EXHIBIT 4.3
Dated as of , 2003
---
VALE OVERSEAS LIMITED,
as Issuer
and
COMPANHIA VALE DO RIO DOCE,
as Guarantor
and
JPMORGAN CHASE BANK,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Guaranteed Debt Securities
TABLE OF CONTENTS
Page
----
1 Definitions...............................................................1
2 Amendments to the Original Indenture......................................2
3 Miscellaneous Provisions.................................................24
4 The Trustee..............................................................25
i
Third Supplemental Indenture, dated as of , 2003, among VALE OVERSEAS
---
LIMITED, a Cayman Islands exempted company incorporated with limited liability
(herein called the "Company"), having its principal office at Walker House, P.O.
Box 908 GT, Mary Street, Georgetown, Grand Cayman, Cayman Islands, COMPANHIA
VALE DO RIO DOCE, a company duly organized and existing under the laws of the
Federative Republic of Brazil (herein called the "Guarantor"), having its
principal office at Avenida Graca Aranha, No. 26, 17(Degree) Andar, 20030-900
Rio de Janeiro, RJ, Brazil, and JPMORGAN CHASE BANK, a bank duly organized and
existing under the laws of the State of New York, having its principal corporate
trust office at 4 New York Plaza, New York, New York 10004, as Trustee (herein
called the "Trustee") to the Indenture, dated as of March 8, 2002, among the
Company, the Guarantor and the Trustee (herein called the "Original Indenture").
W I T N E S S E T H :
Whereas, Section 9.1.5 of the Original Indenture authorizes the Company, when
authorized by a Board Resolution, the Guarantor, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, to enter,
without the consent of any Holders, into one or more supplemental indentures to
add to, change or eliminate any of the provisions of the Original Indenture in
respect of one or more series of Securities, provided that any such addition,
change or elimination 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;
Whereas, in connection with the filing by the Company and the Guarantor of a
shelf registration statement on Form F-3, the Company and the Guarantor desire
by this Third Supplemental Indenture to add to, change or eliminate certain
provisions of the Original Indenture;
Whereas, such additions, changes or eliminations (i) shall apply only to
Securities authorized and issued after the execution of the Third Supplemental
Indenture; and (ii) shall not modify the rights of the Holders of any Securities
issued on or prior to the date of this Third Supplemental Indenture;
Whereas, the Company and the Guarantor have duly authorized the execution and
delivery of this Third Supplemental Indenture to make such additions, changes or
eliminations; and
Whereas, all things necessary to make this Third Supplemental Indenture a valid
and binding legal obligation of the Company and the Guarantor according to its
terms have been done.
Now, Therefore, the Company and the Guarantor agree with the Trustee as follows:
1 Definitions
1.1 Provisions of the Original Indenture
Except insofar as herein otherwise expressly provided, all the
definitions, provisions, terms and conditions of the Original
Indenture shall remain in full force and effect. The Original
Indenture, as amended and supplemented by this Third Supplemental
Indenture, is in all respects ratified and confirmed, and the Original
Indenture and this Third Supplemental Indenture shall be read, taken
and considered as one and the same instrument for all purposes.
1.2 Definitions
For all purposes of this Third Supplemental Indenture, except as
otherwise expressly provided or unless the subject matter or context
otherwise requires:
1.2.1 any reference to an "Article" or a "Section" refers to an
Article or Section, as the case may be, of the Original
Indenture;
1.2.2 the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Third Supplemental Indenture
as a whole and not to any particular Article, Section or other
subdivision;
1.2.3 all terms used in this Third Supplemental Indenture that are
defined in the Original Indenture have the meanings assigned
to them in the Original Indenture, except as otherwise
provided in this Third Supplemental Indenture.
2 Amendments to the Original Indenture
2.1 The definition of "Board Resolution" in Section 1.1 of the Original
Indenture is hereby amended and restated as follows:
"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 or the Guarantor, 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.
2.2 The definition of "Executive Board" is hereby added to in Section 1.1
as follows:
"Executive Board" means the executive officers of the Guarantor that
are responsible for day to day operations and the implementation of
the general policies and guidelines set forth by the Board of
Directors.
