EXHIBIT 4.1
CONFORMED COPY
June 3, 2005
BANCO BRADESCO S.A.,
acting through its Grand Cayman branch,
as Issuer,
and
THE BANK OF NEW YORK TRUST COMPANY (CAYMAN) LIMITED,
as Trustee
-----------------------------------------
INDENTURE
Relating to the U.S. $300,000,000 8.875% Perpetual Non-cumulative Junior
Subordinated
Securities
-----------------------------------------
TABLE OF CONTENTS
Contents Page
1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..................................... 1
1.1 Definitions........................................................................ 1
1.2 Construction....................................................................... 12
1.3 Incorporation by Reference of Trust Indenture Act.................................. 13
1.4 Conflict with Trust Indenture Act.................................................. 13
2. THE SECURITIES.............................................................................. 13
2.1 Designation........................................................................ 13
2.2 Limitation on Principal Amount of Securities....................................... 15
2.3 Authentication and Delivery of Securities.......................................... 15
2.4 Form of Trustee's Authentication................................................... 16
2.5 Form of the Securities............................................................. 16
2.6 General Provisions Regarding the Securities........................................ 20
2.7 Interest........................................................................... 20
2.8 Limitation on Obligation to Make Interest Payments................................. 20
2.9 Record Date........................................................................ 21
2.10 Issuance........................................................................... 21
2.11 Denominations, etc. ............................................................... 21
2.12 Execution of Securities............................................................ 22
2.13 Registration; Restrictions on Transfer............................................. 22
2.14 Mutilated, Destroyed, Lost and Stolen Securities................................... 26
2.15 Payments........................................................................... 27
2.16 Additional Amounts................................................................. 28
-i-
2.17 Persons Deemed Owners.............................................................. 31
2.18 Cancellation....................................................................... 31
2.19 Securityholder Lists............................................................... 32
2.20 Temporary Securities............................................................... 32
2.21 CUSIP Numbers...................................................................... 32
3. REDEMPTION.................................................................................. 33
3.1 Repurchase of Securities........................................................... 33
3.2 Optional Redemption After the First Call Date...................................... 33
3.3 Optional Redemption in the Event of Change in Tax Treatment or Regulatory Event.... 33
3.4 Redemption Date.................................................................... 34
3.5 Notice of Redemption............................................................... 34
3.6 Deposit of Base Redemption Price or Make-Whole Amount, as applicable............... 35
3.7 Securities Payable on Redemption Date.............................................. 36
4. COVENANTS................................................................................... 36
4.1 Payments of Interest............................................................... 36
4.2 Dividend Stopper................................................................... 36
4.3 Ranking............................................................................ 36
4.4 Officers' Certificate on Suspension of Accrual of Interest......................... 37
4.5 Statement by Officers as to Default................................................ 37
4.6 Waiver of Certain Covenants........................................................ 37
4.7 Use of Proceeds.................................................................... 38
4.8 Notice of Payment Default.......................................................... 38
4.9 Further Actions.................................................................... 38
-ii-
4.10 Appointment to Fill a Vacancy in Office of Trustee................................. 38
4.11 Payments and Paying Agents......................................................... 39
4.12 Maintenance of Existence........................................................... 39
4.13 Consolidation, Merger, Conveyance or Transfer...................................... 40
4.14 Listing............................................................................ 41
4.15 Additional Information for Ratings................................................. 41
5. PAYMENT DEFAULT AND REMEDIES................................................................ 41
5.1 Payment Default.................................................................... 41
5.2 Suits For Enforcement.............................................................. 42
5.3 Trustee May File Proofs of Claim................................................... 43
5.4 Trustee May Enforce Claims Without Possession of Securities........................ 43
5.5 Application of Money Collected..................................................... 43
5.6 Limitation on Suits................................................................ 44
5.7 Unconditional Right of Securityholders to Receive Payments When Due................ 44
5.8 Restoration of Rights and Remedies................................................. 44
5.9 Rights and Remedies Cumulative..................................................... 45
5.10 Delay or Omission Not Waiver....................................................... 45
5.11 Control by Securityholders......................................................... 45
5.12 Waiver of Past Defaults............................................................ 46
5.13 Undertaking for Costs.............................................................. 46
5.14 Waiver of Usury, Stay or Extension Laws............................................ 46
5.15 No Set-Off......................................................................... 46
5.16 No Liability of Directors, Officers, Employees, Incorporators or Stockholders...... 47
-iii-
6. CONCERNING THE TRUSTEE...................................................................... 47
6.1 Certain Rights and Duties of Trustee............................................... 47
6.2 Trustee Not Responsible for Recitals, etc. ........................................ 50
6.3 Trustee and Others May Hold Securities............................................. 50
6.4 Moneys Held by Trustee or Paying Agent............................................. 50
6.5 Compensation of Trustee and Its Lien............................................... 50
6.6 Right of Trustee to Rely on Officers' Certificates and Opinions of Counsel......... 51
6.7 The Bank of New York Trust Company (Cayman) Limited as Trustee..................... 52
6.8 Persons Eligible for Appointment as Successor Trustee.............................. 52
6.9 Resignation and Removal of Trustee; Appointment of Successor....................... 52
6.10 Acceptance of Appointment by Successor Trustee..................................... 53
6.11 Merger, Conversion or Consolidation of Trustee..................................... 54
6.12 Maintenance of Offices and Agencies................................................ 55
6.13 Reports by Trustee................................................................. 57
6.14 Trustee Risk....................................................................... 57
6.15 Appointment of Co-Trustee.......................................................... 57
6.16 Notice of Payment Default.......................................................... 59
6.17 Eligibility; Disqualification...................................................... 59
6.18 Preferential Collection of Claims Against Issuer................................... 60
7. CONCERNING THE SECURITYHOLDERS.............................................................. 60
7.1 Acts of Securityholders............................................................ 60
7.2 Securities Owned by Issuer and Affiliates Deemed Not Outstanding................... 62
-iv-
8. SECURITYHOLDERS' MEETINGS................................................................... 63
8.1 Purposes for Which Securityholders' Meetings May Be Called......................... 63
8.2 Trustee, Issuer and Securityholders May Call Meeting............................... 63
8.3 Persons Entitled to Vote at Meeting................................................ 63
8.4 Determination of Voting Rights; Conduct and Adjournment of Meeting................. 64
8.5 Counting Votes and Recording Action of Meeting..................................... 65
9. SUPPLEMENTAL INDENTURES..................................................................... 65
9.1 Supplemental Indenture with Consent of Securityholders............................. 65
9.2 Supplemental Indentures Without Consent of Securityholders......................... 66
9.3 Execution of Supplemental Indentures............................................... 68
9.4 Effect of Supplemental Indentures.................................................. 68
9.5 Conformity with Trust Indenture Act................................................ 68
9.6 Reference in Securities to Supplemental Indentures................................. 68
9.7 Moody's Consent and Notification................................................... 68
9.8 Consent of the Central Bank of Brazil.............................................. 69
10. SATISFACTION AND DISCHARGE.................................................................. 69
10.1 Satisfaction and Discharge of Securities........................................... 69
10.2 Satisfaction and Discharge of Indenture............................................ 70
10.3 Application of Trust Money......................................................... 71
11. SUBORDINATION............................................................................... 71
11.1 Agreement to Subordinate........................................................... 71
11.2 Payment Over of Proceeds Upon Dissolution, Etc. ................................... 72
11.3 No Payment When Senior Debt in Default............................................. 74
-v-
11.4 Payment Permitted in Certain Situations............................................ 75
11.5 Subrogation to Rights of Holders of Senior Debt.................................... 75
11.6 Provisions Solely to Define Relative Rights........................................ 76
11.7 Trustee to Effectuate Subordination................................................ 76
11.8 No Waiver of Subordination Provisions.............................................. 77
11.9 Notice to Trustee.................................................................. 77
11.10 Reliance on Judicial Order or Certificate of Liquidating Agent..................... 78
11.11 Trustee Not Fiduciary for Holders of Senior Debt................................... 78
11.12 Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights....... 78
11.13 Article Applicable to Paying Agents................................................ 78
12. MISCELLANEOUS............................................................................... 79
12.1 Compliance Certificates and Opinions............................................... 79
12.2 Form of Documents Delivered to Trustee............................................. 79
12.3 Notices, etc. to Trustee........................................................... 80
12.4 Notices to Securityholders; Waiver................................................. 81
12.5 Effect of Headings and Table of Contents........................................... 82
12.6 Successors and Assigns............................................................. 82
12.7 Severability Clause................................................................ 83
12.8 Benefits of Indenture.............................................................. 83
12.9 Legal Holidays..................................................................... 83
12.10 Currency Rate Indemnity............................................................ 83
12.11 Communication by Securityholders with Other Securityholders........................ 85
12.12 Governing Law...................................................................... 86
-vi-
12.13 Waiver of Jury Trial............................................................... 86
12.14 Submission to Jurisdiction, etc. .................................................. 86
12.15 Execution in Counterparts.......................................................... 87
EXHIBIT A(1) Form of Restricted Global Security
EXHIBIT A(2) Form of Regulation S Global Security
EXHIBIT A(3) Form of Exchange Security
EXHIBIT B Form of Authentication and Delivery Order
EXHIBIT C Form of Regulation S Certificate
EXHIBIT D Form of Restricted Securities Certificate
EXHIBIT E Form of Unrestricted Securities Certificate
-vii-
INDENTURE (the "INDENTURE") dated as of June 3, 2005
BETWEEN
(1) BANCO BRADESCO S.A., a company incorporated under the laws of the
Federative Republic of Brazil, acting through its Grand Cayman branch (the
"ISSUER"); and
(2) THE BANK OF NEW YORK TRUST COMPANY (CAYMAN) LIMITED, as trustee (the
"TRUSTEE") and as security registrar and paying agent in New York.
WHEREAS
(A) The Issuer has duly authorized the issuance of the Securities (as defined
below) in such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture;
(B) The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Securities and the
authentication and delivery thereof by the Trustee;
(C) All things necessary to make the Securities, when executed by the Issuer
and authenticated and delivered by the Trustee as provided in this
Indenture, the valid, binding and legal obligations of the Issuer, and to
constitute these presents a valid indenture and agreement according to its
terms, have been done; and
(D) Each of the parties hereto is entering into this Indenture for the benefit
of the other party and for the equal and ratable benefit of the holders of
(i) the Issuer's 8.875% Perpetual Non-cumulative Junior Subordinated
Securities issued in accordance with the terms of this Indenture (the
"ORIGINAL SECURITIES"), (ii) any Additional Securities (as defined herein)
that may be issued from time to time under this Indenture, and (iii) the
Exchange Securities (as defined herein) to be issued in exchange for the
Initial Securities (as defined herein).
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 Definitions
All terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein.
The following capitalized terms shall have the meanings set forth below:
"ACCOUNTING PRACTICES ADOPTED IN BRAZIL" means the Corporate Law Method
together with the industry specific guidelines (provided by the rules and
regulations of the Conselho Monetario Nacional (the National Monetary
Council), the Central Bank of
-1-
Brazil, the Commissao de Valores Mobiliarios (the Brazilian Securities
Commission) and other regulatory entities) that are also considered part
of the accounting practices adopted in Brazil.
"ACT", when used with respect to any Securityholder, has the meaning set
forth in Section 7.1.
"ADDITIONAL AMOUNTS" has the meaning set forth in Section 2.16.
"ADDITIONAL SECURITIES" has the meaning set forth in Section 2.1(c).
"AFFILIATE" with respect to any Person, means any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person; it being understood that for purposes of this
definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person shall mean
the possession, direct or indirect, of the power to vote 10% or more of
the equity or similar voting interests of such Person or to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of such interests, by contract or otherwise.
"AGENT MEMBER" means a member of, or participant in, DTC, Euroclear or
Clearstream, Luxembourg, as the case may be.
"APPLICABLE PROCEDURES" has the meaning set forth in Section 2.13(e)(i).
"AUTHENTICATING AGENT" means the Person acting as Authenticating Agent
hereunder pursuant to Section 6.12.
"AUTHORIZED AGENT" means any Paying Agent, Authenticating Agent, Security
Registrar or other agent appointed in accordance with this Indenture to
perform any function that this Indenture authorizes such agent to perform.
"AUTHORIZED REPRESENTATIVE" of the Issuer or any other Person means,
subject to the requirements of the Trust Indenture Act, the person or
persons authorized to act on behalf of such entity pursuant to a valid
power of attorney by its Board of Directors or any other similar competent
governing body of such entity or any other Person duly authorized in
accordance with its organizational documents.
"AUTHORIZED SIGNATORY" means any officer of the Trustee or any other
individual who shall be duly authorized by appropriate corporate action on
the part of the Trustee to authenticate Securities.
"BASE REDEMPTION PRICE" means the price equal to (i) 100% of the aggregate
Principal Amount of the Securities Outstanding on the Redemption Date,
plus (ii) accrued and unpaid Interest, if any, thereon with respect to the
then current Interest Period through the
-2-
Redemption Date, plus (iii) any other amounts accrued and unpaid under the
Securities and this Indenture.
"BOARD OF DIRECTORS", when used with respect to a corporation, means
either the board of directors of such corporation or any committee of that
board duly authorized to act for it, and when used with respect to a
limited liability company, partnership or other entity other than a
corporation, any Person or body authorized by the organizational documents
or by the voting equity owners of such entity to act for them.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Issuer to have been adopted by the Board
of Directors of the Issuer and to be in full force and effect on the date
of such certification.
"BRAZIL" means the Federative Republic of Brazil.
"BUSINESS DAY" means a day that is a day other than Saturday, Sunday or a
day on which banking institutions in Sao Paulo, Brazil, the Xxxxxx Xxxxxxx
xx Xxx Xxxx Xxxx, Xxxxxx Xxxxxx generally are authorized or required by
law or order to remain closed.
"CENTRAL BANK OF BRAZIL" means Banco Central do Brasil.
"CLEARSTREAM, LUXEMBOURG" means Clearstream Banking, societe anonyme.
"CLOSING DATE" means June 3, 2005.
"COMMON SHARES" means the Issuer's common shares.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
Remaining Life. If no United States Treasury security has a maturity which
is within a period from three months before to three months after the
First Call Date, the two most closely corresponding United States Treasury
securities will be used as the Comparable Treasury Issue, and the U.S.
Treasury Rate will be interpolated or extrapolated on a straight-line
basis, rounding to the nearest month using such securities. All
percentages resulting from any calculation related to the U.S. Treasury
Rate will be rounded to the nearest one hundred-thousandth of a percentage
point, with five-one millionths of a percentage point rounded upwards. For
example, 9.876545% (or .09876545) would be rounded to 9.87655% (or
.0987655). All dollar amounts used in or resulting from any calculation
related to the U.S. Treasury Rate will be rounded to the nearest cent
(with one-half or unit being rounded upwards).
-3-
"COMPARABLE TREASURY PRICE" means with respect to the relevant Redemption
Date (A) the average of four Reference Treasury Dealer Quotations (as
defined below) for the Redemption Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (B) if the
Independent Investment Banker obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"CORPORATE LAW METHOD" means the Xxx xxx Sociedades por Acoes (Law
6,404/76, as amended), which sets forth the accounting method required to
be followed by all Brazilian corporate entities.
"CORPORATE TRUST OFFICE" means the office of the Trustee or Security
Registrar at which the corporate trust business of the Trustee or Security
Registrar, as the case may be, shall at any particular time be
administered, which at the time of the execution of this Indenture is, in
each case, located care of The Bank of New York at 000 Xxxxxxx Xxxxxx,
Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Finance Unit.
"CUSIP" means the CUSIP Service Bureau.
"CUSTODIAN" has the meaning set forth in Section 2.5.
"DEFAULT" means an event or condition that, with the giving of notice,
lapse of time or failure to satisfy certain specified conditions, or any
combination thereof, would become a Payment Default if not cured or
remedied.
"DEPOSITARY" means DTC.
"DISTRIBUTABLE PROFITS" means, in respect of each fiscal year of the
Issuer, the aggregate amount, as set out in the financial statements of
the Issuer for the immediately preceding fiscal year, of accumulated
retained earnings increased by profit or decreased by any loss from such
prior fiscal year, net of any amounts required to be transferred to legal
or other restricted reserves.
"DISTRIBUTION COMPLIANCE PERIOD" means, with regard to Securities offered
and sold in their initial distribution outside the United States in
reliance on Regulation S, the period of 40 consecutive days beginning on
the later of (i) the date on which the Securities are first offered to
persons other than distributors (as defined in Regulation S) in reliance
on Regulation S, and (ii) the date on which the Securities are initially
issued, authenticated and sold.
"DTC" means The Depository Trust Company, having a principal office at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, together with any Person
succeeding thereto by merger, consolidation or acquisition of all or
substantially all of its assets, including substantially all of its
securities payment and transfer operations.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the Euroclear
system.
-4-
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as amended
and in effect from time to time.
"EXCHANGE SECURITIES" means the 8.875% Perpetual Non-cumulative Junior
Subordinated Securities to be issued in exchange for the Initial
Securities in accordance with the Registration Rights Agreement.
"FIRST CALL DATE" means June 3, 2010.
"GLOBAL SECURITY" has the meaning set forth in Section 2.5.
"GOVERNMENTAL AUTHORITY" means the government of Brazil, the Cayman
Islands, or any political subdivision thereof, whether federal, state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other person exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining
to government over Banco Bradesco S.A.
"INCREASED INTEREST" means any and all amounts that become payable
pursuant to Section 5 of the Registration Rights Agreement.
"INDENTURE" has the meaning set forth in the preamble hereto.
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Treasury
Dealers appointed by the Issuer.
"INITIAL SECURITIES" means, collectively, the Original Securities and
Additional Securities.
"INTEREST" means cash interest on the Securities and includes Increased
Interest.
"INTEREST PAYMENT DATE" has the meaning set forth in Section 2.7.
"INTEREST PERIOD" means the period beginning on an Interest Payment Date
and ending on the day before the next Interest Payment Date.
"ISSUER" has the meaning set forth in the preamble to this Indenture.
"ISSUER ORDER" means a written request or order signed in the name of the
Issuer by an Authorized Representative.
"JUNIOR SECURITIES" means the Common Shares of the Issuer, or any other
securities or instruments which rank junior to the Securities, as regards
interest on a return of assets upon liquidation or in respect of interest
or payment of dividends or any other payments thereon.
-5-
"LAW" means any constitutional provision, law, statute, rule, regulation,
ordinance, treaty, order, decree, judgment, decision, certificate,
holding, or injunction, enforceable at law or in equity, along with the
interpretation and administration thereof by any Governmental Authority
charged with the interpretation or administration thereof.
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section 6.12(h)
hereof.
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section 6.12(h)
hereof.
"MAJORITY SECURITYHOLDERS" means the holders of more than 50% in aggregate
principal amount of the Securities then Outstanding at any time.
"MAKE-WHOLE AMOUNT" means an amount per Security as determined by the
Independent Investment Banker (as defined above), equal to the sum of (i)
the present value of a payment of the Principal Amount, plus (ii) the
present value of the scheduled quarterly cumulative Interest payments from
the Redemption Date through and including the First Call Date, in each
case of (i) and (ii) above, discounted from the First Call Date (in the
case of the Principal Amount) or the applicable Interest Payment Date (in
the case of scheduled Interest payments) to the Redemption Date on a
quarterly basis (assuming a 360-day year consisting of twelve 30-day
months) at the U.S. Treasury Rate plus 0.25%, plus (iii) any accumulated
and unpaid Interest for the then current Interest Period through the
Redemption Date, plus (iv) any other amounts accrued and unpaid under the
Securities and the Indenture.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"OFFICERS' CERTIFICATE" means a certificate of two Authorized
Representatives of the Issuer in compliance with the requirements of
Section 12.1.
"OPINION OF COUNSEL" means a written opinion of counsel in compliance with
the requirements of Section 12.1 hereof from any Person which may include,
without limitation, counsel for the Issuer, whether or not such counsel is
an employee of the Issuer.
"ORIGINAL SECURITIES" has the meaning set forth in the recitals to this
Indenture.
"OUTSTANDING", when used with respect to Securities or any Principal
Amount thereof, means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture, except
Securities:
(a) theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) for which redemption money in the necessary amount has been
theretofore deposited in trust with the Trustee; provided,
that if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption has
-6-
been duly given pursuant to Article 3 or provision therefor
satisfactory to the Trustee has been made;
(c) Securities deemed to have been paid within the meaning of
Section 10.1; or
(d) that have been exchanged for Exchange Securities or Securities
in lieu of which Exchange Securities have been authenticated
and delivered pursuant to this Indenture other than any
Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such
Securities constitute valid obligations of the Issuer;
provided, however, that in determining whether the Securityholders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Issuer, or any of its Subsidiaries or
Affiliates, shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right to act with respect to such Securities and that the pledgee is not
the Issuer or a Subsidiary thereof or any Affiliate of the Issuer or any
Subsidiary thereof.
"PARITY SECURITIES" means the most senior ranking preference shares (if
any), any non-cumulative preference shares, any securities which rank or
are expected to rank pari passu with the Securities, or any other
instruments which qualify as Tier I capital, other than the Junior
Securities.
"PAYING AGENT" means the Trustee and its successors and assigns and any
other paying agent appointed by the Issuer in accordance with Sections
2.15(b) and 6.12.
"PAYMENT DATE" means any of the Interest Payment Dates or the Redemption
Date or any other date on which payments on the Securities in respect of
principal, interest or other amounts are required to be paid pursuant to
this Indenture and the Securities.
"PAYMENT DEFAULT" has the meaning set forth in Section 5.1.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
-7-
"PLACE OF PAYMENT", when used with respect to the Securities means the
office or agency of the Trustee maintained pursuant to Section 6.12 and
such other place or places, if any, where the principal of and interest on
the Securities are payable as specified herein.
"PREDECESSOR SECURITIES", with respect to any particular Security, means
any previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; for the purposes of this
definition, any Security authenticated and delivered under Section 2.14 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
"PRINCIPAL AMOUNT" has the mean set forth in Section 2.7.
"PROCESS AGENT" has the meaning set forth in Section 12.14.
"RECORD DATE" means, with respect to any payment to be made on a Payment
Date, the Business Day that is fifteen calendar days prior to such Payment
Date.
"REDEMPTION DATE" has the meaning set forth in Section 3.4.
"REFERENCE TREASURY DEALER" means each of Xxxxxxx Xxxxx Government
Securities Inc. and their respective successors; provided, however, that
if any of the foregoing or their affiliates will cease to be a primary
U.S. Government securities dealer in the City of New York (a "PRIMARY
TREASURY DEALER"), the Issuer will substitute therefore another Primary
Treasury Dealer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and the Redemption Date, the average, as
determined by the Independent Investment Banker, of the bid and ask prices
for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Independent Investment
Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time,
on the third Business Day preceding the Redemption Date.
"REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement
dated as of June 3, 2005 between the Issuer and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated as the same may be amended or supplemented
from time to time and any other registration rights agreement entered into
in connection with the issuance of Additional Securities hereunder.
"REGULATION S" means Regulation S promulgated under the Securities Act, as
amended and in effect from time to time.
"REGULATION S CERTIFICATE" has the meaning set forth in Section
2.13(e)(i).
"REGULATION S GLOBAL SECURITY" has the meaning set forth in Section 2.5.
-8-
"REGULATION S SECURITY" means a Security required to bear the Restrictive
Legend applicable to Regulation S Securities provided for in Exhibit A(2),
including the Regulation S Global Security.
"REGULATORY EVENT" means that, subsequent to the time the Securities
initially qualify as Tier I capital, the Issuer is notified in writing by
the Central Bank of Brazil that the Securities may not be included in the
consolidated Tier I Capital of the Issuer.
"REMAINING LIFE" means the period from the Redemption Date to and
including the First Call Date.
