EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 6, 2002
to the
MASTER INDENTURE
Dated as of February 6, 2002
among
ARCEL FINANCE LIMITED,
as Issuer
ARACRUZ TRADING S.A.,
as Seller and as Servicer
ARACRUZ CELULOSE S.A.,
as Parent
LASALLE BANK NATIONAL ASSOCIATION
as Collection Agent
THE BANK OF NEW YORK,
as Trustee, Registrar, Transfer Agent and Principal Paying Agent
and
THE BANK OF NEW YORK, LONDON BRANCH,
as London Paying Agent
US$250,000,000
Arcel Finance
5.984% Senior Secured Notes due 2009
Table of Contents
Page
ARTICLE I
CREATION OF THE SERIES OF NOTES
SECTION 1.01. Designation.....................................................2
SECTION 1.02. Definitions.....................................................2
ARTICLE II
THE 2009 NOTES; PARENT GUARANTEE
SECTION 2.01. The 2009 Notes .................................................8
SECTION 2.02. Parent Guarantee................................................9
ARTICLE III
PAYMENT OF INTEREST AND PRINCIPAL
SECTION 3.01. Calculation of Interest........................................10
SECTION 3.02. Payments ......................................................10
ARTICLE IV
CERTAIN ACCOUNTS
SECTION 4.01. Paying Agent Account ..........................................11
SECTION 4.02. Reserve Account ...............................................11
ARTICLE V
ENHANCEMENT AGREEMENT
SECTION 5.01. Enhancement Agreement..........................................15
SECTION 5.02. The Enhancer as Controlling Party..............................15
SECTION 5.03. Access to Information..........................................15
ARTICLE VI
PAYMENTS AND REPORTS TO NOTEHOLDERS
SECTION 6.01. Priority of Payment on Payment Dates...........................16
SECTION 6.02. Priority of Payment on Payment Dates Following the Occurrence
of an Early Amortization Event. .............................16
SECTION 6.03. Priority of Payment on Payment Dates Following the
Occurrence of an Accelerated Amortization Event..............17
SECTION 6.04. Method of Payment .............................................18
SECTION 6.05. Annual Noteholders' Statement..................................18
SECTION 6.06. Receivables Report ............................................19
ARTICLE VII
EARLY AMORTIZATION EVENTS; ACCELERATED AMORTIZATION EVENTS
SECTION 7.01. Early Amortization Events......................................20
SECTION 7.02. Accelerated Amortization Events ...............................21
ARTICLE VIII
REDEMPTION
SECTION 8.01. Optional Redemption............................................24
SECTION 8.02. Notice of Optional Redemption. ................................24
SECTION 8.03. Selection of 2009 Notes to Be Redeemed in Part ................25
SECTION 8.04. Rights of Noteholders Following Optional Redemption. ..........26
SECTION 8.05. Payments Following Optional Redemption.........................26
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01. Ratification of Master Indenture...............................28
SECTION 9.02. Counterparts...................................................28
SECTION 9.03. Limitation on Responsibility of the Trustee,
Paying Agent and Registrar ..................................28
SECTION 9.04. Limited Recourse to the Issuer.................................28
SECTION 9.05. Notices........................................................28
EXHIBIT A Schedule of Payments
SCHEDULE I Form of Restricted Global 2009 Note
SCHEDULE II Form of Regulation S Global 2009 Note
SCHEDULE III Form of Restricted Definitive 2009 Note
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FIRST SUPPLEMENTAL INDENTURE, dated as of February 6, 2002 (the "First
Supplemental Indenture"), among ARCEL FINANCE LIMITED, a Cayman Islands company,
as Issuer (the "Issuer"), ARACRUZ TRADING S.A., a Panamanian corporation (the
"Company"), as Seller (in such capacity, the "Seller") and as Servicer (in such
capacity, the "Servicer"), ARACRUZ CELULOSE S.A., a Brazilian corporation (the
"Parent"), LASALLE BANK, NATIONAL ASSOCIATION, as Collection Agent (the
"Collection Agent"), THE BANK OF NEW YORK, as Trustee, Registrar, Transfer Agent
and Principal Paying Agent (the "Trustee") and THE BANK OF NEW YORK, LONDON
BRANCH, as London Paying Agent (the "London Paying Agent" and, with the Trustee
and each other Paying Agent named hereunder, the "Paying Agents").
WHEREAS, the Issuer, the Seller and Servicer, the Parent, the Collection
Agent and the Trustee have heretofore executed and delivered a Master Indenture,
dated as of the date hereof, (the "Master Indenture" and, together with this
First Supplemental Indenture, the "Indenture"), providing for the issuance by
the Issuer from time to time of its collateralized export notes to be issued in
one or more series; and
WHEREAS, the Issuer, under the provisions of the Master Indenture, has duly
determined to make, execute and deliver to the Trustee this First Supplemental
Indenture to the Master Indenture in order to establish the form and terms of,
and to provide for the creation and issue of, a series of notes designated as
the "Arcel Finance 5.984% Senior Secured Notes due 2009" (the "2009 Notes") in
the aggregate principal amount of US$250,000,000; and
WHEREAS, all things necessary to make the 2009 Notes, when executed by the
Issuer and authenticated and delivered by the Trustee and issued upon the terms
and subject to the conditions hereinafter and in the Indenture set forth against
payment therefor, the valid, binding and legal obligations of the Issuer and to
make this First Supplemental Indenture a valid, binding and legal agreement of
the Issuer, have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH that, in order
to establish the terms of a Series of notes designated as the "Arcel Finance
5.984% Senior Secured Notes due 2009", and for and in consideration of the
premises and of the covenants contained in the Indenture and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed as follows:
ARTICLE I
CREATION OF THE SERIES OF NOTES
SECTION 1.01. Designation. (a) There is hereby created a Series of notes to
be issued pursuant to the Master Indenture and this First Supplemental Indenture
to be known as the "ARCEL Finance 5.984% Senior Secured Notes due 2009".
(b) In the event that any term or provision contained herein shall conflict
with or be inconsistent with any term or provision contained in the Master
Indenture, the terms and provisions of this First Supplemental Indenture shall
govern.
SECTION 1.02. Definitions. (a) Each capitalized term that is used herein
and is defined in the Master Indenture shall have the meaning specified in the
Master Indenture unless such term is otherwise defined herein.
(b) Whenever used in this First Supplemental Indenture, the following words
and phrases shall have the following meanings:
"2009 Note" has the meaning set forth in the recitals hereof.
"Accelerated Amortization Event" has the meaning set forth in Section 7.02
hereof.
"Acceleration Notice" has the meaning set forth in Section 6.03(a) hereof.
"Additional Amounts" means:
(a) all costs, expenses, taxes, fees and indemnities payable by the Issuer,
the Servicer, the Seller or the Parent to any person in respect of the 2009
Notes (or attributable to Issuer as provided in the next-following sentence)
under or with respect to the Master Indenture, any Supplemental Indenture, the
Receivables Purchase Agreement, the Parent Guarantee and the Enhancement
Agreement, including, without limitation,
(i) all indemnified amounts and other indemnities payable under the
Master Indenture, any Supplemental Indenture and the Receivables Purchase
Agreement (including amounts payable with respect to any applicable
withholding taxes),
(ii) all amounts of interest and principal due and payable but unpaid
with respect to any previous Collection Period pursuant to the Master
Indenture or any Supplemental Indenture,
(iii) the costs, expenses and draws payable under the Master
Indenture, any Supplemental Indenture, the Enhancement Agreement and the
Receivables Purchase Agreement and costs, expenses and draws payable under
the Insurance Agreement,
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(iv) all expenses, taxes, fees and indemnities payable by the Parent
under the Parent Guarantee, and
(v) all costs and expenses of the Trustee under the Indenture; and
(b) any amount due to the Collection Agent pursuant to Section 3.07 of the
Collection Agency Agreement that is attributable to the 2009 Notes as provided
in the nextfollowing sentence, but excluding the principal of, premium, if any,
and interest on the 2009 Notes. For any Additional Amount described in clause
(a) that is attributable to the Issuer generally and any amount described in
clause (b), the portion thereof attributable to the 2009 Notes will equal such
Additional Amount, multiplied by a fraction, the numerator of which is the
aggregate principal amount of the 2009 Notes outstanding as of the first day of
the Collection Period in which such Additional Amount first became due and
payable and the denominator of which is the aggregate principal amount of all
the 2009 Notes as of such day.
"Adjusted Required Amount" means the amount equal to the sum of: (i) the
aggregate outstanding principal amount of the 2009 Notes, (ii) the aggregate
accrued and unpaid interest then due on the 2009 Notes, and all interest to
accrue through the date on which the principal of, and interest on, the 2009
Notes is paid in full, and (iii) any and all Additional Amounts then due and
payable by the Seller, the Issuer, the Servicer or the Parent in respect of the
2009 Notes and any and all Additional Amounts to accrue in respect of the 2009
Notes through the date on which all amounts due with respect to the 2009 Notes
are paid in full.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purpose of this definition,
"control" when used with respect to any specified person means the power to (i)
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise or
(ii) vote 25% or more of the securities having ordinary voting power for the
election of directors of such person.
"Beneficial Owner" means the owner of a beneficial interest in a 2009 Note.
"Closing Date" means February 6, 2002.
"Collection Agent" has the meaning set forth in the preamble hereof.
"Company" has the meaning set forth in the preamble hereof.