2.3 The definition of "Indebtedness" in Section 1.1 of the Original
Indenture is hereby amended and restated as follows:
"Indebtedness" means with respect to any Person, any amount payable
(whether as a direct obligation or indirectly through a guaranty 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 Guarantor on behalf of an Affiliate,
upon any Indebtedness of such Affiliate becoming immediately due and
payable as a result of a default by such Affiliate, pursuant to a
guarantee or similar instrument provided by the Guarantor in
connection with such Indebtedness, provided that such payment made by
the Guarantor is made within five Business Days of notice being
provided to the Guarantor that payment is due under such guarantee or
similar instrument.
2
2.4 The definition of "Officers' Certificate" in Section 1.1 of the
Original Indenture is hereby amended and restated as follows:
"Officers' Certificate" means a certificate signed in the name of the
Company or the Guarantor 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 or the Guarantor by any two of the Company's or the
Guarantor's, as applicable, principal executive, financial or
accounting officers.
2.5 The definition of "Permitted Lien" in Section 1.1 of the Original
Indenture is hereby amended and restated as follows:
"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 or the Guarantor 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 or the Guarantor's business;
(iv) arising in the ordinary course of business in connection with the
financing of export, import or other trade transactions to secure
Indebtedness of the Company or Guarantor;
(v) securing or providing for the payment of Indebtedness incurred in
connection with any project financing by the Guarantor, provided
that (1) such security shall not extend to any property in
existence on the date of the issuance of Securities of such
series, to any revenues from such property, or to any proceeds
from claims belonging to the Guarantor which arise from the
operation, failure to meet specifications, failure to complete,
exploitation, sale or loss of, or damage to, such property
("Claims Proceeds"), (2) such security shall not extend to any
property (or to any revenues or Claims Proceeds therefrom) at any
project in existence on the date 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;
3
(vi) granted upon or with regard to any present or future asset or
property of the Guarantor to (i) any Brazilian governmental
credit agency (including, but not limited to the Brazilian
National Treasury, Banco Nacional de Desenvolvimento Economico e
Social, BNDES Participacoes S.A., 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) 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 or Guarantor and not created in contemplation of such
acquisition;
(viii) any Lien created over funds reserved for the payment of
principal, interest and premium, if any, due in respect of
Securities issued under this Indenture; or
(ix) hereafter granted upon or in respect of any asset of the Company
or Guarantor other than those referred to in Clauses (i) through
(viii) above, provided that the aggregate amount of Indebtedness
secured pursuant to this clause (ix) shall not, on the date any
such Indebtedness is incurred, exceed an amount equal to 10 per
cent of the Guarantor's stockholders' equity (calculated on the
basis of the Guarantor's latest quarterly unaudited or annual
audited non-consolidated financial statements, whichever is the
most recently prepared, in accordance with accounting principles
generally accepted in Brazil and currency exchange rates
prevailing on the last day of the period covered by such
financial statements).
2.6 The definition of "Significant Subsidiary" in Section 1.1 of the
Original Indenture is hereby amended and restated as follows:
"Significant Subsidiary" shall mean, at any time, a Subsidiary of
which the Guarantor's and its other Subsidiaries' proportionate share
of the total assets (after intercompany eliminations) of the
Subsidiary exceeds 10% of the total assets of the consolidated group
as of the end of the most recently completed fiscal year.
2.7 The first paragraph of Section 1.2 of the Original Indenture is hereby
amended and restated as follows:
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company and the
Guarantor shall furnish to the Trustee such certificates and opinions
as may be required hereunder and under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by any two officers of the Company or the
Guarantor, or an Opinion of Counsel if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any
other requirements set forth in this Indenture.
2.8 The second paragraph of Section 1.3 of the Original Indenture is
hereby amended and restated as follows:
Any certificate or opinion of any two officers of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or
4
representations by, counsel, 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 or the Guarantor stating that the
information with respect to such factual matters is in the possession
of the Company or the Guarantor, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
2.9 Section 1.5.2 of the Original Indenture is hereby amended and restated
as follows:
(i) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
both the Company and the Guarantor and (ii) the Guarantor by the
Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to both the Guarantor and the
Company, in either case addressed to it at the address specified below
or at any other address previously furnished in writing to the Trustee
by the Company or the Guarantor:
Avenida Graca Aranha, No. 26, 17 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
2.10 Section 2.1 of the Original Indenture is hereby amended and restated
as follows:
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.