"RESOLUTION 2,837" means Resolution No. 2837 of May 30, 2001 issued by the
Conselho Monetario Nacional (the National Monetary Council), as amended,
modified or superseded from time to time.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer in the Corporate Trust Office (or any successor group of the
Trustee) including any vice president, assistant vice president, assistant
treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge and familiarity with the particular
subject and who shall have direct responsibility for the administration of
this Indenture.
"RESTRICTED SECURITY" means a Security required to bear the Restrictive
Legend applicable to Restricted Securities provided for in Exhibit A(1),
including the Restricted Global Security.
"RESTRICTED SECURITIES CERTIFICATE" has the meaning set forth in Section
2.13(e)(ii).
"RESTRICTED PAYMENT EVENT" means any of the following:
(a) the Issuer declares, pays or distributes a dividend or interest on
capital or makes a payment on, or in respect of, any of the Issuer's
Junior Securities or Parity Securities; or
(b) the Issuer or any of its subsidiaries redeems, purchases or
otherwise acquires for any consideration any of the Issuer's or its
subsidiaries' Junior Securities or any Parity Securities, other
than:
(i) by conversion into, or in exchange for the Issuer's Common
Shares;
(ii) in connection with transactions effected by or for the account
of the Issuer's customers or customers of any of the Issuer's
subsidiaries in connection with interest, trading or
market-making activities in respect of the Junior Securities
or Parity Securities;
-9-
(iii) in connection with the Issuer's satisfaction of the Issuer's,
or the Issuer's subsidiaries' obligations under any employee
benefit plans or similar arrangements with or for the benefit
of employees, officers, directors or consultants;
(iv) as a result of a reclassification of the Issuer's capital
stock or any of the Issuer's subsidiaries capital stock or the
exchange or conversion of one class or series of capital stock
for another class or series of capital stock; or
(v) the purchase of the fractional interests in shares of the
Issuer's capital stock or the capital stock of any of the
Issuer's subsidiaries pursuant the conversion or exchange
provisions of that capital stock (or the security being
converted or exchanged).
"RESTRICTIVE LEGEND" means the legends required by the Forms of Security
attached hereto as Exhibit A.
"SEC" means the Securities and Exchange Commission of the United States.
"SECURITIES" means, collectively, the Initial Securities and the Exchange
Securities, treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms hereof, that
are issued pursuant to this Indenture.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended and in
effect from time to time.
"SECURITYHOLDER" means a Person in whose name a Security is registered in
the Security Register.
"SECURITY REGISTER" has the meaning set forth in Section 2.13.
"SECURITY REGISTRAR" means any Person acting as Security Registrar
pursuant to Section 2.13.
"SENIOR DEBT" means:
(a) all claims of the Issuer's unsubordinated creditors;
(b) all claims of the Issuer's subordinated creditors whose claims are,
or are expressed to be, subordinated only to the claims of the
Issuer's unsubordinated creditors (whether only in the event of the
Issuer's bankruptcy or otherwise); and
(c) all claims of all of the Issuer's other creditors, except those
whose claims are, or are expressed to rank, pari passu with, or
junior to, the claims of Securityholders.
-10-
"STATED RATE" means, for any Interest Period, 8.875% per annum.
"SUBSIDIARY" means, as to any Person, a corporation, company, partnership
or other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors (or similar
governing body) of such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a "SUBSIDIARY"
or to "SUBSIDIARIES" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Issuer.
"TAX EVENT" means a determination by the Issuer that immediately prior to
the giving of the notice referred to in Section 3.3 on the next Interest
Payment Date that the Issuer would, for reasons outside its control, be
obligated to pay Additional Amounts in excess of Additional Amounts which
the Issuer would be obligated to pay if payments of Interest under the
Securities were subject to withholding or deduction at a rate of 15% or
higher and the Issuer cannot avoid such circumstance by taking reasonable
measures.
"TAXING JURISDICTION" has the meaning set forth in Section 2.16.
"THE BANK OF NEW YORK" means The Bank of New York, a New York banking
corporation.
"TIER I CAPITAL" has the meaning set forth in any applicable Tier I
Regulation.
"TIER I REGULATION" means any regulation to be issued and adopted by a
Governmental Authority in Brazil setting out the applicable requirements
relating to the qualification of bank securities as Patrimonio de
Referencia nivel I (tier I capital or core capital), as defined in
Resolution 2,837, which may be modified by the expected regulation to be
issued by a Governmental Authority in Brazil, for the purposes of
determining the capital adequacy of a bank. Tier I Regulation does not
include Resolution 2,837, as in effect on the date hereof.
"TRANSPARENCY DIRECTIVE" means Directive 2004/109/EC of the European
Parliament and of the Council of Ministers, dated December 15, 2004,
regarding the harmonization of transparency requirements for information
about issuers whose securities are admitted to trading on a European Union
regulated market which effective January 20, 2005, requires member states
to take measures necessary to comply with this directive by January 20,
2007.
"TRUSTEE" means the person named as the "Trustee" in the preamble to this
Indenture and its successors and assigns.
-11-
"TRUST INDENTURE ACT" means the U.S. Trust Indenture Act of 1939, as
amended and in effect from time to time.
"UNITED STATES" means the United States of America.
"U.S. DOLLARS" or "U.S.$" means the lawful currency of the United States.
"U.S. TREASURY RATE" means (i) the yield, under the heading that
represents the average for the week immediately prior to the Redemption
Date, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication that is published
weekly by the U.S. Federal Reserve and that establishes yields on actively
traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities", for the maturity most
closely corresponding to the Remaining Life (if no maturity is within
three months before or after the Remaining Life, yields for the two
published maturities most closely corresponding to the Remaining Life will
be determined and the U.S. Treasury Rate will be the rate obtained by
interpolating or extrapolating from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date
or does not contain such yields, the rate per annum equal to the annual
equivalent yield to maturity of the Comparable Treasury Issue (as defined
below), calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price (as defined below) for the Redemption Date. The
U.S. Treasury Rate will be calculated on the third Business Day preceding
the Redemption Date.
1.2 Construction
For all purposes of this Indenture (and for all purposes of the Securities
or any other instrument or agreement that incorporates provisions of this
Indenture by reference), except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(b) except as otherwise expressly provided herein, (i) all accounting
terms used herein shall be interpreted, (ii) all financial
statements and all certificates and reports as to financial matters
required to be delivered to the Trustee hereunder shall be prepared,
and (iii) all calculations to be made for the purposes of
determining compliance with this Indenture shall be made, by
reference to the Issuer's financial statements prepared in
accordance with, or by application of, Accounting Practices Adopted
in Brazil;
(c) all references in this Indenture (including the Exhibits hereto) to
designated "Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
Indenture;
-12-
(d) the words "herein", "hereof and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) unless the context clearly indicates otherwise, pronouns having a
masculine or feminine gender shall be deemed to include the other;
(f) unless otherwise expressly specified, any agreement, contract or
document defined or referred to herein shall mean such agreement,
contract or document as in effect as of the date hereof, as the same
may thereafter be amended, supplemented or otherwise modified from
time to time in accordance with the terms of this Indenture and the
Securities and shall include any agreement, contract, instrument or
document in substitution or replacement of any of the foregoing
entered into in accordance with the terms of this Indenture and the
Securities;
(g) any reference to any Person shall include its permitted successors
and assigns in accordance with the terms of this Indenture and the
other Transaction Documents including, in the case of any
Governmental Authority, any Person succeeding to its functions and
capacities; and
(h) unless the context clearly requires otherwise, references to "Law"
or to any particular Law shall include Laws or such particular Law
as in effect at each, every and any of the times in question,
including any amendments, replacements, supplements, extensions,
modifications, consolidations, restatements, revisions or
reenactments thereto or thereof, and whether or not in effect at the
date of this Indenture.
1.3 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the Trust Indenture Act,
such provision is incorporated by reference in, and made part of, this
Indenture.
1.4 Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of
and govern this Indenture, the applicable provision of the Trust Indenture
Act shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
2. THE SECURITIES
2.1 Designation
-13-
(a) The Securities may be issued in one or more tranches. All Securities
shall be substantially identical except as to denomination and the
other matters described in Sections 2.1(c) and 2.2(b).
(b) There is hereby created a series of Original Securities designated
the "8.875% Perpetual Non-cumulative Junior Subordinated
Securities", issuable in one or more tranches in the aggregate
principal amount of U.S.$300,000,000, which are to be issued
pursuant to this Indenture.
(c) With respect to any additional securities ("ADDITIONAL SECURITIES")
issued after the Closing Date (excluding Securities issued upon
registration or transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Sections 2.13, 2.14, 2.15, and 9.5),
which such issuance of Additional Securities shall be subject to the
prior consent of the Central Bank of Brazil, if required, there
shall be established in or pursuant to a Board Resolution which
shall be delivered to the Trustee accompanied by an Officers'
Certificate; or established in one or more indentures supplemental
hereto, prior to the issuance of such Additional Securities:
(i) the aggregate principal amount of such Additional Securities
that may be authenticated and delivered under this Indenture
and their denomination;
(ii) the issue price and issuance date of such Additional
Securities, including the date from which interest on such
Additional Securities shall accrue; provided, however, that no
Additional Securities may be issued at a price that would
cause such Additional Securities to have "original issue
discount" within the meaning of Section 1273 of the U.S.
Internal Revenue Code of 1986, as amended; and
(iii) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective depositaries for
such Global Securities, the form of any legend or legends that
shall be borne by such Global Securities in addition to or in
lieu of those set forth in Exhibits A(1) and A(2) hereto and
any circumstances in addition to or in lieu of those set forth
in Section 2.13 in which any such Global Security may be
exchanged in whole or in part for Additional Securities
registered, or any transfer of such Global Security in whole
or in part may be registered, in the name or names of persons
other than the depositary for such Global Security or a
nominee thereof.
If any of the terms of any Additional Securities are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by an
Authorized Representative of the Issuer and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or
indenture supplemental hereto setting forth the terms of the
Additional Securities.
-14-
(d) Issuance of Additional Securities shall be subject to confirmation
from Moody's, if Xxxxx'x is then rating the Securities, that the
rating of such additional series of securities shall be equal to or
better than the rating of the existing Securities.
2.2 Limitation on Principal Amount of Securities
(a) The maximum aggregate principal amount of the Securities provided
for in Section 2.1 that may be Outstanding at any time shall be
unlimited. Securities repurchased upon the redemption thereof as
provided in Section 3.3 hereof may not be reissued. For the
avoidance of doubt, however, the Issuer or any of its Subsidiaries
may at any time, subject to the prior consent of the Central Bank of
Brazil, if required, purchase Securities in the open market or
otherwise; provided, that, any such Securities are promptly tendered
to the Trustee for cancellation.
(b) The Board of Directors of the Issuer shall establish in or pursuant
to a Board Resolution subject to Section 2.2(a), the limit upon the
aggregate principal amount of each tranche of the Securities that
may be authenticated and delivered under this Indenture (other than
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of other Securities of that
tranche pursuant to Sections 2.13, 2.14 and 2.20 and except for
Securities which, pursuant to Section 9.6, are deemed never to have
been authenticated and delivered hereunder).
2.3 Authentication and Delivery of Securities
(a) Any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities executed by the
Issuer to the Trustee for authentication, together with an Issuer
Order in the form set out in Exhibit B for the authentication and
delivery of such Securities, and the Trustee shall thereupon
authenticate and make available for delivery such Securities in
accordance with such Issuer Order, without any further action by the
Issuer. In accordance with the Registration Rights Agreement, the
Trustee will authenticate and make available for delivery Exchange
Securities in exchange for Initial Securities. The Trustee shall
authenticate Exchange Securities only for a principal amount not
exceeding the principal amount of Initial Securities.
(b) No Security shall be secured by or entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication,
substantially in the form provided for in Section 2.4, executed by
the Trustee by the manual signature of any Authorized Signatory, and
such certificate upon any Securities shall be conclusive evidence,
and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
(c) The Trustee shall have the right to decline to authenticate and
deliver the Securities under this Section 2.3 if the Trustee, after
receipt of an Opinion of
-15-
Counsel, determines that such action may not lawfully be taken by
the Issuer or the Trustee or if the Trustee in good faith by its
Board of Directors, board of trustees, executive committee, a trust
committee of directors or trustees or Responsible Officer shall
determine that such action does not comply with the provisions of
this Indenture or any document or instrument delivered in connection
herewith, or could expose the Trustee to personal liability. Prior
to the authentication and delivery of the Securities, the Trustee
shall also receive such other funds, accounts, documents,
certificates, instruments or opinions as may be required thereunder
or it may request in order to provide it with assurances that all
action necessary in connection therewith has been taken.
(d) Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued or sold by
the Issuer, and the Issuer shall deliver such Security to the
Trustee for cancellation as provided in Section 2.18 for all
purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never have
been or be entitled to the benefits hereof.
2.4 Form of Trustee's Authentication
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This Security is one of the Securities referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY (CAYMAN) LIMITED, as Trustee
By: __________________________
Authorized Signatory"
2.5 Form of the Securities
(a) Securities offered and sold in reliance on Rule 144A will initially
be represented by one or more permanent Global Securities (in
substantially the form of Exhibit A(1) with the applicable
Restrictive Legend) in definitive, fully registered book-entry form
(collectively, the "RESTRICTED GLOBAL SECURITY") which will be
registered in the name of DTC or its nominee and deposited on behalf
of the purchasers of the Securities represented thereby with a
custodian for DTC for credit to the respective accounts of such
purchasers (or to such other accounts as they may direct) at DTC.
(b) Securities offered and sold in reliance on Regulation S will
initially be represented by one or more permanent Global Securities
(in substantially the form
-16-
of Exhibit A(2) with the applicable Restrictive Legend) in
definitive, fully registered book-entry form (collectively, the
"REGULATION S GLOBAL SECURITY" and together with the Restricted
Global Security, the "GLOBAL SECURITIES") which will be registered
in the name of a nominee for DTC and deposited on behalf of the
purchasers of the Securities represented thereby with a common
depositary for DTC for credit to the respective accounts of such
purchasers (or to such other accounts as they may direct) at DTC.
(c) Exchange Securities exchanged for interests in the Restricted Global
Security, the Regulation S Global Security or any Initial Securities
in definitive form will be issued in the form of one or more
permanent Global Securities substantially in the Form of Exhibit
A(3) in definitive, fully-registered book-entry form, which will be
registered in the name of a nominee of DTC and deposited on behalf
of the Securityholders represented thereby with a custodian for DTC
for credit to the respective accounts of such holders (or to such
other account as they may direct) at DTC.
(d) The Securities shall be in registered form and may have such
letters, numbers or other marks of identification and such legends
or endorsements printed, lithographed, engraved, typewritten or
photocopied thereon as may be required to comply with the rules of
any securities exchange upon which the Securities are to be listed
or to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Board of Directors of
the Issuer or by the Authorized Representative executing such
Securities, such determination by said Authorized Representative to
be evidenced by its signing the Securities.
(e) The Securities may be issued in the form of definitive Securities
under the circumstances described in Sections 2.13(c) and (d).
Securities issued in definitive form shall be registered in the name
or names of such Persons and for the principal amounts as the Issuer
may request.
(f) The Issuer initially appoints DTC to act as depositary with respect
to the Restricted Global Security. The Trustee is authorized to
enter into a letter of representations with DTC in the form provided
to the Trustee by the Issuer and to act in accordance with such
letter. The Trustee, as custodian ("CUSTODIAN"), will act as
custodian of the Restricted Global Security for DTC or appoint a
sub-custodian to act in such capacity. So long as DTC or its nominee
is the registered owner of the Restricted Global Security, it shall
be considered the holder of the Securities represented thereby for
all purposes hereunder and under the Restricted Global Security.
None of the Issuer, the Trustee or any Paying Agent shall have any
responsibility or liability for any aspect of the records relating
to or payments made by DTC on account of beneficial interests in the
Restricted Global Security. Interests in the Restricted Global
Security shall be transferred on DTC's book-entry settlement system.
-17-
(g) At such time as all beneficial interests in a particular Global
Security have been exchanged for Securities in definitive form or a
particular Global Security has been redeemed, repurchased or
canceled in whole and not in part, such Global Security shall be
returned to or retained and canceled by the Trustee in accordance
with Section 2.18. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for or
transferred to a Person who will take delivery thereof in the form
of a beneficial interest in another Global Security or in the form
of Securities in definitive form, the principal amount of Securities
represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Trustee
or by DTC, as the case may be, at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global
Security, the principal amount of such other Global Security shall
be increased accordingly and an endorsement shall be made on such
Global Security by the Trustee or by DTC, as the case may be, at the
direction of the Trustee to reflect such increase. In addition, at
any time prior to the cancellation of any Global Security, if a
Security in definitive form is exchanged for, or transferred to a
Person who will take delivery in the form of, a beneficial interest
in such Global Security, then the Trustee shall cancel such Security
in definitive form in accordance with Section 2.18, and the
principal amount of such Global Security shall be increased
accordingly and an endorsement shall be made on such Global Security
by the Trustee or by DTC, as the case may be, at the direction of
the Trustee to reflect such increase.
(h) The forms of Securities may have such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements
placed thereon as may, consistent herewith, be applicable thereto or
determined by officers of the Issuer executing such Securities, as
evidenced by their execution thereof. Any portion of the text of any
Security may be set forth on the reverse thereof, with an
appropriate reference thereof on the face of the Security. If the
Securities conflict or are inconsistent with the provisions of the
Indenture, then this Indenture shall control.
(i) Agent Members shall have no rights under this Indenture with respect
to any Global Security held on their behalf by DTC or by the
Trustee, as Custodian of the Global Securities, and DTC or its
nominee may be treated by the Issuer, the Trustee and any agent of
the Issuer or the Trustee as the absolute owner of the relevant
Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, the Trustee or
any agent of the Issuer or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by DTC
or impair, as between DTC, and its respective Agent Members, the
operation of customary practices of DTC governing the
-18-
exercise of the rights of a holder of a beneficial interest in the
relevant Global Security.
-19-
2.6 General Provisions Regarding the Securities
The Securities are direct, unsecured obligations of the Issuer,
subordinated in right of payment to all existing and future Senior Debt of
the Issuer in accordance with the subordination provisions of this
Indenture. The Securities are perpetual Securities and have no fixed
maturity or redemption date. The Securities are intended to have loss
absorption capacity on an on-going basis and, accordingly, may be used by
the Issuer, after absorption of accumulated profits, profit reserves
(including legal reserves) and capital reserves, to off-set losses.
2.7 Interest
(a) For each Interest Period starting on June 3, 2005, cash interest on
the Securities will accrue at a fixed rate per annum equal to 8.875%
of the outstanding principal amount of the Securities (the
"PRINCIPAL AMOUNT"). Interest will be payable by the Issuer
quarterly in arrears on March 3, June 3, September 3 and December 3
of each year, commencing on September 3, 2005 (each such date, an
"INTEREST PAYMENT DATE"), unless the Issuer elects to suspend
payment of such Interest in accordance with Section 2.8 hereof;
provided that (i) Interest on the outstanding Principal Amount
hereof after any Redemption Date and (ii) Interest on any overdue
Interest, shall accrue (to the extent lawful) at the rate of
Interest applicable to the Securities. Interest payable on each
Interest Payment Date will be calculated on the basis of a 360-day
year of twelve 30-day months, and will accrue from and including the
immediately preceding Interest Payment Date (or the Issue Date, with
respect to Interest payable on September 3, 2005), to but excluding
the relevant Interest Payment Date (each such period, an "INTEREST
PERIOD").
(b) Subject to Section 9.2(a), if the Issuer has affirmatively elected
to qualify the Securities as Tier I Capital, Interest shall be paid
out of the Distributable Profits of the Issuer.
2.8 Limitation on Obligation to Make Interest Payments
(a) Interest on the Securities will not be due and payable and will not
accrue or accumulate if:
(i) the Issuer determines that it is, or if such Interest payment
would result in it being, in non-compliance with applicable
capital regulations relating to the Issuer's required net
worth (Patrimonio Liquido Exigido);
(ii) the Central Bank or any applicable Governmental Authority
otherwise determines that such Interest payment may not be
made;
(iii) certain insolvency or bankruptcy events as described in
Article 11 occur;
-20-
(iv) certain defaults as described in Article 11 occur; or
(v) the Issuer elects to suspend the accrual of Interest.
In the case of a suspension of accrual in subclause (i) though (iv)
above, the Issuer will not be subject to the provisions of Section
4.2. The suspension of accrual of Interest upon the occurrence of
subclause (v) above is subject to and contingent upon the Issuer's
compliance with Section 4.2. In the event of a suspension of accrual
of Interest, Interest shall not accumulate and shall not be deemed
due and payable under the terms of the Securities.
(b) Notice of Suspension of Payment
The Issuer shall give prior notice to the Securityholders, in
accordance with Section 4.4 and 12.4 of any Interest Payment Date or
Redemption Date on which, pursuant to Section 2.8(a), interest will
not be paid and setting forth the basis for such non-payment in
reasonable detail; provided always that any failure by the Issuer to
comply with its obligations to notify the Securityholders in
accordance with the Indenture shall not affect the obligation of the
Issuer to pay any amount when due and payable in accordance with the
provisions of this Indenture and the Securities.
2.9 Record Date
The Trustee may treat the Person in whose name any Security is registered
on the applicable Record Date as the Securityholder for all purposes under
this Indenture.
2.10 Issuance
The Initial Securities shall be issued only in a transaction or
transactions exempt from registration under the Securities Act to
permitted Persons or entities pursuant to Rule 144A and/or Regulation S
under the Securities Act. The Securities shall be subject to restrictions
on transfer and resale as provided in Section 2.13.
2.11 Denominations, etc.
The Securities shall be issued only in fully registered form, without
coupons and as otherwise provided herein. Subject to Section 2.2(b),
Securities shall be issued in the form of beneficial interests in one or
more Restricted Global Security in denominations of U.S.$2,000 and
integral multiples of U.S.$1,000 in excess thereof. Beneficial interests
in any Global Security shall be shown on, and transfers thereof shall be
effected only through, the book-entry records maintained by DTC and its
participants. Securities issued in physical, certificated form shall not
be permitted to be traded through the facilities of DTC except in
connection with a transfer of a Security in certificated form to a
transferee that takes delivery in the form of beneficial interests in a
Global Security
-21-
pursuant to Rule 144A or Regulation S, as the case may be, or in the form
of a beneficial interest in the Exchange Security held in global
registered form.
2.12 Execution of Securities
The Securities shall be executed on behalf of the Issuer by one of its
Authorized Representatives. The signature of any such officers on the
Securities may be manual or facsimile. Securities bearing the manual or
facsimile signatures of individuals who were, at the time such signatures
were affixed, the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities. In accordance
with the Registration Rights Agreement, the Issuer will execute Exchange
Securities in exchange for Initial Securities for authentication and
delivery by the Trustee pursuant to Section 2.3(a).
2.13 Registration; Restrictions on Transfer
(a) The Issuer shall cause to be kept at the Corporate Trust Office of
the Security Registrar a register which, subject to such reasonable
regulations as the Issuer may prescribe, shall provide for the
registration of Securities and for the registration of transfers and
exchanges of Securities. This register and, if there shall be more
than one Security Registrar, the combined registers maintained by
all such Security Registrars, are herein sometimes referred to as
the "SECURITY REGISTER". The Trustee is hereby appointed the initial
Security Registrar for the purpose of registering Securities and
transfers and exchanges of Securities as herein provided. Upon any
resignation or removal of the Security Registrar, the Issuer shall
promptly appoint a successor, or in the absence of such appointment,
assume the duties of such Security Registrar. The Issuer may appoint
one or more co-registrars.
