INDENTURE AGREEMENT BY AND BETWEEN DISTRIBUCIÓN Y SERVICIO D&S S.A. AND BANCO DE CHILE
BY
AND BETWEEN
DISTRIBUCIÓN
Y SERVICIO D&S S.A.
AND
BANCO
DE CHILE
In
Santiago, Chile, on December 29, 2006, before me, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Alternate Notary Public to ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Regular Notary of the
Forty-Eighth Notarial Office of Santiago, domiciled in this city at Huérfanos
770, 3rd floor, pursuant to Decree No. 723-2006 of the Presidency of the Court
of Appeals dated November 23, 2006, filed at the end of the November 2006
Registries, there appeared:
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇,
Chilean, married, business administrator, national identity card No.
10.087.763-5, on behalf, as shall be evidenced, DISTRIBUCIÓN Y SERVICIOS D&S
S.A., a corporation engaged in supermarket exploitation, incorporated and
validly existing under the laws of the Republic of Chile, taxpayer
identification No. ▇▇.▇▇▇.▇▇▇-▇, both domiciled, for these purposes, at ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ of Quilicura, city of ▇▇▇▇▇▇▇▇, hereinafter
the "Issuer," as one party; and as the other,
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Chilean, married, business administrator, national
identity card No. 6.374.597-9, and ▇▇. ▇▇▇▇▇▇▇ LE-BEUFFE SOUPER, Chilean,
married, businessman, national identity card No. 8.795.131-6, both on behalf
of,
as shall be evidenced, BANCO DE CHILE, a juristic person engaged in banking,
all
domiciled at ▇▇▇▇▇▇▇ 251, borough and city of Santiago, acting as the
Bondholders Representative and Paying Bank, hereinafter the "Bondholders
Representative," the "Representative" or the "Paying Bank."
The
parties are of age, evidence their identity by the aforesaid identity cards
and
state that in accordance with resolutions adopted by the Board of Directors
of
DISTRIBUCIÓN Y SERVICIO D&S S.A., they hereby enter into an Indenture
Agreement, hereinafter the "Agreement," pursuant to the final subparagraph
of
Article 104 of the Securities Market Law 18,045, hereinafter the "Securities
Market Law," according to which certain electronic Bonds will be issued by
DISTRIBUCIÓN Y SERVICIOS D&S S.A., hereinafter also the "Bonds," for
placement on the general market and deposit in the DEPÓSITO CENTRAL DE VALORES
S.A, DEPÓSITO DE VALORES, hereinafter the "DCV." All of such acts shall be
governed by the stipulations contained herein and by the provisions in the
Securities Market Law, in Law 18,046, hereinafter the "Companies Law," in the
Regulations to the Companies Law, in Law 18,876 on Private Securities Custody
Depositaries, hereinafter the "DCV Law," the Regulations to the DCV Law,
hereinafter the "DCV Regulations," the Internal Regulations of the Depósito
Central de Valores S.A., Depósito de Valores, hereinafter the "DCV Internal
Regulations," and the other laws and regulations applicable to the
matter.
FIRST:
DEFINITIONS
1. Without
prejudice to the definitions contained in other parts hereof, for purposes
of
this Agreement and its schedules, unless the context clearly indicates
otherwise,
(i) capitalized
terms shall have the meaning ascribed thereto in No. 2 of this first clause,
except solely when they are at the start of a sentence or represent a proper
name; and
(ii) the
terms
defined in No. 2 of this first clause may be used in singular and in plural
for
purposes hereof.
2. For
all
purposes, hereof, the terms indicated below shall be understood according to
the
definition indicated for each thereof:
Placement
Agent means Larraín Vial S.A., Corredora de Bolsa;
Business
Day means a day when banks and financial institutions open their doors to the
public to perform transactions forming part of their business;
Newspaper
means El ▇▇▇▇▇▇▇▇ of Santiago and if it does not exist, the Official
Gazette.
