as would have been received by them had no
such withholding or deduction (including for any Foreign Taxes payable
in respect of Additional Amounts) been required, except that no such
Additional Amounts shall be payable with respect to any payment on a
Security:
(i) to, or to a third party on behalf of, a Holder who is liable for
any such taxes, duties, assessments or other governmental charges
which would not have been imposed but for (A) a connection
between the Holder and Brazil other than the mere holding of such
Security and the receipt of payments with respect to such
Security or (B) failure by the Holder to comply with any
certification, identification or other reporting requirement
concerning the nationality, residence, identity or connection
with the Brazil or a Successor Jurisdiction, or applicable
political subdivision or authority thereof or therein having
power to tax, of such Holder, if compliance is required by such
Successor Jurisdiction, or any political subdivision or authority
thereof or therein having power to tax as a precondition to
exemption from, or reduction in the rate of, the tax, assessment
or other governmental charge and the Company has given the
Holders at least 30 days' notice that Holders will be required to
provide such certification, identification or other requirement;
(ii) in respect of any such taxes, duties, assessments or other
governmental charges with respect to a Security surrendered (if
surrender is required) more than 30 days after the date on which
such payment became due and payable or the date on which payment
thereof is duly provided for and notice thereof given to Holders,
whichever occurs later, except to the extent that the Holder of
such Security would have been entitled to such Additional Amounts
on surrender of such Security for payment on the last day of such
30-day period;
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20
(iii) in respect of estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or governmental
charge imposed with respect to a Security;
(iv) in respect of any tax, assessment or other governmental charge
payable otherwise than by deduction or withholding from
payments on any series of Securities or by direct payment by
the Company in respect of claims made against the Company;
(v) where such withholding or deduction is imposed on a payment to
an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of
November 26-27, 2000 or any law implementing or complying with,
or introduced in order to conform to, such directive; or
(vi) in respect of any combination of the above.
For purposes of the provisions described in clause (i) above, the term
"Holder" of any Security means the direct nominee of any beneficial
owner of such Security, which holds such beneficial owner's interest
in such Security. Notwithstanding the foregoing, the limitations on
the Company's obligation to pay Additional Amounts set forth in clause
(i) above shall not apply if the provision of information,
documentation or other evidence described in such clause (i) would be
materially more onerous, in form, in procedure or in the substance of
information disclosed, to a Holder or beneficial owner of a Security
(taking into account any relevant differences between U.S. and
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 Brazil),
regulation (including proposed regulations) and administrative
practice.
The Company 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 has paid any Additional Amounts. Copies
of such documentation shall be made available to the Holders of the
Securities or the Paying Agent, as applicable, upon request therefor.
The Company shall pay all stamp, issue, registration, documentary or
other similar duties, if any, which may be imposed by Brazil or any
governmental entity or political subdivision therein or thereof, or
any taxing authority of or in any of the foregoing, with respect to
the Indenture or the issuance of the Securities.
All references herein or in the Indenture to principal, premium or
interest in respect of any Security shall be deemed to include all
Additional Amounts, if any, payable in respect of such principal,
premium or interest, unless the context otherwise requires, and
express mention of the payment of Additional Amounts in any provision
hereof shall not be construed as excluding reference to Additional
Amounts in those provisions hereof where such express mention is not
made.
In the event that Additional Amounts actually paid with respect to the
Securities pursuant to the preceding paragraph are based on rates of
deduction or withholding of taxes in
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21
excess of the appropriate rate applicable to the Holder of such
Securities, and, as a result thereof such Holder is entitled to make
claim for a refund or credit of such excess from the authority
imposing such withholding tax, then such Holder shall, by accepting
such Securities, be deemed to have assigned and transferred all right,
title, and interest to any such claim for a refund or credit of such
excess to the Company. 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 and the Securities to principal in
respect of any Security shall be deemed to mean and include any
Redemption Price or Repurchase Price payable in respect of such
Security pursuant to any redemption or repurchase right hereunder (and
all such references to the Stated Maturity of the principal in respect
of any Security shall be deemed to mean and include the Redemption
Date or Repurchase Date with respect to any such Redemption Price or
Repurchase Price), and all such references to principal, premium,
interest or Additional Amounts shall be deemed to mean and include any
amount payable in respect hereof pursuant to Section 10.7 of the
Indenture, and express mention of the payment of any Redemption Price,
or Repurchase Price or any such other amount in any provision hereof
or of the Indenture shall not be construed as excluding reference to
the payment of any Redemption Price or Repurchase Price, or any such
other amounts in those provisions hereof where such express reference
is not made.
The Company may redeem the Securities if, as a result of any amendment
to, or change in, the laws (or any rules, or regulations thereunder)
of Brazil or any political subdivision or taxing authority thereof or
therein affecting taxation or any amendment to or change in an
official interpretation, administration or application of such laws,
rules, or regulations (including a holding by a court of competent
jurisdiction), which amendment or change of such laws, rules, or
regulations or the interpretation thereof becomes effective on or
after [Insert date specified therefor in Securities of the applicable
series], the Company would be obligated, after taking measures the
Company considers reasonable to avoid such requirement, to pay
Additional Amounts in excess of the Additional Amounts that the
Company would be obligated to pay if payments made on the Securities
were subject to withholding or deduction of Foreign Taxes at the rate
of 15%. In such event, the Securities are subject to redemption upon
not less than 30 nor more than 60 days' notice by mail, at any time,
as a whole but not in part, at the election of the Company, at a cash
price equal to the sum of (i) the principal amount of the Securities
being redeemed, (ii) any accrued original issue discount thereon to
the date fixed for redemption, (iii) accrued and unpaid current
interest thereon to the date fixed for redemption, (iv) any premium
applicable in the case of redemption prior to Maturity, and (v) any
Additional Amounts (as defined in the Indenture) which would otherwise
be payable.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of
a majority in
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22
principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions (i)
permitting the Holders of a majority in principal amount of the
Securities at the time Outstanding of any series to be affected under
the Indenture, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of
the Indenture and (ii) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding of any
series to be affected under the Indenture, on behalf of the Holders of
all Securities of such series, to waive certain past defaults under
the Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture, or for the appointment of a
receiver or trustee, or for any other remedy thereunder, unless such
Holder shall have previously given the Trustee written notice of a
continuing Event of Default or Illegality Event with respect to the
Securities of this series, the Holders of not less than 25% in
principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default or
Illegality Event as Trustee and offered the Trustee indemnity
reasonably satisfactory to it, and the Trustee shall not have received
from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity.
The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof
or any [premium or] interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
and any [premium and] interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office of the Trustee or agency of the Company in any
place where the principal of and any [premium and] interest on this
Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any multiple thereof.
As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable
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23
for a like aggregate principal amount of Securities of this series and
of like tenor of a different authorized denomination, as requested by
the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due surrender of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
[If this Security is a Global Security, insert - This Security is a
Global Security and is subject to the provisions of the Indenture
relating to Global Securities, including the limitations in Section
3.4 thereof on transfers and exchanges of Global Securities.]
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Abbreviations
The following abbreviations, when used in the inscription of the face
of this Security, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the [ ] entireties
--
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT-- (Cust)
--------------
Custodian under Uniform(Minor)
-------------
Gifts to Minors Act (State)
----------------
Additional abbreviations may also be used though not in the above
list.
