Vale S.A 6-K, filed Feb 27, 2025
Vale S.A. (VALE)
About this 6-K
Vale S.A filed this 6-K on February 27, 2025.
a
United States
Securities and Exchange Commission
Washington, D.C. 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16 of the
Securities Exchange Act of 1934
For the month of
February 2025
Vale S.A.
Praia de Botafogo nº 186, offices 1101, 1701 and 1801, Botafogo
22250-145 Rio de Janeiro, RJ, Brazil
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
(Check One) Form 20-F x Form 40-F o
INCORPORATION BY REFERENCE
This report is incorporated by reference in the registration statements on Form F-3/A filed by us and Vale Overseas Limited with the U.S. Securities and Exchange Commission on April 25, 2023 (File Nos. 333-271248 and 333-271248-01, respectively), and shall be deemed to be a part thereof from the date on which this report is furnished to the SEC, to the extent not superseded by documents or reports subsequently filed or furnished.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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VALE S.A.
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| By: | /s/ Adriana Barbosa Areias | |
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Name: Adriana Barbosa Areias Title: Attorney-in-fact | ||
| By: | /s/ Rodrigo Sebollela Duque Estrada Regis | |
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Name: Rodrigo Sebollela Duque Estrada Regis Title: Attorney-in-fact | ||
| Date: February 27, 2025 | ||
EXHIBIT INDEX
AMENDMENT
dated as of February 27, 2025
__________________________
with respect to the:
SECOND SUPPLEMENTAL INDENTURE
governing
US$1,000,000,000
6.400% Guaranteed Notes due 2054
dated as of June 28, 2024
among
VALE OVERSEAS LIMITED
as Issuer
and
VALE S.A.
as Guarantor
and
THE BANK OF NEW YORK MELLON
as Trustee
Amendment, dated as of February 27, 2025, among VALE OVERSEAS LIMITED, a Cayman Islands exempted company incorporated with limited liability (herein called the “Company”), having its registered office at Captiva Global Financial Services, 23 Lime Tree Bay Avenue, Grand Cayman KY1-1209, Cayman Islands, VALE S.A., a company organized under the laws of the Federative Republic of Brazil (herein called the “Guarantor”), having its principal office at Praia de Botafogo 186, offices 1101, 1701 and 1801, Botafogo, 22250-145 Rio de Janeiro, RJ, Brazil, and THE BANK OF NEW YORK MELLON, a banking corporation duly organized and existing under the laws of the State of New York, having its principal corporate trust office at 240 Greenwich Street, New York, New York 10286, as Trustee (herein called the “Trustee”), to the Second Supplemental Indenture, dated as of June 28, 2024, among the Company, the Guarantor and the Trustee (the “Second Supplemental Indenture”).
W I T N E S S E T H:
WHEREAS, the Company and the Guarantor have heretofore executed and delivered to the Trustee the Second Supplemental Indenture to the Amended and Restated Indenture dated as of August 4, 2021 (the “Base Indenture”), providing for the issuance of US$1,000,000,000 in aggregate principal amount of the Company’s 6.400% Guaranteed Notes due 2054 (the “Notes”);
WHEREAS, Section 2.1 of the Second Supplemental Indenture provides that the Company may, from time to time and without the consent of the holders of the Notes, issue additional notes (the “Additional Notes”) on terms and conditions identical to those of the Notes, which Additional Notes shall increase the aggregate principal amount of, and shall be consolidated and form a single series with, the Notes;
WHEREAS, the Company and the Guarantor desire by this Amendment to such Second Supplemental Indenture to issue Additional Notes on terms and conditions identical to those of the Notes, which Additional Notes shall increase the aggregate principal amount of, and shall be consolidated and form a single series with, the Notes. The Additional Notes will also be known as the Company’s 6.400% Guaranteed Notes due 2054, the terms and provisions of which are as specified in the Second Supplemental Indenture as further supplemented by this Amendment to the Second Supplemental Indenture; and
WHEREAS, the Company and the Guarantor have duly authorized the execution and delivery of this Amendment to the Second Supplemental Indenture and all things necessary to make this Amendment to the Second Supplemental Indenture a valid and binding legal obligation of the Company and the Guarantor according to its terms have been done.
Now, therefore, for and in consideration of the foregoing premises, the Company and the Guarantor covenant and agree with the Trustee:
1. Capitalized Terms.
Capitalized terms used herein without definition shall have the meanings assigned to them in the Second Supplemental Indenture.
2. General Terms and Conditions of the Additional Notes.
There are hereby authorized and established Additional Notes designated the “6.400% Guaranteed Notes due 2054.” The Additional Notes shall increase the aggregate principal amount of, and shall be consolidated and form a single series with, the Notes. The Additional Notes will initially be limited to an aggregate principal amount of US$750,000,000. Together, the aggregate principal amount of the Additional Notes and the Notes will be US$1,750,000,000. The Additional Notes shall (subject to Section 10.6 of the Base Indenture) be unsecured and bear interest at the rate of 6.400% per annum, from December 28, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, payable semi-annually on June 28 and December 28 of each year, commencing on June 28, 2025 (each, an “Interest Payment Date”), until the principal thereof is paid or made available for payment. The terms and conditions of the Additional Notes are identical to those of the Notes as specified in the Second Supplemental Indenture as further supplemented by this Amendment to the Second Supplemental Indenture.
3. Miscellaneous Provisions.
3.1. This Amendment to the Second Supplemental Indenture is a supplement to the Second Supplemental Indenture.
This Amendment to the Second Supplemental Indenture is executed as and shall constitute an indenture supplemental to the Second Supplemental Indenture and shall be construed in connection with and as part of the Second Supplemental Indenture. The Second Supplemental Indenture shall be deemed to be modified as herein provided, but except as modified hereby, the Second Supplemental Indenture shall continue in full force and effect. The Second Supplemental Indenture as modified hereby shall be read, taken, and construed as one and the same instrument.
3.2. References to this Amendment to the Second Supplemental Indenture.
Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Amendment to the Second Supplemental Indenture may refer to the Second Supplemental Indenture without making specific reference to this Amendment to the Second Supplemental Indenture, but nevertheless all such references shall be deemed to include this Amendment to the Second Supplemental Indenture unless the context otherwise requires.
