Execution Copy
Dated as of January 15, 2004
VALE OVERSEAS LIMITED,
as Issuer
and
COMPANHIA VALE DO RIO DOCE,
as Guarantor
and
JPMORGAN CHASE BANK,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Guaranteed Debt Securities
TABLE OF CONTENTS
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1 |
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Definitions |
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3 |
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Miscellaneous Provisions |
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The Trustee |
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i
Third Supplemental Indenture, dated as of January 15, 2004, among VALE OVERSEAS
LIMITED, a Cayman Islands exempted company incorporated with limited liability
(herein called the “Company”), having its principal office at Xxxxxx House,
P.O. Box 908 GT, Xxxx Street, Georgetown, Grand Cayman, Cayman Islands,
COMPANHIA VALE DO RIO DOCE, a company duly organized and existing under the
laws of the Federative Republic of Brazil (herein called the “Guarantor”),
having its principal office at Xxxxxxx Xxxxx Xxxxxx, Xx. 00, 17° Andar,
00000-000 Xxx xx Xxxxxxx, XX, Xxxxxx, and JPMORGAN CHASE BANK, a bank duly
organized and existing under the laws of the State of New York, having its
principal corporate trust office at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as Trustee (herein called the “Trustee”) to the Indenture, dated as of March 8,
2002, among the Company, the Guarantor and the Trustee (herein called the
“Original Indenture”).
W I T N E S S E T H :
Whereas, Section 9.1.5 of the Original Indenture authorizes the Company, when
authorized by a Board Resolution, the Guarantor, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, to enter,
without the consent of any Holders, into one or more supplemental indentures to
add to, change or eliminate any of the provisions of the Original Indenture in
respect of one or more series of Securities, provided that any such addition,
change or elimination shall neither (i) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (ii) modify the rights of the Holder of any
such Security with respect to such provision;
Whereas, in connection with the filing by the Company and the Guarantor of a
shelf registration statement on Form F-3, the Company and the Guarantor desire
by this Third Supplemental Indenture to add to, change or eliminate certain
provisions of the Original Indenture;
Whereas, such additions, changes or eliminations (i) shall apply only to
Securities authorized and issued after the execution of the Third Supplemental
Indenture; and (ii) shall not modify the rights of the Holders of any
Securities issued on or prior to the date of this Third Supplemental Indenture;
Whereas, the Company and the Guarantor have duly authorized the execution and
delivery of this Third Supplemental Indenture to make such additions, changes
or eliminations; and
Whereas, all things necessary to make this Third Supplemental Indenture a valid
and binding legal obligation of the Company and the Guarantor according to its
terms have been done.
Now, Therefore, the Company and the Guarantor agree with the Trustee as follows:
1 Definitions
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1.1 |
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Provisions of the Original Indenture
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Except insofar as herein otherwise expressly provided, all the
definitions, provisions, terms and conditions of the Original
Indenture shall remain in full force and effect. The Original
Indenture, as amended and supplemented by this Third Supplemental
Indenture, is in all respects ratified and confirmed, and the
Original Indenture and this Third Supplemental Indenture shall be
read, taken and considered as one and the same instrument for all
purposes.
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For all purposes of this Third Supplemental Indenture, except as
otherwise expressly provided or unless the subject matter or
context otherwise requires:
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1.2.1 |
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any reference to an “Article” or a “Section”
refers to an Article or Section, as the case may be, of the
Original Indenture;
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1.2.2 |
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the words “herein”, “hereof” and “hereunder” and
other words of similar import refer to this Third Supplemental
Indenture as a whole and not to any particular Article,
Section or other subdivision;
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1.2.3 |
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all terms used in this Third Supplemental
Indenture that are defined in the Original Indenture have the
meanings assigned to them in the Original Indenture, except as
otherwise provided in this Third Supplemental Indenture.
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2 Amendments to the Original Indenture
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2.1 |
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The definition of “Board Resolution” in Section 1.1 of the
Original Indenture is hereby amended and restated as follows:
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“Board Resolution” means a copy of a resolution that has been duly
adopted by the Board of Directors or the Executive Board of the
Company or the Guarantor, as the case may be, duly certified by the
Secretary or an Assistant Secretary of such body as being in full
force and effect on the date of such certification, and delivered
to the Trustee.
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2.2 |
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The definition of “Executive Board” is hereby added to
Section 1.1 of the Indenture as follows:
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“Executive Board” means the executive officers of the Guarantor
that are responsible for day to day operations and the
implementation of the general policies and guidelines set forth by
the Board of Directors.
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2.3 |
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The definition of “Indebtedness” in Section 1.1 of the
Original Indenture is hereby amended and restated as follows:
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“Indebtedness” means with respect to any Person, any amount payable
(whether as a direct obligation or indirectly through a guaranty by
such Person) pursuant to (i) an agreement or instrument involving
or evidencing money borrowed, (ii) a conditional sale or a transfer
with recourse or with an obligation to repurchase or (iii) a lease
with substantially the same economic effect as any such agreement
or instrument and which, under U.S. generally accepted accounting
principles, would constitute a capitalized lease obligation,
provided, however, that as used in Section 5.1.3, “Indebtedness”
shall not include any payment made by the Guarantor on behalf of an
Affiliate, upon any Indebtedness of such Affiliate becoming
immediately due and payable as a result of a default by such
Affiliate, pursuant to a guarantee or similar instrument provided
by the Guarantor in connection with such Indebtedness, provided
that such payment made by the Guarantor is made within five
Business Days of notice being provided to the Guarantor that
payment is due under such guarantee or similar instrument.
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2.4 |
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The definition of “Officers’ Certificate” in Section 1.1 of
the Original Indenture is hereby amended and restated as follows:
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“Officers’ Certificate” means a certificate signed in the name of
the Company or the Guarantor by any two of its Directors, executive
officers or attorneys in fact in accordance with its Bylaws, and
delivered to the Trustee, provided however that an Officers’
Certificate pursuant to Section 10.4 shall be signed in the name of
the Company or the Guarantor by any two of the Company’s or the
Guarantor’s, as applicable, principal executive, financial or
accounting officers.
