Exhibit 4.1
INDENTURE
among
COMPANHIA BRASILEIRA DE BEBIDAS,
as Issuer,
THE BANK OF NEW YORK,
as Trustee
and
DEUTSCHE BANK LUXEMBOURG S.A.
As Luxembourg Paying Agent
Initially Relating to 10 1/2% Notes due 2011
Dated as of December 19, 2001
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS...........................................................................................2
SECTION 1.2 CONSTRUCTION.........................................................................................14
ARTICLE II
THE NOTES
SECTION 2.1 DESIGNATION..........................................................................................15
SECTION 2.2 AUTHENTICATION AND DELIVERY OF NOTES.................................................................15
SECTION 2.3 AGGREGATE AMOUNT; ADDITIONAL NOTES...................................................................16
SECTION 2.4 FORM OF TRUSTEE'S AUTHENTICATION.....................................................................17
SECTION 2.5 FORM OF THE NOTES....................................................................................17
SECTION 2.6 MATURITY OF THE NOTES................................................................................19
SECTION 2.7 INTEREST.............................................................................................20
SECTION 2.8 RECORD DATE..........................................................................................20
SECTION 2.9 ISSUANCE.............................................................................................21
SECTION 2.10 DENOMINATIONS, ETC..................................................................................21
SECTION 2.11 EXECUTION OF NOTES..................................................................................21
SECTION 2.12 REGISTRATION; RESTRICTIONS ON TRANSFER AND EXCHANGE.................................................22
SECTION 2.13 EXCHANGE OFFER......................................................................................28
SECTION 2.14 MUTILATED, DESTROYED, LOST AND STOLEN NOTES.........................................................28
SECTION 2.15 PAYMENTS............................................................................................29
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SECTION 2.16 TAXATION............................................................................................30
SECTION 2.17 PERSONS DEEMED OWNERS; ETC..........................................................................32
SECTION 2.18 CANCELLATION........................................................................................32
SECTION 2.19 ALLOCATION OF PRINCIPAL AND INTEREST................................................................33
SECTION 2.20 CUSIP AND ISIN NUMBERS..............................................................................33
SECTION 2.21 NOTEHOLDER LISTS....................................................................................33
ARTICLE III
ESTABLISHMENT OF ACCOUNTS
SECTION 3.1 ESTABLISHMENT AND ADMINISTRATION OF PAYMENT ACCOUNT..................................................33
ARTICLE IV
REDEMPTION
SECTION 4.1 MANDATORY REDEMPTION.................................................................................34
SECTION 4.2 OPTIONAL REDEMPTION IN THE EVENT OF CHANGE IN TAX TREATMENT..........................................34
SECTION 4.3 OTHER OPTIONAL REDEMPTION............................................................................35
SECTION 4.4 NOTICE OF REDEMPTION.................................................................................35
SECTION 4.5 DEPOSIT OF REDEMPTION PRICE..........................................................................36
SECTION 4.6 NOTES PAYABLE ON REDEMPTION DATE.....................................................................36
SECTION 4.7 OPEN MARKET PURCHASES................................................................................37
ARTICLE V
CREDIT AND OTHER SUPPORT
SECTION 5.1 GUARANTY.............................................................................................37
SECTION 5.2 ESTABLISHMENT AND ADMINISTRATION OF RESERVE ACCOUNT..................................................37
SECTION 5.3 LETTERS OF CREDIT....................................................................................40
SECTION 5.4 THE INSURANCE POLICY.................................................................................42
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ARTICLE VI
COVENANTS
SECTION 6.1 PAYMENT OF PRINCIPAL AND INTEREST....................................................................43
SECTION 6.2 PERFORMANCE UNDER THE TRANSACTION DOCUMENTS..........................................................43
SECTION 6.3 MAINTENANCE OF CORPORATE EXISTENCE...................................................................43
SECTION 6.4 MAINTENANCE OF PROPERTIES............................................................................44
SECTION 6.5 COMPLIANCE WITH LAWS.................................................................................44
SECTION 6.6 MAINTENANCE OF GOVERNMENT APPROVALS..................................................................44
SECTION 6.7 PAYMENTS OF TAXES AND OTHER CLAIMS...................................................................44
SECTION 6.8 MAINTENANCE OF INSURANCE.............................................................................44
SECTION 6.9 MAINTENANCE OF BOOKS AND RECORDS.....................................................................45
SECTION 6.10 MAINTENANCE OF OFFICE OR AGENCY.....................................................................45
SECTION 6.11 RANKING.............................................................................................45
SECTION 6.12 RESERVED............................................................................................45
SECTION 6.13 NOTICE OF DEFAULTS AND EVENTS OF DEFAULT............................................................45
SECTION 6.14 NOTICE OF EXPROPRIATION OR INCONVERTIBILITY EVENTS..................................................45
SECTION 6.15 LIMITATION ON CONSOLIDATION, MERGER, SALE OR CONVEYANCE.............................................45
SECTION 6.16 LIMITATION ON LIENS.................................................................................48
SECTION 6.17 LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS.....................................................49
SECTION 6.18 TRANSACTIONS WITH AFFILIATES........................................................................49
SECTION 6.19 PROVISION OF FINANCIAL STATEMENTS AND REPORTS.......................................................50
SECTION 6.20 FURTHER ACTIONS.....................................................................................50
SECTION 6.21 AVAILABLE INFORMATION...............................................................................50
SECTION 6.22 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE..................................................51
SECTION 6.23 PAYMENTS AND PAYING AGENTS..........................................................................51
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 EVENTS OF DEFAULT....................................................................................52
SECTION 7.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT...................................................55
SECTION 7.3 DELAY OR OMISSION NOT WAIVER.........................................................................56
SECTION 7.4 WAIVER OF PAST DEFAULTS..............................................................................56
SECTION 7.5 TRUSTEE MAY FILE PROOFS OF CLAIM; APPOINTMENT OF TRUSTEE AS ATTORNEY-IN-FACT IN JUDICIAL PROCEEDINGS.56
SECTION 7.6 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES...............................................57
SECTION 7.7 APPLICATION OF MONEY COLLECTED.......................................................................57
SECTION 7.8 LIMITATION ON SUITS..................................................................................57
SECTION 7.9 UNCONDITIONAL RIGHT OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND INTEREST AND OTHER AMOUNTS...............58
SECTION 7.10 RESTORATION OF RIGHTS AND REMEDIES..................................................................58
SECTION 7.11 RIGHTS AND REMEDIES CUMULATIVE......................................................................58
SECTION 7.12 CONTROL BY NOTEHOLDERS..............................................................................58
SECTION 7.13 UNDERTAKING FOR COSTS...............................................................................59
SECTION 7.14 WAIVER OF STAY OR EXTENSION LAWS....................................................................59
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.1 CERTAIN RIGHTS AND DUTIES OF TRUSTEE.................................................................60
SECTION 8.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS; ETC............................................................62
SECTION 8.3 TRUSTEE AND OTHERS MAY HOLD NOTES....................................................................62
SECTION 8.4 MONEYS HELD BY TRUSTEE OR PAYING AGENT...............................................................63
SECTION 8.5 COMPENSATION OF THE TRUSTEE AND ITS LIEN.............................................................64
SECTION 8.6 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL...........................64
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SECTION 8.7 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE..........................................................65
SECTION 8.8 RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF SUCCESSOR.........................................65
SECTION 8.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.......................................................66
SECTION 8.10 MERGER, CONVERSION OR CONSOLIDATION OF TRUSTEE......................................................66
SECTION 8.11 MAINTENANCE OF OFFICES AND AGENCIES.................................................................67
SECTION 8.12 REPORTS BY TRUSTEE..................................................................................69
SECTION 8.13 TRUSTEE RISK........................................................................................69
SECTION 8.14 APPOINTMENT OF CO-TRUSTEE...........................................................................69
SECTION 8.15 KNOWLEDGE OF DEFAULT................................................................................71
ARTICLE IX
CONCERNING THE HOLDERS
SECTION 9.1 ACTS OF NOTEHOLDERS..................................................................................71
SECTION 9.2 NOTES OWNED BY ISSUER AND AFFILIATES DEEMED NOT OUTSTANDING..........................................73
ARTICLE X
HOLDERS' MEETINGS
SECTION 10.1 PURPOSES FOR WHICH NOTEHOLDERS' MEETINGS MAY BE CALLED..............................................73
SECTION 10.2 TRUSTEE, ISSUER AND NOTEHOLDERS MAY CALL MEETING....................................................73
SECTION 10.3 PERSONS ENTITLED TO VOTE AT MEETING.................................................................74
SECTION 10.4 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETING..................................74
SECTION 10.5 COUNTING VOTES AND RECORDING ACTION OF MEETING......................................................75
ARTICLE XI
SUPPLEMENTAL
INDENTURES
SECTION 11.1 SUPPLEMENTAL
INDENTURE WITH CONSENT OF NOTEHOLDERS..................................................75
SECTION 11.2 SUPPLEMENTAL
INDENTURES WITHOUT CONSENT OF NOTEHOLDERS..............................................76
SECTION 11.3 EXECUTION OF SUPPLEMENTAL
INDENTURES................................................................77
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SECTION 11.4 EFFECT OF SUPPLEMENTAL
INDENTURES...................................................................77
SECTION 11.5 CONFORMITY WITH TRUST
INDENTURE ACT.................................................................77
SECTION 11.6 REFERENCE IN NOTES TO SUPPLEMENTAL
INDENTURES.......................................................77
ARTICLE XII
SATISFACTION AND DISCHARGE
SECTION 12.1 SATISFACTION AND DISCHARGE OF NOTES.................................................................77
SECTION 12.2 SATISFACTION AND DISCHARGE OF
INDENTURE.............................................................78
SECTION 12.3 APPLICATION OF TRUST MONEY..........................................................................79
ARTICLE XIII
DEFEASANCE
SECTION 13.1 ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.........................................79
SECTION 13.2 DEFEASANCE AND DISCHARGE............................................................................80
SECTION 13.3 COVENANT DEFEASANCE.................................................................................80
SECTION 13.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.....................................................80
SECTION 13.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS.........................................................................................81
SECTION 13.6 REINSTATEMENT.......................................................................................82
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 COMPLIANCE CERTIFICATES AND OPINIONS................................................................82
SECTION 14.2 FORM OF DOCUMENTS DELIVERED TO TRUSTEE..............................................................83
SECTION 14.3 PLEDGE OF INTEREST IN ACCOUNTS AND RELATED COLLATERAL...............................................84
SECTION 14.4 NOTICES, ETC. TO TRUSTEE............................................................................84
SECTION 14.5 NOTICES TO NOTEHOLDERS; WAIVER......................................................................85
SECTION 14.6 CONFLICT WITH TRUST
INDENTURE ACT...................................................................86
SECTION 14.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS............................................................86
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SECTION 14.8 SUCCESSORS AND ASSIGNS..............................................................................86
SECTION 14.9 SEVERABILITY CLAUSE.................................................................................86
SECTION 14.10 BENEFITS OF INDENTURE..............................................................................86
SECTION 14.11 LEGAL HOLIDAYS.....................................................................................87
SECTION 14.12 CURRENCY RATE INDEMNITY............................................................................87
SECTION 14.13 COMMUNICATION BY NOTEHOLDERS WITH OTHER NOTEHOLDERS................................................88
SECTION 14.14 GOVERNING LAW......................................................................................88
SECTION 14.15 WAIVER OF JURY TRIAL...............................................................................88
SECTION 14.16 WAIVER OF IMMUNITY.................................................................................88
SECTION 14.17 SUBMISSION TO JURISDICTION, ETC....................................................................88
SECTION 14.18 EXECUTION IN COUNTERPARTS..........................................................................89
EXHIBIT A-1 Form of Rule 144A Restricted Global Note
EXHIBIT A-2 Form of Regulation S Unrestricted Global Note
EXHIBIT B Form of Authentication and Delivery Order
EXHIBIT C Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
EXHIBIT D Form of Transfer Certificate for Transfer to Qualified Institutional Buyers (QIBs)
EXHIBIT E Form of Non-Payment Notice
EXHIBIT F Form of Initial Notice to Insurer Relating to Inconvertibility/Expropriation Events
EXHIBIT G Form of Inconvertibility Certificate
EXHIBIT H Form of Notice to the Rating Agencies
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CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
310(a)(1)...................................................................8.7
(a)(2)...................................................................8.7
(a)(3)..................................................................8.14
(a)(4)........................................................not applicable
(a)(5)...................................................................8.7
(b)............................................................8.1(e),8.8(b)
(c)...........................................................not applicable
311(a) ..................................................................8.3(b)
(b)...................................................................8.3(b)
(c)...........................................................not applicable
312(a) ....................................................................2.21
(b)....................................................................14.13
(c)....................................................................14.13
313(a) ....................................................................8.12
(b).....................................................................8.12
(c).....................................................................8.12
(d).....................................................................8.12
314(a) ....................................................................6.19
(b)...........................................................not applicable
(c)(1)..................................................................14.1
(c)(2)..................................................................14.1
(c)(3)........................................................not applicable
(d)...........................................................not applicable
(e) 14.1
315(a) .................................................................8.1,8.6
(b).....................................................................8.15
(c)...................................................................8.1(a)
(d)...................................................................8.1(b)
(e).....................................................................7.13
316(a) (last sentence)......................................................9.2
(a)(1)(A)...............................................................7.12
(a)(1)(B)................................................................7.4
(a)(2)........................................................not applicable
(b)......................................................................7.9
(c)...................................................................9.1(g)
317(a)(1)...................................................................7.6
(a)(2)................................................................7.5(a)
(b).............................................................6.23,8.11(e)
318(a) ....................................................................14.6
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this indenture.
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INDENTURE (the "INDENTURE") dated as of December 19, 2001 among
Companhia Brasileira de Bebidas (the "ISSUER"), a SOCIEDADE ANONIMA organized
and existing under the laws of the Federative Republic of Brazil ("BRAZIL"), The
Bank of
New York, a
New York banking corporation, as trustee (the "TRUSTEE") and
as Paying Agent in
New York (the "PAYING AGENT") and Deutsche Bank Luxembourg
S.A., as paying agent in Luxembourg.
W I T N E S S E T H:
WHEREAS, the Issuer is a majority-owned subsidiary of Companhia de
Bebidas das Americas - AMBEV (the "GUARANTOR"), a SOCIEDADE ANONIMA organized
and existing under the laws of the Federative Republic of Brazil;
WHEREAS, the Issuer has duly authorized the issuance of its notes in
such principal amount or amounts as may from time to time be authorized in
accordance with the Indenture and is, on the date hereof, issuing
U.S.$500,000,000 of its 10 1/2% Notes Due 2011 under this Indenture (the
"INITIAL NOTES");
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Initial Notes and the
authentication and delivery thereof by the Trustee;
WHEREAS, pursuant to the Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT"), dated December 19, 2001 among the Issuer, the
Guarantor and certain other parties, the Issuer and the Guarantor have agreed to
register the Initial Notes under the Securities Act and to effect an exchange
offer pursuant to which the Issuer will issue notes registered under the United
Stated Securities Act of 1933, as amended (the "SECURITIES ACT") having
identical terms as the Initial Notes (except for restrictions on transfer) in
exchange for the Initial Notes (the "EXCHANGE NOTES", and collectively with the
Initial Notes, the "NOTES");
WHEREAS, the Guarantor has agreed, pursuant to the Guaranty (as may be
amended from time to time, the "GUARANTY"), dated as of the date hereof, between
the Trustee and the Guarantor, to provide Noteholders (as defined herein) with
an irrevocable and unconditional guaranty of the Issuer's obligations on all
Notes issued hereunder; and
WHEREAS, all things necessary to make the Notes, when executed by the
Issuer and authenticated and delivered by the Trustee as provided in this
Indenture, the valid, binding and legal obligations of the Issuer, and to
constitute these presents a valid indenture and agreement according to its
terms, have been done;
WHEREAS, each of the parties hereto is entering into this Indenture
for the benefit of the other party and for the equal and ratable benefit of the
holders of the Notes.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS. The following capitalized terms shall have
the meanings set forth below:
"ACT" when used with respect to any Noteholder, has the meaning set
forth in Section 9.1.
"ADDITIONAL AMOUNTS" has the meaning set forth in Section 2.15.
"ADDITIONAL NOTES" has the meaning set forth in Section 2.3(b).
"AFFILIATE" with respect to any Person, means any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person, it being understood that for purposes of this definition, the
term "CONTROL" (including the terms "CONTROLLING," "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH") of a Person shall mean the possession, direct or indirect,
of the power to vote 10% or more of the equity or similar voting interests of
such Person or to direct or cause the direction of the management and policies
of such Person, whether through the ownership of such interests, by contract or
otherwise.
"APPLICABLE PROCEDURES" has the meaning set forth in Section 2.12.
"AUTHENTICATING AGENT" means the Person acting as Authenticating Agent
hereunder pursuant to Section 8.11.
"AUTHORIZED AGENT" means any Paying Agent, Authenticating Agent or
Note Registrar or other agent appointed by the Trustee in accordance with this
Indenture to perform any function that this Indenture authorizes the Trustee or
such agent to perform.
"AUTHORIZED REPRESENTATIVE" of the Issuer or any other Person means
the person or persons authorized to act on behalf of such entity by its chief
executive officer, president, chief operating officer, chief financial officer
or any vice president or its Board of Directors or any other governing body of
such entity.
"AUTHORIZED SIGNATORY" means any officer of the Trustee or any other
individual who shall be duly authorized by appropriate corporate action on the
part of the Trustee to authenticate Notes.
"BOARD OF DIRECTORS" when used with respect to a corporation, means
either the board of directors of such corporation or any committee of that board
duly authorized to act for it, and when used with respect to a limited liability
company, partnership or other entity other than a corporation, any Person or
body authorized by the organizational documents or by the voting equity owners
of such entity to act for them, including, in the case of a Brazilian
corporation, the CONSELHO DE ADMINISTRACAO and the DIRETORIA.
2
"BOARD RESOLUTION" means, when used with respect to a corporation, a
copy of a resolution certified by the secretary or an assistant secretary of
such corporation to have been adopted by the Board of Directors of such
corporation and to be in full force and effect on the date of such
certification.
"BRAZIL" has the meaning set forth in the preamble to this Indenture.
"BRAZILIAN GAAP" means the generally accepted accounting principles in
Brazil determined in accordance with the Brazilian corporate law.
"BUSINESS DAY" means any day except a Saturday, a Sunday or a legal
holiday or a day on which banking institutions (including, without limitation,
the members of the Federal Reserve System) are authorized or required by law,
regulation or executive order to close in The City of
New York or Brazil.
"CLEARSTREAM" means Clearstream Banking, SOCIETE ANONYME.
"CLOSING DATE" means December 19, 2001, being the date that
U.S.$500,000,000 in Initial Notes are issued hereunder, representing the initial
issuance under this Indenture.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets of
a Person and its consolidated Subsidiaries (less applicable depreciation,
amortization and other valuation reserves), except to the extent resulting from
write-ups of capital assets, after deducting therefrom (i) all current
liabilities of such Person and its consolidated Subsidiaries (excluding
intercompany items) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent financial statements of such Person.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee or
Note Registrar at which the corporate trust business of the Trustee or Note
Registrar, as the case may be, shall at any particular time be principally
administered, which at the time of the execution of this Indenture is, in each
case, located at 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000.
"COVENANT DEFEASANCE" has the meaning set forth in Section 13.3.
"CUSTODIAN" has the meaning set forth in Section 2.5(d).
"CUSIP" means the CUSIP Service Bureau.
"DEFAULT" means an event or condition 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 if not cured or remedied.
"DEFAULT RATE" has the meaning set forth in Section 2.7(b).
"DEFEASANCE" has the meaning set forth in Section 13.2.
"DENOMINATION CURRENCY" has the meaning set forth in Section 14.12.
3
"DISTRIBUTION COMPLIANCE PERIOD" means, with regard to Notes offered
and sold in their initial distribution outside the United States in reliance on
Regulation S, the period of 40 consecutive days beginning on the later of (a)
the date on which the Notes are first offered to persons other than distributors
(as defined in Regulation S) in reliance on Regulation S (according to a written
notice to the Trustee by the initial purchasers thereof) and (b) the date on
which the Notes are initially issued, authenticated and sold.
"EARLY GENERAL REDEMPTION" has the meaning set forth in Section
4.3(a).
"EARLY GENERAL REDEMPTION DATE" has the meaning set forth in Section
4.3(b).
"EARLY GENERAL REDEMPTION PRICE" has the meaning set forth in Section
4.3(b).
"EARLY TAX REDEMPTION" has the meaning set forth in Section 4.2(a).
"EARLY TAX REDEMPTION DATE" has the meaning set forth in Section
4.2(b).
"EARLY TAX REDEMPTION PRICE" has the meaning set forth in Section
4.2(b).
"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" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, N.V.
"EVENT OF DEFAULT" has the meaning set forth in Section 7.1.
"EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended and in effect from time to time.
"EXCHANGE GLOBAL NOTE" has the meaning set forth in Section 2.5(c).
"EXCHANGE NOTES" has the meaning set forth in the preamble to this
Indenture.
"EXCHANGE OFFER" means an offer by the Issuer, pursuant to the
Registration Rights Agreement, to holders of the Initial Notes to issue and
deliver to such holders, in exchange for their Initial Notes, a like aggregate
principal amount of Exchange Notes registered under the Securities Act.
"EXCLUDED ADDITIONAL AMOUNTS" has the meaning set forth in Section
2.15(a).
"EXPECTED MATURITY DATE" has the meaning set forth in Section 2.6.
"EXPROPRIATION EVENT" has the meaning set forth in the Insurance
Policy.
"FEES RESERVE ALLOWANCE" has the meaning set forth in Section 5.2(f).
4
"FINAL MATURITY DATE" has the meaning set forth in Section 2.6.
"FITCH" means Fitch, Inc.
"GLOBAL NOTE" has the meaning set forth in Section 2.5(b).
"GOVERNMENTAL APPROVAL" means any authorization, consent, approval,
order, license, franchise, ruling, permit, certification, waiver, exemption,
filing or registration by or with any Governmental Authority (including, without
limitation, environmental approvals, zoning variances, special exceptions and
non-conforming uses) relating to the execution, delivery or performance of any
Transaction Document.
"GOVERNMENTAL AUTHORITY" means any regulatory, administrative or other
legal body, any court, tribunal or authority or any public legal entity or
public agency of Brazil or the United States of America 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.
"GRACE PERIOD" means, in respect of each Payment Date, the 30 calendar
day grace period for the payment of interest specified in Section 7.1(b) hereto.
"GUARANTOR" has the meaning set forth in the preamble to this
Indenture.
"GUARANTY" has the meaning set forth in the preamble of this
Indenture.
"HEDGE AGREEMENTS" means interest rate protection agreements, interest
rate swaps, cap or collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts and other similar
agreements.
"INCONVERTIBILITY EVENT" has the meaning set forth in the Insurance
Policy.
"INDEBTEDNESS" of any Person means, without duplication,
(i) indebtedness of such Person for borrowed money;
(ii) all obligations issued, undertaken or assumed as the deferred
purchase price of property or services (other than trade accounts payable
for which there is no interest due and payable (other than default
interest) according to the terms of such obligations and which are incurred
in the ordinary course of such Person's business but only if and for so
long as the same remain payable on customary trade terms);
(iii) all reimbursement or payment obligations of such Person with
respect to letters of credit, bankers' acceptances, surety bonds and
similar instruments, except for reimbursement or payment obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (i) above or (iv), (vii)
or (viii) below) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if drawn
upon, to the extent such
5
drawing is reimbursed no later than the fifth business day following
receipt by such Person of a demand for reimbursement);
(iv) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets or
businesses;
(v) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property);
(vi) all net obligations of such Person with respect to Hedge
Agreements;
(vii) all direct or indirect guaranties in respect of, and all
obligations (contingent or otherwise) of such Person to purchase or
otherwise acquire, or otherwise assure a creditor against loss in respect
of, any indebtedness referred to in clauses (i) through (vi) above; and
(viii) all indebtedness referred to in clauses (i) through (vii) above
secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such indebtedness.
"INDENTURE" has the meaning set forth in the preamble to this
Indenture.
"INITIAL NOTES" has the meaning set forth in the preamble to this
Indenture.
"INITIAL PURCHASERS" means UBS Warburg LLC, XX Xxxxxx Securities Inc.,
Xxxxxx Xxxxxxx & Co., Inc., Xxxxxxx Xxxxx Barney, Inc. and Banc of America
Securities LLC acting as such pursuant to the Purchase Agreement.
"INSURANCE POLICY" means the Insurance Policy for Expropriation and
Currency Inconvertibility, dated as of December 19, 2001, between the Insurer
and the Trustee, as amended or modified from time to time in accordance with the
terms thereof.
"INSURANCE POLICY APPLICATION" means the application for the Insurance
Policy submitted by the Trustee to the Insurer on December 19, 2001.
"INSURANCE SIDE AGREEMENT" means the Agreement Regarding the Insurance
Policy for Expropriation and Currency Inconvertibility dated as of December 19,
2001, by and among the Trustee, the Insurer, the Issuer and the Guarantor, as
amended or modified from time to time in accordance with the terms thereof.
"INSURER" means Steadfast Insurance Company, a Delaware insurance
company and a wholly owned subsidiary of Zurich American Insurance Company, an
insurance company organized under the laws of the State of
New York.
6
"INTEREST PAYMENT DATES" has the meaning set forth in Section 2.7.
"INTEREST PERIOD" means the period beginning on an Interest Payment
Date and ending on the day before the next Interest Payment Date.
"ISSUER" has the meaning set forth in the preamble to this Indenture.
"ISSUER ORDER" means a written request or order signed in the name of
the Issuer by one or more of its Authorized Representatives and, in the case of
an Issuer Order given pursuant to Section 2.3, substantially in the form of
Exhibit B.
"JUDGMENT CURRENCY" has the meaning set forth in Section 14.12.
"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.
"LEGEND" has the meaning set forth in Section 2.12(k).
"LETTER OF CREDIT" means an issued and outstanding irrevocable standby
letter of credit that (i) is issued by a commercial bank with a long term debt
rating of not less than "A1" by Moody's, "A+" by S&P and "A+" by Fitch (if rated
by Fitch), (ii) names the Trustee as the sole beneficiary thereof, (iii) is
unconditionally drawable in full or in part upon the Trustee's submission of a
certification that (A) the conditions to drawing thereunder (as set forth in
Section 5.3 (a) hereof) have been satisfied, (B) the Trustee serves as trustee
for the benefit of the Noteholders under this Indenture and (C) the Trustee is
making a drawing under such letter of credit for the benefit of the Noteholders,
(iv) is drawable no later than the Business Day after a conforming request for
drawing is submitted by the Trustee, and (v) expires not less than 364 days from
the date of issuance thereof and is automatically renewed in accordance with its
terms unless the issuer thereof notifies the Trustee in writing of its decision
not to renew no later than 60 calendar days prior to the expiry thereof.
"LIEN" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof or any
agreement to give any security interest).
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section
8.11(i).
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section
8.11(i).
"MAJORITY NOTEHOLDERS" means the holders of more than 50% in aggregate
principal amount of the Notes then Outstanding at any time.
"MAKE-WHOLE PREMIUM" means an amount (which amount shall be not less
than zero) equal to (i) the net present value of the remaining scheduled
payments of principal, interest and other amounts due on the Notes minus (ii)
the aggregate unpaid principal amount of the Notes, where:
7
(a) the net present value of the then remaining scheduled payments
of principal, interest and other amounts due on the Notes shall be
calculated as of the Early General Redemption Date using a discount factor
equal to the sum of (1) the stated treasury yield determined pursuant to
clause (b) below, plus (2) 50 basis points; and
(b) the treasury yield for purposes of clause (a) above shall be an
amount equal to the yield determined by taking the United States Treasury
security having an average life equal to the remaining average life of the
Notes (as calculated as of the Early General Redemption Date) and trading
in the secondary market at the price closest to par; PROVIDED, HOWEVER,
that, if no such United States Treasury security has an average life equal
to the remaining average life of the Notes, the treasury yield shall be an
amount equal to the yield determined by taking the yield of the two
maturities of the United States Treasury securities which have average
lives most closely corresponding to such remaining average life of the
Notes and which trade in the secondary market at the price closest to par,
and interpolating or extrapolating from such yields (on a straight-line
basis) the yield for a United States Treasury security having an average
life equal to the remaining average life of the Notes (calculated as of the
Early General Redemption Date), in each case rounding in each of such
relevant periods to the nearest month.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
condition (financial or otherwise), results of operation, or prospects of the
Issuer and its Subsidiaries, taken as a whole, (b) the ability of the Issuer to
perform its material obligations under this Indenture or any other Transaction
Document, or (c) the rights of the Trustee, acting on behalf of the holders of
the Notes, or such holders, under any of the Transaction Documents.