3.3. Execution in Counterparts.
This Amendment to the Second Supplemental Indenture may be simultaneously executed and delivered in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument.
3.4. Severability.
In the event that any provisions of this Amendment to the Second Supplemental
Indenture 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.
4. The Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Amendment to the Second Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and the Guarantor.
5. Governing Law.
This Amendment to the Second Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
6. Effectiveness.
This Amendment to the Second Supplemental Indenture shall become effective upon execution by the Company, the Guarantor and the Trustee.
[Signature page follows.]
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to the Second Supplemental Indenture to be duly executed on its behalf, all as of the day and year first written above.
VALE OVERSEAS LIMITED
| By: | /s/
João Sichieri Moura Name: João Sichieri Moura Title: Director |
| By: | /s/
João Barbosa Campbell Penna Name: João Barbosa Campbell Penna Title: Director |
VALE S.A.
| By: | /s/ Adriana Barbosa Areias Name: Adriana Barbosa Areias Title: Attorney in fact |
| By: | /s/ Rodrigo Sebollela Duque Estrada Regis Name: Rodrigo Sebollela Duque Estrada Regis Title: Attorney in fact |
THE BANK OF NEW YORK MELLON,
as Trustee
| By: | /s/ Glenn McKeever Name: Glenn McKeever Title: Vice President |
Rio de Janeiro, February 27, 2025
Ladies and Gentlemen:
I am the General Counsel of Vale S.A. (“Vale” or the “Guarantor”), a corporation organized and existing under the laws of the Federative Republic of Brazil (“Brazil”), and have acted as Brazilian counsel of Vale and Vale Overseas Limited, a wholly owned subsidiary of Vale organized and existing under the laws of the Cayman Islands (“Vale Overseas” or the “Company”), in connection with the Company’s offering pursuant to a registration statement on Form F-3/A (Nos. 333-271248 and 333-271248-01) (the “Registration Statement”) filed with the United States Securities and Exchange Commission (the “SEC”) of US$750,000,000 aggregate principal amount of 6.400% Guaranteed Notes due 2054 (the “Notes”), representing a reopening of the Company’s 6.400% Guaranteed Notes due 2054, issued on June 28, 2024, together with a guarantee of Vale relating to the Notes (the “Guarantee”), to be issued under the Amended and Restated Indenture dated as of August 4, 2021 (the “Base Indenture”), as supplemented by the Second Supplemental Indenture thereto dated as of June 28, 2024 (the “Second Supplemental Indenture”), as amended by the amendment dated as of February 27, 2025 (the “Amendment to the Second Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”), among the Company, the Guarantor and The Bank of New York Mellon, as trustee. Vale will unconditionally guarantee all of Vale Overseas’ obligations under the Notes pursuant to the Indenture. The Notes and the Guarantee are referred to collectively herein as the “Securities.” All capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Registration Statement.
| 1. | In rendering the opinions set forth below, I have examined originals, or copies identified to my satisfaction of the documents listed below: |
| (i) | the Registration Statement and the documents incorporated by reference therein; |
| (ii) | Vale’s bylaws as approved at its extraordinary general shareholders’ meetings held on December 21, 2022 and April 28, 2023; |
| (iii) | the minutes of Vale’s annual and extraordinary shareholders’ meetings dated April 28, 2023, September 22, 2023 and November 14, 2024 at which the current members of Vale’s board of directors were appointed; |
| (iv) | the minutes of Vale’s board of directors’ meetings dated May 23, 2024, August 26, 2024 September 20, 2024, October 24, 2024 and November 11, 2024 at which Vale’s current executive officers were appointed; |
| (v) | the certificate, dated February 19, 2025, signed by the secretary to Vale’s Executive Committee, certifying that, pursuant to the powers granted by Vale’s bylaws, the Vale’s Executive Committee has delegated to Vale’s Vice-President of Finance and Investors Relations, by means of the latest version of Vale’s Authority Norm, dated as of November 14, 2024 (the “Authority Norm”), powers to approve the engagement and renegotiation of loans and financing, the repurchase and prepayment of loans and financing with third parties, including commissions, premiums, compensations or equivalents, related to the settlement of debt transactions of Vale and its wholly-owned subsidiaries, up to the consolidated annual debt limit approved by Vale’s Board of Directors based on the concept of expanded net debt; |
| (vi) | the certificate, dated February 5, 2025, signed by the secretary to Vale’s Board of Directors, certifying that Vale’s Board of Director approved, on November 28, 2024, the range of US$10 billion to US$20 billion for Vale’s expanded net debt; |
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| (vii) | the officer’s certificate, dated February 20, 2025, signed by Vale’s Vice-President of Finance and Investors Relations approving the terms and conditions of the offering by Vale Overseas of the Notes; |
| (viii) | the certificate, dated February 20, 2025, 2025, signed by the Head of Treasury and Corporate Finance (VP-1 of Finance of the Guarantor), certifying, in accordance with the Authority Norm, the approval of a corporate guarantee by Vale in favor of Vale Overseas for the offering of the Notes; |
| (ix) | the power-of-attorney, dated February 20, 2025, issued by the Guarantor naming attorneys-in-fact of the Guarantor with powers to execute the Transaction Documents (as defined below); and |
| (x) | the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the Amendment to the Second Supplemental Indenture. |
| 2. | I have also examined the records, agreements, instruments and documents and made such investigations of law as I have deemed relevant or necessary as the basis for the opinions hereinafter expressed. I have also assumed, for purposes of the opinions expressed herein, that: |
| (i) | no provision of the Indenture or of the Securities conflicts with or is otherwise invalid, illegal or unenforceable under the laws of any jurisdiction (other than Brazil); and |
| (ii) | at the time of the execution and delivery of the Indenture and of the Securities, they will have been duly authorized pursuant to applicable law (other than Brazilian law). |
| 3. | I have also assumed, without any independent investigation or verification of any kind, the validity, legality, binding effect and enforceability of the Indenture and of the Securities under the laws of the state of New York and the Cayman Islands, as the case may be. |
| 4. | Furthermore, I have assumed (i) the due organization and valid existence of all parties (other than Vale) to the Indenture under the laws of the countries of their respective incorporation; (ii) that the Indenture and the Securities will have been duly authorized and validly executed and delivered by the parties thereto (other than Vale); (iii) that the performance thereof is within the capacity and powers of the parties thereto (other than Vale); and (iv) the genuineness of all signatures on original or certified copies of all persons other than the officers and representatives of Vale, the authenticity of documents submitted to me as originals and the conformity to original of all copies submitted to me as certified or reproduction copies. |