Financial
Statements means the general balance sheet, income statement, cash flow
statement and other consolidated information on the Issuer contained in the
FECU;
FECU
means the consolidated Uniform Codified Statistical Record that entities
registered in the Securities Registry must present from time to time to the
Superintendency or such other instrument replacing it. In this latter case,
the
references herein to specific items in the actual FECU shall be deemed made
to
those in which such items must be annotated in the instrument replacing the
FECU. References made herein to FECU accounts correspond to the FECU for the
third quarter of 2006, save specific stipulation otherwise;
NCG
77
means General Rule No. 77 dated January 20, 1998, of the Superintendency, as
amended.
Superintendency
means the Superintendency of Securities and Insurance;
Holders
means the Holders of Bonds not convertible to shares that are issued as part
of
the issue indicated herein; and
Unidad
de
Fomento means the system of adjustment authorized by the Central Bank of Chile
under the power conferred thereupon in No. 9 of Article 35 of Law 18,840, the
Constitutional Organic Charter of the Central Bank of Chile, according to the
power conferred thereupon in No. 9 of Article 35 of Law 18,840, the
Constitutional Organic Charter of the Central Bank of Chile, as published by
such Central Bank in the Official Gazette in observance of Chapter II.B.3 on
"Systems of Adjustment Authorized by the Central Bank of Chile. Resolution
No.
▇-▇▇-▇▇▇▇▇▇," of the Compendium of Financial Regulations or the regulations
replacing them in the future.
SECOND:
INFORMATION ON THE ISSUER
1. General
Information
A. Name:
DISTRIBUCIÓN Y SERVICIO D&S S.A.
6. Registered
Offices: The Issuer’s registered offices set down in its by-laws are the borough
of Quilicura, Metropolitan Region, notwithstanding the agencies or branches
that
the Board of Directors agrees to establish in other cities in the country or
abroad.
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C. Headquarters:
The headquarters of the Issuer are at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ of Quilicura, city of ▇▇▇▇▇▇▇▇.
D. Taxpayer
Identification No.: The taxpayer identification number of the Issuer is
96.439.000-2.
2. Legal
Incorporation
DISTRIBUCIÓN
Y SERVICIO D&S S.A. is a corporation that was incorporated by public deed
executed September 17, 1985 in the Santiago Notarial Office of ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇. An abstract thereof was registered on page 14695, No. 7603,
of
the Commercial Registry of the Santiago Real Estate Registrar on September
17,
1985, and published in the Official Gazette on September 21, 1985. DISTRIBUCIÓN
Y SERVICIO D&S S.A. is registered under No. 593 of the Securities Registry
of the Superintendency of Securities and Insurance, made on October 22,
1996.
3. Senior
or
Preferred Debt
The
Issuer has no senior or preferred debt on this date, except for the transactions
described below:
(a) Direct
collateral granted by the Issuer:
(i) A
mortgage in favor of BANCO SANTANDER SANTIAGO on property located in the borough
of Lo Barnechea. The book value of the mortgaged property was 26,000,168,314
pesos in September 2006. This is a general mortgage for all future debt owed
by
the Issuer to Banco Santander Santiago.
(b) Direct
collateral granted by the Issuer’s subsidiaries: None.
THIRD:
INFORMATION ON THE BONDHOLDERS REPRESENTATIVE
1. Appointment.
The Issuer hereby appoints BANCO DE CHILE as the Representative of the Holders
of the Bonds issued hereunder. Through its representatives appearing herein,
BANCO DE CHILE accepts this appointment and the fee stipulated in its favor
in
Section 13 hereof.
2. General
Information
A. Name:
BANCO DE CHILE
5. Registered
Offices: The registered offices of BANCO DE CHILE are the city and borough
of
Santiago, Chile.
C. Headquarters:
The headquarters of the main offices of BANCO DE CHILE are at ▇▇▇▇▇▇▇ 251,
borough and city of ▇▇▇▇▇▇▇▇.
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D. Taxpayer
Identification No.: The taxpayer identification number of BANCO DE CHILE is
▇▇.▇▇▇.▇▇▇-▇.