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2.5 |
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The definition of “Permitted Lien” in Section 1.1 of the
Original Indenture is hereby amended and restated as follows:
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“Permitted Lien,” with respect to any series of Securities issued
hereunder, means any Lien:
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(i) |
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granted upon or with regard to any property
acquired by the Company or the Guarantor after the date of the
issuance of Securities of such series to secure the purchase
price of such property or to secure Indebtedness incurred
solely for the purpose of financing the acquisition of such
property, provided, however, that the maximum sum secured by
such security shall not exceed the purchase price of such
property or the Indebtedness incurred solely for the purpose
of financing the acquisition of such property;
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(ii) |
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in existence on the date of the issuance of
Securities of such series and any extension, renewal or
replacement thereof; provided, however, that the total amount
of Indebtedness so secured shall not exceed the amount so
secured on the date of the issuance of Securities of such
series;
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(iii) |
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arising by operation of law, such as tax,
merchants’, maritime or other similar liens arising in the
ordinary course of the Company’s or the Guarantor’s business;
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(iv) |
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arising in the ordinary course of business in
connection with the financing of export, import or other trade
transactions to secure Indebtedness of the Company or
Guarantor;
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(v) |
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securing or providing for the payment of
Indebtedness incurred in connection with any project financing
by the Guarantor, provided that (1) such security shall not
extend to any property in existence on the date of the
issuance of Securities of such series, to any revenues from
such property, or to any proceeds from claims belonging to the
Guarantor which arise from the operation, failure to meet
specifications, failure to complete, exploitation, sale or
loss of, or damage to, such property (“Claims Proceeds”), (2)
such security shall not extend to any property (or to any
revenues or Claims Proceeds therefrom) at any project in
existence on the date of the issuance of Securities of such
series, other than the existing power plant projects named
Aimorés, Candonga, Funil, Capim Xxxxxx I and Capim Xxxxxx II,
Foz do Chapecó, Santa Xxxxxx, Xxxxx Quebrada and Estreito
projects and (3) such security only extends to properties
which are the subject of such project financing, to any
revenues from such properties, or to any Claims Proceeds from
such properties;
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(vi) |
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granted upon or with regard to any present or
future asset or property of the Guarantor to (i) any Brazilian
governmental credit agency (including, but not limited to the
Brazilian National Treasury, Banco Nacional de Desenvolvimento
Econômico e Social, BNDES Participações S.A., Financiadora de
Estudos e Projetos and Agência Especial de Financiamento
Industrial); (ii) any Brazilian official financial
institutions (including, but not limited to Banco da Amazônia
S.A. – BASA and Banco do Nordeste do Brasil S.A. – BNB); (iii)
any non-Brazilian official export-import bank or official
export-import credit insurer; or (iv) the International
Finance Corporation or any non-Brazilian multilateral or
government-sponsored agency;
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(vii) |
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existing on any asset prior to the acquisition
thereof by the Company or Guarantor and not created in
contemplation of such acquisition;
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(viii) |
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any Lien created over funds reserved for the payment of
principal, interest and premium, if any, due in respect of
Securities issued under this Indenture; or
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(ix) |
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hereafter granted upon or in respect of any asset
of the Company or Guarantor other than those referred to in
Clauses (i) through (viii) above, provided that the aggregate
amount of Indebtedness secured pursuant to this clause (ix)
shall not, on the date any such Indebtedness is incurred,
exceed an amount equal to 10 per cent of the Guarantor’s
stockholders’ equity (calculated on the basis of the
Guarantor’s latest quarterly unaudited or annual audited
non-consolidated financial statements, whichever is the most
recently prepared, in accordance with accounting principles
generally accepted in Brazil and currency exchange rates
prevailing on the last day of the period covered by such
financial statements).
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2.6 |
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The definition of “Significant Subsidiary” in Section 1.1 of
the Original Indenture is hereby amended and restated as follows:
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“Significant Subsidiary” shall mean, at any time, a Subsidiary of
which the Guarantor’s and its other Subsidiaries’ proportionate
share of the total assets (after intercompany eliminations) of the
Subsidiary exceeds 10% of the total assets of the consolidated
group as of the end of the most recently completed fiscal year.
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2.7 |
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The first paragraph of Section 1.2 of the Original Indenture
is hereby amended and restated as follows:
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Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
and the Guarantor shall furnish to the Trustee such certificates
and opinions as may be required hereunder and under the Trust
Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers’ Certificate, if to be given by any two
officers of the Company or the Guarantor, or an Opinion of Counsel
if to be given by counsel, and shall comply with the requirements
of the Trust Indenture Act and any other requirements set forth in
this Indenture.
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2.8 |
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The second paragraph of Section 1.3 of the Original Indenture
is hereby amended and restated as follows:
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Any certificate or opinion of any two officers of the Company or
the Guarantor may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or
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representations by, counsel, unless such officers know, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which
the certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or the
Guarantor stating that the information with respect to such factual
matters is in the possession of the Company or the Guarantor,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
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2.9 |
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Section 1.5.2 of the Original Indenture is hereby amended and
restated as follows:
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(i) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
both the Company and the Guarantor and (ii) the Guarantor by the
Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to both the
Guarantor and the Company, in either case addressed to it at the
address specified below or at any other address previously
furnished in writing to the Trustee by the Company or the
Guarantor:
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| Xxxxxxx
Xxxxx Xxxxxx, Xx. 00, 17° Andar |
| 00000-000 Xxx xx Xxxxxxx, XX, Xxxxxx |
| Attention: |
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Financial Director |
| Fax: |
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000-0000-0000-0000 |
| Tel: |
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000-0000-0000-0000 |
| with a copy to: |
| Attention: |
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General Counsel |
| Fax: |
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000-0000-0000-0000 |
| Tel: |
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000-0000-0000-0000 |
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2.10 |
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Section 2.1 of the Original Indenture is hereby amended and restated as follows:
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The Securities and the Trustee’s certificates of authentication
shall be in substantially the forms set forth in this Article or in
such other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities
exchange or Depositary thereof or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced
by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of such board
and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication
and delivery of such Securities.