"MATERIAL SUBSIDIARY" means any direct or indirect subsidiary of the
Issuer or the Guarantor with total assets of more than U.S.$200,000,000 (or its
equivalent in another currency) as set forth on the consolidated financial
statements of the Guarantor as of the end of the most recent fiscal year.
"MOODY'S" means the Xxxxx'x Investor Service, Inc.
"NON-U.S. PERSON" means any person who is not a "U.S. Person" as
defined in Regulation S under the Securities Act.
"NOTEHOLDER" means a Person in whose name a Note is registered in the
Note Register.
"NOTE RATE" means, for any Interest Period, a rate per annum equal to
that set forth in Section 2.7 hereof, as in effect on the Closing Date without
any increase as contemplated in the Registration Rights Agreement.
"NOTE REGISTER" has the meaning set forth in Section 2.12.
"NOTE REGISTRAR" means any Person acting as Note Registrar pursuant to
Section 2.12.
"NOTES" has the meaning set forth in the preamble to this Indenture.
8
"OFFICER'S CERTIFICATE" means a certificate of an Authorized
Representative of the Issuer in compliance with the requirements of Section
14.1.
"OFFICIAL LENDER" means (a) any Brazilian governmental financial
institution, agency or development bank (or any other bank or financial
institution representing or acting as agent for any of such institutions,
agencies or banks), including, without limitation, BANCO NACIONAL DE
DESENVOLVIMENTO ECONOMICO E SOCIAL and the related system, (b) any multilateral
or foreign governmental financial institution, agency or development bank (or
any other bank or financial institution representing or acting as agent for any
such institutions, agencies or banks), including, without limitation, the World
Bank, the International Finance Corporation and the Inter-American Development
Bank and (c) any Governmental Authority of jurisdictions where the Issuer or any
of its Subsidiaries conducts business (or any bank or financial institutions
representing or acting as agent for such Governmental Authority).
"OPINION OF COUNSEL" means a written opinion of counsel in compliance
with the requirements of Section 14.1 hereof from any Person either expressly
referred to herein or otherwise reasonably satisfactory to the Trustee which may
include, without limitation, counsel for the Issuer or the Guarantor, whether or
not such counsel is an employee of the Issuer or the Guarantor, as applicable.
"OUTSTANDING", when used with respect to Notes or any principal amount
thereof, means, as of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for which redemption money in the necessary amount has
been theretofore deposited in trust with the Trustee; provided that if such
Notes are to be redeemed prior to the maturity thereof, notice of such
redemption has been duly given pursuant to Article III or provision
therefor satisfactory to the Trustee has been made;
(iii) Notes or portions thereof deemed to have been paid within the
meaning of Section 12.1;
(iv) Notes as to which defeasance has been effected pursuant to
Article XIII; and
(v) Notes which have been paid pursuant to Section 2.13 or that
have been exchanged for other Notes or Notes in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture other than
any Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands such Notes constitute valid obligations of the
Issuer;
PROVIDED, HOWEVER, that in determining whether the Noteholders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Issuer, the Guarantor or any of their
9
Subsidiaries or Affiliates 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 Notes which the Trustee knows to be so owned shall be so
disregarded. Notes 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 to act with respect to such Notes and that the
pledgee is not the Issuer, the Guarantor or a Subsidiary thereof or any
Affiliate of the Issuer the Guarantor or any Subsidiary thereof.
"PAYING AGENT" means the person named as Paying Agent in the preamble
to this Indenture and its successors and assigns.
"PAYMENT ACCOUNT" means the account contemplated in Section 3.1
hereof.
"PAYMENT DATE" means any of the Interest Payment Dates, the Expected
Maturity Date, the Final Maturity Date, or any other date on which payments on
the Notes in respect of principal, interest or other amounts, including as a
result of any acceleration of the Notes, are required to be paid pursuant to
this Indenture and the Notes.
"PERMITTED INVESTMENTS" shall consist of (i) direct obligations of the
United States of America, or of any agency or instrumentality of the United
States of America, the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation of the United States of America which are not
callable or redeemable at the option of the issuer thereof at a price less than
what was paid, (ii) demand and time deposit certificates of deposit of, banker's
acceptances issued by, or Federal funds sold by, any depository institution or
trust company incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by United States
federal or state authorities so long as at the time of such investment or
contractual commitment providing for such investment the commercial paper or
other short term debt obligations of such depository institution or trust
company have a short term credit rating of at least "P-1" by Moody's, "A-1" by
S&P and "F-1" by Fitch (if rated by Fitch), (iii) repurchase obligations with
respect to (A) any security described in clause (i) above or (B) any other
security issued and/or guaranteed by an agency or instrumentality of the United
States of America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above, (iv)
commercial paper which has at the time of such investment a rating of at least
"P-1" by Moody's, a rating of at least "A-1" by S&P and a rating of at least
"F-1" by Fitch (if rated by Fitch); PROVIDED, HOWEVER, that Permitted
Investments shall not include any debt obligations (or other securities) issued
by the Issuer, the Guarantor or any Affiliate thereof, (v) any money market
funds investing in any of the foregoing Permitted Investments, and (vi) The Bank
of
New York Cash Reserve, any successor to The Bank of
New York Cash Reserve so
long as in each case such Cash Reserve maintains a rating of not less than "Aaa"
by Moody's, "AAA" by S&P and "AAA" by Fitch (if rated by Fitch) or any
equivalent money market mutual fund rated not less than "Aaa" by Moody's, "AAA"
by S&P and "AAA" by Fitch (if rated by Fitch).
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or any nation or government, any state, province or
other political subdivision thereof, any central bank (or
10
similar monetary or regulatory authority) thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"PLACE OF PAYMENT", when used with respect to the Notes, means the
office or agency of the Trustee maintained pursuant to Section 8.11 and such
other place or places, if any, where the principal of and interest on the Notes
are payable as specified herein.
"PREDECESSOR NOTES", with respect to any particular Note, means any
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; for the purposes of this definition, any Note
authenticated and delivered under Section 2.13 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note.
"PROCESS AGENT" has the meaning set forth in Section 14.16.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
December 12, 2001 among the Issuer, the Guarantor and the Initial Purchasers.
"QIB" means a qualified institutional buyer as defined in Rule 144A
under the Securities Act.
"RATING AGENCIES" means Xxxxx'x, S&P and Fitch.
"RECORD DATE" means, with respect to any payment to be made on an
Interest Payment Date, the Business Day that is ten Business Days prior to such
Interest Payment Date.
"REGISTERED DEPOSITARY" means The Depository Trust Company, having a
principal office at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, together
with any Person succeeding thereto by merger, consolidation or acquisition of
all or substantially all of its assets, including substantially all of its
securities payment and transfer operations.
"REGISTRATION RIGHTS AGREEMENT" has the meaning set forth in the
preamble to this Indenture.
"REGULATION S" means Regulation S promulgated under the Securities
Act, as amended and in effect from time to time.
"REGULATION S NOTE" means a Note, including a Regulation S
Unrestricted Global Note, required to bear the Restrictive Legend applicable to
Regulation S Notes provided for in Exhibit A-2.
"REGULATION S UNRESTRICTED GLOBAL NOTE" has the meaning set forth in
Section 2.5.
"REIMBURSEMENT AGREEMENT" means any reimbursement agreement entered
into by the Guarantor, the Issuer and/or any of their respective Affiliates in
connection with any Letter of Credit.
11
"REQUIRED AMOUNT" means the sum of (i) an amount equal to the highest
amount of interest scheduled to be due during any single Interest Period; (ii)
an additional amount equal to the highest amount of interest scheduled to be due
during any single Interest Period if either (x) the Trustee has not made a
drawing upon the Reserve Account as set forth in Section 5.2(d) hereof or (y)
the amount covered under the Insurance Policy has not been increased to cover
the amount of interest due on the Notes (at the Note Rate) during three Interest
Periods; (iii) prior to the Issuer and the Guarantor satisfying their
obligations under the Registration Rights Agreement, an amount equal to the
interest that would accrue on the Notes for a period of four Interest Periods at
a rate equal to 0.5% per annum; (iv) an amount equal to 120 days of interest at
the Note Rate on the amount of interest payable under the Notes on each Interest
Payment Date; (v) an amount representing Trustee's fees due and payable by the
Issuer to the Trustee during any four Interest Periods, but not representing any
costs or expenses potentially due in any such period; and (vi) any additional
amounts as may be made available under each Letter of Credit (or any permitted
replacement thereof) or deposited by the Issuer in the Reserve Account as a
result of the involuntary cancellation or termination of the Insurance Policy or
certain other related events as described in Section 7.1(m).
"RESERVE ACCOUNT" has the meaning set forth in Section 5.2.
"RESERVE ACCOUNT TRANSFER DATE" means, in respect of any Payment Date,
the earlier to occur of (i) the last day of the Grace Period in respect of such
Payment Date and (ii) the date on which the Trustee receives from the Insurer
amounts in respect of any claim under the Insurance Policy in respect of
interest due on the Notes on the current Payment Date; provided that, in the
case of (ii) above, if any amounts are actually received by the Trustee after
1:00 p.m. (
New York time) on any calendar day, such amounts shall be deemed to
have been received on the next succeeding Business Day.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any officer in the Corporate Trust Office (or any successor group of the
Trustee) including any vice president, assistant vice president, assistant
secretary, assistant treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
"RESTRICTED NOTE" means a Note, including a Rule 144A Restricted
Global Note, required to bear the Restrictive Legend applicable to Restricted
Notes provided for in Exhibit A-1.
"RESTRICTIVE LEGEND " means the legends required by the forms of Note
attached hereto as Exhibit A-1 and A-2.
"RULE 144" means Rule 144 promulgated under the Securities Act, as
amended and in effect from time to time.
"RULE 144A" means Rule 144A promulgated under the Securities Act, as
amended and in effect from time to time.
12
"RULE 144A RESTRICTED GLOBAL NOTE" has the meaning set forth in
Section 2.5(a) hereof.
"SALE AND LEASE-BACK TRANSACTION" means any transaction or series of
related transactions pursuant to which the Issuer or any of its Subsidiaries
sells or transfers any property to any Person with the intention of taking back
a lease of such property.
"SECURITIES ACT" has the meaning set forth in the preamble to this
Indenture.
"SEC" means the Securities and Exchange Commission.
"S&P" means Standard & Poor's.
"SPECIFIED PROPERTY" means (i) any manufacturing facility, including
land and buildings and other improvements thereon and equipment located therein,
(ii) any executive offices, administrative buildings, and research and
development facilities, including land and buildings and other improvements
thereon and equipment located therein, in each case of the Issuer or any of its
Subsidiaries, and (iii) any intangible assets, including, without limitation,
any brand names, trademarks, copyrights, patents and similar rights and any
income (licensing or otherwise), proceeds of sale or other revenue therefrom.
For the avoidance of doubt, Specified Property as used herein excludes any
receivables or cash flow arising from the sales of goods and services by the
Issuer in the ordinary course of business.
"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, company, 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 Agreement shall refer
to a Subsidiary or Subsidiaries of the Guarantor.
"SUCCESSOR COMPANY" has the meaning set forth in Section 6.15.
"TAX" has the meaning set forth in Section 2.15(a).
"TAXING JURISDICTION" has the meaning set forth in Section 2.15(a).
"TRANSACTION DOCUMENTS" means, collectively, this Indenture, the
Notes, the Insurance Policy, the Guaranty, the Registration Rights Agreement,
the Insurance Side Agreement, the Insurance Policy Application, each Letter of
Credit, the application for listing of the Notes with the Luxembourg Stock
Exchange and the DTC Letter of Representations completed by the Issuer and the
Trustee in connection with the Notes.
"TRUST INDENTURE ACT" means the United States Trust Indenture Act of
1939, as amended.
13
"TRUSTEE" means the person named as the "Trustee" in the preamble to
this Indenture and its successors and assigns.
"UNITED STATES" or "U.S." means the United States of America.
"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 employed in the preparation of the Issuer's audited
financial statements, including, without limitation, those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession.
SECTION 1.2 CONSTRUCTION. For all purposes of this Indenture (and for
all purposes of any other Transaction Document or any other instrument or
agreement that incorporates provisions of this Indenture by reference), except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article I, and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) except as otherwise expressly provided herein, (i) all accounting
terms used herein shall be interpreted, (ii) all financial statements and all
certificates and reports as to financial matters required to be delivered to the
Trustee hereunder shall be prepared and (iii) all calculations made for the
purposes of determining compliance with this Indenture shall (except as
otherwise expressly provided herein) be made in accordance with, or by
application of, U.S. GAAP;
(d) unless otherwise specified, all references in this Indenture
(including the Appendices and Schedules hereto) to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Indenture;
(e) 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;
(f) unless the context clearly indicates otherwise, pronouns having a
masculine or feminine gender shall be deemed to include the other;
(g) unless otherwise expressly specified, any agreement, contract or
document defined or referred to herein shall mean such agreement, contract or
document as in effect as of the date hereof, as the same may thereafter be
amended, supplemented or otherwise modified from time to time in accordance with
the terms of this Indenture and the other Transaction
14
Documents and shall include any agreement, contract, instrument or document in
substitution or replacement of any of the foregoing entered into in accordance
with the terms of this Indenture and the other Transaction Documents;
(h) any reference to any Person shall include its permitted successors
and assigns in accordance with the terms of this Indenture and the other
Transaction Documents including, in the case of any Governmental Authority, any
Person succeeding to its functions and capacities; and
(i) unless the context clearly requires otherwise, references to "Law"
or to any particular Law shall include Laws or such particular Law as in effect
at each, every and any of the times in question, including any amendments,
replacements, supplements, extensions, modifications, consolidations,
restatements, revisions or reenactments thereto or thereof, and whether or not
in effect at the date of this Indenture.
ARTICLE II
THE NOTES
SECTION 2.1 DESIGNATION. (a) There is hereby created a series of "10
1/2% Notes Due 2011" in the aggregate principal amount of U.S.$500,000,000 which
are to be issued pursuant to this Indenture.
(b) Each Note shall constitute Indebtedness of the Issuer payable out
of the Issuer's general assets and properties. The Notes shall be direct
unsecured and unsubordinated Indebtedness of the Issuer and shall at all times
rank PARI PASSU among themselves and at least equal in right of payment with all
of the Issuer's other present and future unsubordinated, unsecured Indebtedness
from time to time outstanding.
SECTION 2.2 AUTHENTICATION AND DELIVERY OF NOTES. (a) Any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Notes executed by the Issuer to the Trustee for authentication,
together with an Issuer Order for the authentication and delivery of such Notes,
and the Trustee shall thereupon authenticate and make available for delivery
such Notes in accordance with such Issuer Order, without any further action by
the Issuer.
(b) No Note shall be secured by or entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication, in the form provided for in Section 2.4
hereof, executed by the Trustee by the manual signature of any Authorized
Signatory, and such certificate upon any Notes shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
thereunder.
(c) The Trustee shall have the right to decline to authenticate and
deliver the Notes under this Section 2.2 if the Trustee, after receipt of an
Opinion of Counsel, determines that such action may not lawfully be taken by the
Issuer or the Trustee or if the Trustee in good faith by its Board of Directors,
board of trustees, executive committee, a trust committee of
15
directors or trustees or Responsible Officer shall determine that such action
does not comply with the provisions of this Indenture or any document or
instrument delivered in connection herewith, or could expose the Trustee to
personal liability. Prior to the authentication and delivery of the Notes, the
Trustee shall also receive such other funds, accounts, documents, certificates,
instruments or opinions as may be required thereunder or it may request in order
to provide it with assurances that all action necessary in connection therewith
has been taken.
(d) Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued or sold by the Issuer,
and the Issuer shall deliver such Note to the Trustee for cancellation as
provided in Section 2.17 together with a written statement (which need not
comply with Section 14.2 and need not be accompanied by an Opinion of Counsel)
stating that such Note has never been issued or sold by the Issuer, for all
purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall never have been or be entitled
to the benefits hereof.
SECTION 2.3 AGGREGATE AMOUNT; ADDITIONAL NOTES. (a) The aggregate
principal amount of Notes that may be authenticated and delivered under this
Indenture is unlimited.
(b) Additional notes of the same series as the Notes (such additional
notes being "ADDITIONAL NOTES") may be issued from time to time under this
Indenture so long as, on the date of issuance of such Additional Notes: (i) the
requirements of Section 2.2 have been complied with, (ii) no Default or Event of
Default shall have occurred and then be continuing or shall occur as a result of
the issuance of such Additional Notes, (iii) such Additional Notes shall rank
PARI PASSU with the Notes referred to in Section 2.1 and shall have equivalent
terms and benefits as the Notes and shall be part of the same series as the
Notes, (iv) to the extent that the Insurance Policy has not been voluntarily
cancelled in accordance with Section 8.3(a) of the Insurance Policy and Section
5.4(d) hereof, the Insurance Policy shall have been amended to increase the
"Maximum Aggregate Limit of Liability" and the "Limit of Liability" under the
Insurance Policy proportionately with the amount of Additional Notes to be
issued hereunder and to make such other changes to the Insurance Policy as are
necessary to reflect the issuance of such Additional Notes, (v) regardless of
whether the Insurance Policy is in effect or has been voluntarily cancelled in
accordance with Section 8.3(a) of the Insurance Policy, Section 5.4(d) hereof or
otherwise, if any Letters of Credit have not been allowed to expire in
accordance with Section 5.3(c) hereof, the amount available under such Letters
of Credit (together with any amounts then on deposit in the Reserve Account)
shall have been increased to take into account the amount of Additional Notes to
be issued hereunder and the amount available under any such replacement Letter
of Credit (together with any amounts on deposit in the Reserve Account) shall be
at least equal to the Required Amount (after giving effect to any such
increase), (vi) each of the Rating Agencies shall have confirmed to the Trustee
in writing, prior to the issuance of such Additional Notes, that the issuance of
such Additional Notes will not result in a lowering or a withdrawal of the
rating of the Notes in effect immediately prior to any such issuance, (vii) the
Issuer and the Trustee shall have executed and delivered a supplemental
indenture to this Indenture providing for the issuance of such Additional Notes
and reflecting such amendments to this Indenture as may be required to reflect
the increase in aggregate principal amount of the Notes resulting from the
issuance of such Additional Notes, (viii) the Guarantor and the Trustee shall
have executed and, contemporaneously with the issuance of such Additional Notes,
delivered an amended and restated Guaranty reflecting the increase in the
aggregate principal amount of the Notes resulting
16
from the issuance of such Additional Notes, (ix) in the event that the Issuer
and the Guarantor have not satisfied in full their obligations under
Registration Rights Agreement, the Issuer, the Guarantor and the Initial
Purchasers shall have executed and, contemporaneously with the issuance of such
Additional Notes, delivered an amendment to the Registration Rights Agreement
reflecting the increase in the aggregate principal amount of the Notes resulting
from the issuance of such Additional Notes, and (x) the Trustee shall have
received all such opinions and other documents as it shall have reasonably
requested.
(c) All Additional Notes issued hereunder will, when issued, be
considered Notes for all purposes hereunder and will be subject to and take
benefit of all the terms, conditions and provisions of this Indenture.
SECTION 2.4 FORM OF TRUSTEE'S AUTHENTICATION. The Trustee's
certificate of authentication on all Notes shall be in substantially the
following form:
"This Note is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF
NEW YORK,
as Trustee
By:
--------------------------------
Authorized Signatory"
SECTION 2.5 FORM OF THE NOTES. (a) Notes offered and sold in reliance
on Rule 144A will be initially represented by one or more, permanent Global
Notes (in substantially the form of Exhibit A-1) in definitive, fully registered
book-entry form without interest coupons (collectively, the "RULE 144A
RESTRICTED GLOBAL NOTE") which will be registered in the name of a nominee of
the Registered Depositary and deposited on behalf of the purchasers of the Notes
represented thereby with a custodian for the Registered Depositary for credit to
the respective accounts of such purchasers (or to such other accounts as they
may direct) at the Registered Depositary. The aggregate principal amount of the
Rule 144A Restricted Global Note may from time to time be increased or decreased
by adjustments made on the records of the Note Registrar and the Registered
Depositary as hereinafter provided.
(b) Notes offered and sold in reliance on Regulation S will be
initially represented by one or more permanent Global Notes without interest
coupons (in substantially the form of Exhibit A-2) in definitive, fully
registered book-entry form (collectively, the "REGULATION S UNRESTRICTED GLOBAL
NOTE") which will be registered in the name of a nominee of the Registered
Depositary and deposited on behalf of the purchasers of the Notes represented
thereby with a custodian for the Registered Depositary for credit to the
respective accounts of such purchasers (or to such other accounts as they may
direct) at Euroclear or Clearstream. The aggregate principal amount of the
Regulation S Unrestricted Global Note may from time to time be increased or
decreased by adjustments made on the records of the Note Registrar and the
Registered Depositary as hereinafter provided.
(c) Exchange Notes exchanged for interests in the Rule 144A Restricted
Global Note, the Regulation S Unrestricted Global Note or any Initial Notes in
definitive form will be
17
issued in the form of one or more permanent Global Notes (in substantially the
form of Exhibit A-1 or A-2, as applicable, but without the restrictive legend)
in definitive, fully registered book-entry form (collectively, the "EXCHANGE
GLOBAL NOTES"; and together with the Rule 144A Restricted Global Note and the
Regulation S Unrestricted Global Note, the "GLOBAL NOTES"), which will be
registered in the name of a nominee of DTC and deposited on behalf of the
purchasers of the Notes represented thereby with a custodian for DTC for credit
to the respective accounts of such purchasers (or such accounts as they may
direct).
(d) The Notes shall be in registered form and may have such letters,
numbers or other marks of identification and such legends or endorsements
printed, lithographed, engraved, typewritten or photocopied thereon as may be
required to comply with the rules of any securities exchange upon which the
Notes are to be listed or to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Board of Directors of the Issuer or
by the Authorized Representative executing such Notes, such determination by
said Authorized Representative to be evidenced by its signing the Notes.
(e) The Notes may be issued in the form of (a) definitive Notes under
the circumstances described in Sections 2.12(c), (d) and (e) hereto or (b) one
or more Global Notes. Notes issued in definitive form shall be registered in the
name or names of such Persons and for the principal amounts as the Issuer may
request. The Issuer initially appoints the Registered Depositary to act as
depositary for the Global Notes. Notes issued in the form of a Global Note shall
be registered in the name of the Registered Depositary or its nominee. In the
event any of the Notes are issued in a transaction under Rule 144A of the
Securities Act, any such Person shall purchase such Notes in transactions
complying with Rule 144A under the Securities Act. The Trustee, as custodian
("CUSTODIAN"), will act as custodian of each Global Note for the Registered
Depositary or appoint a sub-custodian to act in such capacity. So long as the
Registered Depositary or its nominee is the registered owner of the Global Note,
it shall be considered the holder of the Notes represented thereby for all
purposes hereunder and under the Global Note. None of the Issuer, the Trustee or
any Paying Agent shall have any responsibility or liability for any aspect of
the records relating to or payments made by the Registered Depositary on account
of beneficial interests in the Global Note. Interests in the Global Note shall
be transferred on the Registered Depositary's book-entry settlement system.
(f) At such time as all beneficial interests in a particular Global
Note have been exchanged for Notes in definitive form or a particular Global
Note has been redeemed, repurchased or canceled in whole and not in part, such
Global Note shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.17. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or in the form of Notes in definitive form, the principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Registered Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Registered Depositary at the direction of the Trustee to reflect such increase.
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(g) The forms of Notes may have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistent herewith, be applicable thereto or determined by officers of the
Issuer executing such Notes, as evidenced by their execution thereof. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereof on the face of the Note. If the Notes conflict or
are inconsistent with the provisions of the Indenture, then this Indenture shall
control.
(h) At such time as all beneficial interests in a particular Global
Note have been exchanged for notes in definitive form or a particular Global
Note has been redeemed, repurchased or cancelled in whole and not in part, such
Global Note shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.18. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or in the form of a definitive Note, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Registered Depositary
at the direction of the Trustee to reflect such reduction and if the beneficial
interest is being exchanged for or transferred to a person who will take
delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement shall
be made on such Global Note by the Trustee or by the Registered Depositary at
the direction of the Trustee to reflect such increase.
SECTION 2.6 MATURITY OF THE NOTES. The Notes shall mature on December
15, 2011 (the "EXPECTED MATURITY DATE"); PROVIDED, HOWEVER, that if on or before
the Business Day prior to the Expected Maturity Date the Issuer and the
Guarantor deliver a certificate, substantially in the form of Exhibit G hereto,
to the Trustee stating that (i) either (A) the Insurance Policy is in effect and
the amount available under any Letters of Credit (together with any amounts then
on deposit in the Reserve Account) is at least equal to the Required Amount or
(B) the Insurance Policy is not in effect and the amount available under any
Letters of Credit (together with any amounts then on deposit in the Reserve
Account) is at least equal to the Required Amount and (ii) and Expropriation
Event or an Inconvertibility Event has occurred, then if such certificate shall
be received by the Trustee on or before the Expected Maturity Date, the Expected
Maturity Date shall be extended to a date (the "FINAL MATURITY DATE"), which
shall be the earliest to occur of (i) December 15, 2013 (a date which is
twenty-four calendar months after the Expected Maturity Date); (ii) the latest
date for which funds are available under any Letters of Credit or on deposit in
the Reserve Account and under the Insurance Policy to pay interest on the Notes,
and (iii) 30 calendar days after the date on which the Expropriation Event or
the Inconvertibility Event has ended.
(b) In the case of any extension of the Expected Maturity Date, the
Expected Maturity Date shall be considered a Payment Date under the terms of
this Indenture, and interest at the Note Rate shall be due on the Notes on such
Expected Maturity Date and on each Payment Date occurring thereafter until the
Final Maturity Date.
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(c) Upon the occurrence of any extension of the Expected Maturity Date
under this Section 2.6, the Issuer shall promptly, but in any event within five
Business Days thereafter, deliver notice thereof to the Noteholders, to the
Luxembourg Stock Exchange and to the Rating Agencies in accordance with the
provisions of Section 14.4 of this Indenture.
(d) No payments in respect of the principal of the Notes shall be paid
prior to the Final Maturity Date except in the case of the occurrence of an
Event of Default and acceleration of the aggregate outstanding principal amount
of the Notes or upon redemption prior to the Final Maturity Date pursuant to
Article IV hereof.
(e) The extension of the Expected Maturity Date shall not have any
effect on the rights of the Noteholders, including any right upon the occurrence
of any Event of Default.
SECTION 2.7 INTEREST. (a) Interest shall accrue on the Notes at the
rate of 10 1/2% per annum for each Interest Period (the "NOTE RATE"), PROVIDED
that if the Issuer and the Guarantor shall have failed to have an effective
registration statement in respect of the Notes declared effective by the SEC
pursuant to the Registration Rights Agreement prior to December 15, 2002 the
Note Rate shall be increased for all purposes hereunder to 11% per annum (0.5%
above the interest rate on the Initial Notes at the Closing Date) until such
time as such registration statement shall have been declared effective as
contemplated in the Registration Rights Agreement, in which case the Note Rate
shall decrease to the rate stated above. All interest shall be paid by the
Issuer to the Trustee and distributed by the Trustee in accordance with this
Indenture semiannually in arrears on June 15 and December 15 of each year (or if
such date is not a Business Day, the next succeeding Business Day following such
day) during which any portion of the Notes shall be Outstanding (each, an
"INTEREST PAYMENT DATE"), commencing on June 15, 2002, to the Person in whose
name a Note is registered at the close of business on the preceding Record Date.
Interest shall be calculated based on a 360-day year of twelve 30-day months.
Notwithstanding anything herein to the contrary, interest on the Notes at the
Note Rate shall continue to accrue in the event such interest is not paid on the
scheduled Interest Payment Date or the Final Maturity Date (or earlier as
contemplated in Section 2.15).
(b) Upon the occurrence and during the continuation of an Event of
Default under Sections 7.1(a) and (b), (i) interest shall accrue on the Notes at
a rate equal to 1.0% per annum above the Note Rate (the "DEFAULT RATE") and (ii)
to the fullest extent permitted by law, interest shall accrue on the amount of
any interest, fee, Additional Amounts, or other amount payable under this
Indenture and the Notes that is not paid when due, from the date such amount was
due until such amount shall be paid in full, excluding the date of payment, at a
rate equal to the Default Rate; PROVIDED, HOWEVER, that interest on the Notes
shall accrue at the Note Rate and not the Default Rate during the continuance of
any suspension of the Guarantor's obligations to make payments of principal
under the Guaranty where the Noteholders are otherwise receiving payments of
interest at the Note Rate from the Guarantor under the Guaranty or from the
Insurer, under the Insurance Policy or otherwise.
SECTION 2.8 RECORD DATE. The Trustee may treat the Person in whose
name any Note is registered on the applicable Record Date as the Noteholder for
all purposes under this Indenture.
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SECTION 2.9 ISSUANCE. The Initial Notes shall be issued only in a
transaction exempt from registration under the Securities Act to (a) Persons and
entities that are "qualified institutional buyers" pursuant to Rule 144A under
the Securities Act, and (b) other permitted Persons or entities pursuant to
Regulation S under the Securities Act. The Notes shall be subject to
restrictions on transfer and resale as provided in Section 2.12 hereof.