| 5. | My opinions are delivered on the basis of my professional legal judgment and on the basis of the knowledge and investigation of Vale’s Legal Department, which I oversee. |
| 6. | My opinions are limited to the laws of Brazil as of the date hereof. In particular, I have made no independent investigation of the laws of the State of New York, as the governing law of the Indenture, and I do not express or imply opinions on such laws. |
| 7. | Based upon the foregoing and subject to the qualifications and limitations described elsewhere in this document, I am of the opinion that, on the date hereof: |
| (i) | Vale has been duly incorporated and is validly existing as a sociedade anônima under the laws of Brazil; |
| (ii) | the Indenture and the Guarantee have been duly authorized by Vale; and |
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| (iii) | when the Amendment to the Second Supplemental Indenture and the Guarantee have been duly executed, authenticated, issued and delivered in accordance with their respective provisions, and in the case of the Guarantee, with the provisions of the Indenture, and in accordance with the applicable definitive underwriting agreement, upon payment of the consideration therefor provided for therein, the Indenture and the Guarantee will be duly authorized, executed and delivered and will be a valid and binding obligation of Vale. |
| 8. | The foregoing opinions are, however, subject to the following qualifications and limitations: |
| (i) | To ensure the enforceability or the admissibility in evidence of the Indenture and any other document required by any Brazilian court to be furnished: (a) the signatures of the parties thereto signing outside Brazil must be notarized by a notary public licensed as such under the law of the place of signing; (b) the signature of such notary must be certified by a consular official of Brazil having jurisdiction to provide for such action or be apostilled in accordance with the Convention Abolishing the Requirement of Legalization for Foreign Public Documents; and (c) the Indenture and any other documents or instruments prepared in a language other than Portuguese (whether signed abroad or not) must be translated into Portuguese language by a sworn translator, except if such procedures were exempted by an international treaty entered into by Brazil; absent such notarization and authentication, the Indenture and any other documents or instruments prepared in a language other than Portuguese, together with its respective sworn translation, must be registered with the appropriate Registry of Deeds and Documents (for which certain translation and registration fees would apply), which may be done immediately prior to any such enforcement or presentation; |
| (ii) | Any judgment against Vale for the payment of certain sum of money rendered by any Federal or State Court in the City, County and State of New York in respect of the Indenture or of the Securities should be recognized in the courts of Brazil, and such courts would enforce such judicial decision without retrial or re-examination of the merits of the original decision only if such judicial decision has been previously ratified by the Superior Court of Justice (Superior Tribunal de Justiça); which ratification is available only if the judicial decision: (a) is for the payment of a sum certain of money; (b) fulfills all formalities required for its enforceability under the laws of the state of New York, (c) was issued by a competent court after proper service of process was properly made on the parties, which service of process must comply with Brazilian law or, after sufficient evidence of the parties’ absence has been given, as established pursuant to applicable law, (d) is final and, therefore, is not subject to appeal, (e) does not violate a final and appealable decision issued by a Brazilian Court and does not violate the exclusive jurisdiction of the Brazilian judiciary authority, (f) was authenticated by a Brazilian consulate in the state of New York or is duly apostilled in accordance with the Convention Abolishing the Requirement of Legalization for Foreign Public Documents dated as of October 5, 1961, pursuant to Decree No. 8,660 dated as of January 29, 2016 and is accompanied by a certified sworn translation thereof into Portuguese prepared by a sworn translator registered in Brazil, except if such procedure was exempted by an international treaty entered into by Brazil, and (g) is not contrary to Brazilian national sovereignty, public order or good morals (as provided in Article 17 of Decree Law No. 4,657/42); |
| (iii) | Any documents in a foreign language (including without limitation documents relating to any foreign judgment) to be admitted in Brazilian courts or any other Brazilian public authority will have to be translated into Portuguese by a sworn translator (for which translation certain fees would apply). |
| (iv) | Pursuant to the regulations of the Central Bank of Brazil (the “Central Bank”) relating to foreign exchange and capital, individuals and legal entities may enter into transactions for the purchase and sale of foreign currency, without limitation on amount, with due regard |
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for the terms and conditions of the regulation and the validity of the specific transaction, based on the economic grounds and liabilities defined in the respective document. In accordance therewith, Vale may remit funds in foreign currency to cover financial obligations assumed by offshore subsidiaries. Furthermore, pursuant to regulations of the Central Bank, it is possible for the Brazilian guarantor to deposit the corresponding amount in Brazilian currency at a non-resident account held in Brazil by the foreign creditor, which would then be able to freely convert such funds into foreign currency for remittance abroad;
| (v) | Any amounts to be paid under the Guarantee in excess of the amounts provided for in such Guarantee or the Indenture, if any, will depend on the analysis of the legality and economic grounds by the Brazilian commercial bank chosen to implement the relevant foreign exchange control transactions or, as the case may be, pursuant to a special authorization and/or registration to be obtained from the Central Bank, which authorization and/or registration will be granted at the Central Bank’s sole discretion; |
| (vi) | Certain payments in U.S. Dollars by Vale in connection with the Indenture or the Securities may be subject to Vale obtaining the applicable authorization of the Central Bank for remittance thereof, including the Foreign Capital Information Reporting System – External Credit (Sistema de Prestação de Informações de Capital Estrangeiro – Crédito Externo – “SCE”); |
| (vii) | The enforceability of the Indenture and of the Securities is limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws relating to or limiting creditors’ rights generally or by general equitable principles and, in the event of a bankruptcy of Vale, certain credits, such as credits for salaries, wages, social security and taxes, will have preference over any claims, including secured ones; |