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The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
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| 2.11 |
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Section 2.3 of the Original Indenture is hereby amended and
restated as follows: |
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This Security is one of a duly authorized issue of securities of
the Company (herein called the “Securities”), issued and to be
issued in one or more tranches of one or more series under an
Indenture, dated as of March 8, 2002 (herein called the
“Indenture”, which term shall have the meaning assigned to it in
such instrument), among the Company, Companhia Vale do Rio Doce, as
Guarantor (herein called the “Guarantor”) and JPMorgan Chase Bank,
as Trustee (herein called the “Trustee”, which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered. The full and punctual payment
of the principal of, premium, if any, and interest on, and all
other amounts payable under, this Security is guaranteed by the
Guarantor. This Security is one of the series designated on the
face hereof [if applicable, insert — , limited in aggregate
principal amount to
$[ ]] |
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[If applicable, insert — The Securities of this series are subject
to redemption upon not less than [ ] days’ nor more than [ ]
days’ notice, at any time [if applicable, insert —
on or after
[
], 20[ ]], as a whole or in part, at the election of
the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable,
insert — on or before [
], [ ]%, and if redeemed]
during the 12-month period beginning [
] of the years
indicated, |
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Redemption |
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Redemption |
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and thereafter at a Redemption Price equal to
[ ]% of the
principal amount, together in the case of any such redemption with
accrued interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities or one or more
Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.] |
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[If the Security is subject to redemption of any kind, insert — In
the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.] |
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[If the Security is not subject to redemption, insert
— This
Security is not redeemable prior to Stated Maturity.] |
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[If applicable, insert —The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this
Security] [or] [certain restrictive covenants and Events of |
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Default with respect to this Security] [,in each case] upon
compliance with certain conditions set forth in the Indenture.] |
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[If the Security is not an Original Issue Discount Security, insert
— If an Event of Default or Illegality Event with respect to
Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the
Indenture.] |
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[If the Security is an Original Issue Discount Security,
insert —
If an Event of Default or Illegality Event with respect to
Securities of this series shall occur and be continuing, an amount
of principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for
determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue
principal, premium and interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of
the Company’s obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of
this series shall terminate.] |
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All payments of principal[, premium] and interest in respect of the
Securities shall be made without withholding or deduction for any
present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or
assessed by or on behalf of the Cayman Islands or Brazil or any
Successor Jurisdiction or any authority therein or thereof having
power to tax (“Foreign Taxes”) except to the extent that such
Foreign Taxes are required by the Cayman Islands, Brazil, such
Successor Jurisdiction or such authority to be withheld or
deducted. In the event of any withholding or deduction for any
Foreign Taxes, the Company or the Guarantor, as the case may be,
shall pay such additional amounts (“Additional Amounts”) as will
result in receipt by the Holders of Securities on the respective
due dates of such amounts as would have been received by them had
no such withholding or deduction (including for any Foreign Taxes
payable in respect of Additional Amounts) been required, except
that no such Additional Amounts shall be payable with respect to
any payment on a Security: |
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(i) |
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to, or to a third party on behalf of, a Holder
who is liable for any such taxes, duties, assessments or other
governmental charges which would not have been imposed but for
(A) a connection between the Holder and the Cayman Islands or
Brazil other than the mere holding of such Security and the
receipt of payments with respect to such Security or (B)
failure by the Holder to comply with any certification,
identification or other reporting requirement concerning the
nationality, residence, identity or connection with the Cayman
Islands, Brazil or a Successor Jurisdiction, or applicable
political subdivision or authority thereof or therein having
power to tax, of such Holder, if compliance is required by
such Successor Jurisdiction, or any political subdivision or
authority thereof or therein having power to tax as a
precondition to exemption from, or reduction in the rate of,
the tax, assessment or other governmental charge and the
Company has given the Holders at least 30 days’ notice that
Holders will be required to provide such certification,
identification or other requirement;
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(ii) |
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in respect of any such taxes, duties, assessments
or other governmental charges with respect to a Security
surrendered (if surrender is required) more than 30
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days after the date on which such payment became due and
payable or the date on which payment thereof is duly
provided for and notice thereof given to Holders, whichever
occurs later, except to the extent that the Holder of such
Security would have been entitled to such Additional
Amounts on surrender of such Security for payment on the
last day of such 30-day period;
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(iii) |
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in respect of estate, inheritance, gift, sales,
transfer, personal property or similar tax, assessment or
governmental charge imposed with respect to a Security;
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(iv) |
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in respect of any tax, assessment or other
governmental charge payable otherwise than by deduction or
withholding from payments on any series of Securities or by
direct payment by the Company or the Guarantor in respect of
claims made against the Company or the Guarantor;
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(v) |
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where such withholding or deduction is imposed on
a payment to an individual and is required to be made pursuant
to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of
November 26-27, 2000 or any law implementing or complying
with, or introduced in order to conform to, such directive; or
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(vi) |
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in respect of any combination of the above.