3. Legal
Incorporation
BANCO
DE
CHILE is a bank with legal capacity and its own equity established by the merger
of Banco Nacional de Chile, Banco de Valparaíso and Banco Agrícola, pursuant to
the public deed dated October 28, 1893, executed in the Santiago Notarial Office
of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and authorized by Executive Decree dated November
28, 1893, registered on page 125, No. 150, of the 1893 Commercial Registry
of
the Santiago Real Estate Registrar. BANCO DE CHILE, the legal continuer of
the
foregoing as provided in Article 21 of Law 19,396, was incorporated by public
deed dated July 19, 1996, executed in the Santiago Notarial Office of ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Cash and authorized by Resolution No. 132 of September 17, 1996,
rectified by Resolution dated September 20, 1996, both issued by the
Superintendency of Banks and Financial Institutions, and registered on page
23859, No. 18638, of the 1996 Commercial Registry of the Santiago Real Estate
Registrar, published in the Official Gazette on September 26, 1996.
4. Fee
The
Bondholders Representative will receive the fee stipulated in Section 13
hereof.
FOURTH:
INFORMATION ON THE SECURITIES DEPOSITARY
1. Appointment
Since
the
Bonds issued hereunder will be electronic, the Issuer has appointed Depósito
Central de Valores S.A., Depósito de Valores, to keep such Bonds on
deposit.
2. General
Information
A. Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇. Registered
Offices: The registered offices of DCV stipulated in its by-laws are the city
and borough of Santiago.
C. Headquarters:
The headquarters of DCV are at Huérfanos ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ and city of
Santiago.
D. Taxpayer
Identification No.: The taxpayer identification number of DCV is
96.666.140-2.
3. Fee
As
provided in the Agreement on Registration of Electronic Fixed-Income Securities
Issues and Financial Intermediation signed prior to this date by the Issuer
and
DCV, the services of instrument registration and entry of electronic securities
under such agreement will not be subject to any fee among the parties. This
shall not preclude DCV from charging its depositors the fees defined in the
DCV
Internal Regulations in regard to the “Deposit by Electronic Issuers,” which
will be paid by the person in whose account the electronic securities are
credited, even if such depositor is the Issuer itself.
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FIFTH:
INFORMATION AND CHARACTERISTICS OF THE BOND FACILITY AND OF THE BONDS ISSUED
THEREUNDER
1. Maximum
Amount of the Bond Facility and Adjustment
The
aggregate maximum amount of the Bond facility that is agreed upon herein will
be
equal in local currency to six million Unidades de Fomento. The Bonds issued
under the facility and the amount payable in each installment, both for
principal as well as interest, will be denominated in Unidades de Fomento and,
therefore, the amount thereof will be adjusted by the change in the rate for
the
Unidad de Fomento and payable in the equivalent in local currency at the rate
for the Unidad de Fomento on the expiration date of the respective installment.
For these purposes, the publications of the Unidad de Fomento rate made by
the
Central Bank of Chile in the Official Gazette in accordance with No. 9 of
article 35 and the only transitory article in Law 18,840, the Organic Law of
the
Central Bank of Chile, will be deemed valid. If for any reason the Unidad de
Fomento ceases to exist or the way in which it is calculated is changed, the
change in the Consumer Price Index will be used for adjustment in substitution,
as calculated by the National Statistics Bureau or successor or replacement
thereof, between the first day of the calendar month when the Unidad de Fomento
ceases to exist or the changes in the calculation thereof take effect and the
last day of the calendar month immediately prior to the expiration date of
the
respective installment.
2. Series
and Numbering of Securities
For
purposes of this facility, the Bonds may be issued in one or more series which
may, in turn, be divided into subseries. Any reference to series or to each
of
the series in general without indicating a subseries shall be deemed made or
extended to the subseries of the respective series. The numbering of
certificates will be correlative within the series or subseries of each of
the
series of Bonds issued under this Bond facility, as applicable, starting with
No. 0001, and each certificate shall represent and constitute a Bond in the
respective series or subseries, as applicable. The DCV shall advise the Issuer
of the number, series and subseries of the certificate that must be issued
at
the time a request is made to materialize a Bond, which will replace the
electronic Bond with the same number in the corresponding series or subseries,
and such electronic Bond shall be null and void. In this case, the corresponding
annotation shall be made in the Electronic Issues Registry indicated in NCG
77.