| (viii) | In case of bankruptcy, all credits denominated in foreign currency shall be converted into local currency at the exchange rate prevailing on the date of the issuance of the decision declaring the bankruptcy, and the amount so determined shall be the amount so considered for any payments to creditors in the bankruptcy; |
| (ix) | In the event that any suit is brought against Vale under or in connection with the Guarantee, service of process upon Vale, if made in Brazil, must be effected in accordance with Brazilian law; |
| (x) | The enforceability of the Indenture or any related documents in the courts of Brazil is subject to the payment of certain expenses and court fees; |
| (xi) | Any judgment obtained against Vale in the courts of Brazil in respect of any sum payable by it under the Guarantee will be expressed in the Brazilian currency equivalent of the U.S. dollar amount of such sum; |
| (xii) | Under Brazilian laws, properties and assets of a public concessionaire bound to the performance of the applicable concession agreement are not subject to attachment, either prior to judgment, in aid of execution, or otherwise; and |
| (xiii) | Under Brazilian law, injunctive relief may or may not be granted at the discretion of the Brazilian courts. |
| 9. | I express no opinion as to any agreement, instrument or other document other than as specified in this letter. |
| 10. | I hereby consent to the filing of this opinion on Form 6-K and to its incorporation by reference in the Registration Statement. |
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| 11. | I am qualified to practice law in Brazil only, and I do not express any opinion in respect of any laws of any other jurisdiction. This opinion is based upon and limited in all respects to the law applicable in Brazil as presently published, existing and in force. |
| 12. | I expressly disclaim any responsibility to advise you or any other person who is permitted to rely on the opinions expressed herein as specified above of any development or circumstance of any kind including any change of law or fact that may occur after the date of this letter even though such development, circumstance or change may affect the legal analysis, a legal conclusion or any other matter set forth in or relating to this letter. Accordingly, any person relying on this letter at any time should seek advice of its counsel as to the proper application of this letter at such time. |
| 13. | This opinion may be relied upon, as of the date rendered, only by you, and no other person may rely upon this opinion without my prior written consent. |
Very truly yours,
_________/s/ Alexandre Silva D'Ambrosio_________
Alexandre Silva D'Ambrosio
General Counsel
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27 February 2025 Our Ref: RB/lr/V0635-194803
TO THE ADDRESSEES SET OUT IN SCHEDULE 4
Dear Addressee
US$750,000,000 6.400% GUARANTEED NOTES DUE 2054
We have acted as Cayman Islands counsel to Vale Overseas Limited, a Cayman Islands company (the "Company"), in connection with the Company’s offering pursuant to the Registration Statement (as defined in Schedule 1) of its US$750,000,000 6.400% Guaranteed Notes due 2054 (the "Notes") pursuant to the Indenture (as defined in Schedule 1). The Notes will be unconditionally guaranteed by the Guarantor (as defined in Schedule 1).
For the purposes of giving this opinion, we have examined and relied upon the originals, copies or translations of the documents listed in Schedule 1.
In giving this opinion we have relied upon the assumptions set out in Schedule 2, which we have not independently verified.
We are Cayman Islands Attorneys at Law and express no opinion as to any laws other than the laws of the Cayman Islands in force and as interpreted at the date of this opinion. We have not, for the purposes of this opinion, made any investigation of the laws, rules or regulations of any other jurisdiction. Except as explicitly stated herein, we express no opinion in relation to any representation or warranty contained in the Notes or the Documents nor upon matters of fact or the commercial terms of the transactions contemplated by the Notes and the Documents.
Based upon the foregoing examinations and assumptions and upon such searches as we have conducted and having regard to legal considerations which we consider relevant, and subject to the qualifications set out in Schedule 3, and under the laws of the Cayman Islands, we give the following opinions in relation to the matters set out below.
| 1. | The Company is an exempted company duly incorporated with limited liability, validly existing under the laws of the Cayman Islands and in good standing with the Registrar of Companies in the Cayman Islands (the "Registrar"). |
| 2. | The Company has full corporate power, authority and legal right to execute and deliver the Documents to which it is a party, to issue and offer the Notes and to perform its obligations under the Documents and the Notes. |
| 3. | The execution of the Documents to which the Company is a party and the issue of the Notes have been duly authorised by the Company, and the Documents (other than the Global Note (as defined in Schedule 1)) have been duly executed by the Company. The Documents when delivered and the Global Note when duly executed, authenticated and delivered, will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their respective terms. |
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Walkers 190 Elgin Avenue, George Town Grand Cayman KY1-9001, Cayman Islands T +1 345 949 0100 F +1 345 949 7886 www.walkersglobal.com Bermuda | British Virgin Islands | Cayman Islands | Dubai | Guernsey | Hong Kong | Ireland | Jersey | London | Singapore
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| 4. | The issue of the Notes and the execution, delivery and performance of the Documents to which the Company is a party, the consummation of the transactions contemplated thereby and the compliance by the Company with the terms and provisions thereof do not: |
| (a) | contravene any law or public rule or regulation of the Cayman Islands applicable to the Company which is currently in force; or |
| (b) | contravene the Memorandum and Articles (as defined in Schedule 1). |
This opinion is limited to the matters referred to herein and shall not be construed as extending to any other matter or document not referred to herein. This opinion is given solely for your benefit and the benefit of your legal advisers acting in that capacity in relation to this transaction and may not be relied upon by any other person without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement, and in the prospectus supplement related to the offering of the Notes, under the heading "Validity of the Notes" as counsel for the Company who have passed on the validity as to matters of Cayman Islands law of the securities being registered by the Registration Statement, and to the reference to this firm under the heading "Enforcement of Civil Liabilities – Cayman Islands" in the Base Prospectus. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
This opinion shall be construed in accordance with the laws of the Cayman Islands.