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For purposes of the provisions described in clause (i) above, the
term “Holder” of any Security means the direct nominee of any
beneficial owner of such Security, which holds such beneficial
owner’s interest in such Security. Notwithstanding the foregoing,
the limitations on the Company’s or the Guarantor’s obligation to
pay Additional Amounts set forth in clause (i) above shall not
apply if the provision of information, documentation or other
evidence described in such clause (i) would be materially more
onerous, in form, in procedure or in the substance of information
disclosed, to a Holder or beneficial owner of a Security (taking
into account any relevant differences between U.S. and Cayman
Islands or Brazilian law, regulation or administrative practice)
than comparable information or other reporting requirements imposed
under U.S. tax law (including tax treaties between the United
States and the Cayman Islands or Brazil), regulation (including
proposed regulations) and administrative practice. |
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The Company or the Guarantor, as the case may be, shall promptly
provide the Trustee with documentation (which may consist of
certified copies of such documentation) satisfactory to the Trustee
evidencing the payment of Foreign Taxes in respect of which the
Company or the Guarantor has paid any Additional Amounts. Copies
of such documentation shall be made available to the Holders of the
Securities or the Paying Agent, as applicable, upon request
therefor. |
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The Company or the Guarantor, as the case may be, shall pay all
stamp, issue, registration, documentary or other similar duties,
if any, which may be imposed by the Cayman Islands or Brazil or any
governmental entity or political subdivision therein or thereof, or
any taxing authority of or in any of the foregoing, with respect to
the Indenture or the issuance of the Securities or the Guaranties. |
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All references herein or in the Indenture to principal, premium or
interest in respect of any Security or Guaranty shall be deemed to
include all Additional Amounts, if any, |
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payable in respect of such principal, premium or interest, unless
the context otherwise requires, and express mention of the payment
of Additional Amounts in any provision hereof shall not be
construed as excluding reference to Additional Amounts in those
provisions hereof where such express mention is not made. |
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In the event that Additional Amounts actually paid with respect to
the Securities pursuant to the preceding paragraph are based on
rates of deduction or withholding of taxes in excess of the
appropriate rate applicable to the Holder of such Securities, and,
as a result thereof such Holder is entitled to make claim for a
refund or credit of such excess from the authority imposing such
withholding tax, then such Holder shall, by accepting such
Securities, be deemed to have assigned and transferred all right,
title, and interest to any such claim for a refund or credit of
such excess to the Company and the Guarantor. However, by making
such assignment, the Holder makes no representation or warranty
that the Company or the Guarantor will be entitled to receive such
claim for a refund or credit and incurs no other obligation with
respect thereto. |
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All references in the Indenture and the Securities to principal in
respect of any Security shall be deemed to mean and include any
Redemption Price or Repurchase Price payable in respect of such
Security pursuant to any redemption or repurchase right hereunder
(and all such references to the Stated Maturity of the principal in
respect of any Security shall be deemed to mean and include the
Redemption Date or Repurchase Date with respect to any such
Redemption Price or Repurchase Price), and all such references to
principal, premium, interest or Additional Amounts shall be deemed
to mean and include any amount payable in respect hereof pursuant
to Section 10.7 of the Indenture, and express mention of the
payment of any Redemption Price, or Repurchase Price or any such
other amount in any provision hereof or of the Indenture shall not
be construed as excluding reference to the payment of any
Redemption Price or Repurchase Price, or any such other amounts in
those provisions hereof where such express reference is not made. |
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The Company may redeem the Securities if, as a result of any
amendment to, or change in, the laws (or any rules, or regulations
thereunder) of the Cayman Islands or Brazil or any political
subdivision or taxing authority thereof or therein affecting
taxation or any amendment to or change in an official
interpretation, administration or application of such laws, rules,
or regulations (including a holding by a court of competent
jurisdiction), which amendment or change of such laws, rules, or
regulations or the interpretation thereof becomes effective on or
after [Insert date specified therefor in Securities of the
applicable series], the Company would be obligated, after taking
measures the Company considers reasonable to avoid such
requirement, to pay Additional Amounts in excess of the Additional
Amounts that the Company would be obligated to pay if payments made
on the Securities were subject to withholding or deduction of
Foreign Taxes at the rate of 15%. In such event, the Securities
are subject to redemption upon not less than 30 nor more than 60
days’ notice by mail, at any time, as a whole but not in part, at
the election of the Company, at a cash price equal to the sum of
(i) the principal amount of the Securities being redeemed, (ii) any
accrued original issue discount thereon to the date fixed for
redemption, (iii) accrued and unpaid current interest thereon to
the date fixed for redemption, (iv) any premium applicable in the
case of redemption prior to Maturity, and (v) any Additional
Amounts (as defined in the Indenture) which would otherwise be
payable. |
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The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Company and the rights |
9
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of the Holders of the Securities of each series to be affected
under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions (i) permitting the Holders
of a majority in principal amount of the Securities at the time
Outstanding of any series to be affected under the Indenture, on
behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture
and (ii) permitting the Holders of a majority in principal amount
of the Securities at the time Outstanding of any series to be
affected under the Indenture, on behalf of the Holders of all
Securities of such series, to waive certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security. |
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As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture, or for the appointment of
a receiver or trustee, or for any other remedy thereunder, unless
such Holder shall have previously given the Trustee written notice
of a continuing Event of Default or Illegality Event with respect
to the Securities of this series, the Holders of not less than 25%
in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default or
Illegality Event as Trustee and offered the Trustee indemnity
reasonably satisfactory to it, and the Trustee shall not have
received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any [premium or]
interest hereon on or after the respective due dates expressed
herein. |
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No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and any [premium and] interest on this Security at the
times, place and rate, and in the coin or currency, herein
prescribed. |
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As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for
registration of transfer at the office of the Trustee or agency of
the Company in any place where the principal of and any [premium
and] interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees. |
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The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of
this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same. |
10
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No service charge shall be made for any such registration of
transfer or exchange, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. |
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Prior to due surrender of this Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of
the Company, the Guarantor or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the
Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary. |
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[If this Security is a Global Security, insert — This Security is a
Global Security and is subject to the provisions of the Indenture