3. Number
of
Bonds in each Series
The
first
issue of Bonds made under the facility shall involve one series, which will
be
divided into the number of Bonds indicated in section 6.3 hereof. The series
corresponding to Bond issues made against the facility after the first issue
identified in Section 6 hereof shall be divided into the number of Bonds
determined in the respective supplemental deeds hereto, hereinafter the
"Supplemental Deeds."
5
4. Par
Value
of each Bond
The
par
value of each of the Bonds forming part of the first issue against the facility
will be the value indicated in Section 6.4 hereof. The par value of each of
the
Bonds forming part of issues under the facility made after the first issue
identified in Section 6 below will be the par value determined in the respective
Supplemental Deeds.
5. Period
of
Placement
The
period of placement of the Bonds forming part of issues under the facility
made
after the first issue identified in Section 6 below will be the period
determined in the respective Supplemental Deeds.
6. Facility
Term
The
Bond
facility will be in effect for no more than 10 years from the date hereof,
during which time all payment obligations of the different Bond issues made
under this facility must expire. The foregoing notwithstanding, the last Bond
issue under the facility may include payment obligations expiring after such
10-year period. The Issuer shall therefore stipulate in the respective
instrument or certificate recording such issue that it is the last issue made
under this facility.
7. Form
and
Assignment of Certificates
The
certificates of the Bonds issued under this facility will be bearer and
electronic. As long as they continue to be electronic, they shall remain on
deposit with the DCV and the assignment of positions in regard thereto shall
be
made according to the rules in the DCV Law, in particular articles 7 and 21;
according to the rules in NCG 77; and according to the provisions in the DCV
Regulations and in the DCV Internal Regulations. Regardless, the transactions
performed between position holders may not be less than a minimum tradable
position. The Bonds shall be paper and withdrawn from the DCV in the manner
provided in section 7 hereof. The assignment of Bonds for which paper
certificates have been issued will be assigned by material delivery of such
certificates according to general rules.
The
Bonds
in the first issue under the facility shall accrue interest on the unpaid
principal indicated in Section 6.7 hereof or the interest indicated in the
respective Supplemental Deeds for subsequent issues, as applicable.
The
Bonds
in the first issue under the facility shall begin to earn interest and
adjustments on the date indicated in Section 6 hereof while the Bonds in
subsequent issues shall earn interest and adjustments on the dates indicated
in
the respective Supplemental Deeds.
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9. Coupons
for the Payment of Interest and Amortizations
The
coupons for each certificate of electronic Bonds do not physically or materially
exist, and are references for payment of the corresponding installments of
interest and principal amortizations. Payments thereof shall be made according
to the procedure in the DCV Internal Regulations. Interest and principal
amortizations will be paid according to the list prepared by the DCV for this
purpose and notified to the Paying Bank or the designate of the Issuer, as
the
case may be, on the respective maturity date, following the procedure
established in the DCV Law, in the DCV Regulations and in the DCV Internal
Regulations. Coupons corresponding to electronic Bonds shall be deemed removed
from the Bonds and void at the time of delivery of such list. The interest
and
principal amortizations for paper Bonds will be paid to whomever presents the
respective certificate against delivery of the corresponding coupon, which
will
be cut off and become void. The electronic Bonds will be deemed to bear and,
if
relevant, paper certificates shall bear, the number of coupons for payment
of
interest and principal amortizations indicated in Section 6.8 hereof in regard
to Bonds forming part of the first issue under the facility or in the respective
Supplemental Deeds hereto in regard to following issues. Each coupon shall
indicate the value thereof, expiration date and number, series and subseries
of
the Bond to which it belongs.
10. Early
Redemption
Save
stipulation otherwise for one or more series in the respective Supplemental
Deed
stipulating the conditions thereof, the Issuer may redeem all or part of the
Bonds issued under the facility early, as of the date indicated in such
Supplemental Deeds for the respective series or in Section 6.9 of this deed
in
regard to Bonds forming part of Series E in the first issue under the facility.
