EXHIBIT 4.5
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PETROBRAS INTERNATIONAL FINANCE COMPANY
Company
TO
JPMORGAN CHASE BANK
Trustee
___________
INDENTURE
Dated as of July 19, 2002
___________
Debt Securities
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Petrobras International Finance Company
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
(S)3.10(a)(1) ................................. 6.09
(a)(2) ................................. 6.09
(a)(3) ................................. Not Applicable
(a)(4) ................................. Not Applicable
(b) ................................. 6.08
................................. 6.10
(S)3.11(a) ................................. 6.13
(b) ................................. 6.13
(S)3.12(a) ................................. 7.01
................................. 7.02
(b) ................................. 7.02
(c) ................................. 7.02
(S)3.13(a) ................................. 7.03
(b) ................................. 7.03
(c) ................................. 7.03
(d) ................................. 7.03
(S)3.14(a) ................................. 7.04
(a)(4) ................................. 1.01
................................. 10.13
(b) ................................. Not Applicable
(c)(l) ................................. 1.02
(c)(2) ................................. 1.02
(c)(3) ................................. Not Applicable
(d) ................................. Not Applicable
(e) ................................. 1.02
(S)3.15(a) ................................. 6.01
(b) ................................. 6.02
(c) ................................. 6.01
(d) ................................. 6.01
(e) ................................. 5.14
(S)3.16(a) ................................. 1.01
(a)(1)(A) ................................. 5.02
................................. 5.12
(a)(1)(B) ................................. 5.13
(a)(2) ................................. Not Applicable
................................. 5.08
(c) ................................. 1.04
(S)3.17(a)(l) ................................. 5.03
(a)(2) ................................. 5.04
(S)3.18(a) ................................. 1.07
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions ............................................ 1
Section 1.02 Compliance Certificates and Opinions ................... 12
Section 1.03 Form of Documents Delivered to Trustee ................. 13
Section 1.04 Acts of Holders of Securities; Record Dates ............ 13
Section 1.05 Notices, Etc., to Trustee and the Company .............. 15
Section 1.06 Notice to Holders of Securities; Waiver ................ 15
Section 1.07 Language of Notices, Etc. .............................. 16
Section 1.08 Conflict with Trust Indenture Act ...................... 16
Section 1.09 Effect of Headings and Table of Contents ............... 16
Section 1.10 Successors and Assigns ................................. 16
Section 1.11 Separability Clause .................................... 16
Section 1.12 Benefits of Indenture .................................. 16
Section 1.13 Governing Law .......................................... 16
Section 1.14 Saturday, Sundays and Legal Holidays ................... 16
Section 1.15 Appointment of Agent for Service; Submission to
Jurisdiction; Waiver of Immunity ....................... 17
ARTICLE TWO
SECURITY FORMS
Section 2.01 Forms Generally ........................................ 17
Section 2.02 Form of Global Security ................................ 18
Section 2.03 Form of Legend for Global Securities ................... 29
Section 2.04 Form of Trustee's Certificate of Authentication ........ 30
Section 2.05 Guarantee by Guarantor; Form of Guarantee .............. 30
ARTICLE THREE
THE SECURITIES
Section 3.01 Amount Unlimited: Issuable in Series ................... 33
Section 3.02 Denominations .......................................... 36
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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TABLE OF CONTENTS
(continued)
Page
Section 3.03 Execution, Authentication, Delivery and Dating .......... 36
Section 3.04 Temporary Securities .................................... 37
Section 3.05 Registration, Registration of Transfer and Exchange ..... 39
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities ........ 43
Section 3.07 Payment of Interest; Interest Rights Preserved .......... 44
Section 3.08 Persons Deemed Owners ................................... 45
Section 3.09 Cancellation ............................................ 45
Section 3.10 Computation of Interest ................................. 45
Section 3.11 CUSIP Numbers ........................................... 45
Section 3.12 Add On Notes ............................................ 45
Section 3.13 Forms of Certification .................................. 46
Section 3.14 Standby Purchase Agreements ............................. 49
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture ................. 50
Section 4.02 Application of Trust Money .............................. 51
ARTICLE FIVE
REMEDIES
Section 5.01 Events of Default ....................................... 51
Section 5.02 Acceleration of Maturity; Rescission and Annulment ...... 53
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee .............................................. 54
Section 5.04 Trustee May File Proofs of Claim ........................ 54
Section 5.05 Trustee May Enforce Claims Without Possession of
Securities .............................................. 55
Section 5.06 Application of Money Collected .......................... 55
Section 5.07 Limitation on Suits ..................................... 55
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert ..................... 56
Section 5.09 Restoration of Rights and Remedies ...................... 56
Section 5.10 Rights and Remedies Cumulative .......................... 56
Section 5.11 Delay or Omission Not Waiver ............................ 57
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
TABLE OF CONTENTS
(continued)
Page
Section 5.12 Control by Holders of Securities ........................ 57
Section 5.13 Waiver of Past Defaults ................................. 57
Section 5.14 Undertaking for Costs ................................... 58
Section 5.15 Waiver of Stay, Extension or Usury Laws ................. 58
ARTICLE SIX
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities ..................... 58
Section 6.02 Notice of Defaults ...................................... 58
Section 6.03 Certain Rights of Trustee ............................... 59
Section 6.04 Not Responsible for Recitals or Issuance of
Securities .............................................. 60
Section 6.05 May Hold Securities ..................................... 60
Section 6.06 Money Held in Trust ..................................... 60
Section 6.07 Compensation and Reimbursement .......................... 60
Section 6.08 Conflicting Interests ................................... 61
Section 6.09 Corporate Trustee Required; Eligibility ................. 61
Section 6.10 Resignation and Removal; Appointment of Successor ....... 61
Section 6.11 Acceptance of Appointment by Successor .................. 63
Section 6.12 Merger, Conversion, Consolidation or Succession
to Business ............................................. 64
Section 6.13 Preferential Collection of Claims Against Company ....... 64
Section 6.14 Appointment of Authenticating Agent ..................... 64
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses
of Holders .............................................. 66
Section 7.02 Preservation of Information; Communications to
Holders ................................................. 66
Section 7.03 Reports by Trustee ...................................... 67
Section 7.04 Reports by Company ...................................... 67
Section 7.05 Calculation of Original Issue Discount .................. 67
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain
Terms ................................................... 68
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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TABLE OF CONTENTS
(continued)
Page
Section 8.02 Successor Substituted ................................... 69
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders ...... 69
Section 9.02 Supplemental Indentures with Consent of Holders ......... 70
Section 9.03 Execution of Supplemental Indentures .................... 71
Section 9.04 Effect of Supplemental Indentures ....................... 71
Section 9.05 Conformity with Trust Indenture Act ..................... 72
Section 9.06 Reference in Securities to Supplemental Indentures ...... 72
ARTICLE TEN
COVENANTS
Section 10.01 Payment of Principal and Interest ....................... 72
Section 10.02 Performance Under This Indenture ........................ 72
Section 10.03 Maintenance of Corporate Existence ...................... 72
Section 10.04 Maintenance of Properties ............................... 72
Section 10.05 Compliance with Laws .................................... 73
Section 10.06 Maintenance of Government Approvals ..................... 73
Section 10.07 Payments of Taxes and Other Claims ...................... 73
Section 10.08 Maintenance of Insurance ................................ 73
Section 10.09 Maintenance of Books and Records ........................ 73
Section 10.10 Maintenance of Office or Agency ......................... 74
Section 10.11 Ranking ................................................. 74
Section 10.12 Use of Proceeds ......................................... 74
Section 10.13 Statement by Officers as to Default and Notices of
Events of Default ....................................... 74
Section 10.14 Provision of Financial Statements and Reports ........... 74
Section 10.15 Further Actions ......................................... 75
Section 10.16 Appointment to Fill a Vacancy in Office of Trustee ...... 75
Section 10.17 Payments and Paying Agents .............................. 75
Section 10.18 Waiver of Certain Covenants ............................. 76
Section 10.19 Additional Amounts ...................................... 77
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iv
TABLE OF CONTENTS
(continued)
Page
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article ................................ 79
Section 11.02 Election to Redeem; Notice to Trustee ................... 79
Section 11.03 Selection by Trustee of Securities to Be Redeemed ....... 79
Section 11.04 Notice of Redemption .................................... 80
Section 11.05 Deposit of Redemption Price ............................. 80
Section 11.06 Securities Payable on Redemption Date ................... 81
Section 11.07 Securities Redeemed in Part ............................. 81
Section 11.08 Optional Redemption Due to Changes in Tax Treatment ..... 81
ARTICLE TWELVE
SINKING FUNDS
Section 12.01 Applicability of Article ................................ 82
Section 12.02 Satisfaction of Sinking Fund Payments with
Securities .............................................. 82
Section 12.03 Redemption of Securities for Sinking Fund ............... 82
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 13.01 Purposes for Which Meetings May Be Called ............... 83
Section 13.02 Call, Notice and Place of Meetings ...................... 83
Section 13.03 Persons Entitled to Vote at Meetings .................... 83
Section 13.04 Quorum; Action .......................................... 83
Section 13.05 Determination of Voting Rights; Conduct and
Adjournment of Meetings ................................. 84
Section 13.06 Counting Votes and Recording Action of Meetings ......... 85
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01 Company's Option to Effect Defeasance or Covenant
Defeasance .............................................. 85
Section 14.02 Defeasance and Discharge ................................ 85
Section 14.03 Covenant Defeasance ..................................... 86
Section 14.04 Conditions to Defeasance or Covenant Defeasance ......... 86
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
v
TABLE OF CONTENTS
(continued)
Page
Section 14.05 Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions ........... 88
Section 14.06 Reinstatement ........................................... 88
TESTIMONIUM
SIGNATURES AND SEALS....................................................
ACKNOWLEDGEMENTS........................................................
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE, dated as of July 19, 2002, between PETROBRAS
INTERNATIONAL FINANCE COMPANY, an exempted company incorporated with limited
liability under the laws of the Cayman Islands (the "Company"), having its
principal office at Xxxxxxxx Square Building, P.O. Box 714, Xxxxxx Town, Grand
Cayman, Cayman Islands, B.W.I., and JPMorgan Chase Bank, a New York banking
corporation, as Trustee hereunder (herein called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its secured or
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
The Company is a wholly-owned subsidiary of Petroleo Brasileiro
S.A.- Petrobras ("Petrobras"), a sociedade de economia mista organized and
existing under the laws of the Federative Republic of Brazil ("Brazil").
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Securities or any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with U.S. GAAP, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
consistent with U.S. GAAP at the date of such computation; and
(4) Unless the context otherwise requires, any reference to an
"Article," a "Section" or an "Annex" refers to an Article, a Section
or an Annex, as the case may be, of this Indenture; and
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(5) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning set
forth in Section 1.04.
"Additional Amounts" has the meaning set forth in Section 10.19.
"Add-On Notes" has the meaning set forth in Section 3.12.
"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 purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning set forth in Section 3.05(1).
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of any depository for such Security, DTC, the Euroclear
System and Clearstream, Luxembourg, in each case to the extent applicable to
such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorization," with respect to any creation or issuance of a
series of Securities by the Company and any actions taken by the Company in
connection with such issuance, means the authorization of such issuance and
actions by the Board of Directors or any other corporate body of the Company
required pursuant to the Company's organizational documents and Cayman Islands
law to authorize such issuance and actions.
"Authorized Representative" means, with respect to the Company,
each Officer of the Company and any other person duly appointed by such Officer
pursuant to a power of attorney with specific powers to perform such act on
behalf of such Officer; provided, however, that such power of attorney is
granted in a legal and valid manner pursuant to the Company's by-laws, and
provided further that any Officer may only appoint attorneys-in-fact who, in the
judgment of such Officer, have positions and responsibilities compatible with
the powers granted.
"Board of Directors," when used with reference to the Company,
means the board of directors of the Company or any committee of that board duly
authorized to act for such board hereunder.
"Board Resolution" means, when used with reference to the
Company, a copy of a resolution certified by the secretary or the assistant
secretary of the Company, to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and in
each case delivered to the Trustee.
"Brazil" has the meaning set forth in the first recital of this
Indenture.
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"Business Day" means, with respect to any series of Securities,
unless otherwise specified with respect to such series of Securities as
contemplated by Section 3.01, a day, other than a Saturday or Sunday, that (a)
in the Place of Payment (or in any of the Places of Payment, if more than one)
in which amounts are payable, as specified in the form of such series of
Securities and (b) in the city in which the Corporate Trust Office is located,
is not a day on which banking institutions are authorized or required by law or
regulation to close (and for purposes of the sending of notices only, is not a
day on which banking institutions in the Cayman Islands are authorized or
required by law or regulation to close).
"Certificated Securities" has the meaning set forth in Section
3.05(1).
"Certification Date" means, with respect to Securities of any
series, (i) if Securities of such series are not to be initially represented by
a Temporary Regulation S Security, the date of delivery of the definitive
Regulation S Security and (ii) if Securities of such series are initially
represented by a Temporary Regulation S Security, the earlier of (A) the
Exchange Date with respect to Securities of such series and (B) if the first
Interest Payment Date with respect to Securities of such series is prior to such
Exchange Date, such Interest Payment Date.
"Clearstream, Luxembourg" means Clearstream Banking, societe
anonyme, Luxembourg.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument the United States
Securities and Exchange Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Depositary" means the common depositary, if any, for
Clearstream, Luxembourg and Euroclear.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person, as described further in Section 9.01(1).
Company shall also mean any new issuer of future issuances of Securities under
this Indenture as contemplated by Section 9.01(1).
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or such other address as the Trustee may designate from time to
time by written notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as a
successor Trustee may designate from time to time by notice to the Holders and
the Company).
"Covenant Defeasance" has the meaning set forth in Section 14.03.
"Default" means an event or condition with respect to a series of
Securities that, with the giving of notice, lapse of time or failure to satisfy
certain specified conditions, or any combination thereof, would become an Event
of Default with respect to the Securities of such series if not cured or
remedied.
"Defaulted Interest" has the meaning set forth in Section 3.07.
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"Defeasance" has the meaning set forth in Section 14.02.
"Depositary" means, with respect to Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depositary for such Securities as contemplated by Section
3.01.
"DTC" means The Depository Trust Company or its nominee.
"Environmental Laws" means all applicable federal, state and
local statutes, rules, regulations, ordinances, orders, decrees and common law,
including any of the forgoing in any foreign jurisdiction, relating in any
manner to contamination, pollution or protection of human health or the
environment.
"Euroclear Operator" means Euroclear S.A./N.V., a bank organized
under the laws of the Kingdom of Belgium, as operator of the Euroclear system
(or any successor securities clearing system).