5
2.11 Section 2.3 of the Original Indenture is hereby amended and restated
as follows:
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in
one or more tranches of one or more series under an Indenture, dated
as of March 8, 2002 (herein called the "Indenture", which term shall
have the meaning assigned to it in such instrument), among the
Company, Companhia Vale do Rio Doce, as Guarantor (herein called the
"Guarantor") and JPMorgan Chase Bank, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and
the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The full
and punctual payment of the principal of, premium, if any, and
interest on, and all other amounts payable under, this Security is
guaranteed by the Guarantor. This Security is one of the series
designated on the face hereof [if applicable, insert -- , limited in
aggregate principal amount to $[ ]].
---
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than [ ] days' nor more than [ ] days'
-- --
notice, at any time [if applicable, insert -- on or after [ ],
-------
20[ ]], as a whole or in part, at the election of the Company, at the
--
following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert -- on or before [ ],
-------
[ ]%, and if redeemed] during the 12-month period beginning [ ]
-- -------
of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to [ ]% of the principal
amount, together in the case of any such redemption with accrued
interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable
to the Holders of such Securities or one or more Predecessor
Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the
Indenture.]
[If the Security is subject to redemption of any kind, insert -- In
the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
[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
6
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.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default or Illegality Event with respect to Securities of
this series shall occur and be continuing, an amount of principal of
the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture. Such amount
shall be equal to -- insert formula for determining the amount. Upon
payment (i) of the amount of principal so declared due and payable and
(ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and premium and interest, if any, on
the Securities of this series shall terminate.]
All payments of principal[, premium] and interest in respect of the
Securities shall be made without withholding or deduction for any
present or future taxes, duties, assessments or governmental charges
of whatever nature imposed, levied, collected, withheld or assessed by
or on behalf of the Cayman Islands or Brazil or any Successor
Jurisdiction or any authority therein or thereof having power to tax
("Foreign Taxes") except to the extent that such Foreign Taxes are
required by the Cayman Islands, Brazil, such Successor Jurisdiction or
such authority to be withheld or deducted. In the event of any
withholding or deduction for any Foreign Taxes, the Company or the
Guarantor, as the case may be, shall pay such additional amounts
("Additional Amounts") as will result in receipt by the Holders of
Securities on the respective due dates of such amounts as would have
been received by them had no such withholding or deduction (including
for any Foreign Taxes payable in respect of Additional Amounts) been
required, except that no such Additional Amounts shall be payable with
respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for
any such taxes, duties, assessments or other governmental charges
which would not have been imposed but for (A) a connection
between the Holder and the Cayman Islands or Brazil other than
the mere holding of such Security and the receipt of payments
with respect to such Security or (B) failure by the Holder to
comply with any certification, identification or other reporting
requirement concerning the nationality, residence, identity or
connection with the Cayman Islands, Brazil or a Successor
Jurisdiction, or applicable political subdivision or authority
thereof or therein having power to tax, of such Holder, if
compliance is required by such Successor Jurisdiction, or any
political subdivision or authority thereof or therein having
power to tax as a precondition to exemption from, or reduction in
the rate of, the tax, assessment or other governmental charge and
the Company has given the Holders at least 30 days' notice that
Holders will be required to provide such certification,
identification or other requirement;
(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
7
days after the date on which such payment became due and payable
or the date on which payment thereof is duly provided for and
notice thereof given to Holders, whichever occurs later, except
to the extent that the Holder of such Security would have been
entitled to such Additional Amounts on surrender of such
Security for payment on the last day of such 30-day period;
(iii) in respect of estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or governmental
charge imposed with respect to a Security;
(iv) in respect of any tax, assessment or other governmental charge
payable otherwise than by deduction or withholding from payments
on any series of Securities or by direct payment by the Company
or the Guarantor in respect of claims made against the Company
or the Guarantor;
(v) where such 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 or the Guarantor's obligation to pay Additional Amounts
set forth in clause (i) above shall not apply if the provision of
information, documentation or other evidence described in such clause
(i) would be materially more onerous, in form, in procedure or in the
substance of information disclosed, to a Holder or beneficial owner of
a Security (taking into account any relevant differences between U.S.
and Cayman Islands or Brazilian law, regulation or administrative
practice) than comparable information or other reporting requirements
imposed under U.S. tax law (including tax treaties between the United
States and the Cayman Islands or Brazil), regulation (including
proposed regulations) and administrative practice.