SECTION 2.10 DENOMINATIONS, ETC. The Notes shall be issued only in
fully registered form, without coupons and as otherwise provided herein. Notes
sold pursuant to Rule 144A shall be issued in the form of beneficial interests
in one or more Global Notes in minimum denominations of U.S.$100,000 and
integral multiples of U.S.$1,000 in excess thereof. Notes sold pursuant to
Regulation S and any Exchange Notes shall be issued in the form of beneficial
interests in one or more Global Notes in minimum denominations of $1,000 and
integral multiplies thereof. Beneficial interests in any Global Notes shall be
shown on, and transfers thereof shall be effected only through, the book-entry
records maintained by the Registered Depositary and its participants. Notes
issued in physical, certificated form shall not be permitted to be traded
through the facilities of the Registered Depositary, except in connection with a
transfer of a Note in certificated form to a transferee that takes delivery in
the form of beneficial interests in a Global Note pursuant to Rule 144A or
Regulation S, as the case may be.
SECTION 2.11 EXECUTION OF NOTES. (a) The Notes shall be executed on
behalf of the Issuer by one of its Authorized Representatives. The signature of
any such officers on the Notes may be manual or facsimile. Notes bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, the proper officers of the Issuer shall bind the
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
(b) Pending the preparation of definitive Notes as contemplated in
Section 2.12, the Issuer may execute, and upon instructions from the Issuer, the
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Authorized Representatives executing
such Notes may determine, as conclusively evidenced by their execution of such
Notes.
(c) Following the issuance of temporary Notes, the Issuer will cause
definitive Notes to be prepared without unreasonable delay. The definitive Notes
shall be printed, lithographed or engraved, or provided by any combination
thereof, or in any other manner permitted by the rules and regulations of any
applicable securities exchange, all as determined by the Authorized
Representatives executing such definitive Notes. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency maintained by the
Issuer for such purpose pursuant to Section 8.11, without charge to the
Noteholder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute, and the Trustee shall authenticate and deliver, in
exchange therefor the same aggregate principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
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SECTION 2.12 REGISTRATION; RESTRICTIONS ON TRANSFER AND EXCHANGE. (a)
The Issuer shall cause to be kept at the Corporate Trust Office of the Note
Registrar a register which, subject to such reasonable regulations as the Issuer
may prescribe, shall provide for the registration of Notes and for the
registration of transfers and exchanges of Notes. This register and, if there
shall be more than one Note Registrar, the combined registers maintained by all
such note registrars, are herein sometimes referred to as the "NOTE REGISTER".
The Trustee is hereby appointed the initial Note Registrar for the purpose of
registering Notes and transfers and exchanges of Notes as herein provided. Upon
any resignation or removal of the Note Registrar, the Issuer shall promptly
appoint a successor, or in the absence of such appointment, assume the duties of
such Note Registrar. The Issuer may appoint one or more co-registrars.
(b) If a Person other than the Trustee is appointed by the Issuer as
Note Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of a Note Registrar and of the location, and any change in the
location of the Note Register, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to rely upon such Note Register as to the names and
addresses of the Noteholders and the principal amounts and numbers of such
Notes.
(c) Any Global Note deposited with the Registered Depositary shall be
exchanged for definitive Notes, without coupons, and delivered to and registered
in the name of Persons named by the Registered Depositary, rather than to the
nominee for the Registered Depositary, if (i) the Issuer advises the Trustee in
writing that the Registered Depositary is no longer willing or able to discharge
properly its responsibilities as Registered Depositary with respect to the Notes
and the Issuer is unable to appoint a qualified successor, or that the
Registered Depositary has ceased to be a clearing agency registered under the
Exchange Act, (ii) the Issuer, at its option, elects to terminate the book-entry
system through the Registered Depositary with respect to the Notes and cause
issuance of certificated Notes or (iii) after the occurrence and continuation of
an Event of Default, beneficial owners holding interests representing an
aggregate principal amount of Notes of more than 50% of the Notes represented by
the Global Note advise the Trustee through the Registered Depositary in writing
that the continuation of a book-entry system through the Registered Depositary
with respect to the Notes is no longer in such owners' best interests; provided
that in no event shall a Regulation S Unrestricted Global Note be exchanged for
Notes in definitive form prior to the expiration of the Distribution Compliance
Period.
(d) Upon the occurrence of any of the events in clauses (i) through
(iii) of the preceding paragraph, the Trustee shall, by forwarding any notice
received from the Issuer to the Registered Depositary, be deemed to have
notified all Persons who hold a beneficial interest in the Global Note through
participants in the Registered Depositary or indirect participants through
participants in the Registered Depositary of the availability of certificated
Notes. Any Global Note that is transferable to the beneficial owners thereof
pursuant to Section 2.12(c) shall be surrendered by the Registered Depositary to
the Note Registrar, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal
amount of Notes of authorized denominations. Any portion of a Global Note
transferred pursuant to Section 2.12(c) and 2.12(d) shall be executed,
authenticated and delivered only in the denominations specified in the form of
Note and registered in such names as the Registered Depositary shall direct. Any
certificated Note delivered in exchange for an interest in the Rule 144A
Restricted Global Note shall bear the legend regarding transfer restrictions
applicable to the Rule 144A Restricted
22
Global Note set forth on the form of Note attached as Exhibit A-1 hereto. Any
Note delivered in exchange for an interest in the Regulation S Unrestricted
Global Note shall bear the legend regarding transfer restrictions applicable to
the Regulation S Unrestricted Global Note set forth on the form of Note attached
as Exhibit A-2 hereto. In the event of the occurrence of any of the events
specified in Section 2.12(c), the Issuer will promptly make available to the
Trustee a reasonable supply of certificated Notes in certificated, fully
registered form without interest coupons.
(e) Notwithstanding any provisions to the contrary herein, so long as
any Global Note remains outstanding and is held by or on behalf of the
Registered Depositary, transfers of such Global Note, in whole or in part, shall
only be made in accordance with this Section 2.12(e) and Section 2.12(d).
(i) Subject to this Section 2.12(e) and Section 2.12(d), transfers of
a Global Note shall be limited to transfers of such Global Note in whole,
or in part, to nominees of the Registered Depositary or to a successor of
the Registered Depositary or such successor's nominee.
(ii) Transfers of beneficial interests in Global Notes may be effected
only through the book entry system maintained by the Registered Depositary
in compliance with applicable rules and procedures of the Registered
Depositary and its direct or indirect participants (including Euroclear and
Clearstream, if applicable), in each case to the extent applicable to such
transaction and in effect from time to time the "APPLICABLE PROCEDURES").
(iii) In the event that a Global Note is exchanged for Notes in
certificated registered form without interest coupons pursuant to Section
2.12(d) hereof, such Notes may be exchanged for one another only in
accordance with such procedures as are substantially consistent with the
provisions of clauses (iv) and (v) below (including the certification
requirements) and as may be from time to time adopted by the Issuer and the
Trustee.
(iv) If the owner of a beneficial interest in a Rule 144A Restricted
Global Note wishes at any time to transfer such interest (or portion
thereof) to a Non-U.S. Person pursuant to Regulation S who wishes to hold
its interest in the Notes through a beneficial interest in the Regulation S
Unrestricted Global Note, such transfer may be effected only (A) upon
receipt by the Note Registrar of:
(1) an order given by the Registered Depositary or its
authorized representative directing the Note Registrar to credit
or cause to be credited a beneficial interest in the Regulation S
Unrestricted Global Note equal to the principal amount of the
beneficial interest in the Rule 144A Restricted Global Note to be
transferred, and
(2) a certificate in the form of Exhibit C duly executed by the
transferor, or his attorney duly authorized in writing,
23
and (B) subject to the Applicable Procedures, the Note Registrar shall
increase the Regulation S Unrestricted Global Note and decrease the Rule
144A Restricted Global Note by such amount in accordance with the
foregoing. Any beneficial interest in the Restricted Global Note that is
transferred to a Person that takes delivery in the form of a beneficial
interest in the Regulation S Global Note will, upon transfer, cease to be
an interest in the Restricted Global Note and will become an interest in
the Regulation S Global Note subject to all transfer restrictions and other
procedures applicable to beneficial interests in the Regulation S Global
Note.
(v) If the owner of an interest in a Regulation S Unrestricted
Global Note wishes at any time to transfer such interest (or any portion
thereof) to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Rule 144A Restricted Global Note, such transfer
may be effected only, (A) upon receipt by the Note Registrar of:
(1) an order given by the Registered Depositary or its
authorized representative directing the Note Registrar to credit
or cause to be credited a beneficial interest in the Rule 144A
Restricted Global Note equal to the principal amount of the
beneficial interest in the Regulation S Unrestricted Global Note
to be transferred, and
(2) if such transfer is to occur during (but only during) the
Distribution Compliance Period, a certificate in the form of
Exhibit D duly executed by the transferor or his attorney duly
authorized in writing, (accompanied, in the case of a transfer
under an exemption from the registration requirements under the
Securities Act other than pursuant to Rule 144A or Rule 144 under
the Securities Act, by an opinion of counsel stating that such
exemption is available to the transferor), and
(B) in accordance with the Applicable Procedures, the Note Registrar shall
increase the Rule 144A Restricted Global Note and decrease the Regulation S
Unrestricted Global Note by such amount in accordance with the foregoing.
Any beneficial interest in the Regulation S Unrestricted Global Note that
is transferred to a Person that takes delivery in the form of a beneficial
interest in the Rule 144A Restricted Global Note will, upon transfer, cease
to be an interest in the Regulation S Unrestricted Global Note and will
become an interest in the Rule 144A Restricted Global Note subject to all
transfer restrictions and other procedures applicable to beneficial
interest in the Rule 144A Restricted Global Note.
(vi) If the holder of a Restricted Note (other than a Global Note)
wishes at any time to transfer such Restricted Note (or a portion thereof)
to a Person who wishes to take delivery thereof in the form of a beneficial
interest in the Rule 144A Restricted Global Note or the Regulation S
Unrestricted Global Note, such transfer may be effected only, (A) upon
receipt by the Note Registrar of:
(1) such Restricted Note, duly endorsed as provided herein,
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(2) instructions from such holder directing the Note Registrar
to credit or cause to be credited a beneficial interest in the
Rule 144A Restricted Global Note or Regulation S Unrestricted
Global Note equal to the principal amount (or portion thereof) of
such certificated Note to be transferred, and
(3) a certificate in the form of Exhibit C if the specified
account to be credited with a beneficial interest in the
Regulation S Unrestricted Global Note, or a certificate in the
form of Exhibit D if the specified account is to be credited with
a beneficial interest in the Rule 144A Restricted Global Note, in
either case duly executed by the transferor or his attorney duly
authorized in writing, and
(B) subject to the Applicable Procedures of the Registered Depositary, the
Note Registrar shall:
(1) cancel the Restricted Note delivered to it (and issue a new
Note in respect of any untransferred portion thereof), and
(2) increase the Rule 144A Restricted Global Note or the
Regulation S Unrestricted Global Note, as the case may be, in
accordance with the foregoing;
(vii) If the holder of a Regulation S Note (other than a Global Note)
wishes to transfer such Regulation S Note (or a portion thereof) to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Rule 144A Restricted Global Note or the Regulation S
Unrestricted Global Note, such transfer may be effected only, (A) upon
receipt by the Note Registrar of:
(1) such Regulation S Note, duly endorsed as provided herein,
(2) instructions from the holder of such certificated Note
directing the Registrar to credit or cause to be credited a
beneficial interest in the Rule 144A Restricted Global Note or the
Regulation S Unrestricted Global Note equal to the principal
amount of the certificated Note (or portion thereof) to be
transferred, and
(3) if the transfer is to occur during (but only during) the
Distribution Compliance Period and the specified account is to be
credited with a beneficial interest in the Rule 144A Restricted
Global Note, a certificate in the form of Exhibit D, or if the
specified account is to be credited with a beneficial interest in
the Regulation S Unrestricted Global Note, a certificate in the
form of Exhibit C, in each case, duly executed by the transferor
or his attorney duly authorized in writing,
and (B) subject to the Applicable Procedures of the Registered Depositary,
the Note Registrar shall:
25
(1) cancel the Regulation S Note delivered to it, (and issue a
new Note in respect of any untransferred portion thereof) and
(2) increase the Rule 144A Restricted Global Note or the
Regulation S Unrestricted Global Note, as the case may be, for
such amount in accordance with the foregoing.
(viii) A beneficial interest in a Rule 144A Restricted Global Note or
a Regulation S Unrestricted Global Note may be exchanged for a Note
that is not a Global Note as provided in Section 2.12(c) and (d);
PROVIDED, THAT, if such interest is a beneficial interest in the
Restricted Global Note, or if such interest is a beneficial interest
in the Regulation S Unrestricted Global Note and such exchange is to
occur during the Distribution Compliance Period, then such interest
shall be exchanged for a Restricted Note or a Regulation S Note, as
the case may be. A Restricted Note or Regulation S Note that is not a
Global Note may be exchanged for a beneficial interest in a Global
Note only if (A) such exchange occurs in connection with clause
(e)(vi) or (vii) above, (B) such Note is a Regulation S Note and such
exchange occurs after the Distribution Compliance Period or (C) such
exchange occurs pursuant to an Exchange Offer or for Exchange Notes
registered under a shelf registration statement pursuant to the
Registration Rights Agreement.
(f) After the expiration of the Distribution Compliance Period, at the
option of the Noteholder, beneficial interests in Global Notes may be exchanged
in whole or in part for certificated Notes to be registered in the name of such
Noteholder, of authorized denominations and of like tenor, maturity, interest
rate and aggregate principal amount, upon prior written notice to the Trustee by
or on behalf of the Registered Depositary and surrender of the Notes to be
exchanged at any office or agency maintained for such purpose pursuant to
Section 8.11. Whenever any Notes are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and make available for
delivery, the Notes which the Noteholder making the exchange is entitled to
receive. The Issuer shall execute and deliver to the Trustee, on the Closing
Date and from time to time thereafter, for safekeeping and subsequent
authentication, a stock of physical registered Notes of such quantities as the
Issuer, after consultation with the Trustee, determines to be sufficient to
permit the issuance of physical Notes and the exchanges contemplated by this
Section.
(g) Upon surrender for registration of transfer of any Note, together
with a written instrument of transfer satisfactory to the Note Registrar, as the
case may be, at an office or agency of the Issuer appointed in or pursuant to
Section 8.11 for such purposes, the Issuer shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination or
denominations and of the same aggregate principal amount. At the option of each
Noteholder, Notes may be exchanged for other Notes of any authorized
denomination or denominations and of the same aggregate principal amount, upon
surrender of the Notes to be exchanged at any such office or agency. Whenever
any Notes are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Notes that the Noteholder making the
exchange is entitled to receive. All Notes issued upon any registration of
transfer or exchange of Notes shall
26
be the valid obligations of the Issuer, evidencing the same debt, and entitled
to the same security and benefits under this Indenture and the other Transaction
Documents, as the Notes surrendered upon such registration of transfer or
exchange.
(h) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Note Registrar or any
transfer agent, duly executed by the Noteholder thereof or such Noteholder's
attorney duly authorized in writing.
(i) No service charge shall be required of any Noteholders
participating in any transfer or exchange of Notes in respect of such transfer
or exchange, but the Note Registrar may require payment of a sum sufficient to
cover any Tax that may be imposed in connection with any transfer or exchange of
Notes, other than exchanges pursuant to Section 2.12(c), 2.13 or 11.6 not
involving any transfer.
(j) The Note Registrar shall not be required (x) to issue, register
the transfer of or exchange any Note during a period beginning at the opening of
business in the City of New York 15 days before the day of the mailing of a
notice of redemption of Notes selected for redemption under Sections 4.2 and 4.3
and ending at the close of business on the day of such mailing or (y) to issue,
register the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note redeemed in part.
(k) If Notes are issued upon the transfer, exchange or replacement of
Notes subject to restrictions on transfer and bearing the legends set forth on
the forms of Note attached hereto as Exhibit A-1 and Exhibit A-2, setting forth
such restrictions (collectively, the "LEGEND"), or if a request is made to
remove the Legend on a Note, the Notes so issued shall bear the Legend, or the
Legend shall not be removed, as the case may be, unless there is delivered to
the Issuer and the Note Registrar such satisfactory evidence, which shall
include an Opinion of Counsel, as may be reasonably required by the Issuer, that
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A, Rule 144 or Regulation S under the Securities Act or that such Notes are
not "restricted securities" within the meaning of Rule 144 under the Securities
Act. Upon provision of such satisfactory evidence, the Trustee, at the direction
of the Issuer, shall authenticate and deliver a Note that does not bear the
Legend. If a Legend is removed from the face of a Note and the Note is
subsequently held by an Affiliate of the Issuer, the Legend shall be reinstated.
(l) None of the Trustee or the Note Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including transfers
between or among participants in the Registered Depositary or beneficial owners
of interest in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
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SECTION 2.13 EXCHANGE OFFER. Upon occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement or the effectiveness of a
registration statement pursuant to the Securities Act, the Issuer will issue,
and upon receipt of an Issuer Order in accordance with Section 2.3 hereof, the
Trustee shall authenticate, (a) the Exchange Global Note in a principal amount
equal to the principal amount of the beneficial interests in the Rule 144A
Restricted Global Note and the Regulation S Unrestricted Global Note tendered
for exchange in the Exchange Offer or for exchange for Exchange Notes registered
under the registration statement, as the case may be, by Persons that certify in
the applicable letters of transmittal or via the Registered Depositary's
book-entry system that (i) they are not broker-dealers, (ii) they are not
participating in a distribution of Exchange Notes, and (iii) they are not
affiliates (as defined in Rule 144 under the Securities Act) and (b) Exchange
Notes in definitive form in an aggregate principal amount equal to the principal
amount of the Initial Notes in definitive form accepted for exchange in the
Exchange Offer or for exchange for Exchange Notes registered under the
registration statement, as the case may be. Concurrently with the issuance of
such Notes, the Trustee shall cause the aggregate principal amount of the Rule
144A Restricted Global Note and Regulation S Unrestricted Global Note to be
reduced accordingly, and the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery to the Persons designated by the
holders of Initial Notes in definitive form so accepted, Exchange Notes in
definitive form in the appropriate principal amount.
SECTION 2.14 MUTILATED, DESTROYED, LOST AND STOLEN NOTES. (a) If (i)
any mutilated or defaced Note is surrendered to the Trustee, or the Issuer and
the Note Registrar and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Issuer, the Note Registrar and the Trustee evidence to their satisfaction of the
ownership and authenticity thereof, and such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Issuer, the Note Registrar or the Trustee that such Note has been
acquired by a bona fide purchaser, the Issuer shall execute and upon the
Issuer's request the Trustee shall authenticate and make available for delivery,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a new Note of like tenor, interest rate and principal amount, bearing a
number not then outstanding and registered in the same manner. If, after the
delivery of such new Note, a bona fide purchaser of the original Note in lieu of
which such new Note was issued presents for payment such original Note, the
Issuer and the Trustee shall be entitled to recover such new Note from the
Person to whom it was delivered or any Person taking therefrom, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expenses incurred
by the Issuer or the Trustee in connection therewith.
(b) Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Note has become or is about to become due and payable,
the Issuer, upon satisfaction of the conditions set forth in clauses (i) and
(ii) of clause (a) hereof may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section 2.13, the
Issuer may require the payment of a sum sufficient to cover any Tax that may be
imposed in relation thereto and any other expenses connected therewith.
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(d) Every new Note issued pursuant to this Section 2.13 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(e) The provisions of this Section 2.13 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 Notes.
SECTION 2.15 PAYMENTS. (a) The Issuer hereby acknowledges and confirms
that it is and at all times shall remain absolutely and unconditionally
obligated to pay all amounts due and owing by the Issuer hereunder and under any
other Transaction Document, as the same shall become due and owing. All payments
of principal and interest required to be made by the Issuer hereunder and under
the other Transaction Documents shall be made, pursuant to the terms hereof, by
the Issuer to the Trustee by 1:00 p.m. (New York time) one Business Day prior to
the scheduled date therefor (which shall include, without limitation, any
Payment Date). All such payments to the Trustee shall be made by the Issuer by
depositing immediately available funds in U.S. dollars to the Payment Account
provided for herein; PROVIDED, HOWEVER that the Issuer's payment obligations to
the Trustee hereunder shall not be satisfied as a result of any transfer funds
to the Payment Account from funds on deposit in the Reserve Account or amounts
paid by the Insurer under the Insurance Policy, to the extent that the Insurer
is or may be subrogated to any right to receive such amounts or any such payment
obligations in connection with a claim for such amounts under the Insurance
Policy.
(b) So long as any of the Notes remain Outstanding, the Issuer will
maintain one or more agents in New York City to whom (i) the Notes may be
presented for payment and (ii) the Notes may be presented for exchange,
transfer, redemption or registration of transfer as provided in this Indenture.
The Issuer may have one or more additional paying agents. Unless otherwise
specified, the Issuer hereby initially designates the Corporate Trust Office as
the office to be maintained by it for each such purpose and where the Note
Register will be maintained. If the Issuer shall fail to so designate or
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate Trust Office. Principal or
interest on any Note that is payable, and punctually paid or duly provided for,
on any Interest Payment Date or the Expected Maturity Date (as the same may be
extended as provided hereunder) or earlier as provided herein upon any
acceleration of the Notes shall be paid to the Person in whose name that Note
(or one or more Predecessor Notes) is registered at the close of business on the
Record Date for such payment. Payment of principal of and interest on the Notes
shall be made at the Place of Payment (or, if such office is not in the City of
New York, at either such office or an office to be maintained in such city)
payable as provided herein. No Notes need be surrendered in order to receive
payment of principal interest or other amounts as provided herein.
(c) Subject to the foregoing provisions of this Section 2.14, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
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(d) The Trustee shall deliver to each of the Rating Agencies, no later
than 30 calendar days after each Interest Payment Date, a notice substantially
in the form of Exhibit H hereto.
SECTION 2.16 TAXATION. (a) All payments of or in respect of principal
and interest on the Notes and other amounts, if any, hereunder shall be made
free and clear of, and without withholding or deduction for or on account of,
any present or future taxes, penalties, fines, duties, assessments or other
governmental charges (or interest on any of the foregoing) of whatsoever nature
(collectively, "TAXES") imposed, levied, collected, withheld or assessed by,
within or on behalf of Brazil or any political subdivision thereof having power
to tax ("TAXING JURISDICTION"), unless such withholding or deduction is required
by law. In that event, the Issuer shall pay such additional amounts ("ADDITIONAL
AMOUNTS") as may be necessary to ensure that the amounts received by the
Noteholders or the Trustee, as the case may be, after such withholding or
deduction shall equal the respective amounts of principal and interest that
would have been receivable in respect of the Notes in the case of the
Noteholders, or pursuant to Section 8.5, in the case of the Trustee, in the
absence of such withholding or deduction. The Issuer will not, however, pay any
Additional Amounts in connection with any tax, duty, assessment or other
governmental charge that is imposed due to any of the following ("EXCLUDED
ADDITIONAL AMOUNTS"):
(i) the Noteholder or beneficial owner has some connection with the
Taxing Jurisdiction other than merely holding the Notes or receiving
principal or interest payments on the Notes (such as citizenship,
nationality, residence, domicile, or existence of a business, a permanent
establishment, a dependent agent, a place of business or a place of
management present or deemed present within the Taxing Jurisdiction;
(ii) any tax imposed on, or measured by, net income;
(iii) the Noteholder or beneficial owner fails to comply with any
certification, identification or other reporting requirements concerning
its nationality, residence, identity or connection with the Taxing
Jurisdiction, if (i) such compliance is required by applicable law,
regulation, administrative practice or treaty as a precondition to
exemption from all or a part of the tax, duty, assessment or other
governmental charge, (ii) the Noteholder or beneficial owner is able to
comply with such requirements without undue hardship and (iii) at least 30
calendar days prior to the first payment date with respect to which such
requirements under the applicable law, regulation, administrative practice
or treaty shall apply, the Issuer has notified the Trustee that all
Noteholders that they will be required to comply with such requirements;
(iv) the Noteholder fails to present (where presentation is
required) its Note within 30 calendar days after the Issuer has made
available to the Noteholder a payment of principal or interest, provided
that the Issuer will pay Additional Amounts which a Noteholder would have
been entitled to had the Note owned by such Noteholder been presented on
any day (including the last day) within such 30-day period;
(v) any estate, inheritance, gift, value added, use or sales taxes
or any similar taxes, assessments or other governmental charges;
30
(vi) where any Additional Amounts are imposed on a payment on the
Notes to an individual and are required to be made pursuant to any European
Union Directive on the taxation of savings implementing the conclusions of
the Economic and Financial Council of Ministers of the member states of the
European Union (ECONFIN) Council meeting of November 26-27, 2000 or any law
implementing or complying with, or introduced in order to conform to, such
Directive;
(vii) where the Noteholder or beneficial owner could avoid any
Additional Amounts by requesting that a payment on the Notes be made by, or
presenting the relevant Notes for payment to, another Paying Agent located
in a Member State of the European Union; or
(viii) any combination of (i), (ii), (iii), (iv), (v), (vi) and (vii)
above.
(b) The Issuer will (i) make such withholding or deduction on its
payments of principal and interest on the Notes as required by the relevant
Taxing Jurisdiction and (ii) remit the full amount withheld or deducted to the
relevant taxing authority in accordance with applicable law. Upon written
request from the Trustee, the Issuer will furnish to the Trustee, within five
Business Days after the delivery of such written request, certified copies of
Tax receipts or, if such receipts are not obtainable, documentation reasonably
satisfactory to the Trustee evidencing the payment of any such Taxes due
pursuant to applicable Law. Upon written request of the Noteholders to the
Trustee, copies of such receipts or other documentation, as the case may be,
will be made available to the Noteholders.
(c) At least 10 Business Days prior to the first Interest Payment Date
for the Notes, and, if there has been any change with respect to the matters set
forth in the below-mentioned certificate at least 10 Business Days prior to each
Interest Payment Date for the Notes, the Issuer shall furnish to the Trustee an
Officer's Certificate instructing the Trustee as to any circumstances in which
payments of principal of or interest on the Notes (including Additional Amounts)
due on such date shall be subject to deduction or withholding for or on account
of any taxes and the rate of any such deduction or withholding. The Issuer
covenants to indemnify the Trustee and any other Paying Agents for, and to hold
each harmless against, any loss, liability or expense reasonably incurred
without negligence, bad faith or willful misconduct on their part, arising out
of or in connection with actions taken or not taken by any of them in reliance
on any certificate furnished to them pursuant to this paragraph or the failure
to furnish any such certificate. The obligations of the Issuer under the
preceding sentence shall survive the resignation or removal of the Trustee, the
Registrar or any Paying Agent. Any certificate required by this Section to be
provided to the Trustee and any other Paying Agent shall be deemed to be duly
provided if telecopied to the Trustee and such other Paying Agent. Upon request,
the Issuer shall provide the Trustee with documentation reasonably satisfactory
to the Trustee evidencing the payment of taxes in respect of which the Issuer
has paid any Additional Amounts. Copies of such documentation shall be made
available by the Trustee to the Noteholders or the other Paying Agents, as
applicable, upon request therefor.
(d) The Issuer will, upon written request of any Noteholder or
beneficial owner of a Note, indemnify and hold harmless and reimburse such
Noteholder for the amount of taxes, duties, assessments or other governmental
charges of a Taxing Jurisdiction (other than Taxes for
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which Additional Amounts have already been paid) so levied or imposed and paid
by such Noteholder as a result of payments made under or with respect to the
Note, so that the net amount received by such Noteholder after such
reimbursement would not be less than the net amount the Noteholder would have
received if such Taxes of such Taxing Jurisdiction would not have been imposed
or levied.
(e) The Issuer shall promptly pay when due any present or future
stamp, court or documentary taxes or any other excise or property taxes, charges
or similar levies that arise in a Taxing Jurisdiction from the execution,
delivery, enforcement or registration of each Note or any other document or
instrument referred to herein or therein. The Issuer shall indemnify and make
whole the Noteholders for any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies payable
by the Issuer as provided in this clause (e) paid by such Noteholders.
(f) All references in this Indenture to principal, interest, and other
amounts payable hereunder shall be deemed to include references to any
Additional Amounts payable under this Section with respect to such principal,
interest, or other amounts. The foregoing obligations shall survive any
termination, defeasance or discharge of the Notes and this Indenture.
(g) If the Issuer shall at any time be required to pay Additional
Amounts to Noteholders pursuant to the terms of this Indenture, the Issuer will
use its reasonable endeavors to obtain an exemption from the payment of (or
otherwise avoid the obligation to pay) the tax, assessment or other governmental
charge which has resulted in the requirement that it pay such Additional
Amounts.