"Event of Default" has the meaning set forth in Section 5.01.
"Exchange Act" means the United States Securities Exchange Act of
1934 and any statute successor thereto, in each case as amended from time to
time.
"Exchange Date" has the meaning set forth in Section 3.04.
"Expiration Date" has the meaning set forth in Section 1.04.
"Exchange Offer" has the meaning set forth in the form of the
face of the Global Security set forth in Section 2.02.
"Exchange Security" means any Security issued by the Company (i)
pursuant to the Exchange Offer, (ii) upon the registration of transfer of a
Security registered for resale on a Resale Registration Statement or (iii) upon
the transfer of, or in exchange for, Securities which are Exchange Securities.
"Global Security" means any Security or series of Security issued
in the form set forth in Section 2.02 or established pursuant to Section 2.01
which is registered in the Security Register in the name of a Depositary and
bears the legend set forth in Section 2.03 (or such legend as may be specified
as contemplated by Section 3.01 for such Securities).
"Governmental Authority" means any regulatory, administrative or
other legal body, any court, tribunal or authority or any public legal entity or
public agency of the Cayman Islands, Brazil or the United States or any other
jurisdiction whether created by federal, provincial or local government, or any
other legal entity now existing or hereafter created, or now or hereafter
controlled, directly or indirectly, by any public legal entity or public agency
of any of the foregoing.
"Guarantee" means an obligation of a person to pay the
Indebtedness of another person including, without limitation:
(1) an obligation to pay or purchase such Indebtedness;
4
(2) an obligation to lend money or to purchase or subscribe for
shares or other securities or to purchase assets or services in order
to provide funds for the payment of such Indebtedness;
(3) an indemnity against the consequences of a default in the
payment of such Indebtedness; or
(4) any other agreement to be responsible for such Indebtedness.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means any obligation (whether present or future,
actual or contingent and including, without limitation, any guarantee) for
payment on or the repayment of money which has been borrowed or raised
(including money raised by acceptances and all leases which, under U.S. GAAP,
would constitute a capital lease obligation).
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.01.
"Initial Regulation S Securities" means any Securities sold by
the purchasers thereof in an initial offering contemplated by a purchase
agreement in reliance on Regulation S and which are Temporary Regulation S
Securities.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the United States Investment
Company Act of 1940 and any statute successor thereto, in each case as amended
from time to time.
"Law" means any constitutional provision, law, statute, rule,
regulation, ordinance, treaty, order, decree, judgment, decision, certificate,
holding, injunction, enforceable at law or in equity, along with the
interpretation and administration thereof by any Governmental Authority charged
with the interpretation or administration thereof.
"Majority Holders" means the holders of more than 50% in
aggregate principal amount of the Securities then Outstanding at any time.
"Material Adverse Effect" means a material adverse effect on (i)
the business, operations, assets, property, condition (financial or otherwise)
of the Company or its Subsidiaries, taken as a whole,
5
(ii) the validity or enforceability of this Indenture, or (iii) the ability of
the Company to perform its obligations under this Indenture, or the material
rights of or benefits available to the Holders or the Trustee, as representative
of the Holders under this Indenture.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
or successors thereto.
"Notice of Default" means a written notice of the kind set forth
in Section 5.01(3).
"Officer" means, with respect to the Company, any officer of the
Company.
"Officer's Certificate" means a certificate of the chief
financial officer and any other Officer of the Company given pursuant to Section
10.05.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company and who shall be acceptable to the Trustee.
"Order" means a written request or order signed in the name of
the Company by one or more of its Officers, in each case delivered to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"Original Securities" means Securities of any series that are not
Exchange Securities.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant
to Section 14.02; and
(4) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been
6
presented to the Trustee proof satisfactory to it that such Securities
are held by a protected purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(i) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 5.02, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
by Section 3.01 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, (iii) if the
principal amount payable at Stated Maturity of any Security is not determinable
upon original issuance, the principal amount of such Security that shall be
deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 3.01, and (iv) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on its behalf,
which at the date of this Indenture includes the Trustee and X.X. Xxxxxx Trust
Bond Ltd., a bank established under the laws of Japan with its corporate trust
office at Akasaka Park Building, 13th Floor, 0-00 Xxxxxxx, 0-xxxxx, Xxxxxx-xx,
Xxxxx 000-0000, Xxxxx.
"Permanent Regulation S Security" has the meaning set forth in
Section 3.04.
7
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization, other
entity or any government or any agency or political subdivision thereof.
"Petrobras" has the meaning set forth in the second recital of
this Indenture.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for
8
or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Purchase Agreement" means any Purchase Agreement entered into to
issue Securities under this Indenture.
"Rating Agency" means Moody's and/or S&P.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security," means any Security issued in registered
form which is registered in the Security Register. Registered Securities shall
include Global Securities and Certificated Securities.
"Registration Default" has the meaning set forth in the form of
face of Global Security in Section 2.02.
"Registration Default Period" has the meaning set forth in the
form of face of the Global Security in Section 2.02.
"Registration Rights Agreement" means an agreement entered into
by the Company contemplating the registration under the Securities Act of a
series of Securities issued under this Indenture subsequent to the initial date
of issuance of such series of Securities.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Regulation S" means Regulation S under the Securities Act (or
any successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in
the form set forth in Annex A.
"Regulation S Global Security" has the meaning set forth in
Section 2.01.
"Regulation S Legend" means a legend substantially in the form of
the legend required in the forms of face of Security set forth in Section 2.02
to be placed upon a Regulation S Global Security.
"Regulation S Securities" means all Securities required pursuant
to Section 3.05(3) to bear a Regulation S Legend. Such term includes a
Regulation S Global Security.
"Reorganization" means the conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
that guarantees the Company's obligations under this Indenture and the
Securities in accordance with Section 8.01.
"Resale Registration Statement" shall mean a registration
statement under the Securities Act registering the Securities for resale
pursuant to the terms of the Registration Rights Agreement.
9
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department (or similar group) of
the Trustee, with responsibility for the administration of the Indenture, and
any officer of the Trustee to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject.
"Restricted Global Security" means any Global Security required
pursuant to Section 3.05(3) to bear a Restricted Securities Legend.
"Restricted Period" means, with respect to any series of
Regulation S Securities, the period of 41 consecutive days beginning on and
including the later of (i) the day on which Securities of such series are first
offered to persons other than distributors (as defined in Regulation S) in
reliance on Regulation S and (ii) the day on which the closing of the offering
of Securities of such series pursuant to a Purchase Agreement occurs.
"Restricted Security" means all Securities required pursuant to
Section 3.05(3) to bear a Restricted Securities Legend. Such term includes a
Restricted Global Security.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of face of Securities set forth in
Section 2.02 to be placed upon a Restricted Security.
"Rule l44A" means Rule l44A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Securities" means all Securities initially distributed
in connection with the offering of the Securities by the Purchasers in reliance
upon Rule 144A.
"SEC Registered Securities" means the Exchange Securities and all
other Securities sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act, together with their respective
Successor Securities.
"Securities" has the meaning set forth in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the United States Securities Act of 1933
and any statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings set forth in Section 3.05.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor or successors thereto.
"Special Interest" has the meaning set forth in the form of face
of the Global Security in Section 2.02. Unless the context otherwise requires,
references herein to "interest" on the Securities shall include Special
Interest.
10
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
"Standby Purchase Agreement" has the meaning set forth in Section
3.14.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Step-Down Date" has the meaning set forth in the form of face of
the Global Security in Section 2.02.
"Step-Up" has the meaning set forth in the form of face of the
Global Security in Section 2.02.
"Subsidiary" means, as to any Person, a corporation, company,
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors (or similar governing body) of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Indenture shall refer
to a Subsidiary or Subsidiaries of Petrobras.
"Successor Company" has the meaning set forth in Section 8.01.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt (subject
to provisions, if any, in the Predecessor Security regarding payment of Special
Interest) as that evidenced by, such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.06
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Temporary Regulation S Security" means a temporary Security
issued in global registered form.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the United States Trust Indenture Act
of 1939 as in force at the date as of which this instrument was executed (except
as provided in Section 9.05); provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
00
"Xxxxxx Xxxxxx" xxxxx xxx Xxxxxx Xxxxxx of America (including the
States and the District of Columbia) and its possessions (including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake island and the Northern
Mariana Islands).
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"U.S. Person" shall have the meaning ascribed to such term in
Rule 902 of Regulation S.
"U.S. GAAP" means generally accepted accounting principles in
effect in the United States applied on a basis consistent with the principles,
methods, procedures and practices in effect from time to time.
"U.S. Government Obligations" has the meaning set forth in
Section 14.04.
"Wholly-Owned Subsidiary" means, with respect to any corporate
entity, any person of which 100% of the outstanding capital stock (other than
qualifying shares, if any) having by the terms thereof ordinary voting power
(not dependent on the happening of a contingency) to elect the Board of
Directors (or equivalent controlling governing body) of such person is at the
time owned or controlled directly or indirectly by such corporate entity, by one
or more wholly-owned subsidiaries of such corporate entity or by such corporate
entity and one or more wholly-owned subsidiaries thereof.
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act with respect to compliance with conditions precedent provided for
in the Indenture. Each such certificate or opinion shall be given in the form of
an Officer's Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture, except that in the event of any such application or request as
to which the furnishing of such documents is specifically required by any
provisions of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion, whether required to be provided
pursuant to this Section 1.02 or elsewhere, with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
12
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Holders of Securities; Record Dates.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders of Securities signing
such instrument or instruments or so voting at such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent or proxy, or of
the holding by any Person of a Security shall be sufficient for any purpose of
this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 13.06.
(2) The fact and date of the execution by any Person of any
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(3) The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand,
13
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities
of such series, provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, or their duly
designated proxies, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders, or duly designated proxies,
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders, or their duly designated proxies, of
the requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, or their duly designated proxies,
and no other Holders, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders, or their duly
designated proxies, of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed
to prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders, or their duly designated
proxies, of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Trustee, at the expense of the Company,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
1.06.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party or
parties hereto in writing, and to each Holder of Securities of the relevant
series in the manner set forth in Section 1.06, on or prior to the existing
Expiration Date. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date and, if an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party or parties hereto which set such record date shall be deemed
to have designated the 180th day after such record date as the Expiration Date
with respect thereto.
14
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents or proxies each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
(4) The principal amount and serial numbers of Global Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(5) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(6) The provisions of this Section 1.04 are subject to the
provisions of Section 13.05.
Section 1.05 Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders of Securities or other document provided for or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder of Securities or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (or sent by facsimile and confirmed in
writing) to or with the Trustee at its Corporate Trust Office,
Attention: Institutional Trust Services, or
(2) the Company by the Trustee or by any Holder of Securities
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed (or sent by
facsimile and confirmed in writing) international air mail postage
prepaid and addressed to its principal office specified in the first
paragraph of this instrument to the attention of its Secretary, or at
any other address previously furnished in writing to the Trustee by
the Company.
Section 1.06 Notice to Holders of Securities; Waiver.
Unless otherwise herein expressly provided, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given to Holders of Securities if in writing and mailed, first-class postage
prepaid, or delivered by hand or overnight courier to each Holder of a Security
affected by such event, at its address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Securities by mail, then such notification as shall be given with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall
15
be the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 1.07 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language.
Section 1.08 Conflict with Trust Indenture Act.
The Indenture shall incorporate and be governed by the provisions
of the Trust Indenture Act that are required to be part of and govern indentures
qualified under the Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Indenture, the provision
of such Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the provision of such Act shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
Section 1.09 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.11 Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.12 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.13 Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.14 Saturday, Sundays and Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security or the last day on which Holders have the right
to convert or exchange their Securities shall not be a Business Day at any Place
of Payment or place of conversion or exchange, then (notwithstanding any
16
other provision of this Indenture or of the Securities (other than a provision
of any Security which specifically states that such provision shall apply in
lieu of this Section)) payment of interest or principal (and premium, if any) or
conversion or exchange need not be made at such Place of Payment or place of
conversion or exchange on such date, but may be made on the next succeeding
Business Day at such Place of Payment or place of conversion or exchange with
the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity or on such last day for conversion or exchange.
Section 1.15 Appointment of Agent for Service; Submission to Jurisdiction;
Waiver of Immunity.
By the execution and delivery of this Indenture, the Company
hereby appoints the New York office of the Company as its agent upon which
process may be served in any legal action or proceeding which may be instituted
in any Federal court in the Borough of Manhattan, the City of New York, State of
New York, arising out of or relating to the Securities or this Indenture, but
for that purpose only. Service of process upon such agent at the office of the
Company at 1336 Avenue of the Americas, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, and written notice of said service to the Company by the Person
servicing the same addressed as provided by Section 1.05, shall be deemed in
every respect effective service of process upon the Company in any such legal
action or proceeding. The Company will take any and all action necessary to
continue such designation in full force and effect and to advise the Trustee of
any change of address of such agent; should such agent become unavailable for
this purpose for any reason, the Company will promptly and irrevocably designate
a new agent in the Borough of Manhattan, City of New York, State of New York,
which will agree to act as such for powers and for the purposes set forth in
this Section 1.15. The Company hereby (i) irrevocably submits to the
nonexclusive jurisdiction of any Federal court in the Borough of Manhattan, the
City of New York, State of New York in which any such legal action or proceeding
is so instituted, and any appellate court from any thereof, (ii) to the extent
it may effectively do so, irrevocably and unconditionally waives any objection
which it may have now or hereafter to the laying of the venue of any such legal
action or proceeding and (iii) to the extent the Company has or hereafter may
acquire any immunity from jurisdiction of any such court or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, the Company hereby irrevocably waives such immunity in respect of its
obligations under the Indenture and the Securities to the fullest extent
permitted by law. Such appointment shall be irrevocable so long as the Holders
of Securities shall have any rights pursuant to the terms thereof or of this
Indenture until the appointment of a successor by the Company with the consent
of the Trustee and such successor's acceptance of such appointment. The Company
further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment of such agent or successor.
ARTICLE TWO
SECURITY FORMS
Section 2.01 Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form (including temporary or
permanent global form) as shall be established by or pursuant to an
Authorization of the Company 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
17
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary or as may, consistently herewith, be
determined by an Authorized Representative executing such Securities pursuant to
this Indenture, as evidenced by its execution thereof. If the forms of
Securities of any series are established by action taken pursuant to an
Authorization, a copy of an appropriate record of such action shall be certified
by any Authorized Representative of the Company or the secretary or assistant
secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Order contemplated by Section 3.03 for the authentication and
delivery of such Securities. Any such Board Resolution or other document
evidencing an Authorization shall have addressed thereto a true and correct copy
of the form of Security referred to therein approved by or pursuant to such
Authorization.