The Company or the Guarantor, as the case may be, shall promptly
provide the Trustee with documentation (which may consist of certified
copies of such documentation) satisfactory to the Trustee evidencing
the payment of Foreign Taxes in respect of which the Company or the
Guarantor has paid any Additional Amounts. Copies of such
documentation shall be made available to the Holders of the Securities
or the Paying Agent, as applicable, upon request therefor.
The Company or the Guarantor, as the case may be, shall pay all stamp,
issue, registration, documentary or other similar duties, if any,
which may be imposed by the Cayman Islands or Brazil or any
governmental entity or political subdivision therein or thereof, or
any taxing authority of or in any of the foregoing, with respect to
the Indenture or the issuance of the Securities or the Guaranties.
All references herein or in the Indenture to principal, premium or
interest in respect of any Security or Guaranty shall be deemed to
include all Additional Amounts, if any,
8
payable in respect of such principal, premium or interest, unless the
context otherwise requires, and express mention of the payment of
Additional Amounts in any provision hereof shall not be construed as
excluding reference to Additional Amounts in those provisions hereof
where such express mention is not made.
In the event that Additional Amounts actually paid with respect to the
Securities pursuant to the preceding paragraph are based on rates of
deduction or withholding of taxes in excess of the appropriate rate
applicable to the Holder of such Securities, and, as a result thereof
such Holder is entitled to make claim for a refund or credit of such
excess from the authority imposing such withholding tax, then such
Holder shall, by accepting such Securities, be deemed to have assigned
and transferred all right, title, and interest to any such claim for a
refund or credit of such excess to the Company and the Guarantor.
However, by making such assignment, the Holder makes no representation
or warranty that the Company or the Guarantor will be entitled to
receive such claim for a refund or credit and incurs no other
obligation with respect thereto.
All references in the Indenture and the Securities to principal in
respect of any Security shall be deemed to mean and include any
Redemption Price or Repurchase Price payable in respect of such
Security pursuant to any redemption or repurchase right hereunder (and
all such references to the Stated Maturity of the principal in respect
of any Security shall be deemed to mean and include the Redemption
Date or Repurchase Date with respect to any such Redemption Price or
Repurchase Price), and all such references to principal, premium,
interest or Additional Amounts shall be deemed to mean and include any
amount payable in respect hereof pursuant to Section 10.7 of the
Indenture, and express mention of the payment of any Redemption Price,
or Repurchase Price or any such other amount in any provision hereof
or of the Indenture shall not be construed as excluding reference to
the payment of any Redemption Price or Repurchase Price, or any such
other amounts in those provisions hereof where such express reference
is not made.
The Company may redeem the Securities if, as a result of any amendment
to, or change in, the laws (or any rules, or regulations thereunder)
of the Cayman Islands or Brazil or any political subdivision or taxing
authority thereof or therein affecting taxation or any amendment to or
change in an official interpretation, administration or application of
such laws, rules, or regulations (including a holding by a court of
competent jurisdiction), which amendment or change of such laws,
rules, or regulations or the interpretation thereof becomes effective
on or after [Insert date specified therefor in Securities of the
applicable series], the Company would be obligated, after taking
measures the Company considers reasonable to avoid such requirement,
to pay Additional Amounts in excess of the Additional Amounts that the
Company would be obligated to pay if payments made on the Securities
were subject to withholding or deduction of Foreign Taxes at the rate
of 15%. In such event, the Securities are subject to redemption upon
not less than 30 nor more than 60 days' notice by mail, at any time,
as a whole but not in 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
9
of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions (i) permitting the Holders of a
majority in principal amount of the Securities at the time Outstanding
of any series to be affected under the Indenture, on behalf of the
Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and (ii) permitting
the Holders of a majority in principal amount of the Securities at the
time Outstanding of any series to be affected under the Indenture, on
behalf of the Holders of all Securities of such series, to waive
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture, or for the appointment of a
receiver or trustee, or for any other remedy thereunder, unless such
Holder shall have previously given the Trustee written notice of a
continuing Event of Default or Illegality Event with respect to the
Securities of this series, the Holders of not less than 25% in
principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default or
Illegality Event as Trustee and offered the Trustee indemnity
reasonably satisfactory to it, and the Trustee shall not have received
from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity.