2.4 Form of Trustee's Certificate of Authentication
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: [ ]
----------
JPMORGAN CHASE BANK,
as Trustee
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24
By:
------------------
Authorized Officer
3 The Securities
3.1 Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more tranches of one or more
series. There shall be established in or pursuant to a Board
Resolution and, subject to Section 3.3, set forth, or determined in
the manner provided, in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
3.1.1 the title of the Securities, including CUSIP Numbers, of the
series (which shall distinguish the Securities of the series
from Securities of any other series);
3.1.2 any limit upon the aggregate principal amount of the Securities
which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.4, 3.5,
9.6 or 11.5 and except for any Securities which, pursuant to
Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
3.1.3 the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest;
3.1.4 the date or dates on which the principal of the Securities of
the series is payable;
3.1.5 the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for
any interest payable on any Interest Payment Date;
3.1.6 the place or places where the principal of and any premium and
interest on Securities of the series shall be payable and the
manner in which any payment may be made;
3.1.7 the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of
the Company;
3.1.8 the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
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25
3.1.9 the rights, if any, of the Holders of the series to demand
exchange of their Securities for Securities subject to a
registration statement under the Securities Act declared
effective by the Commission;
3.1.10 if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
3.1.11 if other than the currency of the United States, the currency,
currencies or currency units in which payment of the principal
of and any premium and interest on any Securities of the
series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States for
purposes of the definition of "Outstanding" in Section 1.1;
3.1.12 if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined
with reference to an index, the manner in which such amounts
shall be determined;
3.1.13 if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of
the Company or a Holder thereof, in one or more currencies or
currency units other than that or those in which the
Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within
which and the terms and conditions upon which such election is
to be made;
3.1.14 if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.3;
3.1.15 any collateral or other security pledged against payment of
principal, interest or premium, if any, on the Securities;
3.1.16 the applicability, non-applicability, or variation, of Section
10.7 with respect to the Securities of such series;
3.1.17 if and as applicable, that the Securities of the series shall
be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global Securities and
any circumstances other than those set forth in Section 3.4 in
which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name
of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer
may be registered;
3.1.18 the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable for any other
securities;
3.1.19 any addition to or change in the covenants set forth in
Article Ten which applies to the Securities of the series; and
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26
3.1.20 the applicability of Article 12 with respect to the Securities
of such series; and
3.1.21 any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1.5).
All Securities of any one series shall be substantially identical
except as to issue price and first payment of interest.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of such board and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of
the series.
Notwithstanding Clause 3.1.2 herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and
additional Securities of such series may be issued up to the maximum
aggregate principal amount authorized with respect to such series as
increased.
3.2 Denominations
The Securities shall be issuable only in registered form without
coupons and, unless otherwise specified as contemplated by Section
3.1.10, only in denominations of $1,000 and any integral multiple
thereof.
3.3 Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by any two
of its officers or its attorneys in fact in accordance with its
Bylaws. The signature of any of these officers on the Securities may
be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Securities. If the form or terms
of the Securities of the series have been established by or pursuant
to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Opinion of Counsel
stating,
3.3.1 if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that
such form has been established in conformity with the
provisions of this Indenture;
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27
3.3.2 if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the
provisions of this Indenture; and
3.3.3 that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if, in the opinion of
counsel to the Trustee, the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company
Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security
of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such
series to be issued and in that case the Trustee may rely, as to the
authorization by the Company of any of such Securities, the form and
terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section,
as applicable, in connection with the first authentication of
Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 3.8, for all purposes of this
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
3.4 Registration, Registration of Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers
maintained in such office and in any
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28
other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of
transfers and exchanges of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and
registering transfers and exchanges of Securities as herein provided;
provided, however, that the Company may appoint co-Security
Registrars. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a
reasonable period of time. At all reasonable times the Security
Register shall be open for inspection by the Company.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee, one or more new
Securities of the same series of any authorized denomination or
denominations of like tenor and aggregate principal amount.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for the individual Securities
represented thereby, a Global Security representing all or a portion
of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or
by a nominee of such Depositary to such Depositary or another nominee
of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
At the option of the Holder and subject to the other provisions of
this Section, Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for other Securities of
the same series of any authorized denomination or denominations of
like tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at the office or agency of the Company
maintained for such purpose.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to
Section 9.6 or 11.5 not involving any registration of transfer.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company, the Trustee or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the
Trustee and the Security Registrar, duly executed, by the Holder
thereof or his attorney duly authorized in writing.
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29
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to
issue, register the transfer of or exchange any Securities of that
series (or of that series and specified tenor, as the case may be)
during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 11.2 and ending at
the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being
redeemed in part.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered for such registration of transfer or
exchange.
The provisions of Clauses 3.4.1, 3.4.2, 3.4.3, 3.4.4 and 3.4.5 below
shall apply only to Global Securities:
3.4.1 Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary or a nominee
thereof and delivered to such Depositary or a nominee thereof
or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this
Indenture.
3.4.2 Notwithstanding any other provision in this Indenture or the
Securities, no Global Security of a series may be exchanged in
whole or in part for Securities registered, and no transfer of
a Global Security of a series in whole or in part may be
registered, in the name of any Person other than the
Depositary or a nominee thereof unless (A) the Depositary for
the Securities of a series notifies the Company that it is
unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for
the Securities of such series ceases to be a clearing agency
registered under the Exchange Act, at a time when such
Depositary is required to be so registered in order to act as
depositary, and in each case, a successor Depositary for the
Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or
becomes aware of such ineligibility or (B) the Company in its
sole discretion determines that individual Securities of any
series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the
Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such
series, will authenticate and deliver, individual Securities
of such series in an aggregate principal amount equal to the
principal amount of the Global Security or Securities
representing Securities of such series in exchange for such
Global Security or Securities. Any Global Security exchanged
pursuant to Clause (A) above shall be so exchanged in whole
and not in part and any Global Security exchanged pursuant to
Clause (B) above may be exchanged in whole or from time to
time in part as directed by the Depositary. Any Security
issued in exchange for a Global Security or any portion
thereof shall be a Global Security, provided that
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30
any such Security so issued that is registered in the name of
a Person other than the Depositary or a nominee thereof shall
not be a Global Security.
3.4.3 In any exchange pursuant to Clause 3.4.2 above, the Company
will execute and the Trustee will authenticate and deliver
individual Securities in registered form in authorized
denominations. Upon the exchange of a Global Security for
individual Securities, such Global Security shall be canceled
by the Trustee. Individual Securities issued in exchange for a
Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are
so registered.
If specified by the Company pursuant to Section 3.4.2(B) with
respect to a series of Securities, the Depositary for such
series of Securities may surrender a Global Security for such
series of Securities in exchange in whole or in part for
individual Securities of such series on such terms as are
acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and
deliver, without service charge, (i) to each Person specified
by such Depositary a new individual Security or Securities of
the same series, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in
exchange for such Persons' beneficial interest in the Global
Security; and (ii) to such Depositary a new Global Security in
a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of individual Securities delivered
to Holders thereof.
3.4.4 In the event of the occurrence of any of the events specified
in Clause 3.4.2 above, the Company will promptly make
available to the Trustee a reasonable supply of certificated
Securities in definitive, fully registered form, without
interest coupons.