SECTION 2.17 PERSONS DEEMED OWNERS; ETC. Subject to Section 2.12,
prior to due presentment of a Note for registration of transfer, the Person in
whose name any Note is registered shall be deemed to be the owner of such Note
for the purpose of receiving payment of principal of and interest on such Note
and for all other purposes whatsoever, whether or not such Note be overdue,
regardless of any notice to anyone to the contrary. The Noteholder may grant
proxies and otherwise authorize any Person, including members of, or
participants in, the Registered Depositary and Persons that may hold interests
through such members of, or participants in, the Registered Depositary, to take
any action that a Noteholder is entitled to take under this Indenture or the
Notes.
SECTION 2.18 CANCELLATION. All Notes surrendered for payment,
redemption, registration of transfer or exchange or deemed lost or stolen shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
for cancellation and may not be reissued or sold, unless, in the case of Notes
redeemed by the Issuer, the Issuer (i) procures a person who purchases the Notes
to be redeemed on the relevant date of redemption and at the relevant redemption
price (in which event the Notes may be so resold and need not be cancelled) or
(ii) notifies the Trustee in writing on or prior to the relevant date of
redemption that the Notes so redeemed by the Issuer will not be cancelled (in
which event the Notes may be held by the Issuer pending resale as provided in
clause (i) above an need not be cancelled). The Issuer may at any time deliver
to the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever. All Notes
so
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delivered shall be promptly cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be held by the Trustee in accordance with its
standard retention policy, unless the Issuer shall direct by an Issuer Order
that they be returned to it.
SECTION 2.19 ALLOCATION OF PRINCIPAL AND INTEREST. Each payment of
principal of and interest on each Note shall be applied, FIRST, to the payment
of accrued but unpaid interest on such Note (as well as any interest on overdue
principal or, to the extent permitted by applicable Law, overdue interest) to
the date of such payment, SECOND, to the payment of the principal amount of and
interest on such Note then due (including any overdue installment of principal)
thereunder, and THIRD, the balance, if any, to the payment of the principal
amount of such Note remaining unpaid.
SECTION 2.20 CUSIP AND ISIN NUMBERS. The Issuer in issuing the Notes
may use CUSIP and ISIN numbers (if then generally in use), and, if so, the
Trustee shall use CUSIP and ISIN numbers in notices of redemption as a
convenience to Noteholders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Issuer will promptly notify the Trustee of any initial CUSIP and/or
ISIN numbers and any change in the CUSIP or ISIN numbers
SECTION 2.21 NOTEHOLDER LISTS. The Trustee shall preserve in as
current form as is reasonably practicable the most recent list available to it
of the names and addresses of Noteholders and shall otherwise comply with
Section 312(a) of the Trust Indenture Act. If the Trustee is not the Note
Registrar, or to the extent otherwise required under the Trust Indenture Act,
the Issuer shall furnish to the Trustee, in writing at least seven Business Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Noteholders, and the Issuer
shall otherwise comply with Section 312(a) of the Trust Indenture Act.
ARTICLE III
ESTABLISHMENT OF ACCOUNTS
SECTION 3.1 ESTABLISHMENT AND ADMINISTRATION OF PAYMENT ACCOUNT. (a)
On the Closing Date, the Trustee shall establish and, until the Notes and all
accounts due in respect thereof have been paid in full, maintain a special
purpose non-interest bearing trust account (the "PAYMENT ACCOUNT") into which
all payments required to be made by the Issuer under or with respect to the
Notes shall be deposited. The Issuer agrees that the Payment Account shall be
maintained in the name of the Trustee and under its sole dominion and control
(acting on behalf
33
of the Noteholders) and used solely to make payments of principal, interest and
other amounts from time to time due and owing on, or with respect to, the Notes.
No funds contained in the Payment Account shall be used for any other purpose or
in any manner not expressly provided for herein nor shall the Issuer or any
other Person have an interest therein or amounts on deposit therein.
(b) The Trustee shall apply all such amounts as from time to time are
on deposit in the Payment Account to all such amounts as are due to the
Noteholders pursuant to this Indenture or otherwise. All such amounts shall be
applied ratably, without preference or priority of any kind among Noteholders,
in accordance with this Indenture.
ARTICLE IV
REDEMPTION
SECTION 4.1 MANDATORY REDEMPTION. The Issuer shall be required to
mandatorily redeem the Notes on the Expected Maturity Date (as the same may be
extended as provided in Section 2.6 or earlier upon any acceleration thereof in
accordance with this Indenture) by making a payment to the Trustee, on behalf of
the Noteholders, equal to the principal amount of the Notes Outstanding together
with all accrued but unpaid interest thereon and other amounts then due and
payable under the terms of the Notes and this Indenture.
SECTION 4.2 OPTIONAL REDEMPTION IN THE EVENT OF CHANGE IN TAX
TREATMENT. (a) The Notes may be redeemed at the election of the Issuer, as a
whole, but not in part, in accordance with this Section 4.2 (the "EARLY TAX
REDEMPTION") at any time upon the giving of notice as provided in Section 4.4,
if (i) the Issuer certifies to the Trustee immediately prior to the giving of
such notice that it has or will become obligated to pay Additional Amounts in
excess of the Additional Amounts which the Issuer could be obligated to pay if
payments of interest under the Notes were subject to withholding or deduction at
a rate in excess of 15% with respect to the Notes as a result of any generally
applicable change in or amendment to the laws or regulations of a Taxing
Jurisdiction, or any generally applicable change in the application or official
interpretation of such laws or regulations, which change or amendment, in each
case, occurs after the date of issuance of any of the Notes and (ii) such
obligation cannot be avoided by the Issuer taking reasonable measures available
to it; PROVIDED, HOWEVER, that no such notice of redemption shall be given
earlier than 60 days prior to the earliest date on which the Issuer would be
obligated to pay such Additional Amounts, if a payment in respect of the Notes
were then due. Prior to the giving of any notice of redemption of the Notes
pursuant to this Section 4.2, the Issuer shall deliver to the Trustee an
Officer's Certificate, stating that the Issuer is entitled to effect such a
redemption pursuant to this Indenture, and setting forth in reasonable detail a
statement of the facts giving rise to such right of redemption. Concurrently,
the Issuer will deliver to the Trustee a written Opinion of Counsel, in form and
substance satisfactory to the Trustee, stating, among other things, that the
Issuer has become obligated to pay such Additional Amounts as a result of a
change or amendment described in this Section 4.2 and that the Issuer cannot
avoid payment of such Additional Amounts by taking reasonable measures available
to it and that all Governmental Approvals necessary for the Issuer to effect
such redemption have
34
been obtained and are in full force and effect or specifying any such necessary
approvals that as of the date of such opinion have not been obtained.
(b) In the event the Issuer determines to redeem the Notes as
permitted hereunder, the Issuer shall be required to specify in its notice the
proposed date of redemption (the "EARLY TAX REDEMPTION DATE") and shall pay to
the Trustee (on behalf of the Noteholders) on the Early Tax Redemption Date an
amount equal to the sum of (i) the aggregate principal amount of the Notes that
are then Outstanding, (ii) all accrued but unpaid interest on the Notes at the
applicable Note Rate through and excluding the Early Tax Redemption Date and
(iii) all other amounts then due on the Notes as provided in this Indenture or
the Notes (collectively, the "EARLY TAX REDEMPTION PRICE"). The Notes shall not
be deemed repaid and cancelled unless and until the Trustee shall have received
in the Payment Account the Early Tax Redemption Price.
(c) For purposes of this Section 4.2 and notwithstanding anything to
the contrary under the terms of this Indenture, the Notes or the Guaranty, any
payment made by the Issuer to the Guarantor with respect to a Note or the
Guaranty shall constitute or be deemed to constitute a payment of other than (i)
Additional Amounts or (ii) taxes, duties, assessments or other governmental
charges whatsoever imposed by a Taxing Jurisdiction.
SECTION 4.3 OTHER OPTIONAL REDEMPTION. (a) The Issuer or, at the
option of the Issuer, any Person designated by the Issuer, may redeem or
repurchase the Notes in whole, but not in part, in accordance with this Section
4.3 (the "EARLY GENERAL REDEMPTION) at any time upon the giving of notice as
provided in Section 4.4; PROVIDED that, if the Issuer so elects, the Issuer may,
in lieu of redeeming the Notes, procure that any Person designated by the Issuer
purchases such Notes on the date and price specified in this Section 4.3.
Notwithstanding any arrangements between the Issuer and such Person to redeem or
repurchase the Notes as set forth above, the Issuer shall remain obligated to
redeem or repurchase the Notes pursuant to this Section 4.3 that are not
withdrawn in the event that any such Person does not redeem or repurchase the
Notes.
(b) In the event the Issuer determines to redeem the Notes as
permitted under this Section 4.3, the Issuer shall be required to specify in its
notice the proposed date of redemption determined pursuant to Section 4.4 (the
"EARLY GENERAL REDEMPTION DATE") and shall pay to the Trustee (on behalf of the
Noteholders) on the Early General Redemption Date an amount equal to the sum of
(i) the aggregate principal amount of the Notes that are then Outstanding, (ii)
a Make-Whole Premium (calculated by the Issuer as of the Early General
Redemption Date and confirmed by the Trustee) and (iii) all accrued but unpaid
interest on the Notes at the applicable Note Rate through and excluding the
Early General Redemption Date and all other amounts then due and payable on or
with respect thereto (collectively, the "EARLY GENERAL REDEMPTION PRICE"). The
Notes shall not be deemed repaid and cancelled unless and until the Trustee
shall have received in the Payment Account the Early General Redemption Price.
SECTION 4.4 NOTICE OF REDEMPTION. (a) Notice of redemption
contemplated by Sections 4.2 and 4.3 shall be given by the Issuer by first-class
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the proposed Early General Redemption Date or
35
the proposed Early Tax Redemption Date, as the case may be, to each Noteholder,
at its address appearing in the Note Register. All notices of redemption shall
state:
(i) the proposed date and type of the redemption;
(ii) the applicable redemption price;
(iii) the names and addresses of the Paying Agents;
(iv) that Notes called for redemption must be surrendered to a
Paying Agent to collect the applicable redemption price;
(v) that, once the redemption price has been paid with respect the
Notes, interest, if any, thereon shall cease to accrue from and after said
date; and
(vi) the CUSIP number, if any.
(b) In the event that on the date for redemption specified pursuant to
Section 4.4 (a)(i) hereof, an Expropriation Event or Inconvertibility Event has
occurred that prohibits the Issuer or the Guarantor from paying the redemption
price to the Trustee, the redemption notice provided under this Section 4.4
shall be deemed to be withdrawn and neither the Issuer nor the Guarantor shall
be obligated to pay the redemption price on such date.
SECTION 4.5 DEPOSIT OF REDEMPTION PRICE. At least one Business Day
prior to any Early General Redemption Date or Early Tax Redemption Date, as the
case may be, the Issuer shall deposit with the Trustee an amount of money
sufficient to pay the Early General Redemption Price or the Early Tax Redemption
Price, as applicable, of all the Notes. The Issuer will cause the bank through
which payment on the Notes is to be made to deliver to the Paying Agent and
Trustee by 1:00 p.m. New York time, one Business Day prior to the due date for
such irrevocable confirmation (by tested telex, facsimile or authenticated Swift
MT 100 Message) of its intention to make such payment. At least one Business Day
prior to any Early General Redemption Date or Early Tax Redemption Date, as the
case may be, the Issuer will provide to the Paying Agent a notice regarding the
payment by the Issuer to the Paying Agent of the Early General Redemption Price
or the Early Tax Redemption Price, as applicable.
SECTION 4.6 NOTES PAYABLE ON REDEMPTION DATE. Notice of Early General
Redemption or Early Tax Redemption having been given as aforesaid, the Notes so
to be redeemed shall, on the Early General Redemption Date or the Early Tax
Redemption Date, as the case may be, become due and payable at the Early General
Redemption Price or the Early Tax Redemption Price, as applicable, therein
specified and from and after such date (unless the Issuer shall default in the
payment of the Early General Redemption Price or the Early Tax Redemption Price,
as applicable) such Notes shall cease to bear interest. Upon surrender of such
Notes for redemption in accordance with the notice, such Notes shall be paid by
the Issuer at the Early General Redemption Price or the Early Tax Redemption
Price, as applicable. Installments of interest due on or prior to the Early
Redemption Date or the Early Tax Redemption Date shall be payable to the
Noteholders registered as such on the relevant Record Dates. If any Note called
for redemption shall not be so paid upon surrender thereof for redemption, the
principal shall,
36
until paid, bear interest from the Early General Redemption Date or the Early
Tax Redemption Date, as applicable, at the Note Rate.
SECTION 4.7 OPEN MARKET PURCHASES. The Issuer and the Guarantor, and
each of their respective Affiliates, may at any time purchase any Notes in the
open market or otherwise at any price; PROVIDED that, in determining whether
Noteholders holding any requisite principal amount of Notes have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Notes owned by the Issuer, the Guarantor and each of their respective
Subsidiaries or Affiliates shall be deemed not Outstanding for purposes thereof.
All Notes purchased by the Issuer or the Guarantor or any of their respective
Affiliates may, at the option of the Issuer or the Guarantor, continue otherwise
to be Outstanding or be cancelled.
ARTICLE V
CREDIT AND OTHER SUPPORT
SECTION 5.1 GUARANTY. The Issuer and the Trustee hereby acknowledge
that the purpose and intent of the Guarantor in providing the Guaranty is to
give effect to the agreement of the Guarantor, from time to time upon the
receipt of a specified notice from the Trustee in substantially the form of
Exhibit E to this Indenture that the Issuer has failed to make the required
payments under the Notes and this Indenture, to guarantee the payment of any
such amounts due by the Issuer under the Notes and this Indenture, whether such
amounts are in respect of principal, interest or any other amounts (including
Additional Amounts). Each such notice shall be delivered by the Trustee to the
Guarantor no later than 5:00 p.m. (New York time) on the Business Day prior to
each Payment Date to the extent that the Issuer has failed to make any payment
hereunder in accordance with the provisions of Section 2.14(a) hereof by 1:00
p.m. (New York time) the Business Day before such Payment Date. The Trustee
shall promptly deposit in the Payment Account any funds it receives from the
Guarantor under or pursuant to the Guaranty.
SECTION 5.2 ESTABLISHMENT AND ADMINISTRATION OF RESERVE ACCOUNT. (a)
On the Closing Date, the Trustee shall establish a segregated non-interest
bearing trust account (the "RESERVE ACCOUNT") with The Bank of New York for the
benefit of the Noteholders. All of the proceeds of a drawing on any Letter of
Credit shall, pursuant to the terms hereof and thereof, be required to be
deposited in the Reserve Account when, as and if a drawing is made on any such
Letter of Credit pursuant to Section 5.3(a) hereof and the terms thereof. The
Issuer agrees that, pending any deposits therein as provided for herein, the
Reserve Account shall be maintained in the name of the Trustee and under its
sole dominion and control (acting on behalf of the Noteholders) and used solely
to make payments of principal, interest and other amounts from time to time due
and owing on, or with respect to, the Notes. No funds contained in the Reserve
Account shall be used for any other purpose or in any manner not expressly
provided for herein nor shall the Issuer or any other Person have any right of
withdrawal or any other interest therein or in any Permitted Investments
purchased pursuant to Section 5.2(b) or any proceeds thereof.
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The Issuer shall be required to maintain in the Reserve Account an amount which,
together with the amount available under any Letters of Credit, is equal to the
Required Amount.
(b) So long as no Default or Event of Default shall have occurred and
be continuing (i) the amounts on deposit in the Reserve Account shall be
invested by the Trustee in Permitted Investments as directed by the Issuer in
writing; PROVIDED, HOWEVER, that all Permitted Investments purchased by the
Trustee during any Interest Period must mature no later than two Business Days
prior to the next succeeding Interest Payment Date occurring after the
investment of such amounts; and (ii) interest earned on Permitted Investments
deposited in the Reserve Account shall be paid on the ninth calendar day of each
month (or if such calendar day is not a Business Day, the next succeeding
Business Day following such calendar day), to the extent that cash is on deposit
in the Reserve Account on such date, to an account specified by the Issuer. On
the Closing Date, the Issuer shall provide account details for the payments
mentioned in clause (ii) above which shall remain valid until the Final Maturity
Date unless the Issuer informs the Trustee in writing otherwise. Upon the
occurrence and during the continuance of a Default or an Event of Default, all
interest earned on amounts on deposit in the Reserve Account shall be retained
by the Trustee in the Reserve Account and all such interest shall be available
to the Trustee to make any payment of principal, interest and/or other amounts
due under the Notes and this Indenture. The Trustee shall, within two Business
Days after the Trustee receives written notice thereof, notify the Issuer in
writing (with a copy of such notice to each of the Rating Agencies) of the
occurrence of any decrease in the rating of any Permitted Investment of the type
referred to in clauses (ii) and (iv) thereof to a level below "P-1" by Xxxxx'x,
"A-1" by S&P and "F-1" by Fitch (if rated by Fitch).
(c) The Trustee shall promptly deposit in the Reserve Account any and
all amounts received from the Insurer as payment under the Insurance Policy.
(d) If a Default or Event of Default shall have occurred and be
continuing or the Trustee shall not have received any direction in writing from
the Issuer as to the Permitted Investments to be purchased as provided in
Section 5.2(b), all amounts on deposit in the Reserve Account will be invested
by the Trustee in investments of the type described in clause (vi) of the
definition of Permitted Investments.
(e) On each Reserve Account Transfer Date during the continuance of an
Inconvertibility Event or an Expropriation Event where the Issuer and the
Guarantor have certified to the Trustee in writing that they are unable to
satisfy their payment obligations under this Indenture, the Notes and the
Guaranty, as applicable and where the funds on deposit in the Payment Account
are insufficient to pay all accrued and unpaid interest due on the Notes on such
Payment Date the Trustee shall withdraw from the Reserve Account and pay to the
Payment Account, to the extent that funds are available therefor, an amount
equal to the amount of accrued and unpaid interest due on the Notes on such
Reserve Account Transfer Date LESS any amounts on deposit in the Payment Account
therefor on such Reserve Account Transfer Date.
(f) During the continuance of an Inconvertibility Event or an
Expropriation Event where the Issuer and the Guarantor have certified to the
Trustee in writing that they are unable to make payments of amounts due from
time to time to the Trustee, in respect of fees (but not expenses) as set forth
in Section 8.5, the Trustee shall, on the date such payment shall become
38
due, withdraw from the Reserve Account and pay to itself an amount equal to such
compensation then due to the Trustee and the Paying Agent under this Indenture;
provided, however, that the Trustee shall not be entitled to withdraw from the
Reserve Account more than US$5,000 during any Interest Period (the "FEES RESERVE
ALLOWANCE") to pay the amounts specified under this Section 5.2(f).
(g) Upon the Issuer and the Guarantor having satisfied their
obligations under the Registration Rights Agreement in respect of the Notes, the
Trustee shall, (i) upon the receipt of an Officer's Certificate from both the
Issuer and the Guarantor certifying to the registration of the Notes under the
Securities Act and the satisfaction of their obligations under the Registration
Rights Agreement, and (ii) so long as no Default or Event of Default is
continuing, withdraw from the Reserve Account and pay to the Issuer all amounts,
if any, on deposit in the Reserve Account (together with all amounts available
under any Letters of Credit after giving effect to any reduction in any such
Letter of Credit made pursuant to Section 5.3(c)) representing the amount
described in clause (iii) of the definition of Required Amount.
(h) Upon the voluntary cancellation of the Insurance Policy by the
Trustee at the request of the Issuer in accordance with Section 8.3(a) of the
Insurance Policy and Section 5.4(d) hereof and so long as no Default or Event of
Default is continuing, the Trustee shall withdraw from the Reserve Account and
pay to the Issuer, within two Business Days from the date such cancellation
becomes effective, all funds on deposit in the Reserve Account and shall
terminate the Reserve Account or cause the Reserve Account to be terminated.
(i) In the event that the Insurance Policy shall have been amended to
provide for the increase of coverage thereunder, at the Issuer's option, in
accordance with Section 5.4(e) hereof and so long as no Default or Event of
Default is continuing, the Trustee shall, within two Business Days from the date
of such amendment, withdraw from the Reserve Account and pay to the Issuer an
amount (together with all amounts available under the any Letters of Credit
after giving effect to any reduction in any such Letter of Credit made pursuant
to Section 5.3(d)) equal to the highest amount of interest (calculated at the
Note Rate) scheduled to be due on the Notes during any single Interest Period.
(j) The Issuer and the Guarantor shall deposit funds in the Reserve
Account within five Business Days of the cessation of the Inconvertibility Event
or the Expropriation Event, or otherwise, so that the aggregate amount then
deposited in the Reserve Account shall be sufficient to increase the amounts
then on deposit therein (together with all amounts available under the any
Letters of Credit after giving effect to any increase in or replacement of any
such Letter of Credit pursuant to Section 5.3(e)) to the Required Amount.
(k) If, upon the involuntary termination or cancellation of the
Insurance Policy as contemplated in Section 5.4(f) below, the Issuer or the
Guarantor deposits additional funds on the Reserve Account and thereafter
replaces the terminated or cancelled Insurance Policy with a comparable
insurance policy in accordance with in such Section 5.4(f), the Trustee shall
release from the Reserve Account and pay to the Issuer, within five Business
Days from the date such comparable insurance policy becomes effective, any such
additional funds deposited by the Issuer or the Guarantor on the Reserve
Account.
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(l) Upon all obligations on the Notes and this Indenture being
satisfied in full and this Indenture being terminated, the Trustee shall release
from the Reserve Account and promptly pay to the Issuer any funds then on
deposit in the Reserve Account and shall terminate the Reserve Account or cause
the Reserve Account to be terminated.
(m) (i) In the event that the Issuer wishes to replace amount on
deposit in the Reserve Account with a Letter of Credit, the Issuer shall
submit a draft of such Letter of Credit to the Trustee not less than two
Business Days prior to the proposed delivery thereof.
(ii) On the date that such executed Letter of Credit is delivered,
the Issuer shall deliver, or cause to be delivered an executed Letter of
Credit in the form supplied to the Trustee in subsection (i) above.
(iii) Upon receipt of the executed Letter of Credit as specified in
subsection (ii) above, the Trustee shall, on the next Business Day after
such receipt, release from the Reserve Account and pay to the Issuer an
amount equal to the amount available under any such Letter of Credit
delivered in accordance with subsection (ii) above; provided, that if the
executed Letter of Credit submitted to the Trustee in accordance with
subsection (ii) above is received by the Trustee after 4:00 p.m. (New York
time) on any Business Day such Letter of Credit shall be deemed to have
been received on the next Business Day after such receipt.
SECTION 5.3 LETTERS OF CREDIT. (a) The Trustee shall be required to
draw upon any Letter of Credit:
(i) in full
(A) promptly, but in any event within one Business Day
after the Trustee receives written notice that any of Xxxxx'x, S&P or
Fitch has either withdrawn the long term debt rating of the issuer of
such Letter of Credit or lowered such rating to below "A1", "A+" and
"A+", respectively; or
(B) on the tenth Business Day prior to the stated expiry of
such Letter of Credit in connection with its terms, if the issuer of
such Letter of Credit shall have notified the Trustee of its intention
to not renew or replace such Letter of Credit prior to its expiry and
neither the Issuer nor the Guarantor shall have caused a replacement
Letter of Credit to be delivered to the Trustee prior to such tenth
Business Day; or
(ii) (A) an amount equal to the amount of accrued and unpaid
interest on the Notes three Business Days prior to the relevant Reserve
Account Transfer Date plus an amount equal to the Fees Reserve Allowance
and less any amounts on deposit in the Payment Account and the Reserve
Account therefor on such day (which such amount shall be determined by the
Issuer and the Guarantor as specified in an Officer's Certificate from both
the Issuer and the Guarantor furnished to the Trustee no sooner than ten
Business Days but no less than five Business Days prior to such drawing
date; PROVIDED, HOWEVER, that if no such Officer's Certificate is received
by the Trustee, the
40
Trustee shall be required to draw upon each Letter of Credit in full) on
the third Business Day prior to each Reserve Account Transfer Date related
to any Payment Date occurring during the continuation of an
Inconvertibility Event or an Expropriation Event where the funds on deposit
in the Payment Account on such second Business Day prior to such Reserve
Account Transfer Date are insufficient to pay all accrued and unpaid
interest due on the Notes on the last Business Day of the Grace Period on
which such funds are due; and
(B) to the extent that more than one Letter of Credit is
outstanding on any drawing date as set forth in Section 5.3(a)(ii)(A)
above, the Trustee shall, in relation to a drawing made under Section
5.3(a)(ii)(A), draw from each such Letter of Credit in an amount which is
equal to the pro-rata portion (based on the then outstanding amounts of all
such Letters of Credit) of the amounts required to be drawn under Section
5.3(a)(ii)(A); provided, however, that if the issuer of any Letter of
Credit fails to pay any amount due under such Letter of Credit by 10:00
a.m. (New York time) on the day after any request for drawing has been made
pursuant to Section 5.3(a)(ii)(A), the Trustee shall draw on each other
Letter of Credit in the manner specified in this subsection (B) for the
unpaid balance of amounts drawn under this Section 5.3(a)(ii).
(b) The Trustee shall initially deposit all of the proceeds from any
drawing under each Letter of Credit into the Reserve Account. All withdrawals
from the Reserve Account shall be made strictly in accordance with the
provisions of Section 5.2 hereof.
(c) Notwithstanding the provisions of Section 5.3(a)(i)(B) hereof, in
the event that the Trustee receives notice from the Issuer, the Guarantor and
the Insurer that the coverage provided by the Insurance Policy is to be
voluntarily cancelled as of any date as set forth in Section 5.4(d) hereof and
so long as no Default or Event of Default is then in effect or continuing, the
Trustee shall allow each Letter of Credit to expire in accordance with its terms
without drawing on such Letter of Credit, if such Letter of Credit expires on or
after the date specified by the Issuer, the Guarantor and the Insurer for such
voluntary cancellation of coverage. Additionally, upon the Issuer and the
Guarantor having satisfied their obligations under the Registration Rights
Agreement in respect of the Notes, the Trustee shall (at the request of the
Issuer) and (i) upon the receipt of an Officer's Certificate from both the
Issuer and the Guarantor certifying to the registration of the Notes under the
Securities Act and the satisfaction of their obligations under the Registration
Rights Agreement, and (ii) so long as no Default or Event of Default is in
effect or continuing, exchange the then current Letter of Credit for a new or
replacement Letter of Credit in an amount (together with all amounts then on
deposit in the Reserve Account after giving effect to any reduction in such
account pursuant to Section 5.2 (g)) equal to the Required Amount (less any
amounts described in clause (iii) of the definition of Required Amount).
(d) In the event that the Insurance Policy shall have been amended to
provide for the increase of coverage thereunder at the Issuer's option, in
accordance with Section 5.4(e) hereof and so long as no Default or Event of
Default is then in effect or is continuing, the Trustee shall, upon the receipt
of a written request by the Issuer, exchange the then current Letter of Credit
for a new or replacement Letter of Credit in an amount (together with all
amounts on deposit in the Reserve Account after giving effect to any reduction
in such account pursuant to
41
Section 5.2(i)) equal to the then current sum of amounts available under each
Letter of Credit less the highest amount of interest (calculated at the Note
Rate) scheduled to be due on the Notes during any single Interest Period.
(e) Within five Business Days of the cessation of an Inconvertibility
Event or an Expropriation Event, or otherwise, the Issuer shall replace the then
existing Letter of Credit (or amend the existing Letter of Credit) with an
equivalent Letter of Credit so that the aggregate amount available under any
Letter of Credit shall be (together with all amounts on deposit in the Reserve
Account after giving effect to any deposit on such account pursuant to Section
5.2(j)) equal to the Required Amount.
SECTION 5.4 THE INSURANCE POLICY. (a) The Trustee acknowledges that
the Issuer and the Guarantor have secured the Insurance Policy to initially
provide limited insurance against the inability of the Issuer or the Guarantor
to convert Reais into U.S. dollars and transfer any U.S. dollars to the Trustee
in satisfaction of amounts to be paid by it under this Indenture and the Notes
or the Guaranty, as the case may be. The Issuer hereby confirms that the premium
for the Insurance Policy has been paid by the Issuer on or prior to the Closing
Date. In addition, the Trustee and the Issuer acknowledge that the Insurance
Policy provides similar protection for any inability of the Trustee to convert
any Reais amounts received by, without limitation, the Trustee in satisfaction
of the Issuer's obligations under this Indenture and the Notes or the
Guarantor's obligations under the Guaranty, as the case may be, including any
Reais amounts received in connection with any insolvency or similar proceedings
involving the Issuer or the Guarantor or any enforcement of this Indenture and
the Notes against the Issuer or the Guaranty against the Guarantor.