The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof
or any [premium or] interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
and any [premium and] interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office of the Trustee or agency of the Company in any
place where the principal of and any [premium and] interest on this
Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any multiple thereof.
As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of
like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
10
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 Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether
or not this Security be overdue, and neither the Company, the
Guarantor, the Trustee nor any such agent shall be affected by notice
to the contrary.
[If this Security is a Global Security, insert - This Security is a
Global Security and is subject to the provisions of the Indenture
relating to Global Securities, including the limitations in Section
3.4 thereof on transfers and exchanges of Global Securities.]
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Abbreviations
The following abbreviations, when used in the inscription of the face
of this Security, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the [ ] entireties
---
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT-- (Cust)
--------------
Custodian under Uniform(Minor)
-------------
Gifts to Minors Act (State)
----------------
Additional abbreviations may also be used though not in the above
list.
2.12 Section 3.1.20 of the Original Indenture is hereby amended and
restated as follows:
the applicability of Article 13 with respect to the Securities of such
series; and
2.13 Section 3.1.21 is hereby added to the Indenture as follows:
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).
2.14 The penultimate paragraph of Section 3.1 is hereby amended and
restated as follows:
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
11
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.
2.15 The first paragraph of Section 3.3 is hereby amended and restated as
follows:
The Securities shall be executed on behalf of the Company by any two
of its Directors or its attorneys in fact in accordance with its
Bylaws. The Guaranty on the Securities shall be endorsed on behalf of
the Guarantor by any two of its officers or its attorneys in fact in
accordance with its Bylaws. The signature of any of these Directors or
officers on the Securities or the Guaranty may be manual or facsimile.
2.16 Section 3.4 of the Original Indenture is hereby amended and restated
as follows:
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 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 Guarantor shall endorse,
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 Guarantor shall endorse, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the
exchange is entitled to receive.
12
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.
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 and the
Guarantor, 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 Guarantor will
endorse, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Securities
of such series, will
13
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 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 Guarantor will endorse 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 Guarantor shall endorse, 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.
14
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 act, the operation of customary
practices of such Persons governing the exercise of the
rights of a holder of any Security.
3.4.6 None of the Company, the Guarantor, the Trustee or any agent
of the Company, the Guarantor or the Trustee shall have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial
ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such
beneficial ownership interests.
2.17 Section 5.1 of the Original Indenture is hereby amended and restated
as follows:
"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 the
Guarantor or any Significant Subsidiary occurring and
continuing under any agreement, instrument or other document
evidencing outstanding Indebtedness in excess of $50,000,000
in aggregate (or its equivalent in other currencies) and such
default or event of default results in the actual
acceleration of such Indebtedness;
5.1.4 the Company or the Guarantor shall fail to perform or observe
any other 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,
the Guarantor or any Significant Subsidiary in an involuntary
case or proceeding under any applicable bankruptcy,
insolvency, suspension of payments, reorganization or other
similar law, or (B) a decree or order adjudging the Company,
the Guarantor or any Significant
15
Subsidiary a bankrupt or insolvent, or suspending payments,
or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or
in respect of the Company, the Guarantor or any Significant
Subsidiary under any applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, the
Guarantor or any Significant Subsidiary or of any substantial
part of the property of the Company, the Guarantor or any
Significant Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company, the Guarantor or
any Significant Subsidiary, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
or
5.1.6 the commencement by the Company, the Guarantor or any
Significant Subsidiary of a voluntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the
Company, the Guarantor or any Significant Subsidiary to the
entry of a decree or order for relief in respect of the
Company, the Guarantor or any Significant Subsidiary in an
involuntary case or proceeding under any applicable
bankruptcy, insolvency, suspension of payments,
reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against the
Company, the Guarantor or any Significant Subsidiary, or the
filing by the Company, the Guarantor, or any Significant
Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable law or the
consent by the Company, the Guarantor or any Significant
Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar
official of the Company, the Guarantor or any Significant
Subsidiary or of any substantial part of the property of the
Company, the Guarantor or any Significant Subsidiary, or the
making by the Company, the Guarantor or any Significant
Subsidiary of an assignment for the benefit of creditors, or
the admission by the Company, the Guarantor or any
Significant Subsidiary in writing of its inability to pay its
debts generally as they become due or the taking of corporate
action by the Company, the Guarantor or any Significant
Subsidiary in furtherance of any such action (evidenced by
the adoption of a corporate resolution in favor of any such
actions or an action of any of the officers of the Company,
the Guarantor or such Significant Subsidiary that similarly
binds the Company, the Guarantor or such Significant
Subsidiary, as the case may be), or the general inability of
the Company, the Guarantor or any Significant Subsidiary to
make payment of their obligations as they come due.