relating to Global Securities, including the limitations in Section
3.4 thereof on transfers and exchanges of Global Securities.] |
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This Security and the Indenture shall be governed by and construed
in accordance with the laws of the State of New York. |
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All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture. |
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Abbreviations |
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The following abbreviations, when used in the inscription of the
face of this Security, shall be construed as though they were
written out in full according to applicable laws or regulations: |
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TEN COM — as tenants in common |
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TEN ENT — as tenants by the
[ ] entireties |
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JT TEN — as joint tenants with right of
survivorship and not as tenants in common |
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UNIF GIFT MIN ACT— (Cust) |
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Custodian under Uniform(Minor) |
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Gifts to Minors Act (State) |
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Additional abbreviations may also be used though not in the above list. |
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| 2.12 |
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Section 3.1.20 of the Original Indenture is hereby amended and restated as follows: |
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the applicability of Article 13 with respect to the Securities of such series; and |
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| 2.13 |
|
Section 3.1.21 is hereby added to the Indenture as follows: |
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any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1.5). |
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| 2.14 |
|
The penultimate paragraph of Section 3.1 is hereby amended
and restated as follows: |
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the |
11
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Secretary or an Assistant Secretary of such board and delivered to
the Trustee at or prior to the delivery of the Officers’
Certificate setting forth the terms of the series. |
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| 2.15 |
|
The first paragraph of Section 3.3 is hereby amended and
restated as follows: |
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|
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The Securities shall be executed on behalf of the Company by any
two of its Directors or its attorneys in fact in accordance with
its Bylaws. The Guaranty on the Securities shall be endorsed on
behalf of the Guarantor by any two of its officers or its attorneys
in fact in accordance with its Bylaws. The signature of any of
these Directors or officers on the Securities or the Guaranty may
be manual or facsimile. |
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| 2.16 |
|
Section 3.4 of the Original Indenture is hereby amended and
restated as follows: |
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|
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The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers
maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively
referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers and
exchanges of Securities. The Trustee is hereby appointed “Security
Registrar” for the purpose of registering Securities and
registering transfers and exchanges of Securities as herein
provided; provided, however, that the Company may appoint
co-Security Registrars. Such Security Register shall be in written
form or in any other form capable of being converted into written
form within a reasonable period of time. At all reasonable times
the Security Register shall be open for inspection by the Company. |
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Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained for such
purpose, the Company shall execute and the Guarantor shall endorse,
and the Trustee shall authenticate and deliver, in the name of the
designated transferee, one or more new Securities of the same
series of any authorized denomination or denominations of like
tenor and aggregate principal amount. |
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Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for the individual
Securities represented thereby, a Global Security representing all
or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary. |
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At the option of the Holder and subject to the other provisions of
this Section, Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for other
Securities of the same series of any authorized denomination or
denominations of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at the office or agency
of the Company maintained for such purpose. |
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Whenever any Securities are so surrendered for exchange, the
Company shall execute and the Guarantor shall endorse, and the
Trustee shall authenticate and deliver, the Securities that the
Holder making the exchange is entitled to receive. |
12
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No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 9.6 or 11.5 not involving any registration of transfer. |
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Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company, the
Trustee or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security
Registrar, duly executed, by the Holder thereof or his attorney
duly authorized in writing. |
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If the Securities of any series (or of any series and specified
tenor) are to be redeemed in part, the Company shall not be
required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor,
as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under
Section 11.2 and ending at the close of business on the day of such
mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part. |
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All Securities issued upon any registration of transfer or exchange
of Securities shall be valid obligations of the Company and the
Guarantor, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered for
such registration of transfer or exchange. |
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The provisions of Clauses 3.4.1, 3.4.2, 3.4.3, 3.4.4 and 3.4.5
below shall apply only to Global Securities: |
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|
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| 3.4.1 |
|
Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary or
a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes
of this Indenture. |
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| 3.4.2 |
|
Notwithstanding any other provision in this
Indenture or the Securities, no Global Security of a series
may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security of a series
in whole or in part may be registered, in the name of any
Person other than the Depositary or a nominee thereof unless
(A) the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time
the Depositary for the Securities of such series ceases to be
a clearing agency registered under the Exchange Act, at a time
when such Depositary is required to be so registered in order
to act as depositary, and in each case, a successor Depositary
for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility or (B) the Company in
its sole discretion determines that individual Securities of
any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or
Securities. In such event the Company will execute and the
Guarantor will endorse, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of
individual Securities of such series, will |
13
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authenticate and deliver, individual Securities of such
series in an aggregate principal amount equal to the
principal amount of the Global Security or Securities
representing Securities of such series in exchange for such
Global Security or Securities. Any Global Security exchanged
pursuant to Clause (A) above shall be so exchanged in whole
and not in part and any Global Security exchanged pursuant to
Clause (B) above may be exchanged in whole or from time to
time in part as directed by the Depositary. Any Security
issued in exchange for a Global Security or any portion
thereof shall be a Global Security, provided that any such
Security so issued that is registered in the name of a Person
other than the Depositary or a nominee thereof shall not be a
Global Security. |
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| 3.4.3 |
|
In any exchange pursuant to Clause 3.4.2 above,
the Company will execute and the Guarantor will endorse and
the Trustee will authenticate and deliver individual
Securities in registered form in authorized denominations.