(b) If a Person other than the Trustee is appointed by the Issuer as
Security Registrar, the Issuer will give the Trustee prompt written
notice of the appointment of a Security Registrar and of the
location, and any change in the location of the Security Register,
and the Trustee shall have the right to inspect the Security
Register at all reasonable times and to obtain copies thereof, and
the Trustee shall have the right to rely upon such Security Register
as to the names and addresses of the Securityholders and the
principal amounts and numbers of such Securities.
(c) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless: (i)
such Depositary notifies the Issuer that it is unwilling or unable
to continue as a depositary for such Global Security or if at any
time such Depositary ceases to be a clearing agency registered under
the Exchange Act; (ii) the Issuer in its
-22-
discretion at any time determines not to have all the Securities
represented by such Global Security; (iii) there shall have occurred
and be continuing a Payment Default with respect to the Securities
represented by such Global Security; or (iv) upon any winding-up,
insolvency, dissolution or liquidation of the Issuer. If the Issuer
receives a notice of the kind specified in subclause (i) of this
clause (c) or has delivered an Issuer Order to the effect specified
in subclause (ii) of this clause (c), it may, in its sole
discretion, designate a successor Depositary for such Global
Security within 60 (sixty) days after receiving such notice or
delivery of such order, as the case may be. If the Issuer designates
a successor Depositary as aforesaid, such Global Security shall
promptly be exchanged in whole for one or more other Global
Securities registered in the name of the successor Depositary,
whereupon such designated successor shall be the Depositary for such
successor Global Security or Global Securities and the provisions of
this Section concerning Global Securities shall continue to apply
thereto.
(d) Upon the occurrence of any of the events in clause (c) above, the
Trustee shall, by forwarding any notice received from the Issuer to
DTC, Euroclear or Clearstream, Luxembourg, be deemed to have
notified all Persons who hold a beneficial interest in the relevant
Global Security through participants in DTC, Euroclear or
Clearstream, Luxembourg or beneficial owners through participants in
DTC, Euroclear or Clearstream, Luxembourg of the availability of
definitive Securities. Upon surrender of the relevant Global
Security and receipt of instructions for re-registration, the
Security Registrar will exchange the relevant Global Security for an
equal aggregate principal amount of definitive Securities.
(e) Notwithstanding any other provision of this Indenture or the
Securities, transfers and exchanges of Restricted Securities and
Regulation S Securities or beneficial interests therein, as the case
may be, shall be made only in accordance with this Section 2.13(e):
(i) If the owner of a beneficial interest in the Restricted Global
Security wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a
beneficial interest in the Regulation S Global Security, such
transfer may be effected only in accordance with the
provisions of this clause (e)(i) and clause (e)(vii) below and
subject to the Applicable Procedures. Upon receipt by the
Security Registrar, of (A) a written order given by an Agent
Member of DTC directing that a beneficial interest in the
Regulation S Global Security in a specified principal amount
be credited to a specified Agent Member's account with DTC,
and that a beneficial interest in the Restricted Global
Security in an equal principal amount be debited from a
specified Agent Member's account with DTC and (B) a Regulation
S Certificate (a "REGULATION S CERTIFICATE") in the form set
forth in Exhibit D, and duly executed by the Agent Member
owner of such beneficial interest in the Restricted Global
Security or his attorney duly authorized in writing, then the
Security Registrar, but subject to
-23-
clause (e)(vii) below, shall reduce the principal amount of
the Restricted Global Security and increase the principal
amount of the Regulation S Global Security by such specified
principal amount as provided in Section 2.5(g). Any beneficial
interest in the Restricted Global Security that is transferred
to a Person that takes delivery in the form of a beneficial
interest in the Regulation S Global Security will, upon
transfer, cease to be an interest in the Restricted Global
Security and will become an interest in the Regulation S
Global Security subject to all transfer restrictions and other
procedures applicable to beneficial interests in the
Regulation S Global Security. "APPLICABLE PROCEDURES" means,
with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and
procedures of DTC, Euroclear and Clearstream, Luxembourg, in
each case to the extent applicable to such transaction and as
in effect from time to time.
(ii) If the owner of a beneficial interest in the Regulation S
Global Security wishes at any time to transfer such interest
to a Person who wishes to take delivery thereof in the form of
a beneficial interest in the Restricted Global Security, such
transfer may be effected only in accordance with this clause
(e)(ii) and subject to the Applicable Procedures. Upon receipt
by the Security Registrar of (A) a written order given by an
Agent Member of DTC directing that a beneficial interest in
the Restricted Global Security in a specified principal amount
be credited to a specified Agent Member's account with DTC and
that a beneficial interest in the Regulation S Global Security
in an equal principal amount be debited from a specified Agent
Member's account with DTC and (B) if such transfer is to occur
during (but only during) the Distribution Compliance Period, a
Restricted Securities Certificate (a "RESTRICTED SECURITIES
CERTIFICATE") in the form set forth in Exhibit E, and duly
executed by the Agent Member owner of such beneficial interest
in the Regulation S Global Security or his attorney duly
authorized in writing (accompanied, in the case of a transfer
under an exemption from the registration requirements under
the Securities Act other than pursuant to Rule 144A or Rule
144 under the Securities Act, by an opinion of counsel stating
that such exemption is available to the transferor), then the
Security Registrar shall reduce the principal amount of the
Regulation S Global Security and increase the principal amount
of the Restricted Global Security by such specified principal
amount as provided in Section 2.5(g). Any beneficial interest
in the Regulation S Global Security that is transferred to a
Person that takes delivery in the form of a beneficial
interest in the Restricted Global Security will, upon
transfer, cease to be an interest in the Regulation S Global
Security and will become an interest in the Restricted Global
Security subject to all transfer restrictions and other
procedures applicable to beneficial interests in the
Restricted Global Security.
-24-
(iii) In the event that a Global Security is exchanged for
definitive Securities pursuant to Section 2.13(c), or, a
definitive Security is exchanged for another such definitive
Security, or a definitive Security is exchanged for a
beneficial interest in a Global Security, such Securities or
interests therein may be exchanged or transferred for one
another only in accordance with such procedures as are
substantially consistent with the provisions of clauses (i)
through (ii) above as may be from time to time adopted by the
Issuer and the Trustee.
(f) All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same security and
benefits under this Indenture and the Securities, as the Securities
surrendered upon such registration of transfer or exchange.
(g) Every Security in definitive form presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer or exchange in form
satisfactory to the Issuer and the Security Registrar or any
transfer agent, duly executed by the Securityholder thereof or such
Securityholder's attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Issuer shall, subject
to the other terms and conditions of this Article 2, execute, and
the Trustee shall authenticate, Global Securities and Securities in
definitive form at the Security Registrar's request.
(h) No service charge shall be required of any Securityholders
participating in any transfer or exchange of Securities in respect
of such transfer or exchange, but the Security Registrar may require
payment of a sum sufficient to cover any Tax that may be imposed in
connection with any transfer or exchange of Securities, other than
exchanges pursuant to Section 2.13(c) not involving any transfer.
(i) The Security Registrar shall not be required (x) to issue, register
the transfer of or exchange any Security during a period beginning
at the opening of business 15 days before the day of the mailing of
a notice of redemption of Securities selected for redemption under
Section 4.4 and ending at the close of business on the day of such
mailing or (y) to issue, register the transfer of or exchange any
Security so selected for redemption in whole or (z) to issue,
register the transfer of or exchange any Security during any period
designated in the text of such Security as a period during which
such issuance, registration for transfer or exchange need not be
made.
(j) If Securities are issued upon the transfer, exchange or replacement
of Securities not bearing a Restrictive Legend, the Securities so
issued shall not bear a Restrictive Legend. If Securities are issued
upon the transfer, exchange or replacement of Securities bearing a
Restrictive Legend, or if a request is made to remove the
Restrictive Legend on a Security, the Securities so issued shall
bear a
-25-
Restrictive Legend, or the Restrictive Legend shall not be removed,
as the case may be, unless (i) such Securities are exchanged in an
exchange offer registered under the Securities Act pursuant to which
Securities originally issued pursuant to an exemption from the
Securities Act are exchanged for Securities of like principal amount
not bearing a Restrictive Legend, including, without limitation, the
exchange of Exchange Securities for Initial Securities in accordance
with the Registration Rights Agreement, (ii) such Securities are
otherwise sold under an effective registration statement under the
Securities Act, (iii) such Securities are issued upon the transfer,
exchange or replacement of Securities bearing the Restrictive Legend
applicable to Regulation S Securities provided for in Exhibit A(2)
hereto and the Distribution Compliance Period has expired, or (iv)
there is delivered to the Issuer such satisfactory evidence, which
may include an Unrestricted Securities Certificate, the form of
which is attached as Exhibit F, and an opinion of independent legal
counsel in the State of New York, as may be reasonably required by
the Issuer that neither the Restrictive Legend nor the restrictions
on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A, Rule 144 or
Regulation S under the Securities Act or that such Securities are
not "restricted securities" within the meaning of Rule 144 under the
Securities Act. Upon provision of such satisfactory evidence, the
Trustee, at the direction of the Issuer, shall authenticate and
deliver a Security that does not bear the Restrictive Legend. The
Issuer agrees to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense, including the fees and
expenses of counsel, reasonably incurred, arising out of or in
connection with actions taken or omitted by the Trustee in reliance
upon such legal opinion and the delivery of a Security that does not
bear a Restrictive Legend.
(k) The transfer and exchange of beneficial interests in a Global
Security for beneficial interests in another Global Security, of
Securities in definitive form for beneficial interests in a Global
Security or of beneficial interests in a Global Security for
Securities in definitive form shall be effected in accordance with
the Applicable Procedures. In connection with such a transfer, the
Security Registrar, DTC, Euroclear or Clearstream, Luxembourg may
require the transferor to deliver, in addition to any other
documents required to be delivered pursuant to this Article 2, a
written order in accordance with the Applicable Procedures
containing information regarding the Agent Member's account to be
credited with a beneficial interest in the applicable Global
Security and/or the Agent Member's account to be debited in an
amount equal to the beneficial interest in the Global Security being
transferred, as the case may be.
2.14 Mutilated, Destroyed, Lost and Stolen Securities
(a) If (i) any mutilated or defaced Security is surrendered to the
Trustee, or the Issuer and the Security Registrar and the Trustee
receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and (ii) there is delivered to the
-26-
Issuer, the Security Registrar and the Trustee evidence to their
satisfaction of the ownership and authenticity thereof, and such
security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Issuer, the
Security Registrar or the Trustee that such Security has been
acquired by a bona fide purchaser, the Issuer shall execute and upon
the Issuer's request the Trustee shall authenticate and make
available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security of
like tenor, interest rate and principal amount, bearing a number not
then outstanding and registered in the same manner. If, after the
delivery of such new Security, a bona fide purchaser of the original
Security in lieu of which such new Security was issued presents for
payment such original Security, the Issuer and the Trustee shall be
entitled to recover such new Security from the Person to whom it was
delivered or any Person taking therefrom, except a bona fide
purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost
or expenses incurred by the Issuer or the Trustee in connection
therewith.
(b) Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become
due and payable on a Redemption Date, the Issuer, upon satisfaction
of the conditions set forth in clauses (i) and (ii) of clause (a)
hereof and subject to the prior consent of the Central Bank of
Brazil, if required, may, instead of issuing a new Security, pay
such Security.
(c) Upon the issuance of any new Security under this Section 2.14, the
Issuer may require the payment of a sum sufficient to cover any Tax
that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee reasonably incurred)
connected therewith.
(d) Every new Security issued pursuant to this Section 2.14 in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and
all other Securities duly issued hereunder.
(e) The provisions of this Section 2.14 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
2.15 Payments
(a) The Issuer hereby acknowledges and confirms that it is and at all
times shall remain absolutely and unconditionally obligated to pay
all amounts due and
-27-
owing by the Issuer hereunder and under the Indenture or the
Securities, as the same shall become due and owing in accordance
with the terms thereof.
(b) So long as any of the Securities remain Outstanding, the Issuer will
maintain one or more agents in the Borough of Manhattan in New York
City to whom (i) the Securities may be presented for payment and
(ii) the Securities may be presented for exchange, transfer,
redemption or registration of transfer as provided in this Indenture
and (iii) where notices to and demands upon the Issuer in respect of
the Indenture and the Securities may be served. The Issuer may have
one or more additional Paying Agents. Unless otherwise specified,
the Issuer hereby initially designates the Corporate Trust Office as
the office to be maintained by it for each such purpose and where
the Security Register will be maintained. If the Issuer shall fail
to so designate or maintain any such office or agency or shall fail
to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office. Principal or Interest on any
Security that is payable on any Interest Payment Date or Redemption
Date as provided herein shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business, New York City time, on the Record Date for
such payment. Payment of principal of and interest on the Securities
shall be made at the Place of Payment payable as provided herein.
Payments in respect of Global Securities will be made by wire
transfer of immediately available funds to the accounts of, or to
the order of DTC. No Securities need be surrendered in order to
receive payment of principal, interest or other amounts as provided
herein, except in connection with a redemption of the Securities
pursuant to Section 3.
(c) Subject to the foregoing provisions of this Section 2.15, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
(d) Claims against the Issuer (if any) for payment in respect of the
Securities shall be prescribed and become void unless made within a
period of six years from the appropriate payment date thereof.
2.16 Additional Amounts
(a) All payments in respect of the Securities will be made free and
clear of and without withholding or deduction for or on account of
any present or future taxes or duties of whatever nature imposed or
levied by or on behalf of Brazil or the Cayman Islands or, in the
event that the Issuer appoints additional paying agents, by the
jurisdictions of such additional paying agents (each, a "TAXING
JURISDICTION") or any political subdivision thereof or any authority
or agency therein or thereof having power to tax, unless the
withholding or deduction of such taxes or duties is required by law
or the official interpretation thereof, or by
-28-
the administration thereof. In that event, the Issuer shall pay such
additional amounts ("ADDITIONAL AMOUNTS") as may be necessary in
order that the net amounts receivable by the holder of any Security
after such withholding or deduction shall equal the respective
amounts which would have been receivable by such holder in the
absence of such withholding or deduction; except that no such
Additional Amounts shall be payable in respect of payment in respect
of any Security:
(i) to the extent that such taxes or duties are imposed or levied
by reason of such holder (or the beneficial owner) having some
connection with the Taxing Jurisdiction other than the mere
holding (or beneficial ownership) of such Security;
(ii) to the extent that such taxes or duties are imposed on, or
measured by, net income of the holder (or beneficial owner);
(iii) in respect of which the holder (or beneficial owner) fails to
comply with any certification, identification or other
reporting requirement concerning its nationality, residence,
identity or connection with the Taxing Jurisdiction if (1)
compliance is required by applicable law, regulation,
administrative practice or treaty as a precondition to
exemption from all or a part of the taxes, (2) the holder (or
beneficial owner) is able to comply with those requirements
without undue hardship and (3) the Issuer has given all
holders at least 30 days prior notice that they will be
required to comply with such requirements;
(iv) in respect of which the holder (or beneficial owner) fails to
surrender (where surrender is required) its Security for
payment within 30 days after the Issuer has made available a
payment of principal or interest provided that the Issuer will
pay Additional Amounts to which a holder would have been
entitled had the Security been surrendered on any day
(including the last day) within such 30-day period;
(v) to the extent that such taxes or duties are imposed by reason
of any estate, inheritance, gift, value added, use or sales
tax or any similar taxes, assessments or other governmental
charges;
(vi) 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
26-27 November 2000 or any law implementing or complying with,
or introduced in order to conform to, such Directive; or
-29-
(vii) by or on behalf of a Securityholder who would have been able
to avoid such withholding or deduction by presenting the
relevant Security to another Paying Agent in a Member State of
the European Union.
Any reference to payments on the Securities shall be deemed also to
include the payment of any Additional Amounts. However, no holder of a
Security shall be entitled to receive any Additional Amounts greater than
the amounts necessary in order that the net amounts receivable by such
holder after such withholding or deduction equal the respective amounts
which would have been receivable by such holder in the absence of such
withholding or deduction, subject to the exceptions above.
(b) The Issuer will (i) make such withholding or deduction on its
payments of principal and interest on the Securities as required by
the relevant Taxing Jurisdiction and (ii) remit the full amount
withheld or deducted to the relevant taxing authority in accordance
with applicable law. The Issuer will furnish to the Trustee, within
30 days after the date of payment of any such Taxes due pursuant to
applicable law, certified copies of tax receipts or, if such
receipts are not obtainable, documentation evidencing such payment.
Upon request, copies of such receipts or other documentation, as the
case may be, will be made available to the Securityholders.
(c) At least 10 Business Days prior to the first Interest Payment Date
for the Securities, and, if there has been any change with respect
to the matters set forth in the below-mentioned certificate at least
10 Business Days prior to each Interest Payment Date for the
Securities, the Issuer shall furnish to the Trustee an Officers'
Certificate instructing the Trustee as to any circumstances in which
payments of principal of or interest on the Securities (including
Additional Amounts) due on such date shall be subject to deduction
or withholding for or on account of any Taxes and the rate of any
such deduction or withholding and certifying that the Issuer shall
pay all amounts required to be deducted or withheld to the
appropriate governmental authority. The Issuer covenants to
indemnify the Trustee and any other Paying Agents for, and to hold
each harmless against, any loss, liability or expense reasonably
incurred without negligence, bad faith or willful misconduct on
their part, arising out of or in connection with actions taken or
not taken by any of them in reliance on any certificate furnished to
them pursuant to this paragraph or the failure to furnish any such
certificate. The obligations of the Issuer under the preceding
sentence shall survive the resignation or removal of the Trustee,
the Security Registrar or any Paying Agent, payment of the
Securities and the termination of this Indenture for a period of
three years after the redemption and payment in full of the
Securities. Any certificate required by this Section to be provided
to the Trustee and any other Paying Agent shall be deemed to be duly
provided if telecopied to the Trustee and such other Paying Agent.
Upon request, the Issuer shall provide the Trustee with
documentation reasonably satisfactory to the Trustee evidencing the
payment of taxes in respect of which the Issuer has paid any
Additional Amounts. Copies of
-30-
such documentation shall be made available by the Trustee to the
Securityholders or the other Paying Agents, as applicable, upon
request therefor.
(d) The Issuer shall promptly pay when due any present or future stamp,
administrative, court or documentary taxes or any other excise or
property taxes, charges or similar levies that arise in a Taxing
Jurisdiction from the execution, delivery, enforcement or
registration of each Security or any other document or instrument
referred to herein or therein. The Issuer shall indemnify and make
whole the Securityholders for any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies payable by the Issuer as provided in this clause (d)
paid by such Securityholders.
(e) All references in this Indenture to principal, interest, and other
amounts payable hereunder shall be deemed to include references to
any Additional Amounts payable under this Section with respect to
such principal, interest, or other amounts. The foregoing
obligations shall survive any termination of the Trustee or
discharge of the Securities and this Indenture.
(f) If the Issuer shall at any time be required to pay Additional
Amounts to Securityholders pursuant to the terms of this Indenture,
the Issuer will use its reasonable efforts to obtain an exemption
from the payment of (or otherwise avoid the obligation to pay) the
Tax which has resulted in the requirement that it pay such
Additional Amounts.
(g) The Issuer agrees that, if the conclusions of the ECOFIN Council
meeting of November 26-27, 2000 are implemented, it will maintain a
paying agent in an EU member state that will not be obligated to
withhold or deduct tax pursuant to the Directive.
2.17 Persons Deemed Owners
Prior to due presentment of a Security for registration of transfer, the
Person in whose name any Security is registered shall be deemed to be the
owner of such Security for the purpose of receiving payment of principal
of and interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, regardless of any notice to
anyone to the contrary.
2.18 Cancellation
All Securities surrendered for payment, redemption, registration of
transfer or exchange or deemed lost or stolen shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee for
cancellation and may not be reissued or sold. The Issuer may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Issuer may have acquired
in any manner whatsoever. All Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall
-31-
be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be held by the Trustee
in accordance with its standard retention policy, unless the Issuer shall
direct by an Issuer Order that they be returned to it.
2.19 Securityholder Lists
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of Securityholders and shall otherwise comply with Section
312(a) of the Trust Indenture Act. If the Trustee is not the Security
Registrar, or to the extent otherwise required under the Trust Indenture
Act, the Issuer shall furnish to the Trustee, in writing at least seven
Business Days before each Interest Payment Date and at such other times as
the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders, and the Issuer shall otherwise comply with Section 312(a)
of the Trust Indenture Act.
2.20 Temporary Securities
Until certificates representing Securities are ready for delivery, the
Issuer may prepare and the Trustee, upon receipt of an Issuer Order, shall
authenticate temporary Securities. Temporary Securities shall be
substantially in the form of certificated Securities but may have
variations that the Issuer considers appropriate for temporary Securities
and as shall be reasonably acceptable to the Trustee; provided always that
such variations shall relate only to the forms of the Securities and not
to the terms of subordination of the Securities. Without unreasonable
delay, the Issuer shall prepare and the Trustee shall authenticate
certificated Securities in exchange for temporary Securities. Holders of
temporary Securities shall be entitled to all the benefits of this
Indenture.
2.21 CUSIP Numbers
The Issuer in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Securityholders; provided that
any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of
such numbers. The Issuer will promptly notify the Trustee in writing of
any change in the "CUSIP" numbers.
-32-
3. REDEMPTION
3.1 Repurchase of Securities
Subject to the prior approval of the Central Bank of Brazil, if required,
the Issuer may purchase on the open market at any time Securities in any
manner and at any price provided that such securities are promptly
tendered to the Trustee for cancellation. Upon cancellation, such
Securities will no longer be considered part of the Issuer's capital.
3.2 Optional Redemption After the First Call Date
(a) The Securities are perpetual securities and have no fixed maturity
date or mandatory redemption date.
(b) The Securities may be redeemed only by the Issuer at its option,
with the prior approval by the Central Bank of Brazil, if then
required, in whole but not in part, on the First Call Date, or any
Interest Payment Date occurring thereafter, at a redemption price
equal to the Base Redemption Price.
3.3 Optional Redemption in the Event of Change in Tax Treatment or Regulatory
Event
(a) Subject to obtaining regulatory approval, at any time prior to the
First Call Date, the Securities may be redeemed at the election of
the Issuer, in whole, but not in part, at the Base Redemption Price
at any time upon the occurrence of a Tax Event by giving of notice
as provided in Section 3.5, solely if (i) the Issuer certifies to
the Trustee in writing immediately prior to the giving of such
notice that it has or will become obligated to pay Additional
Amounts with respect to the Securities in excess of the Additional
Amounts which the Issuer would be obliged to pay if payments of
interest under the Securities were subject to withholding or
deduction at a rate of 15% as a result of any generally applicable
change in or amendment to the laws or regulations of a Taxing
Jurisdiction, or any generally applicable change in the application
or official interpretation of such laws or regulations, which change
or amendment, in each case, occurs after the date or issuance of any
of the Securities, (ii) such obligation cannot be avoided by the
Issuer taking reasonable measures available to it and (iii) the
Central Bank of Brazil has approved such redemption; provided,
however, that no such notice of redemption shall be given earlier
than 60 days prior to the earliest date on which the Issuer would be
obligated to pay such Additional Amounts, if a payment in respect of
the Securities were then due. Prior to the giving of any notice of
redemption of the Securities pursuant to this Section 3.2, the
Issuer shall deliver to the Trustee an Officers' Certificate,
stating that the Issuer is entitled to effect such a redemption
pursuant to this Indenture, and setting forth in reasonable detail a
statement of the facts giving rise to such right of redemption.
Concurrently, the Issuer will deliver to the Trustee a written
Opinion of Counsel, in form an substance satisfactory to the
Trustee, stating, among other things, that the Issuer
-33-
has become obligated to pay such Additional Amounts as a result of a
change or amendment described in this Section 4.2 and that the
Issuer cannot avoid payment of such Additional Amounts by taking
reasonable measures available to it and that all governmental
approvals necessary for the Issuer to effect such redemption have
been obtained and are in full force and effect or specifying any
such necessary approvals that as of the date of such opinion have
not been obtained.