"Consolidated Net Earnings" means, at any date of determination, the net
earnings, excluding extraordinary items, of the Parent and its consolidated
subsidiaries as set forth on the most recently available year-end consolidated
statements of operations of the Parent, stated in U.S. dollars and prepared in
accordance with U.S. GAAP.
"Consolidated Net Worth" means, at any date of determination, the
stockholders' equity less goodwill and other intangible assets as set forth on
the most recently available quarterly or year-end consolidated balance sheets of
the Parent, stated in U.S. dollars and prepared in accordance with U.S. GAAP.
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"Determination Date" has the meaning set forth in Section 24(f) of the
Master Indenture.
"DTC" means The Depository Trust Company.
"DTC Letter of Representations" means the agreement among the Depositary,
the Issuer and the Trustee, dated the Closing Date, which sets forth the method
of effecting book-entry transfers of 2009 Notes distributed through the
Depositary and certain related matters.
"DTC Participants" means persons who have accounts with DTC.
"Early Amortization Event " has the meaning set forth in Section 7.01
hereof.
"Enhancement Agreement" has the meaning set forth in Section 5.01 hereof.
"Enhancer" means XL Capital Assurance Inc. and its successors.
"Excess Collections " has the meaning set forth in Section 10(b) of the
Master Indenture.
"Final Payment Date" means February 1, 2009 or, if such day is not a
Business Day, then the next succeeding Business Day.
"First Supplemental Indenture" has the meaning set forth in the preamble
hereof.
"Fitch" means Fitch, Inc. and its successors.
"Fixed Rate Coupon" means a rate per annum equal to 5.984%.
"Global 2009 Note" has the meaning set forth in Section 2.01(a) hereof.
"Indebtedness" of any person means, without duplication, all indebtedness
of such person for borrowed money, all obligations of such person evidenced by
notes, bonds, debentures or other similar instruments, all capital lease
obligations of such person, all obligations of such person, contingent or
otherwise, as an account party or applicant under or in respect of acceptances,
letters of credit or similar arrangements and all guarantee obligations of such
person in respect of obligations of the kind referred to herein, in each case
determined in accordance with U.S. GAAP.
"Indemnity Agreement" means the Indemnity Agreement, dated February 6,
2002, among the Enhancer, the Parent, the Company and the Initial Purchaser.
"Indenture" has the meaning set forth in the recitals hereof.
"Initial Principal Balance" means the aggregate initial principal amount of
the 2009 Notes on the Closing Date, which is US$250,000,000.
"Initial Purchaser" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
"Insolvency Event" means proceedings are initiated against the Issuer, the
Company or the Parent, as the case may be, under any applicable liquidation,
insolvency, composition,
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reorganization or any other similar laws, or an application is made for the
appointment of an administrative or other receiver, manager or administrator, or
any such or other similar official is appointed, in relation to the Issuer, the
Company or the Parent, as the case may be, or in relation to the whole or a part
of the undertakings or assets of the Issuer, the Company or the Parent, as the
case may be; provided that this paragraph shall not apply to any proceedings
against the Issuer, the Company or the Parent, where the Issuer, the Company or
the Parent, as applicable, can demonstrate that any such proceedings are being
contested by the Issuer, the Company or the Parent, as the case may be, in good
faith, diligently and by appropriate proceedings in a competent court.
"Issuer" has the meaning set forth in the preamble hereof.
"Master Indenture" has the meaning set forth in the recitals hereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Service and its successors.
"Net Debt/Capitalization Ratio" means, as of the date of determination, the
ratio of (i) Total Net Debt to (ii) total Indebtedness plus the Consolidated Net
Worth of the Parent on the last day of the immediately preceding calendar
quarter.
"Noteholders" means the registered holders of the 2009 Notes.
"Optional Redemption" has the meaning set forth in Section 8.01 hereof.
"Optional Redemption Certificate" has the meaning set forth in Section
8.02(a) hereof.
"Optional Redemption Premium" means an amount equal to the excess, if any,
of (a) the present value of the future principal and interest payments scheduled
on the 2009 Notes discounted at a rate equal to the bid-side yield, determined
at 11:00 a.m. (New York City time) on the fourth Business Day prior to the date
of the scheduled redemption (as specified in the Indenture and the Receivables
Purchase Agreement), as indicated on Telerate page 500, of the actively traded
U.S. Treasury Note with a remaining maturity closest to the remaining weighted
average life of the 2009 Notes based on the remaining scheduled principal
payments plus 25 basis points over (b) the remaining principal amount of the
2009 Notes.
"Parent" has the meaning set forth in the preamble hereof.
"Parent Guarantee" has the meaning set forth in Section 2.02 hereof.
"Paying Agent Account" means each of the non-interest bearing segregated
trust account and related sub-accounts established and maintained by and with
the Trustee for the benefit of the Noteholders pursuant to Section 4.01 hereof.
"Principal Balance" means, when used with respect to any date, an amount
equal to the Initial Principal Balance minus the aggregate amount of payments of
principal to the Noteholders from time to time on or prior to such date;
provided, however, that the "Noteholders Principal Balance" shall not be reduced
by any amount of such payments if at any time such payment to the Noteholders is
rescinded or must otherwise be returned for any reason.
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"Rating Agency" means each of Moody's, Standard & Poor's and Fitch.
"Redemption Date" has the meaning set forth in Section 8.01 hereof.
"Redemption Price" for the 2009 Notes to be redeemed shall be equal to the
principal amount thereof plus the Optional Redemption Premium, together with
Additional Amounts, if any, due but unpaid at the Redemption Date.
"Regulation S Global 2009 Note" has the meaning set forth in Section
2.01(a) hereof.
"Required Reserve Amount" means: (i) for the period beginning on the
Closing Date and ending on the second Business Day immediately preceding the
21st Payment Date an amount equal to the scheduled interest payable on the 2009
Notes with respect to the next three (3) succeeding Collection Periods; and (ii)
for the period beginning on the Business Day immediately preceding the 21st
Payment Date and continuing so long as any of the 2009 Notes remain outstanding,
an amount equal to scheduled interest payable on the 2009 Notes with respect to
the next three (3) succeeding Collection Periods plus three times the amount of
scheduled principal next payable but unpaid with respect to the 2009 Notes.
"Reserve Account" has the meaning specified in Section 4.02(a) hereof.
"Restricted Definitive 2009 Note" has the meaning set forth in Section
2.01(a) hereof.
"Restricted Global 2009 Note" has the meaning set forth in Section 2.01(a)
hereof.
"Seller" has the meaning set forth in the preamble hereof.
"Series" has the meaning set forth in Section 1(a) of the Master Indenture.
"Series' Interest Percentage" has the meaning set forth in Section 8 of the
Master Indenture.
"Servicer" has the meaning set forth in the preamble hereof.
"Servicer Optional Redemption Certificate" has the meaning set forth in
Section 8.02(a) hereof.
"Standard & Poor's" means Standard & Poor's Rating Service and its
successors.
"Total Net Debt" means the aggregate principal amount of Indebtedness of
the Parent and its consolidated subsidiaries, at the last day of any calendar
quarter, less cash and readily marketable securities on such date.
"Trustee" has the meaning set forth in the preamble hereof.
All capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Master Indenture. Each capitalized term defined
herein shall relate only to the 2009 Notes and no other Series of notes issued
by the Issuer. The definitions
6
used herein and in the Master Indenture are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
The words "hereof", "herein" and "hereunder" and words of similar import
when used in this First Supplemental Indenture shall refer to this First
Supplemental Indenture as a whole and not to any particular provision of this
First Supplemental Indenture; references to any Article, Section or Exhibit are
references to Articles, Sections and Exhibits in or to this First Supplemental
Indenture unless otherwise specified; and the term "including" means "including
without limitation".
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ARTICLE II
THE 2009 NOTES; PARENT GUARANTEE
SECTION 2.01. The 2009 Notes. (a) 2009 Notes offered and sold outside the
United States to non-U.S. persons in offshore transactions will be sold in
reliance upon Regulation S and shall be issued in the form of interests in a
permanent Global Note substantially in the form set forth in Schedule II (the
"Regulation S Global 2009 Note"). 2009 Notes offered and sold within the United
States will be sold initially and may be resold only to (i) QIBs and (ii)
Institutional Accredited Investors. 2009 Notes offered and sold to QIBs shall be
issued in the form of a permanent Global Note substantially in the form set
forth in Schedule I (the "Restricted Global 2009 Note" and collectively with the
Regulation S Global 2009 Note, the "Global 2009 Notes"). Global 2009 Notes shall
be in fully-registered form and shall be deposited with the Trustee, at its New
York office, as custodian for the Depositary, and registered in the name of a
nominee of the Depositary, duly executed by the Issuer and authenticated by the
Trustee as hereinafter provided. The principal amount of the Restricted Global
2009 Note and the Regulation S Global 2009 Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, or the Depositary or the Depositary's nominee, as
the case may be, as hereinafter provided. 2009 Notes offered and sold to
Institutional Accredited Investors will be delivered only in fully registered,
definitive form. 2009 Notes (i) offered and sold to Institutional Accredited
Investors who are not QIBs or (ii) issued pursuant to Section 2.01 of this First
Supplemental Indenture in exchange for interests in Global 2009 Notes shall be
issued in the form of permanent certificated notes in registered form in
substantially the form set forth in Schedule III (the "Restricted Definitive
2009 Notes").
Unless and until Restricted Definitive 2009 Notes have been issued to the
Beneficial Owners in respect of Global 2009 Notes pursuant to Section 5(a) of
the Master Indenture:
(i) The provisions of this Section 2.01 shall be in full force and
effect;
(ii) The Trustee shall be entitled to deal with the Depositary for all
purposes of the Indenture (including the payment of principal of and
interest on the 2009 Notes and the giving of instructions or
directions hereunder) as the sole Noteholder and shall have no
obligation to the Beneficial Owners;
(iii) To the extent that the provisions of this Section 2.01 conflict
with any provisions of the Master Indenture, the provisions of this
Section 2.01 shall control;
(iv) The rights of Beneficial Owners shall be exercised only through
the Depositary and shall be limited to those established by law and
agreements between such Beneficial Owners and the Depositary and/or
the Participants. Pursuant to the DTC Letter of Representations,
unless and until Restricted Definitive 2009 Notes are issued in
respect of Global 2009 Notes pursuant to Section 5(a) of the Master
Indenture, the Depositary will make book-entry transfers among the
Participants and
8
receive and transmit payments of principal of and interest on the 2009
Notes to such Participants; and
(v) Subject to the rights and the prerogatives of the Controlling
Party, whenever the Master Indenture or this First Supplemental
Indenture requires or permits actions to be taken based upon
instructions or directions of Beneficial Owners evidencing a specified
percentage of the Principal Balance, the Depositary shall be deemed to
represent such percentage in respect of the 2009 Notes only to the
extent that it has received instructions to such effect from
Beneficial Owners and/or Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the 2009 Notes and has delivered such instructions to the Trustee.