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.
Upon their original issuance, any Rule 144A Securities and any
Initial Regulation S Securities of any series shall be issued in the form of
separate Global Securities. The Global Securities representing Rule 144A
Securities, together with their Successor Securities which are Global Securities
other than Regulation S Global Securities and SEC Registered Securities, are
collectively herein called the "Restricted Global Securities". The Global
Securities representing Initial Regulation S Securities, together with their
Successor Securities which are Global Securities other than Restricted Global
Securities and SEC Registered Securities, are collectively herein called the
"Regulation S Global Securities".
Section 2.02 Form of Global Security.
[Form of Face of Global Security]
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
PETROBRAS INTERNATIONAL FINANCE COMPANY
[Title of Security]
Date: ___________
No.________ CUSIP NO._____________
ISIN NO.______________
[Legend if the Security is a Restricted Security:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT') AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) AND (4) TO AN
18
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES."]
[Legend if the Security is a Regulation S Security:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT, UNDER THE SECURITIES
ACT, BE OFFERED, SOLD, OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS SECURITY IS REGISTERED UNDER
THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.]
[Legend if the Security is a Temporary Regulation S Security:
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION
S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT").
NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD
OR DELIVERED, EXCEPT AS PERMITTED ABOVE.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF PRINCIPAL HEREOF OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.]
[Legend if the Security benefits from a Registration Rights Agreement:
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE
BENEFITS OF, THE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, DATED AS OF [date
of agreement], AMONG THE COMPANY AND THE OTHER PARTIES REFERRED TO THEREIN.]
PETROBRAS INTERNATIONAL FINANCE COMPANY, a Cayman Islands limited
company (herein called the "Company," which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ______________, or registered assigns, the principal sum of
________________ on ______________[if the Security is to bear interest prior to
Maturity, insert --, and to pay interest thereon from ___________, ___ or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on ________and ________ in each year]
[annually in arrears on __________ in each year], commencing ___________, __, at
the rate of ____% per annum, until the principal hereof is paid or made
available for payment [if applicable insert -- provided that any principal and
premium, and any such installment of interest, which is overdue shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand.] The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the _______[or _______] (whether or not a
Business Day) [, as the case may be,] next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date
19
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than ten days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If applicable insert: Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the rate of ____% per
annum (to the extent that payment of such interest shall be legally enforceable)
from the date of such demand until the amount so demanded is paid or made
available for payment. Interest on any overdue interest shall be payable on
demand.]
[If applicable insert: provided, however, that if (i) a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), registering a security substantially identical to this
Security (except that such Security will not contain terms with respect to the
Special Interest payments described below or legends reflecting transfer
restrictions) pursuant to an exchange offer (the "Exchange Offer") (the
"Exchange Registration Statement") (or, if applicable, a registration statement
registering this Security for resale (a "Shelf Registration Statement")) has not
become or been declared effective on or before the date on which such
registration statement is required to become or be declared effective pursuant
to the Exchange and Registration Rights Agreement, dated as of [date of
agreement] (the "Registration Rights Agreement"), among the Company and the
other parties referred to therein, or (ii) the Exchange Offer has not been
completed within the number of days specified by the Registration Rights
Agreement after the initial effective date of the Exchange Registration
Statement (if the Exchange Offer is then required to be made) or a Shelf
Registration Statement has not become or been declared effective on or before
the date on which it is required to become or be declared effective pursuant to
the Exchange and Registration Rights Agreement, or (iii) any Exchange
Registration Statement or, if applicable, the Shelf Registration Statement is
filed and declared effective but shall thereafter cease to be effective (except
as specifically permitted pursuant to the Registration Rights Agreement) without
being succeeded immediately (except as specifically permitted pursuant to the
Registration Rights Agreement) by an additional registration statement filed and
declared effective, in each case in Clauses (i) through (iii) upon the terms and
conditions set forth in the Registration Rights Agreement (each such event
referred to in Clauses (i) through (iii), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing, a
"Registration Default Period"), then interest will accrue (in addition to any
stated interest on the Securities) (the "Step-Up") at a per annum rate of _____%
for such Registration Default Period from and including the date on which a
Registration Default first occurs to but excluding the first date (the
"Step-Down Date") that no Registration Default is in effect. Interest accruing
as a result of the Step-Up is referred to herein as "Special Interest." Accrued
Special Interest, if any, shall be paid semi-annually on ______ and ______ in
each year; and the amount of accrued Special Interest shall be determined on the
basis of the number of days during which such Registration Default is in effect.
The Company shall provide the Trustee with written notice of the date of any
Registration Default and the Step-Down Date. Any accrued and unpaid interest
(including Special Interest) on this Security upon the issuance of an Exchange
Security (as defined in the Indenture) in exchange for this Security shall cease
to be payable to the Holder hereof but such accrued and unpaid interest
(including Special interest) shall be payable on the next Interest Payment Date
for such Exchange Security.]
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity, and in such case the overdue principal and any overdue
premium
20
shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the date such
amounts are due until they are paid or made available for payment. Interest on
any overdue principal shall be payable on demand. Any such interest on any
overdue principal or premium which is not so paid on demand shall bear interest
at the rate of ___% per annum (to the extent that the payment of such interest
on interest shall be legally enforceable), from the date of such demand until
the amount so demanded is paid or made available for payment. Interest on
overdue interest shall be payable on demand.)
Payment of the principal of [(and premium, if any)) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in in [such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts] [If Security is denominated and
payable in United States dollars insert currency and method of payment] [if
applicable, insert --; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
[All terms used in this Security which are not defined herein but
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.]
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed manually or in facsimile.
Dated:
PETROBRAS INTERNATIONAL FINANCE COMPANY
By: ______________________________
Name:
Title:
21
[Form of Reverse of Global Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ., 2002 (herein called the "Indenture"
which term shall have the meaning assigned to it in such instrument), between
the Company and JPMorgan Chase Bank, as Trustee (herein called the "Trustee,"
which term includes any other successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to U.S.$__________].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on __________ in any year commencing with the year ____ and ending with the
year _________ through operation of the sinking fund for this series at a
Redemption Price equal to [insert formula for determining amount] (with the
amount in excess of 100% of the principal amount being additional interest), and
(2)] at any time [if applicable, insert -- on or after ________, _____], 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 [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] 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 applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
___________ in any year commencing with the year _____ and ending with the year
_____, through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [if applicable, insert -- on or after_______, ___________, as a whole
or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount, with the amount in excess of 100% of the
principal amount being additional interest) set forth in the table below: If
redeemed during the 12-month period beginning_____________ of the years
indicated,
22
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise Than
of the Through Operation of the
Year Sinking Fund Sinking Fund
---- ------------ ------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) 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 applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to __________, redeem any Securities of this series as
contemplated by [If applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than ____% per annum.]
[If applicable, insert -- The sinking fund for this series
provides for the redemption on ________ in each year beginning with the year
_________ and ending with the year _____ and ending with the year _______ of [if
applicable, insert -- not less than U.S.$________ ("mandatory sinking fund") and
not more than U.S.$________] aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company otherwise
than through [if applicable, insert - mandatory] sinking fund payments may be
credited against subsequent [if applicable, insert -- mandatory] sinking fund
payments otherwise required to be made [if applicable, insert -- in the inverse
order in which they become due].]
[if applicable, insert -- The Securities of this series may be
redeemed at the option of the Company, in whole but not in part, upon not less
than 30 nor more than 60 days' notice given as provided in the Indenture, at any
time at a Redemption Price equal to the principal amount thereof plus accrued
interest to the date fixed for redemption if as a result of any change in or
amendment to the laws or any regulations or rulings promulgated thereunder of
the jurisdiction (or of any political subdivision or taxing authority thereof or
therein) in which the Company is incorporated (or in the case of a successor
Person to the Company, of the jurisdiction in which such successor Person is
organized or any political subdivision or taxing authority thereof or therein)
or any change in the official application or interpretation of such laws,
regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which such jurisdiction or such political subdivision or
taxing authority (or such other jurisdiction or political subdivision or taxing
authority) is a party, which change, execution or amendment becomes effective on
or after ____________ (or, in the case of a successor Person to the Company, the
date on which such successor Person became such pursuant to the applicable
provision of the Indenture).]
[If applicable, insert -- The Securities may also be redeemed in
whole but not in part upon not less than 30 nor more than 60 days' notice given
as provided in the Indenture at any time at a Redemption Price equal to the
principal amount thereof plus accrued interest to the date fixed for
23
redemption if the Person formed by a consolidation of the Company or into which
the Company is merged or to which the Company conveys, transfers or leases its
properties and assets substantially as an entirety is required to pay a Holder
Additional Amounts in respect of any tax, assessment or governmental charge
imposed on any such Holder or required to be withheld or deducted from any
payment to such Holder as a consequence of such consolidation, merger,
conveyance, transfer or lease.]
[If applicable, insert -- the Redemption Price of the Securities
of this series shall be equal to the applicable percentage of the principal
amount at Stated Maturity set forth below:
If Redemption During the Redemption
12-Month Period Commencing Price
-------------------------- -----
together with, in each case (except if the Redemption Date shall be a
__________), an amount equal to the applicable Redemption Price multiplied by a
fraction the numerator of which is the number of days from but not including the
preceding _______________ to and including the Redemption Date multiplied by the
difference between the Redemption Price applicable during the 12 months
beginning on the _________________ following the Redemption Date (or, in the
case of a Redemption Date after ___________, 100%) and the Redemption Price
applicable on the Redemption Date and the denominator of which is the total
number of days from but not including the _________________ preceding the
Redemption Date to and including the next succeeding ____________. The Company
will also pay to each eligible Holder, or make available for payment to each
such Holder, on the Redemption Date any additional interest (as set forth on the
face hereof) resulting from the payment of such Redemption Price.]
[If applicable insert -- The Redemption Price of the Securities
of this series either in the event of certain changes in the tax treatment or in
an event of default would include, in addition to the face amount of the
Security, an amount equal to the Original Issue Discount accrued since the issue
date. Original Issue Discount (the difference between the Issue Price and the
Principal Amount at Maturity of the Security), in the period during which a
Security of this series remains outstanding, shall accrue at __% per annum, on a
semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day
months, commencing on the Issue Date of this Security.]
[If applicable, insert -- Notice of redemption will be given by
mail to Holders of Securities of this series, not less than 30 nor more than 60
days prior to the date fixed for redemption, 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 applicable insert: The Securities are the Company's unsecured
obligations [and will be subordinated in right of payment to all of the
Company's existing and future senior indebtedness (as such term is defined in
the [supplemental indenture] [Board Resolution or other document evidencing an
Authorization] authorizing this series of Securities)] and effectively
subordinated to all existing and future Indebtedness and other liabilities of
its subsidiaries.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness on this Security] [or]
[certain restrictive covenants and Events of Default with
24
respect to this Security] [, in each case,] upon compliance with certain
conditions set forth in the Indenture.)
[If applicable, insert -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time after ________________, to [convert] [exchange] this
Security into [Describe Securities and conversion mechanics].]
[If applicable, insert -- In the event of conversion of this
Security in part only, a new Security or Securities of this series and of like
tenor for the unconverted portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default 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 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 applicable issuer's obligations in respect of the
payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
[If not applicable, delete -- If any deduction or withholding for
any present or future taxes, assessments or other governmental charges of Brazil
(or any political subdivision or taxing authority thereof or therein) shall at
any time be required by Brazil (or any such political subdivision or taxing
authority) in respect of any amounts to be paid by the Company under the
Securities, the Company will pay to the Holder of this Security such additional
amounts as may be necessary in order that the net amounts paid to such Holder of
such Security who, with respect to any such tax, assessment or other
governmental charge, is not resident in Brazil, after such deduction or
withholding, shall be not less than the amounts specified in such Security to
which such Holder is entitled ("Additional Amounts"); provided, however, that
the Company shall not be required to make any payment of Additional Amounts for
or on account of:
(a) any tax, assessment or other governmental charge which
would not have been imposed but for (i) the existence of any
present or former connection between such Holder or the
beneficial owner of the Security of such series (or between a
fiduciary, settler, beneficiary, member or shareholder of, or
possessor of a power over, such Holder or beneficial owner, if
such Holder or beneficial owner is an estate, trust, partnership
or corporation) and Brazil or any political subdivision or
territory or possession thereof or area subject to its
jurisdiction other than the mere holding of a Security or receipt
of payment in respect thereto, including, without limitation,
such Holder or beneficial owner (or such fiduciary, settler,
beneficiary, member, shareholder or possessor) being or having
been a citizen or resident thereof or being or having been
present or engaged in trade or business therein or having or
having had a permanent establishment therein or (ii) the
presentation of a Security of such series (where presentation is
required) for payment on a date more than 30 days after the date
on which such payment became due
25
and payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge;
(c) any amount required to be deducted or withheld by any
Paying Agent from a payment on or in respect of the Security, if
such payment can be made without such deduction or withholding by
any other Paying Agent and we duly provide for such other Paying
Agent to make such payment;
(d) withholding for any taxes, duties, assessments or other
governmental charges that are payable otherwise than by deduction
or withholding from payments on the Security;
(e) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure to comply by the
Holder or the beneficial owner of the Security of such series
with a request of the Company addressed to the Holder (i) to
provide information concerning the nationality, residence or
identity of the Holder or such beneficial owner or (ii) to make
any declaration or other similar claim or satisfy any information
or reporting requirements, which, in the case of (i) or (ii), is
required or imposed by a statute, treaty, regulation or
administrative practice of Brazil as a precondition to exemption
from all or part of such tax, assessment or other governmental
charge;
(f) where any Additional Amounts are imposed on a payment on
the Securities to an individual and is required to be made
pursuant to any European Union Directive on the taxation of
savings income relating to the proposal for a Directive on the
taxation of savings income published by the European Commission
on July 18, 2001 or otherwise implementing the conclusions of the
Economic and Financial Council of Ministers of the member states
of the European Union (ECOFIN) Council meeting of 26 and 27
November 2000 or any law implementing or complying with, or
introduced in order to conform to, any such Directive; or
any combination of items (a), (b), (c), (d), (e) and (f) above;
nor shall Additional Amounts be paid with respect to any payment in respect of
any Security to any Holder or beneficial owner who is a fiduciary or partnership
or other than the sole beneficial owner of such payment to the extent such
payment would be required by the laws of Brazil (or any political subdivision or
taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner who would not have been entitled to
such Additional Amounts had it been the Holder or beneficial owner, as the case
may be, of such Security.
Unless the context otherwise requires, the Original Securities
(as defined in the Indenture) of this series and the Exchange Securities (as
defined in the Indenture) of this series shall constitute one series for all
purposes under the Indenture, including without limitation, amendments, waivers
and redemptions.