(b) Subject to obtaining regulatory approval, the Securities may be
redeemed at the election of the Issuer, as a whole, but not in part,
at a price equal to the greater of the Base Redemption Price and the
Make-Whole Amount at any time upon the giving of notice as provided
in Section 3.5, solely if (i) the Issuer certifies to the Trustee in
writing immediately prior to the giving of such notice that a
Regulatory Event has occurred, and (ii) the Central Bank of Brazil
has approved such redemption; provided, however, that no such notice
of redemption shall be given earlier than 60 days prior to the
earliest date on which the Regulatory Event is effective. Prior to
the giving of any notice of redemption of the Securities pursuant to
this Section 3.3, the Issuer shall deliver to the Trustee an
Officers' Certificate, stating that the Issuer is entitled to effect
such a redemption pursuant to this Indenture, and setting forth in
reasonable detail a statement of the facts giving rise to such right
of redemption. Concurrently, the Issuer will deliver to the Trustee
a written Opinion of Counsel, in form and substance satisfactory to
the Trustee, stating, among other things, that a Regulatory Event
has occurred and that all governmental approvals necessary for the
Issuer to effect such redemption have been obtained and are in full
force and effect or specifying any such necessary approvals that as
of the date of such opinion have not been obtained.
3.4 Redemption Date
In the event the Issuer determines to redeem the Securities as permitted
hereunder, the Issuer shall be required to specify in its notice in
accordance with Section 12.4 the proposed date of redemption (the
"REDEMPTION DATE") and shall pay to the Trustee (on behalf of the
Securityholders) on the Redemption Date the Base Redemption Price or the
Make-Whole Amount, as applicable. The Securities shall not be deemed
repaid and cancelled unless and until the Trustee shall have received the
Base Redemption Price or Make-Whole Amount, as applicable.
3.5 Notice of Redemption
Notice of redemption contemplated by Section 3.3 shall be given by the
Issuer to the Securityholders in accordance with Section 12.4 not less
than 30 nor more than 60 days prior to the proposed Redemption Date. The
Issuer shall provide the Trustee with the notice of redemption 45 days
prior to the proposed redemption (unless a shorter time period is agreed
upon). All notices of redemption shall identify the Securities to be
redeemed and state:
-34-
(i) the Redemption Date;
(ii) in reasonable detail, the calculation of the Base Redemption Price
or Make-Whole Amount, as applicable (as calculated as of the
Redemption Date);
(iii) the names and addresses of the Paying Agents;
(iv) that Securities called for redemption must be surrendered to a
Paying Agent to collect the Base Redemption Price or Make-Whole
Amount, as applicable;
(v) that on the Redemption Date the Base Redemption Price or Make-Whole
Amount, as applicable will become due and payable upon each such
Security, and that interest thereon shall cease to accrue from and
after said date; and
(vi) the CINS and/or CUSIP number, if any.
Notice of redemption shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer and
shall be irrevocable. Notices to be given to holders of a Global Security
will be given only to the Depositary in accordance with its Applicable
Procedures. Notices to be given to Securityholders not in global form will
be sent by mail to the respective addresses of the Securityholders as they
appear in the Trustee's records, and will be deemed given when mailed.
Neither the failure to give notice to a particular Securityholder, nor the
defect in a notice given to a particular Securityholder, will affect the
sufficiency of any notice given to another Securityholder.
3.6 Deposit of Base Redemption Price or Make-Whole Amount, as applicable
On the Redemption Date, the Issuer shall deposit with the Trustee an
amount of money sufficient to pay the Base Redemption Price or Make-Whole
Amount, as applicable, of all the Securities then Outstanding. The Issuer
will cause the bank through which payment on the Securities is to be made
to deliver to each Paying Agent and the Trustee by 1:00 p.m. New York
time, one Business Day (and if such date is not a business day in the
jurisdiction of any Paying Agent, on the next preceding business day in
such Paying Agent's jurisdiction) prior to the due date therefor such
irrevocable confirmation (by tested telex, facsimile, authenticated Swift
MT 100/103 Message or by such other method as agreed between the Issuer
and the Trustee) of its intention to make such payment. At least one
Business Day (and if such date is not a business day in the principal
Paying Agent's jurisdiction, on the next preceding business day in such
Paying Agent's jurisdiction) prior to the Redemption Date, the Issuer will
provide to the principal Paying Agent a notice regarding the payment by
the Issuer to the principal Paying Agent of the Base Redemption Price.
-35-
3.7 Securities Payable on Redemption Date
Notice of Redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Base Redemption Price or Make-Whole Amount, as applicable, therein
specified and from and after such date (unless the Issuer shall default in
the payment of the Base Redemption Price or Make-Whole Amount, as
applicable) such Securities shall cease to bear interest. Upon surrender
of such Securities for redemption in accordance with the notice, such
Securities shall be paid by the Issuer at the Base Redemption Price or
Make-Whole Amount, as applicable. Installments of interest due on or prior
to the Redemption Date shall be payable to the Securityholders registered
as such on the relevant Record Dates. If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal shall, until paid, bear interest from the scheduled Redemption
Date at the Stated Rate to the date that all amounts owing under the
Securities shall have been paid in full.
4. COVENANTS
For so long as the Securities remain outstanding or any amount remains
unpaid on such Securities under this Indenture, the Issuer shall comply
with the terms and covenants set forth below.
4.1 Payments of Interest
The Issuer covenants and agrees for the benefit of the Securityholders
that it will duly and punctually pay all payments on the Securities when
due and payable in accordance with the terms of this Indenture and the
Securities.
4.2 Dividend Stopper
The Issuer covenants that, if no Interest was paid when due and payable or
in the event that Interest has been suspended in accordance with clause
(v) of Section 2.8, the Issuer shall not recommend to its shareholders
and, to the fullest extent permitted by applicable law, shall otherwise
act to prevent, any action that would constitute a Restricted Payment
Event until payments on the Securities have been resumed in full for an
equivalent period of 12 months.
4.3 Ranking
The Issuer agrees that, so long as any of the Securities remain
outstanding, the Issuer will not issue any preference shares (or other
securities or instruments which are akin to preference shares as regards
distributions on a return of assets upon liquidation of the Issuer or in
respect of distribution or payment of dividends and/or any other amounts
thereunder by the Issuer) or give any guarantee or contractual support
arrangement in respect of any of the Issuer's preference shares or such
other securities or instruments or
-36-
in respect of any other entity if such preference shares, preferred
securities, guarantees or contractual support arrangements would rank (as
regards the rights of a security holder upon liquidation of the Issuer or
in respect of Interest or payment of dividends and/or any other amounts
thereunder by the Issuer) senior to the Securities, unless the Issuer
alters the terms of the Securities such that the Securities rank pari
passu with any such preference shares, such other securities or
instruments described above or such guarantees or contractual support
arrangements entered into in relation to such preference shares or such
other securities or instruments described herein.
4.4 Officers' Certificate on Suspension of Accrual of Interest.
If the Issuer elects to suspend any Interest payment in accordance with
Section 2.8, it shall deliver to the Trustee, no later than the sixteenth
Business Day prior to the relevant Interest Payment Date, an Officers'
Certificate, (a) setting out which subclause of Section 2.8 the Issuer is
relying on in order to determine that Interest is not due and payable on
the relevant Interest Payment Date, and (b) in the case of a suspension of
Interest pursuant to subclauses (i) through (iv) inclusive of Section 2.8
only, certifying that the terms of the applicable subclause have been met
on the twentieth Business Day prior to the relevant Interest Payment Date.
4.5 Statement by Officers as to Default
(a) The Issuer will deliver to the Trustee, within 120 (one hundred and
twenty) days after the end of each fiscal year of the Issuer ending
after the date hereof, an Officers' Certificate, signed by either
the chief executive, chief financial or chief accounting officer,
stating whether or not to the best knowledge of the signers thereof
the Issuer is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided
hereunder) and, if the Issuer shall be in default, specifying all
such defaults and the nature and status thereof of which they may
have knowledge.
(b) The Issuer shall deliver to the Trustee, as soon as possible and in
any event within 10 (ten) days after the Issuer becomes aware or
should reasonably become aware of the occurrence of any Payment
Default, an Officers' Certificate setting forth the details of such
Payment Default and the action which the Issuer proposes to take
with respect thereto.
4.6 Waiver of Certain Covenants
Except as otherwise provided herein, the Issuer may omit in any particular
instance to comply with any term, provision or condition set forth in any
covenant provided herein (or in any supplemental indenture) for the
benefit of the Securityholders or in Section 4.14 if, before the time for
such compliance, the Securityholders of a majority in Principal Amount of
the Outstanding Securities shall, by act of such Securityholders,
-37-
either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Issuer and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and
effect.
4.7 Use of Proceeds
The Issuer shall use the net proceeds from the offer and sale of the
Securities for its general corporate purposes.
4.8 Notice of Payment Default
The Issuer will give written notice to the Trustee (with a copy of such
notice to Moody's), promptly and in any event within ten days after the
Issuer becomes aware of the occurrence, of any Payment Default,
accompanied by an Officers' Certificate of the Issuer setting forth the
details thereof and stating what action that the Issuer proposes to take
with respect thereto.
4.9 Further Actions
The Issuer shall, at its own cost and expense, satisfy any condition or
take any action (including the obtaining or effecting of any necessary
consent, approval, authorization, exemption, filing, license, order,
recording or registration) at any time required in accordance with
applicable Laws (as applicable) to be taken, fulfilled or done in order to
(a) enable the Issuer to lawfully enter into, exercise its rights and
perform and comply with its obligations under the Indenture and the
Securities, (b) ensure that the Issuer's obligations under the Securities
and the Indenture are legally binding and enforceable, (c) make the
Securities and the Indenture admissible in evidence in the courts of the
State of New York, Brazil or the Cayman Islands and (d) enable the Trustee
to exercise and enforce its rights under and carry out the terms,
provisions and purposes of the Indenture and the Securities, (e) take any
and all actions necessary to preserve the enforceability of, and maintain
the Trustee's rights hereunder and the Securities, including, without
limitation, refraining from taking any action that reasonably can be
expected to have an adverse effect on the enforceability of, or any of the
Trustee's rights under, this Indenture and the Securities, (f) assist, to
the extent reasonably practicable, the Trustee in the Trustee's
performance of its obligations under this Indenture and the Securities.
4.10 Appointment to Fill a Vacancy in Office of Trustee
The Issuer, whenever necessary to avoid or fill a vacancy in the office of
Trustee, shall appoint in the manner provided in Section 6.8, a successor
Trustee, so that there shall at all times be a Trustee with respect to the
Securities.
-38-
4.11 Payments and Paying Agents
(a) Subject to the terms of the Indenture and the Securities, the Issuer
shall, on the due date of the principal of or interest on the
Securities or other amounts (including Additional Amounts), deposit
with the Trustee a sum sufficient to pay such principal, interest or
other amounts (including Additional Amounts) so becoming due.
(b) Whenever the Issuer shall appoint a Paying Agent other than the
Trustee with respect to the Securities, it shall cause such Paying
Agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions
of this Section:
(i) that it will hold all sums received by it as such agent for
the payment of the principal of or interest, including
Increased Interest, if any, on any Securities in trust for the
benefit of the Securityholders or of the Trustee;
(ii) that it will give the Trustee notice of any failure by the
Issuer to make any payment of the principal of or interest,
including Increased Interest, if any, on any Securities
(including Additional Amounts) and any other payments to be
made by or on behalf of the Issuer under this Indenture or the
Securities when the same shall be due and payable;
(iii) that it will pay any such sums so held in trust by it to the
Trustee forthwith upon the Trustee's written request at any
time during the continuance of the failure referred to in
clause (ii) above; and
(iv) that it will comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent.
(c) Any Paying Agent appointed must at all times be a bank having a long
term unsecured debt rating of at least "A3" by Moody's.
(d) If the Issuer shall act as its own Paying Agent with respect to any
Securities, it will, on or before each due date of the principal of
or interest, including Increased Interest, if any, on such
Securities, set aside, segregate and hold in trust for the benefit
of the Securityholders a sum sufficient to pay such principal or
interest (including Additional Amounts) so becoming due until such
amounts shall be paid to the Securityholders and the Issuer will
promptly notify the Trustee of its action or any failure to take
action.
4.12 Maintenance of Existence
The Issuer shall do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and rights
(charter and statutory) of the Issuer; provided, however, that the Issuer
shall not be required to preserve any such charter or
-39-
statutory right if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Issuer and that the loss thereof is not disadvantageous in any
material respect to the Securityholders.
4.13 Consolidation, Merger, Conveyance or Transfer
(a) The Issuer is generally permitted to merge or consolidate with or
into another company, and to sell substantially all of its assets to
another company if all of the following conditions are met:
(i) if the Issuer is not the successor company, the successor
company must expressly agree to be legally responsible for the
Securities and must be organized as a corporation,
partnership, trust, limited liability company or similar
entity, but may be organized under the laws of any
jurisdiction;
(ii) the merger, sale of assets or other transaction must not cause
a default on the Securities, and the Issuer must not already
be in default, unless the merger or other transaction would
cure the default. For purposes of this no-default test, a
default would include, but is not limited to a Payment Default
that has occurred and not been cured; and
(iii) either the Issuer or the successor Person shall have delivered
to the Trustee an Officers' Certificate and an Opinion of
Counsel, stating that such consolidation, merger, sale,
conveyance or lease and such supplemental indenture comply
with this Section 4.13 and that all conditions precedent
herein provided for relating so such transaction have been
complied with
(b) If the conditions described above are satisfied with respect to the
Securities, the Issuer will not need to obtain the approval of the
Majority Securityholders in order to merge or consolidate or to sell
its assets. Also, these conditions will apply only if the Issuer
wishes to merge or consolidate with another entity or sell its
assets substantially as an entirety to another entity. The Issuer
will not need to satisfy these conditions if it enters into other
types of transactions, including any transaction in which the Issuer
acquires the stock or assets of another entity, any transaction that
involves a change of control of the Issuer but in which does not
merge or consolidate, and any transaction in which the Issuer sells
less than substantially all its assets.
(c) If the Issuer merges, consolidates or sells its assets substantially
as an entirety, neither the Issuer nor any successor would have any
obligation to compensate holders of Securities for any resulting
adverse tax consequences relating to the Securities.
-40-
4.14 Listing
The Issuer shall make all reasonable efforts to obtain and maintain the
listing of the Securities on the Luxembourg stock exchange but, if it is
unable to do so, having made such efforts, or if the maintenance of such
listing is to be unduly onerous, the Issuer will instead make all
reasonable efforts to obtain and maintain a listing of the Securities on
another stock exchange. The Trustee hereby acknowledges that if, as a
result of the Transparency Directive or any legislation implementing the
Transparency Directive, the Issuer could be required to publish financial
information either more regularly than it otherwise would be required to
or according to accounting principles which are materially different from
the accounting principles which it would otherwise use to prepare its
published financial information, the Issuer may seek an alternative
admission to listing, trading and/or quotation for the Securities on a
different section of the Luxembourg Stock Exchange or by such other
listing authority, stock exchange and/or quotation system inside or
outside the European Union as it may decide.
4.15 Additional Information for Ratings
So long as any Securities remain outstanding, the Issuer shall:
(a) so far as permitted by law, at all times give Moody's, for so long
as Xxxxx'x is rating the Securities, such information as it shall
reasonably request in order that it may perform its function as a
rating agency in respect of the Securities;
(b) inform Moody's, for so long as Xxxxx'x is rating the Securities, as
soon as reasonably practicable of any amendments or modifications
that have been or are proposed to be made to this Indenture; and
(c) in addition to copies of notices specifically referred to herein,
send a copy to Moody's, for so long as Xxxxx'x is rating the
Securities, of all notices sent by it to the Trustee under the terms
of this Indenture, other than routine notices.
5. PAYMENT DEFAULT AND REMEDIES
5.1 Payment Default
(a) A "PAYMENT DEFAULT" occurs if the Issuer fails to pay or set aside
for payment the amount due to satisfy any payment on the Securities
when due, and such failure continues for a period of 14 days. If the
Issuer has suspended Interest in accordance with the terms of the
Securities, such Interest will not accrue and be due and payable and
non-payment will not be a Payment Default. If a Payment Default
occurs and is continuing regarding the Securities, the Trustee may,
or if for any reason the Trustee is unwilling or unable to do so,
then the holders of the Securities may, to the fullest extent
permitted by applicable law, institute bankruptcy proceedings
against the Issuer in any state or federal court in Xxx
-00-
Xxxx Xxxxx, any court in the Cayman Islands, or any court in Brazil, but
may not declare the Principal Amount of any outstanding Securities to be
due and payable or pursue any other legal remedy, including commencing a
judicial proceeding for the collection of the sums due and unpaid.
(b) If (a) by the earlier of: (i) 180 (one hundred and eighty days) days
after the occurrence of a Payment Default; or (ii) 20 (twenty) days
prior to such date as a court of competent jurisdiction shall have
specified as the last date for filing of claims by creditors in any
bankruptcy or similar proceeding relating to the Issuer, its assets
or creditors the Trustee has not instituted bankruptcy proceedings
against the Issuer pursuant to the preceding sentence of this
Section 5.1; (b) the Trustee has notified any Securityholders that
it is unable or unwilling to institute such proceedings; or (c) a
court of competent jurisdiction has determined that the Trustee is
not permitted to pursue the remedies provided in clause (a) of this
Section on behalf of the Securityholders, then, any Securityholder
may pursue the remedies provided by this Section 5.1; provided,
however, that the Trustee's failure to institute such proceedings
shall not be attributable solely to the failure by Securityholders
to offer the Trustee indemnity reasonably satisfactory to it against
the costs, expenses and liabilities to be incurred in connection
with such proceedings. It being understood and intended that no
Securityholder shall have any right in any manner by virtue of, or
by availing of, any provision hereof to affect, disturb or prejudice
the rights of any other Securityholder, or to obtain or to seek to
obtain priority or preference over any other Securityholder or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all
Securityholders.
5.2 Suits For Enforcement
If a default in the performance, or breach, of any covenant, warranty or
agreement of the Issuer in this Indenture (other than a Payment Default)
has occurred and is continuing for a period of 60 (sixty) days after there
has been given, by registered or certified mail, to the Issuer by the
Trustee or to the Issuer and the Trustee by the Securityholders of at
least 25% in principal amount of the Outstanding Securities a written
notice specifying such default or breach and requiring it to be remedied
and such default or breach has not been remedied, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Securityholders by such appropriate judicial proceedings as the Trustee
shall deem most effective to protect and enforce any such rights, whether
for the specific enforcement of any covenant, warranty or agreement in
this Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy. It being understood that under this
Section 5.2 the Trustee may not institute bankruptcy proceedings against
the Issuer, declare the Principal Amount of any Outstanding Securities to
be due and payable, or commence a judicial proceeding for the collection
of sums due and unpaid.
-42-
5.3 Trustee May File Proofs of Claim
In case of any judicial proceeding relative to the Issuer, its property or
its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the
Securityholders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any
moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Securityholder to make such
payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Securityholders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.5.
5.4 Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Securityholders in
respect of which such judgment has been recovered.
5.5 Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal and
any Interest and other amounts due and payable under this Indenture and
the Securities, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof
if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.5;
and
SECOND: Subject to Article 11, to the payment of the amounts then due and
unpaid for principal of and any Interest and other amounts due and payable
on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, Interest and any other amounts under this Indenture and the
Securities, respectively.
-43-
5.6 Limitation on Suits
(a) No Securityholder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) such Securityholder has previously given written notice to the
Trustee of a continuing default (other than a Payment Default)
in the performance, or breach, of any covenant, warranty or
agreement of the Issuer in this Indenture;
(ii) the Securityholders of not less than 25% in aggregate
Principal Amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in
respect of such default or breach in its own name as Trustee
hereunder;
(iii) such Securityholder or Securityholders have offered to the
Trustee indemnity reasonably satisfactory to it against the
costs, expenses and liabilities to be incurred in compliance
with such request;
(iv) the Trustee for 60 (sixty) days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60 (sixty) day period by the
Securityholders of a majority in aggregate Principal Amount of
the Outstanding Securities;
it being understood and intended that no Securityholder shall have any
right in any manner by virtue of, or by availing of, any provision hereof
to affect, disturb or prejudice the rights of any other Securityholder, or
to obtain or to seek to obtain priority or preference over any other
Securityholder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all
Securityholders. The provisions of this Section 5.6 shall not apply to the
institution of bankruptcy proceedings against the Issuer in accordance
with Section 5.1.
5.7 Unconditional Right of Securityholders to Receive Payments When Due
Notwithstanding any other provision in this Indenture, subject to
applicable law, Securityholders shall have the right, which is absolute
and unconditional, to receive payments on the Securities when such
payments are due and payable and such right shall not be impaired without
the consent of such Securityholder.
5.8 Restoration of Rights and Remedies
If the Trustee or any Securityholder has instituted any proceeding to
enforce any right or remedy hereunder and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Securityholder, then
-44-
and in every such case, subject to any determination in such proceeding,
the Issuer, the Trustee and the Securityholders shall be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Securityholders
shall continue as though no such proceeding had been instituted.
5.9 Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 2.14 hereof, no right or remedy herein conferred upon or reserved
to the Trustee or to the Securityholders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
5.10 Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Securityholder to exercise
any right or remedy accruing upon any Payment Default shall impair any
such right or remedy or constitute a waiver of any such Payment Default or
an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Securityholders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Securityholders, as the case may be.
5.11 Control by Securityholders
Holders of 25% of the aggregate principal amount of the Securities shall
have at all times the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities, provided that:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture;
(b) the Trustee does not determine that the action would be unjustly
prejudicial to any Securityholders not taking part in such
direction;
(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(d) such Securityholders have offered to the Trustee indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request.
-45-
5.12 Waiver of Past Defaults
The Majority Securityholders may, by giving written consent on behalf of
the Securityholders of all the Securities, waive any past default
hereunder and its consequences, except:
(a) any Payment Default; or
(b) any default in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Securityholder of each Outstanding Security.
Upon any such waiver, such default shall cease to exist for every purpose
of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
5.13 Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs, including reasonable attorneys' fees and
expenses, against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided that neither this Section
nor application of the Trust Indenture Act to this Indenture shall be
deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Issuer or the Trustee.
5.14 Waiver of Usury, Stay or Extension Laws
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
5.15 No Set-Off
Subject to applicable law, each Securityholder, by accepting a Security,
and the Trustee shall be deemed to have waived any right of set-off,
counterclaim or combination of accounts with respect to the Securities or
the Indenture (or between the Issuer's obligations with respect to the
Securities and any liability owed by the Securityholder or the Trustee to
the Issuer) that they may otherwise have against the Issuer.
-46-
5.16 No Liability of Directors, Officers, Employees, Incorporators or
Stockholders
Subject to mandatory provisions of applicable law, no director, officer,
employee, incorporator, member, stockholder or authorized representative
of the Issuer, in such capacity, will have any liability for any
obligations of the Issuer under the Securities or this Indenture or for
any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Securityholder, by accepting a Security, waives and
releases all such liability. The waiver and release are deemed to be part
of the consideration for issuance of the Securities.
6. CONCERNING THE TRUSTEE
6.1 Certain Rights and Duties of Trustee
(a) The Trustee, prior to the occurrence of a Payment Default,
undertakes to perform only such duties as are specifically set forth
in this Indenture and the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Indenture against
the Trustee. The application of Section 315(a)(1) of the Trust
Indenture Act to this Indenture is expressly excluded. In case a
Payment Default has occurred and prior to the receipt of
instructions (if any) from the Securityholders, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) (i) The Trustee may conclusively rely and shall be fully protected
in acting, or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, Security, debenture or other paper or
document (whether in original or facsimile form) believed by
it in good faith to be genuine and to have been signed or
presented by the proper party or parties; provided, that in
the case of any such certificates or opinions which by the
provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture but need not verify the
contents thereof.