(b) The Trustee agrees to give written notice to the Insurer in
substantially the form of Exhibit F hereto of the occurrence of (i) any failure
by the Issuer to make any payment on or in respect of the Notes required under
this Indenture and a failure of the Guarantor to make any payment on or in
respect of its obligations under the Guaranty, (ii) the occurrence of any
Default or Event of Default, or (iii) the occurrence of an Inconvertibility
Event or an Expropriation Event. Upon receipt from the Insurer of amounts
payable under the Insurance Policy, the Trustee shall hold such amounts in trust
in the Payment Account for use in making any required payments of principal,
interest and other amounts due under this Indenture.
(c) The Trustee shall give all notices, make all filings and take all
actions required of it pursuant to the terms of the Insurance Policy including,
without limitation, the filing of a claim with the procedures and subject to the
time limitations set forth in Article VII of the Insurance Policy. In connection
with its satisfaction of its obligations hereunder and under the Insurance
Policy the Trustee shall request, under the terms of the Indenture, the Guaranty
and the Insurance Side Agreement, that the Guarantor and the Issuer provide all
such information and take all such actions as are required to ensure the
continued enforceability of the Insurance Policy, and in connection with the
submission of any claim thereunder and the satisfaction of any requirement
provided therein.
(d) At any time on or after the third anniversary of the Closing Date
and so long as no Default or Event of Default has occurred and is continuing,
the Trustee, at the direction of the Issuer, may cancel the Insurance Policy
upon the receipt of confirmation from each of
42
Xxxxx'x, S&P and Fitch that its then current rating of the Notes is at least
"A3", "A-" and "A-", respectively and that such ratings will not be lowered or
withdrawn as a result of such cancellation. The Trustee shall effect such
cancellation by submission to the Insurer of the appropriate notice as specified
in Section 8.3(a) of the Insurance Policy. Any such cancellation that occurs
after the third anniversary of the Closing Date shall be deemed effective as of
the immediately succeeding anniversary of the Closing Date provided that the
ratings set forth above are still effective as of such immediately succeeding
anniversary of the Closing Date. The Trustee shall, at the request of the
Issuer, make all such applications and submit all such documents as the Issuer
shall reasonably request to comply with the provisions of Section 8.3(a) of the
Insurance Policy. Upon the Insurer making any payment to the Trustee pursuant to
Section 8.3(a) of the Insurance Policy, the Trustee shall, so long as no Default
or Event of Default has occurred and is continuing, direct the Insurer to pay
all such amounts due to the Trustee to the Issuer and pay any amounts so
received by the Insurer to the Issuer within two Business Days after receipt
thereof.
(e) At any time after the Closing Date and so long as no Default or
Event of Default has occurred and is continuing, the Trustee, at the direction
of the Issuer, and the Insurer may execute and deliver an amendment to the
Insurance Policy in order to both (i) increase the amount covered under the
Insurance Policy to cover an additional Interest Period of interest on the Notes
at the Note Rate, for a total coverage under the Insurance Policy of three
Interest Periods of interest on the Notes at the Note Rate and (ii) provide for
a six month extension of the Insurance Policy. The Trustee shall, at the request
of the Issuer, make all such applications and submit all such documents as the
Issuer shall reasonably request to effect the amendment to the Insurance Policy
as contemplated herein.
ARTICLE VI
COVENANTS
For so long as the Notes remain outstanding or any amount remains
unpaid on such Notes under this Indenture, the Issuer will, and will cause each
of its Subsidiaries to, comply with the terms and covenants set forth below
(except as otherwise provided in a duly authorized amendment to this Indenture
as provided herein).
SECTION 6.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer will duly
and punctually pay all principal, interest and other amounts (including
Additional Amounts) owed by it.
SECTION 6.2 PERFORMANCE UNDER THE TRANSACTION DOCUMENTS. The Issuer
will agree to duly and punctually perform, comply with and observe all
obligations and agreements to be performed by it under the terms of the
Transaction Documents.
SECTION 6.3 MAINTENANCE OF CORPORATE EXISTENCE. The Issuer will, and
will cause each of its Subsidiaries to, (i) maintain in effect its corporate
existence and all registrations necessary therefor except as otherwise permitted
by Section 6.15 and (ii) take all actions to maintain all rights, privileges,
titles to property, franchises and the like necessary or desirable in
43
the normal conduct of its business, activities or operations; PROVIDED that this
Section 6.3 shall not require the Issuer to maintain or cause any Subsidiary
thereof to maintain any such right, privilege, title to property, franchise or
the like or require the Issuer to preserve the corporate existence of any
Subsidiary, if the failure to do so does not, and will not, have a Material
Adverse Effect.
SECTION 6.4 MAINTENANCE OF PROPERTIES. The Issuer 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 its property 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 Issuer
shall be necessary properly to conduct at all times the business carried on in
connection therewith; PROVIDED that this Section 6.4 shall not require the
Issuer to maintain or cause any Subsidiary thereof to maintain any of such
right, privilege, title to property or franchise if the failure to do so does
and will not, have a Material Adverse Effect.
SECTION 6.5 COMPLIANCE WITH LAWS. The Issuer will comply, and will
cause its Subsidiaries to comply, at all times with all applicable Laws of any
Governmental Authority having jurisdiction over the Issuer, the Issuer's
business or any of the transactions contemplated herein, except where the
failure so to comply would not have a Material Adverse Effect.
SECTION 6.6 MAINTENANCE OF GOVERNMENT APPROVALS. The Issuer will, and
will cause its Subsidiaries to, duly obtain and maintain in full force and
effect all Government Approvals, consents or licenses of any Governmental
Authority which are necessary under the laws of Brazil or any other jurisdiction
having jurisdiction over the Issuer or necessary in all cases for the Issuer to
perform its obligations under the Transaction Documents (including, without
limitation, any authorization required to obtain and transfer U.S. dollars or
any other currency which at that time is legal tender in the United States out
of Brazil in connection with this Indenture, the Notes and the Guaranty) or for
the validity or enforceability of any thereof, except where the failure to do so
would not have a Material Adverse Effect.
SECTION 6.7 PAYMENTS OF TAXES AND OTHER CLAIMS. The Issuer 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, (i) all Taxes, assessments
and governmental charges levied or imposed upon the Issuer or such Subsidiary,
as the case may be, and (ii) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Issuer or
such Subsidiary, as the case may be; PROVIDED, HOWEVER, that this Section 6.7
shall not require the Issuer to, or cause any Subsidiary thereof to, pay or
discharge or cause to be paid or discharged any such tax, 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 6.8 MAINTENANCE OF INSURANCE. The Issuer will, and will cause
each of its Subsidiaries to, keep all of its properties which are of an
insurable nature insured against loss or damage with insurers believed by the
Issuer or such Subsidiary, as the case may be, to be financially sound, in such
amounts and covering such risks as are usually carried by companies engaged in
similar businesses and owning or operating properties or facilities similar to
those
44
owed or operated by the Issuer or its Subsidiaries, as the case may be, in the
same general locations in which the Issuer and its Subsidiaries own and/or
operate their properties or facilities.
SECTION 6.9 MAINTENANCE OF BOOKS AND RECORDS. The Issuer shall, and
shall cause each of its Subsidiaries to, maintain books, accounts and records in
all material respects in accordance with applicable law.
SECTION 6.10 MAINTENANCE OF OFFICE OR AGENCY. So long as any of the
Notes are Outstanding, the Issuer will maintain in the Borough of Manhattan, The
City of New York, an office or agency where notices to and demands upon the
Issuer in respect of this Indenture and the Notes may be served. Initially this
office will be at the offices of CT Corporation System located at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and the Issuer 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 Issuer 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 Issuer hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
SECTION 6.11 RANKING. The Issuer will ensure that the Notes will at
all times constitute general unsecured and unsubordinated obligations of the
Issuer and will rank PARI PASSU, without any preferences among themselves, with
all other present and future unsecured and unsubordinated obligations of the
Issuer (other than obligations preferred by statute or by operation of law).
SECTION 6.12 RESERVED.
SECTION 6.13 NOTICE OF DEFAULTS AND EVENTS OF DEFAULT. The Issuer will
give notice to the Trustee, as soon as is practicable and in any event within
ten calendar days after the Issuer becomes aware or should reasonably become
aware of the occurrence, of any Default or any Event of Default, accompanied by
an Officer's Certificate of the Issuer setting forth the details thereof and
stating what action that the Issuer proposes to take with respect thereto.
SECTION 6.14 NOTICE OF EXPROPRIATION OR INCONVERTIBILITY EVENTS. The
Issuer will give notice to the Trustee, as soon as is practicable and in any
event within five Business Days after the Issuer becomes aware of any action
taken by the Brazilian government that could give rise to an Expropriation Event
or an Inconvertibility Event; PROVIDED, HOWEVER, that if an Inconvertibility
Event or an Expropriation Event have occurred in the five Business Days
preceding a Payment Date that limit or restrict the ability of the Issuer or the
Guarantor to convert Reais into U.S. dollars or transfer U.S. dollars outside of
Brazil in satisfaction of its obligations under the Transaction Documents, the
Issuer shall give notice of such event immediately and in any event not later
than the Business Day prior to such Payment Date; and PROVIDED FURTHER that, if
any of such events occurs on a Payment Date, the Issuer shall give notice of
such event no later than on such Payment Date.
SECTION 6.15 LIMITATION ON CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
(i) the Issuer will not, in one or a series of transactions, consolidate or
amalgamate with or merge
45
into any corporation or convey, lease or transfer all or substantially all of
its properties, assets or net sales to any person (other than a Subsidiary of
the Issuer or the Guarantor) or permit any Person (other than a Subsidiary of
the Issuer or the Guarantor) to merge with or into it unless:
(A) either the Issuer is the continuing entity or the Person formed
by such consolidation or into which the Issuer is merged or that acquired
or leased such property or assets of the Issuer (the "SUCCESSOR COMPANY")
will be a company organized and validly existing under the laws of Brazil
or the United States and shall assume (jointly and severally with the
Issuer unless the Issuer shall have ceased to exist as part 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
Issuer's obligations on the Notes and under this Indenture;
(B) the Successor Company (jointly and severally with the Issuer
unless the Issuer shall have ceased to exist as a result of such merger,
consolidation or amalgamation) agrees to indemnify each Noteholder against
any tax, assessment or governmental charge thereafter imposed on such
Noteholder solely as a consequence of such consolidation, merger,
conveyance, transfer or lease with respect to the payment of principal of,
or interest on, the Notes;
(C) immediately after giving effect to the transaction, no Event of
Default, or Default has occurred and is continuing;
(D) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that the transaction
and the supplemental indenture, if applicable, comply with this Indenture
and that all conditions precedent provided for in this Indenture and
relating to such transaction have been complied with; and
(E) the Issuer shall have delivered notice of any such transaction
to the Rating Agencies (which notice shall contain a description of such
merger, consolidation or conveyance).
(ii) Notwithstanding anything to the contrary in the foregoing, so
long as no Default or Event of Default under this Indenture or the Notes shall
have occurred and be continuing at the time of such proposed transaction or
would result therefrom:
(A) the Issuer may merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of assets to a Subsidiary of the
Issuer or the Guarantor in cases when the Issuer is the surviving entity in
such transaction and such transaction would not have a material adverse
effect on the Issuer and its Subsidiaries taken a whole, it being
understood that if the Issuer is not the surviving entity, the Issuer shall
be required to comply with the requirements set forth in clause (i) above;
or
(B) any Subsidiary of the Issuer may merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of assets to, any
person (other than the Guarantor or any of its Subsidiaries or Affiliates)
in cases when such transaction would not have a material adverse effect on
the Issuer and its Subsidiaries taken as a whole; or
46
(C) any Subsidiary of the Issuer may merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of assets to, any
other Subsidiary of the Issuer or the Guarantor; or
(D) any Subsidiary of the Issuer may liquidate or dissolve if the
Issuer determines in good faith that such liquidation or dissolution is in
the best interests of the Issuer, and would not result in a material
adverse effect on the Issuer and its Subsidiaries taken as a whole and if
such liquidation or dissolution is part of a corporate reorganization of
the Issuer or the Guarantor.
(iii) In case of any such consolidation, merger, sale, transfer,
lease or other conveyance, the Successor Company shall succeed to and be
substituted for the Issuer with the same effect as if it had been named herein
as the Issuer. The Successor Company may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such succession any
or all of the Notes issuable hereunder that theretofore shall not have been
signed by the Issuer and delivered to the Trustee; and upon the order of the
Successor Company instead of the Issuer and subject to all the terms, conditions
and limitations set forth in this Indenture, the Trustee shall authenticate and
shall deliver any Notes that previously shall have been signed and delivered by
the officer of the Issuer to the Trustee for authentication, and any Notes that
the Successor Company thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Notes issued shall in all respects have the
same legal rank and benefit under this Indenture as though all of such Notes had
been issued at the date of the execution hereof.
(iv) In case of any such consolidation, merger, sale, transfer,
lease or conveyance (as described in clauses (i) and (ii) above), such changes
in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
(v) In the event of any such sale or conveyance (other than a
conveyance by way of lease) (as described in clauses (i) and (ii) above), the
Issuer shall be discharged from all obligations and covenants under this
Indenture and the Notes thereafter to be issued as may be appropriate.
(vi) In the event of any such sale or conveyance (other than a
conveyance by way of lease) (as described in clauses (i) and (ii) above), the
Issuer shall be discharged from all obligations and covenants under this
Indenture and the Notes to be performed by the Issuer and may be liquidated
and/or dissolved.
(vii) No Successor Company shall have the right to redeem any
Outstanding Notes unless the Issuer would have been entitled to redeem such
Notes pursuant to this Indenture in absence of any such merger, consolidation,
sale, transfer, lease or conveyance permitted herein.
(viii) The Trustee may rely on the Opinion of Counsel prepared in
accordance with this Section as conclusive evidence that any such consolidation,
merger, sale, transfer, lease or other conveyance, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture and the
Notes.
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(ix) For the purpose of this Section 6.15, the term "Subsidiary"
shall also include any corporation, company, partnership or other entity of
which the Issuer owns shares of stock or other ownership interests have the
ordinary voting power to elect at least 50% of the Board of Directors (or
similar governing body) of such corporation, company, partnership or other
entity, or the Issuer, directly or indirectly through one or more
intermediaries, otherwise shares equal control of such corporation, company,
partnership or other entity with another Person.
SECTION 6.16 LIMITATION ON LIENS. (i) The Issuer will not, and will
not cause or permit any of its Subsidiaries to, issue, assume or guarantee any
Indebtedness, if that Indebtedness is secured by a Lien upon any Specified
Property now owned or hereafter acquired, unless, together with the issuance,
assumption or guarantee of such Indebtedness, the Notes shall be secured equally
and ratably with (or prior to) such Indebtedness.
(ii) This restriction does not apply to:
(A) any Lien in existence on the Closing Date;
(B) any Lien on any property acquired, constructed or improved by
the Issuer or any of its Subsidiaries after the date of the indenture which
is created, incurred or assumed contemporaneously with, or within 12 months
after, that acquisition (or in the case of any such property constructed or
improved, after the completion or commencement of commercial operation of
such property, whichever is later) to secure or provide for the payment of
any part of the purchase price of such property or the costs of that
construction or improvement (including costs such as escalation, interest
during construction and finance costs); PROVIDED that in the case of any
such construction or improvement the Lien shall not apply to any other
property owned by the Issuer or any of its subsidiaries, other than any
unimproved real property on which the property so constructed, or the
improvement, is located;
(C) any Lien on Specified Property which secures Indebtedness owing
to an Official Lender;
(D) any Lien on any property existing at the time of its
acquisition and which is not created as a result of or in connection with
or in anticipation of that acquisition (unless such Lien was created to
secure or provide for the payment of any part of the purchase price of that
property);
(E) any Lien on any property acquired from a corporation or any
other Person which is merged with or into the Issuer or its subsidiaries,
or any Lien existing on property of a corporation or any other Person which
existed at the time such corporation becomes a Subsidiary of the Issuer
and, in either case, which is not created as a result of or in connection
with or in anticipation of any such transaction (unless such Lien was
created to secure or provide for the payment of any part of the purchase
price of such corporation);
(F) any Lien which secures only Indebtedness owing by any of the
Issuer's Subsidiaries, to one or more of the Issuer's Subsidiaries or to
the Issuer and one or more of the Issuer's Subsidiaries;
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(G) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (A) through (E) inclusive; PROVIDED,
HOWEVER, that the principal amount of Indebtedness secured thereby shall
not exceed the principal amount of Indebtedness so secured at the time of
such extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which secured
the Lien so extended, renewed or replaced (plus improvements on such
property).
(H) any Lien of the Issuer or any of its Subsidiaries that does not
fall within paragraphs (A) through (G) above and that secures an aggregate
amount of Indebtedness which, when aggregated with Indebtedness secured by
all other Liens of the Issuer and its subsidiaries permitted under this
paragraph (H) (together with any Sale and Lease-Back Transaction that would
otherwise be prohibited by the provisions of Section 6.18) at any time does
not exceed the lesser of (x) U.S.$ 400,000,000 and (y) 10% of Consolidated
Net Tangible Assets at the time any such Indebtedness is issued, assumed or
guaranteed by the Issuer or any of its Subsidiaries or at the time any such
Lien is entered into.
SECTION 6.17 LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. The
Issuer will not, and will not permit any of its Subsidiaries to, enter into any
Sale and Lease-Back Transaction with respect to any Specified Property, unless
either:
(i) The Issuer or that Subsidiary would be entitled pursuant to the
provisions of Section 6.16 above (including any exception to the
restrictions set forth therein) to issue, assume or guarantee Indebtedness
secured by a Lien on such Specified Property without equally and ratably
securing the Notes, or
(ii) The Issuer or that Subsidiary shall apply or cause to be
applied, in the case of a sale or transfer for cash, an amount equal to the
net proceeds thereof and, in the case of a sale or transfer otherwise than
for cash, an amount equal to the fair market value of the Specified
Property so leased, to the retirement, within twelve months after the
effective date of the Sale and Lease-Back Transaction, of any of the
Issuer's Indebtedness ranking at least PARI PASSU with the Notes and owing
to a Person other than the Issuer or any of its Subsidiaries or to the
construction or improvement of real property or personal property used by
the Issuer or any of its Subsidiaries in the ordinary course of business.
These restrictions will not apply to transactions providing for a lease
term, including any renewal, of not more than three years, and transactions
between the Issuer and any of its Subsidiaries or between the Issuer's
Subsidiaries.
SECTION 6.18 TRANSACTIONS WITH AFFILIATES. The Issuer shall not, and
shall not permit any of its Subsidiaries to, enter into or carry out (or agree
to enter into or carry out) any transaction or arrangement with any Affiliate,
except for any transaction or arrangement entered into or carried out on terms
no less favorable to the Issuer or such Subsidiary than those which could have
been obtained on an arm's-length basis with a Person that is not an Affiliate;
PROVIDED HOWEVER that the foregoing shall not apply to transactions (i) between
the Issuer and the Guarantor or (ii) between or among the Issuer, the Guarantor
and/or any of their respective Subsidiaries not involving any other Person so
long as consummation of any such transaction will not have a Material Adverse
Effect.
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SECTION 6.19 PROVISION OF FINANCIAL STATEMENTS AND REPORTS. (i) In the
event the Issuer shall file any financial statements or reports with the
Securities and Exchange Commission or shall publish or otherwise make such
statements or reports publicly available in Brazil, the United States or
elsewhere, the Issuer 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 published or otherwise made publicly available, as the case may
be.
(ii) The Issuer will provide, together with each of the financial
statements delivered pursuant to above clause (i), an Officer's Certificate
stating that a review of the Issuer's activities has been made during the period
covered by such financial statements with a view to determining whether the
Issuer has kept, observed, performed and fulfilled its covenants and agreements
under this Indenture and 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.
(iii) The Issuer shall provide to the Trustee such other financial
data as the Trustee may reasonably request to ascertain compliance by the Issuer
and its Subsidiaries of their obligations under this Indenture and the other
Transaction Documents.
(iv) 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 Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 6.20 FURTHER ACTIONS. The Issuer 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 (a) to perfect and maintain
the validity, effectiveness and priority of any Liens created hereunder (b) to
enable the Issuer to lawfully enter into, exercise its rights and perform and
comply with its obligations under the Notes, this Indenture and each of the
other Transaction Documents, as the case may be, (c) to ensure that the Issuer's
obligations under the Notes, this Indenture and each of the other Transaction
Documents are legally binding and enforceable, (d) to make the Notes, the
Indenture and each of the other Transaction Documents admissible in evidence in
the courts of the State of New York or Brazil, (e) to enable the Trustee to
exercise and enforce its rights under and carry out the terms, provisions and
purposes of the Indenture and each of the other Transaction Documents, (f) to
take any and all action necessary to preserve the enforceability of, and
maintain the Trustee's rights hereunder and under the other Transaction
Documents, including, without limitation, refraining from taking any action that
reasonably can be expected to have a Material Adverse Effect, and (g) to assist
the Trustee in the Trustee's performance of its obligations under this Indenture
and the other Transaction Documents.
SECTION 6.21 AVAILABLE INFORMATION. For as long as the Notes are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Issuer will, to the
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extent required, furnish to any Noteholder issued under Rule 144A, or to any
prospective purchaser designated by such Noteholder, upon request of such
Noteholder, financial and other information described in paragraph (d)(4) of
Rule 144A with respect to the Issuer and the Guarantor to the extent required in
order to permit such Noteholder to comply with Rule 144A (as amended from time
to time and including any successor provision) with respect to any resale of
such Note, UNLESS, at the time of such request, the Issuer is subject to the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act or is
exempt from such requirements pursuant to Rule 12g3-2(b) under the Exchange Act
(as amended from time to time and including any successor provision) and no such
information about the Issuer is otherwise required pursuant to Rule 144A.
SECTION 6.22 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint in the manner provided in Section 8.8, a successor Trustee, so that
there shall at all times be a Trustee with respect to the Notes.
SECTION 6.23 PAYMENTS AND PAYING AGENTS. (a) The Issuer will, at least
one Business Day prior to each due date of the principal of or interest on the
Notes or other amounts (including Additional Amounts), deposit with the Trustee
a sum sufficient to pay such principal, interest or other amounts (including
Additional Amounts) so becoming due.
(b) Whenever the Issuer shall appoint a Paying Agent other than the
Trustee with respect to the Notes, 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:
(i) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on any Notes (whether such sums
have been paid to it by or on behalf of the Issuer or by any other obligor
on the Notes) in trust for the benefit of the Noteholders or of the
Trustee.
(ii) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Notes) to make any payment of the
principal of or interest on any Notes (including Additional Amounts) and
any other payments to be made by or on behalf of the Issuer under this
Indenture or the Notes when the same shall be due and payable; and
(iii) 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.
(c) The Trustee shall arrange with all such Paying Agents for the
payment, from funds furnished by the Issuer to the Trustee pursuant to this
Indenture, of the principal of and interest and other amounts due on the Notes
(including Additional Amounts) and of the compensation of such Paying Agents for
their services as such.
(d) If the Issuer shall act as its own Paying Agent with respect to
any Notes, it will, on or before each due date of the principal of or interest
on such Notes, set aside, segregate
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and hold in trust for the benefit of the Noteholders of such Notes a sum
sufficient to pay such principal or interest (including Additional Amounts) so
becoming due. The Issuer will promptly notify the Trustee of any failure to take
action.
(e) Anything in this Section 6.23 to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to any Notes hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for such Notes by the
Issuer or any Paying Agent hereunder, as required by this Section, such sums to
be held by the Trustee upon the trusts herein contained.
(f) Anything in this Section 6.23, to the contrary notwithstanding,
the agreements to hold sums in trust as provided in this Section are subject to
the provisions of Section 12.3.
(g) The Issuer agrees to indemnify the Noteholders against any failure
on the part of any Paying Agent to pay, in accordance with the terms hereof, any
sum due in respect of the Notes on the applicable Payment Date.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 EVENTS OF DEFAULT. The following events shall each be an
"EVENT OF DEFAULT" under the terms of the Notes and this Indenture:
(a) The Trustee shall not receive any amount due from the Issuer under
the Notes and this Indenture, from the Guarantor under the Guaranty, from the
Insurer under the Insurance Policy, from the Reserve Account, from any Letter of
Credit or otherwise in respect of principal on any of the Notes whether on the
Expected Maturity Date (as the same may be extended as permitted hereunder),
upon redemption or prior to the Final Maturity Date or otherwise by the
scheduled date therefor;
(b) The Trustee shall not receive any payment in respect of any
interest or other amounts due on or with respect to the Notes (including
Additional Amounts, if any) from the Issuer in accordance with the terms of the
Notes and this Indenture, from the Guarantor under the Guaranty, from the
Insurer under the Insurance Policy, from the Reserve Account, from any Letter of
Credit or otherwise by the scheduled due date therefor and such non-receipt
shall continue for a period of thirty calendar days from such scheduled due
date;
(c) Any representation or warranty made by either the Issuer or the
Guarantor in any of the Transaction Documents shall prove to be incorrect as of
the time when the same shall have been made and as a result thereof there is a
Material Adverse Effect;
(d) The Issuer or the Guarantor shall fail to perform, observe or
comply with any term, covenant, agreement or obligation contained in any of the
Transaction Documents and such failure (other than any failure to make any
payment contemplated in clauses (a), (b) or (o) hereunder or under the Guaranty
for which there is no cure) is either incapable of remedy or continues for a
period of 60 calendar days (inclusive of any time frame contained in any such
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term, covenant, agreement or obligation for compliance thereunder) after written
notice of such failure has been received by the Issuer or the Guarantor from the
Trustee;
(e) (i) The acceleration of any Indebtedness of the Issuer, the
Guarantor or any Material Subsidiary thereof in accordance with the terms of
such Indebtedness, unless such acceleration is at the option of the Issuer, the
Guarantor or any Material Subsidiary thereof; or (ii) the Issuer, the Guarantor
or any Material Subsidiary thereof fails to pay any Indebtedness when due, on
any final maturity date or, as the case may be, beyond any applicable grace
period, except in any case where the failure to pay such Indebtedness is the
result of a Expropriation Event or Inconvertibility Event; provided, however,
that the aggregate amount of any such Indebtedness falling within (i) and (ii)
above (as to which the time for payment has not been extended by the relevant
obligees) equals or exceeds U.S.25,000,000 (or its equivalent in another
currency);
(f) One or more final and non-appealable judgments or final decrees
are entered against the Issuer, the Guarantor or any Material Subsidiary thereof
involving in the aggregate a liability (not theretofore paid or reimbursed by
insurance) of U.S.$25,000,000 (or its equivalent in another currency) or more,
and all such judgments or decrees shall not have been vacated, discharged or
stayed within 120 calendar days after the rendering thereof;
(g) Either the Issuer, the Guarantor or any of their Material
Subsidiaries shall commence a voluntary case or other proceeding seeking
liquidation, reorganization, CONCORDATA or other relief with respect to itself
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect, or seek the appointment of a trustee, receiver, SINDICO,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment or
conveyance for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action to authorize any of
the foregoing;
(h) An involuntary case or other proceeding shall be commenced against
either the Issuer, the Guarantor or any of their Material Subsidiaries seeking
liquidation, reorganization or other relief with respect to it or its debt under
any bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, SINDICO, liquidator, custodian
or other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 90 days; or an order for relief shall be entered against either
the Issuer, the Guarantor or any of their Material Subsidiaries under the
bankruptcy laws as now or hereafter in effect;
(i) Either the Issuer, the Guarantor or any of their Material
Subsidiaries shall admit in writing its inability to pay its debts as and when
they fall due or shall become unable to pay its debts, or shall convene a
meeting for the purpose of proposing, or otherwise propose or enter into, any
composition or arrangement with its creditors or any group or class thereof, or
anything analogous to, or having a substantially similar effect to, any of the
events specified in this paragraph (i) or in paragraph (g) or (h) above or (j)
below shall occur in any jurisdiction;
(j) Either the Issuer, the Guarantor or any of their Material
Subsidiaries shall cease or threaten to cease to carry out its business except
(i) a winding-up, dissolution or
53
liquidation for the purpose of and followed by a consolidation, merger,
conveyance or transfer or, in the case of a Material Subsidiary, whereby the
undertaking, business and assets of such Material Subsidiary are transferred to
or otherwise vested in the Issuer or the Guarantor, as applicable, or any of
their respective Subsidiaries or Affiliates, or the terms of which shall have
been approved by a resolution of a meeting of the Noteholders or (ii) a
voluntary winding-up, dissolution or liquidation of a Material Subsidiary where
there are surplus assets in such Material Subsidiary attributable to the Issuer
or the Guarantor, as applicable, and/or any other Material Subsidiary, and such
surplus assets are distributed to the Issuer or the Guarantor, as applicable,
and/or such Material Subsidiary;
(k) Any event occurs that under the laws of Brazil or any political
subdivision thereof has substantially the same effect as any of the events
referred to in any of paragraphs (g), (h), (i) or (j);
(l) Any of the Transaction Documents, or any part thereof, shall cease
to be in full force and effect or binding and enforceable against the Issuer or
the Guarantor or admissible in evidence in the courts of Brazil, it becomes
unlawful for the Issuer or the Guarantor to perform any material obligation
under any Transaction Document to which it is a party, or the Issuer or the
Guarantor shall contest the enforceability of any Transaction Document or deny
that it has liability under any Transaction Document to which it is party;
(m) Any of (i) the Insurance Policy shall have been cancelled or
terminated by the Insurer or shall otherwise cease to be in full force and
effect, binding and enforceable against the Insurer (other than in connection
with a voluntary cancellation of the Insurance Policy by the Trustee at the
request of the Issuer as set forth in Section 5.4), (ii) the Insurer shall fail
to pay the full amount of any claim submitted to it under the Insurance Policy
by the end of the Waiting Period (as such term is defined in the Insurance
Policy) applicable to such claim, or (iii) either the Issuer or the Guarantor
shall fail to satisfy their obligations under the Insurance Side Agreement,
unless, with regard to items (i) and (ii) above, within 10 calendar days, the
Issuer or the Guarantor irrevocably deposits into the Reserve Account an amount
in U.S. dollars equal to the then current face amount of the Insurance Policy or
obtains an insurance policy comparable to the Insurance Policy with an insurer
which has been given a long-term debt rating or a financial strength rating
comparable to that of the Insurer as of the date any of such events shall have
occurred, and each of the Rating Agencies reaffirms its respective ratings on
the Notes which were in effect immediately prior to such event;
(n) All or a material part of the property of the Issuer or the
Guarantor or any of their Subsidiaries shall be condemned, seized or otherwise
appropriated, or custody of such property shall be assumed by any governmental
authority or court or any other Person purporting to act under the authority of
the government of any jurisdiction, or the Issuer or the Guarantor or any of its
Subsidiaries shall be prevented from exercising normal control over all or
substantial part of it property and such default is not remedied within 30
calendar days after it occurs;
(o) The Guarantor fails to retain at least 51% direct or indirect
ownership of the outstanding voting and economic interests (equity or otherwise)
of and in the Issuer;
54
(p) The Issuer or the Guarantor shall fail to maintain in the Reserve
Account (together with all amounts available under the Letters of Credit) an
amount equal to the Required Amount within five Business Days after being
obligated to do so; or
(q) Other than in connection with the Trustee allowing for the
expiration thereof in accordance with Section 5.3(c), any Letter of Credit shall
have been cancelled or terminated by the issuer thereof or otherwise shall have
ceased to be in full force and effect, binding and enforceable against the
issuer thereof in accordance with its terms unless a substantially equivalent
Letter of Credit or U.S. dollars in an amount equal to the amount available
under the Letters of Credit immediately prior to its cancellation is promptly
provided to the Trustee.