26
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and 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 set forth in, and subject to, the provisions of the Indenture,
no Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture, this Security or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal of the Outstanding Securities of this series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal [(and premium, if any)], interest or any Additional Amount on this
Security on or after the respective due dates expressed herein [If applicable
insert -- or to a suit instituted by the Holder hereof for the enforcement of
the right to convert this Security or receive Securities upon conversion or
exchange in accordance with the Indenture].
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 or to convert or exchange this Security as
provided in the Indenture.
The Securities of this series are issuable only in registered
form without coupons in denominations of _________ and any integral 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. 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 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.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
27
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company or the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Securities 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.
28
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be U.S.$ .
The following decreases/increases in the principal amount of this Security have
been made:
Total Principal Notation Made
Date of Decrease in Increase in Amount by or on
Decrease/ Principal Principal Following such Behalf of
Increase Amount Amount Decrease/Increase Trustee
---------- ----------- ----------- ----------------- -------------
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
__________ ___________ __________ ___________ _________
Section 2.03 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for
the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
29
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
Section 2.04 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
JPMorgan Chase Bank
As Trustee
By:______________________
Authorized Officer
Section 2.05 Guarantee by Guarantor; Form of Guarantee.
In the event that any series of Securities of the Company is to
be guaranteed by Petrobras, the Company, Petrobras and the Trustee shall enter
into a supplemental indenture pursuant to which Petrobras will agree with each
Holder of a Security of such series, and with the Trustee on behalf of each such
Holder, to be unconditionally bound by the terms and provisions of the Guarantee
endorsed on such guaranteed Securities and will authorize the Trustee to confirm
such Guarantee to the Holder of each such Security by its execution and delivery
of each such Security, with such Guarantee endorsed thereon, authenticated and
delivered by the Trustee. The Guarantee to be endorsed on any such guaranteed
Securities shall, subject to Section 2.01 and to the provisions of the relevant
supplemental indenture, be in substantially the form set forth below:
GUARANTEE
OF
PETROLEO BRASILEIRO S.A.- PETROBRAS
For value received, Petroleo Brasileiro S.A.- Petrobras, a mixed capital
company (sociedade do economia mista) organized under the laws of Brazil, having
its principal office at Xxxxxxx Xxxxxxxxx xx Xxxxx, 00, 00000-000 Xxx xx Xxxxxxx
- XX, Xxxxxx (herein called the "Guarantor," which term includes any Person as a
successor Guarantor under the Indenture referred to in the Security upon which
this Guarantee is endorsed), hereby fully and unconditionally guarantees to the
Holder of the Security upon which this Guarantee is endorsed and to the Trustee
on behalf of each such Holder the due and punctual payment of the principal of,
premium, if any, and interest (including additional amounts, if any) on such
Security and the due and punctual payment of the sinking fund or analogous
payments referred to therein, if any, when and as the same shall become due and
payable, whether on the Stated Maturity, by declaration of
30
acceleration, call for redemption or otherwise, according to the terms thereof
and of the Indenture referred to therein. In case of the failure of Petrobras
International Finance Company, a Cayman Islands limited company (herein called
the "Borrower," which term includes any successor Person under such Indenture),
to punctually make any such payment of principal of, premium, if any, and
interest (including additional amounts, if any) on or any such sinking fund or
analogous payment, the Guarantor hereby agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether on the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the Borrower.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were the principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, and failure
to enforce the provisions of such Security or such Indenture, or any waiver,
modification or indulgence granted to the Borrower with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge of a surety or guarantor;
provided, however, that, notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Guarantor, increase
the principal amount of such Security, or increase the interest rate thereon, or
increase any premium or additional amounts payable thereon, or alter the Stated
Maturity thereof, or increase the principal amount of any Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Article V of such Indenture.
The Guarantor hereby waives diligence, presentment, demand for payment, filing
of claims with a court in the event of merger or bankruptcy of the Borrower, any
right to require a proceeding first against the Borrower, protest or notice with
respect to such Security or the indebtedness evidenced thereby or with respect
to any sinking fund or analogous payment required under such Security and all
demands whatsoever, and covenants that this Guarantee will not be discharged
except by payment in full of the principal of, premium, if any, and interest
(including additional amounts, if any) on such Security.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Borrower in respect of any amounts paid to
such Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon such right of subrogation
until the principal of, premium, if any, and interest (including additional
amounts, if any) on all Securities of the same series issued under such
Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of the Guarantee
or of such Indenture shall alter or impair the guarantees of the Guarantor,
which are absolute and unconditional, of the due and punctual payment of the
principal of, premium, if any, and interest (including additional amounts, if
any) on, and any sinking fund or analogous payments with respect to, the
Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of such Security shall have been manually
executed by or on behalf of the Trustee under such Indenture.
All terms used but not defined in this Guarantee which are defined in
such Indenture shall have the meanings assigned to them in such Indenture.
31
This Guarantee shall be governed by and construed in accordance with
the laws of State of New York.
32
ARTICLE THREE
THE SECURITIES
Section 3.01 Amount Unlimited: Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution or other document evidencing
an Authorization of the Company and, subject to Section 3.03, set forth, or
determined in the manner provided, in an Officer's Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, the terms of the Securities of such series, including
(as applicable) and without limitation:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Sections 3.04,
3.05, 3.06, 9.06 or 11.07 and except for any Securities which,
pursuant to Section 3.03, are deemed never to have been authenticated
and delivered hereunder) (including any provision for the offering of
additional Securities of the series beyond any such limit upon the
aggregate principal amount of Securities of such series);
(3) whether the Securities of series will be issued at par, at a
premium or at discount or as an Original Issue Discount Security;
(4) whether the Securities will constitute subordinated
obligations of the Company;
(5) whether the Securities will be secured obligations of the
Company;
(6) whether Securities of the series in a form other than as
Global Securities, whether any Securities of the series are to be
issuable initially as Temporary Regulation S Securities and whether
any Securities of the series are to be issuable as Permanent
Regulation S Securities and, if so, whether beneficial owners of
interests in any such Permanent Regulation S Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 3.05;
(7) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest the manner in
which, any interest on any Security of the series shall be payable, if
other than by wire transfer in same-day funds to the Holder;
(8) the date or dates on which the principal of the Securities of
the series is payable;
33
(9) the rate or rates at which the Securities of the series shall bear
interest or the method by which such rate shall be determined, if any, the
date or dates from which such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record
Date for any interest payable on any Global Securities on any Interest
Payment Date;
(10) the place or places where, subject to the provisions of Section
10.10, the principal of and any premium and interest on Securities of the
series shall be payable, any Global Securities of the series may be
surrendered for registration of transfer, Securities of the series may be
surrendered for exchange or conversion and notices and demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served;
(11) other than with respect to any redemption of Securities pursuant
to Section 11.08, the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company
(including the period following the date referred to in Section 11.08) and,
if other than by a Board Resolution, the manner in which any election by
the Company to redeem the Securities shall be evidenced;
(12) other than with respect to any redemption of Securities pursuant
to Section 11.08, the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(13) the terms and conditions for conversion or exchange of Securities
into equity securities of the Company (including, if applicable, the
rights, preferences and privileges of such equity securities), and the
terms of any additional redemption rights of the Company relating to such
terms and conditions for conversion or exchange, whether any such equity
securities may be evidenced by American Depositary Receipts and whether
such security is convertible or exchangeable into another security;
(14) the denominations in which any Securities of the series shall be
issuable if other than denominations of $1,000 and any integral multiple
thereof;
(15) the applicable rate on Defaulted Interest;
(16) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 1.01;
(17) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, the
manner in which such amounts shall be determined;
(18) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or
34
currency units other than that or those in which the Securities of such
series are stated to be payable, the currency, currencies or currency units
in which the principal of and any premium and interest on Securities of
such series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such election
is to be made and the amount so payable (or the manner in which such amount
shall be determined);
(19) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.02;
(20) the application, if any, of Sections 14.01, 14.02 or 14.03 or
both such Sections to the Securities of the series and, if other than by a
Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(21) if Additional Amounts pursuant to Section 10.04 will not be
payable by the Company;
(22) if the principal amount payable at the Stated Maturity of any
Securities of the series is not determinable as of one or more dates prior
to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any other
purpose hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date (or, in any such case, the
manner in which such principal amount shall be determined);
(23) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.03 and,
if different from those set forth in Clause (2) of the last paragraph of
Section 3.05, any circumstances in which Securities issued upon any
exchange may be registered in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(24) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 5.02;
(25) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(26) whether the Securities of the series may be exchanged for
Exchange Securities pursuant to an Exchange Offer or otherwise in
authorized denominations in exchange for a like principal amount of
Original Securities of the same series, all in accordance with the terms of
this Indenture and the terms of such security; and
(27) whether the Securities are Restricted Securities and Regulation S
Securities, or SEC Registered Securities;
(28) whether Add On Notes will be permitted;
35
(29) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this Indenture,
except as permitted by Section 9.01(5)).
Unless the context otherwise requires, any Original Securities of
a series and any Exchange Securities of such series shall constitute one series
for all purposes under this Indenture, including without limitation, amendments,
waivers or redemptions.
If any of the terms of the Securities of a series are established
by action taken pursuant to an Authorization of the Company, a copy of an
appropriate record of such action shall be certified by any Authorized
Representative of the Company, as the case may be, each delivered to the Trustee
at or prior to the delivery of the Officer's Certificate setting forth the terms
of the series.
Section 3.02 Denominations.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, any Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any
Authorized Representative of the Company. The signature of any such Authorized
Representative of the Company may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time a proper Authorized Representative of the
Company shall bind the Company notwithstanding that such individuals or any of
them have ceased to hold such positions prior to the authentication and delivery
of such Securities or did not hold such positions at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
executed by the Company to the Trustee for authentication, together with an
Order for the authentication and delivery of such Securities, and the Trustee in
accordance with the Order shall authenticate and deliver such Securities.
If the forms or terms of the Securities of the series have been
established in or pursuant to one or more Authorizations as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel and Officers' Certificate
stating,
(1) that such forms or terms have been established in conformity
with the provisions of this Indenture; and
(2) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
36
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised in
writing by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith shall determine that such action would expose the
Trustee to personal liability based upon the written advice of counsel.
The Trustee shall not be required to authenticate the
Securities of any series if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.01 or the Order and Opinion
of Counsel otherwise required pursuant to such preceding paragraph at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
3.09, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. A Temporary
Regulation S Security shall be delivered only in compliance with the conditions
set forth in Section 3.03 and this Section 3.04.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor.
37
If Temporary Regulation S Securities of any series are issued,
any such Temporary Regulation S Security shall, unless otherwise provided
therein, be delivered to DTC or its nominee or the Common Depositary, in each
case, for the benefit of the Euroclear Operator and Clearstream, Luxembourg, for
credit to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such Temporary
Regulation S Security of a series (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such Temporary Regulation S
Security executed by the Company. On or after the Exchange Date, such Temporary
Regulation S Security shall be surrendered by DTC or its nominee or the Common
Depositary, as the case may be, to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities of that series without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such Temporary Regulation S Security a
like aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such Temporary
Regulation S Security to be exchanged; provided however, that upon such
presentation by DTC or its nominee or the Common Depositary, such Temporary
Regulation S Security must be accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by the Euroclear Operator as to the portion
of such Temporary Regulation S Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream, Luxembourg as to the portion of such Temporary Regulation
S Security held for its account then to be exchanged, each in the form set forth
in Section 3.12(2). The definitive Securities to be delivered in exchange for
any such Temporary Regulation S Security shall, unless otherwise specified in
the Temporary Regulation S Security, be in or in the form of Permanent
Regulation S Securities.
Unless otherwise specified in the Temporary Regulation S
Security, the interest of a beneficial owner of Securities of a series in a
Temporary Regulation S Security shall be exchanged on the Exchange Date for
interest in a permanent global registered Security (a "Permanent Regulation S
Security") of the same series and of like tenor unless, on or prior to the
Exchange Date, such beneficial owner has not delivered to the Euroclear Operator
or Clearstream, Luxembourg, as the case may be, a certificate in the form set
forth in Section 3.12(1) dated no earlier than the Certification Date, copies of
which certificate shall be available from the office of the Euroclear Operator
and Clearstream, Luxembourg, the Trustee, and any Authenticating Agent appointed
for such series of Securities and each Paying Agent and after the Exchange Date,
the interest of a beneficial owner of Securities of a series in a Temporary
Regulation S Security shall be exchanged for an interest in a Permanent
Regulation S Security of the same series and of like tenor following such
beneficial owner's delivery to the Euroclear Operator or Clearstream,
Luxembourg, as the case may be, of a certificate in the form set forth in
Section 3.12(1) dated no earlier than the Certification Date. Unless otherwise
specified in such Temporary Regulation S Security, any such exchange shall be
made free of charge to the beneficial owners of such Temporary Regulation S
Security.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, interest payable on a
Temporary Regulation S Security on an Interest Payment Date for Securities of
such series shall be payable to the Euroclear Operator and Clearstream,
Luxembourg on such Interest Payment Date only upon delivery by the Euroclear
Operator or Clearstream, Luxembourg to the Trustee of a certificate or
certificates in the form set forth in Section 3.12(2), for credit without
further interest on or after such
38
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such Temporary Regulation S Security on such Interest
Payment Date and who have each delivered to the Euroclear Operator or
Clearstream, Luxembourg, as the case may be, a certificate in the form set forth
in Section 3.12(1). Any interest so received by the Euroclear Operator and
Clearstream, Luxembourg and not paid as herein provided shall be returned to the
Trustee immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with Section
10.17.
Section 3.05 Registration, Registration of Transfer and Exchange.
(1) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register 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 Registered Securities and of transfers of Registered
Securities. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Registered Securities and transfers of Registered Securities as
herein provided. Such Security Register shall distinguish between Original
Securities and Exchange Securities.
Except as otherwise provided in this Section 3.05(1), upon
surrender for registration of transfer of a Registered Security of any series at
the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
Subject to Section 3.05(2), at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denominations and of a like
tenor and aggregate principal amount upon surrender of the Registered Securities
to be exchanged at such office or agency. Whenever any Registered Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company evidencing
the same debt (subject to the provisions, if any, in the Original Securities
regarding payment of Special Interest) and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
In the event that the Company delivers to the Trustee a copy
of an Officer's Certificate certifying that a registration statement under the
Securities Act with respect to an Exchange Offer relating to a particular series
of Securities, if any such Exchange Offer is contemplated for such series, has
been declared effective by the Commission and that the Company has offered
Exchange Securities of such series to the Holders in accordance with the
Exchange Offer, the Trustee shall exchange, upon request of any Holder, such
Holder's Securities for Exchange Securities upon the terms set forth in the
Exchange Offer.