(ii) Any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution
of the Board of Directors shall be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant
secretary of the Issuer. Whenever in the administration of
this Indenture, the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other
-47-
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely on an
Officers' Certificate.
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture, and may
refuse to perform any duty or exercise any such rights or
powers unless it shall have been offered security or indemnity
to its reasonable satisfaction against the costs, expenses and
liabilities which may reasonably be incurred therein or
thereby.
(iv) The Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it in good
faith to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture or with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it from the Majority
Securityholders.
(v) Subject to Section 6.1(b)(i), the Trustee shall not be bound
to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal,
Security, debenture or other paper or document with respect to
the Securities unless requested in writing so to do by the
Majority Securityholders then Outstanding, provided, that, if
the payment within a reasonable time to the Trustee of the
reasonable costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture,
the Trustee shall require indemnity reasonably satisfactory to
it against such expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such investigation
shall be paid by the Issuer or, if paid by the Trustee, shall
be repaid by the Issuer upon demand.
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent, attorney custodian or
nominee appointed with due care by it hereunder.
(vii) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers
of the Trustee unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(viii) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance
with any direction of the
-48-
Issuer given under this Agreement; provided, that the
Trustee's conduct does not constitute negligence or willful
misconduct.
(ix) The Trustee shall have no obligation to invest and reinvest
any cash held pursuant to this Agreement in the absence of
timely and specific written investment direction from the
Issuer. In no event shall the Trustee be liable for the
selection of investments or for investment losses incurred
thereon. The Trustee shall have no liability in respect of
losses incurred as a result of the liquidation of any
investment prior to its stated maturity or the failure of the
Issuer to provide timely written investment direction.
(x) The Trustee shall not be deemed to have notice of any Payment
Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice
references the Securities and this indenture; provided,
however, that the Trustee shall be deemed to have actual
knowledge of the existence of any Payment Default which has
arisen pursuant to the provisions of Section 5.1(a) or (b).
(xi) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder;
and
(xii) The Trustee may request that the Issuer deliver an Officers'
Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers'
Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so
authorized in any such certificate previously delivered and
not superseded.
(c) None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if there shall be a
reasonable ground for believing that the repayment of such funds or
indemnity satisfactory to it against such liability is not
reasonably assured to it.
(d) The Trustee may consult with counsel of its selection and the
written advice or opinion of counsel shall be full and complete
authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such
advice or opinion of counsel.
-49-
(e) If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.
6.2 Trustee Not Responsible for Recitals, etc.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of the
Issuer and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not
be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds of such Securities.
6.3 Trustee and Others May Hold Securities
The Trustee or any Paying Agent or Security Registrar or any other
Authorized Agent of the Trustee, or any Affiliate thereof, in its
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Issuer, or any other obligor on
the Securities with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other Authorized Agent.
6.4 Moneys Held by Trustee or Paying Agent
(a) All moneys received by the Trustee or any Paying Agent shall, until
used or applied as herein provided, be held in trust for the
purposes for which they were received, and shall be segregated from
other funds of the Trustee or Paying Agent. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any
moneys received by it hereunder except such as it may agree in
writing with the Issuer to pay thereon.
(b) The Trustee shall arrange with all Paying Agents for the payment,
from funds furnished by the Issuer to the Trustee pursuant to this
Indenture, of the principal of and interest and other amounts due on
the Securities (including Additional Amounts).
6.5 Compensation of Trustee and Its Lien
(a) The Issuer covenants and agrees to pay the Trustee (all references
in this Section 6.5 to the Trustee shall be deemed to apply to the
Trustee in its capacities as Trustee, Paying Agent and Security
Registrar) such amount as shall be agreed upon in writing with the
Issuer in full compensation for all services rendered by the Trustee
hereunder for the period beginning on the Closing Date and ending
upon the full redemption of the Securities. Except as herein
otherwise expressly provided, the Issuer will pay or reimburse the
Trustee upon its request for all
-50-
reasonable expenses and disbursements incurred or made by the
Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses,
advances and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense or disbursement as
shall be determined to have been caused by its own negligence or
willful misconduct. The Issuer also covenants and agrees to
indemnify each of the Trustee and each predecessor Trustee for,
defend, and hold harmless each of the Trustee and each predecessor
Trustee and their respective officers, directors, employees,
representatives and agents from and against, any loss, liability,
claim, damage or expense incurred without negligence or willful
misconduct on its part or any of its employees, officers or agents,
arising out of or in connection with (i) the acceptance or
administration of the trust or trusts hereunder and this Indenture,
including, without limitation, the costs and expenses of defending
itself against any claim (whether against the Issuer, a
Securityholder or any other Person) or liability and (ii) the
exercise or performance or any of its rights, powers or duties
hereunder and including liability which the Trustee may incur as a
result of failure to withhold, pay or report Taxes.
(b) The obligations of the Issuer under this Section 6.5 shall survive
payment in full of the Securities, the resignation or removal of the
Trustee and the termination of this Indenture for a period of three
years after the redemption and payment in full of the Securities.
(c) When the Trustee or any predecessor Trustee incurs expenses or
renders services in connection with the performance of its
obligations hereunder (including its services as Paying Agent, if so
appointed by the Issuer) after a Payment Default occurs, the
expenses and compensation for such services are intended to
constitute expenses of administration under applicable bankruptcy,
insolvency or other similar United States Federal or state law or
analogous foreign law for the relief of debtors.
(d) The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or
any predecessor Trustee pursuant to this Section 6.5, except with
respect to (i) the indemnity to the Trustee contained in Section
6.5(a).
6.6 Right of Trustee to Rely on Officers' Certificates and Opinions of Counsel
Before the Trustee acts or refrains from acting with respect to any matter
contemplated by this Indenture, it may require an Officers' Certificate of
the Issuer or an Opinion of Counsel, which shall conform to the provisions
of Section 12.1. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion
as set forth in Section 6.1(b)(ii).
-51-
6.7 The Bank of New York Trust Company (Cayman) Limited as Trustee
If at any time whilst The Bank of New York Trust Company (Cayman) Limited
is appointed as Trustee hereunder:
(i) the long term unsecured debt rating of The Bank of New York falls
below "A3" by Moody's; or
(ii) The Bank of New York Trust Company (Cayman) Limited ceases to be
majority owned by or controlled by The Bank of New York; or
(iii) The Bank of New York Trust Company (Cayman) Limited ceases to bear
"Bank of New York" in its name;
then The Bank of New York Trust Company (Cayman) Limited will resign and
the Issuer will appoint a successor trustee in accordance with the
provisions of Section 6.9.
6.8 Persons Eligible for Appointment as Successor Trustee
If The Bank of New York Trust Company (Cayman) Limited ceases to be
appointed as Trustee hereunder for any reason, the Issuer will appoint a
successor trustee. Any successor trustee will at all times be a bank with
a combined capital and surplus of at least U.S.$100,000,000 and have a
long term unsecured debt rating of at xxxxx "X0" by Moody's.
6.9 Resignation and Removal of Trustee; Appointment of Successor
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign by giving written notice to the Issuer and by giving
notice of such resignation to the Securityholders in the manner
provided in Section 12.4.
(b) In case at any time any of the following shall occur with respect to
any Securities:
(i) the Trustee shall cease to be eligible under Section 6.7 or
Section 6.8 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(ii) the Trustee shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (A) the Issuer may remove the Trustee, and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, or (B)
any Securityholder who has been a bona
-52-
fide Securityholder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor Trustee.
(c) The Majority Securityholders at the time Outstanding may at any time
remove the Trustee and appoint a successor Trustee by delivering to
the Trustee so removed, to the successor Trustee so appointed and to
the Issuer, the evidence provided for in Section 7.1 of the action
taken by the Securityholders, provided, that unless a Payment
Default shall have occurred and be continuing, the Issuer shall
consent (such consent not to be unreasonably withheld).
(d) If the Trustee shall resign, be removed, or become incapable of
acting or if a vacancy shall occur in the office of Trustee with
respect to the Securities for any cause, the Issuer shall promptly
appoint a successor Trustee or Trustees by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
former Trustee and one copy to the successor Trustee. If no
successor Trustee shall have been so appointed and have accepted
such appointment pursuant to Section 6.10 within 30 days after the
mailing of such notice of resignation or removal, the former Trustee
may, at the Issuer's expense, petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any
Securityholder who has been a bona fide Securityholder for at least
six months may, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor
Trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a successor Trustee.
(e) Any resignation or removal of the Trustee and any appointment of a
successor Trustee pursuant to this Section shall become effective
only upon acceptance of appointment by the successor Trustee as
provided in Section 6.10.
6.10 Acceptance of Appointment by Successor Trustee
(a) Any successor Trustee appointed under Section 6.9 shall execute,
acknowledge and deliver to the Issuer and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts, duties and obligations of its predecessor Trustee hereunder,
with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Issuer or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of
any such amounts then due it pursuant to the provisions of Section
6.5, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the Trustee
so ceasing to act and shall
-53-
duly assign, transfer and deliver to such successor Trustee all
property and money held by such Trustee ceasing to act. Upon request
of any such successor Trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and
confirming to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all
property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to Section 6.5.
(b) No successor Trustee shall accept appointment as provided in this
Section 6.10 unless at the time of such acceptance such successor
Trustee shall be eligible under Section 6.8.
(c) Upon acceptance of appointment by a successor Trustee, the Issuer
shall give notice of the succession of such Trustee hereunder to the
Securityholders in the manner provided in Section 12.4. If the
Issuer fails to give such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall
cause such notice to be given at the expense of the Issuer.
6.11 Merger, Conversion or Consolidation of Trustee
(a) Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a
party, or any Person succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder without the execution or filing of any paper
or any further act on the part of any of the parties hereto;
provided that such successor Trustee shall be eligible under the
provisions of Section 6.8 hereof.
(b) In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture, any of the Securities shall
have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any
predecessor Trustee and deliver such Securities so authenticated
and, in case at that time any of the Securities shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the
name of the successor trustee, and in such cases such certificate
shall have the same force under the Securities and under this
Indenture as if authenticated by such predecessor Trustee; provided,
that, the certificate of the Trustee shall have provided that the
right to adopt the certificate of authentication of any predecessor
Trustee or the authenticated Securities in the name of any
predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
-54-
6.12 Maintenance of Offices and Agencies
(a) The Issuer shall at all times maintain in the Borough of Manhattan,
The City of New York, and in such other Places of Payment, if any,
as shall be specified for the Securities, an office or agency where
Securities may be presented or surrendered for registration of
transfer, exchange or redemption and for payment of principal and
interest and where notices to and demands upon the Issuer in respect
of this Indenture and the Securities may be served. Such office
shall initially be the Corporate Trust Office. Notices and demands
to or upon the Trustee in respect of the Securities or this
Indenture may be served at the Corporate Trust Office. The Issuer
shall not change the designation of such office or agency without
prior written notice to the Trustee and the designation of a
replacement office or agency. Written notice of the location of each
of such office or agency and of any change of location thereof shall
be given by the Issuer to the Trustee and by the Trustee to the
Securityholders in the manner specified in Section 12.4. In the
event that no such office or agency shall be maintained or no such
notice of location or of change of location shall be given,
presentations, surrenders and demands may be made and notices may be
served at the Corporate Trust Office.
(b) There shall at all times be a Security Registrar and a Paying Agent
hereunder. The Issuer shall enter into an appropriate agency
agreement with any Security Registrar or Paying Agent that is not a
party to this Indenture. The agreement shall incorporate the
provisions of the Trust Indenture Act and implement the provisions
of this Indenture that relate to such agent. At any time when any
Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to the Securities which
shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issuance, exchange, registration of
transfer or pursuant to Section 2.13, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder (it being understood that
wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent).
(c) The Trustee at its office specified in the definition of "Corporate
Trust Office" in Section 1.1, is hereby appointed as Paying Agent
and Security Registrar hereunder.
(d) Any Paying Agent (other than the Trustee) not a party to this
Indenture, from time to time appointed hereunder shall execute and
deliver to the Trustee an instrument in which said Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section 6.12, that such Paying Agent will:
-55-
(i) hold all sums held by it for the payment of principal of and
interest on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(ii) give the Trustee within five days thereafter notice of any
Default by any obligor upon the Securities in the making of
any such payment of principal or interest; and
(iii) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
(e) Notwithstanding any other provision of this Indenture, any payment
required to be made to or received or held by the Trustee may, to
the extent authorized by written instructions of the Trustee, be
made to or received or held by a Paying Agent for the account of the
Trustee.
(f) Any Person into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, consolidation or conversion to which any
Authorized Agent shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor Person is otherwise eligible under this
Section 6.12, without the execution or filing of any paper or any
further act on the part of the parties hereto or such Authorized
Agent or such successor Person.
(g) Any Authorized Agent may at any time resign by giving written notice
of resignation to the Trustee and the Issuer. The Issuer may, and at
the request of the Trustee shall, at any time, terminate the agency
of any Authorized Agent by giving written notice of such termination
to the Authorized Agent and to the Trustee. Upon the resignation or
termination of an Authorized Agent or in case at any time any such
Authorized Agent shall cease to be eligible under this Section 6.12
(when, in either case, no other Authorized Agent performing the
functions of such Authorized Agent shall have been appointed), the
Issuer shall promptly appoint one or more qualified successor
Authorized Agents (except in the case of any Authenticating Agent,
where the Trustee shall so appoint) to perform the functions of the
Authorized Agent which has resigned or whose agency has been
terminated or who shall have ceased to be eligible under this
Section 6.12. The Issuer shall give written notice of any such
appointment to all Securityholders in accordance with Section 12.4
(but need only give notice in the manner specified in clause (a)
thereof).
(h) The Issuer initially appoints The Bank of New York as Security
Registrar and Paying Agent and Kredietbank S.A., Luxembourgeoise as
a paying agent (the
-56-
"LUXEMBOURG PAYING AGENT") in connection with the Securities. The
Issuer will appoint Kredietbank S.A., Luxembourgeoise (or other
Luxembourg entity) as transfer agent (the "LUXEMBOURG TRANSFER
AGENT") in the event the Securities are issued in definitive
registered form.
(i) So long as the Securities are listed on the Luxembourg stock
exchange and the rules of such exchange so require, the Issuer will
maintain a paying agent and transfer agent in Luxembourg. If the
Securities are listed on any other securities exchange, the Issuer
will satisfy any requirement at such securities exchange as to
paying agents. So long as the Securities are listed on the
Luxembourg stock exchange, any change in the Luxembourg Paying Agent
or the Luxembourg Transfer Agent or any change in the location of
their offices shall be notified to Securityholders by the giving of
notice to the Securityholders in accordance with the provisions of
Section 12.4 of this Indenture.
6.13 Reports by Trustee
(a) On or before June 3 in every year, so long as any Securities are
Outstanding hereunder, the Trustee shall transmit to the
Securityholders specified in Section 313(a) of the Trust Indenture
Act a brief report, dated as of the preceding December 31, to the
extent required by Section 313 of the Trust Indenture Act in
accordance with the procedures set forth in said Section.
(b) A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Issuer and filed with the SEC and each stock
exchange, on which the Securities are listed.
(c) The Issuer shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange and of any delisting
thereof and the Trustee shall comply with Section 313(d) of the
Trust Indenture Act.
6.14 Trustee Risk
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
ground for believing that the repayment of such funds or liability is not
reasonably assured to it. Whether or not expressly provided herein, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
Section 6.1 except to the extent provided herein.
6.15 Appointment of Co-Trustee
(a) It is the purpose of this Indenture that there shall be no violation
of any law of any jurisdiction, denying or restricting the right of
banking corporations or
-57-
associations to transact business as Trustee in such jurisdiction.
It is recognized that in case of litigation under this Indenture or
any Security, and in particular in case of the enforcement of any
such document on default, or in case the Trustee deems that by
reason of any present or future law of any jurisdiction it may not
exercise any of the powers, rights or remedies herein granted to the
Trustee or hold title to the properties, in trust, as herein
granted, or take any other action which may be desirable or
necessary in connection therewith, the Trustee shall have the power
and may execute and deliver all instruments necessary to appoint one
or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees. The following provisions of this
Section 6.15 are adopted to these ends.
(b) In the event that the Trustee appoints one or more Persons to act as
a co-trustee or co-trustees, or separate trustee or separate
trustees, each and every remedy, power, right, claim, demand, cause
of action, immunity, estate, title, interest and lien expressed or
intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by
and vested in such separate or co-trustee(s) but only to the extent
necessary to enable such separate or co-trustee(s) to exercise such
powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such separate or co-trustee(s)
shall run to and be enforceable by them or either of them.
(c) Should any instrument in writing be required by the separate
trustee(s) or co-trustee(s) so appointed by the Trustee for more
fully and certainly vesting in and confirming to him or it such
properties, rights, powers, trusts, duties and obligations, any and
all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. In case any separate
trustee or co-trustee, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates,
properties, rights, powers, trusts, duties and obligations of such
separate trustee or co-trustee, so far as permitted by law, shall
vest in and be exercised by the Trustee until the appointment of a
new trustee or successor to such separate trustee or co-trustee.
(d) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act
separately without the Trustee joining in such act), except
(A) to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to any property or
any portion
-58-
thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee and (B) if at any time
the long-term unsecured debt rating of such co-trustee by
Moody's shall fall below that of the Trustee, then the
Trustee, or another co-trustee appointed by the Trustee in
accordance with this Section 6.15, shall exercise and perform
singly such rights, powers, duties and obligations;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder;
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(iv) each co-trustee appointed hereunder shall at all times be a
bank with a combined capital and surplus of at least
U.S.$100,000,000 and have a long-term unsecured debt rating of
at least "A3" by Moody's.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer
to this Indenture and the conditions of this Article 6.
(f) Any separate trustee or co-trustee may at any time constitute the
Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or
in respect of this Indenture on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of
a new or successor trustee.
6.16 Notice of Payment Default
If a Payment Default shall have occurred, the Trustee shall, within 90
(ninety) days of the occurrence of such Payment Default with respect to
the Securities, give to each Securityholder in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act notice of the
Payment Default as and to the extent provided by the Trust Indenture Act,
unless such Payment Default shall have been cured or waived. The Trustee
will be protected in withholding notice, however, if it determines in good
faith that withholding notice is in the interest of the Securityholders.
6.17 Eligibility; Disqualification.
Upon qualification of this Indenture under the Trust Indenture Act, this
Indenture shall have a Trustee who satisfies the requirement of Sections
310(a)(1), (2) and (5) of the
-59-
Trust Indenture Act. Notwithstanding the foregoing, the Trustee (or, in
the case of a corporation included in a bank holding company system, the
related bank holding company) shall have a combined capital and surplus of
at least U.S.$100,000,000 as set forth in its most recent published annual
report of condition. In addition, if the Trustee is a corporation included
in a bank holding company system, the Trustee, independently of such bank
holding company, shall meet the capital requirements of Section 310(a)(2)
of the Trust Indenture Act. The Trustee shall comply with Section 310(b)
of the Trust Indenture Act; provided, however, that there shall be
excluded from the operation of Section 310(b)(1) of the Trust Indenture
Act any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Issuer are outstanding, if the requirements for such exclusion set forth
in Section 310(b)(1) of the Trust Indenture Act are met. The provisions of
Section 310 of the Trust Indenture Act shall apply to the Issuer and any
other obligor of the Securities.
6.18 Preferential Collection of Claims Against Issuer.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent indicated
therein. The provisions of Section 311 of the Trust Indenture Act shall
apply to the Issuer and any other obligor of the Securities.
7. CONCERNING THE SECURITYHOLDERS
7.1 Acts of Securityholders
(a) Any request, demand, authorization, direction, notice, consent,
waiver, modification, supplement, or other action provided by this
Indenture to be given or taken by Securityholders (collectively, an
"ACT" of such Securityholders, which term also shall refer to the
instruments or record evidencing or embodying the same) may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person
or by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Securityholders voting in
favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Securityholders duly called and held in
accordance with the provisions of Article 8, or a combination of
such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record, or both, are delivered to the
Trustee, and when it is specifically required herein, to the Issuer.
Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the Trustee and
the Issuer, if made in the manner provided in this Section 7.1. The
record of any meeting of Securityholders shall be proved in the
manner provided in Section 8.5.
-60-
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any public
or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the Person
executing such instrument acknowledged to such officer the execution
thereof, or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer, and where such
execution is by an officer of a corporation or association or of the
Issuer, on behalf of such corporation, association or the Issuer,
such certificate or affidavit shall also constitute sufficient proof
of such Person's authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of the Securities, the principal amount and serial
numbers of Securities held by any Person, and the date or dates of
holding the same, shall be proved by the Security Register and the
Trustee shall not be affected by notice to the contrary.
(d) Any Act by the Securityholders (i) shall bind the holder of each
Security and every future Securityholder of such Security and the
Securityholder of every Security issued upon the transfer thereof or
the exchange therefor or in lieu thereof, whether or not notation of
such action is made upon such Security, and whether or not such
Securityholder has given its consent (unless required under this
Indenture) to such Act or was present at any duly held meeting, and
(ii) shall be valid notwithstanding that such Act is taken in
connection with the transfer of such Security to any other Person,
including the Issuer or any Affiliate thereof.
(e) Until such time as written instruments shall have been delivered
with respect to the requisite percentage of principal amount of
Securities for the Act contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a
Securityholder may be revoked with respect to any or all of such
Securities by written notice by such Securityholder (or its duly
appointed agent) or any subsequent Securityholder (or its duly
appointed agent), proven in the manner in which such instrument was
proven unless such instrument is by its terms expressly irrevocable.
(f) Securities authenticated and delivered after any Act of
Securityholders may, and shall if required by the Issuer, bear a
notation in form approved by the Issuer as to any action taken by
such Act of Securityholders. If the Issuer shall so determine, new
Securities so modified as to conform, in the opinion of the Issuer,
to such action, may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for
outstanding Securities.
(g) The Issuer may, in the circumstances permitted by the Trust
Indenture Act, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to sign any
instrument evidencing or embodying an Act
-61-
of the Securityholders or to vote on any action. If a record date is
fixed, those Persons who were Securityholders at such record date,
and only those Persons (or their duly appointed proxies or agents),
shall be entitled to sign any such instrument evidencing or
embodying an Act of Securityholders, to revoke any such instrument
previously signed or to vote on such action, as the case may be,
whether or not such Persons continue to be Securityholders after
such record date. If not set by the Issuer prior to the first
solicitation of a Securityholder by any Person in respect of any
such action, or, the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day prior
to such first solicitation or vote, as the case may be. No such
instrument shall be valid or effective if signed more than 180 days
after such record date, and may be revoked as provided in paragraph
(e) above. Promptly after any record date is set by the Issuer
pursuant to this Section 7.1(g), the Issuer, at its own expense,
shall cause notice of such record date, the proposed action by the
Securityholders to be given to the Trustee in writing and to each
Securityholder in the manner set forth in Section 12.4.
(h) Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents, each of which
may do so pursuant to such appointment with regard to all or any
part of such principal amount.
(i) The Initial Securities and the Exchange Securities shall vote and
consent together on all matters as one class, and none of the
Securities, and no tranche of Securities, shall have the right to
vote or consent as a separate class on any matter.
7.2 Securities Owned by Issuer and Affiliates Deemed Not Outstanding
In determining whether the holders of the requisite aggregate principal
amount of Securities have concurred in any request, demand, authorization,
direction, notice, consent and waiver or other act under this Indenture,
Securities which are owned by the Issuer or its Affiliates shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. The Issuer shall
furnish the Trustee, upon its reasonable request, with a list of such
Affiliates. In case of a dispute as to such right, any decision by the
Trustee, taken upon the advice of counsel, shall be full protection to the
Trustee.