(b) Whenever a notice or other communication to the Noteholders is required
under the Agreement, unless and until Restricted Definitive 2009 Notes shall
have been issued in respect of Global 2009 Notes pursuant to Section 5(a) of the
Master Indenture, the Trustee shall give all such notices and communications
specified herein to be given to Noteholders to the Depositary.
(c) The 2009 Notes constitute direct, unconditional and collateralized
obligations of the Issuer and shall rank not lower than pari passu in priority
of payment, without preference among themselves, with all of the existing and
future indebtedness of the Issuer. No Series of notes issued pursuant to the
Master Indenture will be senior to the 2009 Notes issued under this First
Supplemental Indenture, in right of payment or will have more than an equal and
ratable security interest with the 2009 Notes in the Receivables.
(d) Any Restricted Definitive 2009 Note delivered in exchange for an
interest in any Global 2009 Note pursuant to paragraph (a) of this Section 2.01
shall, except as otherwise provided in the Master Indenture, bear the applicable
legend regarding transfer restrictions set forth in Section 3(e) of the Master
Indenture.
SECTION 2.02. Parent Guarantee. Noteholders will have the benefit of an
unconditional and irrevocable guarantee (the "Parent Guarantee"), issued by the
Parent in favor of the Issuer for the benefit of the Noteholders and the
Enhancer, pursuant to which the Parent will unconditionally and irrevocably
guarantee punctual performance of all of the Seller's obligations under each of
the Transaction Documents and Note Documents to which the Seller is a party. The
Parent will be subrogated to the rights of each Noteholder to receive Payments
on its 2009 Notes until all principal, premium, if any, and interest with
respect to the 2009 Notes and any Additional Amounts have been paid in full.
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ARTICLE III
PAYMENT OF INTEREST AND PRINCIPAL
SECTION 3.01. Calculation of Interest. The 2009 Notes will bear interest
from and including the Closing Date to but excluding February 1, 2009 at the
rate of 5.984% per annum on the unpaid principal amount of the 2009 Notes from
time to time outstanding, payable monthly, except with respect to the first
Collection Period, which shall be paid pursuant to the terms of Section 3.01
hereof, in arrears on each Payment Date. Interest on the 2009 Notes will be
calculated on the basis of a 360-day year consisting of twelve 30-day months
and, in the case of an incomplete month, the number of days elapsed. Therefore,
the amount of interest payable with respect to the 2009 Notes on each Payment
Date shall be an amount equal to the product of (a)(i) the Fixed Rate Coupon
multiplied by (ii) the Principal Balance as of the close of business on the
immediately preceding Payment Date (after giving effect to all payments of
principal made to Noteholders on such preceding Payment Date, if any) and (b) a
fraction, the numerator of which is 30 days, and the denominator of which is
360; provided, however, with respect to the first Payment Date, the amount of
interest payable shall be equal to US$3,532,222.22.
SECTION 3.02. Payments. Payments made with respect to the initial 24
calendar months will consist of interest only. Payments with respect to the
subsequent 60 calendar months will consist of one payment of principal in the
amount of US$3,970,000, followed by 59 equal payments of principal, each in the
amount of US$4,170,000, in each case, together with interest due and payable on
the outstanding principal amount. Each such payment of interest and principal
shall be applied first to any accrued and unpaid interest and then to the due
and unpaid principal amount of the 2009 Notes. Interest in respect of the
installment of the principal repayable on any date will cease to accrue on the
due date for payment thereof, unless payment of such installment of principal is
improperly withheld or refused or default is otherwise made in respect of
payment thereof. In such event, interest will continue to accrue (after as well
as before any judgment) up to, but excluding, the date on which payment in full
of such installment of principal is made or (if earlier) the seventh day after
notice is duly given to the Noteholder thereof (either in accordance with the
notice provisions of the Master Indenture or this First Supplemental Indenture
or individually) that such payment will be made, provided that payment is in
fact made on or before such day.
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ARTICLE IV
CERTAIN ACCOUNTS
SECTION 4.01. Paying Agent Account. From and after the Closing Date, the
Trustee shall establish and maintain with itself a Paying Agent Account with
respect to the 2009 Notes, not in its own name but rather as Paying Agent for
the benefit of the Noteholders. Such Paying Agent Account shall at all times be
a segregated, non-interest bearing trust account. It is acknowledged and agreed
by the Trustee, the Issuer, the Seller, the Parent and the Servicer that the
Trustee shall have exclusive control over the Paying Agent Account; provided,
however, that (i) the Parent shall be permitted to deposit any amounts due under
the Parent Guarantee directly into the Paying Agent Account and (ii) the
Enhancer shall be permitted to deposit any amounts due under the Enhancement
Agreement directly to the Paying Agent Account.
SECTION 4.02. Reserve Account. (a) On the Closing Date, the Trustee will
establish and maintain with itself a segregated reserve account (the "Reserve
Account") over which the Trustee will have exclusive dominion and control for
the benefit of the Noteholders and the Enhancer.
(b) On the Closing Date, the Seller shall either: (i) deposit an amount
equal to the initial Required Reserve Amount for the 2009 Notes or (ii) deliver
to the Trustee an irrevocable standby letter of credit that complies with the
guidelines set forth in Section 4.02(f) below in an amount equal to the initial
Required Reserve Amount. So long as any Note remains outstanding or any
Additional Amount that is due and payable remains unpaid, the Issuer, the Seller
and the Servicer will on each date ensure that the amount on deposit in cash or
represented by a qualifying letter of credit in the Reserve Account is at least
equal to the Required Reserve Amount applicable to such date for the 2009 Notes.
(c) (i) Amounts held in the Reserve Account shall be invested in Eligible
Investments, as directed in writing by the Seller (if such investments are
reasonably available for purchase) registered in the name of the Trustee (or in
the name of such nominee or nominees as the Trustee shall direct) for the
benefit of the Enhancer and the Noteholders; provided that, if the Servicer
shall not have directed the Trustee to invest or reinvest any funds on deposit
for more than two Business Days in the Reserve Account, then the Trustee shall
notify the Issuer and the Servicer in writing. All Eligible Investments with
respect to the Reserve Account made during a Collection Period shall mature no
later than one Business Day prior to the Payment Date at the end of such
Collection Period and shall be held until their maturity; provided that if an
Accelerated Amortization Event or an Early Amortization Event shall occur or be
declared and be continuing, (A) the Trustee shall sell or cause to be sold or
otherwise reduce to cash all Eligible Investments then held in the Reserve
Account (without regard to their maturity date) as promptly as practicable but
in no event later than one Business Day prior to the Payment Date thereafter and
(B) thereafter the Trustee shall be instructed by the Seller to make, and shall
make in accordance with such instructions, only Eligible Investments that mature
on the Business Day immediately succeeding the day on which such Eligible
Investment is made (unless, in either case, the Collection Agent shall have
otherwise received payment in full of the Adjusted Required Amount).
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(ii) All requests of the Servicer to make Eligible Investments with
funds deposited to the Reserve Account shall specify the particular
investments to be made, shall certify that such investments constitute
Eligible Investments and shall be furnished to the Trustee.
(iii) The Trustee shall have no responsibility to make or cause to be
made any Eligible Investments with funds deposited to the Reserve
Account, unless instructed to do so, from time to time, by the
Servicer.
(iv) The Trustee shall follow the requests of the Servicer in
connection with the exercise of any and all voting and other
consensual rights pertaining to the Eligible Investments for any
purpose not inconsistent with the terms of the Indenture; provided
that the Servicer shall have given the Trustee at least five days'
prior written notice of the manner in which it intends to exercise any
such right.
(v) If any loss is realized upon the maturity, sale or other
disposition of any Eligible Investment of amounts in the Reserve
Account, the Trustee shall send a written notice to the Servicer
demanding the payment of an amount equal to any such loss and
specifying such amount. The Servicer will, upon demand by the Trustee,
pay to the Trustee for deposit in the Reserve Account the amount of
any such loss realized upon the maturity, sale or other disposition of
any Eligible Investment. The Trustee shall have no liability for any
loss resulting from any such investment or reinvestment or any sale of
any Eligible Investments made in respect of the Reserve Account in
accordance with the terms hereof.