Upon the exchange of a Global Security for individual
Securities, such Global Security shall be canceled by the
Trustee. Individual Securities issued in exchange for a
Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are
so registered. |
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If specified by the Company pursuant to Section 3.4.2(B) with
respect to a series of Securities, the Depositary for such
series of Securities may surrender a Global Security for such
series of Securities in exchange in whole or in part for
individual Securities of such series on such terms as are
acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Guarantor shall endorse,
and the Trustee shall authenticate and deliver, without
service charge, (i) to each Person specified by such
Depositary a new individual Security or Securities of the
same series, of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in
exchange for such Persons’ beneficial interest in the Global
Security; and (ii) to such Depositary a new Global Security
in a denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and
the aggregate principal amount of individual Securities
delivered to Holders thereof. |
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|
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| 3.4.4 |
|
In the event of the occurrence of any of the
events specified in Clause 3.4.2 above, the Company will
promptly make available to the Trustee a reasonable supply of
certificated Securities in definitive, fully registered form,
without interest coupons. |
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|
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| 3.4.5 |
|
Neither any members of, or participants in, the
Depositary (“Agent Members”) nor any other Persons on whose
behalf Agent Members may act (including Euroclear Bank
S.A./N.V., as operator of the Euroclear System (“Euroclear”)
and Clearstream Banking, société anonyme (“Clearstream,
Luxembourg”) and account holders and participants therein)
shall have any rights under this Indenture with respect to any
Global Security, or under any Global Security, and the
Depositary or such nominee, as the case may be, may be treated
by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder of such Global
Security for all purposes whatsoever. |
14
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Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or
such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other person on whose
behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the
rights of a holder of any Security. |
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|
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| 3.4.6 |
|
None of the Company, the Guarantor, the Trustee
or any agent of the Company, the Guarantor or the Trustee
shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of
beneficial ownership interests in a Global Security or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. |
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| 2.17 |
|
Section 5.1 of the Original Indenture is hereby amended and
restated as follows: |
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|
|
| |
|
“Event of Default”, wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have
occurred and be continuing: |
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|
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| 5.1.1 |
|
a failure to pay any interest (or Additional
Amounts, if any) on any of the Securities of the series on the
date when due and such failure shall continue for a period of
30 days; |
| |
|
|
| 5.1.2 |
|
a failure to pay any principal or premium, if
any, (or Additional Amounts, if any) on any of the Securities
of the series on the date when due; |
| |
|
|
| 5.1.3 |
|
any default or event of default by the Company
or the Guarantor or any Significant Subsidiary occurring and
continuing under any agreement, instrument or other document
evidencing outstanding Indebtedness in excess of $50,000,000
in aggregate (or its equivalent in other currencies) and such
default or event of default results in the actual acceleration
of such Indebtedness; |
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|
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| 5.1.4 |
|
the Company or the Guarantor shall fail to
perform or observe any other covenant or agreement in respect
of the Securities of the series issued under this Indenture or
in a supplemental indenture (other than a covenant which has
been expressly included in this Indenture solely for the
benefit of series of Securities other than that series) and
such failure shall continue for a period of 60 days after
there has been given by registered or certified international
air mail to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of such series, a written notice
specifying such default and requiring it to be remedied and
stating that such notice is a “Notice of Default;” |
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|
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| 5.1.5 |
|
the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company, the Guarantor or any Significant Subsidiary in an
involuntary case or proceeding under any applicable
bankruptcy, insolvency, suspension of payments, reorganization
or other similar law, or (B) a decree or order adjudging the
Company, the Guarantor or any Significant |
15
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Subsidiary a bankrupt or insolvent, or suspending payments,
or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or
in respect of the Company, the Guarantor or any Significant
Subsidiary under any applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, the
Guarantor or any Significant Subsidiary or of any substantial
part of the property of the Company, the Guarantor or any
Significant Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company, the Guarantor or
any Significant Subsidiary, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
or |
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|
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| 5.1.6 |
|
the commencement by the Company, the Guarantor
or any Significant Subsidiary of a voluntary case or
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company, the Guarantor or any Significant
Subsidiary to the entry of a decree or order for relief in
respect of the Company, the Guarantor or any Significant
Subsidiary in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, suspension of payments,
reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against the
Company, the Guarantor or any Significant Subsidiary, or the
filing by the Company, the Guarantor, or any Significant
Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable law or the
consent by the Company, the Guarantor or any Significant
Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar
official of the Company, the Guarantor or any Significant
Subsidiary or of any substantial part of the property of the
Company, the Guarantor or any Significant Subsidiary, or the
making by the Company, the Guarantor or any Significant
Subsidiary of an assignment for the benefit of creditors, or
the admission by the Company, the Guarantor or any Significant
Subsidiary in writing of its inability to pay its debts
generally as they become due or the taking of corporate action
by the Company, the Guarantor or any Significant Subsidiary in
furtherance of any such action (evidenced by the adoption of a
corporate resolution in favor of any such actions or an action
of any of the officers of the Company, the Guarantor or such
Significant Subsidiary that similarly binds the Company, the
Guarantor or such Significant Subsidiary, as the case may be),
or the general inability of the Company, the Guarantor or any
Significant Subsidiary to make payment of their obligations as
they come due. |
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| 2.18 |
|
Section 5.2 of the Original Indenture is hereby amended and
restated as follows: |
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|
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“Illegality Event”, wherever used herein with respect to Securities
of any series, means (whatever the reason for such Illegality Event
and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body) it becomes and continues to be unlawful for the
Company or the Guarantor to perform or comply with any one or more
of its obligations under any of the Securities of the series. |
| |
|
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| 2.19 |
|
Section 5.3 of the Original Indenture is hereby amended and
restated as follows: |
16
If an Event of Default or Illegality Event with respect to any
series of Securities (other than those Events of Default in
Sections 5.1.5 and 5.1.6 insofar as they relate to the Company and
the Guarantor but not to a Significant Subsidiary of the
Guarantor), occurs and is continuing, then and in every such case,
including an Event of Default in Sections 5.1.5 and 5.1.6 relating
to a Significant Subsidiary of the Guarantor, the Trustee shall, at
the written request of the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series, by
notice in writing to the Company, declare the principal of all the
Securities of that series to be due and payable immediately, and
upon any such declaration such principal and any accrued interest
and any unpaid Additional Amounts thereon shall become immediately
due and payable. If an Event of Default specified in Sections
5.1.5 and 5.1.6 occurs and is continuing with respect to the
Company or the Guarantor (but not a Significant Subsidiary of the
Guarantor), the principal and any accrued interest, together with
any Additional Amounts thereon, on all of the Securities of that
series then Outstanding shall automatically, and without any
declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series at the time Outstanding has been made
and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and
its consequences if
| |
5.3.1 |
|
the Company has paid or deposited with the Trustee a sum
sufficient to pay
|
| |
(i) |
|
all overdue interest and any
Additional Amounts thereon on all of the Securities of
that series,
|
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(ii) |
|
the principal of any Securities of
that series which have become due otherwise than by such
declaration of acceleration,
|
| |
(iii) |
|
to the extent that payment of such
interest is lawful, interest upon overdue interest at
the rate borne by (or prescribed therefor in) the
Securities of that series, and
|
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(iv) |
|
all sums paid or advanced by the
Trustee hereunder and all amounts owing the Trustee
under Section 6.7;
|
and
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5.3.2 |
|
all Events of Default or Illegality Events with
respect to such series of Securities, other than the
non-payment of the principal of Securities which have become
due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.14.
|
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No such rescission shall affect any subsequent default or impair
any right consequent thereon.
|
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2.20 |
|
Section 5.14 of the Original Indenture is hereby amended and
restated as follows:
|
17
| |
|
|
Subject to Section 5.3, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive
any past Event of Default or Illegality Event hereunder with
respect to such series and its consequences, except a default
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| |
5.14.1 |
|
in the payment of the principal of or any premium or
interest on any Security of such series, or
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5.14.2 |
|
in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series
affected.
|
Upon any such waiver, such default or Illegality Event shall cease
to exist, and any Event of Default or Illegality Event arising
therefrom shall be deemed to have been cured, for every purpose of
this Indenture; but no such waiver shall extend to any subsequent
or other default or Illegality Event or impair any right consequent
thereon.