39
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company 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 Sections 3.04, 9.06 or 11.07 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Registered Securities of any series during a period
beginning at the opening of business 15 days before any selection of Securities
of that series to be redeemed and ending at the close of business on the day of
the mailing of the relevant notice of redemption or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption, in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
The provisions of Clauses (a), (b), (c) and (d) below shall
apply only to Global Registered Securities:
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security 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.
(b) Subject to Clause (4) below, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(c) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Sections 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated
and delivered in the form of, and shall be, a Global Security, unless
such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(d) Except as provided below, owners of beneficial interests
in Global Securities will not be entitled to receive Registered
Securities in their names ("Certificated Securities"). Certificated
Securities shall be issued to all owners of beneficial interests in a
Global Note in exchange for such interests if:
(i) The Depositary notifies the Company that it is
unwilling or unable to continue as depositary for such Global
Note or the Depositary 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, and a successor depositary is
not appointed by the Company within 90 days of such notice,
(ii) The Depositary executes and delivers to the Trustee
and the Security Registrar an Officers' Certificate stating
that such Global Note shall be so exchangeable, or
(iii) an Event of Default has occurred and is continuing
and the Security Registrar has received a request from the
Depositary or the Security Registrar and the Company have
received a request from the Trustee.
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In connection with the exchange of an entire Global Security for
Certificated Securities pursuant to this Clause (d), such Global Note shall
be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and upon receipt of an Order the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Global Security,
an equal aggregate principal amount of Certificated Securities of
authorized denominations.
(e) Members of, or participants in, DTC or Euroclear and Clearstream,
Luxembourg, as the case may be ("Agent Members"), shall have no rights
under this Indenture with respect to any Global Security held on their
behalf by DTC or by the Common Depositary under such Global Security, and
DTC or the Common Depositary, as the case may be, may be treated by the
Company, the Trustee, the Paying Agent and the Security Registrar and any
of their agents as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee, the Paying Agent or the Security
Registrar or any of their agents from giving effect to any written
certification, proxy or other authorization furnished by DTC or the Common
Depositary or impair, as between DTC or Euroclear and Clearstream,
Luxembourg and their respective Agent Members, the operation of customary
practices governing the exercise of the rights of an owner of a beneficial
interest in any Global Security. The registered Holder of a Global Security
may grant proxies and otherwise authorize any Person, including Agent
Members and Persons that may hold interests through Agent Members, to take
any action that a Holder is entitled to take under this Indenture or the
Securities.
(2) Certain Transfers and Exchanges.
(a) The following provisions shall apply with respect to any proposed
transfer of an interest in a Restricted Global Security: If (i) the owner
of a beneficial interest in a Restricted Global Security wishes to transfer
such interest (or portion thereof) to a Non-U.S. Person pursuant to
Regulation S and (ii) such Non-U.S. Person wishes to hold its interest in
the Security through a beneficial interest in the Regulation S Global
Security, (x) upon receipt by the Depositary and Security Registrar of:
(i) instructions from the Holder of the Restricted Global Note
directing the Depositary and Security Registrar to credit or cause to
be credited a beneficial interest in the Regulation S Global Security
equal to the principal amount of the beneficial interest in the
Restricted Global Security to be transferred, and
(ii) a Restricted Securities Certificate in the form of Annex B
from the transferor,
and (y) subject to the rules and procedures of the Depositary, the
Depositary and Security Registrar shall increase the Regulation S Global
Security and decrease the Restricted Global Security by such amount in
accordance with the foregoing.
(b) If the owner of an interest in a Regulation S Global Security
wishes to transfer such interest (or any portion thereof) to a "qualified
institutional buyer" as defined by and pursuant to Rule 144A prior to the
expiration of the Restricted Period therefor, (x) upon receipt by the
Depositary and Security Registrar of:
41
(i) instructions from the Holder of the Regulation S Global
Security directing the Depositary and Security Registrar to credit or
cause to be credited a beneficial interest in the Restricted Global
Note equal to the principal amount of the beneficial interest in the
Regulation S Global Security to be transferred, and
(ii) a Restricted Securities Certificate in the form of Annex B
duly executed by the transferor,
and (y) in accordance with the rules and procedures of the Depositary,
the Depositary and Security Registrar shall increase the Restricted Global
Security and decrease the Regulation S Global Security by such amount in
accordance with the foregoing.
(c) Other Transfers. Any transfer of Restricted Securities or
Regulation S Securities not described above (other than a transfer of a
beneficial interest in a Global Security that does not involve an exchange
of such interest for a Certificated Note or a beneficial interest in
another Global Security, which must be effected in accordance with
applicable law and the rules and procedures of the Depositary, but is not
subject to any procedure required by this Indenture) shall be made only
upon receipt by the Security Registrar of such opinions of counsel,
certificates and/or other information reasonably required by and
satisfactory to it in order to ensure compliance with the Securities Act or
in accordance with paragraph (3) of this Section 3.05.
(3) Securities Act Legends. Rule 144A Securities and their
Successor Securities shall bear a Restricted Securities Legend, and Initial
Regulation S Securities and their Successor Securities shall bear a Regulation S
Legend, subject to the following:
(a) subject to the following Clauses of this Section 3.05(3), a
Security or any portion thereof which is exchanged, upon registration of
transfer or otherwise, for a Registered Global Security or any portion
thereof shall bear the Securities Act legend borne by such Registered
Global Security while represented thereby;
(b) subject to the following Clauses of this Section 3.05(3), a new
Registered Security which is issued in exchange for another Security or any
portion thereof, upon registration of transfer or otherwise, shall bear the
Securities Act legend borne by such other Security, provided that, if such
new Registered Security is required to be issued in the form of a
Restricted Security, it shall bear a Restricted Securities Legend and, if
such new Registered Security is so required to be issued in the form of a
Regulation S Security, it shall bear a Regulation S Legend;
(c) any SEC Registered Securities shall not bear a Securities Act
legend,
(d) after the applicable restricted period prescribed by Rule 144(k)
under the Securities Act, a new Registered Security which does not bear a
Securities Act legend may be issued in exchange for or in lieu of a
Registered Security or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate, satisfactory
to the Trustee and duly executed by the Holder of such legended Security or
his attorney duly authorized in writing, and after such date and receipt of
such certificate, the Trustee shall authenticate and deliver such a new
Registered Security in exchange for or in lieu of such other Registered
Security as provided in this Article Three,
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(e) a new Registered Security which does not bear a Securities
Act legend may be issued in exchange for or in lieu of a Registered
Security or any portion thereof which bears such a legend if, in the
Company's judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of the Company, shall
authenticate and deliver such a new Security as provided in this Article
Three, and
(f) notwithstanding the foregoing provisions of this Section
3.05(3), a Successor Security of a Security that does not bear a particular
form of Securities Act legend shall not bear such form of legend unless the
Company has reasonable cause to believe that such Successor Security is a
"restricted security" within the meaning of Rule 144 under the Securities
Act, in which case the Trustee, at the direction of the Company, shall
authenticate and deliver a new Security bearing a Restricted Securities
Legend in exchange for such Successor Security as provided in this Article
Three.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount bearing a number not contemporaneously outstanding, appertaining to the
surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a protected
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount bearing a number not
contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, in
case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and any such
new Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
43
Section 3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid, in the case of definitive Registered Securities, to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest and, at the
option of the Company, may be paid by check mailed to the address of the Person
as it appears in the Security Register or, in the case of Global Securities, by
wire transfer of same-day funds to the Holder.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest, which shall be not more than 15 days and not less
than ten days prior to the date of the proposed payment and not less
than ten days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each
Holder of Securities of such series in the manner set forth in Section
1.06, not less than ten days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
3.05, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
predecessor Security.
44
Section 3.08 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Sections 3.04, 3.05 and 3.07) any interest on such
Security, and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 3.09 Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or conversion or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures unless otherwise directed by an Order.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly notify
the Trustee of any change in the CUSIP numbers.
Section 3.12 Add On Notes.
Unless otherwise provided pursuant to Section 3.01, the Company
may, from time to time, subject to compliance with any other applicable
provisions of this Indenture, without the consent of the Holders, create and
issue pursuant to this Indenture additional notes ("Add On Notes") having terms
and conditions identical to those of any other series of Outstanding Securities
issued under this Indenture, except that Add On Notes:
(1) may have a different issue date from such other series of
Outstanding Securities;
45
(2) may have a different amount of interest payable on the first
Interest Payment Date after issuance than is payable on such other series
of Outstanding Securities;
(3) may have terms specified pursuant to the Board Resolution or
other document evidencing an Authorization or in a supplemental indenture
for such Add On Notes making appropriate adjustments to the terms of this
Indenture applicable to such Add On Notes in order to conform to and ensure
compliance with the Securities Act (or other applicable securities laws)
and any Registration Rights Agreement applicable to such Add On Notes,
which are not adverse in any material respect to the Holder of any such
series of Outstanding Securities (other than such Add On Notes); and
(4) may be entitled to Step-Up interest not applicable to such
other series of Outstanding Securities and may not be entitled to such
Step-Up interest applicable to such other series of Outstanding Securities.
Section 3.13 Forms of Certification.
(1) Whenever any provision of this Indenture contemplates that
certification be given by a beneficial owner of a portion of the Temporary
Regulation S Security, such certification shall be provided substantially in the
form of the following certificate, with only such changes as shall be approved
by the Company:
CERTIFICATE
PETROBRAS INTERNATIONAL FINANCE COMPANY
Company
[Title of Securities]
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that (a) are foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-l2(c)(l)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise the Company or its agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and, in addition, if the owner of the Securities is a
United States or foreign financial institution described in Clause (iii) above
(whether or not also described in Clause (i) or (ii)) this is to further certify
that such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
46
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you by tested telex if the above statement
is not correct on the date on which you intend to submit your certificate
relating to such Securities to the Trustee, and in the absence of any such
notification it may be assumed that this certificate applies as of such date.
This certificate excepts and does not relate to U.S.$ ___of which
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
cannot be made until we do so certify.
We understand that this certificate is required in connection
with certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
Dated:
By: ________________
As, or as agent for,
the beneficial owner(s) of
the Securities to which this
certificate relates";
(2) Whenever any provision of this Indenture contemplates that
certification be given by DTC (or its nominee), the Euroclear Operator or
Clearstream, Luxembourg in connection with the exchange of a Temporary
Regulation S Security for a Permanent Regulation S Security, such certification
shall be provided substantially in the form of the following certificate, with
only such changes as shall be approved by the Company:
CERTIFICATION
PETROBRAS INTERNATIONAL FINANCE COMPANY
Company
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture dated as of ., 2002, ______ principal
amount of the above-captioned Securities (i) is owned by Persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section l.165-12(c)(1)(v) ("financial institutions")) purchasing for their own
account or for resale, or (b) acquired the Securities through foreign branches
of United States financial
47
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution has agreed, on its own behalf or through its agent,
that we may advise the Company or its agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7))), and to the further effect that United States or
foreign financial institutions described in Clause (iii) above (whether or not
also described in Clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a Person within the United States or its possessions.
As used herein, "United States" means the United Stales of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the Temporary Regulation S Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights or
collection of any Interest) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws in the United
States. In connection therewith, if administrative or
48
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated:__________
Yours faithfully,
THE DEPOSITARY TRUST COMPANY
or
EUROCLEAR S.A./N.V.,
as operator of the Euroclear
System
or
Clearstream Banking,
societe anonyme, Luxembourg
By: ___________________
Name:
Title:
Section 3.14 Standby Purchase Agreements.
The parties hereto agree that the Trustee may, in connection with
the issuance of a series of Securities under this Indenture, enter into standby
purchase agreements (each, as may be amended or supplemented from time to time,
a "Standby Purchase Agreement") with Petrobras. The Company and the Trustee
hereby acknowledge that the purpose and intent of Petrobras in providing any
Standby Purchase Agreement is to give effect to the agreement of Petrobras, from
time to time upon the receipt of a specified notice from the Trustee that the
Company has failed to make the required payments under the Securities of such
series, this Indenture and any supplemental indenture or other applicable
document evidencing an Authorization, to purchase the Holders' claims against
the Company. The Holders of any series of Securities supported by a Standby
Purchase Agreement (by acceptance of the Securities of such series upon
issuance) shall be deemed to have consented to the sale by the Trustee, on
behalf of the Holders, of all rights such Holders may have to receive amounts
due on or in respect of the Securities of such series that are not paid by the
Company in accordance with the requirements of this Indenture and receipt by
such Holder of funds paid by Petrobras under the Standby Purchase Agreement in
respect of such unpaid amounts shall extinguish such Holder's claims against the
Company in respect of any such unpaid amounts. The Trustee agrees to treat any
Standby Purchase Agreement in substantially the same
49
fashion as it would a guarantee or similar obligation and shall promptly deposit
in accordance with the terms of Article V hereof any funds it receives from
Petrobras under or pursuant to any Standby Purchase Agreement.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Order of the Company cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange or conversion of Securities herein expressly provided for, and any
right to receive Additional Amounts as provided in Section 10.19), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(a) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.17) have been delivered to the Trustee for cancellation; or
(b) all such Securities
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Securities for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
50
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.07, the
obligations of the Company and the Trustee to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to Subclause (B) of Clause (l) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.17 shall survive.
Section 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.17,
all money deposited with the Trustee pursuant to Section 4.01 shall be held in
trust (without liability to the Holders for interest or investment) and applied
by it, in accordance with the provisions of the Securities and this Indenture,
to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal and any premium and interest for
whose payment such money has been deposited with or received by the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.01 Events of Default.