Yours faithfully
/s/ Walkers (Cayman) LLP
Walkers (Cayman) LLP
Schedule 1
LIST OF DOCUMENTS EXAMINED
| 1. | The Certificate of Incorporation dated 3 April 2001, the Memorandum and Articles of Association adopted on 6 March 2002 as amended pursuant to a special resolution dated 28 September 2020 (the "Memorandum and Articles"), the Register of Members, the Register of Directors, the Register of Officers and the Register of Mortgages and Charges, in each case, of the Company, copies of which have been provided to us by its registered office in the Cayman Islands (together, the "Company Records"). |
| 2. | The Cayman Online Registry Information System (CORIS), the Cayman Islands' General Registry's online database, searched on 26 February 2025. |
| 3. | The Register of Writs and other Originating Processes of the Grand Court maintained by the Clerk of Court's Office, George Town, Grand Cayman (the "Court Register"), as at 9.00 am Cayman Islands time on 26 February 2025 (the "Search Time"). |
| 4. | A copy of a Certificate of Good Standing dated 20 February 2025 in respect of the Company issued by the Registrar (the "Certificate of Good Standing"). |
| 5. | A copy of executed a copy of executed written resolutions of the Board of Directors of the Company dated 22 February 2025 setting out the resolutions adopted thereunder (the "Resolutions"). |
| 6. | Copies of the following documents: |
| (a) | an executed copy of the second supplemental indenture dated as of June 28, 2024 (the "Second Supplemental Indenture") as amended by the amendment dated February 27, 2025 (the “Amendment to the Second Supplemental Indenture”) among the Company as issuer, Vale S.A. as guarantor (the "Guarantor") and The Bank of New York Mellon as trustee (the "Trustee"), supplementing the amended and restated indenture dated as of 4 August 2021 (the "A&R Indenture" together with the Amendment to the Second Supplemental Indenture, the Base Indenture and the Second Supplemental Indenture, the “Indenture”), among the Company as issuer, the Guarantor and the Trustee; |
| (b) | an executed copy of the terms agreement dated February 24, 2025 among the Company as issuer, the Guarantor and the Underwriters (as defined therein) and the underwriting agreement basic provisions incorporated therein; and |
| (c) | the form of global securities relating to the Notes with the notation thereon of the guarantee by the Guarantor (the "Global Note"). |
The documents listed in paragraphs 6 (a) to (c) above inclusive are collectively referred to in this opinion as the "Documents", provided that for the purposes of Schedules 2 and 3 only, the expression "Documents" shall also include the A&R Indenture, the Second Supplemental Indenture and the Amendment to the Second Supplemental Indenture.
| 7. | A copy of the executed Power of Attorney given by the Company in favour of the attorneys named therein dated 22 February 2025 (the "Power of Attorney"). |
| 8. | The Registration Statement on Form F-3 (the "Registration Statement") issued by the Company and filed with the Securities and Exchange Commission (the "SEC") under the United States Securities Act of 1933 (the "Securities Act"), as filed on 25 April 2023 incorporating the base prospectus in respect of the continuing issue of debt securities of the Guarantor and the continuing issue of debt securities of the Company which are guaranteed by the Guarantor (the "Base Prospectus"). |
| 9. | The preliminary prospectus supplement dated February 24, 2025 (the "Preliminary Prospectus Supplement") filed with the SEC pursuant to Rule 424(b)(2) under the Securities Act and the related final prospectus supplement dated February 24, 2025 (the "Final Prospectus Supplement") filed with the SEC pursuant to Rule 424(b)(2) under the Securities Act supplementing the Base Prospectus in relation to the issue of the Notes (the Registration Statement, the Base Prospectus, the Preliminary Prospectus Supplement and the Final Prospectus Supplement together constituting the "Offering Documents"). |
Schedule 2
ASSUMPTIONS
| 1. | There are no provisions of the laws of any jurisdiction outside the Cayman Islands which would be contravened by the execution or delivery of the Documents or the issue and offering of the Notes and, insofar as any obligation expressed to be incurred under the Documents or the Notes is to be performed in or is otherwise subject to the laws of any jurisdiction outside the Cayman Islands, its performance will not be illegal by virtue of the laws of that jurisdiction. |
| 2. | The Documents and the Notes are within the capacity, power, and legal right of, and have been or will be duly authorised, executed and delivered by, each of the parties thereto (other than the Company). |
| 3. | The Documents and the Notes constitute or, when executed and delivered or issued, will constitute the legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their terms as a matter of the laws of all relevant jurisdictions (other than the Cayman Islands). |
| 4. | The choice of the laws of the jurisdiction selected to govern each of the Documents and the Notes has been made in good faith and will be regarded as a valid and binding selection which will be upheld in the courts of that jurisdiction and all relevant jurisdictions (other than the Cayman Islands). |
| 5. | All authorisations, approvals, consents, licences and exemptions required by, and all filings and other steps required of each of the parties to the Documents and the Notes outside the Cayman Islands to ensure the legality, validity and enforceability of the Documents and the Notes have been or will be duly obtained, made or fulfilled and are and will remain in full force and effect and any conditions to which they are subject have been satisfied. |
| 6. | All conditions precedent, if any, contained in the Documents have been or will be satisfied or waived. |
| 7. | The Board of Directors of the Company considers the execution of the Documents and the issue and offering of the Notes and the transactions contemplated thereby to be in the best interests of the Company. |
| 8. | No disposition of property effected by the Documents or in respect of the Notes is made for an improper purpose or wilfully to defeat an obligation owed to a creditor and at an undervalue. |
| 9. | The Company was on the date of execution of the Documents to which it is a party and issue of the Notes able to pay its debts as they became due from its own moneys, and any disposition or settlement of property effected by any of the Documents or the Notes is made in good faith and for valuable consideration and at the time of each disposition of property by the Company pursuant to the Documents and the Notes the Company will be able to pay its debts as they become due from its own moneys. |
| 10. | The originals of all documents examined in connection with this opinion are authentic. The signatures, initials and seals on the Documents, the certificates relating to the Notes and the Power of Attorney are genuine and are those of a person or persons given power to execute the Documents, the certificates relating to the Notes and the Power of Attorney under the Resolutions or any power of attorney given by the Company to execute such documents. All documents purporting to be sealed have been so sealed. All copies are complete and conform to their originals. The Notes and the Documents conform in every material respect to the latest drafts of the same produced to us and, where provided in successive drafts, have been marked up to indicate all changes to such documents. |
| 11. | Any Document and the Power of Attorney were either executed as a complete document (whether in counterpart or not) in full and final form or, where the Power of Attorney or any Document was executed by or on behalf of any company, body corporate or corporate entity, the relevant signature page was attached to such document by, or on behalf of, the relevant person or otherwise with such person's express or implied authority. |