(d) If,
(i) the sum of (A) the amount of cash on deposit in the Reserve
Account, (B) the principal amount of a qualifying letter of credit
used to fund the Reserve Account and (C) the aggregate value of the
Eligible Investments thereof (valued at their cost of acquisition)
exceeds the Required Reserve Amount, and
(ii) no event has occurred and is continuing that is, or would with
the passage of time or the giving of notice, or both, become, an Early
Amortization Event or an Accelerated Amortization Event,
the Trustee shall transfer, by wire transfer, all such excess to the Issuer, no
later than 1:00 p.m. (New York City time) in immediately available funds on each
such date that is a Business Day, to the Seller. If on any date such amount is
not at least equal to the Required Reserve Amount, the Seller shall, upon
written notice from the Trustee, deposit the difference into the Reserve Account
within two Business Days. Such excess shall be deemed to be comprised first of
earnings on Eligible Investments and second of other amounts held in the Reserve
Account. The Trustee's determination of whether an event has occurred that with
the passage of time or the
12
giving of notice, or both, would become an Early Amortization Event or an
Accelerated Amortization Event shall be based solely on its actual knowledge
thereof.
(e) If on the date that is five Business Days immediately preceding any
Payment Date sufficient funds to pay amounts due and payable with respect to the
2009 Notes on such Payment Date have not been deposited into the Accumulation
Account, the Trustee will apply amounts on deposit in the Reserve Account to the
payment of interest and principal of, and all Additional Amounts allocable to,
the 2009 Notes. The Trustee shall apply such amount in the following priority:
first, if the Reserve Account contains only cash, the Trustee shall
transfer an amount of cash into the Paying Agent Account with respect to the
2009 Notes such that, when added to the amount allocable to the 2009 Notes in
the Accumulation Account, the total will be equal to the Required Amount for the
2009 Notes with respect to the then-current Collection Period;
second, if the Reserve Account contains only a qualifying letter of credit,
draw upon that letter of credit and transfer the amount drawn into the Paying
Agent Account such that, when added to the amount allocable to the 2009 Notes in
the Accumulation Account, the total will be equal to the Required Amount for the
2009 Notes with respect to the then-current Collection Period; and
third, if the Reserve Account contains cash and a qualifying letter of
credit, first transfer cash and then, if necessary, draw on the letter of credit
and transfer the amount drawn into the Paying Agent Account such that, when
added to the amount allocable to the 2009 Notes in the Accumulation Account, the
total will be equal to the Required Amount for the 2009 Notes with respect to
the then-current Collection Period.
Immediately upon making such transfer from the Reserve Account into the Paying
Agent Account, the Trustee will notify the Issuer, the Seller, the Servicer, the
Parent, the Rating Agencies and the Enhancer of the amount so transferred and if
any such application of funds from the Reserve Account shall cause the balance
of the Reserve Account to fall below the Required Reserve Amount, the Seller
shall, not later than the close of business on the second Business Day
immediately succeeding receipt of such notice, either: (i) deposit an amount of
cash in immediately available funds or (ii) cause the letter of credit, if any,
to be increased such that the available balance in the Reserve Account is at
least equal to the applicable Required Reserve Amount.
(f) On the first Business Day after the date on which
(i) all amounts owing in respect of the 2009 Notes and all other
amounts owing to the Trustee and the Noteholders hereunder or
under any of the other Transaction Documents shall have been paid
in full, and after receipt of a written request therefor from the
Seller, or
(ii) the Seller shall have delivered to the Trustee (A) an
irrevocable standby letter of credit issued by a financial
institution in an amount equal to the amount then required to be
on deposit in the Reserve Account on
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terms satisfactory to the Rating Agencies and the Enhancer, (B) a
certificate of the Seller stating that the financial institution
issuing such letter of credit has been awarded long-term
unsecured debt obligation ratings of at least A3 and A-, and has
been awarded short-term unsecured debt obligation ratings of at
least P-1 and A-1 by Moody's and Standard & Poor's, respectively,
(C) such other agreements of the Seller and other documents as
the Rating Agencies and the Enhancer may require, and (D) a copy
of a letter notifying the Rating Agency and the Enhancer of the
delivery to the Trustee of the letter of credit described in
clause (ii)(A) above,
the interest granted to the Trustee by this Section 4.02 shall terminate and the
Trustee will pay all amounts then on deposit in the Reserve Account, together
with all investments and other proceeds thereof, free and clear of any lien or
security interest hereunder, as directed by the Servicer on behalf of the
Issuer.
From time to time, at the expense of the Seller, the Seller will promptly
execute and deliver all further instruments and documents and take all further
action that may be necessary or desirable, or that the Trustee, the Enhancer or
a Noteholder may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby and to enable the
Trustee to exercise and enforce its rights and remedies under this Article IV.
Upon any payment of amounts in the Reserve Account or investments or other
proceeds thereof to the Seller as provided in this Article IV, the Trustee will,
at the Seller's expense, execute and deliver such documents as the Seller shall
reasonably request to evidence the termination of the security interest granted
by this Section 4.02.
(g) If at any time the Required Reserve Amount is comprised, in whole or in
part, of a qualifying letter of credit, not later than the close of business on
the date ten Business Days immediately preceding the expiration date of such
letter of credit, the Seller shall deliver to the Trustee for deposit into the
Reserve Account either: (i) cash in an amount or (ii) a replacement qualifying
letter of credit having an effective date not later than the expiration date of
the expiring letter of credit and a stated principal amount, in each case, at
least equal to the stated principal amount of the expiring letter of credit. If
at the close of business on such date ten Business Days preceding such
expiration date, the Trustee shall not have received such cash or such letter of
credit, the Trustee shall draw the total stated amount of such expiring letter
of credit and shall deposit the proceeds of such drawing into the Reserve
Account.
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ARTICLE V
ENHANCEMENT AGREEMENT
SECTION 5.01. Enhancement Agreement. Pursuant to a financial guaranty
insurance policy (the "Enhancement Agreement") issued by XL Capital Assurance
Inc. (the "Enhancer"), the Enhancer will agree unconditionally and irrevocably
to guarantee the timely payment of interest on and scheduled principal of the
2009 Notes to the Trustee on behalf of the Noteholders as set forth in Exhibit A
hereto. Notwithstanding any provision to the contrary in the Master Indenture or
this First Supplemental Indenture, all amounts received by the Trustee from the
Enhancer will be deposited into the Paying Agent Account with respect to the
2009 Notes for payment solely to the Noteholders in accordance with the terms of
the Enhancement Agreement. The Enhancement Agreement does not guarantee the
payment of the Optional Redemption Premium payable with respect to any optional
redemption of the 2009 Notes or the payment of Additional Amounts with respect
to the 2009 Notes.
SECTION 5.02. The Enhancer as Controlling Party. Notwithstanding anything
to the contrary herein or in any of the Transaction Documents or the Note
Documents, during the time that the Enhancer is the Controlling Party with
respect to the 2009 Notes, (i) the Enhancer shall exercise, in its sole
discretion, all rights and prerogatives concerning control or discretion with
respect to the 2009 Notes under the Transaction Documents and the Note Documents
which the Noteholders may otherwise exercise or enjoy, and (ii) the Trustee will
look solely to the guidance of the Enhancer, exercised in its sole discretion,
concerning any action or omission to take action under any of the Transaction
Documents or the Note Documents, whether or not such action or omission to take
action may otherwise have been taken at the direction of the Noteholders.
SECTION 5.03. Access to Information. Notwithstanding anything to the
contrary herein or in any of the Note Documents or the Transaction Documents,
during the time that the Enhancement Agreement is outstanding and in effect with
respect to the 2009 Notes, the Enhancer shall be entitled to receive all
reports, notices or information it may request concerning the transactions and
parties related to the Transaction Documents and the Note Documents as it would
otherwise receive if at such time it were the Controlling Party with respect to
each Series of notes issued under the Master Indenture.
15
ARTICLE VI
PAYMENTS AND REPORTS TO
NOTEHOLDERS
SECTION 6.01. Priority of Payment on Payment Dates.
On the Payment Date related to each Collection Period, provided there has
been no occurrence or declaration of an Early Amortization Event or an
Accelerated Amortization Event, the Trustee shall make payments out of amounts
paid by the Collection Agent from the Collection Account into the Accumulation
Account pursuant to the Collection Agency Agreement and proceeds thereof, if
any, and the Paying Agent shall make payments out of funds on deposit in the
related Paying Agent Account, each as set forth in Section 11(a) of the Master
Indenture.
SECTION 6.02. Priority of Payment on Payment Dates Following the Occurrence
of an Early Amortization Event.