The Bonds shall be deemed redeemed at the equivalent to the unpaid balance
of
principal, plus interest accrued in the period from the day following the last
installment of interest paid to the date of redemption. If a part of the Bonds
in any series or subseries is redeemed early, the Issuer shall hold a raffle
before a notary to determine the Bonds that will be redeemed. For these
purposes, the Issuer will publish a notice in the Newspaper and notify the
Bondholders Representative and the DCV by letter delivered to the addresses
thereof by a notary, all at least 15 days in advance of the date when the raffle
is to be held. That notice and such letter shall indicate the amount in Unidades
de Fomento to be redeemed early, and the series and subseries of the Bonds
that
will be redeemed, the notary before whom the raffle will be held, and the day,
time and place when it will be held. The Issuer, the Bondholders Representative,
DCV and the Bondholders who wish may attend the raffle. The early redemption
procedure will not be invalidated if any of such persons does not attend the
raffle. A certificate of the raffle will be prepared by the respective notary
certifying the number, series and subseries of Bonds raffled. A certificate
will
be filed in the Public Deeds Registries of the Notary before whom the raffle
is
held. The raffle should be held at least 30 days in advance of the date when
the
early redemption is to take place. The Bonds that will be redeemed early
according to the raffle shall be published once within 5 days following the
raffle, indicating the number, series and/or subseries of each. A copy of the
certificate shall also be sent to the DCV no later than the Business Day
following the raffle in order for the DCV to report the outcome of the raffle
to
its depositors through its own systems. If electronic Bonds are redeemed through
the raffle, i.e. they are in deposit with the DCV, the provisions in the DCV
Regulations shall apply to determine the depositors whose Bonds have been
redeemed, as provided in article 9 of the DCV Law. If the early redemption
includes all of the Bonds of a series or subseries in circulation, a notice
will
be published once in the Newspaper indicating that fact and the Bondholders
Representative and DCV will be given notice by letter delivered by a notary
to
their registered offices, all at least 30 days in advance of the date when
the
early redemption is to be made. Efforts shall also be made for DCV to advise
this fact to its depositors through its own systems. The date chosen to make
the
early redemption should be a Business Day. Interest on the redeemed Bonds shall
accrue only through the day of the early redemption and as of that date, the
redeemed Bonds shall not accrue any adjustment. Accordingly, the interest and
adjustments on the Bonds raffled or redeemed early shall cease and shall be
payable from the day when the corresponding amortization is paid.
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11. Dates,
Place and Modalities of Interest and Amortization Payments
Interest
shall accrue and be paid on the dates indicated in Section 6 hereof, in regard
to the Bonds forming part of the first issue under the facility, or on the
dates
indicated in the respective Supplemental Deeds, in regard to the subsequent
issues. Principal amortizations of Bonds shall be made on the dates indicated
in
Section 6 hereof, in regard to the Bonds forming part of the first issue under
the facility, or on the dates indicated in the respective Supplemental Deeds,
in
regard to subsequent issues. If any of the dates set for payment of interest
or
principal amortizations is not a Business Day, the payment of the respective
interest installment or principal amortization shall be made on the next
succeeding Business Day. The amount payable for interest or amortization on
each
date will be the amount indicated for the respective series or subseries in
the
corresponding payment schedule. Interest and principal not collected on the
corresponding dates shall not accrue further interest or adjustments, nor shall
the Bonds accrue interest or adjustments after the expiration date or, as the
case may be, the date of their early redemption, unless the Issuer becomes
delinquent in the payment of the respective installment, in which case the
unpaid sums shall accrue interest equal to the maximum conventional interest
on
adjustable transactions in local currency. Such interest shall accrue from
the
delinquency or simple delay in payment through full payment of the relevant
amounts. It is further stipulated that a delay by the Bondholder in collecting
any installment or coupon shall not make the Issuer delinquent or late in the
payment of principal, interest or adjustments. Installments of interest and
amortizations of the Bonds issued under this facility shall be paid in the
place
indicated in Section 14 hereof.
12. Collateral
There
shall be no collateral on the Bonds, notwithstanding the right of general pledge
conferred by the law upon creditors.
13. Inconvertibility
The
Bonds
issued under the facility will not be convertible to shares.
14. Economic
Conditions of the Bonds
The
Bonds
forming part of the first issue made under this facility will be for the amount
and will have the special characteristics and conditions indicated in Section
6
hereof. The Bonds forming part of one or more issues made under this facility
after such first issue identified in Section 6 hereof will be for the amount
and
will have the special characteristics and conditions specified in the respective
Supplemental Deeds, which must be executed upon each issue and must indicate
at
least the following, in addition to the stipulations established in due course
in general rules issued by the Superintendency:
8
(a) The
total
amount of the respective issue to be placed, specifying the currency or unit
of
adjustment and the form of adjustment, as the case may be.