SECTION 7.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. (a) If
an Event of Default described in paragraphs (a), (b), (c), (d), (e), (f), (l),
(m), (n), (o), (p) or (q) of Section 7.1 occurs and is continuing with respect
to the Notes, then and in each and every such case, unless the principal of all
the Notes shall have already become due and payable, the Trustee shall, upon the
request of Noteholders holding not less than 25% in aggregate principal amount
of the Notes then Outstanding hereunder, by notice in writing to the Issuer (and
to the Trustee if given by the Noteholders), may declare the principal amount of
all the Notes then Outstanding and all accrued interest thereon to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Notes
contained to the contrary notwithstanding. If an Event of Default described in
paragraphs (g), (h), (i), (j) or (k) occurs and is continuing, then and in each
and every such case, the principal amount of the Notes then Outstanding and all
accrued interest and other amounts thereon shall, without any notice to the
Issuer or any other act on the part of the Trustee or any Noteholder, become and
be accelerated and immediately due and payable, anything in this Indenture or in
the Notes contained to the contrary notwithstanding.
(b) At any time after a declaration of acceleration has been made with
respect to the Notes 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 Majority Noteholders, by written notice to the Issuer and the Trustee, may
receive and annul such declaration and its consequences if:
(i) there shall have been paid to or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue installments of interest on the Notes;
(B) the principal of any Notes that have become due other
than by such declaration of acceleration and interest thereon at the
respective rates provided in the Notes for late payments of principal;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the respective rates
provided in the Notes for late payments of interest; and
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(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
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 7.4.
(c) No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 7.3 DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Noteholder 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 Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Noteholders, as the case may be. No waiver of any Event of
Default, whether by the Trustee or by the Noteholders, shall extend to or shall
affect any subsequent Event of Default or shall impair any remedy or right
consequent thereon.
SECTION 7.4 WAIVER OF PAST DEFAULTS. (a) The Majority Noteholders may
on behalf of the Noteholders of all the Notes waive any past default hereunder
and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of or interest on any Note, or
(ii) in respect of a covenant or provision hereof which under
Article VI cannot be modified or amended without the consent of the
Noteholder of each Outstanding Note.
(b) 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.
SECTION 7.5 TRUSTEE MAY FILE PROOFS OF CLAIM; APPOINTMENT OF TRUSTEE
AS ATTORNEY-IN-FACT IN JUDICIAL PROCEEDINGS. (a) In case of pendency in any
receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization
or any other judicial proceedings relating to the Issuer or any obligor on the
Notes or the property of the Issuer or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Issuer for
payment of overdue principal or interest) shall be entitled and empowered by
intervention in such proceedings or otherwise to:
(i) file and prove a claim for the whole amount of principal and
interest owed and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary and advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee,
56
its agents and counsel and all other amounts due to the Trustee under
Section 8.5) and of the Noteholders allowed in such judicial proceeding;
and
(ii) collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute same.
(b) In any such event, any receiver, assignee, trustee, liquidator or
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Noteholder to make such payment to the Trustee and in the
event that the Trustee shall consent to the making of such payments directly to
the Noteholders, to pay to the Trustee any amount due to 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 8.5.
(c) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Noteholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Noteholder thereof, or to authorize the Trustee to
vote in respect of the claim of any Noteholder in any such proceeding.
SECTION 7.6 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes 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 agent and counsel, be for the ratable benefit of the
Noteholders.
SECTION 7.7 APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee with respect to the Notes 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 interest, upon presentation of the Notes 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 8.5
hereof.
SECOND: To the payment of the amounts then due and unpaid upon the
Notes for principal and interest, in respect of which or for the benefit of
which such money has been collected, ratably among Notes, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for principal and interest, respectively.
SECTION 7.8 LIMITATION ON SUITS. No Noteholder shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Notes or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Noteholder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Notes;
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(b) the Noteholders of not less than 25% in aggregate principal
amount of the then Outstanding Notes 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;
(c) such Noteholder or Noteholders have offered to the Trustee
adequate security and indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 calendar days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Majority Noteholders;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Noteholder, or to obtain or to seek to obtain priority or preference over any
other such Noteholder or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and proportionate benefit of all
the Noteholders.
SECTION 7.9 UNCONDITIONAL RIGHT OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST AND OTHER AMOUNTS. Notwithstanding any other provisions in this
Indenture, the Noteholders shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest and other
amounts (including Additional Amounts) on such Note on the respective maturities
or due dates expressed in such Note (or, in the case of redemption or repayment,
on the Early Tax Redemption Date or the Maturity Date, as the case may be) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Noteholder.
SECTION 7.10 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Noteholder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, then and in every such case the Issuer, the Trustee and the Noteholders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and the Noteholders shall continue as though no such
proceeding had been instituted.
SECTION 7.11 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided in the last paragraph of Section 2.13, no right or remedy herein
conferred upon or reserved to the Trustee or to the Noteholders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 7.12 CONTROL BY NOTEHOLDERS. Subject to Section 316(a) of the
Trust Indenture Act, the Majority Noteholders shall have the right to direct the
time, method and place
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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
Notes; PROVIDED that:
(a) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or it reasonably believes it will not adequately be indemnified
against the costs, expenses and liabilities which might be incurred by it
in complying with its request or be unjustly prejudicial to the Noteholders
not taking part in such direction; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.13 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Noteholder by its acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, 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 or omitted by it as Trustee, the filing by any
part litigant in such suit, in the manner and to the extent provided in the
Trust Indenture Act of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but neither the provisions of this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such
assessment in any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than 10% in
principal amount of then Outstanding Notes, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of or interest on
any Note on or after the respective maturities expressed in such Note (or, in
the case of redemption or repayment, on or after the applicable redemption date
or the Expected Maturity Date (as the same may be extended as provided
hereunder)).
SECTION 7.14 WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.1 CERTAIN RIGHTS AND DUTIES OF TRUSTEE. (a) The Trustee,
prior to the occurrence of an Event of Default and after curing or waiving all
Events of Default that may have occurred, undertakes to perform only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee. In case an
Event of Default has occurred (which has not been cured or waived) and prior to
the receipt of instructions (if any) from the Noteholders, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except as otherwise provided in Section 315 of the Trust
Indenture Act:
(i) The Trustee may conclusively rely and shall be fully protected
in acting, or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Note, debenture or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties; PROVIDED that in the case of any such certificates or opinions
which by the provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture
but need not verify the contents thereof;
(ii) Any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors shall be evidenced to the Trustee
by a copy thereof certified by the secretary or an assistant secretary of
the Issuer;
(iii) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture, and may refuse to perform
any duty or exercise any such rights or powers unless it shall have been
offered reasonable security or indemnity to its reasonable satisfaction
against the costs, expenses and liabilities which may reasonably be
incurred therein or thereby;
(iv) The Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture (provided that the Trustee's conduct does not constitute
negligence or willful misconduct) or with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
from Noteholders holding a sufficient percentage of Notes to give such
direction as permitted by this Indenture;
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(v) Subject to Section 8.1(a), 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,
consent, order, approval, appraisal, Note, debenture or other paper or
document with respect to the Notes unless requested in writing so to do by
the Majority Noteholders then Outstanding, PROVIDED that, if the payment
within a reasonable time to the Trustee of the reasonable costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require indemnity reasonably satisfactory to it against
such expenses or liabilities as a condition to such proceeding. The
reasonable expense of every such investigation shall be paid by the Issuer
or, if paid by the Trustee, shall be repaid by the Issuer upon demand;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney
custodian or nominee appointed with due care by it hereunder;
(vii) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officers of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts
or the action or failure to act by such Responsible Officers was
unreasonable.
(viii) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with any
direction of the Issuer given under this Indenture, provided that the
Trustee's conduct does not constitute negligence or willful misconduct;
(ix) 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, consent, entitlement order,
approval or other paper or document;
(x) The Trustee shall have no obligation to invest and reinvest any
cash held pursuant to this Indenture in the absence of timely and specific
written investment direction from the Issuer. In no event shall the Trustee
be liable for the selection of investments or for investment losses
incurred thereon. The Trustee shall have no liability in respect of losses
incurred as a result of the liquidation of any investment prior to its
stated maturity or the failure of the Issuer to provide timely written
investment direction;
(xi) The Trustee shall not be deemed to have notice of any Default
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 Notes and this Indenture;
PROVIDED HOWEVER that the Trustee shall be deemed to have actual knowledge
of the existence of any Default or Event of Default which has arisen
pursuant to the provisions of Sections 7.1(a) or (b);
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(xii) 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 under the Guaranty, the Registration
Rights Agreement and each Letter of Credit, and each agent, custodian and
other Person employed to act hereunder; and
(xiii) The Trustee may request that the Issuer deliver an Officer's
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person
authorized to sign an Officer's Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
(c) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be a reasonable ground for
believing that the repayment of such funds or indemnity satisfactory to it
against such liability is not reasonably assured to it.
(d) The Trustee may reasonably request information, including an
Officer's Certificate, from time to time, as necessary or appropriate in order
to ascertain compliance with the requirements of this Indenture and the Notes
and may consult with counsel and the written advice or opinion of counsel shall
be full and complete authorization and protection in respect of any action taken
or omitted by it hereunder in good faith and in accordance with such advice or
opinion of counsel.
(e) 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.
SECTION 8.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS; ETC. The recitals
contained herein and in the Notes, except the Trustee's certificate of
authentication, shall be taken as the statements of the Issuer and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Issuer of any of the Notes or of the proceeds of such Notes.
SECTION 8.3 TRUSTEE AND OTHERS MAY HOLD NOTES. (a) The Trustee or any
Paying Agent or Note Registrar or any other Authorized Agent of the Trustee, or
any Affiliate thereof, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Issuer, or any other
obligor on the Notes with the same rights it would have if it were not Trustee,
Paying Agent, Note Registrar or such other Authorized Agent.
(b) The Trustee is subject to Section 311(a) of the Trust Indenture
Act, excluding any
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creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee resigns or is removed, such Trustee shall be subject to Section
311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 8.4 MONEYS HELD BY TRUSTEE OR PAYING AGENT. (a) Whenever the
Issuer shall have one or more Paying Agents, the Issuer will make the payments
contemplated by Sections 6.1 and 6.2 by depositing with a Paying Agent an amount
sufficient to make such payments, such amount to be held in trust by the Paying
Agent for the benefit of the Persons entitled thereto, and (unless such Paying
Agent is the Trustee) will promptly notify the Trustee of its action or failure
so to act. Each Paying Agent other than the Trustee shall execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, to the effect that such
Paying Agent will:
(i) hold all amounts held by it for the making of payments in
respect of the Notes in trust for the benefit of the Persons entitled
thereto until such amounts shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) provide the Trustee notice of any Default by the Issuer in the
making of payments in respect of the Notes; and
(iii) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all
amounts so held in trust by such Paying Agent.
(b) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay or
deliver, or direct any Paying Agent to pay or deliver, to the Trustee all
amounts held in trust by the Issuer or such Paying Agent, such amounts to be
held by the Trustee upon the same trusts as those upon which such amounts were
held by the Issuer or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
(c) Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuer in trust for the making of any payment in respect of any Note
and remaining unclaimed for two years after such payment has become due and
payable (if then held by the Trustee or any Paying Agent) shall be paid or
returned to the Issuer upon request by the Issuer or (if then held by the
Issuer) shall be discharged from such trust; and Noteholders shall thereafter,
as unsecured general creditors, seek recourse only to the Issuer for payment
thereof (unless an applicable abandoned property law designates another Person),
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer, as trustee thereof, shall thereupon
cease; provided that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Issuer provide notice to
Noteholders in the manner set forth in Section 14.14, that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the latest date of mailing, any unclaimed balance of such money
then remaining will be repaid or redelivered to the Issuer.
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SECTION 8.5 COMPENSATION OF THE TRUSTEE AND ITS LIEN. (a) The Issuer
covenants and agrees to pay to the Trustee (all references in this Section 8.5
to the Trustee shall be deemed to apply to the Trustee in its capacities as
Trustee, Paying Agent and Note Registrar) from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall be agreed to from time to time by the Issuer and the
Trustee and which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as herein otherwise
expressly provided, the Issuer will pay or reimburse the Trustee upon its
request for all reasonable expenses and disbursements incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the reasonable expenses, advances and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense or disbursement as may arise from its gross negligence
or bad faith. The Issuer also covenants and agrees to indemnify the Trustee and
any predecessor Trustee for, defend, and hold harmless the Trustee and any
predecessor Trustee and their officers, directors, employees, representatives
and agents from and against, any loss, liability, claim, damage or expense
incurred without gross negligence or bad faith on the part of the Trustee or any
of its employees, officers or agents, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder and this
Indenture, including liability which the Trustee may incur as a result of
failure to withhold, pay or report Taxes and including the costs and expenses of
defending itself against any claim or liability in the premises and including,
without limitation, any loss, liability, claim, damage or expense relating to or
arising out of any Environmental Law. The obligations of the Issuer under this
Section shall constitute additional Indebtedness hereunder. In no event shall
the Trustee be liable for special, indirect or consequential loss or damages
whatsoever (including, but not limited to lost profits), even if the Trustee has
been advised of the likelihood of such damage and regardless of the form of
action taken.
(b) The obligations of the Issuer under this Section 8.5 shall survive
payment in full of the Notes, the resignation or removal of the Trustee and the
termination of this Indenture.
(c) When the Trustee or any predecessor Trustee incurs expenses or
renders services in connection with the performance of its obligations hereunder
(including its services as Paying Agent, if so appointed by the Issuer) after an
Event of Default occurs, the expenses and compensation for such services are
intended to constitute expenses of administration under applicable bankruptcy,
insolvency or other similar United States federal or state law to the extent
provided in Section 503(b)(5) of the Federal Bankruptcy Code.
(d) The Trustee shall have a lien prior to the Notes as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 8.5, except with respect to funds
held in trust for the benefit of the holders of particular Notes.
SECTION 8.6 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATES AND
OPINIONS OF COUNSEL. Before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may require an
Officer's Certificate of the Issuer or an Opinion of Counsel, which shall
conform to the provisions of Section 14.1. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such
certificate or opinion as set forth in Section 8.1(b)(v).
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SECTION 8.7 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. There shall
at all times be a Trustee hereunder which shall at all times be a bank which
complies with the eligibility requirements of the Trust Indenture Act, having a
combined capital and surplus of at least $100,000,000 and have a long term
unsecured debt rating of at least "A2" by Xxxxx'x, "A" by S&P and "A" by Fitch
(if rated by Fitch). If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of a supervising or examining
authority referred to in Section 310(a) of the Trust Indenture Act, then for the
purposes of this Section 8.7, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with this Section 8.7, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.8.
SECTION 8.8 RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF
SUCCESSOR. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice to the Issuer and by giving notice
of such resignation to the Noteholders in the manner provided in Section 14.5.
(b) In case at any time any of the following shall occur with
respect to any Notes:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act, after written request thereafter by the
Issuer or by any Noteholder who has been a bona fide Noteholder for at
least six months,
(ii) the Trustee shall cease to be eligible under Section 8.7 and
shall fail to resign after written request therefore by the Issuer or by
any Noteholder, or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (A) the Issuer may remove the Trustee, and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, or (B) subject to the requirements of Section
315(e) of the Trust Indenture Act, any Noteholder who has been a bona fide
Noteholder 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 and the appointment of a successor Trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor Trustee.
(c) The Majority Noteholders at the time Outstanding may at any time
remove the Trustee and appoint a successor Trustee by delivering to the Trustee
so removed, to the successor Trustee so appointed and to the Issuer, the
evidence provided for in Section 8.1 of the action taken by the Noteholders,
provided that unless a Default or Event of Default shall have occurred and be
continuing, the Issuer shall consent (such consent not to be unreasonably
withheld).
(d) If the Trustee shall resign, be removed, or become incapable of
acting or if a vacancy shall occur in the office of Trustee with respect to the
Notes for any cause, the Issuer
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shall promptly appoint a successor Trustee or Trustees by written instrument, in
duplicate, executed by order of the Board of Directors of the Issuer, one copy
of which instrument shall be delivered to the former Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and have
accepted such appointment pursuant to Section 8.9 within 30 days after the
mailing of such notice of resignation or removal, the former Trustee may, at the
Issuer's expense, petition any court of competent jurisdiction for the
appointment of a successor Trustee, or any Noteholder who has been a bona fide
Noteholder for at least six months may, subject to the requirements of Section
315(e) of the Trust Indenture Act, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor Trustee.
Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor Trustee.
(e) Any resignation or removal of the Trustee and any appointment of a
successor Trustee pursuant to this Section shall become effective only upon
acceptance of appointment by the successor Trustee as provided in Section 8.9.
SECTION 8.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. (a) Any
successor Trustee appointed under Section 8.8 shall execute, acknowledge and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts, duties and obligations of its predecessor Trustee hereunder,
with like effect as if originally named as Trustee herein; but, nevertheless, on
the written request of the Issuer or of the successor Trustee, the Trustee
ceasing to act shall, upon payment of any such amounts then due it pursuant to
the provisions of Section 8.5, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the Trustee so
ceasing to act, and shall assign, transfer and deliver to such successor Trustee
all property and money as may be held by such Trustee ceasing to act. Upon
request of any such successor Trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to Section 8.5.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.9 unless at the time of such acceptance such successor Trustee shall
be eligible under Section 8.7.
(c) Upon acceptance of appointment by a successor Trustee, the Issuer
shall give notice of the succession of such Trustee hereunder to the Noteholders
in the manner provided in Section 14.5. If the Issuer fails to give such notice
within 10 days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be given at the expense of the
Issuer.
SECTION 8.10 MERGER, CONVERSION OR CONSOLIDATION OF TRUSTEE. (a) Any
Person 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 Person succeeding to
all or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder without the execution or filing of any
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paper or any further act on the part of any of the parties hereto; PROVIDED that
such successor Trustee shall be qualified under the Trust Indenture Act and
eligible under the provisions of Section 8.7 hereof and Section 310(a) of the
Trust Indenture Act.
(b) In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such Notes
so authenticated and, in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
trustee, and in such cases such certificate shall have the same force under the
Notes and under this Indenture as if authenticated by such predecessor Trustee;
provided that the certificate of the Trustee shall have provided that the right
to adopt the certificate of authentication of any predecessor Trustee or the
authenticated Notes in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.
SECTION 8.11 MAINTENANCE OF OFFICES AND AGENCIES. (a) There shall at
all times be maintained in the Borough of Manhattan, The City of New York, and
in such other Places of Payment, if any, as shall be specified for the Notes, an
office or agency where Notes may be presented or surrendered for registration of
transfer or exchange and for payment of principal and interest. Such office
shall be initially located at the address set forth in Section 14.4 hereto.
Notices and demands to or upon the Trustee in respect of the Notes or this
Indenture may be served at the Corporate Trust Office. Written notice of the
location of each of such other office or agency and of any change of location
thereof shall be given by the Issuer to the Trustee and by the Trustee to the
Noteholders in the manner specified in Section 14.5. In the event that no such
office or agency shall be maintained or no such notice of location or of change
of location shall be given, presentations, surrenders and demands may be made
and notices may be served at the Corporate Trust Office.
(b) There shall at all times be a Note Registrar and a Paying Agent
hereunder. So long as the Notes are listed on the Luxembourg Stock Exchange
there shall at all times be maintained a Luxembourg Paying Agent and Luxembourg
Transfer Agent in Luxembourg. In addition, at any time when any Notes remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents with
respect to the Notes which shall be authorized to act on behalf of the Trustee
to authenticate Notes issued upon original issuance, exchange, registration of
transfer or redemption thereof or pursuant to Section 2.12, and Notes 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 (it being understood that wherever reference is made in this Indenture
to the authentication and delivery of Notes 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).
(c) Any Authorized Agent shall be a bank or trust company and (except
for any Luxembourg Paying Agent) shall be a Person (i) organized and doing
business under the laws of the United States or any State thereof, (ii) with a
combined capital and surplus of at least $50,000,000, (iii) authorized under
such laws to exercise corporate trust powers, subject to
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supervision by United States Federal or state authorities and (iv) be rated at
least "A2" by Xxxxx'x, "A" by S&P and "A" by Fitch. If such Authorized Agent
publishes reports of its condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.11, the combined capital and surplus of such
Authorized 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
Authorized Agent shall cease to be eligible in accordance with the provisions of
this Section 8.11, such Authorized Agent shall resign immediately in the manner
and with the effect specified in this Section 8.11.
(d) The Trustee at its office specified in the first paragraph of this
Indenture, is hereby appointed as Paying Agent and Note Registrar hereunder.
(e) Any Paying Agent (other than the Trustee) or any Luxembourg Paying
Agent from time to time appointed hereunder shall execute and deliver to the
Trustee an instrument in which said Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 8.11, that such Paying Agent or
Luxembourg Paying Agent will:
(i) hold all sums held by it for the payment of principal of and
interest on Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(ii) give the Trustee within five days thereafter notice of any
Default by any obligor upon the Notes in the making of any such payment of
principal or interest; and
(iii) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
(f) Notwithstanding any other provision of this Indenture, any payment
required to be made to or received or held by the Trustee may, to the extent
authorized by written instructions of the Trustee, be made to or received or
held by a Paying Agent in the Borough of Manhattan, The City of New York, for
the account of the Trustee.
(g) Any Person into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, consolidation or conversion to which any Authorized Agent shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of any Authorized Agent, shall be the successor of such
Authorized Agent hereunder, if such successor Person is otherwise eligible under
this Section 8.11, without the execution or filing of any paper or any further
act on the part of the parties hereto or such Authorized Agent or such successor
Person.
(h) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee and the Issuer. The Issuer may, and at the
request of the Trustee shall, at any time, terminate the agency of any
Authorized Agent by giving written notice of such termination to the Authorized
Agent and to the Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section 8.11 (when, in either case, no other Authorized
Agent performing the functions of such Authorized Agent shall have been
appointed), the Issuer shall promptly appoint
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one or more qualified successor Authorized Agents approved by the Trustee to
perform the functions of the Authorized Agent which has resigned or whose agency
has been terminated or who shall have ceased to be eligible under this Section
8.11. The Issuer shall give written notice of any such appointment to all
Noteholders as their names and addresses appear on the Note Register.
(i) The Issuer initially appoints The Bank of New York as Note
Registrar and Paying Agent and Deutsche Bank Luxembourg S.A. as a paying agent
(the "LUXEMBOURG PAYING AGENT") in connection with the Notes. The Luxembourg
Paying Agent accepts such appointment and hereby agrees and undertakes to comply
with the provisions of Section 6.23. The Issuer will appoint the Deutsche Bank
Luxembourg S.A. as transfer agent (the "LUXEMBOURG TRANSFER AGENT") in the event
the Notes are issued in definitive registered form.
(j) So long as the Notes are listed on the Luxembourg Stock Exchange
and the rules of such Exchange so require, the Issuer will maintain a paying
agent and transfer agent in Luxembourg. If the Notes are listed on any other
securities exchange, the Issuer will satisfy any requirement at such securities
exchange as to paying agents. So long as the Notes are listed on the Luxembourg
Stock Exchange, any change in the Luxembourg Paying Agent or Luxembourg Transfer
Agent shall be notified to holders of the Notes by publication of notices to the
holders of the Securities in accordance with the provisions of Section 14.5 of
this Indenture.
(k) Copies of all written information provided by the Issuer
hereunder, including without limitation, all such information and financial
statements provided to the Trustee under Section 6 hereof, shall be sent by
first class mail to the Luxembourg Paying Agent at its offices at 00, Xxxxxxxxx
Xxxxx, X-0000 Xxxxxxxxxx, or such other address as shall be designated by the
Luxembourg Paying Agent to the Trustee and the Issuer.
SECTION 8.12 REPORTS BY TRUSTEE. On or before March 15 in every year,
so long as any Notes are Outstanding hereunder, the Trustee shall transmit to
the Noteholders specified in Section 313(a) of the Trust Indenture Act a brief
report, dated as of the preceding December 31, to the extent required by Section
313 of the Trust Indenture Act in accordance with the procedures set forth in
said Section. A copy of such report at the time of its mailing to Noteholders
shall be filed with the SEC and each stock exchange, if any, on which the Notes
are listed. The Issuer shall promptly notify the Trustee if the Notes become
listed on any stock exchange or any de-listing thereof, and the Trustee shall
comply with Section 313(d) of the Trust Indenture Act.
SECTION 8.13 TRUSTEE RISK. None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable ground
for believing that the repayment of such funds or liability is not reasonably
assured to it. Whether or not expressly provided herein, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to Section 8.1 and the requirements
of the Trust Indenture Act.
SECTION 8.14 APPOINTMENT OF CO-TRUSTEE. (a) It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction,
denying or restricting the
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right of banking corporations or associations to transact business as Trustee in
such jurisdiction. It is recognized that in case of litigation under this
Indenture or any Transaction Document, and in particular in case of the
enforcement of any such document on default, or in case the Trustee deems that
by reason of any present or future law of any jurisdiction it may not exercise
any of the powers, rights or remedies herein granted to the Trustee or hold
title to the properties, in trust, as herein granted, or take any other action
which may be desirable or necessary in connection therewith, it may be necessary
that the Trustee appoint an additional individual or institution as a separate
or co-trustee. The following provisions of this Section 8.14 are adopted to
these ends.
(b) In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vested
in such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the exercise thereof by such separate or
co-trustee shall run to and be enforceable by either of them.
(c) Should any instrument in writing be required by the separate
trustee or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer. In case any
separate trustee or co-trustee, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties, rights,
powers, trusts, duties and obligations of such separate trustee or co-trustee,
so far as permitted by law, shall vest in and be exercised by the Trustee until
the appointment of a new trustee or successor to such separate trustee or
co-trustee.
(d) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to any
property or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder;
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(iii) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee. and
(iv) each co-trustee appointed hereunder shall at all times be a
bank that complies with the eligibility requirements set forth in Section
310(a) of the Trust Indenture Act, have a combined capital and surplus of
U.S.$100,000,000, have its corporate trust office in the Borough of
Manhattan, the city of New York and have a long-term unsecured debt rating
of at least "A2" by Moody's. If such bank publishes reports of condition at
least annually, pursuant to law or to the requirements of a supervising or
examining authority referred to in Section 301(a) of the Trust Indenture
Act, then for the purposes of this subsection, the combined capital and
surplus of such bank shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
SECTION 8.15 KNOWLEDGE OF DEFAULT. If a Default or Event of Default
occurs and is continuing, and if the Trustee has actual knowledge thereof, as
determined pursuant to Section 8.1(b)(xi) hereof, the Trustee shall transmit to
each Noteholder, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, notice of the Default or Event of Default by the
earlier of 90 days after it occurs or 30 days after the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of
Default in payment of principal, interest or other amounts due on any Note, the
Trustee may withhold the notice if and so long as its Board of Directors in good
faith determines that withholding the notice is in the interests of the
Noteholders.