Not later than 10:30 a.m. (New York City time) on each Payment Date
following the occurrence and continuation of an Early Amortization Event with
respect to the 2009 Notes, and until such event has been corrected or waived,
the Trustee on behalf of the Noteholders and the Enhancer, so long as the
Insurance Agreement remains in full force and effect, will be entitled to
receive, on each Payment Date during the continuation of such Early Amortization
Event, (a) the aggregate amount of interest accrued on the 2009 Notes with
respect to the related Collection Period, plus (b) the scheduled principal
payment, if any, with respect to the 2009 Notes on such Payment Date, plus (c)
two times the amount of the maximum scheduled principal payment with respect to
any subsequent Payment Date for the 2009 Notes. In such event, Collections in
such amount and all other amounts allocable to the 2009 Notes, including all
Additional Amounts, will be transferred by the Collection Agent to the
Accumulation Account and thereafter to the applicable Paying Agent Account for
distribution by the Paying Agent to the Noteholders, the Enhancer and the other
recipients of Additional Amounts on each such Payment Date until such Early
Amortization Event has been cured or until all accrued interest on and all
scheduled principal payments and Additional Amounts with respect to the 2009
Notes have been paid in full. On each Payment Date, the Paying Agent will apply
all amounts on deposit in the Paying Agent Account in the following order of
priority:
first, to satisfy when due all Additional Amounts due but unpaid to the
Collection Agent, the Trustee and any Paying Agent with respect to the 2009
Notes;
second, to pay to the Noteholders first, accrued but unpaid interest on the
2009 Notes and then all unpaid scheduled principal of the 2009 Notes on such
Payment Date;
third, to pay Additional Amounts due and payable to the Enhancer;
fourth, to pay the remaining unpaid principal of the 2009 Notes as a
prepayment of the last outstanding scheduled maturities of principal until all
principal on the 2009 Notes has been paid in full; and
16
fifth, to pay all other Additional Amounts that are outstanding in respect
of the 2009 Notes.
SECTION 6.03. Priority of Payment on Payment Dates Following the Occurrence
of an Accelerated Amortization Event.
(a) Upon the occurrence of an Accelerated Amortization Event with respect
to the 2009 Notes, the Trustee, the Issuer, the Servicer, the Seller and the
Parent shall promptly notify the Collection Agent, the Issuer, the Seller, the
Servicer, the Parent, the Enhancer, a Responsible Officer of the Trustee and the
Rating Agencies, as applicable. With respect to the Accelerated Amortization
Event set forth in Section 7.02(m) hereof, the Trustee shall promptly, and with
respect to the Accelerated Amortization Events set forth in Section 7.02(a)
through (l), inclusive, and (n) and (o) hereof, the Trustee shall promptly, upon
receipt of written notice (each, an "Acceleration Notice") from the Enhancer, if
the Controlling Party, or otherwise from the holders of not less than 35% of the
outstanding 2009 Notes, notify the Collection Agent, the Issuer, the Seller, the
Servicer, the Parent, the Enhancer and the Rating Agencies of: (i) the Adjusted
Required Amount, (ii) the amount then on deposit in the Accumulation Account
allocable to the 2009 Notes and (iii) the amount equal to the difference between
(i) and (ii) above, to be deposited into the Accumulation Account and made
available for payment to the Noteholders. The Seller will be required, not later
than the date that is two Business Days thereafter, to deposit such amount with
respect to the 2009 Notes into the Accumulation Account for the benefit of the
Noteholders the Enhancer, the Trustee and the other recipients of Additional
Amounts, the Trustee shall thereafter cause the Adjusted Required Amount to be
transferred from the Accumulation Account to the Paying Agent Account on or
prior to the Business Day next preceding the related Payment Date. Upon receipt
of notification by the Trustee of the delivery of an Acceleration Notice, the
Collection Agent shall cease to pay any amount deposited into the Collection
Account to or at the direction of the Servicer on behalf of the Issuer as Excess
Collections and shall hold all such funds and any funds subsequently paid into
the Collection Account during the continuation of such Accelerated Amortization
Event, subject to the instruction of the Trustee.
(b) Any such acceleration of the principal amount of the 2009 Notes based
on delivery of an Acceleration Notice may be waived or reversed by the Enhancer,
if the Controlling Party, or otherwise by the vote of the holders of not less
than 51% of the aggregate principal amount of 2009 Notes at such time
outstanding. All other waivers or decisions to be made by the Controlling Party
or the Noteholders, as the case may be, shall be conducted according to the
terms of Section 21 of the Master Indenture. After the occurrence or declaration
of an Accelerated Amortization Event with respect to one or more Series of notes
and until the Adjusted Required Amount with respect to all such Series of notes
is paid in full, the Collection Agent will pay into the Accumulation Account and
the Trustee will distribute all Collections and other amounts held by it based
on each Series' Interest Percentage. On the day the Seller deposits the Adjusted
Required Amount in respect of the 2009 Notes into the Accumulation Account, the
Trustee will distribute such amount to the respective Series' Paying Agent
Account for application to the payment of the Adjusted Required Amount with
respect to the 2009 Notes. If an Adjusted Required Amount is owing in respect of
more than one Series of notes and the Seller pays only a portion of the
aggregate Adjusted Required Amount that is owing with respect to all notes of
such Series, such payment will be allocated ratably among the applicable Series
in
17
accordance with their respective outstanding Adjusted Required Amounts at the
time of such deposit. At any time after the Trustee has declared an Adjusted
Required Amount with respect to an Accelerated Amortization Event to be due and
payable, the Trustee upon the direction of the Enhancer, if the Controlling
Party, or otherwise the holders of a Majority in Interest of the 2009 Notes by
written notice to the Issuer, the Seller and the Servicer may rescind and annul
such declaration and thereby annul its consequences if: (i) there has been paid
to or deposited with the Trustee an amount sufficient to pay all Additional
Amounts with respect to notes of any Series then due under the Master Indenture,
this Supplemental Indenture, or any of the Note Documents or the Transaction
Documents and (ii) the Trustee has actual knowledge that all other Accelerated
Amortization Events in respect of notes of each Series have been cured or waived
in writing.
In any such event the Paying Agent will apply all amounts on deposit in the
Paying Agent Account in the following order of priority:
first, to satisfy when due all Additional Amounts due but unpaid to the
Collection Agent, the Trustee and any Paying Agent with respect to the 2009
Notes;
second, to pay to the Noteholders, first accrued but unpaid interest on the
2009 Notes and then all unpaid scheduled principal of the 2009 Notes on such
Payment Date;
third, to pay Additional Amounts due and payable to the Enhancer;
fourth, to pay the remaining unpaid principal of the 2009 Notes to
Noteholders; and
fifth, to pay all other Additional Amounts that are outstanding in respect
of the 2009 Notes.
SECTION 6.04. Method of Payment. The Paying Agent shall distribute to the
Noteholders of record on the Record Date with respect to each Payment Date or
the Redemption Date the amounts to be distributed to such Noteholders pursuant
to this Article VI, by wire transfer of immediately available funds (provided
the Trustee shall have received wire transfer instructions for the 2009 Notes on
or prior to such Record Date). If the Trustee shall not have received such wire
transfer instructions on or prior to such Record Date, Payments will be made by
the Paying Agent by check mailed to such Noteholder's address appearing in the
Register for the 2009 Notes.
SECTION 6.05. Annual Noteholders' Statement. On or before January 31 of
each calendar year, beginning with January 31, 2003, the Servicer shall provide
to the Principal Paying Agent and the Principal Paying Agent shall forward or
cause to be forwarded to each person who at any time during the preceding
calendar year was a Noteholder and to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., a statement
prepared by the Servicer containing the information which is required to be
contained in the Collection Period Collection Account Statements and Collection
Period Constituent Account Statements provided to Noteholders pursuant to
Section 3.13 of the Collection Agency Agreement, aggregated for such calendar
year or the applicable portion thereof during which such Person was a
Noteholder, together with other information as is
18
required to be provided under the United States Internal Revenue Code and such
other customary information as is necessary to enable the Noteholders to prepare
their tax returns.
SECTION 6.06. Receivables Report. On or before the Determination Date, the
Parent and the Seller will deliver to the Issuer, the Trustee, the Rating
Agencies and the Enhancer (and the Trustee will, upon written request by any
Noteholder, deliver within five Business Days after the receipt thereof a copy
of such report to such Noteholder) a report which provides, among other
information, the total U.S. dollar and Euro amount (and other currencies, if
applicable) of Receivables generated, for the six immediately preceding months,
if any, as well as information to determine compliance with covenants relating
to generation and collection of Receivables.
19
ARTICLE VII
EARLY AMORTIZATION EVENTS;
ACCELERATED AMORTIZATION EVENTS
SECTION 7.01. Early Amortization Events. An Early Amortization Event with
respect to the 2009 Notes will occur upon the occurrence of the following:
(a) the Consolidated Net Worth as of the last day of the most recent
calendar quarter falls below US$1,500,000,000 (with such amount increasing by
25% of the Consolidated Net Earnings less dividends declared each year
thereafter);
(b) the Net Debt/Capitalization Ratio of the Parent as at the last day of
each of three consecutive calendar quarters is greater than 0.6 to 1.0;
(c) the amount obtained by dividing the aggregate amount of Collections
deposited to the Collection Account (including Collections being used to
collateralize borrowing by the Issuer under Bank Loans) in the six most recent
consecutive Collection Periods by the number six is less than the product of (i)
the largest Aggregate Required Amount for any six subsequent Collection Periods
divided by the number six and (ii) 2.5;
(d) the amount obtained by dividing the aggregate amount of Collections
deposited to the Collection Account (including Collections being used to
collateralize borrowings by the Issuer under Bank Loans) in the three most
recent consecutive Collection Periods by the number three is less than the
product of (i) the largest Aggregate Required Amounts for any three subsequent
Collection Periods divided by the number three and (ii) 2.0; or
(e) an Accelerated Amortization Event (other than the Accelerated
Amortization Event set forth under Section 7.02(m) hereof), so long as such
event has not been cured or waived and so long as an Acceleration Notice has not
been delivered.