(b) The
series into which such issue is divided and the numbering of the certificates
of
each series;
(c) The
number of Bonds involved in each series;
(d) The
par
value of each Bond;
(e) The
period of placement of the respective issue;
(f) The
term
of the Bonds;
(g) The
interest rate on the Bonds or procedure for calculation thereof; specify the
base in days to which the interest rate refers and express it terms of the
period in which the interest will be paid and indicate the date from which
the
respective Bonds will begin to earn interest and adjustments;
(h) Whether
the Bonds will bear coupons for the payment of interest and amortizations.
The
value thereof must be indicated in a payment schedule, which will be filed
in an
attachment to the respective deed. Such payment schedule should contain at
least
the following information on the Bonds: the number of interest installments;
the
number of amortization installments, the interest and amortization payment
dates; the amount of interest payable for each coupon; the total amount of
interest, adjustments and amortization payable for each coupon; and the balance
of principal owed after paying the total installment, respectively. A payment
schedule must be presented for each series when there is more than
one;
(i) The
date
or period of extraordinary amortization.
15. Statement
of Bonds Placed
The
Issuer shall declare the total amount of placement, the number of Bonds placed
and in circulation of such placement, indicating the series, subseries, par
value and numbers of certificates, by public deed within 10 Business Days
following the date of placement of all Bonds forming part of an issue under
the
facility or following the date of expiration of the period of placement, which
shall be annotated at the margin of this Indenture Agreement. If such statement
is not made, it may be made at any time by the Representative using the
information available.
SIXTH:
INFORMATION AND CHARACTERISTICS OF THE BONDS IN THE FIRST ISSUE UNDER THE
FACILITY
The
Bonds
forming part of the first issue under the facility agreed upon herein will
have
the following characteristics:
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1. Amount
and Adjustment
The
total
par value of the Bonds forming part of this first issue under the facility
will
be one million two hundred thousand Unidades de Fomento. The adjustment
stipulated in Section 5.1 hereof will apply to the Bonds forming part of this
first issue under the facility, as of March 1, 2007.
2. Series
and Numbering of Certificates
This
first issue of Bonds under the facility will entail one series, called Series
E.
The certificates will be numbered correlatively from 0001 to 1200, both numbers
included.
3. Number
of
Bonds in the E Series
The
E
Series will be divided into 1,200 Bonds.
4. Par
Value
of each Bond
The
Par
Value of each Series E Bond will be 1,000 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇.
▇. Period
of
Placement
The
Series E Bonds will be placed in a period of 36 months as from the date that
this issue is registered in the Securities Registry of the
Superintendency.
6. Bond
Term
The
Series E Bonds will expire March 1, 2015.
7. Interest
Rate
The
Series E Bonds will accrue real interest on the unpaid principal, expressed
in
Unidades de Fomento, at a rate of 3.5% annually, in arrears, calculated on
a
360-day year, compounded semi-annually. This rate will be expressed in terms
of
the period when the interest will be paid, calculated on the basis of 180-day
semesters, at a real rate of 1.7349497%. This interest will accrue as of March
1, 2007.
8. Coupons
for the Payment of Interest and Amortizations
The
electronic Series E Bond shall be understood to bear, and as the case may be,
the paper certificates shall bear, 19 coupons for the payment of interest and
principal amortization. The amount of coupons is indicated in the payment
schedule filed as Schedule 1 hereto in this act, under the same journal number
as this deed, which is understood to form an integral part hereof for all legal
purposes. Such payment schedule contains the following information on the Series
E Bonds: the number of interest installments; the number of amortization
installments; the interest and amortization payment dates; the amount of
interest payable for each coupon; the total amount of interest, adjustments
and
amortizations payable for each coupon; and the principal balance owed after
paying the total installment.