"Event of Default," wherever used herein with respect to the
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):
(1) The Company shall fail to make any payment in respect of
principal on any of the Securities whether on the Stated Maturity (as the
same may be extended as permitted hereunder), upon redemption or prior to
the Maturity or otherwise in accordance with the terms of the Securities
and this Indenture, non-payment of which shall continue for a period of 14
calendar days and the Trustee shall not have otherwise received such
amounts from amounts on deposit or otherwise by the end of such 14
calendar day period;
(2) The Company shall fail to make any payment in respect of any
interest or other amounts due on or with respect to the Securities of any
series (including Additional Amounts, if any) in accordance with the terms
of the Securities of such series and this Indenture, non-payment of which
shall continue for a period of 30 calendar days and the Trustee shall not
have otherwise received such amounts from amounts on deposit or otherwise
by the end of such 30 calendar day period;
(3) The Company shall fail to perform, or breach, any term,
covenant, agreement or obligation contained in this Indenture and such
failure is either incapable of remedy or continues for a period of 60
calendar days after there has been received by the Company from the
Trustee or the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such a
notice is a "Notice of Default" hereunder;
(4) (i) The acceleration of any Indebtedness of the Company in
accordance with the terms of such Indebtedness, it being understood that
prepayment or redemption by the Company of any Indebtedness is not
acceleration for this purpose; (ii) the Company shall fail to pay any
51
Indebtedness when due or, as the case may be, beyond any applicable grace
period specified in the underlying transaction document; or (iii) the
Company shall fail to pay when due any amount payable by it under any
Guarantee for, or indemnity in respect of, the Indebtedness of any other
Person; provided, however, that the aggregate amount of any such
Indebtedness falling within (i), (ii) or (iii) above (as to which the time
for payment has not been extended by the relevant obligees) equals or
exceeds U.S.$100,000,000 (or its equivalent in another currency);
(5) One or more final and non-appealable judgments or final decrees
is entered against the Company involving in the aggregate a liability (not
theretofore paid or reimbursed by insurance) of U.S.$100,000,000 (or its
equivalent in another currency) or more, and all such judgments or final
decrees shall not have been vacated, discharged or stayed within 120
calendar days after the rendering thereof;
(6) The Company stops payment of, or is generally unable to pay,
its debts as and when they become due except(i) as is otherwise expressly
provided under this Indenture or (ii) in the case of a winding-up,
dissolution or liquidation for the purpose of and followed by a
consolidation, merger, conveyance or transfer, the terms of which shall
have been approved by a resolution of a meeting of the Holders;
(7) Proceedings are initiated against the Company under any
applicable bankruptcy, reorganization, insolvency, moratorium or
intervention law or law with similar effect, or under any other law for
the relief of, or relating to, debtors, and any such proceeding is not
dismissed or stayed within 90 days after the entering of such proceeding,
or an administrator, receiver, trustee, manager, fiduciary, statutory
manager, intervener or assignee for the benefit of creditors (or other
similar official) is appointed to take possession or control of all or any
material part of the undertaking, property, assets or revenues of the
Company;
(8) The Company initiates or consents to judicial, administrative
or other proceedings relating to it under any applicable bankruptcy,
reorganization, insolvency, moratorium or intervention law or law with
similar effect, or under any other law for the relief of, or relating to,
debtors, or makes or enters into a conveyance, assignment, arrangement or
composition with or for the benefit of its creditors, or appoints or
applies for the appointment of an administrator, receiver, trustee,
manager, fiduciary, statutory manager, intervener or assignee for the
benefit of creditors (or other similar official) to take possession or
control of the whole or any material part of its undertaking, property,
assets or revenues, or takes any judicial, administrative or other similar
proceeding under any law for a readjustment or deferment of its
Indebtedness or any part of it;
(9) An effective resolution is passed for, or any authorized action
is taken by any court of competent jurisdiction, directing the winding-up,
dissolution or liquidation of the Company (other than in any of the
circumstances referred to as exceptions in paragraph (6) above);
(10) Any event occurs that under the laws of any relevant
jurisdiction has substantially the same effect as any of the events
referred to in any of paragraphs (6), (7), (8) or (9) of this Section
5.01.
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(11) Any action, condition or thing (including the obtaining or
effecting of any necessary consent, approval, authorization, exemption,
filing, license, order, recording or registration) at any time required to
be taken, fulfilled or done in order to (i) enable the Company lawfully to
enter into, exercise its rights and perform and comply with its
obligations under this Indenture, (ii) ensure that those obligations under
this Indenture are legally binding and enforceable or (iii) make this
Indenture admissible in evidence in the courts of Brazil and the Cayman
Islands that is not taken, fulfilled or done within ten calendar days
after notice thereof has been given to the Company by the Trustee or once
any such authorization or consent has been given, is removed, withdrawn,
modified, withheld or otherwise fails to remain valid and subsisting in
full force and effect within ten calendar days after notice of such
removal, withdrawal, modification, withholding or failure has been given
to the Company by the Trustee;
(12) This Indenture or any part thereof shall cease to be in full
force and effect or binding and enforceable against the Company, it
becomes unlawful for the Company to perform any material obligation under
this Indenture, or the Company shall contest the enforceability of this
Indenture or deny that it has liability under this Indenture; and
(13) Petrobras fails to retain at least 51% direct or indirect
ownership of the outstanding voting and economic interests (equity or
otherwise) of and in the Company.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.01(6), 5.01(7), 5.01(8) or 5.01(9)) with respect to
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series may declare the principal
amount (or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in Section 5.01(6), 5.01(7), 5.01(8) or 5.01(9) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof)
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 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:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue interest on all Securities of that series,
(b) the principal of (and premium and Additional Amounts, if
any, on) any Securities of that series which have become due otherwise
than by such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
53
(c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in
such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all other amounts due to the Trustee
under Section 6.07; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which has become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03 Collection of Indebtedness and Suits for znforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest or payment of
any additional interest or Additional Amounts on any Security when such
interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof and such default
continues for a period of 14 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable, including
Additional Amounts, on such Securities for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and all
amounts due the Trustee under Section 6.07.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any
other obligor upon the Securities of a series or the property of the Company or
of such other obligor or their creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders of that series of Securities and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized
54
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder of that series of
Securities to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders of
that series of Securities, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security in any such
proceeding provided, however, that the Trustee may, on behalf of the Holders of
Securities, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other similar committee.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due to the Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest and any Additional Amounts on
the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Company.
Section 5.07 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
the Securities or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of such
series;
55
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections
3.04, 3.05 and 3.07) interest and any Additional Amounts on such Security on the
respective Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and, if such Security is convertible or
exchangeable, to convert or exchange such Security in accordance with this
Indenture and to institute suit for the enforcement of such right to convert or
to receive Securities upon conversion and such rights shall not be impaired
without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in
56
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Securities may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities, as the case may be.
Section 5.12 Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed necessary by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not follow any such direction if doing so
would in its reasonable discretion either involve it in personal
liability or be unduly prejudicial to Holders of Securities not joining
in such direction.
Section 5.13 Waiver of Past Defaults.
Subject to Section 5.02, 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
default hereunder with respect to such series of the Company and its
consequences, except a default
(1) in the payment of the principal of or any premium,
interest or Additional Amounts on any Security of such series of the
Company, or
(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, or
(3) in the conversion or exchange of any Security of such
series of such Company and the delivery of Securities upon conversion.
Upon any such waiver, such default shall cease to exist, and
any Event of Default 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 impair any right consequent thereon.
57
Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
reasonable costs, including reasonable attorney's fees and expenses, against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company, in any suit instituted
by the Trustee, in any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or in any suit instituted by any Holder of any
Security for the enforcement of the payment of the principal of or any premium
or interest on any Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date) or for the enforcement of any right to convert such Security
pursuant to this Indenture.
Section 5.15 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture. The Company hereby
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
specifically set forth in this Indenture and the Trust Indenture Act and no
implied covenants or obligations shall be read into this Indenture against the
Trustee, except as otherwise required 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.
Section 6.02 Notice of Defaults.
If, to the knowledge of the Trustee, a Default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such Default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
default of the
58
character specified in Section 5.01(3) with respect to Securities of such
series, no such notice to such Holders shall be given until at least 30 days
after the occurrence thereof.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness or
other paper or document (whether in its original or facsimile form)
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Order and any resolution of the
Board of Directors of the Company may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate or an Opinion of Counsel;
(4) the Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney (and the Company shall reimburse the Trustee for
reasonable expenses in connection with such inquiry or investigation);
provided that the Trustee shall not be entitled to such information
which the Company is prevented from disclosing as a matter of law or
contract;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
59
(8) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be within the
discretion, rights or powers conferred upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any
default (as defined in Section 6.02) or Event of Default 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 is
received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture; and
(10) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
Section 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 6.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on or investment of any money received
by it hereunder except as otherwise agreed in writing with the Company.
Section 6.07 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
as shall be agreed in writing from time to time 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);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its written request for all reasonable
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 to the extent
60
that any such expense, disbursement or advance may be attributable to
its negligence or bad faith; and
(3) to fully indemnify the Trustee and any predecessor Trustee
and their agents for, and to hold it harmless against, any and all
loss, liability, damages, claims or expense arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder and the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder except to the extent that any such loss, liability or
expense may be attributable to its negligence or bad faith.
The Trustee shall have a lien prior to the Holders of
Securities to payment of amounts due it under this Section 6.07 from funds held
by the Trustee hereunder. "Trustee" for purposes hereof includes any predecessor
trustee, but the negligence or bad faith of any trustee shall not affect the
rights of any other trustee hereunder.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in Sections 5.01(6), 5.01(7),
5.01(8) or 5.01(9), the reasonable expenses and the compensation for the
services will be intended to constitute expenses of administration under Title
11 of the United States Bankruptcy Code or any other applicable law.
The provisions of this Section shall survive the resignation
or removal of the Trustee and the termination of this Indenture.
Section 6.08 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
For this purpose, the Trustee shall not be deemed to have a conflicting interest
by reason of being Trustee for the Securities of any series and Trustee for the
Securities of any other series.
Section 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be one and only one Trustee hereunder
with respect to the Securities of each series which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least U.S.$50,000,000 and its Corporate Trust Office
in the Borough of Manhattan, The City of New York, New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
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(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. The Trustee so removed may, at the expense of the Company, petition
any court of competent jurisdiction for the appointment of a successor Trustee
if no successor Trustee has been appointed within 30 days of such removal.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove by Board Resolution the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company
shall by Board Resolution promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities of such series and
accepted appointment in the manner required by Section 6.11, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
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(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
1.06. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to each of the Company and to
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series of
the Company, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series of the Company shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(3) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (1) and (2) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of Section 3.11 of the Trust Indenture Act, but only to the
extent therein specified, regarding the collection of claims against the Company
(or any such other obligor). For purposes of Section 3.11(b)(4) and (6) of such
Act, the following terms shall mean:
(1) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(2) "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial
conversion, exchange or partial redemption thereof or pursuant to Section 3.06,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustee and a copy
of which shall be promptly furnished to the Company. Wherever reference is made
in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than U.S.$50,000,000
and subject to supervision or examination by Federal or State authority. If
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such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, In addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within - mentioned Indenture.
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JPMorgan Chase Bank
As Trustee
By ____________________________
As Authenticating Agent
By ____________________________
As Authorized Signatory
If all of the Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent having an office in the Place of Payment designated by the
Company with respect of such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, if interest is paid semi-annually, or
quarterly, if interest is paid quarterly, not later than 15 days after each
Regular Record Date in each year or, if interest is paid annually, not
later than 15 days after each Regular Record Date and the date six months
subsequent to such Regular Record Date, a list, in such form as the Trustee
may reasonably require, as to the names and addresses of the Holders of
Securities as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, that, for so long as the Trustee shall be Security Registrar, no such
list shall be required to be furnished.
Section 7.02 Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of Securities received by
the Trustee in
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its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 7.01 upon receipt of a new list so furnished.
(2) The rights of the Holders of Securities to communicate with
other Holders of Securities with respect to their rights under this Indenture or
under the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of any of them shall be held accountable solely by reason
of any disclosure of information as to names and addresses of Holders of
Securities made pursuant to the Trust Indenture Act.
Section 7.03 Reports by Trustee.
(1) On or about each July 15 following the date hereof, the
Trustee shall transmit to Holders of Securities such reports, if any, dated as
of the preceding May 15 is concerning the Trustee and its actions under this
Indenture as may be required pursuant to Section 3.13(a) of the Trust Indenture
Act in the manner provided pursuant to Section 3.13(c) thereof. The Trustee
shall also transmit to Holders of Securities such reports, if any, as may be
required pursuant to Section 3.13(b) of the Trust Indenture Act at the times and
in the manner provided pursuant thereto and to Section 3.13(c) thereof.
(2) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when any Securities are
listed on any stock exchange.
Section 7.04 Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders of Securities, such information, documents and other
reports, including financial information and statements and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice (other than with respect to notice of
an Event of Default pursuant to Sections 5.01(7), 5.01(8) and 5.01(9) hereof) of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer's
Certificates).
Section 7.05 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year (i) a written notice specifying the amount, if any, of
original issue discount (including daily rates and accrual periods) accrued on
Outstanding Securities of each series as of the end of such year and (ii) such
other specific information, if any, relating to such original issue discount as
may then be relevant under the Internal Revenue Code of 1986, as amended from
time to time. The Trustee shall not be obligated to recalculate, recompute or
reconfirm such calculation.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
The Company will not, in one or a series of transactions,
consolidate or amalgamate with or merge into any corporation or convey, lease or
transfer substantially all of its properties, assets or revenues to any Person
(other than a direct or indirect Subsidiary of Petrobras) or permit any Person
(other than a direct or indirect Subsidiary of the Company) to merge with or
into it, unless:
(1) either the Company is the continuing entity or the Person
(the "Successor Company") formed by such consolidation or into which the
Company is merged or that acquired or leased such property or assets of the
Company will be a corporation organized and validly existing under the laws
of the Cayman Islands and shall assume (jointly and severally with the
Company unless the Company shall have ceased to exist as a result of such
merger, consolidation or amalgamation), by a supplemental indenture (the
form and substance of which shall be previously approved by the Trustee),
all of the Company's obligations under this Indenture;
(2) the Successor Company (jointly and severally with the Company
unless the Company shall have ceased to exist as part of such merger,
consolidation or amalgamation) agrees to indemnify each Holder against any
tax, assessment or governmental charge thereafter imposed on such Holder
solely as a consequence of such consolidation, merger, conveyance, transfer
or lease with respect to the payment of principal of, or interest on, the
Securities;
(3) immediately after giving effect to such transaction, no Event
of Default and no Default has occurred and is continuing;
(4) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such merger
consolidation, sale, transfer or other conveyance or disposition and the
amendment to this Indenture complies with the terms of this Indenture and
that all conditions precedent provided for herein and relating to such
transaction have been complied with; and
(5) the Company has delivered notice of any such transaction to
Moody's to the extent that any series of Securities is then rated by
Moody's (which notice shall contain a description of such merger,
consolidation or conveyance).