For purposes of subparagraphs (c) and (d) above, (A) the amount outstanding
during each such Collection Period of the euro-denominated Eligible Receivables
generated shall be notionally converted into U.S. Dollars at the Euro/U.S.
dollar spot exchange rate displayed on the FXFX Page (or such other page as may
replace such page) as designated on the Reuters Monitor Money Rates Service at
12:00 noon (New York City time) on any Determination Date, and (B) the amount
outstanding during each Collection Period of Other Currency-denominated Eligible
Receivables generated shall be converted notionally into U.S. Dollars at the
Other Currency/U.S. Dollar spot exchange rate displayed on the applicable page
on the Reuters Monitor Money Rates Market Service at 12:00 noon (New York City
time) on any Determination Date.
On each Payment Date following the occurrence and during the continuation
of an Early Amortization Event with respect to the 2009 Notes, and until such
condition is corrected or waived, the Noteholders will be entitled to receive,
on each Payment Date during the continuation of such Early Amortization Event,
(a) the aggregate amount of interest accrued and unpaid on the 2009 Notes for
such Payment Date plus (b) the scheduled principal payment with respect to such
Payment Date, plus (c) two times the amount of the maximum scheduled
20
principal payment with respect to any subsequent Payment Date for the 2009
Notes. In such event, Collections in such amount and all other amounts allocable
to the 2009 Notes, including all Additional Amounts, will be transferred by the
Collection Agent to the Accumulation Account and distributed to the Noteholders
on each such Payment Date until such Early Amortization Event has been cured or
until all principal and interest on the 2009 Notes has been paid in full.
SECTION 7.02. Accelerated Amortization Events. An Accelerated Amortization
Event with respect to the 2009 Notes will occur upon the occurrence of the
following:
(a) the amount distributed to Noteholders (including any Seller Advance and
any payment under the Parent Guarantee) for any Collection Period shall be less
than the Required Amount for the 2009 Notes for such Collection Period;
provided, with respect to the notes of any Series, if the Seller is obligated to
make Seller Advances with respect to any four consecutive Collection Periods or
with respect to a total of eight Collection Periods, an Accelerated Amortization
Event shall occur with respect to the 2009 Notes; and provided that failure on
any Payment Date following the occurrence and during the continuation of any
Early Amortization Event to pay any amount in excess of the aggregate amount of
interest accrued on and the scheduled principal payment with respect to the 2009
Notes on such Payment Date shall not constitute an Accelerated Amortization
Event;
(b) any of the representations and warranties made by the Issuer, the
Seller or the Parent, or any statement made by the Issuer, the Seller or the
Parent in any report, notice, certificate or other document delivered by it
thereunder or in connection therewith or deemed made thereunder, is or proves to
have been incorrect or misleading in any material respect when made or deemed
made;
(c) except with respect to events set forth in clauses (a), (d), (e), (f),
(i), (j), (k), (m) or (o), the Issuer, the Seller or the Parent fails to perform
or observe any term, covenant, agreement, or obligation under the Master
Indenture, any Supplemental Indenture, the 2009 Notes or any other Note Document
or Transaction Document to which it is a party on its part to be performed or
observed and, if capable of remedy, such failure shall remain unremedied for 30
days after the earlier of the date on which (i) written notice has been given to
the Issuer, the Seller or the Parent and (ii) the Issue r, the Seller or the
Parent has actual knowledge of such failure;
(d) the Seller fails to make any Seller Advance on or prior to the second
Business Day immediately following delivery by the Trustee of notice that such
Seller Advance is required; the Parent fails to make any payment required under
the terms of the Parent Guarantee on or prior to the first Business Day
immediately after delivery by the Trustee of notice that such payment is
required, and solely with respect to the payment of interest on and scheduled
principal, if any, with respect to the 2009 Notes due and payable on any Payment
Date, the Enhancer fails to make any payment required under the terms of the
Enhancement Agreement; provided that failure on any Payment Date following the
occurrence and during the continuation of any Early Amortization Event to pay
any amount in excess of the aggregate amount of interest accrued on and the
scheduled principal payment with respect to the 2009 Notes on such Payment Date
shall not constitute an Accelerated Amortization Event;
21
(e) the Issuer, the Seller, the Servicer (provided that the Servicer is the
Company or any Affiliate thereof), or the Parent fails to pay any other amount
due from it under or with respect to the Note Documents or the Transaction
Documents, including Additional Amounts, in accordance with the terms thereof
(i.e., costs, expenses and indemnities) and within two Business Days of the
earlier of the date such sum is due or demanded; and provided that failure on
any Payment Date following the occurrence and during the continuation of any
Early Amortization Event to pay any amount in excess of the aggregate amount of
interest accrued on and the scheduled principal payment with respect to the 2009
Notes on such Payment Date shall not constitute an Accelerated Amortization
Event;
(f) any legal action or proceeding of or before any court, arbitrator or
governmental agency is commenced that is not being defended in good faith by
appropriate means, or judgment or order rendered which has or which is
reasonably likely to have a material adverse effect on the Issuer's, the
Seller's or Parent's respective business, properties, results of operations or
prospects, the ability of the Issuer, the Seller, the Servicer (provided the
Servicer is the Company or any Affiliate thereof) or the Parent to perform their
respective obligations under the Master Indenture, any Supplemental Indenture,
any 2009 Note or the Transaction Documents, or rights and remedies of the
Issuer, the Trustee and the Noteholders under the Master Indenture, any
Supplemental Indenture, any 2009 Note or the Transaction Documents, or the
collectibility of the Receivables;
(g) the Issuer, the Seller, the Servicer (provided the Servicer is the
Company or any Affiliate thereof) or the Parent fails to pay any amount in
respect of Indebtedness, including, without limitation, the notes of any other
Series, outstanding in a principal amount of at least US$20,000,000 in the
aggregate (or its equivalent in any other currency or currencies) when the same
becomes due and payable, and such failure shall continue beyond any applicable
grace period with respect thereto; or any other event shall occur or condition
shall exist and remain unremedied beyond any applicable grace period with
respect thereto under any agreement or instrument relating to any such
Indebtedness if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable, or required to be prepaid,
redeemed (other than by a regularly scheduled required prepayment or an optional
prepayment or redemption of the Issuer, the Seller, the Servicer or the Parent),
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof;
(h) any final nonappealable judgment or order for the payment of money
shall be rendered against the Issuer, the Seller, the Servicer (provided the
Servicer is the Company or any Affiliate thereof) or the Parent, and such
judgment or order is in an amount which, when aggregated with the amount of all
other unsatisfied final judgments or orders against the Issuer, the Seller, the
Servicer or the Parent, exceeds US$20,000,000 (or its equivalent in any other
currency or currencies) and either: (i) such judgment or order is not satisfied
within the period prescribed by applicable law, (ii) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order of, and
(iii) there shall be any period of 90 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal being
diligently pursued by the Issuer, the Seller, the Servicer or the Parent or
otherwise, shall not be in effect; provided, that for purposes of this
subsection (h) an "acao de execucao por
22
titulo extrajudicial" under Brazilian law shall not be considered a final
nonappealable judgement or order for the payment of money;
(i) any material provision of any of the Note Documents or the Transaction
Documents ceases to be enforceable or otherwise in full force and effect;
provided, that the Seller may terminate any Sale to any Customer and may cancel
any invoice (each containing an Irrevocable Notification) with respect thereto
in accordance with its usual commercial practices and consistent with procedures
habitually used in the industry;
(j) the Issuer shall for any reason cease to have ownership of, and all
right, title and interest in, the Collateral free and clear of all liens and
encumbrances, other than the security interests granted to the Trustee for the
benefit of the holders of notes of any Series;
(k) the grant of the security interest by the Issuer to the Trustee
pursuant to the terms of the Master Indenture, any Supplemental Indenture and
the Security Agreement shall for any reason cease to be a fully perfected first
priority security interest;
(l) any authorization, approval, license, consent or registration required
in or by the laws of Brazil, Panama, the Cayman Islands or the United States (or
any State thereof) has not been obtained by the Issuer, the Seller or the
Parent, as the case may be, or ceases to be in full force and effect, or any
legislative, executive or judicial action is taken, which absence or action
materially interferes with (i) the performance by the Issuer, the Seller or the
Parent of its respective obligations under any of the Note Documents or the
Transaction Documents or the operations of its respective business as set forth
herein or (ii) enforcement by the Trustee on behalf of the holders of notes of
any Series or on its own behalf of any of its rights under the Note Documents or
the Transaction Documents;
(m) an Insolvency Event with respect to the Issuer, the Parent or the
Seller occurs and, with respect to the Seller, the Parent shall not have timely
taken all actions set forth in Section 24(e) of the Master Indenture or the
Parent is wound-up and dissolved for any reason under applicable law, including,
without limitation, as a result of action by the shareholders of the Parent;
(n) the Enhancer shall have advised a Responsible Officer of the Trustee
that an event of default shall have occurred and is continuing under the
Insurance Agreement among the Enhancer and the Company; or
(o) merger or consolidation of the Parent other than as permitted under
Section 24(d) of the Master Indenture.
23
ARTICLE VIII
REDEMPTION
SECTION 8.01. Optional Redemption. The 2009 Notes may be redeemed at the
option of the Issuer in whole or in part, at any time and from time to time, at
the Redemption Price thereof plus accrued and unpaid interest thereon to the
date of redemption (the "Redemption Date") (such redemption, the "Optional
Redemption"). The Issuer shall exercise its option to redeem the 2009 Notes at
the request of the Servicer, provided, that the Seller has deposited the
Redemption Price plus accrued and unpaid interest with respect to the 2009 Notes
to be redeemed to the Redemption Date with the Trustee in the Accumulation
Account, as set forth below.
SECTION 8.02. Notice of Optional Redemption.