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2.21 |
|
Section 6.1 of the Original Indenture is hereby amended and
restated as follows:
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| |
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|
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the
provisions of this Section.
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2.22 |
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Section 6.3.2 of the Original Indenture is hereby amended and
restated as follows:
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| |
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any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution. Any request or direction of the
Guarantor mentioned herein shall be sufficiently evidenced by a
written request or direction signed on behalf of the Guarantor by
any two of its officers or its attorneys in fact in accordance with
its Bylaws;
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2.23 |
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Section 6.3.8 of the Original Indenture is hereby amended and
restated as follows:
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| |
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the Trustee shall not be deemed to have notice of any default or
Event of Default or Illegality Event unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default, Event of
Default or Illegality Event is received by the Trustee at the
Corporate Trust Office of the Trustee from the Company, the
Guarantor or any Holder, and such notice references the Securities
and this Indenture;
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2.24 |
|
Section 6.7 of the Original Indenture is hereby amended and
restated as follows:
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6.7.1 |
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The Company and the Guarantor, jointly and
severally, agree to pay to the Trustee from time to time such
compensation as shall be agreed in writing
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18
| |
|
|
between the parties for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust).
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6.7.2 |
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The Company and the Guarantor agree, except as
otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable and itemized expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or willful
misconduct.
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6.7.3 |
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The Guarantor agrees to fully indemnify each of
the Trustee and any predecessor Trustee for, and to hold it
harmless against, any and all losses, liabilities, damages,
claims or expenses incurred without negligence or willful
misconduct on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending
itself against any claim (whether asserted by the Company, a
Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties
hereunder.
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When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1.5 or Section
5.1.6, the expenses (including the reasonable and documented
charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
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| |
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As security for the performance of the obligations of the Company
and the Guarantor under this Section, the Trustee shall have a
claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the payment of principal of (premium, if any) or interest on such
Securities.
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| |
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The provisions of this Section shall survive the resignation or
removal of the Trustee and the satisfaction and discharge of this
Indenture.
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2.25 |
|
Section 7.3 of the Original Indenture is hereby amended and
restated as follows:
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| |
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|
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after
each May 15th following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15th, which complies
with the provisions of such Section 313(a).
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| |
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A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission (unless at the
time no Outstanding Securities have been registered with the
Commission pursuant to the Securities Act) and with the Company.
The Company will promptly notify the Trustee in writing when any
Securities are listed on any stock exchange.
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19
| |
|
|
Delivery of such reports to the Trustee is for informational
purposes only and the Trustee’s receipt of such reports shall not
constitute constructive notice of any information contained therein
or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers’
Certificates).
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2.26 |
|
Section 8.1.3 of the Original Indenture is hereby amended and
restated as follows:
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| |
|
|
the Company and the Guarantor have delivered to the Trustee (a) a
certificate signed by two executive officers of the Company and two
executive officers of the Guarantor stating that such
consolidation, merger, conveyance or transfer complies with this
Article and that all conditions precedent herein provided, which
relate to such transaction, have been complied with and (b) an
Opinion of Counsel of recognized standing stating that such
consolidation, merger, conveyance or transfer complies with this
Article and that all conditions herein provided, which relate to
such transaction, have been complied with; and
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| |
2.27 |
|
Section 10.7.1(v) of the Original Indenture is hereby amended
and restated as follows:
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| |
|
|
where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to any European
Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of November 26-27, 2000
or any law implementing or complying with, or introduced in order
to conform to, such directive; or
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| |
2.28 |
|
Section 11.5 of the Original Indenture is hereby amended and
restated as follows:
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| |
|
|
Any Security of a series which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
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| |
|
|
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified
tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be
selected less than 61 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not
previously called for redemption, by lot or, in the Trustee’s
discretion, on a pro rata basis, provided that the unredeemed
portion of the principal amount of any Security shall be in an
authorized denomination which shall not be less than the minimum
authorized denomination for such Security. If less than all of the
Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security),
the particular Securities to be redeemed shall be selected less
than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding
sentence, and the Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the case
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20
of any Securities selected for partial redemption, the principal
amounts thereof to be redeemed.
The provisions of the preceding paragraph shall not apply with
respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case
of any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Securities which has been or is to be redeemed.
| |
2.29 |
|
Article 13 is hereby added to the Indenture as follows:
|
| 13 |
|
DEFEASANCE AND COVENANT DEFEASANCE
|
| |
13.1 |
|
Company’s Option to Effect Defeasance or Covenant Defeasance
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| |
|
|
The Company may elect, at its option at any time, to have Section
13.2 or Section 13.3 applied to any Securities or any series of
Securities designated pursuant to Section 3.1 as being defeasible
pursuant to such Section 13.2 or 13.3, in accordance with any
applicable requirements provided pursuant to Section 3.1 and upon
compliance with the conditions set forth below in this Article.
Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 3.1 for such
Securities.