2.18 Section 5.2 of the Original Indenture is hereby amended and restated
as follows:
"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 or the Guarantor to perform or comply with any one or more of
its obligations under any of the Securities of the series.
2.19 Section 5.3 of the Original Indenture is hereby amended and restated
as follows:
16
If an Event of Default or Illegality Event with respect to any series
of Securities (other than those Events of Default in Sections 5.1.5
and 5.1.6 insofar as they relate to the Company and the Guarantor but
not to a Significant Subsidiary of the Guarantor), occurs and is
continuing, then and in every such case, including an Event of Default
in Sections 5.1.5 and 5.1.6 relating to a Significant Subsidiary of
the Guarantor, the Trustee shall, at the written request of the
Holders of not less than 25% in principal amount of the Outstanding
Securities of that series, by notice in writing to the Company,
declare the principal of all the Securities 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 or the Guarantor (but not a Significant
Subsidiary of the Guarantor), the principal and any accrued interest,
together with any Additional Amounts thereon, on all of the Securities
of that series then Outstanding shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder,
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series at the time Outstanding has been made and
before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences
if
5.3.1 the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest and any Additional Amounts thereon on
all of the Securities of that series,
(ii) the principal of any Securities of that series which have
become due otherwise than by such declaration of
acceleration,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by (or
prescribed therefor in) the Securities of that series, and
(iv) all sums paid or advanced by the Trustee hereunder and all
amounts owing the Trustee under Section 6.7;
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.
2.20 Section 5.14 of the Original Indenture is hereby amended and restated
as follows:
17
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.
2.21 Section 6.1 of the Original Indenture is hereby amended and restated
as follows:
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.
2.22 Section 6.3.2 of the Original Indenture is hereby amended and restated
as follows:
any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution. Any request or direction of the Guarantor
mentioned herein shall be sufficiently evidenced by a written request
or direction signed on behalf of the Guarantor by any two of its
officers or its attorneys in fact in accordance with its Bylaws;
2.23 Section 6.3.8 of the Original Indenture is hereby amended and restated
as follows:
the Trustee shall not be deemed to have notice of any default or Event
of Default or Illegality Event unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default, Event of Default or Illegality
Event is received by the Trustee at the Corporate Trust Office of the
Trustee from the Company, the Guarantor or any Holder, and such notice
references the Securities and this Indenture;
2.24 Section 6.7 of the Original Indenture is hereby amended and restated
as follows:
6.7.1 The Company and the Guarantor, jointly and severally, agree
to pay to the Trustee from time to time such compensation as
shall be agreed in writing
18
between the parties for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust).
6.7.2 The Company and the Guarantor,jointly and severally, agree,
except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable and itemized
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or willful misconduct.