(a) The election of the Issuer to redeem the 2009 Notes in whole or in part
shall be evidenced by delivery of notice in the form of a certificate (a
"Optional Redemption Certificate") executed by an officer of the Issuer and
delivered to the Trustee. If the Issuer is not redeeming all outstanding 2009
Notes, then the Issuer shall deliver to the Trustee, at least 45 days prior to
the Redemption Date, a certificate of a Responsible Officer of the Issuer
instructing the Trustee to select the 2009 Notes to be redeemed pursuant to
Section 8.03 hereof. The Servicer shall provide the Trustee, the Enhancer, each
Rating Agency that rates the 2009 Notes, the Issuer, the Seller and the Parent a
certificate (a "Servicer Optional Redemption Certificate") setting forth the
Redemption Price, including the calculation thereof. The Optional Redemption
Certificate and the Servicer Optional Redemption Certificate shall be delivered
by the Servicer not less than 30 days nor more than 45 days prior to the
Redemption Date, and shall specify such Redemption Date and all other
information necessary for the Trustee to provide the Enhancer and the holders of
notes of each Series being redeemed notices of such Optional Redemption pursuant
to the terms of the Indenture. The Trustee shall be entitled to rely
conclusively upon the information so furnished by the Servicer in the Optional
Redemption Certificate and shall be under no duty to check the accuracy or
completeness thereof. An Optional Redemption Certificate shall be irrevocable
and, upon delivery to the Trustee and the Seller shall be obligated on behalf of
the Issuer to make the payment or payments to the Trustee referred to therein at
least two Business Days prior to such Redemption Date for deposit by the Trustee
into the Accumulation Account.
(b) Notice of Optional Redemption shall be given by the Trustee to the
Enhancer and the Noteholders with a copy to the Issuer, the Seller, the
Servicer, the Parent, the Collection Agent and the Enhancer upon the mailing by
first-class postage prepaid to each Noteholder at the address of such Noteholder
as it appears in the Register not less than 15 days nor more than 30 days prior
to the Redemption Date.
(c) All notices of Optional Redemption provided to the Enhancer and the
Noteholders shall state:
(i) the Redemption Date;
24
(ii) the Redemption Price;
(iii) that on the Redemption Date the Redemption Price will become due
and payable upon each such 2009 Note so to be redeemed;
(iv) if the Issuer is redeeming some but not all of the outstanding
2009 Notes, that on and after the Redemption Date, upon surrender of a
redeemed 2009 Note, the Noteholder thereof will receive, without
charge, a new 2009 Note or 2009 Notes in authorized denominations for
the principal amount, if any, of the 2009 Note remaining unredeemed,
if any; and
(v) the place or places where such 2009 Notes so to be redeemed are to
be surrendered for payment of the Redemption Price.
(d) Notice of Optional Redemption having been provided to the Enhancer and
the Noteholders as aforesaid, the 2009 Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified. Upon surrender of any such 2009 Notes for redemption in accordance
with such notice, such 2009 Notes shall be paid by the Principal Paying Agent or
Paying Agent on behalf of the Issuer on the Redemption Date; provided that
moneys sufficient therefor have been deposited with the Trustee for payment to
the Enhancer and the Noteholders.
SECTION 8.03. Selection of 2009 Notes to Be Redeemed in Part. (a) If the
Issuer chooses to redeem some but not all outstanding 2009 Notes on a Redemption
Date, the Trustee shall select the 2009 Notes to be redeemed in compliance,
based on an opinion of counsel furnished to the Trustee and the Enhancer by the
Servicer not less than 30 days nor more than 45 days prior to the redemption
date, with the requirements of the Luxembourg Stock Exchange and on a pro rata
basis, by lot or in another fair and reasonable manner chosen by the Trustee.
The Trustee shall make the selection from the outstanding 2009 Notes not
previously called for redemption. The Trustee shall promptly notify the Issuer,
the Servicer, the Seller, the Parent and the Enhancer in writing of the 2009
Notes selected for redemption and, in the case of any 2009 Notes selected for
partial redemption, the principal amount of such 2009 Notes to be redeemed. In
the event of a partial redemption by lot, the Trustee shall select the
particular 2009 Notes to be redeemed not less than 15 nor more than 60 days
prior to the Redemption Date. The Trustee may select for redemption portions
(equal to the denomination(s) specified for the 2009 Notes) of the principal of
2009 Notes that have denominations larger than a denomination specified for the
2009 Notes, provided that after such partial redemption the remaining principal
amount of such 2009 Note shall be a denomination specified for such 2009 Note.
No holder of any 2009 Note selected for redemption by the Trustee may transfer
such 2009 Note from the date of such selection to the Redemption Date. All
provisions herein relating to redemption of 2009 Notes shall relate, in the case
of any 2009 Note redeemed or to be redeemed only in part, to the portion of the
principal amount of that 2009 Notes which has been or is to be redeemed.
(b) Upon surrender of a 2009 Note that is to be redeemed in part, the
Issuer shall execute, and upon proper order the Trustee shall authenticate and
make available for delivery to such Noteholder at the expense of the Issuer, a
new 2009 Note or 2009 Notes, in any
25
authorized denominations requested by such Noteholder, in an aggregate principal
amount equal to, and in exchange for, the unredeemed portion of the principal of
the 2009 Note surrendered.
(c) The Servicer shall notify the Trustee, the Issuer, the Seller, the
Parent, the Enhancer and the Rating Agencies of the aggregate principal amount
of 2009 Notes remaining outstanding, if any, immediately following any
redemption of the 2009 Notes and the Required Amount, if any, with respect
thereto payable on the next Payment Date.
SECTION 8.04. Rights of Noteholders Following Optional Redemption.
Notwithstanding anything to the contrary herein or in any Note Document or
Transaction Document, if an Optional Redemption Certificate has been delivered
to the Trustee by the Servicer on behalf of the Issuer and the Seller shall have
furnished to the Issuer and the Issuer shall have paid to the Trustee for the
benefit of the Noteholders and the Enhancer with respect to any 2009 Notes
surrendered for redemption (i) the Redemption Price and (ii) all other amounts
due with respect to such 2009 Notes under the 2009 Notes, any other Note
Document and any Transaction Document, then neither the Noteholders with respect
to any 2009 Notes surrendered for redemption nor the Trustee on their behalf
shall any longer be entitled to exercise any of the rights of the Noteholders
with respect to any 2009 Notes surrendered for redemption other than the rights
of such Noteholders to receive payment of such amounts from the Paying Agents.
The occurrence of an Accelerated Amortization Event whether before or after such
payment by the Issuer to the Trustee for the benefit of such Noteholders and the
Enhancer shall not entitle such Noteholders, the Enhancer or the Trustee on
their behalf after such payment to declare the principal of any 2009 Notes then
outstanding to be due and payable on any date prior to the Redemption Date. The
funds paid to the Trustee shall be used to redeem the 2009 Notes on the
Redemption Date.
SECTION 8.05. Payments Following Optional Redemption. Except as otherwise
provided in Sections 8.02 and 8.04 hereof, the amounts credited by the
Collection Agent to the Accumulation Account pursuant to the Collection Agency
Agreement on the Redemption Date shall be distributed by the Trustee to the
Paying Agent Account for distribution by the Paying Agents on such Redemption
Date in the following order of priority:
first, to satisfy when due all Additional Amounts due but unpaid to the
Collection Agent, the Trustee and any Paying Agent with respect to any 2009
Notes surrendered for redemption on such Redemption Date;
second, to pay to the Noteholders, first accrued but unpaid interest and
then all unpaid scheduled principal of the 2009 Notes on such Redemption Date,
in each case with respect to any 2009 Notes surrendered for redemption;
third, to pay Additional Amounts due and payable to the Enhancer with
respect to any 2009 Notes surrendered for redemption on such Redemption Date;
fourth, to pay the remaining unpaid principal of the 2009 Notes to
Noteholders with respect to any 2009 Notes surrendered for redemption on such
Redemption Date; and
26
fifth, to pay all other Additional Amounts that are outstanding with
respect to any 2009 Notes surrendered for redemption.
27
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01. Ratification of Master Indenture. As supplemented by this
First Supplemental Indenture, the Master Indenture is in all respects ratified
and confirmed and the Master Indenture as so supplemented by this First
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 9.02. Counterparts. This First Supplemental Indenture may be
executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 9.03. Limitation on Responsibility of the Trustee, Paying Agent and
Registrar. None of the Trustee, any Paying Agent or Registrar shall be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this First Supplemental Indenture, or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Issuer,
the Parent, the Seller and the Servicer.
SECTION 9.04. Limited Recourse to the Issuer. Each party hereto hereby
agrees that the Issuer's obligations hereunder shall be limited recourse
obligations of the Issuer, with recourse being limited to the Collateral. None
of the directors, shareholders, officers, employees or agents of the Issuer
shall be personally liable to make any payments on such obligations. The Issuer
will have no material assets available for payments on such obligations other
than the assets comprising the Collateral. After the Collateral has been fully
realized and exhausted (including all rights against the Company in connection
therewith), all sums due but still unpaid in respect of the Issuer's obligations
hereunder shall be extinguished, and the other parties hereto shall not have the
right to proceed against the Issuer or any of its directors, shareholders,
officers, employees or agents for the satisfaction of any monetary claim or for
any deficiency judgment remaining after foreclosure of any property included in
the Collateral. No party hereto (or any agent on their behalf) may seek to
enforce rights against the Issuer with respect to any obligations of the Issuer
hereunder by applying to wind up the Issuer.