3.4.5 Neither any members of, or participants in, the Depositary
("Agent Members") nor any other Persons on whose behalf Agent
Members may act (including Euroclear Bank S.A./N.V., as
operator of the Euroclear System ("Euroclear") and Clearstream
Banking, societe anonyme ("Clearstream, Luxembourg") and
account holders and participants therein) shall have any
rights under this Indenture with respect to any Global
Security, or under any Global Security, and the Depositary or
such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and holder of such Global
Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as
the case may be, or impair, as between the Depositary, its
Agent Members and any other person on whose behalf an Agent
Member may
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31
act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any
Security.
3.4.6 None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for
any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
3.5 Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a protected purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security
upon compliance with the foregoing provisions.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.
3.6 Payment of Interest; Interest Rights Preserved
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
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Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause 3.6.1
or 3.6.2 below:
3.6.1 The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause 3.6.2.
3.6.2 The Company may make payment of any Defaulted Interest on the
Securities of any series to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other
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Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
3.7 Persons Deemed Owners
Prior to due surrender of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 3.6)
interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
3.8 Cancellation
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall
be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and
all Securities so delivered shall be promptly canceled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of in accordance with its customary
procedures, unless otherwise directed by a Company Order.
3.9 Computation of Interest
Unless otherwise specified under Section 3.1 with respect to the
Securities of a particular series, interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
3.10 CUSIP or "ISIN" Numbers
The Company in issuing the Securities may use "CUSIP" or "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" or "ISIN" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee in writing of
any change in the CUSIP or ISIN numbers.
4 Satisfaction And Discharge
4.1 Satisfaction and Discharge of Indenture
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the
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Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture, when
4.1.1 either
(i) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 3.5 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3) have been delivered
to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(a) have become due and payable, or
(b) will become due and payable at their Stated Maturity
within one year, or
(c) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i) or (ii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity, Redemption Date or
Repurchase Date, as the case may be;
4.1.2 the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
4.1.3 the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the
obligations of the Company to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (ii) of Clause 4.1.1 of this Section, the obligations of
the Trustee under Section 4.2 and the last paragraph of Section 10.3
shall survive such satisfaction and discharge.
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4.2 Application of Trust Money
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee.
5 Remedies
5.1 Events of Default
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have
occurred and be continuing:
5.1.1 a failure to pay any interest (or Additional Amounts, if any)
on any of the Securities of the series on the date when due
and such failure shall continue for a period of 30 days;
5.1.2 a failure to pay any principal or premium, if any, (or
Additional Amounts, if any) on any of the Securities of the
series on the date when due;
5.1.3 any default or event of default by the Company or any
Significant Subsidiary occurring and continuing under any
agreement, instrument or other document evidencing outstanding
Indebtedness in excess of $50,000,000 in aggregate (or its
equivalent in other currencies) and such default or event of
default results in the actual acceleration of such
Indebtedness;
5.1.4 the Company shall fail to perform or observe any other
covenant or agreement in respect of the Securities of the
series issued under this Indenture or in a supplemental
indenture (other than a covenant which has been expressly
included in this Indenture solely for the benefit of series of
Securities other than that series) and such failure shall
continue for a period of 60 days after there has been given by
registered or certified international air mail to the Company
by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of such series, a written notice specifying such
default and requiring it to be remedied and stating that such
notice is a "Notice of Default;"
5.1.5 the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or
any Significant Subsidiary in an involuntary case or
proceeding under any applicable bankruptcy, insolvency,
suspension of payments, reorganization or other similar law,
or (B) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or suspending
payments, or approving as properly filed a petition
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36
seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Significant Subsidiary
under any applicable law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Significant Subsidiary or of
any substantial part of the property of the Company or any
Significant Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any Significant
Subsidiary, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
5.1.6 the commencement by the Company or any Significant Subsidiary
of a voluntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by the Company or any Significant
Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under any applicable
bankruptcy, insolvency, suspension of payments, reorganization
or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against the Company or any
Significant Subsidiary, or the filing by the Company or any
Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable law or
the consent by the Company or any Significant Subsidiary to
the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or
any Significant Subsidiary or of any substantial part of the
property of the Company or any Significant Subsidiary, or the
making by the Company or any Significant Subsidiary of an
assignment for the benefit of creditors, or the admission by
the Company or any Significant Subsidiary in writing of its
inability to pay its debts generally as they become due or the
taking of corporate action by the Company or any Significant
Subsidiary in furtherance of any such action (evidenced by the
adoption of a corporate resolution in favor of any such
actions or an action of any of the officers of the Company or
such Significant Subsidiary that similarly binds the Company
or such Significant Subsidiary, as the case may be), or the
general inability of the Company or any Significant Subsidiary
to make payment of their obligations as they come due.
5.2 Illegality Events
"Illegality Event", wherever used herein with respect to Securities of
any series, means (whatever the reason for such Illegality Event and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body) it becomes and continues to be unlawful for the
Company to perform or comply with any one or more of its obligations
under any of the Securities of the series.
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5.3 Acceleration of Maturity; Rescission and Annulment
If an Event of Default or Illegality Event with respect to any series
of Securities (other than those Events of Default in Sections 5.1.5
and 5.1.6 insofar as they relate to the Company but not to a
Significant Subsidiary of the Company), occurs and is continuing, then
and in every such case, including an Event of Default in Sections
5.1.5 and 5.1.6 relating to a Significant Subsidiary of the Company,
the Trustee shall, at the written request of the Holders of not less
than 25% in principal amount of the Outstanding Securities of that
series, by notice in writing to the Company, declare the principal of
all the Securities of that series to be due and payable immediately,
and upon any such declaration such principal and any accrued interest
and any unpaid Additional Amounts thereon shall become immediately due
and payable. If an Event of Default specified in Sections 5.1.5 and
5.1.6 occurs and is continuing with respect to the Company (but not a
Significant Subsidiary of the Company), the principal and any accrued
interest, together with any Additional Amounts thereon, on all of the
Securities of that series then Outstanding shall automatically, and
without any declaration or other action on the part of the Trustee or
any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series at the time Outstanding has been made and
before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences
if
5.3.1 the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest and any Additional Amounts thereon
on all of the Securities of that series,
(ii) the principal of any Securities of that series which
have become due otherwise than by such declaration of
acceleration,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by (or
prescribed therefor in) the Securities of that series,
and
(iv) all sums paid or advanced by the Trustee hereunder and
all amounts owing the Trustee under Section 6.7;
and
5.3.2 all Events of Default or Illegality Events with respect to
such series of Securities, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 5.14.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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5.4 Collection of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that if
5.4.1 default is made in the payment of any interest (including any
Additional Amounts) on any Security when such interest becomes
due and payable and such default continues for a period of 30
days, or
5.4.2 default is made in the payment of the principal (including any
Redemption Price or Repurchase Price) of (or premium, if any,
on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and any premium and
interest, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and
on any overdue interest, at the rate borne by (or prescribed therefor
in) such Securities, together with any Additional Amounts thereon,
and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all amounts due the Trustee under
Section 6.7.