| 12. | The Memorandum and Articles are the memorandum and articles of association of the Company and are in force at the date hereof. |
| 13. | The Company Records are complete and accurate and all matters required by law and the Memorandum and Articles to be recorded therein are completely and accurately so recorded. |
| 14. | There are no records of the Company (other than the Company Records), agreements, documents or arrangements other than the documents expressly referred to herein as having been examined by us which materially affect, amend or vary the transactions envisaged in the Notes and the Documents or restrict the powers and authority of the Directors of the Company in any way or which would affect any opinion given herein. |
| 15. | The Resolutions have been duly executed (and where by a corporate entity such execution has been duly authorised if so required) by or on behalf of each director of the Companies and the signatures and initials thereon are those of a person or persons in whose name the Resolutions have been expressed to be signed. |
| 16. | The Resolutions and the Power of Attorney remain in full force and effect and have not been revoked or varied. |
| 17. | No resolution voluntarily to wind up the Company has been adopted by the members of the Company and no event of a type which is specified in the Memorandum and Articles as giving rise to the winding up of the Company (if any) has in fact occurred. |
| 18. | No amounts paid to or for the account of any party under the Documents or any property received or disposed of by any party to the Documents in each case in connection with the performance of the Documents or the consummation of the transactions contemplated thereby, represent or will represent proceeds of criminal conduct or criminal property as defined in the Proceeds of Crime Act (as amended) (the "POCA") or terrorist property as defined in the POCA or the Terrorism Act (as amended) (the "Terrorism Act"), each of the Cayman Islands. |
| 19. | As a matter of all relevant laws (other than the laws of the Cayman Islands) none of the Documents constitute a security interest. |
| 20. | The Second Supplemental Indenture, as amended by the Amendment to the Second Supplemental Indenture effectively supplements the A&R Indenture as contemplated therein in accordance with the laws of all relevant jurisdictions (other than the Cayman Islands). |
Schedule 3
QUALIFICATIONS
| 1. | The term "enforceable" and its cognates as used in this opinion means that the obligations assumed by any party under the Documents and the Notes are of a type which the Courts enforce. This does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular: |
| (a) | enforcement of obligations and the priority of obligations may be limited by bankruptcy, insolvency, liquidation, restructuring, reorganisation, readjustment of debts or moratorium and other laws of general application relating to or affecting the rights of creditors or by prescription or lapse of time; |
| (b) | enforcement may be limited by general principles of equity and, in particular, the availability of certain equitable remedies such as injunction or specific performance of an obligation may be limited where a Court considers damages to be an adequate remedy; |
| (c) | claims may become barred under statutes of limitation or may be or become subject to defences of set-off, counterclaim, estoppel and similar defences; |
| (d) | where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of, or contrary to the public policy of, that jurisdiction; |
| (e) | a judgment of a Court may be required to be made in Cayman Islands dollars; |
| (f) | to the extent that any provision of the Documents or the Notes is adjudicated to be penal in nature, it will not be enforceable in the Courts; in particular, the enforceability of any provision of the Documents or the Notes that is adjudicated to constitute a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation may be limited; |
| (g) | to the extent that the performance of any obligation arising under the Documents or the Notes would be fraudulent or contrary to public policy, it will not be enforceable in the Courts; |
| (h) | in the case of an insolvent liquidation of the Company, its liabilities are required to be translated into the functional currency of the Company (being the currency of the primary economic environment in which it operated as at the commencement of the liquidation) at the exchange rates prevailing on the date of commencement of the voluntary liquidation or the day on which the winding up order is made (as the case may be); |
| (i) | a Court will not necessarily award costs in litigation in accordance with contractual provisions in this regard; and |
| (j) | the effectiveness of terms in the Documents or the Notes excusing any party from a liability or duty otherwise owed or indemnifying that party from the consequences of incurring such liability or breaching such duty shall be construed in accordance with, and shall be limited by, applicable law, including generally applicable rules and principles of common law and equity. |
| 2. | Cayman Islands stamp duty will be payable on any Document or any certificate relating to the Notes that is executed in or brought to the Cayman Islands, or produced before a Court. |
| 3. | A certificate, determination, calculation or designation of any person in the Notes or of any party to the Documents as to any matter provided therein might be held by a Court not to be conclusive, final and binding, notwithstanding any provision to that effect therein contained, for example if it could be shown to have an unreasonable, arbitrary or improper basis or in the event of manifest error. |
| 4. | If any provision of the Documents or the Notes is held to be illegal, invalid or unenforceable, severance of such provision from the remaining provisions will be subject to the discretion of the Courts notwithstanding any express provisions in this regard. |
| 5. | Every conveyance or transfer of property, or charge thereon, and every payment obligation and judicial proceeding, made, incurred, taken or suffered by a company at a time when that company was unable to pay its debts within the meaning of section 93 of the Companies Act (as amended) of the Cayman Islands (the "Companies Act"), and made or granted in favour of a creditor with a view to giving that creditor a preference over the other creditors of the company, would be voidable upon the application of the company's liquidator pursuant to section 145(1) of the Companies Act, if made, incurred, taken or suffered within the six months preceding the commencement of a liquidation of that company. Such actions will be deemed to have been made with a view to giving such creditor a preference if it is a "related party" of the company. A creditor shall be treated as a related party if it has the ability to control the company or exercise significant influence over the company in making financial and operating decisions. |
| 6. | Any disposition of property made at an undervalue by or on behalf of a company and with an intent to defraud its creditors (which means an intention to wilfully defeat an obligation owed to a creditor), shall be voidable: |
| (a) | under section 146(2) of the Companies Act at the instance of the company's official liquidator; and |
| (b) | under the Fraudulent Dispositions Act (as amended) of the Cayman Islands, at the instance of a creditor thereby prejudiced, |
provided that in either case, no such action may be commenced more than six years after the date of the relevant disposition.