SECTION 9.05. Notices. Unless otherwise stated herein, all notices,
reports, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission or similar writing) and shall be given
to such party at its address or facsimile transmission number set forth above or
such other address or facsimile transmission number as such party may hereafter
specify for the purpose by notice to the other party. Each such notice, request
or other communication shall be effective (i) if given by facsimile
transmission, when such facsimile is transmitted to the facsimile transmission
number specified in or pursuant to this Section 9.05 and, on the same day, a
copy of such notice is sent by express courier that customarily obtains a
receipt, (ii) three Business Days after being sent by express courier that
customarily obtains a receipt or (iii) if given by any other means, when
delivered against receipt at the address specified in or pursuant to this
Section 9.05; provided, however, that notices, requests and other communications
given to the Trustee shall not be deemed effective until actually received by
the Trustee. All notices, reports, requests and other communications, given to
the Trustee or the Noteholders hereunder or under any other Note Document or
Transaction Document shall also be given at the same time to the Enhancer and
each of the Rating Agencies
28
that continues to rate the 2009 Notes. In addition to the addresses of the
parties set forth in the Master Indenture, the addresses of the other parties
for notices hereunder are as follows:
The Rating Agencies:
Moody's:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10007
Attention: Monitoring Department - Latin American Asset-Backed
Securities
Telecopy/ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Standard & Poor's:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Latin America Structured Finance, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Chu
Telecopy/ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Fitch:
International Structured Finance
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇
Telecopy/ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
The Enhancer:
XL Capital Assurance, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Surveillance
Telecopy/ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
29
IN WITNESS WHEREOF, the Issuer, the Seller, the Servicer, the Parent,
the Collection Agent and the Trustee have caused this First Supplemental
Indenture to be duly executed by their respective officers as of the day
and year first above written.
ARCEL FINANCE LIMITED,
as Issuer
By:
-------------------------------
Name:
Title:
ARACRUZ TRADING S.A.,
as Seller and as Servicer
By:
-------------------------------
Name:
Title:
ARACRUZ CELULOSE S.A.,
as Parent
By:
-------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Collection Agent
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee, Registrar, Transfer
Agent and Principal Paying
Agent
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK,
LONDON BRANCH,
as London Paying Agent
By:
-------------------------------
Name:
Title:
EXHIBIT A
SCHEDULE OF PAYMENTS
Payment Date Principal Interest Debt Service Payment Date Payment Date
May 1, 2002 $0.00 $3,532,222.22 $3,532,222.22 October 1, 2005 October 1, 2005 40
June 1, 2002 0.00 1,246,666.67 1,246,666.67 November 1, 2005 November 1, 2005
July 1, 2002 0.00 1,246,666.67 1,246,666.67 December 1, 2005 December 1, 2005
August 1, 2002 0.00 1,246,666.67 1,246,666.67 January 1, 2006 January 1, 2006
September 1, 2002 0.00 1,246,666.67 1,246,666.67 February 1, 2006 February 1, 2006
October 1, 2002 0.00 1,246,666.67 1,246,666.67 ▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ 1, 2006
November 1, 2002 0.00 1,246,666.67 1,246,666.67 April 1, 2006 April 1, 2006
December 1, 2002 0.00 1,246,666.67 1,246,666.67 May 1, 2006 May 1, 2006
January 1, 2003 0.00 1,246,666.67 1,246,666.67 June 1, 2006 June 1, 2006
February 1, 2003 0.00 1,246,666.67 1,246,666.67 July 1, 2006 July 1, 2006
March 1, 2003 0.00 1,246,666.67 1,246,666.67 August 1, 2006 August 1, 2006
April 1, 2003 0.00 1,246,666.67 1,246,666.67 September 1, 2006 September 1, 2006
May 1, 2003 0.00 1,246,666.67 1,246,666.67 October 1, 2006 October 1, 2006
June 1, 2003 0.00 1,246,666.67 1,246,666.67 November 1, 2006 November 1, 2006
July 1, 2003 0.00 1,246,666.67 1,246,666.67 December 1, 2006 December 1, 2006
August 1, 2003 0.00 1,246,666.67 1,246,666.67 January 1, 2007 January 1, 2007
September 1, 2003 0.00 1,246,666.67 1,246,666.67 February 1, 2007 February 1, 2007
October 1, 2003 0.00 1,246,666.67 1,246,666.67 ▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ 1, 2007
November 1, 2003 0.00 1,246,666.67 1,246,666.67 April 1, 2007 April 1, 2007
December 1, 2003 0.00 1,246,666.67 1,246,666.67 May 1, 2007 May 1, 2007
January 1, 2004 0.00 1,246,666.67 1,246,666.67 June 1, 2007 June 1, 2007
February 1, 2004 0.00 1,246,666.67 1,246,666.67 July 1, 2007 July 1, 2007
March 1, 2004 3,970,000.00 1,246,666.67 5,216,666.67 August 1, 2007 August 1, 2007
April 1, 2004 4,170,000.00 1,226,869.60 5,396,869.60 September 1, 2007 September 1, 2007
May 1, 2004 4,170,000.00 1,206,075.20 5,376,075.20 October 1, 2007 October 1, 2007
June 1, 2004 4,170,000.00 1,185,280.80 5,355,280.80 November 1, 2007 November 1, 2007
July 1, 2004 4,170,000.00 1,164,486.40 5,334,486.40 December 1, 2007 December 1, 2007
August 1, 2004 4,170,000.00 1,143,692.00 5,313,692.00 January 1, 2008 January 1, 2008
September 1, 2004 4,170,000.00 1,122,897.60 5,292,897.60 February 1, 2008 February 1, 2008
October 1, 2004 4,170,000.00 1,102,103.20 5,272,103.20 ▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ 1, 2008
November 1, 2004 4,170,000.00 1,081,308.80 5,251,308.80 April 1, 2008 April 1, 2008
December 1, 2004 4,170,000.00 1,060,514.40 5,230,514.40 May 1, 2008 May 1, 2008
January 1, 2005 4,170,000.00 1,039,720.00 5,209,720.00 June 1, 2008 June 1, 2008
February 1, 2005 4,170,000.00 1,018,925.60 5,188,925.60 July 1, 2008 July 1, 2008
March 1, 2005 4,170,000.00 998,131.20 5,168,131.20 August 1, 2008 August 1, 2008
April 1, 2005 4,170,000.00 977,336.80 5,147,336.80 September 1, 2008 September 1, 2008
May 1, 2005 4,170,000.00 956,542.40 5,126,542.40 October 1, 2008 October 1, 2008
June 1, 2005 4,170,000.00 935,748.00 5,105,748.00 November 1, 2008 November 1, 2008
July 1, 2005 4,170,000.00 914,953.60 5,084,953.60 December 1, 2008 December 1, 2008
August 1, 2005 4,170,000.00 894,159.20 5,064,159.20 January 1, 2009 January 1, 2009
September 1, 2005 4,170,000.00 873,364.80 5,043,364.80 February 1, 2009 February 1, 2009
Principal Interest Debt Service
$4,170,000.00 $852,570.40 $5,022,570.
4,170,000.00 831,776.00 5,001,776.00
4,170,000.00 810,981.60 4,980,981.60
4,170,000.00 790,187.20 4,960,187.20
4,170,000.00 769,392.80 4,939,392.80
4,170,000.00 748,598.40 4,918,598.40
4,170,000.00 727,804.00 4,897,804.00
4,170,000.00 707,009.60 4,877,009.60
4,170,000.00 686,215.20 4,856,215.20
4,170,000.00 665,420.80 4,835,420.80
4,170,000.00 644,626.40 4,814,626.40
4,170,000.00 623,832.00 4,793,832.00
4,170,000.00 603,037.60 4,773,037.60
4,170,000.00 582,243.20 4,752,243.20
4,170,000.00 561,448.80 4,731,448.80
4,170,000.00 540,654.40 4,710,654.40
4,170,000.00 519,860.00 4,689,860.00
4,170,000.00 499,065.60 4,669,065.60
4,170,000.00 478,271.20 4,648,271.20
4,170,000.00 457,476.80 4,627,476.80
4,170,000.00 436,682.40 4,606,682.40
4,170,000.00 415,888.00 4,585,888.00
4,170,000.00 395,093.60 4,565,093.60
4,170,000.00 374,299.20 4,544,299.20
4,170,000.00 353,504.80 4,523,504.80
4,170,000.00 332,710.40 4,502,710.40
4,170,000.00 311,916.00 4,481,916.00
4,170,000.00 291,121.60 4,461,121.60
4,170,000.00 270,327.20 4,440,327.20
4,170,000.00 249,532.80 4,419,532.80
4,170,000.00 228,738.40 4,398,738.40
4,170,000.00 207,944.00 4,377,944.00
4,170,000.00 187,149.60 4,357,149.60
4,170,000.00 166,355.20 4,336,355.20
4,170,000.00 145,560.80 4,315,560.80
4,170,000.00 124,766.40 4,294,766.40
4,170,000.00 103,972.00 4,273,972.00
4,170,000.00 83,177.60 4,253,177.60
4,170,000.00 62,383.20 4,232,383.20
4,170,000.00 41,588.80 4,211,588.80
4,170,000.00 20,794.40 4,190,794.40
A-1
SCHEDULE I
FORM OF RESTRICTED GLOBAL 2009 NOTE
I-1
SCHEDULE II
FORM OF REGULATION S GLOBAL 2009 NOTE
II-1
SCHEDULE III
FORM OF RESTRICTED DEFINITIVE 2009 NOTE
III-1