If an Event of Default or Illegality Event with respect to Securities
of any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of
the Holders of that series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
5.5 Trustee May File Proofs of Claim
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in
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39
any such proceeding; provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or
other similar committee.
5.6 Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been
recovered.
5.7 Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
5.8 Limitation on Suits
No Holder of any Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
5.8.1 such Holder has previously given written notice to the Trustee
of a continuing Event of Default or Illegality Event with
respect to the Securities of that series;
5.8.2 the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default or Illegality Event in its own name as
Trustee hereunder;
5.8.3 such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with
such request;
5.8.4 the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
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5.8.5 no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
5.9 Unconditional Right of Holders to Receive Principal, Premium and
Interest
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium
and (subject to Section 3.6) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the
case of redemption or repurchase, on the Redemption Date or Repurchase
Date, as the case may be), and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the
consent of such Holder.
5.10 Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
5.11 Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.5, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
5.12 Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default or
Illegality Event shall impair any such right or remedy or constitute a
waiver of any such Event of Default or Illegality Event or an
acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
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5.13 Control by Holders
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided that
5.13.1 such direction shall not be in conflict with any rule of law
or with this Indenture,
5.13.2 the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
5.13.3 subject to the provisions of Section 6.1, the Trustee shall
have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability
against which indemnity would not be satisfactory.
5.14 Waiver of Past Defaults
Subject to Section 5.3, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any
past Event of Default or Illegality Event hereunder with respect to
such series and its consequences, except a default
5.14.1 in the payment of the principal of or any premium or interest
on any Security of such series, or
5.14.2 in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default or Illegality Event shall cease to
exist, and any Event of Default or Illegality Event arising therefrom
shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other
default or Illegality Event or impair any right consequent thereon.
5.15 Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs, including reasonable attorneys' fees and
expenses, against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or to make such an assessment in
any suit instituted by the Company or the Trustee or in any suit to
require the Company to repurchase any Security in accordance with its
terms.
5.16 Waiver of Usury, Stay or Extension Laws
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or
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42
advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay
or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though
no such law had been enacted.
6 The Trustee
6.1 Certain Duties and Responsibilities
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
6.2 Notice of Default; Potential Default
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such
series notice of such default as and to the extent provided by the
Trust Indenture Act (a "Notice of Default"). Specifically, the Trustee
shall provide Notice of Default to each Holder promptly, but in no
event later than within 15 days of occurrence, and in the manner
provided by Section 313(c) of the Trust Indenture Act or any successor
section thereto, of any default of which the Trustee is aware. The
Trustee shall also provide a notice to each Holder of any claim of
default within 30 days of receiving a written assertion of such claim
from Holders of no less than 10% of the aggregate principal amount of
Securities then outstanding. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default or Illegality Event with
respect to Securities of such series.
6.3 Certain Rights of Trustee
Subject to the provisions of Section 6.1:
6.3.1 the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to
be genuine and to have been signed or presented by the proper
party or parties;
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6.3.2 any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a written request or direction
signed on behalf of the Company by any two of its officers or
its attorneys in fact in accordance with its Bylaws;
6.3.3 whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
6.3.4 the Trustee may consult with counsel of its own choice and the
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
6.3.5 the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with
such request or direction;
6.3.6 the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document in connection with
this Indenture, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company,
personally or by agent or attorney and shall incur no liability
or additional liability of any kind by reason of such inquiry or
investigation;
6.3.7 the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; provided that
the Trustee shall be required to terminate any such agent if it
has actual knowledge of any willful or negligent failure by such
agent to perform its delegated duties;
6.3.8 the Trustee shall not be deemed to have notice of any default or
Event of Default or Illegality Event with respect to Securities
of any series unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event
which is in fact such a default, Event of Default or Illegality
Event is received by the Trustee at the Corporate Trust Office
of the Trustee from the Company or any Holder, and such notice
references the Securities and this Indenture;
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6.3.9 the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture; and
6.3.10 the permissive rights of the Trustee enumerated herein shall
not be construed as duties of the Trustee.
6.4 Not Responsible for Recitals or Issuance of Securities
Neither the Trustee nor any Authenticating Agent assumes any
responsibility for the correctness of the recitals contained herein
and in the Securities, except the Trustee's certificates of
authentication. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of the proceeds of the
Securities.
6.5 May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
6.6 Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
6.7 Compensation and Reimbursement
6.7.1 The Company agrees to pay to the Trustee from time to time such
compensation as shall be agreed in writing between the parties
for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust).
6.7.2 The Company agrees, except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable and itemized expenses, disbursements and advances
incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or willful misconduct.
6.7.3 The Company agrees to fully indemnify each of the Trustee and
any predecessor Trustee for, and to hold it harmless against,
any and all losses, liabilities, damages, claims or expenses
incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim
(whether asserted by the
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45
Company, a Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1.5 or Section 5.1.6,
the expenses (including the reasonable and documented charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable
Federal or State bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of (premium, if any) or interest on such Securities.
The provisions of this Section shall survive the resignation or
removal of the Trustee and the satisfaction and discharge of this
Indenture.
6.8 Conflicting Interests
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by the Trust Indenture Act, the
Trustee shall not be deemed to have a conflicting interest by virtue
of being a trustee under this Indenture with respect to Securities of
more than one series.
6.9 Corporate Trustee Required; Eligibility
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be a Trustee
hereunder for Securities of one or more other series. Each Trustee
shall be a Person that (i) is eligible pursuant to the Trust Indenture
Act to act as such, (ii) has a combined capital and surplus of at
least $100,000,000, (iii) is subject to supervision or examination by
Federal or State authority, (iv) has a long-term unsecured debt rating
with respect to U.S. dollar obligations of at least A2 or its
equivalent rating by Moody's and (v) has its Corporate Trust Office in
the United States. If any such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
6.10 Resignation and Removal; Appointment of Successor
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
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The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 45
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
If at any time:
6.10.1 the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
6.10.2 the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the
Company or by any such Holder, or
6.10.3 the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to
Section 5.15, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders and accepted
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appointment in the manner required by Section 6.11, any Holder who has
been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of
any series to all Holders of Securities of such series in the manner
provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
6.11 Acceptance of Appointment by Successor
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the
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48
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
6.12 Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Securities.
6.13 Preferential Collection of Claims Against Company
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
6.14 Appointment of Authenticating Agent
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration
of transfer, or partial redemption or pursuant to Section 3.5, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating
Agent, have a combined
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capital and surplus of at least $100,000,000, be subject to
supervision or examination by Federal or State authority and have a
long-term unsecured debt rating with respect to U.S. dollar
obligations of at least A2 or its equivalent rating by Moody's. If
such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail written notice
of such appointment by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
JPMorgan Chase Bank,
as Trustee
By:
------------------------------
as Authenticating Agent
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By:
------------------------------
Authorized Officer
6.15 Appointment of Luxembourg Transfer Agent
For so long as the rules of the Luxembourg Stock Exchange so require,
the Company shall appoint and maintain a transfer agent located in
Luxembourg with respect to Securities listed on the Luxembourg Stock
Exchange.
The Company agrees to pay to each such agent from time to time
reasonable compensation for its services under this Section.