ARTICLE IX
CONCERNING THE HOLDERS
SECTION 9.1 ACTS OF NOTEHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders (collectively, an "ACT" of
such Noteholders, which term also shall refer to the instruments or record
evidencing or embodying the same) may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Noteholders in
person or by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Noteholders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Noteholders duly called and held in accordance with the provisions of Article X,
or a combination of such instruments and any such record. 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
when it is specifically required herein, to the Issuer. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 8.1)
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section 9.1. The record of any meeting of Noteholders shall be
proved in the manner provided in Section 10.5.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such
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instrument acknowledged to such officer the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such notary or
other such officer, and where such execution is by an officer of a corporation
or association or of the Issuer, on behalf of such corporation, association or
the Issuer, such certificate or affidavit shall also constitute sufficient proof
of such Person's 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.
(c) The ownership of the Notes, the principal amount and serial
numbers of Notes held by any Person, and the date or dates of holding the same,
shall be proved by the Note Register and the Trustee shall not be affected by
notice to the contrary.
(d) Any act of any Noteholder (i) shall bind the holder of such Note
and every future Noteholder of the same Note and the Noteholder of every Note
issued upon the transfer thereof or the exchange therefore or in lieu thereof,
whether or not notation of such action is made upon such Note and whether or not
such Noteholder has given its consent (unless required under this Indenture) to
such Act or was present at any duly held meeting, and (ii) shall be valid
notwithstanding that such Act is taken in connection with the transfer of such
Note to any other Person, including the Issuer or any Affiliate thereof.
(e) Until such time as written instruments shall have been delivered
with respect to the requisite percentage of principal amount of Notes for the
Act contemplated by such instruments, any such instrument executed and delivered
by or on behalf of a Noteholder may be revoked with respect to any or all of
such Notes by written notice by such Noteholder (or its duly appointed agent) or
any subsequent Noteholder (or its duly appointed agent), proven in the manner in
which such instrument was proven unless such instrument is by its terms
expressly irrevocable.
(f) Notes authenticated and delivered after any Act of Noteholders
may, and shall if required by the Issuer, bear a notation in form approved by
the Issuer as to any action taken by such Act of Noteholders. If the Issuer
shall so determine, new Notes so modified as to conform, in the opinion of the
Issuer, to such action, may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
(g) The Issuer may, in the circumstances permitted by the Trust
Indenture Act, but shall not be obligated to, fix a record date for the purpose
of determining the Noteholders entitled to sign any instrument evidencing or
embodying an Act of the Noteholders. If a record date is fixed, those Persons
who were Noteholders at such record date (or their duly appointed agents), and
only those Persons, shall be entitled to sign any such instrument evidencing or
embodying an Act of Noteholders or to revoke any such instrument previously
signed, whether or not such Persons continue to be Noteholders after such record
date. No such instrument shall be valid or effective if signed more than 90 days
after such record date, and may be revoked as provided in paragraph (e) above.
(h) The Initial Notes and the Exchange Notes shall vote and consent
together on all matters as one class, and none of the Notes, and no tranche of
Notes, shall have the right to vote or consent as a separate class on any
matter.
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SECTION 9.2 NOTES OWNED BY ISSUER AND AFFILIATES DEEMED NOT
OUTSTANDING. In determining whether the holders of the requisite aggregate
principal amount of Notes have concurred in any request, demand, authorization,
direction, notice, consent and waiver or other act under this Indenture, Notes
which are owned by the Issuer, the Guarantor, or any Affiliate of either of the
foregoing shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver, only Notes for which a Responsible Officer of the Trustee has received
written notice of such ownership as conclusively evidenced by the Note Register
shall be so disregarded. The Issuer shall furnish the Trustee, upon its
reasonable request, with a list of such Affiliates. Subject to the provisions of
Section 315 of the Trust Indenture Act, in case of a dispute as to such right,
any decision by the Trustee, taken upon the advice of counsel, shall be full
protection to the Trustee.
ARTICLE X
HOLDERS' MEETINGS
SECTION 10.1 PURPOSES FOR WHICH NOTEHOLDERS' MEETINGS MAY BE CALLED. A
meeting of Noteholders may be called at any time and from time to time pursuant
to this Article X for any of the following purposes:
(a) to give any notice to the Issuer or to the Trustee, or to give
any directions to the Trustee, or to waive or to consent to the waiving of
any default hereunder and its consequences, or to take any other action
authorized to be taken by Noteholders pursuant to Article VII;
(b) to remove the Trustee and appoint a successor Trustee pursuant
to Article VIII;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 11.1; or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the Notes
under any other provision of this Indenture or under applicable law.
SECTION 10.2 TRUSTEE, ISSUER AND NOTEHOLDERS MAY CALL MEETING. The
Trustee, the Issuer and the Noteholders may call a meeting of the Noteholders at
any time by giving notice thereof as provided in Section 14.5. In case the
Issuer, pursuant to a Board Resolution, or the holders of at least 10% in
aggregate principal amount of the Notes then Outstanding shall have requested
the Trustee to call a meeting of Noteholders, by written request setting forth
in general terms the action proposed to be taken at the meeting, and the Trustee
shall not have made the mailing of the notice of such meeting within 20 days
after receipt of such request, then the Issuer or such Noteholders in the amount
above specified 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 to
take any action authorized in Section 10.1 by giving notice thereof as provided
in
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Section 14.5. Notice of every meeting of the Noteholders shall set forth the
time and place of such meeting and, in general terms, the action proposed to be
taken at such meeting and shall be given not less than 30 nor more than 60 days
prior to the date fixed for the meeting.
SECTION 10.3 PERSONS ENTITLED TO VOTE AT MEETING. To be entitled to
vote at any meeting of Noteholders a person shall be (a) Noteholder of one or
more Notes with respect to which such meeting is being held or (b) a person
appointed by an instrument in writing as proxy for the Noteholder or Noteholders
of such Notes by a Noteholder of one or more such Notes. The only persons who
shall be entitled to be present or to speak at any meeting of Noteholders shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Issuer and its counsel.
SECTION 10.4 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETING. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Noteholders, in regard to proof of the holding of Notes and of 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 think fit. 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 9.1 or other proof.
Except as otherwise permitted or required by any such regulations, the holding
of Notes shall be proved in the manner specified in Section 9.1 and the
appointment of any proxy shall be proved in the manner specified in said Section
9.1 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or firm satisfactory to the
Trustee.
(b) The Issuer or the Noteholders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Noteholders of a
majority in aggregate principal amount of the Notes represented at the meeting
and entitled to vote.
(c) Subject to the provisions of Section 9.2, at any meeting each
Noteholder proxy shall be entitled to one vote for each U.S.$1,000 principal
amount of Notes held or represented by him; PROVIDED, HOWEVER, that no vote
shall be cast or counted at any meeting in respect of any Note 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 other than by virtue of
Notes held by him or instruments in writing as aforesaid duly designating him as
the person to vote on behalf of other Noteholders. Any meeting of Noteholders
duly called pursuant to Section 10.2 may be adjourned from time to time, and the
meeting may be held as so adjourned upon notice as set forth in Section 10.2. At
any meeting, the presence of persons holding or representing Notes with respect
to which such meeting is being held in an aggregate principal amount sufficient
to take action upon the business for the transaction of which such meeting was
called shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Notes represented
at the meeting may adjourn such meeting with the same effect, for all intents
and purposes, as though a quorum had been present.
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SECTION 10.5 COUNTING VOTES AND RECORDING ACTION OF MEETING. The vote
upon any resolution submitted to any meeting of Noteholders shall be by written
ballots on which shall be subscribed the signatures of the Noteholders or of
their representatives by proxy and the serial numbers and principal amounts of
the Notes 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 in duplicate of the proceedings of each
meeting of Noteholders 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.
The record shall show the serial numbers of the Notes voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Issuer and the other 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 XI
SUPPLEMENTAL INDENTURES
SECTION 11.1 SUPPLEMENTAL INDENTURE WITH CONSENT OF NOTEHOLDERS. (a)
With the consent of the Majority Noteholders, the Issuer may, and the Trustee,
subject to Sections 11.3 and 11.4, shall, enter into an indenture or indentures
supplemental hereto for the purpose of amending the provisions of this
Indenture; PROVIDED, HOWEVER, that without the consent of the Noteholder of each
Outstanding Note directly affected thereby, no such supplemental indenture shall
(with respect to any Notes held by non-consenting Noteholder of such Notes)
cause any of the following:
(i) change the maturity of any payment of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon, or change the method of computing
the amount of principal thereof or interest payable thereon on any date or
change any place of payment where, or the coin or currency in which, the
principal of or interest (including Additional Amounts) on any Note is
payable, or impair the right of the Noteholders to institute suit for the
enforcement of any such payment on or after the maturity or the date of
payment, as the case may be, thereof (or, in the case of redemption or
repayment, on or after the Early Tax Redemption Date or the Payment Date,
as the case may be); or
(ii) reduce the percentage in aggregate principal amount of the
Outstanding Notes, 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
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(iii) modify any of the provisions of this Section or Section 7.4,
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 each Noteholder.
(b) Upon receipt by the Trustee of Board Resolutions and such other
documentation as the Trustee may reasonably require and upon the filing with the
Trustee of evidence of the Act of said Noteholders, the Trustee shall join in
the execution of such supplemental indenture or other instrument, as the case
may be, subject to the provisions of Sections 11.3 and 11.4.
(c) It shall not be necessary for any Act of Noteholders 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.
(d) The Trustee may execute and deliver any amendment to the Guaranty
or grant any waiver thereof with the consent of the majority Noteholders.
SECTION 11.2 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
Notwithstanding anything to the contrary provided for in Section 11.1 hereof the
Issuer, at any time and from time to time, may, without the consent of any
Noteholders, enter into one or more indentures supplemental hereto in form
satisfactory to the Trustee for any of the following purposes:
(a) to establish the form and terms of Notes permitted by Sections 2.1
and 2.5; or
(b) to evidence the succession of another entity to the Issuer and the
assumption by any such successor of the covenants of the Issuer herein
contained; or
(c) to evidence the succession of a new Trustee hereunder pursuant to
Section 8.9; or
(d) to add further covenants of the Issuer and any restrictions,
conditions or provisions as the Board of Directors shall consider to be for
the protection of the Noteholders, and to make the occurrence, or the
occurrence and continuance of a default in any such covenants,
restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; or
(e) to convey, transfer and assign to the Trustee properties or assets
to secure the Notes, and to correct or amplify the description of any
property at any time subject to this Indenture or the Transaction Documents
or to assure, convey and confirm unto the Trustee any property subject or
required to be subject to this Indenture or the Transaction Documents; or
(f) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to qualify it under the Trust Indenture
Act, if necessary, or under any similar United States federal statute
hereafter enacted, and to add to this Indenture such other provisions as
may be expressly permitted by the Trust Indenture Act,
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excluding, however, the provisions referred to in Section 316(a)(2) of the
Trust Indenture Act as in effect at the date as of which this instrument
was executed or any corresponding provision in any similar United States
federal statute hereafter enacted; or
(g) to permit or facilitate the issuance of Notes in uncertificated
form; or
(h) to cure any ambiguity, to correct or supplement any provision in
this Indenture or the Transaction Documents that may be defective or
inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interest of
the Noteholders in any material respect.
SECTION 11.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing
supplemental indentures permitted by this Article XI or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 8.1) 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 all conditions
precedent to the execution of such supplemental indenture have been met. The
Trustee may, but shall not be obligated to, enter into any supplemental
indentures which affect the Trustee's own rights, duties or immunities under
this Indenture, the Notes or otherwise.
SECTION 11.4 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article XI, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Noteholder theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 11.5 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article XI shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 11.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article XI may, and shall if required by the Issuer, bear a
notation in form approved by the Issuer as to any matter provided for in such
supplemental indenture; and, in such case, suitable notation may be made upon
Outstanding Notes after proper presentation and demand. If the Issuer shall so
determine, new Notes so modified as to conform, in the opinion of the Issuer and
the Trustee, to any such supplemental indenture may be prepared and executed by
the Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE XII
SATISFACTION AND DISCHARGE
SECTION 12.1 SATISFACTION AND DISCHARGE OF NOTES. (a) The Notes shall,
on or prior to the Interest Payment Date with respect to the repayment of
principal thereof, be deemed
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to have been paid for all purposes of this Indenture, and the entire
indebtedness of the Issuer in respect of this Indenture and the Notes shall be
deemed to have been satisfied and discharged, upon satisfaction of the following
conditions:
(i) the Issuer shall have irrevocably deposited or caused to be
deposited with the Trustee, in trust, money in an amount which shall be
sufficient to pay when due the principal of and interest due and to become
due on the Notes on or prior to the Interest Payment Date with respect to
the repayment of principal thereof or upon redemption;
(ii) if any such deposit of money shall have been made prior to the
Interest Payment Date with respect to the repayment of principal, the Early
General Redemption Date or the Early Tax Redemption Date of such Notes, as
the case may be, the Issuer shall have delivered to the Trustee an Issuer
Order stating that such money shall be held by the Trustee, in trust;
(iii) in the case of redemption of Notes, the Issuer Order with
respect to such redemption pursuant to Article IV shall have been given to
the Trustee; and
(iv) there shall have been delivered to the Trustee an Opinion of
Counsel to the effect that such satisfaction and discharge of the
indebtedness of the Issuer with respect to the Notes shall not be deemed to
be, or result in, a taxable event with respect to the Noteholders for
purposes of United States federal income taxation unless the Trustee shall
have received documentary evidence that each Noteholder either is not
subject to, or is exempt from, United States federal income taxation.
(b) Upon satisfaction of the aforesaid conditions with respect to the
Notes, the Trustee shall, upon receipt of an Issuer Order, execute proper
instruments acknowledging satisfaction and discharge of the Notes.
(c) In the event that Notes which shall be deemed to have been paid as
provided in this Section 12.1 do not mature and are not to be redeemed within
the 60-day period commencing on the date of the deposit with the Trustee of
moneys, the Issuer shall, as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such Notes, to such Noteholders
to the effect that such Notes are deemed to have been paid and the circumstances
thereof.
(d) Notwithstanding the satisfaction and discharge of any Notes as
aforesaid, the obligations of the Issuer and the Trustee in respect of such
Notes under Sections 2.12, 2.13, 2.14 and 8.5 and this Article XII shall
survive.
SECTION 12.2 SATISFACTION AND DISCHARGE OF INDENTURE. (a) This
Indenture shall upon the Issuer Order cease to be of further effect (except as
hereinafter expressly provided), and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when:
(i) either:
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(x) all Notes theretofore authenticated and delivered (other
than (A) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.13 and (B) Notes
deemed to have been paid in accordance with Section 12.1) have been
delivered to the Trustee for cancellation; or
(y) all Notes not theretofore delivered to the Trustee for
cancellation shall be deemed to have been paid in accordance with
Section 12.1;
(ii) all other sums due and payable hereunder have been paid; and
(iii) the Issuer 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.
(b) Upon satisfaction of the aforesaid conditions, the Trustee shall,
upon receipt of an Issuer Order, execute proper instruments acknowledging
satisfaction and discharge of the Indenture and take all other action reasonably
requested by the Issuer to evidence the termination of any and all Liens created
by or with respect to this Indenture.
(c) Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Issuer and the Trustee under Sections 2.12,
2.13, 2.14 and 8.5 and this Article XII shall survive.
(d) Upon satisfaction and discharge of this Indenture as provided in
this Section 12.2, the Trustee shall assign, transfer and turn over to or upon
the order of the Issuer, any and all money, securities and other property then
held by the Trustee for the benefit of the Noteholders, other than money
deposited with the Trustee pursuant to Section 12.1(a) and interest and other
amounts earned or received thereon.
SECTION 12.3 APPLICATION OF TRUST MONEY. The money deposited with the
Trustee pursuant to Section 12.1 shall not be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment of the principal of and
interest on the Notes or portions of principal amount thereof in respect of
which such deposit was made.
ARTICLE XIII
DEFEASANCE
SECTION 13.1 ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. The Issuer may at its option by a Board Resolution, at any time,
elect to have either Section 13.2 or Section 13.3 applied to the Notes upon
compliance with the conditions set forth below in this Article XIII.
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SECTION 13.2 DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of
the option provided in Section 13.1 to have this Section 13.2 applied to all the
Notes, the Issuer shall be deemed to have been discharged from its obligations
with respect to the Notes Outstanding on the date the conditions in Section 13.4
are satisfied (a "DEFEASANCE"). For this purpose, such Defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Notes and to have satisfied all its other obligations under
the Notes and this Indenture, including the provisions of Article XII (and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same) except for the following, which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of such Noteholders
to receive, solely from the trust fund described in Section 13.4 and as more
fully set forth in such Section, payments in respect of the principal of and
interest (including any Additional Amounts) on the Notes when such payments are
due, (b) the Issuer's obligations with respect to such Notes under Sections
2.12, 2.13, 2.14, 2.15, 2.16, 6.10, 8.4, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (d) this Article XIII and the
Issuer's obligations to the Trustee under Section 8.5. Subject to compliance
with this Article XIII, the Issuer may exercise its option under this Section
13.2 notwithstanding the prior exercise of its option under Section 13.3.
SECTION 13.3 COVENANT DEFEASANCE. Upon the Issuer's exercise of the
option provided in Section 13.1 to have this Section 13.3 applied to the Notes,
(i) the Issuer shall be released from its obligations under Article VI with
respect to the Notes and (ii) the occurrence of an event with respect to such
Notes specified in Article VI (except with respect to Section 7.1(a), (b), (g),
(h), (i), (j) and (k), shall not be deemed to be an Event of Default on and
after the date the conditions set forth in Section 13.4 are satisfied (a
"COVENANT DEFEASANCE"). For this purpose, such Covenant Defeasance means that,
with respect to the Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or clause, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or clause or by reason of any reference in
any such Section or clause to any other provision herein or in any other
document, but the remainder of this Indenture shall be unaffected thereby.
SECTION 13.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 13.2 or
Section 13.3 to the then Outstanding Notes:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee in trust for the purpose of making the following
payments specifically pledged as security for, and dedicated solely to, the
benefit of the Noteholders, (i) U.S. dollars, or (ii) U.S. government
obligations or (iii) a combination thereof, in an amount 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, sufficient, in the opinion of an internationally
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 (or other qualifying trustee) to pay and
discharge, the principal of and each installment of interest (including
Additional Amounts) on the Notes on the Maturity Date of such principal of or
installment of interest (including Additional Amounts) in accordance with the
terms of this Indenture and the Notes.
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(b) In the case of an election under Section 13.2, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer
has received from, or there has been published by, the U.S. Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable United States federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Noteholders will not recognize gain or loss for United States federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount, in the same
manner and at the same time as would have been the case if such deposit,
defeasance and discharge had not occurred.
(c) In the case of an election under Section 13.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Noteholders will not recognize gain or loss for United States federal income tax
purposes as a result of such deposit and Covenant Defeasance and will be subject
to United States federal income tax on the same amount, in the same manner and
at the same time as would have been the case if such deposit and Covenant
Defeasance had not occurred.
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 7.1 (i) and
(j) inclusive are concerned, at any time during the period ending on the 121st
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(e) Such Defeasance or Covenant Defeasance shall not (i) cause the
Trustee to have a conflicting interest for the purposes of the Trust Indenture
Act with respect to any securities of the Issuer or (ii) result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Issuer is a party or by which it is bound.
(f) The Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that payment of amounts deposited in trust with the
Trustee as provided in clause (a) hereof will not be subject to future taxes,
duties, fines, penalties, assessments or other governmental charges imposed,
levied, collected, withheld or assessed by, within or on behalf of a Taxing
Jurisdiction, except to the extent that Additional Amounts in respect thereof
shall have been deposited in trust with the Trustee as provided in clause (a)
hereof.
(g) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all conditions precedent
provided for relating to either the Defeasance under Section 13.2 or the
Covenant Defeasance under Section 13.3, as the case may be, have been complied
with.
(h) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company as defined in
the Investment Company Act of 1940, as amended.
SECTION 13.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. (a) Subject to the provisions of
Section 8.4, all money and U.S. government obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 13.4 in respect of the
Notes shall be held in trust and applied by the
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Trustee, in accordance with the provisions of the Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the
Noteholders, of all sums due and to become due thereon in respect of principal
and interest, but such money need not be segregated from other funds except to
the extent required by law.
(b) The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the money or the U.S.
government obligations deposited pursuant to Section 13.4 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Noteholders.
(c) Anything in this Article XIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon request any
money or U.S. government obligations held by it as provided in Section 13.4
which, in the opinion of an internationally 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 an equivalent defeasance or covenant defeasance.
SECTION 13.6 REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Section 13.2 or 13.3 by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations of
the Issuer under this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article XIII until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 13.2 or 13.3; provided, however, that if the Issuer makes any
payment of principal of or interest on or Additional Amounts in respect of the
Notes following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Noteholders to receive such payment from the
money held by the Trustee or the Paying Agent.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 COMPLIANCE CERTIFICATES AND OPINIONS. (a) Except as
otherwise expressly provided by this Indenture, upon any application or request
by the Issuer to the Trustee that the Trustee take any action under any
provision of this Indenture, the Issuer shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and, if so requested by the Trustee, an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any particular application or request
as to which the furnishing of documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
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(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, such
examination or investigation has been made as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
(c) With the delivery of this Indenture, the Issuer is furnishing to
the Trustee, and from time to time thereafter may furnish, an Officer's
Certificate identifying and certifying the incumbency and specimen signatures of
the Authorized Representatives. Until the Trustee receives a subsequent
Officer's Certificate, the Trustee shall be entitled to conclusively rely on the
last such Officer's Certificate delivered to it for purposes of determining the
Authorized Representatives of the Issuer.
SECTION 14.2 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. (a) 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 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.
(b) Any certificate or opinion of an officer of the Issuer 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 has reason to
believe that the certificate or opinion or representations with respect to the
matters upon which such officer's certificate or opinion is based are erroneous
or otherwise inaccurate. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate of, or
representations by, an Authorized Representative of the Issuer stating that the
information with respect to such factual matters is in the possession of the
Issuer, unless such counsel knows that the certificate or representations with
respect to such matters are erroneous.
(c) Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
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(d) 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 14.3 PLEDGE OF INTEREST IN ACCOUNTS AND RELATED COLLATERAL.
(a) The Issuer hereby pledges to the Trustee (for the benefit of the
Noteholders) which such pledge, for purposes of Brazilian law, is made pursuant
to article 768 ET SEQ. of the Brazilian Civil Code, all of its interest (if any)
in (a) the Guaranty, (b) the Insurance Policy, (c) the Payment Account, (d) the
Reserve Account, (e) each Letter of Credit, (f) all Permitted Investments
obtained with proceeds of the Reserve Account or the Payment Account, (g) all
interest, dividends, distributions, cash, instruments and other property from
time to time received, receivable or on deposit in the Reserve Account or the
Payment Account, and (h) all proceeds of any of the foregoing (together, the
"COLLATERAL"). The Issuer agrees to take all such action as is necessary or as
the Trustee may require, including delivering Opinions of Counsel in form and
substance acceptable to the Trustee, as to the grant and perfection of the
foregoing security interests.
(b) The security interest granted in the Collateral, except to the
extent that withdrawals from them Reserve Account are otherwise limited as set
forth in Section 5.2 hereof, shall secure the payment of all obligations of the
Issuer now or hereafter existing under the Transaction Documents, whether direct
or indirect, absolute or contingent, and whether for principal, reimbursement
obligations, interest, fees, premiums, penalties, indemnifications, contract
causes of action, costs, expenses or otherwise.
SECTION 14.4 NOTICES, ETC. TO TRUSTEE. Any Act of Noteholders or other
document required or permitted by this Indenture shall be deemed to have been
made or given, as applicable, only if such notice is in writing and delivered
personally, or by registered or certified first-class United States mail with
postage prepaid and return receipt requested, or made, given or furnished in
writing by confirmed telecopy or facsimile transmission, or by prepaid courier
service to the appropriate party as set forth below:
Trustee: The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Finance Unit
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Issuer: Companhia Brasileira de Bebidas
Xxxxxxx Xxxxx Xxxxxx Xxxxxx, 000 - Xxxxx X, 0 XXX. andar
05804-900 Sao Paulo, Sao Paulo
Brazil
Attention : Xxxxxxxx Xxxxx Xxxxxxx
Manager of Financial Operations
Telephone : (00-00) 0000-0000
Telecopier : (00-00) 0000-0000
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Copies of all notices received or given by the Trustee hereunder or under each
other Transaction Documents shall be delivered concurrently with their delivery
or promptly after their receipt, as applicable, (but in any event within one
Business Day) hereunder to the Rating Agencies at:
Moody's Investor Services
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Latin American ABS Monitoring
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Latin American Structured Finance
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
International Structured Finance
Any party may change its address by giving notice of such change in the manner
set forth herein. Any notice given to a party by mail or by courier shall be
deemed delivered upon receipt thereof (unless the party refuses to accept
delivery, in which case the party shall be deemed to have accepted delivery upon
presentation). Any notice given to a party by telecopy or facsimile transmission
shall be deemed effective on the date it is actually sent to the intended
recipient by confirmed telecopy or facsimile transmission to the telecopier
number specified above.
SECTION 14.5 NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Noteholder, at its address as
it appears in the Note 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. So long as the Notes are listed on the Luxembourg Stock Exchange and so
long as it is required by the rules of the Luxembourg Stock Exchange,
publication of any notice to the Noteholders shall be made in English in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the LUXEMBURGER WORT) or, if such publication is not practicable, in a
leading English language daily newspaper with general circulation in Europe,
such newspaper being published on each business day in morning editions, whether
or not it shall be published in Saturday, Sunday or holiday editions. Where this
Indenture provides for notice, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Noteholders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver. In any case where notice to Noteholders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
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particular Noteholder shall affect the sufficiency of such notice with respect
to other Noteholders, and any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given.
SECTION 14.6 CONFLICT WITH TRUST INDENTURE ACT. This Indenture is
subject to the provisions of the Trust Indenture Act, that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions, which are incorporated by reference in and made a part of this
Indenture. If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
As used within the Trust Indenture Act, the following terms have the
following meanings:
"indenture securities" means the Notes,
"indenture security holder" means a Noteholder,
"indenture to be qualified" means this Indenture,
"indenture trustee" or "institutional trustee" means the Trustee, and
"obligor" on the indenture securities means the Issuer.
All other Trust Indenture Act terms used in this Indenture that are
defined (i) by the Trust Indenture Act, (ii) by Trust Indenture Act reference to
another statute or (iii) by SEC rule under the Trust Indenture Act have the
meanings assigned to them by such definitions.
SECTION 14.7 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 14.8 SUCCESSORS AND ASSIGNS. All covenants, agreements,
representations and warranties in this Indenture by the Trustee and the Issuer
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not.
SECTION 14.9 SEVERABILITY CLAUSE. In case any provision in this
Indenture or in the Notes 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 14.10 BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Notes, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Noteholders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
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SECTION 14.11 LEGAL HOLIDAYS. In any case where the Early General
Redemption Date, the Early Tax Redemption Date or any Interest Payment Date with
respect to any Note or of any installment of principal thereof or payment of
interest thereon, or any date on which any defaulted interest is proposed to be
paid, shall not be a Business Day, then (notwithstanding any other provision of
this Indenture or such Note) payment of interest and/or principal need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Early General Redemption Date, the Early
tax Redemption Date or on the Interest Payment Date, or on the date on which the
defaulted interest is proposed to be paid, and, except as provided in any
Supplemental Indenture setting forth the terms of such Note, if such payment is
timely made, no interest shall accrue for the period from and after such Early
General Redemption Date, Early Tax Redemption Date or Interest Payment Date, or
date for the payment of defaulted interest, as the case may be, to the date of
such payment.
SECTION 14.12 CURRENCY RATE INDEMNITY. (a) The Issuer shall (to the
extent lawful) indemnify the Trustee and the Noteholders and keep them
indemnified against:
(i) in the case of nonpayment by the Issuer of any amount due to
the Trustee, on behalf of the Noteholders, under this Indenture any loss or
damage incurred by any of them arising by reason of any variation between
the rates of exchange used for the purposes of calculating the amount due
under a judgment or order in respect thereof and those prevailing at the
date of actual payment by the Issuer; and
(ii) any deficiency arising or resulting from any variation in rates
of exchange between (i) the date as of which the local currency equivalent
of the amounts due or contingently due under this Indenture or in respect
of the Notes is calculated for the purposes of any bankruptcy, insolvency
or liquidation of the Issuer, and (ii) the final date for ascertaining the
amount of claims in such bankruptcy, insolvency or liquidation. The amount
of such deficiency shall be deemed not to be increased or reduced by any
variation in rates of exchange occurring between the said final date and
the date of any bankruptcy, insolvency or liquidation or any distribution
of assets in connection therewith.