-62-
8. SECURITYHOLDERS' MEETINGS
8.1 Purposes for Which Securityholders' Meetings May Be Called
A meeting of Securityholders may be called at any time and from time to
time pursuant to this Article 8 for any of the following purposes:
(a) to give any notice to the Issuer or to the Trustee, or to give any
directions to the Trustee, or to waive or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by Securityholders pursuant to Article
7;
(b) to remove the Trustee and appoint a successor Trustee pursuant to
Article 6;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 9.1; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture or under
applicable law.
8.2 Trustee, Issuer and Securityholders May Call Meeting
The Trustee may call a meeting of the Securityholders at any time by
giving notice thereof as provided in Section 12.4. In case the Issuer,
pursuant to a Board Resolution, or the holders of at least 10% in
aggregate principal amount of the Securities then Outstanding shall have
requested the Trustee to call a meeting of Securityholders, by written
request setting forth in general terms the action proposed to be taken at
the meeting, and the Trustee shall not have given notice of such meeting
within 20 days after receipt of such request, then the Issuer or such
Securityholders in the amount above specified may determine the time and
the place in the Borough of Manhattan, The City of New York, for such
meeting and may call such meeting to take any action authorized in Section
8.1 by giving notice thereof as provided in Section 12.4. Notice of every
meeting of the Securityholders shall set forth the time and place of such
meeting and, in general terms, the action proposed to be taken at such
meeting and shall be given not less than 30 nor more than 60 days prior to
the date fixed for the meeting; provided, that, in the case of any meeting
reconvened after adjournment, such notice shall be given not less than 10
nor more than 60 days prior to the date fixed for such meeting.
8.3 Persons Entitled to Vote at Meeting
To be entitled to vote at any meeting of Securityholders a person shall be
(a) the Persons who were Securityholders on the record date determined
pursuant to Section 7.1(g) or (b) a person appointed by an instrument in
writing as proxy for any such Securityholder. The only persons who shall
be entitled to be present or to speak at any meeting of Securityholders
shall be the persons entitled to vote at such meeting and their counsel
and
-63-
any representatives of the Trustee and its counsel and any representatives
of the Issuer and its counsel.
8.4 Determination of Voting Rights; Conduct and Adjournment of Meeting
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for
any meeting of Securityholders, in regard to proof of the holding of
Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right
to vote, and such other matters concerning the conduct of the
meeting as it shall think fit. Such regulations may provide that
written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section
7.1 or other proof. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the
manner specified in Section 7.1 and the appointment of any proxy
shall be proved in the manner specified in said Section 7.1 or by
having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or firm satisfactory
to the Trustee.
(b) The Issuer or the Securityholders calling the meeting, as the case
may be, shall appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the
Securityholders of a majority in aggregate principal amount of the
Securities represented at the meeting and entitled to vote.
(c) Subject to the provisions of Section 7.2, at any meeting each
Securityholder or proxy shall be entitled to one vote for each
U.S.$1,000 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by
virtue of Securities held by him or instruments in writing as
aforesaid duly designating him as the person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called
pursuant to Section 8.2 may be adjourned from time to time, and the
meeting may be held as so adjourned upon notice as set forth in
Section 8.2. At any meeting, the presence of persons holding or
representing Securities with respect to which such meeting is being
held in an aggregate principal amount sufficient to take action upon
the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a
quorum be present, the persons holding or representing a majority of
the Securities represented at the meeting may adjourn such meeting
with the same effect, for all intents and purposes, as though a
quorum had been present.
-64-
8.5 Counting Votes and Recording Action of Meeting
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of
the Securityholders or of their representatives by proxy and the serial
numbers and principal amounts of the Securities held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors
of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of
the notice of the meeting. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The record shall
be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to
the Issuer and the other to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
9. SUPPLEMENTAL INDENTURES
9.1 Supplemental Indenture with Consent of Securityholders
(a) With the consent of the Majority Securityholders, the Issuer, when
authorized by a Board Resolution, may, and the Trustee, subject to
Sections 9.2, 9.3 and 9.4, shall, enter into an indenture or
indentures supplemental hereto for the purpose of amending the
provisions of this Indenture or of modifying in any manner the
rights of the Securityholders under this Indenture; provided,
however, that without the consent of the Securityholder of each
Outstanding Security affected thereby, except to the extent such
amendment or modification is for any of the purposes set out in
Section 9.2, no such supplemental indenture shall cause any of the
following:
(i) change the time for payment of Interest on the Securities;
(ii) reduce the Principal Amount, the Stated Rate; the Interest or
the redemption price for the Securities;
(iii) waive a redemption payment on any Security;
(iv) change the currency of any payment on a Security other than as
permitted by the Security;
(v) change the place of payment on a Security;
-65-
(vi) reduce the percentage in principal amount of the Securities,
the approval of whose holders is needed to change this
Indenture or the Securities;
(vii) reduce the percentage in principal amount of the Securities,
the consent of whose holders is needed to waive the Issuer's
compliance with this Indenture or to waive defaults; or
(viii) change the provisions of this Indenture dealing with
modification and waiver in any other respect, except to
increase any required percentage referred to in this Indenture
or to add to the provisions that cannot be changed or waived
without approval.
(b) Upon receipt by the Trustee of Board Resolutions and such other
documentation as the Trustee may reasonably require and upon the
filing with the Trustee of evidence of the Act of said
Securityholders, the Trustee shall join in the execution of such
supplemental indenture or other instrument, as the case may be,
subject to the provisions of Sections 9.3 and 9.4.
(c) It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
(d) After an amendment under this Section 9.1 becomes effective, the
Issuer will mail to the Securityholders a notice briefly describing
such amendment. The failure to give such notice to all
Securityholders, or any defect therein, will not impair or affect
the validity of an amendment under this Section 9.1.
9.2 Supplemental Indentures Without Consent of Securityholders
Notwithstanding anything to the contrary provided for in Section 9.1
hereof (but subject to Section 9.1(a) hereof), the Issuer, when authorized
by a Board Resolution, at any time and from time to time, may, without the
consent of any Securityholders, enter into one or more indentures
supplemental hereto in form satisfactory to the Trustee for any of the
following purposes:
(a) in the event that, at any time the Issuer has affirmatively elected
to qualify the Securities as Tier I Capital, and the Tier I
Regulation does not require payments of Interest to be made out of
Distributable Profits, to delete Section 2.7(b) of this Indenture;
or
(b) to establish the form and terms of Securities permitted by Sections
2.1 and 2.5; or
(c) to evidence the succession of another entity to the Issuer and the
assumption by any such successor of the covenants of the Issuer
herein contained, subject to compliance with Section 4.13; or
-66-
(d) to evidence the succession of a new Trustee hereunder pursuant to
Section 6.9; or
(e) to convey, transfer and assign to the Trustee properties or assets
to secure the Securities, and to amplify the description of any
property at any time subject to this Indenture or the Securities or
to assure, convey and confirm unto the Trustee any property subject
or required to be subject to this Indenture or the Securities; or
(f) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect or maintain its
qualification under the Trust Indenture Act, if necessary, or under
any similar United States federal statute hereafter enacted, and to
add to this Indenture such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture
Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar United States
federal statute hereafter enacted; or
(g) to permit or facilitate the issuance of Securities in definitive
form; or
(h) to cure any ambiguity, to correct or supplement any provision in
this Indenture or the Securities that may be defective or
inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the
interests of the Securityholders in any material respect; or
(i) to provide for the issuance of Additional Securities, which shall
have terms substantially identical in all material respects to the
Original Securities (except for any terms established in or pursuant
to a Board Resolution in accordance with Section 2.1(c) or 2.2(b)),
and which shall be treated, together with any outstanding Original
Securities, as a single issue of securities; or
(j) to provide for the issuance of Exchange Securities, which shall have
terms substantially identical in all material respects to the
Initial Securities such Exchanged Securities have been exchanged
for, and which shall be treated, together with any outstanding
Initial Securities, as a single issue of securities; or
(k) if the Issuer has affirmatively elected to qualify the Securities as
Tier I Capital to amend the terms of the Securities to reflect any
term which is required in the Opinion of Counsel for the Securities
to be treated as Tier I Capital; or
(l) to add to, change or eliminate any of the provisions of Article 11
in respect of any series of Securities; provided, that any such
action pursuant to this clause (l) shall not adversely affect the
interests of the holders of Senior Debt in any material respect
without the written consent of each such holder of Senior Debt.
-67-
9.3 Execution of Supplemental Indentures
In executing supplemental indenture permitted by this Article 9 or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be provided with, and (subject to Section 6.1) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and all conditions precedent to
the execution of such supplemental indenture have been met. The Trustee
may, but shall not be obligated to, enter into any supplemental indentures
which affect the Trustee's own rights, duties or immunities under this
Indenture, the Securities or otherwise.
9.4 Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article 9,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Securityholder theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
9.5 Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article 9 shall
conform to the requirements of the Trust Indenture Act as then in effect.
9.6 Reference in Securities to Supplemental Indentures
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 9 may, and shall if
required by the Issuer, bear a notation in form approved by the Issuer and
the Trustee as to any matter provided for in such supplemental indenture;
and, in such case, suitable notation may be made upon Outstanding
Securities after proper presentation and demand. If the Issuer shall so
determine, new Securities so modified as to conform, in the opinion of the
Issuer and the Trustee, to any such supplemental indenture may be prepared
and executed by the Issuer and authenticated and delivered by the Trustee
in exchange for Outstanding Securities.
9.7 Moody's Consent and Notification
(a) The Issuer and the Trustee may not enter into an indenture or
indentures supplemental hereto for the purpose of amending the
proviso in Section 9.1(b) without the prior written consent of
Moody's, if Xxxxx'x is then rating the Securities.
(b) Any amendments to this Indenture or any terms and conditions of the
Securities will be promptly notified in writing by the Issuer to
Moody's, if Xxxxx'x is then rating the Securities.
-68-
9.8 Consent of the Central Bank of Brazil
Notwithstanding any provision of this Article 9, the execution of any
indenture or supplemental indenture, the amendment of any of the
Securities pursuant to this Article 9 or the issuance of Additional
Securities, is subject to the prior consent of the Central Bank of Brazil,
if required.
10. SATISFACTION AND DISCHARGE
10.1 Satisfaction and Discharge of Securities
(a) The Securities shall, on or prior to a Redemption Date with respect
to the repayment of principal thereof, be deemed to have been paid
for all purposes of this Indenture, and the entire indebtedness of
the Issuer in respect thereof shall be deemed to have been satisfied
and discharged, upon satisfaction of the following conditions:
(i) the Issuer shall have given a notice of redemption to each
Securityholder pursuant to Section 3.5 and all other
conditions to such redemption contained herein shall have been
met;
(ii) the Issuer shall have irrevocably deposited or caused to be
deposited with the Trustee, in trust, money in an amount which
shall be sufficient to pay when due all the principal of and
interest due and to become due on the Securities in U.S.
dollars for each tranche thereof to maturity or redemption, as
the case may be;
(iii) if any such deposit of money shall have been made prior to the
Redemption Date of such Securities, the Issuer shall have
delivered to the Trustee an Issuer Order stating that such
money shall be held by the Trustee in trust;
(iv) the Issuer has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money
toward the payment of principal of and interest on the
Securities;
(v) no Payment Default shall have occurred and be continuing on
the date of such deposit, and such deposit will not result in
a breach or violation of, or constitute a default under, any
other instrument to which the Issuer is a party or by which
the Issuer is bound, or any laws or regulations to which the
Issuer is subject;
(vi) in the case of redemption of Securities, the Issuer Order with
respect to such redemption pursuant to Article 3 shall have
been given to the Trustee; and
-69-
(vii) there shall have been delivered to the Trustee an Opinion of
Counsel to the effect that such satisfaction and discharge of
the indebtedness of the Issuer with respect to the Securities
shall not be deemed to be, or result in, a taxable event with
respect to the Securityholders for purposes of United States
federal income taxation unless the Trustee shall have received
documentary evidence that each Securityholder either is not
subject to, or is exempt from, United States federal income
taxation.
(b) Upon satisfaction of the aforesaid conditions with respect to the
Securities, the Trustee shall, upon receipt of an Issuer Order,
execute proper instruments acknowledging satisfaction and discharge
of the Securities.
(c) In the event that Securities which shall be deemed to have been paid
as provided in this Section 10.1 do not mature and are not to be
redeemed within the 60-day period commencing on the date of the
deposit with the Trustee of moneys, the Issuer shall, as promptly as
practicable, give a notice, in accordance with Section 12.4, to such
Securityholders (with a copy of such notice to Moody's) to the
effect that such Securities are deemed to have been paid and the
circumstances thereof.
(d) Notwithstanding the satisfaction and discharge of any Securities as
aforesaid, the obligations of the Issuer and the Trustee in respect
of such Securities under Sections 2.3, 2.12, 2.13, 2.14, 2.15, 2.16,
2.17, 2.18, 2.19, 2.20, 4.12, 6.5, 6.9 and 6.12 and this Article 10
shall survive such satisfaction and discharge.
10.2 Satisfaction and Discharge of Indenture
(a) This Indenture shall upon the Issuer Order cease to be of further
effect (except as herein expressly provided), and the Trustee, at
the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(i) either:
(x) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 2.14, (B) Securities deemed to have
been paid in accordance with Section 10.1 and (C)
Securities for whose payments money has theretofore been
deposited in trust or segregated and held in trust by
the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section
4.15(g)) have been delivered to the Trustee for
cancellation; or
-70-
(y) all Securities not theretofore delivered to the Trustee
for cancellation shall be deemed to have been paid in
accordance with Section 10.1; and
(ii) all other sums due and payable hereunder have been paid; and
(iii) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
(b) Upon satisfaction of the aforesaid conditions, the Trustee shall,
upon receipt of an Issuer Order, execute proper instruments
acknowledging satisfaction and discharge of the Indenture and take
all other action reasonably requested by the Issuer to evidence the
termination of any and all liens created by or with respect to this
Indenture.
(c) Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Issuer and the Trustee under
Sections 2.3, 2.12, 2.13, 2.14, 2.15, 2.16, 2.17, 2.18, 2.19, 2.20,
4.12, 6.5, 6.9 and 6.12 and this Article 10 shall survive such
satisfaction and discharge.
(d) Upon satisfaction and discharge of this Indenture as provided in
this Section 10.2, the Trustee shall assign, transfer and turn over
to or upon the order of the Issuer, any and all money, securities
and other property then held by the Trustee for the benefit of the
Securityholders, other than money deposited with the Trustee
pursuant to Section 10.1(a) or 4.12(e) and interest and other
amounts earned or received thereon.
10.3 Application of Trust Money
The money deposited with the Trustee pursuant to Section 10.1 shall not be
withdrawn or used for any purpose other than, and shall be held in trust
for and applied to (either directly or through any Paying Agent), the
payment of the principal of and interest on the Securities or portions of
principal amount thereof in respect of which such deposit was made.
11. SUBORDINATION
11.1 Agreement to Subordinate
(a) The Issuer covenants and agrees, and each Securityholder issued
hereunder, by such Securityholder's acceptance thereof, likewise
covenants and agrees, that, subject to applicable law, (i)(A) the
Securities issued hereunder shall rank pari passu with respect to
each other without any preference among themselves and (B) the
rights and claims of Securityholders under the Securities shall rank
pari
-71-
passu with the rights and claims of holders of the Parity Securities
and other debt obligations expressed to be similarly subordinated as
and, accordingly, ranking pari passu with, the rights and claims of
Securityholders, and (ii) the rights and claims of Securityholders
are and will be subordinated and accordingly be subject in right of
payment to prior payment in full of all Senior Debt upon the
Issuer's liquidation, moratorium of payments or bankruptcy or upon
an emergency measure being declared in respect of the Issuer.
(b) In the event of the Issuer's liquidation or a moratorium of
payments, bankruptcy or emergency measure being declared in respect
of the Issuer, the payments payable on the Securities shall be an
amount equal to the lesser of (i) the aggregate amount of all
payments due on the Securities pursuant to the terms and conditions
hereof and thereof without giving effect to this Section 11.1(b) and
(ii) an amount equal to (A) the remaining assets of the Issuer after
satisfaction of all claims which, as a matter of law, are prior to
those of Securityholders or any Parity Security or any similarly
subordinated debt multiplied by (B) a fraction, (x) the numerator of
which is the aggregate amount of all payments due on the Securities
pursuant to the terms and conditions thereof without giving effect
to this Section 11.1(b) and (y) the denominator of which is the sum
(without duplication) of the aggregate amount of all claims under
the Securities, the aggregate liquidation preference of, and
aggregate amount of all claims under any outstanding Parity
Securities and similarly subordinated debt obligations with a
formula or arrangement substantially similar to this Section
11.1(b), without application of this Section 11.1(b) and the
corresponding similar formula or arrangement.
11.2 Payment Over of Proceeds Upon Dissolution, Etc.
(a) In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization, moratorium of
payments, emergency measure or other similar case or proceeding in
connection therewith, relative to the Issuer or to its creditors, as
such, or to its assets, or (b) any liquidation, dissolution or other
winding up of the Issuer, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Issuer, then and in any such event the
holders of Senior Debt shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of all Senior
Debt (including any interest accruing thereon after the commencement
of any such case or proceeding), or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the
Securityholders are entitled to receive any payment on account of
principal of or Interest on the Securities, and to that end the
holders of Senior Debt shall be entitled to receive, for application
to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities, including any
such payment or distribution which may be payable or
-72-
deliverable by reason of the payment of any other indebtedness of
the Issuer being subordinated to the payment of the Securities,
which may be payable or deliverable in respect of the Securities in
any such case, proceeding, dissolution, liquidation, moratorium of
payments, emergency measure or other winding up event.
(b) In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or any Securityholder shall have received any
payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Issuer being
subordinated to the payment of the Securities, before all Senior
Debt is paid in full or payment thereof provided for, and if such
fact shall, at or prior to the time of such payment or distribution,
have been made known to the Trustee or, as the case may be, such
Securityholder, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of
the Issuer for application to the payment of all Senior Debt
remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Debt. Any taxes that have been
withheld or deducted from any payment or distribution in respect of
the Securities, or any taxes that ought to have been withheld or
deducted from any such payment or distribution that have been
remitted to the relevant taxing authority, shall not be considered
to be an amount that the Trustee or the Securityholder receives for
purposes of this Section.
(c) For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the
Issuer as reorganized or readjusted, or securities of the Issuer or
any other corporation or other entity provided for by a plan of
reorganization or readjustment which are subordinated in right of
payment to all Senior Debt which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. The
consolidation of the Issuer with, or the merger of the Issuer into,
or the conveyance, transfer or lease by the Issuer of its properties
and assets substantially as an entirety, another Person upon the
terms and conditions set forth in Section 4.14, or the liquidation
or dissolution of the Issuer following any such conveyance or
transfer, shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors
or marshalling of assets and liabilities of the Issuer for the
purposes of this Section if the Person formed by such consolidation
or into which the Issuer is merged or the Person which acquires by
conveyance, transfer or lease of such properties and assets
substantially as an entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance or transfer, comply with
the conditions set forth in Section 4.14.
-73-
11.3 No Payment When Senior Debt in Default
(a) Unless all principal of, and any premium or interest on, Senior Debt
has been paid in full, no payment or other distribution (including
any payment which may be payable by reason of the payment of any
other indebtedness of the Issuer being subordinated to the payment
of the Securities) shall be made by the Issuer on account of
principal of or any Interest or other amounts due and payable on the
Securities or on account of the purchase or other acquisition of
Securities:
(i) in the event of any insolvency or bankruptcy proceedings, or
any receivership, liquidation, reorganization, assignment for
creditors or other similar proceedings or events involving the
Issuer or the Issuer's assets; or
(ii) (a) in the event and during the continuation of any default in
the payment of principal of, premium and any interest and
other amounts due and payable on any Senior Debt beyond any
applicable grace period with respect thereto; or
(b) in the event that any event of default with respect to any
Senior Debt has occurred and is continuing beyond any
applicable grace period, permitting the holders of such Senior
Debt (or a trustee on behalf of the holders thereof) to
accelerate the maturity of that Senior Debt, whether or not
maturity is in fact accelerated
(unless, in the case of clause (a) or (b) of this clause (ii),
if the payment default or event of default shall have been
cured or waived or shall have ceased to exist and any related
acceleration shall have been rescinded or annulled, then such
default in payment or event of default, as the case may be,
shall be deemed not to have occurred for the purpose of this
Section) or
(c) in the event that any judicial proceeding is pending with
respect to payment default or event of default described in
(a) or (b) of this clause (ii).
(b) In the event that, notwithstanding the foregoing, the Issuer shall
make any payment to the Trustee or any Securityholder prohibited by
the provisions of this Section 11.3, and if such fact shall, at or
prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Securityholder, then such
payment shall be repaid forthwith for the benefit of holders of the
Senior Debt.
(c) No default in payment or event of default with respect to any Senior
Debt shall be deemed to be a default in payment or event of default
of the kind specified in subclause (ii)(a) or (ii)(b) of clause (a)
of this Section, and no judicial proceeding
-74-
with respect to any such default in payment or event of default
shall be deemed to be a judicial proceeding of the kind specified in
subclause (ii)(c) of clause (a) of this Section 11.3, if (x) the
Issuer shall be disputing the occurrence or continuation of such
default in payment or event of default, or any obligation
purportedly giving rise to such default in payment or event of
default, and (y) no final judgment holding that such default in
payment or event of default has occurred and is continuing shall
have been issued. For the purpose of this Section 11.3(c), a "final
judgment" means a judgment that is issued by a court having
jurisdiction over the Issuer or its property, is binding on the
Issuer or its property, is in full force and effect and is not
subject to judicial appeal or review (including because the time
within which a party may seek appeal or review has expired);
provided, that if any such judgment has been issued but is subject
to judicial appeal or review, it shall nevertheless be deemed to be
a final judgment unless the Issuer shall in good faith be
prosecuting such appeal or a proceeding for such review and shall
have obtained a stay of execution pending such appeal or review.
Notwithstanding the foregoing, this paragraph shall not apply to any
default in payment or event of default with respect to any Senior
Debt as to which the Issuer has waived the application of this
paragraph in the instrument evidencing such Senior Debt or by which
such Senior Debt is created, incurred, assumed or guaranteed by the
Issuer.
(d) The holders of Senior Debt may obtain a court order requiring the
Issuer and any holder of a Security to comply with the provisions of
this Indenture.
11.4 Payment Permitted in Certain Situations
Nothing contained in this Article or elsewhere herein or in the Securities
shall prevent (a) the Issuer, at any time except during the pendency of
any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Issuer referred to in Section 11.2 or under the
conditions described in Section 11.3, from making payments at any time of
or on account of the principal of and any Interest and other amounts due
and payable on the Securities or on account of the purchase or other
acquisition of the Securities, or (b) the application by the Trustee of
any money deposited with it hereunder to the payment of or on account of
the principal of and any Interest and other amounts due and payable on the
Securities or the retention of such payment by the Securityholders, if, at
the time of such application by the Trustee, it did not have knowledge
that such payment would have been prohibited by the provisions of this
Article.
11.5 Subrogation to Rights of Holders of Senior Debt
Subject to the payment in full of all Senior Debt or the provision for
such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Securityholders shall be
subrogated to the extent of the payments or distributions made to the
holders of such Senior Debt pursuant to the provisions of this
-75-
Article (equally and ratably with the holders of indebtedness of the
Issuer which by its express terms is subordinated to indebtedness of the
Issuer to substantially the same extent as the Securities are subordinated
to the Senior Debt and is entitled to like rights of subrogation) to the
rights of the holders of such Senior Debt to receive payments and
distributions of cash, property and securities applicable to the Senior
Debt until the principal of and any Interest and other amounts due and
payable on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Debt of any cash, property or securities to which the Securityholders or
the Trustee would be entitled except for the provisions of this Article,
and no payments pursuant to the provisions of this Article to the holders
of Senior Debt by Securityholders or the Trustee, shall, as among the
Issuer, its creditors other than holders of Senior Debt and the
Securityholders, be deemed to be a payment or distribution by the Issuer
to or on account of the Senior Debt.