6.16 Trustee's Application for Instructions from the Company
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be
taken or such omission shall be effective. The Trustee shall not be
liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after
the date specified in such application (which date shall not be less
than five Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any
such action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
7 Holders' Lists and Reports by Trustee and Company
7.1 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee
7.1.1 semi-annually, not more than 15 days after each Regular Record
Date with respect to each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of such
Regular Record Date, and
7.1.2 at such other times as the Trustee may reasonably request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
7.2 Preservation of Information; Communications to Holders
7.2.1 The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
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7.2.2 The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act.
7.2.3 Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust
Indenture Act.
7.3 Reports by Trustee
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each May
15th following the date of this Indenture deliver to Holders a brief
report, dated as of such May 15th, which complies with the provisions
of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission (unless at the time no
Outstanding Securities have been registered with the Commission
pursuant to the Securities Act) and with the Company. The Company will
promptly notify the Trustee in writing when any Securities are listed
on any stock exchange.
8 Consolidation, Merger, Conveyance, Transfer or Lease
8.1 Company May Consolidate, Etc. Only on Certain Terms
The Company shall not, without the consent of the Holders of a
majority in aggregate principal amount of the Securities in accordance
with this Indenture, consolidate with or merge into any other
corporation or convey or transfer all or substantially all of its
mining properties or assets to any other Person, unless:
8.1.1 the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer all or substantially all of the mining properties or
assets of the Company (the "Successor Corporation") shall
expressly assume, pursuant to this Indenture, the due and
punctual repayment of the principal and interest on all the
Securities and all other obligations of the Company, as
applicable, under the Indenture and the Securities;
8.1.2 immediately after giving effect to such transaction, no Event of
Default or Illegality Event with respect to any Security shall
have occurred and be continuing;
8.1.3 the Company has delivered to the Trustee (a) a certificate
signed by two executive officers of the Company stating that
such consolidation, merger, conveyance or transfer complies with
this Article and that all conditions precedent herein provided,
which relate to such transaction, have been
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complied with and (b) an Opinion of Counsel of recognized
standing stating that such consolidation, merger, conveyance or
transfer complies with this Article and that all conditions
herein provided, which relate to such transaction, have been
complied with; and
8.1.4 the Successor Corporation shall expressly agree to withhold
against any tax, duty, assessment or other governmental charge
thereafter imposed or levied by Brazil, a Successor Jurisdiction
or any political subdivision or authority thereof or therein
having power to tax as a consequence of such consolidation,
merger, conveyance or transfer with respect to the payment of
principal of or interest on the Securities, and to pay such
Additional Amounts as may be necessary to ensure that the net
amounts receivable by Holders after any withholding or deduction
of any such tax, assessment, duty or other governmental charge
shall equal the respective amounts of principal, premium (if
any) and interest which would have been receivable in respect of
the Securities in the absence of such consolidation, merger,
conveyance or transfer; provided, however, that Holders will not
be subject to the exceptions and limitations contained in
Section 10.7 in relation to the Successor Jurisdiction.
8.2 Successor Substituted
Upon any consolidation, merger, conveyance, or transfer in accordance
with this Article, the Successor Corporation shall succeed to, and be
substituted for, and may exercise every right and power of the
Company, as applicable, under the Securities with the same effect as
if the Successor Corporation had been named as the issuer of the
Securities herein.
8.3 Right to Redemption
No Successor Corporation shall have the right to redeem the Securities
unless the Company would have been entitled to redeem the Securities
in similar circumstances.
9 Supplemental Indentures
9.1 Supplemental Indentures without Consent of Holders
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
9.1.1 to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
9.1.2 to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
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9.1.3 to add any additional Events of Default or Illegality Events for
the benefit of the Holders of all or any series of Securities
(and if such additional Events of Default or Illegality Events
are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default or Illegality
Events are expressly being included solely for the benefit of
such series); or
9.1.4 to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
9.1.5 to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security
Outstanding; or
9.1.6 to secure the Securities pursuant to the requirements of Article
Ten or otherwise; or
9.1.7 to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
9.1.8 to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities
of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
6.11; or
9.1.9 to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided
that such action pursuant to this clause 9.1.9 shall not
adversely affect the interests of the Holders of Securities of
any series in any material respect.
9.2 Supplemental Indentures or Waiver with Consent of Holders
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected
by such supplemental indenture or waiver, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may (i) enter into an indenture
or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture or
(ii) waive the application of any provision of this Indenture;
provided,
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however, that no such supplemental indenture or waiver shall, without
the consent of the Holder of each Outstanding Security affected
thereby,
9.2.1 change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of any Security that would be
due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.3, or modify in any way
the Company's obligation to pay Additional Amounts pursuant to
Section 10.7 or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, or repurchase
on or after the Redemption Date or Repurchase Date), or
9.2.2 change the terms of payment from, or control over, or release or
reduce any collateral or security interest that may be created
or provided pursuant to Section 10.6 or any supplemental
indenture to secure the payment of principal, interest or
premium, if any, under any Security, except as allowed under the
terms of any such supplemental indenture, or
9.2.3 reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this
Indenture, or
9.2.4 modify any of the provisions of this Section, Section 5.14 or
Section 10.9, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section
10.9, or the deletion of this proviso, in accordance with the
requirements of Section 6.11.
A supplemental indenture or waiver which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture or
waiver, but it shall be sufficient if such Act shall approve the
substance thereof.
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9.3 Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture or waiver permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, in addition to the documents
required by Section 1.2, an Opinion of Counsel stating that the
execution of such supplemental indenture or waiver is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture or waiver
which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
9.4 Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
9.5 Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
9.6 Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
9.7 Effect of Waiver
A waiver shall be effective to waive compliance with the particular
provision and for the particular instance for which the waiver was
made and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
provision shall remain in full force and effect.
9.8 Notice to Luxembourg Stock Exchange
So long as any Securities of a series are listed on the Luxembourg
Stock Exchange, the Company shall give notice to the Luxembourg Stock
Exchange of any supplemental indenture or waiver of any covenant in
regards such series effected pursuant to this Article 9.
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10 Covenants
10.1 Payment of Principal, Premium and Interest
The Company will duly and punctually pay the principal of and any
premium and interest (together with any Additional Amounts payable
thereon) on the Securities in accordance with the terms of the
Securities and this Indenture.
10.2 Maintenance of Office or Agency
With respect to any Global Security, and except as otherwise may be
specified for such Global Security as contemplated by Section 3.1, the
Corporate Trust Office of the Trustee shall be the Place of Payment
where such Global Security may be presented or surrendered for payment
or for registration of transfer or exchange, or where successor
Securities may be delivered in exchange therefor; provided, however,
that any such payment, presentation, surrender or delivery effected
pursuant to the Applicable Procedures of the Depositary for such
Global Security shall be deemed to have been effected at the Place of
Payment for such Global Security in accordance with the provisions of
this Indenture.
With respect to any Securities that are not in the form of a Global
Security, the Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Company in respect of the
Securities (in this case, without regard to the form of the
Securities) and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, the City
of New York) where the Securities of one or more series, notices and
other items may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such
purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the
location of any such other office or agency.