Notwithstanding anything to the contrary in the foregoing, so
long as no Default or Event of Default shall have occurred and be continuing at
the time of such proposed transaction or would result therefrom:
(6) the Company may merge, amalgamate or consolidate with or
into, or convey, transfer, lease or otherwise dispose of all or
substantially all of its properties, assets or revenues to a direct or
indirect Subsidiary of the Company or Petrobras in cases when the Company
is the surviving entity in such transaction and such transaction would not
have a material adverse effect on the Company and its Subsidiaries taken as
a whole, it being understood that if the Company is not the surviving
entity, the Company shall be required to comply with the requirements set
forth in the previous paragraph; or
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(7) any direct or indirect Subsidiary of the Company may merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose
of assets to, any person (other than the Company or any of its Subsidiaries
or Affiliates) in cases when such transaction would not have a material
adverse effect on the Company and its Subsidiaries taken as a whole; or
(8) any direct or indirect Subsidiary of the Company may merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose
of assets to, any direct or indirect Subsidiary of the Company or
Petrobras; or
(9) any direct or indirect Subsidiary of the Company may
liquidate or dissolve if the Company determines in good faith that such
liquidation or dissolution is in the best interests of Petrobras, and would
not result in a material adverse effect on the Company and its Subsidiaries
taken as a whole and if such liquidation or dissolution is part of a
corporate reorganization of the Company or Petrobras.
Section 8.02 Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to and be substituted for and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, as the case may be, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities, to evidence the full and unconditional
guarantee by another Person, as provided in Section 8.01 hereof, or to add
another Company to this Indenture for future issuances; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than
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all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture
to permit or facilitate the issuance of Securities in uncertificated form,
in bearer form or in global bearer form, provided that any such action
shall not adversely affect the Interest of the Holders of Securities of any
series in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) 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 (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to establish the form or terms of Securities of any series,
each as permitted by Sections 2.01 and 3.01; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11(2); or
(8) to reduce the conversion price of the Securities of any
series other than pursuant to this Indenture; or
(9) (i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or (ii) to amend, supplement or make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this Clause (9) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
Section 9.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of or any
installment of principal of or interest or premium on any Security or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change any obligation of
the Company to pay Additional Amounts pursuant to Section 10.19 (except as
contemplated by Section 8.01(1) and permitted by Section 9.01(1)), or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of
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acceleration of the Maturity thereof pursuant to Section 5.02, or the
coin or currency in which, any Security or any premium or interest
thereon is payable, or modify or affect in any manner adverse to the
interests of the Holders of Securities of any series the conversion or
exchange rights of such Securities, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date) or of any such right of conversion or exchange, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section
10.10, or
(4) modify any of the provisions of this Section, Section 5.13
or Section 10.07, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this Clause shall not be
deemed to require the consent of any Holder of a Security with respect
to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 10.18, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11(2) and 9.01(7), or
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the right under this Indenture
of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent
herein and in the Securities to such execution have been satisfied. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby, except as otherwise expressed therein.
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Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities at any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and such securities may be authenticated
and delivered by the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE TEN
COVENANTS
Section 10.01 Payment of Principal and Interest
The Company covenants and agrees for the benefit of Holders of
each series of Securities that it will duly and punctually pay the principal of
and any premium and interest and other amounts (including any Additional
Amounts) on the Securities of that series in accordance with the terms of the
Securities of that series and this Indenture.
Section 10.02 Performance Under This Indenture.
The Company will agree to duly and punctually perform, comply
with and observe all obligations and agreements to be performed by it under the
terms of this Indenture.
Section 10.03 Maintenance of Corporate Existence.
The Company will, and will cause each of its Subsidiaries to, (i)
maintain in effect their corporate existence and all registrations necessary
therefor except as otherwise permitted by Article VIII and (ii) take all
reasonable actions to maintain all rights, privileges, titles to property,
franchises, concessions and the like necessary or desirable in the normal
conduct of its business, activities or operations; provided, however, that this
Section 10.03 shall not require the Company to maintain or cause any Subsidiary
thereof to maintain any such right, privilege, title to property or franchise or
to preserve the corporate existence of any Subsidiary, if the Company's Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company, and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 10.04 Maintenance of Properties.
The Company will, and will cause each of its Subsidiaries to,
maintain and keep in good condition, repair and working order (normal wear and
tear excepted) all their properties used or useful in the conduct of its or its
Subsidiaries businesses and will cause, and will cause each of its Subsidiaries
to cause, to be made all necessary repairs, renewals, replacements and
improvements thereof, all as in the judgment of the Company shall be necessary
properly to conduct at all times the business carried on in connection
therewith; provided that this Section 10.04 shall not require the Company to
maintain or cause
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any Subsidiary thereof to maintain any of such properties if the failure to
maintain such properties does not, and will not, have a Material Adverse Effect.
Section 10.05 Compliance with Laws.
The Company will comply, and will cause its Subsidiaries to
comply, at all times in all material respects with all applicable Laws
(including, without limitation, Environmental Laws) of any Governmental
Authority having jurisdiction over the Company, the Company's business or any of
the transactions contemplated herein, except where the failure so to comply
would not have a Material Adverse Effect.
Section 10.06 Maintenance of Government Approvals.
The Company will, and will cause its Subsidiaries to, duly obtain
and maintain in full force and effect all approvals, consents or licenses of any
Governmental Authority which are necessary under the laws of Brazil, the Cayman
Islands or any other jurisdiction having jurisdiction over the Company or the
Company's business, or the transactions contemplated herein in order for the
Company to conduct its business or for the Company to perform its obligations
under this Indenture or the Securities or the validity or enforceability thereof
except, in the case of such approval, consent or license relating to the conduct
of the Company's business, where the failure so to comply would not have a
Material Adverse Effect.
Section 10.07 Payments of Taxes and Other Claims.
The Company will, and will cause each of its Subsidiaries to, pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, any present or future taxes, penalties, fines, duties, assessments
or other governmental charges (or interest on any of the foregoing) of
whatsoever nature levied or imposed upon the Company or such Subsidiary, as the
case may be, and all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or such
Subsidiary, as the case may be; provided, however, that this Section 10.07 shall
not require the Company to, or cause any Subsidiary thereof to, pay or discharge
or cause to be paid or discharged any such tax, penalty, fine, duty, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith and, if appropriate, by appropriate legal proceedings or where the
failure to do so would not have a Material Adverse Effect.
Section 10.08 Maintenance of Insurance.
The Company will, and will cause each of its Subsidiaries to,
maintain insurance with insurance companies that the Company reasonably believes
to be financially sound in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning or operating
properties or facilities similar to those owned or operated by the Company or
its Subsidiaries, as the case may be, in the same general locations in which the
Company and its Subsidiaries own or operate their properties or facilities,
except when the failure to do so would not have a Material Adverse Effect.
Section 10.09 Maintenance of Books and Records.
The Company shall, and shall cause each of its Subsidiaries to,
maintain books, accounts and records in accordance with U.S. GAAP.
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Section 10.10 Maintenance of Office or Agency.
So long as the Securities of any series are Outstanding, the
Company will maintain in the Borough of Manhattan, the City of New York, an
office or agency where notices to and demands upon the Company in respect of
this Indenture and the Securities of such series may be served, and the Company
will not change the designation of such office without prior notice to the
Trustee and designation of a replacement office in the same general location. If
at any time the Company shall fail to maintain any required office or agency or
shall fail to furnish the Trustee with the address thereof, all presentations,
surrenders, notices and demands may be served at the Corporate Trust Office and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Section 10.11 Ranking.
The Company shall ensure that the Securities of each series will
at all times constitute general senior, unsecured and unsubordinated obligations
of the Company and will rank pari passu, without any preferences among
themselves, with all other present and future unsecured and unsubordinated
obligations of the Company (other than obligations preferred by statute or by
operation of law).
Section 10.12 Use of Proceeds.
Unless otherwise indicated in any Board Resolution, supplemental
indenture or other document evidencing an Authorization pursuant to Section 3.01
hereof, the Company will use the proceeds from the offer and sale of the
Securities of any series after the deduction of any commissions principally for
general corporate purposes, including the financing of the purchase of oil
product imports and the repayment of existing trade-related debt.
Section 10.13 Statement by Officers as to Default and Notices of Events of
Default.
The Company (and each other obligor on the Securities of any
series) will deliver to the Trustee, within 90 days after the end of each fiscal
year of the Company ending after the date hereof (which, unless the Trustee is
notified otherwise, shall be December 31), an Officer's Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company (or any such
obligor) shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge. Within 15 days (or promptly
with respect to Events of Default pursuant to Sections 5.01(4), 5.01(5) and
5.01(6) hereunder) after the Company becomes aware or should reasonably become
aware of the occurrence of an Event of Default pursuant to Section 5.01
hereunder, the Company shall provide notice to the Trustee of such occurrence,
accompanied by an Officer's Certificate of the Company setting forth the details
thereof.
Section 10.14 Provision of Financial Statements and Reports.
In the event that the Company shall file any financial statements
or reports with the SEC or shall publish or otherwise make such statements or
reports publicly available in Brazil, the United States or elsewhere, the
Company shall furnish a copy of such statements or reports to the Trustee within
15 calendar days of the date of filing or the date the information is otherwise
made publicly available, as the case may be.
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The Company will provide, together with each of the financial
statements delivered pursuant to Clause (i) above, an Officer's Certificate
stating (A) that a review of the Company's activities has been made during the
period covered by such financial statements with a view to determining whether
the Company has kept, observed, performed and fulfilled its covenants and
agreements under this Indenture; and (B) that no Default or Event of Default has
occurred during such period or, if one or more have actually occurred,
specifying all such events and what actions have been taken and will be taken
with respect to such Event of Default.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
Section 10.15 Further Actions.
The Company will, at its own cost and expense, and will cause its
Subsidiaries to, at their own cost and expense, take any action, satisfy any
condition or take any action (including the obtaining or effecting of any
necessary consent, approval, authorization, exemption, filing, license, order,
recording or registration) at any time required, in the reasonable opinion of
the Trustee, in accordance with applicable Laws (as applicable) to be taken,
fulfilled or done in order to (i) to enable the Company to lawfully enter into,
exercise its rights and perform and comply with its obligations under each
series of the Securities and this Indenture, (ii) to ensure that the Company's
obligations under each series of the Securities and this Indenture are legally
binding and enforceable, (iii) to make each series of the Securities and this
Indenture admissible in evidence in the courts of the State of New York, Brazil
or the Cayman Islands, (iv) to enable the Trustee to exercise and enforce its
rights under and carry out the terms, provisions and purposes of this Indenture,
(v) to take any and all action necessary to preserve the enforceability of, and
maintain the Trustee's rights hereunder, including, without limitation,
refraining from taking any action that reasonably can be expected to have an
adverse effect on the enforceability of, or any of the Trustee's rights under,
this Indenture, and (vi) to assist the Trustee in the Trustee's performance of
its obligations under this Indenture; provided, however, that the Company shall
not be required to take any action contemplated herein if it promptly (and in no
event later than two Business Days after any such request) provides to the
Trustee a written Opinion of Counsel reasonably acceptable to the Trustee
specifying that the failure to take such action or satisfy such condition would
not have an adverse effect on the rights of the Holders under this Indenture.
Section 10.16 Appointment to Fill a Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint in the manner provided in Section 6.10, a
successor Trustee, so that there shall at all times be a Trustee with respect to
the Securities.
Section 10.17 Payments and Paying Agents.
The Company will, prior to 3:00 p.m. New York City time, on the
Business Day preceding any payment date of the principal of or interest on any
series of Securities or other amounts (including Additional Amounts), deposit
with the
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Trustee a sum sufficient to pay such principal, interest or other amounts
(including Additional Amounts) so becoming due.
Whenever the Company shall appoint a Paying Agent other than
the Trustee with respect to any series of Securities, it will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on any Securities
(whether such sums have been paid to it by or on behalf of the Company
or by any other obligor on the Securities) in trust for the benefit of
the Holders or of the Trustee;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities) to make any payment
of the principal of or interest on any series of Securities (including
Additional Amounts) and any other payments to be made by or on behalf
of the Company under this Indenture or the Securities when the same
shall be due and payable; and
(3) that it will pay any such sums so held in trust by it to
the Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in Clause (ii) above.
The Trustee shall arrange with all such Paying Agents for the
payment, from funds furnished by the Company to the Trustee pursuant to this
Indenture, of the principal of and interest and other amounts due on the
Securities (including Additional Amounts) and of the compensation of such Paying
Agents for their services as such.
If the Company shall act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or interest on such series of Securities, set aside, segregate and
hold in trust for the benefit of the Holders of such series of Securities a sum
sufficient to pay such principal or interest (including Additional Amounts) so
becoming due. The Company will promptly notify the Trustee of any failure to
take action.
Anything in this Section 10.17 to the contrary
notwithstanding, the Company may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to any series of Securities hereunder,
or for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for such series of Securities by the Company or any Paying Agent
hereunder, as required by this Section, such sums to be held by the Trustee upon
the trusts herein contained.
Anything in this Section 10.17, to the contrary
notwithstanding, the agreements to hold sums in trust as provided in this
Section are subject to the provisions of Section 4.02.
The Company agrees to indemnify the Holders against any
failure on the part of any Paying Agent to pay, in accordance with the terms
hereof, any sum due in respect of any series of Securities on the applicable
Payment Date.
Section 10.18 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01
for Securities of such series, the Company may, with respect to the Securities
of any series, omit in any particular instance to comply with any term,
provision or condition set forth in any covenant provided pursuant to Section
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3.01(23), 9.01(2) or 9.01(6) for the benefit of the Holders of Securities of
such series or any term, provision or condition set forth in an indenture
supplemental hereto, if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 10.19 Additional Amounts.