11.6 Provisions Solely to Define Relative Rights
The provisions of Sections 11.2 through 11.5 hereof are and are intended
solely for the purpose of defining the relative rights of the
Securityholders on the one hand and the holders of Senior Debt on the
other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as
among the Issuer, its creditors other than holders of Senior Debt and the
Securityholders, the obligation of the Issuer, which is absolute and
unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally with all other general
obligations of the Issuer), to pay to the Securityholders the principal of
and any Interest and other amounts due and payable on the Securities as
and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Issuer of the
Securityholders and creditors of the Issuer other than the holders of
Senior Debt; or (c) prevent the Trustee or any Securityholder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of
the holders of Senior Debt to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Securityholder.
11.7 Trustee to Effectuate Subordination
Each Securityholder by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney in fact for any and all such purposes.
-76-
11.8 No Waiver of Subordination Provisions
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Issuer or by any act or failure to act, in good faith, by any such holder,
or by any non compliance by the Issuer with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Securityholders to the holders of Senior Debt, do any one
or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (iii)
release any Person liable in any manner for the collection of Senior Debt;
and (iv) exercise or refrain from exercising any rights against the Issuer
and any other Person.
11.9 Notice to Trustee
The Issuer shall give prompt written notice to the Trustee of any fact
known to the Issuer which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Issuer or a
holder of Senior Debt or from any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions
of Section 6.1, shall be entitled in all respects to assume that no such
facts exist.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor)
to establish that such notice has been given by a holder of Senior Debt
(or a trustee therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and
if such evidence is not
-77-
furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
11.10 Reliance on Judicial Order or Certificate of Liquidating Agent
Upon any payment or distribution of assets of the Issuer referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and
the Securityholders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, moratorium of payments,
reorganization, dissolution, winding up, emergency measure or similar case
or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Securityholders, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
11.11 Trustee Not Fiduciary for Holders of Senior Debt
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders or creditors if
it shall in good faith pay over or distribute to Securityholders or to the
Issuer or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
11.12 Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at any
time be held by it, to the same extent as any other holder of Senior Debt
and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.5.
11.13 Article Applicable to Paying Agents
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Issuer and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee.
-78-
12. MISCELLANEOUS
12.1 Compliance Certificates and Opinions
(a) Upon any application or request by the Issuer to the Trustee that
the Trustee take any action under any provision of this Indenture,
the Issuer shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act,
including, where applicable, a certificate or opinion by an
independent certified public accountant reasonably satisfactory to
the Trustee that complies with Section 314 of the Trust Indenture
Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the
Issuer, 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.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
in substance:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, such
examination or investigation has been made as is necessary to
enable such individual to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
(c) With the delivery of this Indenture, the Issuer is furnishing to the
Trustee, and from time to time thereafter may furnish, an Officers'
Certificate identifying and certifying the incumbency and specimen
signatures of the Authorized Representatives. Until the Trustee
receives a subsequent Officers' Certificate, the Trustee shall be
entitled to conclusively rely on the last such Officers' Certificate
delivered to it for purposes of determining the Authorized
Representatives of the Issuer.
12.2 Form of Documents Delivered to Trustee
(a) In any case where several matters are required to be certified by,
or covered by an opinion of any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so
-79-
certified by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer
knows, or, in the exercise of reasonable care, should know that the
certificate or opinion or representations with respect to the
matters upon which such Officers' Certificate or opinion is based
are erroneous or otherwise inaccurate. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate of, or representations by, an Authorized
Representative of the Issuer stating that the information with
respect to such factual matters is in the possession of the Issuer,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or representations with respect to
such matters are erroneous.
(c) Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
(d) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not,
be consolidated and form one instrument.
12.3 Notices, etc. to Trustee
Any Act of Securityholders or other document required or permitted by this
Indenture shall be deemed to have been made or given, as applicable, only
if such notice is in writing and delivered personally, or by registered or
certified first-class United States mail with postage prepaid and return
receipt requested, or made, given or furnished in writing by confirmed
telecopy or facsimile transmission, or by prepaid courier service to the
appropriate party as set forth below:
Trustee: The Bank of New York Trust Company (Cayman) Limited
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Finance Unit
Telecopier: x0 (000) 000 0000
Telephone: x0 (000) 000-0000
Issuer: Banco Bradesco S.A.
Grand Cayman branch
-00-
Xxxxxxxxx Xxxxx (0xx Xxxxx)
00 Xxxxxxx Xxxxx
X.X. Xxx 0000 XX
Xxxxxx Xxxx
Grand Cayman
Cayman Islands
Attention: General Manager
Telecopier: x0 000 000-0000
Telephone: x0 000 000-0000
With a copy to: c/o Banco Bradesco S.A.
International Department
Xxxxxxx Xxxxxxxx, 000, 10 degrees Andar
01046-920 -Sao Paulo - SP
Attention: Executive General Manager
Telephone: x00 00 0000 0000
Telecopier: x00 00 0000 0000
Swift XXXXXXXXXXX
Copies of all notices received or given by the Trustee hereunder or under
the Securities shall be delivered concurrently with their delivery or
promptly after their receipt, as applicable, (but in any event within one
Business Day) hereunder to Moody's at:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Latin American ABS Monitoring
Telephone: x0(000) 000-0000
Telecopier: x0 (000) 000-0000
Any person may change its address by giving notice of such change in the
manner set forth herein. Any notice given to a person by courier shall be
deemed delivered upon receipt thereof (unless the party refuses to accept
delivery, in which case the person shall be deemed to have accepted
delivery upon presentation). Any notice given to a person by telecopy or
facsimile transmission shall be deemed effective on the date it is
actually sent to the intended recipient by confirmed telecopy or facsimile
transmission to the telecopier number specified above.
12.4 Notices to Securityholders; Waiver
(a) Where this Indenture provides for notice to Securityholders of any
event, such notice shall be given by the Trustee and shall be deemed
sufficiently given (unless otherwise herein expressly provided) if
(a) given in writing and mailed, first-class postage prepaid, to
each Securityholder, at its address as it appears in the Security
-81-
Register, not later than the latest date, if any, and not earlier
than the earliest date, if any, prescribed for the giving of such
notice, (b) published in English on at least one Business Day in a
morning edition in a leading newspaper having general circulation in
the Borough of Manhattan, The City of New York, and (c) so long as
the Securities are listed on the Luxembourg stock exchange and the
rules of that exchange so require, published in English in a leading
newspaper having general circulation in Luxembourg (which is
expected to be d'Wort) or, if such publication is not practicable,
in another leading English language daily newspaper with general
circulation in Europe, and, in each case, such notice to be
published on at least one Business Day in a morning edition, whether
or not it shall be published in Saturday, Sunday or holiday
editions. Any notice will be deemed validly given on (i) the date of
mailing in respect of notices given in accordance to clause (a) and
(ii) the date of publication in the case of notices given in
accordance with clause (b) and (if applicable) clause (c). Where
this Indenture provides for notice, such notice may be waived in
writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Securityholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver. In the
case of notice given by mail pursuant to clause (a), neither the
failure to mail such notice, nor any defect in any notice so mailed,
to any particular Securityholder shall affect the sufficiency of
such notice with respect to other Securityholders.
(b) In the case of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by
mail pursuant to clause (a), then such notification as shall be made
with the approval of the Trustee, in addition to notice given
pursuant to clause (b) and (if applicable) clause (c), shall
constitute a sufficient notification for every purpose hereunder.
12.5 Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
12.6 Successors and Assigns
All covenants, agreements, representations and warranties in this
Indenture by the Trustee and the Issuer shall bind and, to the extent
permitted hereby, shall inure to the benefit of and be enforceable by
their respective successors and assigns, whether so expressed or not.
-82-
12.7 Severability Clause
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
12.8 Benefits of Indenture
Nothing in this Indenture or in the Securities, express, or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Securityholders and the holders of Senior Debt, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
12.9 Legal Holidays
In any case where the Redemption Date or the Interest Payment Date of any
Security or any date on which any defaulted interest or Amount in Arrears
is proposed to be paid, shall not be a business day at any Place of
Payment or in the jurisdiction of any Paying Agent then (notwithstanding
any other provision of this Indenture or such Security) payment of
interest and/or principal need not be made at such Place of Payment or by
such Paying Agent on such date, but may be made on the next succeeding
business day at such Place of Payment or by such Paying Agent with the
same force and effect as if made on the Redemption Date or the Interest
Payment Date or on the date on which the defaulted interest is proposed to
be paid, as the case may be, and, except as provided in any supplemental
indenture setting forth the terms of such Security, if such payment is
timely made, no interest shall accrue for the period from and after such
Redemption Date or Interest Payment Date or date for the payment of
defaulted interest, as the case may be, to the date of such payment.
12.10 Currency Rate Indemnity
(a) The U.S. dollar is the sole currency of account and payment for all
sums payable by the Issuer under or in connection with each tranche
of the Securities or this Indenture, including damages. Any amount
received or recovered in a currency other than U.S. dollars (whether
as a result of, or of the enforcement of, a judgment or order of a
court of any jurisdiction, in the winding-up or dissolution of the
Issuer or otherwise) by any Securityholder in respect of any sum
expressed to be due to it from the Issuer will only constitute a
discharge to the Issuer to the extent of the amount in U.S. dollars
which the recipient is able to purchase with the amount so received
or recovered in that other currency on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so). If the
U.S. dollar amount is less than the U.S. dollar amount expressed to
be due to the recipient under any Security, the Issuer will
indemnify it against any loss sustained by it as a result as set
forth in Section 12.10(b). In any event, the Issuer will indemnify
the recipient
-83-
against the cost of making any such purchase. For the purposes of
this Section 12.10, it will be sufficient for the Securityholder to
certify in a satisfactory manner (indicating sources of information
used) that it would have suffered a loss had an actual purchase of
U.S. dollars been made with the amount so received in that other
currency on the date of receipt or recovery (or, if a purchase of
U.S. dollars on such date had not been practicable, on the first
date on which it would have been practicable, it being required that
the need for a change of date be certified in the manner mentioned
above). The indemnities set forth in this Section 12.10 constitute
separate and independent cause of action, shall apply irrespective
of any indulgence granted by any Securityholder and shall continue
in full force and effect despite any other judgment, order, claim or
proof for a liquidated amount in respect of any sum due under any
Security.
(b) The Issuer covenants and agrees that the following provisions shall
apply to conversion of currency in the case of the Securities and
this Indenture:
(i) If for the purpose of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to
convert into a currency (the "JUDGMENT CURRENCY") an amount
due in any other currency (the "BASE CURRENCY"), then the
conversion shall be made at the rate of exchange prevailing on
the business day before the day on which the judgment is given
or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine).
(ii) If there is a change in the rate of exchange prevailing
between the business day before the day on which the judgment
is given or an order of enforcement is made, as the case may
be (or such other date as a court shall determine), and the
date of receipt of the amount due, the Issuer will pay such
additional (or, as the case may be, such lesser) amount, if
any, as may be necessary so that the amount paid in the
judgment currency when converted at the rate of exchange
prevailing on the date of receipt will produce the amount in
the base currency originally due.
(iii) In the event of the winding-up of the Issuer at any time while
any amount or damages owing under any tranche of the
Securities and this Indenture, or any judgment or order
rendered in respect thereof, shall remain outstanding, the
Issuer will indemnify and hold the Securityholders and the
Trustee harmless against any deficiency arising or resulting
from any variation in rates of exchange between (1) the date
as of which the equivalent in U.S. dollars for any tranche of
the amount due or contingently due under the Securities of
such tranche and this Indenture (other than under this clause
(b)(iii)) is calculated for the purposes of such winding-up
and (2) the final date for the filing of proofs of claim in
such winding-up. For the purpose of this clause (b)(iii), the
final date for the filing of proofs of claim in the winding-up
of the Issuer will be the date
-84-
fixed by the liquidator or otherwise in accordance with the
relevant provisions of applicable law as being the latest
practicable date as at which liabilities of the Issuer may be
ascertained for such winding-up prior to payment by the
liquidator or otherwise in respect thereto.
(iv) The obligations contained in clauses (a), (b)(i), (b)(ii) and
(b)(iii) of this Section 12.10 shall constitute separate and
independent obligations from the other Indenture obligations
of the Issuer, shall give rise to separate and independent
causes of action against the Issuer, shall apply irrespective
of any waiver or extension granted by any Securityholder or
the Trustee or either of them from time to time and shall
continue in full force and effect notwithstanding any judgment
or order or the filing of any proof of claim in the winding-up
of the Issuer for a liquidated sum in respect of amounts due
hereunder or under any such judgment or order. Any such
deficiency as aforesaid shall be deemed to constitute a loss
suffered by the holders of the Security or the Trustee, as the
case may be, and no proof or evidence of any actual loss shall
be required by the Issuer or the liquidator or otherwise or
any of them. In the case of subsection (b)(iii) above, the
amount of such deficiency shall not be deemed to be reduced by
any variation in rates of exchange occurring between the said
final date and the date of any liquidating distribution.
(iv) The term "RATE(s) OF EXCHANGE" shall mean the rate of exchange
quoted by Reuters at 10:00 a.m. (New York City time) for spot
purchases of the base currency with the judgment currency and
includes any premiums and costs of exchange payable. In this
Section 12.10, the term "business day" shall mean a business
day in the jurisdiction in which the currency conversion takes
place.
(c) All costs and taxes payable in connection with the procedures
referred to in this Section 12.10 shall be borne by the Issuer.
(d) Any transfer of funds pursuant to this Section 12.10 shall be
subject to compliance with applicable law.
12.11 Communication by Securityholders with Other Securityholders
Securityholders may communicate pursuant to Section 312(b) of the Trust
Indenture Act with other Securityholders with respect to their rights
under this Indenture and the Securities. The Issuer, the Trustee, the
Security Registrar and anyone else shall have the protection of Section
312(c) of the Trust Indenture Act.
-85-
12.12 Governing Law
This Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York, except that the
subordination provisions will be governed by, and construed in accordance
with, the laws of Brazil.
12.13 Waiver of Jury Trial
THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE
ACTIONS OF THE TRUSTEE IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT HEREOF OR THEREOF.
12.14 Submission to Jurisdiction, etc.
(a) The Issuer and the Trustee irrevocably submit to the non-exclusive
jurisdiction of any court of the State of New York or any United
States federal court sitting in the Borough of Manhattan, Xxx Xxxx
xx Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx, and any appellate court from
any thereof. The Issuer and the Trustee irrevocably waive, to the
fullest extent permitted by law, any objection to any suit, action,
or proceeding that may be brought in connection with this Indenture
in such courts whether on the grounds of venue, residence or
domicile or on the ground that any such suit, action or proceeding
has been brought in an inconvenient forum. The Issuer and the
Trustee agree that final, non-appealable judgment in any such suit,
action or proceeding brought in such court shall be conclusive and
binding upon the Issuer or the Trustee, as the case may be, and may
be enforced in any court to the jurisdiction of which the Issuer or
the Trustee is subject by a suit upon such judgment, as the case may
be; provided, that service of process is effected upon the Issuer or
the Trustee in the manner provided by this Indenture.
(b) The Issuer hereby irrevocably appoints and empowers the New York
branch of Banco Bradesco S.A., located at 000 Xxxx Xxxxxx, 00xx/00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized agent, and the
Trustee hereby irrevocably appoints and empowers The Bank of New
York, located at 00 Xxxxx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx 00000
(Corporate Trust Department) as its authorized agent, (each a
"PROCESS AGENT") to accept and acknowledge for and on their behalf,
and on behalf of their property, service of any and all legal
process, summons, notices and documents which may be served in any
such suit, action or proceeding in any New York State court or
United States federal court sitting in the State of New York in the
Borough of Manhattan and any appellate court from any thereof, which
service may be made on such designee, appointee and agent in
accordance with legal procedures prescribed for such courts. The
Issuer and the Trustee will take any and all action necessary to
continue such designation in full
-86-
force and effect and to advise the Issuer or the Trustee, as
applicable, of any change of address of such Process Agent; should
such Process Agent become unavailable for this purpose for any
reason, the Issuer or the Trustee, as applicable, will promptly and
irrevocably designate a new Process Agent within New York, New York,
which will agree to act as such, with the powers and for the
purposes specified in this subsection (b). The Issuer irrevocably
consents and agrees to the service of any and all legal process,
summons, notices and documents out of any of the aforesaid courts in
any such action, suit or proceeding by hand delivery to it at its
address set forth in Section 12.3 or to any other address of which
it shall have given notice pursuant to Section 12.3 or to its
Process Agent. Service upon the Issuer or the Trustee or a Process
Agent as provided for herein will, to the fullest extent permitted
by law, constitute valid and effective personal service upon it and
the failure of any Process Agent to give any notice of such service
to the Issuer or the Trustee, as applicable, shall not impair or
affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
12.15 Execution in Counterparts
This Indenture may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-87-
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
BANCO BRADESCO S.A.
ACTING THROUGH ITS GRAND CAYMAN BRANCH
By: /s/ XXXX XXXXXXXXX XXXXX XX XXXXX
Title: Diretor Gerente
THE BANK OF NEW YORK TRUST
COMPANY (CAYMAN) LIMITED,
AS TRUSTEE, SECURITY REGISTRAR AND PAYING AGENT
By: /s/ XXXXXXXXX XXXXXXX
Title: Assistant Treasurer
WITNESSES:
-00-
XXXXX XXXXXX
XXXXXX XXXXXXX
XXXXXXX XXXX INDIES
On this 3rd day of June, 2005 before me, a notary public within and
for said county, personally appeared Xxxxxxxxx Xxxxxxx to me personally known
who being duly sworn, did say that he is a Director of The Bank of New York
Trust Company (Cayman) Limited, one of the persons described in and which
executed the foregoing instrument, and acknowledges said instrument to be the
free act and deed of said persons.
By: /s/ XXXXXXX XXXX
Title: NOTARY PUBLIC, STATE OF NEW YORK
No. 01MA6030711
Qualified in Kings County
Commission Expires September 20, 2005
Certificate Filed in NY County
[NOTARIAL SEAL]
-89-
EXHIBIT A(1)
FORM OF RESTRICTED GLOBAL SECURITY
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) PURCHASING THIS SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS; (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE ISSUER OR ANY AFFILIATE THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER", THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, IN A
PRINCIPAL AMOUNT OF NOT LESS THAN U.S. DOLLAR 100,000, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 903 OR
904 UNDER REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS RESTRICTIVE LEGEND. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY
A(1)-1
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE, AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO IN THIS SECURITY.
A(1)-2
BANCO BRADESCO S.A.,
ACTING THROUGH ITS GRAND CAYMAN BRANCH
8.875% Perpetual Non-cumulative Junior Subordinated Securities
GLOBAL REGISTERED SECURITY
No. X-x
CUSIP No.: 00000XXX0
ISIN No.: US05946NAE58
Initial Principal Amount: U.S.$[.]
Initial Issuance Date: June 3, 2005
This Security is one of a duly authorized issue of Securities of Banco Bradesco
S.A., a company incorporated under the laws of the Federative Republic of
Brazil, acting through its Grand Cayman branch (the "ISSUER"), designated as its
8.875% Perpetual Non-cumulative Junior Subordinated Securities (the
"SECURITIES"), issued in an initial aggregate principal amount of
U.S.$300,000,000 under an indenture (the "INDENTURE") dated as of June 3, 2005
between the Issuer and The Bank of New York Trust Company (Cayman) Limited as
Trustee (the "TRUSTEE", which term includes any successor trustee under the
Indenture), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Issuer, the Trustee and the Securityholders, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. All
terms used in this Security which are defined in the Indenture and not otherwise
defined herein shall have the meanings assigned to them in the Indenture.
The Securities include the Initial Securities and the Exchange Securities issued
in exchange for the Initial Securities in accordance with the Registration
Rights Agreement. The Initial Securities and the Exchange Securities are treated
as a single class of securities under the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co. or its
registered assigns, as nominee of The Depository Trust Company ("DTC") and the
holder of record of this Security (the "HOLDER" or "SECURITYHOLDER"), the
principal amount specified herein in U.S. dollars on any Redemption Date upon
surrender hereof at the office or agency of the Trustee referred to below;
provided, however, if the Issuer has provided the certificate required to be
presented under Section 3.5 of the Indenture, the principal amount of the
Securities shall be due as provided in the Indenture.
The Issuer promises to pay Interest on the outstanding principal amount hereof
from and including June 3, 2005, or from the most recent Payment Date to which
interest has been paid or duly provided for, quarterly on March 3, June 3,
September 3 and December 3 of each year, commencing on September 3, 2005, (each
an "INTEREST PAYMENT DATE"), at a rate equal to 8.875% per annum; provided, that
(i) interest on the then outstanding principal amount hereof
A(1)-3
after any Redemption Date and (ii) interest on any overdue interest, shall
accrue (to the extent lawful) at the rate of Interest per annum applicable to
the Securities; provided, further, that the Issuer may suspend the payment of
interest under the circumstances described in Section 2.8 of the Indenture.
Interest payable, and punctually paid or duly provided for, on this Security on
any Interest Payment Date will, as provided in the Indenture, be paid in U.S.
dollars to the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on the relevant Record Date
for such interest payment.
Principal or interest on any Security that is payable on any Interest Payment
Date or Redemption Date as provided herein shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business, New York City time, on the Record Date for such payment.
Payment of principal of and interest on the Securities shall be made at the
Place of Payment (or, if such office is not in The City of New York, at either
such office or an office to be maintained in such City) as provided herein.
Payments in respect of Global Securities will be made by wire transfer of
immediately available funds to DTC. Subject to Section 12.9 of the Indenture, in
the event the date for any payment of the principal of or interest on any
Security is not a Business Day, then payment will be made on the next Business
Day with the same force and effect as if made on the nominal date of any such
date for such payment and no additional interest will accrue on such payment as
a result of such payment being made on the next succeeding Business Day.
Interest accrued with respect to this Security shall be calculated based on a
360-day year of twelve 30-day months.
This Security does not purport to summarize the Indenture and reference is made
to the Indenture for information with respect to interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby.
The Securities are subject to redemption by the Issuer on the terms and
conditions specified in the Indenture.
If a Payment Default shall occur and be continuing, holders shall be entitled to
the rights and remedies provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the Trustee only to
the extent and in the circumstances permitted by the Indenture.
The Securities shall be issued only in fully registered form, without coupons.
Subject to Section 2.2(b) of the Indenture, Securities sold pursuant to Rule
144A shall be issued in the form of a beneficial interest in one or more global
securities in denominations of U.S.$2,000 and integral multiples of U.S.$1,000
in excess thereof.
Prior to and at the time of due presentment of this Security for registration of
transfer, the Issuer, the Trustee, the Security Registrar and any agent of the
Issuer, the Security Registrar 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 is overdue, and neither the Issuer, the Trustee, the Security
Registrar nor any agent thereof shall be affected by notice to the contrary.
A(1)-4
Unless the certificate of authentication hereon has been duly executed by the
Authenticating Agent by manual signature, this Security shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
THIS SECURITY SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK, EXCEPT THAT THE SUBORDINATION PROVISIONS WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF BRAZIL.
A(1)-5
IN WITNESS WHEREOF, the Issuer has caused this Security to be duly executed.
BANCO BRADESCO S.A.