10.3 Money for Security Payments To Be Held in Trust
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal
and any premium and interest so becoming due until such sums shall be
paid to such Persons or
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57
otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on the business day prior to each due
date of the principal of or any premium or interest on any Securities
of that series, deposit in Dollars with a Paying Agent in New York,
New York a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent and (2) during the continuance of any default
by the Company (or any other obligor upon the Securities of that
series) in the making of any payment in respect of the Securities of
that series, upon the written request of the Trustee, forthwith pay to
the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company, cause to be published
once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City
of New York, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
10.4 Statement by Officers as to Default
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in
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the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
The Company will deliver to the Trustee, as soon as possible and in
any event within 15 days after the Company becomes aware of the
occurrence of any Event of Default or Illegality Event or an event
which, with notice or the lapse of time or both, would constitute an
Event of Default or Illegality Event, an Officers' Certificate setting
forth the details of such Event of Default or Illegality Event or
default and the action which the Company proposes to take with respect
thereto.
10.5 Reports by Company
The Company (unless at the time no Outstanding Securities have been
registered with the Commission pursuant to the Securities Act) shall
file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act.
Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 12, 13 or 15(d) of the
Exchange Act, the Company will continue to file with the Commission
and provide the Trustee with such annual reports and such information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe)
which are specified in Sections 12, 13 and 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers'
Certificates).
10.6 Limitation on Liens
The Company will not create, incur, issue or assume any Indebtedness
secured by any Lien, other than a Permitted Lien, without in any such
case effectively providing that the Securities (together with, if the
Company shall so determine, any other Indebtedness of the Company)
shall be secured equally and ratably with or prior to such secured
Indebtedness.
For the purposes of this Section, the (i) giving of a guarantee which
is secured by a Lien upon or in respect of any asset of the Company,
and (ii) the creation of a Lien upon or in respect of any asset of the
Company to secure Indebtedness which existed prior to the creation of
such Lien, shall be deemed to involve the incurrence of Indebtedness
in an amount equal to the principal amount of such Indebtedness
effectively secured by such Lien.
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10.7 Payment of Additional Amounts
10.7.1 All payments of principal, premium and interest in respect
of the Securities shall be made without withholding or
deduction for any present or future taxes, duties,
assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or on
behalf of 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 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
shall pay such additional amounts ("Additional Amounts") as
will result in receipt by the Holders of Securities on the
respective due dates of such amounts as would have been
received by them had no such withholding or deduction
(including for any Foreign Taxes payable in respect of
Additional Amounts) been required, except that no such
Additional Amounts shall be payable with respect to any
payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is
liable for any such taxes, duties, assessments or other
governmental charges which would not have been imposed but
for (A) a connection between the Holder and Brazil other
than the mere holding of such Security and the receipt of
payments with respect to such Security or (B) failure by
the Holder to comply with any certification, identification
or other reporting requirement concerning the nationality,
residence, identity or connection with Brazil or a
Successor Jurisdiction, or applicable political subdivision
or authority thereof or therein having power to tax, of
such Holder, if compliance is required by such Successor
Jurisdiction, or any political subdivision or authority
thereof or therein having power to tax as a precondition to
exemption from, or reduction in the rate of, the tax,
assessment or other governmental charge and the Company has
given the Holders at least 30 days' notice that Holders
will be required to provide such certification,
identification or other requirement;
(ii) in respect of any such taxes, duties, assessments or other
governmental charges with respect to a Security surrendered
(if surrender is required) more than 30 days after the date
on which such payment became due and payable or the date on
which payment thereof is duly provided for and notice
thereof given to Holders, whichever occurs later, except to
the extent that the Holder of such Security would have been
entitled to such Additional Amounts on surrender of such
Security for payment on the last day of such 30-day period;
(iii) in respect of estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or
governmental charge imposed with respect to a Security;
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(iv) in respect of any tax, assessment or other governmental
charge payable otherwise than by deduction or withholding
from payments on any series of Securities or by direct
payment by the Company in respect of claims made against the
Company;
(v) where such withholding or deduction is imposed on a payment
to an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting
of November 26-27, 2000 or any law implementing or complying
with, or introduced in order to conform to, such directive;
or
(vi) in respect of any combination of the above.
For purposes of the provisions described in Clause (i) above, the
term "Holder" of any Security means the direct nominee of any
beneficial owner of such Security, which holds such beneficial
owner's interest in such Security. Notwithstanding the foregoing,
the limitations on the Company's obligation to pay Additional
Amounts set forth in Clause (i) above shall not apply if the
provision of information, documentation or other evidence
described in such Clause (i) would be materially more onerous, in
form, in procedure or in the substance of information disclosed,
to a Holder or beneficial owner of a Security (taking into
account any relevant differences between U.S. and 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
Brazil), regulation (including proposed regulations) and
administrative practice.
The Company shall promptly provide the Trustee with
documentation, if any, (which may consist of certified copies of
such documentation) reasonably satisfactory to the Trustee
evidencing the payment of Foreign Taxes in respect of which the
Company has paid any Additional Amounts. Copies of such
documentation shall be made available to the Holders of the
Securities or the Paying Agent, as applicable, upon request
therefor.
In respect of the Securities issued hereunder, at least 10 days
prior to the first date of payment of interest on the Securities
and at least 10 days prior to each date, if any, of payment of
principal or interest thereafter if there has been any change
with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company shall furnish the Trustee and
each Paying Agent with an Officers' Certificate instructing the
Trustee and such Paying Agent as to whether such payment of
principal of or any interest on such Securities shall be made
without deduction or withholding for or on account of any tax,
duty, assessment or other governmental charge. If any such
deduction or withholding shall be required by Brazil or any
Successor Jurisdiction or any authority therein having power to
tax, then such certificate shall specify, by country, the amount,
if any, required to be deducted or withheld on such payment to
Holders of such Securities, and the Company shall pay or cause to
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be paid to the Trustee or such Paying Agent Additional Amounts,
if any, required by this Section. The Company agrees to indemnify
the Trustee and each Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or
in connection with actions taken or omitted by them in reliance
on any Officers' Certificate furnished pursuant to this Section,
the obligation of the Company to so indemnify being joint and
several.
10.7.2 The Company shall pay all stamp, issue, registration,
documentary or other similar duties, if any, which may be
imposed by Brazil or any other governmental entity or political
subdivision therein or thereof, or any taxing authority of or
in any of the foregoing, with respect to the Indenture or the
issuance of the Securities.
10.7.3 The Company shall provide each Paying Agent and any withholding
agent under relevant tax regulations with copies of each
certificate received by the Company from a Holder of a Security
pursuant to the text of such Security. Each such Paying Agent
and withholding agent shall retain each such certificate
received by it for as long as any Security is outstanding and
in no event for less than four years after its receipt, and for
such additional period thereafter, as set forth in an Officers'
Certificate, as such certificate may become material in the
administration of applicable tax laws.
10.7.4 In the event that Additional Amounts actually paid with respect
to the Securities pursuant to the preceding paragraph are based
on rates of deduction or withholding of withholding taxes in
excess of the appropriate rate applicable to the Holder of such
Securities, and, as a result thereof, such Holder is entitled
to make claim for a refund or credit of such excess from the
authority imposing such withholding tax, then such Holder
shall, by accepting such Securities, be deemed to have assigned
and transferred all right, title, and interest to any such
claim for a refund or credit of such excess to the Company.
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.