| 7. | If any business of a company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the Court may declare that any persons who were knowingly parties to the carrying on of the business of the company in such manner are liable to make such contributions, if any, to the company's assets as the Court thinks proper. |
| 8. | Notwithstanding any purported date of execution in any of the certificates relating to the Notes or the Documents, the rights and obligations therein contained take effect only on the actual execution and delivery thereof but the terms of the Notes or the Documents may provide that they have retrospective effect as between the parties thereto alone or between the Company and the holder of the Notes, as the case may be. |
| 9. | The obligations of the Company may be subject to restrictions pursuant to United Nations and United Kingdom sanctions extended to the Cayman Islands by Orders in Council. |
| 10. | Under the laws of the Cayman Islands, persons who are not party to a Document have no direct rights or obligations under such Document unless: |
| (a) | such Document expressly provides in writing that such persons may in their own right enforce a term of such Document under the Contracts (Rights of Third Parties) Act (as amended) of the Cayman Islands; |
| (b) | they are persons acting pursuant to powers contained in a deed poll; or |
| (c) | they are beneficiaries under properly constituted trusts. |
| 11. | Our opinion as to good standing is based solely upon receipt of the Certificate of Good Standing issued by the Registrar. The Company shall be deemed to be in good standing under section 200A of the Companies Act on the date of issue of the certificate if all fees and penalties under the Companies Act have been paid and the Registrar has no knowledge that the Company is in default under the Companies Act. |
| 12. | The Court Register may not reveal whether any out of court appointment of a liquidator or a receiver has occurred. The Court Register may not constitute a complete record of the proceedings before the Grand Court as at the Search Time including for the following reasons: |
| (a) | it may not reveal whether any documents filed subsequently to an originating process by which new causes of action and/or new parties are or may be added (including amended pleadings, counterclaims and third party notices) have been filed with the Grand Court; |
| (b) | it may not reveal any originating process (including a winding up petition, or any petition or application for the appointment of a restructuring officer) in respect of the Company in circumstances where the Court has prior to the issuance of such process ordered that such process upon issuance be anonymised (whether on a temporary basis or otherwise); |
| (c) | it may not be updated every day; |
| (d) | documents (including a winding up petition, any petition or application for the appointment of a restructuring officer and/or any other originating process) may have been removed from it, or may not have been placed on it, where an order has been made to that effect in a particular cause or matter; |
| (e) | it may not reveal any orders made ex parte on an urgent basis where the originating process is issued subsequently pursuant to an undertaking given to the Court at the time the order is made; and |
| (f) | we have relied on an electronic version of the Court Register made available by the Cayman Islands' Judicial Administration. |
| 13. | We express no opinion upon the effectiveness of any clause of the Documents which provides that the terms of such Document may only be amended in writing. |
| 14. | All powers of attorney granted by the Company in any of the Documents or the certificates relating to the Notes must be duly executed as deeds or under seal by persons authorised to do so: |
| (a) | if governed by the laws of the Cayman Islands; and/or |
| (b) | in order for the donee of the power and certain third parties to benefit from certain provisions of the Powers of Attorney Act (as amended) of the Cayman Islands (the "Power of Attorney Act"). |
| 15. | All powers of attorney granted by the Company in the Documents or the certificates relating to the Notes which by their terms are expressed to be irrevocable are irrevocable pursuant to the provisions of the Power of Attorney Act only if: |
| (a) | executed as a deed or under seal by persons authorised to do so; and |
| (b) | given to secure a proprietary interest of the donee of the power or the performance of an obligation owed to the donee. |
Where a power of attorney granted by the Company is expressed to be irrevocable and is given to secure:
| (i) | a proprietary interest of the donee of the power; or |
| (ii) | the performance of an obligation owed to the donee, |
then, so long as the donee has that interest or the obligation remains undischarged, the power shall not be revoked:
| (i) | by the donor without the consent of the donee; or |
| (ii) | by the death, incapacity or bankruptcy of the donor, or if the donor is a body corporate, by its winding-up or dissolution. |
| 16. | Where a document provides for an exclusive or non-exclusive jurisdiction clause submitting (or permitting the submission) to the jurisdiction of the Courts, a Court may decline to accept jurisdiction in any matter where: |
| (a) | it determines that some other jurisdiction is a more appropriate or convenient forum; |
| (b) | another court of competent jurisdiction has made a determination in respect of the same matter; or |
| (c) | litigation is pending in respect of the same matter in another jurisdiction. |
Proceedings may be stayed in the Cayman Islands if concurrent proceedings in respect of the same matter are or have been commenced in another jurisdiction.
| 17. | Where a document provides for an exclusive jurisdiction clause submitting to the jurisdiction of a court other than the Courts, notwithstanding any provision of the document providing for the exclusive jurisdiction of a court other than the Courts, the Court may, if it is satisfied that it is just and equitable to allow such proceedings to continue in the Cayman Islands: |
| (a) | decline to stay proceedings issued in contravention of such provision; or |
| (b) | grant leave to serve Cayman Islands proceedings out of the Cayman Islands. |
| 18. | If: |
| (a) | the performance of the Documents or the consummation of the transactions contemplated thereby constitutes an arrangement which facilitates the retention or control by or on behalf of another person of terrorist property (as defined in the Terrorism Act) by concealment, by removal from the jurisdiction or by transfer to nominees; or |
| (b) | any party to the Documents: |
| (i) | by any means directly or indirectly knowingly provides or collects property (as defined under the Terrorism Act) or attempts to do so, with the intention that the property should be used or in the knowledge that it will be used in whole or in part: |
| (A) | in order to carry out an act of terrorism (as defined under the Terrorism Act); |
| (B) | by a terrorist (as defined under the Terrorism Act) to facilitate the first-mentioned person’s activities related to acts of terrorism or membership in a terrorist organisation (as defined under the Terrorism Act); or |
| (C) | by a terrorist organisation; |
| (ii) | uses property for the purposes of terrorism; |
| (iii) | possesses property and intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of the financing of acts of terrorism, terrorists or terrorist organisations; |
| (iv) | possesses or acquires property which that person knows or has reasonable cause to suspect has been used, directly or indirectly, in the commission of the financing of acts of terrorism, terrorists or terrorist organisations; |
| (v) | acquires property as a result of or in connection with acts of terrorism; or |
| (vi) | enters into or becomes concerned in an arrangement as a result of which terrorist property is made available or is to be made available to another and knows or has reasonable cause to suspect that property will or may be used for the purposes of the financing of acts of terrorism, terrorists or terrorist organisations, |
then an offence may be committed under the Terrorism Act.