ACTING THROUGH ITS GRAND CAYMAN BRANCH
By:_______________________________________
Name:
Title:
A(1)-6
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST
COMPANY (CAYMAN) LIMITED,
as Trustee
By:_________________________________
Authorized Signatory
Date:
A(1)-7
SCHEDULE OF TRANSFERS AND EXCHANGES
Aggregate Authorized signature
principal amount of Current principal by or on behalf
Date of Securities transferred or amount of this of the Security
transfer or exchange exchanged Security Registrar
-------------------- ------------------------- ----------------- --------------------
A(1)-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: For value received, (I)
or (we) hereby sell, assign and transfer this Security to
________________________________________________________________________________
(Insert Assignee's Soc. Sec. or Tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or Type Assignee's Name, Address and Zip Code)
and irrevocably appoint ________________________________________________________
Attorney to transfer this Security on the books of the Security Registrar with
full power of substitution in the premises.
________________________________________________________________________________
Date:____________________
Your Signature_____________________________
(Sign exactly as your name appears on the
face of this Security)
A(1)-9
EXHIBIT A(2)
FORM OF REGULATION S GLOBAL SECURITY
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON, IS NOT ACQUIRING
THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) BY ITS ACCEPTANCE HEREOF, AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, ONLY (A) TO THE ISSUER OR ANY
AFFILIATE THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
IN COMPLIANCE WITH RULE 903 OR 904 UNDER REGULATION S UNDER THE SECURITIES ACT,
OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
RESTRICTIVE LEGEND. THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE SECURITIES ARE
OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B)
THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY
A(2)-1
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO IN THIS SECURITY.
A(2)-2
BANCO BRADESCO S.A.,
ACTING THROUGH ITS GRAND CAYMAN BRANCH
8.875% Perpetual Non-cumulative Junior Subordinated Securities
GLOBAL REGISTERED SECURITY
No. U-l
CUSIP No.: X0000XXX0
ISIN No.: USG0732RAB45
Initial Principal Amount: U.S.$[.]
Initial Issuance Date: June 3, 2005
This Security is one of a duly authorized issue of Securities of Banco Bradesco
S.A., a company incorporated under the laws of the Federative Republic of
Brazil, acting through its Grand Cayman branch (the "ISSUER"), designated as its
8.875% Perpetual Non-cumulative Junior Subordinated Securities(the
"SECURITIES"), issued in an initial aggregate principal amount of
U.S.$300,000,000 under an indenture (the "INDENTURE") dated as of June 3, 2005
between the Issuer and The Bank of New York Trust Company (Cayman) Limited as
Trustee (the "TRUSTEE", which term includes any successor trustee under the
Indenture), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Issuer, the Trustee and the Securityholders, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. All
terms used in this Security which are defined in the Indenture and not otherwise
defined herein shall have the meanings assigned to them in the Indenture.
The Securities include the Initial Securities and the Exchange Securities issued
in exchange for the Initial Securities in accordance with the Registration
Rights Agreement. The Initial Securities and the Exchange Securities are treated
as a single class of securities under the Indenture.
The Issuer, for value received, hereby promises to pay to The Bank of New York
Depositary (Nominees) Limited or its registered assigns, as nominee of The
Depository Trust Company ("DTC") and the holder of record of this Security (the
"HOLDER" or "SECURITYHOLDER"), the principal amount specified herein in U.S.
dollars on any Redemption Date upon surrender hereof at the office or agency of
the Trustee referred to below.
The Issuer promises to pay Interest on the Outstanding principal amount hereof
from and including June 3, 2005, or from the most recent Payment Date to which
interest has been paid or duly provided for, quarterly on March 3, June 3,
September 3 and December 3 of each year, commencing on September 3, 2005, (each
an "INTEREST PAYMENT DATE"), at a rate equal to 8.875% per annum; provided, that
(i) interest on the then outstanding principal amount hereof after any
Redemption Date and (ii) interest on any overdue interest, shall accrue (to the
extent lawful) at the rate of Interest per annum applicable to the Securities;
provided, further, that the
A(2)-3
Issuer may suspend the payment of Interest under the circumstances described in
Section 2.8 of the Indenture. Interest payable, and punctually paid or duly
provided for, on this Security on any Interest Payment Date will, as provided in
the Indenture, be paid in U.S. dollars to the Person in whose name this Security
(or one or more predecessor Securities) is registered at the close of business
on the relevant Record Date for such interest payment.
Principal or Interest on any Security that is payable on any Interest Payment
Date or Redemption Date as provided herein shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business, New York City time, on the Record Date for such payment.
Payment of principal of and interest on the Securities shall be made at the
Place of Payment (or, if such office is not in The City of New York, at either
such office or an office to be maintained in such City) as provided herein.
Payments in respect of Global Securities will be made by wire transfer of
immediately available funds to DTC. Subject to Section 12.9 of the Indenture, in
the event the date for any payment of the principal of or interest on any
Security is not a Business Day, then payment will be made on the next Business
Day with the same force and effect as if made on the nominal date of any such
date for such payment and no additional interest will accrue on such payment as
a result of such payment being made on the next succeeding Business Day.
Interest accrued with respect to this Security shall be calculated based on a
360-day year of twelve 30-day months.
This Security does not purport to summarize the Indenture and reference is made
to the Indenture for information with respect to interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby.
The Securities are subject to redemption by the Issuer on the terms and
conditions specified in the Indenture.
If a Payment Default shall occur and be continuing, holders shall be entitled to
the rights and remedies provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the Trustee only to
the extent and in the circumstances permitted by the Indenture.
The Securities shall be issued only in fully registered form, without coupons.
Subject to Section 2.2(b) of the Indenture, Securities sold pursuant to
Regulation S shall be issued in the form of beneficial interests in one or more
global securities in denominations of U.S.$2,000 and integral multiples of
U.S.$1,000 in excess thereof.
Prior to and at the time of due presentment of this Security for registration of
transfer, the Issuer, the Trustee, the Security Registrar and any agent of the
Issuer, the Security Registrar 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 is overdue, and neither the Issuer, the Trustee, the Security
Registrar nor any agent thereof shall be affected by notice to the contrary.
A(2)-4
Unless the certificate of authentication hereon has been duly executed by the
Authenticating Agent by manual signature, this Security shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
THIS SECURITY SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK, EXCEPT THAT THE SUBORDINATION PROVISIONS WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF BRAZIL.
A(2)-5
IN WITNESS WHEREOF, the Issuer has caused this Security to be duly executed.
BANCO BRADESCO S.A.
ACTING THROUGH ITS GRAND CAYMAN BRANCH
By:_______________________________________
Name:
Title:
A(2)-6
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST
COMPANY (CAYMAN) LIMITED,
as Trustee
By:__________________________________
Authorized Signatory
Date:
A(2)-7
SCHEDULE OF TRANSFERS AND EXCHANGES
Aggregate Authorized signature
principal amount of Current principal by or on behalf
Date of Securities transferred or amount of this of the Security
transfer or exchange exchanged Security Registrar
-------------------- ------------------------- ----------------- --------------------
A(2)-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: For value received, (I)
or (we) hereby sell, assign and transfer this Security to
________________________________________________________________________________
(Insert Assignee's Soc. Sec. or Tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or Type Assignee's Name, Address and Zip Code)
and irrevocably appoint ________________________________________________________
Attorney to transfer this Security on the books of the Security Registrar with
full power of substitution in the premises.
________________________________________________________________________________
Date:______________________
Your Signature:_______________________________
(Sign exactly as your name appears on the
face of this Security)
A(2)-9
EXHIBIT A(3)
FORM OF EXCHANGE SECURITY
BANCO BRADESCO S.A.
ACTING THROUGH ITS GRAND CAYMAN BRANCH
8.875% PERPETUAL NON-CUMULATIVE JUNIOR SUBORDINATED SECURITIES
GLOBAL REGISTERED SECURITY
No. [.]
CUSIP No.: [.]
ISIN No.: [.]
Initial Principal Amount: U.S.$[.]
Initial Issuance Date: June 3, 2005
This Security is one of a duly authorized issue of Securities of Banco Bradesco
S.A., a company incorporated under the laws of the Federative Republic of
Brazil, acting through its Grand Cayman branch (the "ISSUER"), designated as its
8.875% Perpetual Non-cumulative Junior Subordinated Securities (the
"SECURITIES"), issued in an initial aggregate principal amount of
U.S.$300,000,000 under an indenture (the "INDENTURE") dated as of June 3, 2005
between the Issuer and The Bank of New York Trust Company (Cayman) Limited as
Trustee (the "TRUSTEE", which term includes any successor trustee under the
Indenture), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Issuer, the Trustee and the Securityholders, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. All
terms used in this Security which are defined in the Indenture and not otherwise
defined herein shall have the meanings assigned to them in the Indenture.
The Securities include the Initial Securities and the Exchange Securities issued
in exchange for the Initial Securities in accordance with the Registration
Rights Agreement. The Initial Securities and the Exchange Securities are treated
as a single class of securities under the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co. or its
registered assigns, as nominee of The Depository Trust Company ("DTC") and the
holder of record of this Security (the "HOLDER" or "SECURITYHOLDER"), the
principal amount specified herein in U.S. dollars on any Redemption Date upon
surrender hereof at the office or agency of the Trustee referred to below;
provided, however, if the Issuer has provided the certificate required to be
presented under Section 2.6 of the Indenture, the principal amount of the
Securities shall be due as provided in the Indenture.
A(3)-1
The Issuer promises to pay Interest on the outstanding principal amount hereof
from and including June 3, 2005, or from the most recent Payment Date to which
Interest has been paid or duly provided for, quarterly on March 3, June 3,
September 3 and December 3 of each year, commencing on September 3, 2005 (each
an "INTEREST PAYMENT DATE"), at a rate equal to 8.875% per annum; provided, that
(i) Interest on the then outstanding principal amount hereof after any
Redemption Date and (ii) Interest on any overdue Interest, shall accrue (to the
extent lawful) at the rate of Interest per annum applicable to the Securities;
provided, further, that the Issuer may suspend the payment of Interest under the
circumstances described in Section 2.8 of the Indenture. Interest payable, and
punctually paid or duly provided for, on this Security on any Interest Payment
Date will, as provided in the Indenture, be paid in U.S. dollars to the Person
in whose name this Security (or one or more predecessor Securities) is
registered at the close of business on the relevant Record Date for such
interest payment.
Principal or interest on any Security that is payable on any Interest Payment
Date or Redemption Date as provided herein shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business, New York City time, on the Record Date for such payment.
Payment of principal of and interest on the Securities shall be made at the
Place of Payment (or, if such office is not in The City of New York, at either
such office or an office to be maintained in such City) as provided herein.
Subject to Section 12.9 of the Indenture, in the event the date for any payment
of the principal of or interest on any Security is not a Business Day, then
payment will be made on the next Business Day with the same force and effect as
if made on the nominal date of any such date for such payment and no additional
interest will accrue on such payment as a result of such payment being made on
the next succeeding Business Day. Interest accrued with respect to this Security
shall be calculated based on a 360-day year of twelve 30-day months.
This Security does not purport to summarize the Indenture and reference is made
to the Indenture for information with respect to interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby.
The Securities are subject to redemption by the Issuer on the terms and
conditions specified in the Indenture.
If a Payment Default shall occur and be continuing, holders shall be entitled to
the rights and remedies provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the Trustee only to
the extent and in the circumstances permitted by the Indenture.
The Securities shall be issued only in fully registered form, without coupons.
Subject to Section 2.2(b) of the Indenture, Exchange Securities shall be issued
in the form of beneficial interests in one or more global securities in
denominations of U.S.$2,000 and integral multiples of $1,000 in excess thereof.
A(3)-2
Prior to and at the time of due presentment of this Security for registration of
transfer, the Issuer, the Trustee, the Security Registrar and any agent of the
Issuer, the Security Registrar 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 is overdue, and neither the Issuer, the Trustee, the Security
Registrar nor any agent thereof shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been duly executed by the
Authenticating Agent by manual signature, this Security shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
THIS SECURITY SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK, EXCEPT THAT THE SUBORDINATION PROVISIONS WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF BRAZIL.
A(3)-3
IN WITNESS WHEREOF, the Issuer has caused this Security to be duly executed.
BANCO BRADESCO S.A.
ACTING THROUGH ITS GRAND CAYMAN BRANCH
By:_________________________________________
Name:
Title:
A(3)-4
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST
COMPANY (CAYMAN) LIMITED,
as Trustee
By:__________________________________
Authorized Signatory
Date:
A(3)-5
SCHEDULE OF TRANSFERS AND EXCHANGES
Aggregate Authorized signature
principal amount of Current principal by or on behalf
Date of Securities transferred or amount of this of the Security
transfer or exchange exchanged Security Registrar
-------------------- ------------------------- ----------------- --------------------
A(3)-6
ASSIGNMENT FORM
To assign this Security, fill in the form below: For value received, (I)
or (we) hereby sell, assign and transfer this Security to
________________________________________________________________________________
(Insert Assignee's Soc. Sec. or Tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or Type Assignee's Name, Address and Zip Code)
and irrevocably appoint ________________________________________________________
Attorney to transfer this Security on the books of the Security Registrar with
full power of substitution in the premises.
________________________________________________________________________________
Date:_______________________
Your Signature_______________________________
(Sign exactly as your name appears on the
face of this Security)
A(3)-7
EXHIBIT B
FORM OF AUTHENTICATION AND DELIVERY ORDER
The Bank of New York Trust Company (Cayman) Limited
as Trustee
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxx 00X
Xxx Xxxx, XX 00000
Attention: Global Finance Unit
Ladies and Gentlemen:
Pursuant to Section 2.3 of the Indenture dated as of June 3, 2005 (the
"INDENTURE") by and among Banco Bradesco S.A., acting through its Grand Cayman
branch (the "ISSUER") and The Bank of New York Trust Company (Cayman) Limited,
as Trustee, you are hereby ordered in your capacity as such to authenticate
U.S.$300,000,000 in principal amount of the Issuer's 8.875% Perpetual
Non-cumulative Junior Subordinated Securities, in the manner provided in the
Indenture, in global form in the amount of [specify amount in U.S. dollars] [in
respect of the Restricted Global Security] [and] [specify amount in U.S.
dollars] in respect of the Regulation S Global Security] heretofore duly
executed by the proper Authorized Officer of the Issuer and delivered to you as
provided in the Indenture and to hold the Restricted Global Securities in your
capacity as custodian for The Depository Trust Company.
BANCO BRADESCO S.A.
ACTING THROUGH ITS GRAND CAYMAN BRANCH
By:_______________________________________
Name:
Title:
B-1
EXHIBIT C
FORM OF REGULATION S CERTIFICATE
(For transfers pursuant to Section 2.13(e)(i),
(iii) and (iv) of the Indenture)
To: The Bank of New York Trust Company (Cayman) Limited as Security Registrar
Re: 8.875% PERPETUAL NON-CUMULATIVE JUNIOR SUBORDINATED SECURITIES OF BANCO
BRADESCO S.A., ACTING THROUGH ITS GRAND CAYMAN BRANCH (THE "SECURITIES")
Reference is made to the Indenture, dated as of June 3, 2005, (the "INDENTURE"),
between Banco Bradesco S.A., acting through its Grand Cayman branch (the
"ISSUER") and The Bank of New York Trust Company (Cayman) Limited, as trustee.
Terms used herein and defined in the Indenture or in Regulation S under the U.S.
Securities Act of 1933, as amended (the "SECURITIES ACT") are used herein as so
defined.
This certificate relates to U.S.$[.] principal amount of Securities, which are
evidenced by the following certificate(s) (the "SPECIFIED SECURITIES"):
CUSIP No(s). X0000XXX0
CERTIFICATE No(s). U-1
The person in whose name this certificate is executed below (the "UNDERSIGNED")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER."
If the Specified Securities are represented by a Global Security, they are held
through DTC or an Agent Member in the name of the undersigned, as or on behalf
of the Owner. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the undersigned, as or on behalf of
the Owner.
The Owner has requested that the Specified Securities be transferred to a person
(the "TRANSFEREE") who will take delivery in the form of a Regulation S
Security. In connection with such transfer, the Owner hereby certifies that,
unless the Specified Securities are being transferred to the Issuer or such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 903 or 904 or
Rule 144 under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
1. RULE 903 OR 904 TRANSFERS. If the transfer is being effected in accordance
with Rule 903 or 904:
C-1
(a) if the transfer is being effected in accordance with Rule 904, the
Owner is not a distributor of the Securities, an affiliate of the
Issuer, an affiliate of any distributor of the Securities or a
person acting on behalf of any of the foregoing;
(b) the offer of the Specified Securities was not made to a person in
the United States;
(c) either:
(i) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting
on its behalf reasonably believed that the Transferee was
outside the United States (within the meaning of Regulation
S), or
(ii) the transaction is being executed in, on or through the
facilities of a designated offshore securities market (within
the meaning of Regulation S) and neither the Owner nor any
person acting on its behalf knows that the transaction has
been prearranged with a buyer in the United States;
(d) no directed selling efforts have been made in the United States by
the Owner, any affiliate or any person acting on their behalf;
(e) if the transfer is being effected in accordance with Rule 903, the
requirements of Rule 903(b)(2) have been satisfied;
(f) if the transfer is being effected in accordance with Rule 904 and if
the Owner is a dealer in Securities or has received a selling
concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Distribution
Compliance Period, then the requirements of Rule 904(b)(1) have been
satisfied;
(g) if the transfer is being effected in accordance with Rule 904 and if
the Owner is an affiliate of the Issuer or of a distributor solely
by virtue of holding a position as an officer or director of such
person, then the requirements of Rule 904(b)(2) have been satisfied;
and
(h) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
2. RULE 144A TRANSFERS. If the transfer is being effected pursuant to Rule
144:
(a) the transfer is occurring after June 3, 2006 and is being effected
in accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(b) the transfer is occurring after June 3, 2007 and the Owner is not,
and during the preceding three months has not been, an affiliate of
the Issuer.
C-2
3. TRANSFERS DURING THE DISTRIBUTION COMPLIANCE PERIOD. If the Transferee
will take delivery in the form of a beneficial interest in the Regulation
S Global Security and the transfer is being effected during the
Distribution Compliance Period, such beneficial interest will be held
immediately after such transfer only in or through accounts maintained by
DTC (or by Agent Members acting for the account thereof).
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate to any interested
party in such proceeding. This certificate and the statements contained
herein are made for your benefit and the benefit of the Issuer, the
Trustee and the initial purchasers of the Securities.
Dated:
____________________________________________________
(Print the name of the undersigned, as such term is
defined in the second paragraph of this certificate)
By:_________________________________________________
Name:
Title:
(If the undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the undersigned must be stated)
C-3
EXHIBIT D
FORM OF RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 2.13(e)(ii), (iii), (iv) and
(v) of the Indenture)
To: The Bank of New York Trust Company (Cayman) Limited as Security Registrar
Re: 8.875% PERPETUAL NON-CUMULATIVE JUNIOR SUBORDINATED SECURITIES OF BANCO
BRADESCO S.A., ACTING THROUGH ITS GRAND CAYMAN BRANCH (THE "SECURITIES")
Reference is made to the Indenture, dated as of June 3, 2005 (the "INDENTURE"),
between Banco Bradesco S.A., acting through its Grand Cayman branch (the
"ISSUER") and The Bank of New York Trust Company (Cayman) Limited, as trustee.
Terms used herein and defined in the Indenture or in Regulation S the U.S.
Securities Act of 1933, as amended (the "SECURITIES ACT") are used herein as so
defined.
This certificate relates to U.S.$ [.] principal amount of Securities, which are
evidenced by the following certificate(s) (the "SPECIFIED SECURITIES"):
CINS No(s). 00000XXX0
CERTIFICATE No(s). R-1
The person in whose name this certificate is executed below (the "UNDERSIGNED")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through DTC or an Agent Member in the name of the undersigned, as or on behalf
of the Owner. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the undersigned, as or on behalf of
the Owner.
The Owner has requested that the Specified Securities be transferred to a person
(the "TRANSFEREE") who will take delivery in the form of a Restricted Security.
In connection with such transfer, the Owner hereby certifies that, unless the
Specified Securities are being transferred to the Issuer or such transfer is
being effected pursuant to an effective registration statement under the
Securities Act, it is being effected in accordance with Rule 144A or Rule 144
under the Securities Act or the exemption from the registration requirements
under the Securities Act set forth in paragraph 3 below, as the case may be, and
with all applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
1. RULE 144A TRANSFERS. If the transfer is being effected in accordance with
Rule 144A:
(a) the Specified Securities are being transferred to a person that the
Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A,
acquiring for its own account or for the account
D-1
of one or more qualified institutional buyers in a transaction
meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any State of the United States; and
(b) the Owner and any person acting on its behalf have taken reasonable
steps to ensure that the Transferee is aware that the Owner may be
relying on Rule 144A in connection with the transfer; and
2. RULE 144 TRANSFERS. If the transfer is being effected pursuant to Rule
144:
(a) the transfer is occurring after June 3, 2006 and is being effected
in accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(b) the transfer is occurring after June 3, 2007 and the Owner is not,
and during the preceding three months has not been, an affiliate of
the Issuer; and
3. OTHER APPLICABLE EXEMPTIONS. If the transfer is being effected pursuant to
another exemption from the registration requirements under the Securities
Act:
(a) the transfer is being effected in accordance with the following
exemption from the registration requirements under the Securities
Act:__________________(the "ALTERNATIVE EXEMPTION");
(b) the Alternative Exemption is available to the Owner for such
transfer, and the Owner has taken all steps necessary to effect the
transfer in accordance with the Alternative Exemption; and
(c) attached hereto are such documents and/or an opinion of U.S. counsel
stating that the Alternative Exemption is available to the Owner for
such transfer as required by the Security Registrar in connection
herewith.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate to any interested party in such proceeding. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Issuer, the Trustee and the initial purchasers of the Securities.
D-2
Dated:
____________________________________________________
(Print the name of the undersigned, as such term is
defined in the second paragraph of this certificate)
By:_________________________________________________
Name:
Title:
(If the undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the undersigned must be stated)
D-3
EXHIBIT E
FORM OF UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Restrictive Legends pursuant to Section
[2.13(j)] of the Indenture)
To: The Bank of New York Trust Company (Cayman) Limited as Security Registrar
Re: 8.875% PERPETUAL NON-CUMULATIVE JUNIOR SUBORDINATED SECURITIES OF BANCO
BRADESCO S.A., ACTING THROUGH ITS GRAND CAYMAN BRANCH (THE "SECURITIES")
Reference is made to the Indenture, dated as of June 3, 2005 (the "INDENTURE"),
between Banco Bradesco S.A., acting through its Grand Cayman branch (the
"ISSUER") and The Bank of New York Trust Company (Cayman) Limited, as trustee.
Terms used herein and defined in the Indenture or in Regulation S under the U.S.
Securities Act of 1933, as amended (the "SECURITIES ACT") are used herein as so
defined.
This certificate relates to U.S.$ [.] principal amount of Securities, which are
evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s). [.]
CERTIFICATE No(s). [.]
The person in whose name this certificate is executed below (the "UNDERSIGNED")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through Euroclear or Clearstream, Luxembourg or an Agent Member in the name of
the undersigned, as or on behalf of the Owner. If the Specified Securities are
not represented by a Global Security, they are registered in the name of the
undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Restrictive Legend pursuant to Section
2.13(j) of the Indenture. In connection with such exchange, the Owner hereby
certifies that the exchange is occurring after June 3, 2007 and the Owner is
not, and during the preceding three months has not been, an affiliate of the
Issuer. The Owner also acknowledges that any future transfers of the Specified
Securities must comply with all applicable securities laws of the states of the
United States and other jurisdictions. Attached hereto are such documents and/or
opinions of U.S. counsel as may be reasonably required by the Issuer in
connection herewith.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate to any interested party in such proceeding. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Issuer, the Trustee and the initial purchasers of the Securities.
E-1
Dated:
____________________________________________________
(Print the name of the undersigned, as such term is
defined in the second paragraph of this certificate)
By:_________________________________________________
Name:
Title:
(If the undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the undersigned must be stated)
E-2