10.7.5 All references in this Indenture and the Securities to
principal, premium or interest in respect of any Security shall
be deemed to mean and include all Additional Amounts, if any,
payable in respect of such principal, premium or interest,
unless the context otherwise requires, and express mention of
the payment of Additional Amounts in any provision hereof shall
not be construed as excluding reference to Additional Amounts
in those provisions hereof where such express mention is not
made. All references in this Indenture and the Securities to
principal in respect of any Security shall be deemed to mean
and include any Redemption Price or Repurchase Price payable in
respect of such Security pursuant to any redemption or
repurchase right hereunder (and all such references to the
Stated Maturity of the principal in respect of any Security
shall be deemed to mean and include the Redemption Date or
Repurchase
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Date with respect to any such Redemption Price or Repurchase
Price), and all such references to principal, premium, interest
or Additional Amounts shall be deemed to mean and include any
amount payable in respect hereof pursuant to this Section 10.7,
and express mention of the payment of any Redemption Price or
Repurchase Price, or any such other amount in any provision
hereof shall not be construed as excluding reference to the
payment of any Redemption Price or Repurchase Price, or any such
other amounts in those provisions hereof where such express
reference is not made.
10.8 Indemnification of Judgment Currency
The Company shall indemnify the Trustee and any Holder of a Security
against any loss incurred by the Trustee or such Holder, as the case
may be, as a result of any judgment or order being given or made for
any amount due under this Indenture or such Security and being
expressed and paid in a currency (the "Judgment Currency") other than
Dollars, and as a result of any variation between (i) the rate of
exchange at which the Dollar amount is converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which the Trustee or such
Holder, as the case may be, on the date of payment of such judgment or
order is able to purchase Dollars with the amount of the Judgment
Currency actually received by the Trustee or such Holder. The
foregoing indemnity shall constitute a separate and independent
obligation of the Company and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term
"spot rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion
into, Dollars.
10.9 Further Acts; Protection of Collateral
The Company will take any action, satisfy any condition or do any
thing (including the obtaining or effecting of any necessary consent,
approval, authorization, exemption, filing, license, order, recording
or registration) at any time required in accordance with the
applicable laws and regulations to be taken, fulfilled or done in
order (i) to enable it lawfully to enter into, exercise its rights and
perform and comply with its obligations under the Securities, this
Indenture and any supplemental indenture, as the case may be,
including any security interest created thereby, (ii) to ensure that
those obligations are legally binding and enforceable, (iii) to make
the Securities, this Indenture and any supplemental indenture
admissible in evidence in the courts of the State of New York and
Brazil and (iv) to enable the Trustee to exercise and enforce its
respective rights under this Indenture and any supplemental indenture
and to carry out the terms, provisions and purposes of this Indenture
and any supplemental indenture;
The Company hereby designates the Trustee its agent and
attorney-in-fact to execute any financing statement, continuation
statement or other instrument required to be filed by the Company
pursuant to this Section. Notwithstanding anything herein to the
contrary, the Trustee shall have no duty as to maintaining, perfecting
or collecting any collateral or security interest that may be created
pursuant to any supplemental indenture.
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10.10 Notice of Late Payment
So long as any Security is Outstanding, the Company will forthwith
upon request by the Trustee give notice to the Holders of Securities
of any unconditional payment to the Trustee of any sum due in respect
of the Securities made after the Business Day prior to the due date
for such payment.
10.11 Securities held by the Company
So long as any Security is Outstanding, the Company will send to the
Trustee, as soon as practicable after being so requested by the
Trustee, an Officers' Certificate of the Company stating the aggregate
principal amount of Securities held or beneficially owned, at the date
of such certificate by or on behalf of the Company or any of its
Subsidiaries. The Company will promptly notify the Trustee in writing
when it or any of its Subsidiaries holds or beneficially owns
Securities.
10.12 Securities Issued or Outstanding
So long as any Security is Outstanding, the Company will send to the
Trustee within fourteen (14) days after any written request by the
Trustee, an Officers' Certificate confirming the aggregate principal
amount of Securities issued and/or Outstanding under this Indenture.
10.13 Status of Securities
The Company will ensure that the Securities will rank at least pari
passu with any current and future unsecured and unsubordinated
Indebtedness of the Company.
10.14 Maintenance of Good Standing
The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence. The Company
will comply with all laws, regulations, rules and orders of Brazil, or
any political subdivision thereof, which apply to its existence,
property and business, including applicable environmental and labor
laws, except to the extent such failure to comply would not
individually or in the aggregate have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholder's equity or results of operations of the Company.
10.15 Maintenance of Properties
The Company will cause all properties that are material to the conduct
of its business to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the
Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in
any material respect to the Holders of Securities. The Company will
cause all of its properties and its business to be insured against all
damages, claims, interruptions and loss encountered in the normal
course of business.
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10.16 Payment of Taxes
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and
governmental charges levied or imposed upon the Company or upon the
income, profits or property of the Company (the "Taxes") which, if
unpaid, might by law become a Lien upon the property of the Company;
provided, however, that (x) the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is
then-currently being contested in good faith by appropriate
proceedings and (y) the Company shall be in compliance with this
Section 10.16 if the individual or the aggregate amount of the Taxes
not paid would not have a material adverse effect on the ability of
the Company to comply with its obligations under this Indenture.
11 Redemption of Securities
11.1 Right of Redemption
11.1.1 The Securities of any series which are redeemable before their
Stated Maturity may not be redeemed at the election of the
Company except in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for such
Securities) in accordance with the provisions of this Article.
11.1.2 The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, at least 45
days prior to the Redemption Date fixed by the Company, notify
the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of
the tenor of the Securities specified therefor in the
Securities of a series to be redeemed.
11.1.3 If, as a result of any amendment to, or change in, the laws (or
any rules or regulation thereunder) of Brazil or any political
subdivision or taxing authority thereof or therein affecting
taxation or any amendment to or change in an official
interpretation, administration or application of such laws,
rules or regulations (including a holding by a court of
competent jurisdiction), which amendment or change of such
laws, rules or regulations or the interpretation thereof
becomes effective on or after the date specified therefor in
the Securities of a series, the Company would be obligated to
pay Additional Amounts in respect of the Securities of such
series pursuant to the terms and conditions thereof in excess
of those attributable to Brazilian withholding tax on the basis
of a statutory rate of 15%, and if such obligation cannot be
avoided by the Company after taking measures the Company
considers reasonable to avoid it, then, at the Company's
option, the Securities of such series may be redeemed in whole,
but not in part, at any time, on giving not less than 30 nor
more than 60 days' notice to the Holders of such Securities, at
a Redemption Price equal to 100% of the principal amount
thereof and any premium applicable thereto, together with
accrued interest up to but not including the Redemption Date
and any Additional Amounts which would otherwise be payable;
provided, however, that (1) no notice of such redemption may be
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given earlier than 90 days prior to the earliest date on which
the Company would but for such redemption be obligated to pay
such Additional Amounts were a payment on such Securities then
due, and (2) at the time such notice is given, such obligation
to pay such Additional Amounts remains in effect.