| 19. | We express no opinion on and our opinions are subject to the effect, if any, of any provisions of any Document or the terms and conditions of the Notes that relies upon financial or numerical computation. |
| 20. | Any legal person that is a Cayman Islands company, limited liability company, limited liability partnership, limited partnership, foundation company, exempted limited partnership, or any other person that may be prescribed in regulations from time to time (a "Legal Person") is subject to the Beneficial Ownership Transparency Act, 2023 of the Cayman Islands (the "BOTA"). An interest that a person holds in a Legal Person consisting of a partnership interest or shares or voting rights in the Legal Person or ultimate effective control over the management of the Legal Person (a "Relevant Interest") will be affected by a restrictions notice issued by the corporate services provider of such legal person pursuant to the BOTA (a "Restrictions Notice") if such a notice is issued by the corporate services provider. If a Restrictions Notice is issued, then: (i) any transfer or agreement to transfer the Relevant Interest shall be void; (ii) no rights shall be exercisable in respect of the Relevant Interest; (iii) no Relevant Interests may be issued in respect of the Relevant Interest or pursuant to an offer made to the person holding the Relevant Interest; and (iv) except in a liquidation, an agreement to transfer certain rights in relation to the Relevant Interest shall be void. |
| 21. | A Restrictions Notice issued in respect of a Relevant Interest that is subject to a pre-existing security interest granted to a third party who is not affiliated with the person who holds such Relevant Interest, shall not take effect. |
| 22. | The Grand Court may, on an application by any person aggrieved by a decision of a corporate services provider to issue a Restrictions Notice, make an order giving directions for the purpose of protecting the rights of third parties, persons with a security interest over a Relevant Interest, shareholders or other beneficial owners in respect of a relevant interest, if the Court is satisfied that a restrictions notice unfairly affects those rights. |
Schedule 4
ADDRESSEES
| 1. | Vale Overseas Limited |
| 2. | Vale S.A. |
Exhibit 5.3
February 27, 2025
Vale S.A.
Praia de Botafogo, 186, offices 1101, 1701 and 1801
Botafogo 22250-145
Rio de Janeiro, RJ, Brazil
Vale Overseas Limited
190 Elgin Avenue, George Town
Grand Cayman KY1-9005, Cayman Islands
Ladies and Gentlemen:
We have acted as special United States counsel to Vale Overseas Limited, a Cayman Islands exempted company incorporated with limited liability (the “Vale Overseas”), and to Vale S.A., a Brazilian corporation, as guarantor (the “Vale”), in connection with Vale Overseas’ offering pursuant to a registration statement on Form F-3 (Nos. 333-271248 and 333-271248-01) of US$750,000,000 aggregate principal amount of 6.400% Guaranteed Notes due 2054 (the “Notes”), representing a reopening of the Company’s 6.400% Guaranteed Notes due 2054, issued on June 28, 2024, together with a guaranty of Vale relating to the Notes (the “Guaranty”), under the Amended and Restated Indenture dated as of August 4, 2021 (the “Base Indenture”), as supplemented by the Second Supplemental Indenture thereto dated as of June 28, 2024 (the “Second Supplemental Indenture”), as amended by the amendment dated February 27, 2025 (the “Amendment to the Second Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”), among Vale Overseas, Vale and The Bank of New York Mellon, as trustee. Such registration statement, as amended as of its most recent effective date February 24, 2025, insofar as it relates to the Notes and the Guaranty (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the “Securities Act”)), including the documents incorporated by reference therein but excluding Exhibit 25.1 and Exhibit 25.2, is herein called the “Registration Statement.”
We have reviewed the Registration Statement, including the Base Indenture attached thereto as an exhibit, the Second Supplemental Indenture, and the Amendment to the Second Supplemental Indenture, and we have reviewed originals or copies certified or otherwise identified to our satisfaction of all such corporate records of Vale and Vale Overseas and such other instruments and other certificates of public officials, officers and representatives of Vale and Vale Overseas and such other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
Vale S.A. Vale Overseas Limited, p. 2 |
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed and that the Notes will be duly authenticated in accordance with the terms of the Indenture.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that, when the Indenture, the Notes and the Guaranty have been duly executed and delivered by Vale Overseas and Vale in the forms thereof that we have examined and the Notes have been duly delivered to and paid for by the purchasers thereof in the manner described in the Registration Statement, the Notes will be valid, binding and enforceable obligations of Vale Overseas, entitled to the benefits of the Indenture, and the Guaranty will be a valid, binding and enforceable obligation of Vale, entitled to the benefits of the Indenture.
Insofar as the foregoing opinion relates to the validity, binding effect or enforceability of any agreement or obligation of Vale or Vale Overseas, (a) we have assumed that each of Vale and Vale Overseas, as the case may be, and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to Vale or Vale Overseas regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities in relation to transactions of the type contemplated in the Indenture and the Securities), (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity and (c) such opinions are subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
We express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the Securities where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist.
In addition, we note that (a) the enforceability in the United States of the waiver in Section 1.14 of the Base Indenture by each of Vale and Vale Overseas of any immunities from court jurisdiction and from legal process is subject to the limitations imposed by the U.S. Foreign Sovereign Immunities Act of 1976 and (b) the designation in Section 1.14 of the Base Indenture of the U.S. federal courts located in the Borough of Manhattan, city of New York as the venue for actions or proceedings relating to the Base Indenture and the Securities is (notwithstanding the waiver in Section 1.14) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. § 1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such actions or proceedings.
Vale S.A. Vale Overseas Limited, p. 3 |
In addition, we note that the waiver of defenses relating to the Guaranty in Article 12 of the Base Indenture may be ineffective to the extent that any such defense involves a matter of public policy in New York.
The foregoing opinions are limited to the federal law of the United States of America and the law of the State of New York.
We hereby consent to the incorporation by reference of this opinion in the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement under the heading “Validity of the Securities” and in the prospectus supplement related thereto under the heading “Validity of the Notes” as counsel for Vale and Vale Overseas who have passed on the validity of the Securities being registered by the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
CLEARY GOTTLIEB STEEN & HAMILTON LLP
By: /s/ Jonathan Mendes de Oliveira_____
Jonathan Mendes de Oliveira, a Partner