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| |
13.2 |
|
Defeasance and Discharge
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| |
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Upon the Company’s exercise of its option to have this Section
applied to any Securities or any series of Securities, as the case
may be, the Company and the Guarantor shall each be deemed to have
been discharged from their respective obligations with respect to
such Securities or series of Securities as provided in this Section
on and after the date the conditions set forth in Section 13.4 are
satisfied (hereinafter called “Defeasance”). For this purpose,
such Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Securities
to receive, solely from the trust fund described in Section 13.4
and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities
when payments are due, (ii) the respective obligations of the
Company and the Guarantor with respect to such Securities under
Sections 3.4, 3.5, 10.2 and 10.3, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (iv) the
provisions set forth in this Article Thirteen. Subject to
compliance with this Article, the Company may exercise its option
to have this Section 13.2 applied to any Securities notwithstanding
the prior exercise of its option to have Section 13.3 applied to
such Securities.
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21
| |
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|
Upon the Company’s exercise of its option to have this Section
applied to any Securities or any series of Securities, as the case
maybe, (i) the Company and the Guarantor shall each be released
from any covenants provided pursuant to Section 3.1.17, 9.1.2 or
9.1.8 for the benefit of the Holders of such Securities, and (ii)
the occurrence of any event specified in Section 5.1.4 shall be
deemed not to be or result in an Event of Default, in each case
with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 13.4 are
satisfied (hereinafter called “Covenant Defeasance”). For this
purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company and the Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent
so specified in the case of Section 5.1.4), whether directly or
indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any
other provision herein or in any other document, but the remainder
of this Indenture and such Securities shall be unaffected thereby.
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| |
13.4 |
|
Conditions to Defeasance or Covenant Defeasance.
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| |
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|
The following shall be the conditions to the application of Section
13.2 or Section 13.3 to any Securities or any series of Securities,
as the case may be:
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| |
13.4.1 |
|
The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (i) money in an amount, or (ii)
U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or
(iii) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, the
principal of and any premium, interest and Additional Amounts
on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such
Securities. As used herein, “U.S. Government Obligation”
means (x) any security which is (A) a direct obligation of the
United States of America for the payment of which the full
faith and credit of the United States of America is pledged or
(B) an obligation of a Person controlled or supervised by and
acting as any agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of
America, which, in either case (A) or (B), is not callable or
redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder
of such depositary receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that
(except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the
custodian in respect of
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22
| |
|
|
the U.S. Government Obligation or the specific payment of
principle or interest evidenced by such depositary receipt.
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| |
13.4.2 |
|
In the event of any election to have Section 13.2 apply to
any Securities or any series of Securities, as the case may
be, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this instrument, there has
been a change in the applicable U.S. Federal income tax law,
in either case (i) or (ii) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for U.S. Federal
income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.
|
| |
13.4.3 |
|
In the event of an election to have Section 13.3 apply to
any Securities or any series of Securities, as the case may
be, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities
will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to
the effected with respect to such Security and will be subject
to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
|
| |
13.4.4 |
|
No event which is, or after notice or lapse of time both
would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any
such event specified in Sections 5.1.5 and 5.1.6, at any time
on or prior to the day which is 90 days after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until after such day which is 90 days after
the date of such deposit).
|
| |
13.4.5 |
|
Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act (assuming all Securities are in
default within the meaning of such Act).
|
| |
13.4.6 |
|
Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company or the
Guarantor is a party or by which either is bound.
|
| |
13.4.7 |
|
Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act
unless such trust shall be registered under such Act or exempt
from registration thereunder.
|
| |
13.4.8 |
|
The Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
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23
| |
13.5 |
|
Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
|
| |
|
|
Subject to the provisions of the last paragraph of Section 10.3,
all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 13.4 in
respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any such
Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal and
any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
|
| |
|
|
The Company and the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to Section 13.4,
or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
|
| |
|
|
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon
Order any money or U.S. Government Obligations held by it as
provided in Section 13.4 with respect to any Securities which, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to such
Securities.
|
| |
|
|
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by
reason of any order of judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such
Securities from which the Company and the Guarantor have been
discharged or released pursuant to Section 13.2 or 13.3 shall be
revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities in accordance with
this Article; provided, however, that if the Company or the
Guarantor make any payment of principal of or any premium or
interest on any such Security following such reinstatement of its
obligations, the Company or the Guarantor (as the case may be)
shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
|
| |
3 |
|
Miscellaneous Provisions
|
| |
3.1 |
|
Separability of Invalid Provisions
|
| |
|
|
In case any one or more of the provisions contained in this Third
Supplemental Indenture should be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions contained in this Third
Supplemental Indenture, and to the extent and only to the extent
that any such provision is invalid, illegal or unenforceable, this
Third Supplemental Indenture shall be construed as if such
provision had never been contained herein.
|
24
| |
3.2 |
|
Execution in Counterparts
|
| |
|
|
This Third Supplemental Indenture may be simultaneously executed
and delivered in any number of counterparts, each of which when so
executed and delivered shall be deemed to be an original, and such
counterparts shall together constitute but one and the same
instrument.
|
| |
|
|
The provisions of this Third Supplemental Indenture shall apply
only to Securities issued after the date of this Third Supplemental
Indenture. Nothing in this Third Supplemental Indenture shall
modify the rights of the Holders of any Securities issued on or
prior to the date of this Third Supplemental Indenture.
|
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Third Supplemental
Indenture or for or in respect of the recitals contained herein, all of
which are made solely by the Company and the Guarantor.
25
In Witness Whereof, the parties hereto have caused this Third Supplemental
Indenture to be duly executed on their respective behalves, all as of the day
and year first written above.
| |
|
|
|
| VALE OVERSEAS LIMITED, |
| the Company |
| |
| By: |
|
| |
|
Name: |
| |
|
Title: |
| |
| By: |
|
| |
|
Name: |
| |
|
Title: |
| |
| COMPANHIA VALE DO RIO DOCE, |
| as Guarantor |
| |
| By: |
|
| |
|
Name: |
| |
|
Title: |
| |
| By: |
|
| |
|
Name: |
| |
|
Title: |
| |
| JPMORGAN CHASE BANK, |
| as Trustee |
| |
| By: |
|
| |
|
Name: |
| |
|
Title: |
26