11.1.4 Before any notice of redemption pursuant to Section 11.1.3 is
given to the Trustee or the Holders of Securities of the
relevant series, the Company shall deliver to the Trustee (i)
an Officers' Certificate stating that the Company is entitled
to effect such redemption and setting forth a statement of
facts showing that the condition or conditions precedent to the
right of the Company so to redeem have occurred or been
satisfied and (ii) an Opinion of Counsel to the effect that the
Company has or shall become obligated to pay such Additional
Amounts as a result of such change or amendment. Such notice,
once given to the Trustee, shall be irrevocable.
11.2 Notice of Redemption
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
11.2.1 the Redemption Date,
11.2.2 the Redemption Price and amount of accrued interest, if any,
11.2.3 that on the Redemption Date the Redemption Price and any
accrued interest shall become due and payable upon each
Security to be redeemed and that interest thereon shall cease
to accrue on and after said date,
11.2.4 the conversion rate (if applicable), the date on which the
right to convert the Securities to be redeemed shall terminate
and the place or places where such Securities may be
surrendered for conversion,
11.2.5 the place or places where such Securities are to be surrendered
for payment of the Redemption Price and any accrued interest,
and
11.2.6 applicable CUSIP or ISIN Numbers.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company,
and such notice, when given to the Holders, shall be irrevocable.
11.3 Deposit of Redemption Price
On the Business Day prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an
Interest
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Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date.
11.4 Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the
Company to the Person in whose name such Security is registered at the
Redemption Price, together with accrued interest to the Redemption
Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.6.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid,
bear interest from the Redemption Date at the rate borne by (or
prescribed therefor in) the Security.
11.5 Securities Redeemed in Part
Any Security of a series which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor
are to be redeemed or unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected
less than 61 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called for
redemption, by lot or, in the Trustee's discretion, on a pro rata
basis, provided that the unredeemed portion of the principal amount of
any Security shall be in an authorized denomination which shall not be
less than the minimum authorized denomination for such Security. If
less than all of the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected
less than 30 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding
sentence, and the Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case
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of any Securities selected for partial redemption, the principal
amounts thereof to be redeemed.
The provisions of the preceding paragraph shall not apply with respect
to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any
such redemption in part, the unredeemed portion of the principal
amount of the Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such
Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed
only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
12 DEFEASANCE AND COVENANT DEFEASANCE
12.1 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 12.2
or Section 12.3 applied to any Securities or any series of Securities
designated pursuant to Section 3.1 as being defeasible pursuant to
such Section 12.2 or 12.3, in accordance with any applicable
requirements provided pursuant to Section 3.1 and upon compliance with
the conditions set forth below in this Article. Any such election
shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 3.1 for such Securities.
12.2 Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section applied
to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations
with respect to such Securities or series of Securities as provided in
this Section on and after the date the conditions set forth in Section
12.4 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which
shall survive until otherwise terminated or discharged hereunder: (i)
the rights of Holders of such Securities to receive, solely from the
trust fund described in Section 12.4 and as more fully set forth in
such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due, (ii) the
Company's obligations with respect to such Securities under Sections
3.4, 3.5, 10.2 and 10.3, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) the provisions set forth
in this Article Twelve. Subject to compliance with this Article, the
Company may exercise its option to have this Section 12.2 applied to
any Securities notwithstanding the prior exercise of its option to
have Section 12.3 applied to such Securities.
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12.3 Covenant Defeasance.
Upon the Company's exercise of its option to have this Section applied
to any Securities or any series of Securities, as the case maybe, (i)
the Company shall be released from any covenants provided pursuant to
Section 3.1.17, 9.1.2 or 9.1.8 for the benefit of the Holders of such
Securities, and (ii) the occurrence of any event specified in Section
5.1.4 shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section
on and after the date the conditions set forth in Section 12.4 are
satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of
Section 5.1.4), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any
other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
12.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
12.2 or Section 12.3 to any Securities or any series of Securities, as
the case may be:
12.4.1 The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (i) money in an amount, or (ii)
U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination
thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, the principal of and any
premium, interest and Additional Amounts on such Securities on
the respective Stated Maturities, in accordance with the terms
of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (A) a
direct obligation of the United States of America for the
payment of which the full faith and credit of the United States
of America is pledged or (B) an obligation of a Person
controlled or supervised by and acting as any agency or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case (A) or (B), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which
is specified in Clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on
any U.S. Government Obligation which is so specified and held,
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provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or
the specific payment of principle or interest evidenced by such
depositary receipt.
12.4.2 In the event of any election to have Section 12.2 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this instrument, there has
been a change in the applicable U.S. Federal income tax law, in
either case (i) or (ii) to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for U.S. Federal income tax
purposes as a result of the deposit, Defeasance and discharge
to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
12.4.3 In the event of an election to have Section 12.3 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to the effected
with respect to such Security and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
12.4.4 No event which is, or after notice or lapse of time both would
become, an Event of Default with respect to such Securities or
any other Securities shall have occurred and be continuing at
the time of such deposit or, with regard to any such event
specified in Sections 5.1.5 and 5.1.6, at any time on or prior
to the day which is 90 days after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until after such day which is 90 days after the date
of such deposit).
12.4.5 Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
12.4.6 Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party
or by which it is bound.
12.4.7 Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act unless
such trust shall be registered under such Act or exempt from
registration thereunder.
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12.4.8 The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 12.4 in respect of any
Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture,
to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 12.4, or the principal and
interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Order any
money or U.S. Government Obligations held by it as provided in Section
12.4 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case
may be, with respect to such Securities.
12.6 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason
of any order of judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which
the Company has been discharged or released pursuant to Section 12.2
or 12.3 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities in
accordance with this Article; provided, however, that if the Company
makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the
Company shall be subrogated to the rights (if any) of the Holders of
such Securities to receive such payment from the money so held in
trust.
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This instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed, as of the day and year first above written.
Executed as a DEED by
COMPANHIA VALE DO RIO DOCE,
as Issuer
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Trustee
By:
-----------------------------------
Name:
Title:
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Certain Sections of this Indenture relating to Section 310
through 318, inclusive, of the Trust Indenture Act of 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S)310(a)(1).................................................................6.9
(a)(2).................................................................6.9
(a)(3)......................................................Not Applicable
(a)(4)......................................................Not Applicable
(a)(5).................................................................6.9
(b)....................................................................6.8
...................................................................6.10
(S)311(a)...................................................................6.13
(b)...................................................................6.13
(S)312(a)....................................................................7.1
....................................................................7.2
(b)....................................................................7.2
(c)....................................................................7.2
(S)313(a)....................................................................7.3
(b)....................................................................7.3
(c)(1).................................................................7.3
(c)(2).................................................................7.3
(c)(3).................................................................7.3
(d)....................................................................7.3
(S)314(a)...................................................................10.5
(b)...................................................................10.5
(c)...................................................................10.5
(d)...................................................................10.5
(S)315(a)....................................................................6.1
(b)....................................................................6.2
(c)....................................................................6.1
(d)....................................................................6.1
(e)...................................................................5.15
(S)316(a)(1)(A).............................................................5.13
(a)(1)(B).............................................................5.14
(a)(2)......................................................Not Applicable
(b)....................................................................5.9
(c)....................................................................1.4
(S)317(a)(1).................................................................5.4
(a)(2).................................................................5.5
(b)...................................................................10.3
(S)318(a) ...................................................................1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of this Indenture.
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