Unless otherwise specified in any Board Resolution of the
Company or indenture supplemental hereto establishing the terms of Securities of
a series in accordance with Section 3.01, if any deduction or withholding for
any present or future taxes, assessments or other governmental charges of Brazil
(or any political subdivision or taxing authority thereof or therein) shall at
any time be required by Brazil (or any such political subdivision or taxing
authority) in respect of any amounts to be paid by the Company of principal of
or interest on a Security of any series, the Company will pay to the Holder of a
Security of such series such additional amounts as may be necessary in order
that the net amounts paid to such Holder of such Security who, with respect to
any such tax, assessment or other governmental charge, is not resident in
Brazil, after such deduction or withholding, shall be not less than the amounts
specified in such Security to which such Holder is entitled ("Additional
Amounts"); provided, however, that the Company shall not be required to make any
payment of Additional Amounts for or on account of:
(1) any tax, assessment or other governmental charge which
would not have been imposed but for (i) the existence of any present or
former connection between such Holder or the beneficial owner of the
Security of such series (or between a fiduciary, settler, beneficiary,
member or shareholder of, or possessor of a power over, such Holder or
beneficial owner, if such Holder or beneficial owner is an estate,
trust, partnership or corporation) and Brazil or any political
subdivision or territory or possession thereof or area subject to its
jurisdiction other than the mere holding of a Security or receipt of
payment in respect thereto, including, without limitation, such Holder
or beneficial owner (or such fiduciary, settler, beneficiary, member,
shareholder or possessor) being or having been a citizen or resident
thereof or being or having been present or engaged in trade or business
therein or having or having had a permanent establishment therein or
(ii) the presentation of a Security of such series (where presentation
is required) for payment on a date more than 30 days after the date on
which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(2) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge;
(3) any amount required to be deducted or withheld by any
Paying Agent from a payment on or in respect of the Security, if such
payment can be made without such deduction or withholding by any other
Paying Agent and we duly provide for such other Paying Agent to make
such payment;
(4) withholding for any taxes, duties, assessments or other
governmental charges that are payable otherwise than by deduction or
withholding from payments on the Security;
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(5) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure to comply by the Holder or
the beneficial owner of the Security of such series with a request of
the Company addressed to the Holder (i) to provide information
concerning the nationality, residence or identity of the Holder or such
beneficial owner or (ii) to make any declaration or other similar claim
or satisfy any information or reporting requirements, which, in the
case of (i) or (ii), is required or imposed by a statute, treaty,
regulation or administrative practice of Brazil as a precondition to
exemption from all or part of such tax, assessment or other
governmental charge;
(6) where any Additional Amounts are imposed on a payment on
the Notes to an individual and is required to be made pursuant to any
European Union directive on the taxation of savings income relating to
the directive approved by the European Parliament on March 14, 2002 or
otherwise implementing the conclusions of the Economic and Financial
Council of Ministers of the member states of the European Union
(ECOFIN) Council meeting of 26 and 27 November 2000 or any law
implementing or complying with, or introduced in order to conform to,
any such Directive; or
(7) any combination of items (1), (2), (3), (4), (5) and (6)
above.
nor shall Additional Amounts be paid with respect to any payment in respect of
any Security to any Holder or beneficial owner who is a fiduciary or partnership
or other than the sole beneficial owner of such payment to the extent such
payment would be required by the laws of Brazil (or any political subdivision or
taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner who would not have been entitled to
such Additional Amounts had it been the Holder or beneficial owner, as the case
may be, of such Security. Subject to the foregoing provisions, whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
If the terms of the Securities of a series established as
contemplated by Section 3.01 do not specify that Additional Amounts pursuant to
the Section will not be payable by the Company, at least ten days prior to the
first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest on or prior to Maturity, the
first day on which a payment of principal and any premium is made), and at least
ten days prior to each date of payment of principal and any premium or interest
if there has been any change with respect to the matters set forth in the
below-mentioned Officer's Certificate, the Company will furnish the Trustee and
the Company's principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officer's Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and any premium or
interest on the Securities of that series shall be made to Holders of Securities
of that series without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officer's Certificate shall
specify the amount, if any, required to be withheld on such payments to such
Holders of Securities and the Company will pay to the Trustee or such Paying
Agent or Paying Agents the Additional Amounts required by this Section. The
Company covenants to indemnify each of the Trustee and any Paying
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Agent for, and to hold each of them harmless against, any reasonable loss,
liability or expense arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officer's Certificate furnished
pursuant to this Section, except to the extent that any such loss, liability or
expense is due to its own negligence or bad faith.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series
or issuance shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of all or less than all the Securities of any
series (including any such redemption affecting only a single Security), the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be reasonably satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities (i) prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (ii) pursuant to an election
of the Company which is subject to a condition specified in the terms of the
Securities, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
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 amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
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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.
Section 11.04 Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 1.06 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest and Additional
Amounts, if any,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed and if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price, plus
accrued interest, if any, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, plus accrued interest
and Additional Amounts, if any,
(6) that the redemption is for a sinking fund, if such is the
case,
(7) the current conversion price and the date on which the
right to convert such Securities or portions thereof will expire, and
(8) the CUSIP number or numbers, if any, with respect to such
Securities.
A notice of redemption published as contemplated by Section
1.06 need not identify particular Global Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company ,and shall
be irrevocable.
Section 11.05 Deposit of Redemption Price.
Prior to 3:00 p.m., New York City time, on the Business Day
preceding any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.17) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest
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Payment Date) accrued interest on, all the Securities which are to be redeemed
(other than those theretofore surrendered for conversion) on that date.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided however, that unless otherwise
specified as contemplated by Section 3.01, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, only in the case of Registered
Securities, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transference 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.
Section 11.08 Optional Redemption Due to Changes in Tax Treatment.
Unless otherwise specified in a Board Resolution or indenture
supplemental hereto, each series of Securities contained in one or more
particular issues may be redeemed at the option of the Company, in whole but not
in part, at any time (except in the case of Securities that have a variable rate
of interest, which may be redeemed on any Interest Payment Date) at a Redemption
Price equal to the principal amount thereof plus accrued interest to the date
fixed for redemption (except in the case of Outstanding Original Issue Discount
Securities which may be redeemed at the Redemption Price specified by the terms
of such series of Securities) if as a result of any change in or amendment to
the laws or any regulations or rulings promulgated thereunder of the
jurisdiction (or of any political subdivision or taxing authority thereof or
therein) in which the Company is incorporated (or, in the case of a successor
Person to the Company, of the jurisdiction in which such successor Person is
organized or any political subdivision or taxing authority thereof or therein)
or any change in the official application or interpretation of such laws,
regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which such jurisdiction or such political subdivision or
taxing authority (or such other jurisdiction or political subdivision or taxing
authority) is a party, which change, execution or amendment becomes effective on
or after the date specified for such series pursuant to the terms of the
Security or Section 3.01(10) (or in
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the case of a successor Person to the Company, the date on which such successor
Person became such pursuant to Sections 8.01 and 8.02.
ARTICLE TWELVE
SINKING FUNDS
Section 12.01 Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of such Securities.
Section 12.02 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (ii) may apply as credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Securities; provided that the Securities to be credited have not been previously
so credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 12.02 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 50 days prior to each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expenses of the Company in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner specified in Sections 11.06 and 11.07.
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ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 13.01 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of a series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.02 Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 13.01, to be held
at such time and at such place in the Borough of Manhattan, The City of New York
as the Trustee shall determine. Notice of every meeting of Holders of Securities
of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 1.06, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(2) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 13.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount specified above, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (1) of this Section.
Section 13.03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (i) a Holder on a record date established
pursuant to Section 1.04(3) of one or more Outstanding Securities of such
series, or (ii) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 13.04 Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 15
minutes (or such longer period not exceeding 30 minutes as the chairman may
decide) of the time appointed for any such meeting, the meeting shall if
convened upon the requisition of Holders be dissolved. In any other case it
shall stand adjourned to the same day in the next week (or if such day is not a
business day the next succeeding business day) at the same time and place. If
within 15 minutes (or such longer period not exceeding 30 minutes as the
chairman may decide) after the time
83
appointed for any adjourned meeting a quorum is not present for the transaction
of any particular business, then, subject and without prejudice to the
transaction of the business (if any) for which a quorum is present, the chairman
may either (with the approval of the Trustee) dissolve such meeting or adjourn
the same for such period, being not less than ten calendar days (but without any
maximum number of calendar days), and to such place as may be appointed by the
chairman either at or subsequent to such adjourned meeting and approved by the
Trustee, and the provisions of this sentence shall apply to all further
adjourned such meetings.
Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 13.02(1), except that such notice need be given
only once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of a reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series, whether or not
presented or represented at the meeting. However, for the avoidance of doubt, no
actions taken at such meeting shall be binding on all Holders of Securities
unless such actions were approved by the minimum percentage in principal amount
of the Outstanding Securities of the series as required elsewhere in this
Indenture or under the Trust Indenture Act with respect to such actions.
Section 13.05 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 13.02(2), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 13.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to
84
vote a majority in principal amount of the Outstanding Securities of such series
represented at the meeting, and the meeting may be held as so adjourned without
further notice.
Section 13.06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 13.02 and, if
applicable, Section 13.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have
Section 14.02 or Section 14.03 applied to any Securities or any series of
Securities designated pursuant to Section 3.01 as being defeasible pursuant to
such Section 14.02 or 14.03, in accordance with any applicable requirements
provided pursuant to Section 3.01 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 3.01 for
such Securities.
Section 14.02 Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities or series of Securities as provided in this Section
on and after the date the conditions set forth in Section 14.04 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 14.04 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when
payments are due, (ii) the Company's obligations with respect to such Securities
under Sections 3.04, 3.05, 3.06, 10.10 and 10.21, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Article
Fourteen. Subject to compliance with this Article, the Company
85
may exercise its option to have this Section 14.02 applied to any Securities
notwithstanding the prior exercise of its option to have Section 14.03 applied
to such Securities.
Section 14.03 Covenant Defeasance.
Upon the Company's exercise of its option to have this Section
applied to any Securities or any series of Securities, as the case maybe, (i)
the Company shall be released from any covenants provided pursuant to Section
3.01(23), 9.01(2) or 9.0l(7) for the benefit of the Holders of such Securities,
and (ii) the occurrence of any event specified in Section 5.01(3) 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 14.04 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section
5.01(3)), 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.
Section 14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 14.02 or Section 14.03 to any Securities or any series of Securities, as
the case may be:
(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.
86
(2) In the event of any election to have Section 14.02 apply
to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the
date of this instrument, there has been a change in the applicable U.S.
Federal income tax law, in either case (i) or (ii) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for U.S. Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not
to occur.
(3) In the event of an election to have Section 14.03 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.
(4) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) 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
5.01(6), 5.01(7), 5.01(8) and 5.01(9), 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).
(6) 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).
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) 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.
(9) 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.
87
Section 14.05 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
10.17, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 14.04 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 14.04, 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 14.04
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.
Section 14.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any Securities by reason
of any order of judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 14.02 or 14.03 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any premium or interest
on any such Security following such reinstatement of its obligations, the
Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
___________________________
88
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed on their respective behalves, all as of the day
and year first above written.
PETROBRAS INTERNATIONAL FINANCE COMPANY
By /s/ XXXXX XXXXXXXXX BARBASSA
-----------------------------
Name: Xxxxx Xxxxxxxxx Barbassa
Title: Chairman of the Board
JPMORGAN CHASE BANK, as Trustee
By /s/ XXXX X. XXXXXXX
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Treasurer
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to (S) 3.05(c)(i) and (iii)
of this Indenture)
JPMorgan Chase Bank
[Address of Trustee]
Attn: Global Agency & Trust Services
Re: [.%] Notes due o of Petrobras International Finance Company
(the "Securities")
Reference is made to the Indenture, dated as of ., 2002 (the
"Indenture"), between Petrobras International Finance Company (the "Company")
and JPMorgan Chase Bank, as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933
(the "Securities Act") are used herein as so defined.
This certificate relates to [$____________] principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
[CUSIP No(s)._________________________________________]
[COMMON CODE No(s).___________________________________]
ISIN No(s).___________________________________________
CERTIFICATE No(s).____________________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities, (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so or (iii) it
is the Holder of a Global Security and has received a certification to the
effect set forth below. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are not represented by
a Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security. In connection with such transfer, the Owner hereby
certifies or has certified that, unless such transfer is being effected pursuant
to an effective registration statement under the Securities Act, it is being
effected in accordance with Rule 904 of Regulation S or Rule 144 under the
Securities Act and with all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby further
certifies or has certified as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904 of Regulation S:
(A) the Owner is not a distributor of the Securities, an affiliate
of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
A-1
(B) the offer of the Specified Securities was not made to a
person in the United States or for the account or benefit of a
U.S. Person;
(C) either
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the
International Securities Market Association or another designated
offshore securities market and neither the Owner nor any person
acting on its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have
been satisfied; and
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after [insert date one year from
date of issuance] and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of Rule
144; or
(B) the transfer is occurring after [insert two years from date
of issuance] and the Owner is not, and during the preceding three
months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company and the Purchasers.
Dated:__________________________________
(Print the name of the Undersigned, as such term is defined
in the second paragraph of this certificate.)
By:
Name:
Title:
(if the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
A-2
ANNEX B -- Form of
Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to (S) 3.05(c)(ii),
(iii), (iv) and (v) of this Indenture)
JPMorgan Chase Bank
[address of trustee]
Attn: Global Agency & Trust Services
Re: [.%] Notes due . of Petrobras International Finance Company (the
"Securities")
Reference is made to the Indenture, dated as of ., 2002 (the
"Indenture"), between Petrobras International Finance Company (the "Company")
and JPMorgan Chase Bank, as Trustee. Terms used herein and defined in the
Indenture or in Relation S or Rule 144 under the U.S. Securities Act of 1933
(the "Securities Act") are used herein as so defined.
This certificate relates to [$_____________] principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
[CUSIP No(s)._________________________________________]
[COMMON CODE No(s).___________________________________]
ISIN No(s).___________________________________________
CERTIFICATE No(s).____________________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities, (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so or (iii) it
is the Holder of a Global Security and has received a certification to the
effect set forth below. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are not represented by
a Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Security. In connection with such transfer, the Owner hereby
certifies or has certified that, unless such transfer is being effected pursuant
to an effective registration statement under the Securities Act, it is being
effected in accordance with Rule l44A or Rule 144 under the Securities Act and
all applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies or has certified
that:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within
B-1
the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule l44A in connection with the
transfer.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after [insert date one year after
initial date of issuance] and is being effected in accordance
with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(B) the transfer is occurring after [insert date two years after
initial date of issuance] and the Owner is not, and during the
preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Purchasers.
Dated: _________________________
(Print the name of the Undersigned, as such term is defined
in the second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
X-0
XXXXX X -- Xxxx xx Xxxxxxxxxxxx
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act legends pursuant to (S) 3.05(d))
JPMorgan Chase Bank
[Address of trustee]
Attn: Global Agency & Trust Services
Re: [.%] Notes due . of Petrobras International Finance Company
(the "Securities")
Reference is made to the Indenture, dated as of ., 2002 (the
"Indenture"), between Petrobras International Finance Company (the "Company")
and JPMorgan Chase Bank, as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933
(the "Securities Act") are used herein as so defined.
This certificate relates to [$____________] principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
[CUSIP No(s). __________________________________]
[COMMON CODE No(s). ____________________________]
ISIN No(s)._____________________________________
CERTIFICATE No(s).______________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities, (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so or (iii) it
is the Holder of a Global Security and has received a certification to the
effect set forth below. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are not represented by
a Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Securities Act legend pursuant to Section
3.05(d) of the Indenture. In connection with such exchange, the Owner hereby
certifies or has certified that the exchange is occurring after [insert
applicable date] and the Owner is not, and during the preceding three months has
not been, an affiliate of the Company. The Owner also acknowledges or has
acknowledged that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
C-1
This certificate and the statements contained herein we made for
your benefit and the benefit of the Company and the Purchasers.
Dated: ___________________________
(Print the name of the Undersigned, as such term is defined
in the second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
C-2