6.7.3 The Guarantor agrees to fully indemnify each of the Trustee
and any predecessor Trustee for, and to hold it harmless
against, any and all losses, liabilities, damages, claims or
expenses incurred without negligence or willful misconduct on
its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim
(whether asserted by the Company, a Holder or any other
Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1.5 or Section 5.1.6,
the expenses (including the reasonable 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 and
the Guarantor under this Section, the Trustee shall have a claim prior
to the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of (premium, if any) or interest on such Securities.
The provisions of this Section shall survive the resignation or
removal of the Trustee and the satisfaction and discharge of this
Indenture.
2.25 Section 7.3 of the Original Indenture is hereby amended and restated
as follows:
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.
19
2.26 Section 8.1.3 of the Original Indenture is hereby amended and restated
as follows:
the Company and the Guarantor have delivered to the Trustee (a) a
certificate signed by two executive officers of the Company and two
executive officers of the Guarantor stating that such consolidation,
merger, conveyance or transfer complies with this Article and that all
conditions precedent herein provided, which relate to such
transaction, have been complied with and (b) an Opinion of Counsel of
recognized standing 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
2.27 Section 10.7.1(v) of the Original Indenture is hereby amended and
restated as follows:
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
2.28 Section 11.5 of the Original Indenture is hereby amended and restated
as follows:
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 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
20
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.
2.29 Article 13 is hereby added to the Indenture as follows:
13 DEFEASANCE AND COVENANT DEFEASANCE
13.1 Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option at any time, to have Section 13.2
or Section 13.3 applied to any Securities or any series of Securities
designated pursuant to Section 3.1 as being defeasible pursuant to
such Section 13.2 or 13.3, 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.
13.2 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 and the Guarantor shall each be deemed to have been discharged
from their respective 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 13.4 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
13.4 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 respective obligations of the Company
and the Guarantor 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 Thirteen. Subject to compliance with this Article, the
Company may exercise its option to have this Section 13.2 applied to
any Securities notwithstanding the prior exercise of its option to
have Section 13.3 applied to such Securities.
13.3 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 and the Guarantor shall each 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
21
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 13.4 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that, with respect to such
Securities, the Company and the Guarantor 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.
13.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
13.2 or Section 13.3 to any Securities or any series of Securities, as
the case may be:
13.4.1 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, 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.
13.4.2 In the event of any election to have Section 13.2 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
22
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.
13.4.3 In the event of an election to have Section 13.3 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.
13.4.4 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).
13.4.5 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).
13.4.6 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 or the
Guarantor is a party or by which either is bound.
13.4.7 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.
13.4.8 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.
13.5 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 13.4 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
23
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 and the Guarantor 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 13.4, 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
13.4 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.
13.6 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 and the Guarantor have been discharged or released
pursuant to Section 13.2 or 13.3 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 or the Guarantor make any payment of principal of
or any premium or interest on any such Security following such
reinstatement of its obligations, the Company or the Guarantor (as the
case may be) 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.
3 Miscellaneous Provisions
3.1 Separability of Invalid Provisions
In case any one or more of the provisions contained in this Third
Supplemental Indenture should be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions contained in this Third Supplemental
Indenture, and to the extent and only to the extent that any such
provision is invalid, illegal or unenforceable, this Third
Supplemental Indenture shall be construed as if such provision had
never been contained herein.
3.2 Execution in Counterparts
This Third Supplemental Indenture may be simultaneously executed and
delivered in any number of counterparts, each of which when so
executed and delivered shall be deemed to be an original, and such
counterparts shall together constitute but one and the same
instrument.
24
3.3 Applicability
The provisions of this Third Supplemental Indenture shall apply only to
Securities issued after the date of this Third Supplemental Indenture.
Nothing in this Third Supplemental Indenture shall modify the rights of the
Holders of any Securities issued on or prior to the date of this Third
Supplemental Indenture.
4 The Trustee
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Third Supplemental Indenture
or for or in respect of the recitals contained herein, all of which are
made solely by the Company and the Guarantor.
25
In Witness Whereof, the parties hereto have caused this Third Supplemental
Indenture to be duly executed on their respective behalves, all as of the day
and year first written above.
Executed as a DEED by
VALE OVERSEAS LIMITED,
the Company
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
COMPANHIA VALE DO RIO DOCE,
as Guarantor
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Trustee
By:
----------------------------
Name:
Title:
26