(b) The Issuer agrees that, if a judgment or order given or made by
any court for the payment of any amount in respect of its obligations hereunder
is expressed in a currency (the "JUDGMENT CURRENCY") other than U.S. dollars
(the "DENOMINATION CURRENCY"), it will indemnify the relevant Noteholder against
any deficiency arising or resulting from any variation in rates of exchange
between the date at which the amount in the Denomination Currency is notionally
converted into the amount in the Judgment Currency for the purposes of such
judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and independent
obligations of the Issuer from its obligations hereunder, will give rise to
separate and independent causes of action, will apply irrespective of any
indulgence granted from time to time and will continue in full force and effect
notwithstanding any judgment or the filing of any proof or proofs in any
bankruptcy, insolvency or liquidation of the Issuer for a liquidated sum or sums
in respect of amounts due under this Indenture or the Notes.
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SECTION 14.13 COMMUNICATION BY NOTEHOLDERS WITH OTHER NOTEHOLDERS.
Noteholders may communicate pursuant to Section 312(b) of the Trust Indenture
Act with other Noteholders with respect to their rights under this Indenture and
the Notes. The Issuer, the Trustee, the Note Registrar and anyone else shall
have the protection of Section 312(c) of the Trust Indenture Act.
SECTION 14.14 GOVERNING LAW. This Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 14.15 WAIVER OF JURY TRIAL. THE ISSUER AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS INDENTURE OR THE ACTIONS OF THE TRUSTEE IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
SECTION 14.16 WAIVER OF IMMUNITY. This Indenture and any other
documents delivered pursuant hereto, and any actions taken hereunder, constitute
commercial acts by the Issuer. The Issuer irrevocably and unconditionally and to
the fullest extent permitted by law, waives, and agrees not to plead or claim,
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) for itself of any of its property, assets or
revenues wherever located with respect to its obligations, liabilities or any
other matter under or arising out of or in connection with this Indenture or any
document delivered pursuant hereto, in each case for the benefit of each
assigns, it being intended that the foregoing waiver and agreement will be
effective , irrevocable and not subject to withdrawal in any and all
jurisdiction, and, without limiting the generality of the foregoing, agrees that
the waivers set forth in this Section 14.15 shall have the fullest scope
permitted under the United States Foreign Sovereign Immunities Act of 1976 and
are intended to be irrevocable for the purposes of such act.
SECTION 14.17 SUBMISSION TO JURISDICTION, ETC. (a) The Issuer and the
Trustee irrevocably submit to the non-exclusive jurisdiction of any court of the
State of New York or any United States federal court sitting in the Borough of
Manhattan, Xxx Xxxx xx Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx, and any appellate
court from any thereof. The Issuer and the Trustee irrevocably waive, to the
fullest extent permitted by law, any objection to any suit, action, or
proceeding that may be brought in connection with this Indenture in such courts
whether on the grounds of venue, residence or domicile or on the ground that any
such suit, action or proceeding has been brought in an inconvenient forum. The
Issuer and the Trustee agree that final judgment in any such suit, action or
proceeding brought in such court shall be conclusive and binding upon the Issuer
or the Trustee, as the case may be, and may be enforced in any court to the
jurisdiction of which the Issuer or the Trustee is subject by a suit upon such
judgment, as the case may be; provided that service of process is effected upon
the Issuer or the Trustee in the manner provided by this Indenture.
(b) The Issuer hereby irrevocably appoints and empowers CT Corporation
System, located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized
agent (the "PROCESS AGENT") to accept and acknowledge for and on its behalf and
on behalf of its property
88
service of any and all legal process, summons, notices and documents which may
be served in any such suit, action or proceeding in any New York State court or
United States federal court sitting in the State of New York in the Borough of
Manhattan and any appellate court from any thereof, which service may be made on
such designee, appointee and agent in accordance with legal procedures
prescribed for such courts. The Issuer 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 Process Agent; should such Process Agent become
unavailable for this purpose for any reason, the Issuer will promptly and
irrevocably designate a new Process Agent within New York, New York, which will
agree to act as such, with the powers and for the purposes specified in this
subsection (b). The Issuer irrevocably consents and agrees to the service and
any and all legal process, summons, notices and documents out of any of the
aforesaid courts in any such action, suit or proceeding by hand delivery, to it
at its address set forth in Section 14.4 or to any other address of which it
shall have given notice pursuant to Section 14.4 or to its Process Agent.
Service upon the Issuer or the Process Agent as provided for herein will, to the
fullest extent permitted by law, constitute valid and effective personal service
upon it and the failure of the Process Agent to give any notice of such service
to the Issuer shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon.
SECTION 14.18 EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
89
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
COMPANHIA BRASILEIRA DE BEBIDAS
as the Issuer
By:
-------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK LUXEMBOURG S.A.
As Luxembourg Paying Agent
By:
--------------------------------
Name:
Title:
WITNESSES:
1.
---------------------------
Name:
2.
---------------------------
Name:
90
EXHIBIT A-1
FORM OF RULE 144A RESTRICTED GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER , IN A PRINCIPAL AMOUNT OF NOT LESS THAN
U.S.$100,000, FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, TO WHOM NOTICE IS
GIVEN THAT THE
A-1-1
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
X-0-0
XXXXXXXXX XXXXXXXXXX XX XXXXXXX
00 1/2% NOTES DUE 2011
RULE 144A RESTRICTED GLOBAL NOTE
No. R-1
CUSIP No.:
ISIN No.:
Common Code:
Principal Amount: US$[ ]
Initial Issuance Date: December 19, 2001
This Note is one of a duly authorized issue of Notes of Companhia
Brasileira de Bebidas, a SOCIEDADE ANONIMA organized and existing under the laws
of the Federative Republic of Brazil (the "ISSUER"), designated as its 10 1/2%
Notes Due 2011 (the "NOTES"), issued in an initial aggregate principal amount of
U.S.$500,000,000 under an indenture (the "INDENTURE") dated as of December 19,
2001, among the Issuer, The Bank of New York, as Trustee (the "TRUSTEE", which
term includes any successor trustee under the Indenture) and Deutsche Bank
Luxembourg S.A., as paying agent in Luxembourg, to which Indenture reference is
hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Issuer, the Trustee and the
Noteholders, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The obligations of the Issuer under this Note and
the Indenture have been guaranteed by Companhia de Bebidas das Americas - AMBEV
(the "GUARANTOR") pursuant to a Guaranty dated as of December 19, 2001 between
the Guarantor and the Trustee. All terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co.
or registered assigns, as nominee of The Depository Trust Company ("DTC") and
the holder of record of this Note (the "HOLDER" or "NOTEHOLDER"), the principal
amount specified above in U.S. dollars on December 19, 2001 (or earlier or later
as provided in the Indenture as hereinafter described) upon presentation and
surrender hereof, at the office or agency of the Trustee referred to below;
PROVIDED, HOWEVER, if the Issuer and the Guarantor have provided the certificate
required to be presented under Section 2.6 of the Indenture, the principal
amount of the Notes shall be due as provided in the Indenture.
The Issuer promises to pay interest on the outstanding principal
amount hereof from the Initial Issuance Date, or from the most recent payment
date to which interest has been paid or duly provided for, semi-annually on June
15 and December 15 of each year (or if such date is not a Business Day, the next
succeeding Business Day following such day), commencing June 15, 2002, (each an
"INTEREST PAYMENT DATE"), at an initial note rate equal to 10 1/2% per
A-1-3
annum. Principal, interest and other amounts due on this Note on any Interest
Payment Date or otherwise will, as provided in the Indenture, be paid in U.S.
dollars to the Person in whose name this Note (or one or more predecessor Notes)
is registered at the close of business on the relevant date for such payment.
Payment of the principal of and interest and other amounts on this
Note will be payable by wire transfer to a U.S. dollar account maintained by the
Holder of this Note as reflected in the Note Register. In the event the date for
any payment of the principal of or interest and other amounts on any Note is not
a Business Day, then payment will be made on the next Business Day with the same
force and effect as if made on the nominal date of any such date for such
payment and no additional interest will accrue on such payment as a result of
such payment being made on the next succeeding Business Day. Interest accrued
with respect to this Note shall be calculated based on a 360-day year of twelve
30-day months.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for information with respect to interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby.
The Notes are subject to redemption by the Issuer on the terms and
conditions specified in the Indenture.
If an Event of Default shall occur and be continuing, the outstanding
principal amount of all the Notes shall become or may be declared due and
payable in the manner and with the effect provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the
Trustee only to the extent and in the circumstances permitted by the Indenture.
The Notes shall be issued only in fully registered form, without
coupons. Notes sold pursuant to Rule 144A shall be issued in the form of
beneficial interests in one or more global securities in denominations of
U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof. Notes sold
pursuant to Regulation S shall be issued in the form of beneficial interests in
one or more global securities in denominations of U.S.$1,000 and integral
multiplies thereof.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Issuer, the Trustee, the Note Registrar and any
agent of the Issuer, the Registrar or the Trustee may treat the Person in whose
name this Note is registered as the owner hereof for all purposes, whether or
not this Note is overdue, and neither the Issuer, the Trustee, the Note
Registrar nor any agent thereof shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been duly executed
by the Authenticating Agent by manual signature, this Note shall not be entitled
to any benefit under the Indenture, or be valid or obligatory for any purpose.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK.
A-1-4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
COMPANHIA BRASILEIRA DE BEBIDAS
By
---------------------------------
Name:
Title:
WITNESS 1:
By
---------------------------------
Name:
WITNESS 2:
By
---------------------------------
Name:
A-1-5
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Authorized Signatory
Date: December 19, 2001
A-1-6
ASSIGNMENT FORM
FOR VALUE RECEIVED
HEREBY SELLS, ASSIGNS AND TRANSFERS UNTO
(Please insert social security or
other identifying number of assignee)
(Please print or type name and address,
including zip code, of assignee:)
the within Note and does hereby irrevocably constitute and appoint _____________
Attorney to transfer the Note on the books of the Note Registrar with full power
of substitution in the premises.
Date: Your Signature:
(Sign exactly as your name
appears on the face of this
Note)
X-0-0
XXXXXXX X-0
FORM OF REGULATION S UNRESTRICTED GLOBAL NOTE
REGULATION S UNRESTRICTED GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE') WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR
ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
A-2-1
REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER
OF (A) THE DAY ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN
DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE
ORIGINAL OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
X-0-0
XXXXXXXXX XXXXXXXXXX XX XXXXXXX
00 1/2% NOTES DUE 2011
REGULATION S UNRESTRICTED GLOBAL NOTE
No. S-1
CUSIP:
ISIN No.:
Common Code:
Principal Amount: US$
Initial Issuance Date: December 19, 2001
This Note is one of a duly authorized issue of Notes of Companhia
Brasileira de Bebidas, a SOCIEDADE ANONIMA organized and existing under the laws
of the Federative Republic of Brazil (the "ISSUER"), designated as its 10 1/2%
Notes Due 2011 (the "NOTES"), issued in an initial aggregate principal amount of
U.S.$500,000,000 under an indenture (the "INDENTURE") dated as of December 19,
2001, among the Issuer, The Bank of New York, as Trustee (the "TRUSTEE", which
term includes any successor trustee under the Indenture) and Deutsche Bank
Luxembourg S.A., as paying agent in Luxembourg, to which Indenture reference is
hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Issuer, the Trustee and the
Noteholders, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The obligations of the Issuer under this Note and
the Indenture have been guaranteed by Companhia de Bebidas das Americas - AMBEV
(the "GUARANTOR") pursuant to a Guaranty dated as of December 19, 2001 between
the Guarantor and the Trustee. All terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co.
or registered assigns, as nominee of The Depository Trust Company ("DTC") and
the holder of record of this Note (the "HOLDER" or "NOTEHOLDER"), the principal
amount specified above in U.S. dollars on December 19, 2001 (or earlier or later
as provided in the Indenture as hereinafter described) upon presentation and
surrender hereof, at the office or agency of the Trustee referred to below;
PROVIDED, HOWEVER, if the Issuer and the Guarantor have provided the certificate
required to be presented under Section 2.6 of the Indenture, the principal
amount of the Notes shall be due as provided in the Indenture.
The Issuer promises to pay interest on the outstanding principal
amount hereof from the Initial Issuance Date, or from the most recent payment
date to which interest has been paid or duly provided for, semi-annually on June
15 and December 15 of each year (or if such date is not a Business Day, the next
succeeding Business Day following such day), commencing June 15, 2002, (each an
"INTEREST PAYMENT DATE"), at an initial note rate equal to 10 1/2% per annum.
Principal, interest and other amounts due on this Note on any Interest Payment
Date or otherwise will, as provided in the Indenture, be paid in U.S. dollars to
the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the relevant date for such payment.
A-2-3
Payment of the principal of and interest and other amounts on this
Note will be payable by wire transfer to a U.S. dollar account maintained by the
Holder of this Note as reflected in the Note Register. In the event the date for
any payment of the principal of or interest and other amounts on any Note is not
a Business Day, then payment will be made on the next Business Day with the same
force and effect as if made on the nominal date of any such date for such
payment and no additional interest will accrue on such payment as a result of
such payment being made on the next succeeding Business Day. Interest accrued
with respect to this Note shall be calculated based on a 360-day year of twelve
30-day months.
This Note does not purport to summarize the Indenture and reference is
made to the Indenture for information with respect to interests, rights,
benefits, obligations, proceeds, and duties evidenced hereby.
The Notes are subject to redemption by the Issuer on the terms and
conditions specified in the Indenture.
If an Event of Default shall occur and be continuing, the outstanding
principal amount of all the Notes shall become or may be declared due and
payable in the manner and with the effect provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the
Trustee only to the extent and in the circumstances permitted by the Indenture.
The Notes shall be issued only in fully registered form, without
coupons. Notes sold pursuant to Rule 144A shall be issued in the form of
beneficial interests in one or more global securities in denominations of
U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof. Notes sold
pursuant to Regulation S shall be issued in the form of beneficial interests in
one or more global securities in denominations of U.S.$1,000 and integral
multiplies thereof.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Issuer, the Trustee, the Note Registrar and any
agent of the Issuer, the Registrar or the Trustee may treat the Person in whose
name this Note is registered as the owner hereof for all purposes, whether or
not this Note is overdue, and neither the Issuer, the Trustee, the Note
Registrar nor any agent thereof shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been duly executed
by the Authenticating Agent by manual signature, this Note shall not be entitled
to any benefit under the Indenture, or be valid or obligatory for any purpose.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK.
A-2-4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
COMPANHIA BRASILEIRA DE BEBIDAS
By
---------------------------------
Name:
Title:
WITNESS 1:
By
---------------------------------
Name:
WITNESS 2:
By
---------------------------------
Name:
A-2-5
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Authorized Signatory
Date: December 19, 2001
A-2-6
ASSIGNMENT FORM
FOR VALUE RECEIVED
HEREBY SELLS, ASSIGNS AND TRANSFERS UNTO
(Please insert social security or
other identifying number of assignee)
(Please print or type name and address,
including zip code, of assignee:)
the within Note and does hereby irrevocably constitute and appoint _____________
Attorney to transfer the Note on the books of the Note Registrar with full power
of substitution in the premises.
Date: Your Signature:
(Sign exactly as your name
appears on the face of this
Note)
A-2-7
EXHIBIT B
FORM OF AUTHENTICATION AND DELIVERY ORDER
The Bank of New York
as Trustee
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pursuant to Section 2.3 of the Indenture dated as of December 19, 2001
(the "INDENTURE") by and among Companhia Brasileira de Bebidas, as Issuer, The
Bank of New York, as Trustee and Deutsche Bank Luxembourg S.A., as Luxembourg
Paying Agent, you are hereby ordered in your capacity as Trustee to authenticate
U.S.$ 500,000,000 of the Issuer's 10 1/2% Notes due 2011 in the manner provided
in the Indenture in global form and in the amounts of U.S.$[ ] in respect of
the Rule 144A Restricted Global Note (CUSIP No. [ ]) and U.S.$ [ ] in
respect of the Regulation S Unrestricted Global Note (CUSIP No. [ ])
heretofore duly executed by the proper Authorized Representative of the Issuer
and delivered to you as provided in the Indenture and to hold the Notes in your
capacity as custodian for The Depository Trust Company. Capitalized terms used
but not defined herein have the meanings assigned to them in the Indenture.
Date: [ ]
COMPANHIA BRASILEIRA DE BEBIDAS
By:
--------------------------------
Name:
Title:
B-1
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
[Date]
The Bank of New York
as Trustee
000 Xxxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Re: Companhia Xxxxxxxxxx xx Xxxxxxx
00 1/2% Notes due 2011 (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of December 19,
2001 (as amended and supplemented from time to time, the "Indenture"), among
Companhia Brasileira de Bebidas (the "Company"), as issuer, The Bank of New
York, as Trustee and Deutsche bank Luxembourg S.A., as paying agent in
Luxembourg. Capitalized terms used but not defined herein shall have the
meanings given them in the Indenture.
In connection with our proposed sale of US$_______________ aggregate
principal amount of the Notes [IN THE CASE OF A TRANSFER OF AN INTEREST IN A
RESTRICTED GLOBAL NOTE: , which represent an interest in a Restricted Global
Note beneficially owned by] [IN THE CASE OF A TRANSFER OF A CERTIFICATED NOTE:
held in the name of] the undersigned ("Transferor"), we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Notes was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States (within the meaning of Regulation S) or (ii) the transaction is
being executed in, on or through the facilities of a designated off-shore
securities market (within the meaning of Regulation S) and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
C-1
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(d) if the transfer is being effected in accordance with Rule 903
under the Securities Act, the requirements of Rule 903(b)(2) have been
satisfied;
(e) if the transfer is being effected in accordance with Rule 904
under the Securities Act, we are not a distributor of the Notes, an
affiliate of the Company, an affiliate of any distributor of the Notes or a
person acting on behalf of any of the foregoing;
(f) if the transfer is being effected in accordance with Rule 904
under the Securities Act and we are a dealer in Notes or have received a
selling concession, fee or other remuneration in respect of the Notes
transferred hereby, and the transfer is to occur during the Distribution
Compliance Period, then the requirements of Rule 904(b)(1) have been
satisfied;
(g) if the transfer is being effected in accordance with Rule 904
under the Securities Act and we are an affiliate of the Company or of a
distributor solely by virtue of holding a position as an officer or
director of such person, then requirements of Rule 904(b)(2) have been
satisfied;
(h) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(i) we are the beneficial owner of the principal amount of Notes being
transferred.
In addition, if the sale is made during the period ending forty (40)
days after the original issuance of the Notes and the transferee will take
delivery in the form of a beneficial interest in the Regulation S Global Note,
such beneficial interest will be held immediately after such transfer only in or
through accounts maintained at the Registered Depositary by Euroclear or
Clearstream (or by agent members acting for the account thereof).
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
--------------------------------
-----------------------------------
[Authorized Signature]
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EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO
QUALIFIED INSTITUTIONAL BUYERS (QIBS)
[Date]
The Bank of New York
as Trustee
000 Xxxxxxx Xxxxxx 00 X
Xxx Xxxx, Xxx Xxxx 00000
Re: Companhia Xxxxxxxxxx xx Xxxxxxx
00 1/2% Notes due 2011 (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of December 19,
2001 (as amended and supplemented from time to time, the "Indenture"), among
Companhia Brasileira de Bebidas (the "Company"), as issuer, The Bank of New
York, as Trustee and Deutsche Bank Luxembourg S.A., as paying agent in
Luxembourg. Capitalized terms used but not defined herein shall have the
meanings given them in the Indenture.
This letter relates to US$____________ aggregate principal amount of
Notes [IN THE CASE OF A TRANSFER OF AN INTEREST IN A REGULATION S UNRESTRICTED
GLOBAL NOTE: which represents an interest in a Regulation S Unrestricted Global
Note beneficially owned by] [IN THE CASE OF A TRANSFER OF A CERTIFICATED NOTE:
which are held in the name of] the undersigned (the "Transferor") to effect the
transfer of such Notes in exchange for an equivalent beneficial interest in the
Restricted Global Note.
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction. The Transferor and any person acting on its behalf have taken
reasonable steps to ensure that the transferee is aware that the Transferor may
be relying on Rule 144A in connection with the transfer.
D-1
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
--------------------------------
Authorized Signature
D-2
EXHIBIT E
FORM OF NON-PAYMENT NOTICE
[Date]
VIA FACSIMILE
Companhia de Bebidas das Americas-AMBEV
Xxxxxxx Xxxxx Xxxxxx Xxxxxx, 000 - Xxxxx X, 0 XXX. andar
05804-900 Sao Paulo, Sao Paulo
Brazil
Attention:
------------------------------------
COMPANHIA BRASILEIRA DE BEBIDAS
Dear Sirs:
Reference is made to that certain Indenture (the "Indenture") dated
December 19, 2001 among Companhia Brasileira de Bebidas ("CBB"),The Bank of New
York, as trustee (the "Trustee") and Deutsche Bank Luxembourg S.A., as paying
agent in Luxembourg. Reference is also made to that certain Guaranty (the
"Guaranty") dated December 19, 2001 between the Trustee and Companhia de Bebidas
das Americas-AMBEV ("AMBEV") pursuant to which AMBEV has undertaken to provide
the holders of CBB's 10 1/2 Notes due December 15, 2011 (the "Notes") with an
irrevocable and unconditional guaranty of CBB's obligations with respect to the
Notes. Capitalized terms not defined herein shall have the meanings set forth in
the Guaranty.
By this notice, the undersigned, acting on behalf of the holders of
the Notes, hereby advises you as follows:
1. On [date], CBB was obligated to make a payment of [principal]
[interest] [other amounts under the Indenture] in an amount
equal to U.S.$___________ in respect of [principal] [interest]
[other amounts due under the Indenture] (the "Overdue Amount").
2. Pursuant to the Guaranty, you are obligated to immediately pay
the Overdue Amount to the Trustee, on behalf of the holders of
the Notes.
3. Pursuant to the Guaranty, you are hereby directed to pay the
Overdue Amount to the Trustee, on behalf of the holders of the
Notes, in respect of your obligations under the Guaranty.
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4. You are hereby requested to pay the Overdue Amount to the
Payment Account established under the Indenture (Account
No.________) immediately upon receipt of this notice.
5. AMBEV is requested to acknowledge receipt of this notice by
countersigning in the space provided below and returning a copy
to the same at the address provided in the Guaranty with a copy
by facsimile to the Trustee at 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopier: (000) 000-0000 (Attention:
[ ]).
THE BANK OF NEW YORK, as
Trustee
By:
------------------------------
Name:
Title:
ACKNOWLEDGED & AGREED
COMPANHIA DE BEBIDAS DAS AMERICAS-AMBEV
By:
----------------------------------
Name:
Title:
Date:
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EXHIBIT F
FORM OF INITIAL NOTICE TO INSURER
[Date]
VIA FACSIMILE
Steadfast Insurance Company
c/o Zurich Emerging Markets Solutions
0000 X Xxxxxx, X.X. Xxxxx 000
Xxxxxxxxxx D.C. 2004
Attention: Xxxxxx Xxxxxxx
Dear Sirs:
Reference is made to that certain (i) Indenture (the "Indenture")
dated December 19, 2001 among Companhia Brasileira de Bebidas ("CBB"),The Bank
of New York, as trustee (the "Trustee") and Deutsche Bank Luxembourg S.A., as
paying agent in Luxembourg, (ii) Guaranty (the "Guaranty") dated December 19,
2001 between the Trustee and Companhia de Bebidas das Americas-AmBev ("AmBev")
and (iii) Insurance Policy for Expropriation and Currency Inconvertibility Event
(No. ______) (the "Policy") dated December 19, 2001 issued for the benefit of
the Trustee by Steadfast Insurance Company (the "Insurer"). Capitalized terms
not defined herein shall have the meanings set forth in the Policy.
By this notice, the Trustee, acting on behalf of the holders of CBB's
10 1/2% Notes due December 15, 2011, hereby informs you as follows:
1. [CBB] [AmBev] has informed the Trustee that it desires to make
a payment of U.S.$___________ in respect of [[principal] [interest]
[Additional Amounts] [other amounts due under the Notes and the Indenture]
to be paid under the [Indenture]] [amounts to be paid under the Guaranty]
but is unable to do so as a result of an [Expropriation Event]
[Inconvertibility Event].
2. The Trustee informs you that it has received R$___________ in
Brazil from [CBB] [AMBEV] in satisfaction of the obligations of [CBB]
[AMBEV] under the [Indenture] [Guaranty] in respect of the amounts referred
to in paragraph 1 above and is unable to convert such Reais amount into
U.S. dollars as a result of circumstances reasonably believed by the
Trustee to constitute an [Expropriation Event] [Inconvertibility Event].
3. By this notice, the Trustee hereby notifies the Insurer of its
intent to make a claim for compensation in respect of the matters covered
by paragraph 2 above.
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4. The Trustee requests written indication within 20 calendar days
from the date hereof from the Insurer as to (i) acceptance of this notice
and (ii) any information or actions required of the Trustee in order to
perfect and obtain payment of such claim.
THE BANK OF NEW YORK, as
Trustee
By:
------------------------------
Name:
Title:
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EXHIBIT G
FORM OF INCONVERTIBILITY CERTIFICATE
[DATE]
The Bank of New York
000 Xxxxxxx Xxxxxx 00 X
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs,
Reference is made to that certain (i) Indenture (the "Indenture")
dated December 19, 2001 between Companhia Brasileira de Bebidas (the "Issuer")
and you, as trustee (the "Trustee"), (ii) Guaranty (the "Guaranty") dated
December 19, 2001 between you and Companhia de Bebidas das Americas-AmBev, as
the Guarantor (the "Guarantor") and (iii) Insurance Policy for Expropriation and
Currency Inconvertibility Event (No. ___) (the "Policy") dated December 19, 2001
issued for the benefit of you by Steadfast Insurance Company (the "Insurer").
Capitalized terms not defined herein shall have the meanings set forth in the
Indenture.
Pursuant to Section 2.6 of the Indenture, the Issuer and the Guarantor
hereby certify to you, the Trustee, acting on behalf of the holders of the
Issuer's 10 1/2% Notes due 2011, as follows:
(i) The Issuer is unable to repay the principal amount of the
Notes;
(ii) [The Insurance Policy is in effect and the amount of funds on
deposit in the Reserve Account is at least equal to the Required Amount]
[The Insurance Policy is not in effect and the amount of funds on deposit
in the Reserve Account is at least equal to the Required Amount]
(iii) The Guarantor does not have U.S. dollar funds available outside
Brazil to satisfy its obligations under the Guaranty;
(iv) The Guarantor has funds in Brazilian Reais but is unable to
convert such funds and transfer them outside of Brazil to the Trustee for
payment of amounts due under or in respect of the Notes due to the
occurrence and continuation of an Expropriation Event or Inconvertibility
Event which occurred on _________________; and
(v) The Issuer and the Guarantor have used their best efforts to
either convert and transfer the funds referred to in clause (iv) above.
H-1
COMPANHIA BRASILEIRA DE BEBIDAS
By:
-----------------------------------
Name:
Title:
COMPANHIA DE BEBIDAS DAS AMERICAS-AMBEV
By:
-----------------------------------
Name:
Title:
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EXHIBIT H
FORM OF NOTICE TO RATING AGENCIES
[Date]
VIA FACSIMILE
Moody's Investor Services
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Latin American ABS Monitoring
Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Latin American Structured Finance
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
International Structured Finance
Dear Sirs:
Reference is made to that certain (i) Indenture (the "Indenture")
dated December 19, 2001 among Companhia Brasileira de Bebidas ("CBB"), The Bank
of New York, as trustee (the "Trustee") and Deutsche Bank Luxembourg S.A., as
paying agent in Luxembourg and (ii) Guaranty (the "Guaranty") dated December 19,
2001 between the Trustee and Companhia de Bebidas das Americas-AmBev ("AmBev").
Capitalized terms not defined herein shall have the meanings set forth in the
Indenture.
By this notice, the Trustee, acting on behalf of the holders of CBB's
10 1/2% Notes due December 15, 2011, hereby informs you as follows:
Payment Date:
Interest Payment Due: U.S.$
Principal Payment Due: U.S.$
Amounts collected from CBB under the Indenture U.S.$
Amounts collected from AmBev under Guaranty: U.S.$
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Interest Paid: U.S.$
Principal Paid: U.S.$
Occurrence of Inconvertibility Event or Expropriation Event: Yes/No
Has a claim been filed with Insurer: Yes/No
Amount drawn under Reserve Account and/or
under the Letter of Credit: U.S.$
Amounts paid by the Insurer under the Insurance Policy U.S.$
THE BANK OF NEW YORK, as
Trustee
-------------------------
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