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9. Early
Redemption
The
Series E may be amortized on an extraordinary basis in whole or in part, at
the
Issuer's discretion, on any interest and amortization payment date during the
term of the Series E. For these purposes, the Issuer shall comply with the
stipulations in Section 5.10 hereof.
10. Interest
and Amortization Payment Dates
(i) Interest
accruing on the Series E Bonds shall be paid in 19 installments payable on
the
following dates:
First
installment, to expire September 1, 2007;
Second
installment, to expire March 1, 2008;
Third
installment, to expire September 1, 2008;
Fourth
installment, to expire March 1, 2009:
Fifth
installment, to expire September 1, 2009;
Sixth
installment, to expire March 1, 2010;
Seventh
installment, to expire September 1, 2010;
Eighth
installment, to expire March 1, 2011;
Ninth
installment, to expire September 1, 2011;
Tenth
installment, to expire March 1, 2012;
Eleventh
installment, to expire September 1, 2012;
Twelfth
installment, to expire March 1, 2013;
Thirteenth
installment, to expire September 1, 2013;
Fourteenth
installment, to expire March 1, 2014;
Fifteenth
installment, to expire September 1, 2014;
Sixteenth
installment, to expire March 1, 2015;
Seventeenth
installment, to expire September 1, 2015;
Eighteenth
installment, to expire March 1, 2016;
Nineteenth
installment, to expire September 1, 2016.
11
(i) Principal
amortizations of Series E Bonds shall be made in 19 installments that will
expire on the following dates:
First
installment, to expire September 1, 2007;
Second
installment, to expire March 1, 2008;
Third
installment, to expire September 1, 2008;
Fourth
installment, to expire March 1, 2009:
Fifth
installment, to expire September 1, 2009;
Sixth
installment, to expire March 1, 2010;
Seventh
installment, to expire September 1, 2010;
Eighth
installment, to expire March 1, 2011;
Ninth
installment, to expire September 1, 2011;
Tenth
installment, to expire March 1, 2012;
Eleventh
installment, to expire September 1, 2012;
Twelfth
installment, to expire March 1, 2013;
Thirteenth
installment, to expire September 1, 2013;
Fourteenth
installment, to expire March 1, 2014;
Fifteenth
installment, to expire September 1, 2014;
Sixteenth
installment, to expire March 1, 2015;
Seventeenth
installment, to expire September 1, 2015;
Eighteenth
installment, to expire March 1, 2016;
Nineteenth
installment, to expire September 1, 2016.
12
SEVENTH:
CERTIFICATES
1. Issuance
and Withdrawal of Certificates
Since
the
Bonds issued under this facility will be electronic and, therefore, subject
to
the pertinent rules in the DCV Law, in the DCV Regulations, in NCG 77 and in
the
DCV Internal Regulations, the delivery of certificates, understood to be a
delivery made at the time of placement, shall not be made physically as they
are
electronic instruments. Instead, it shall be made magnetically, through an
electronic instruction addressed to DCV. For purposes of each placement, a
position will be opened in the account kept by DCV for the Placement Agent
for
the Bonds that will be placed. The transfers between the Placement Agent and
the
position holders shall be made by purchase and sale transactions that will
be
perfected in invoices to be issued by the Placement Agente that will contain
the
nominal amount of investment, expressed in minimum tradable positions, which
will be registered through the DCV systems. The position accounts of each of
the
investors acquiring certificates shall be credited and the account of the
Placement Agent shall be debited. Certificate holders may trade positions either
directly as a DCV depositor or through a depositor acting as an intermediary
and
they may request certifications from the DCV pursuant to articles 13 and 14
of
the DCV Law. Pursuant to article 11 of the DCV Law, DCV depositors may only
request withdrawal of one or more certificates of the Bonds in the cases and
conditions determined by the Superintendency in a general rule. The Issuer
shall
proceed in each case, at its expense, to physically prepare such certificates.
The following procedure must be used in physically preparing certificates:
(i)
after any one of the events occurs that allows certificates to be issued on
paper and withdrawn from the DCV, based on a respective request by a depositor,
DCV shall request that the Issuer physically prepare one or more certificates,
indicating the series and subseries and number of the Bonds to be issued on
paper; (ii) the way in which the depositor must request materialization and
withdraw the certificates and the period for the DCV to make the request to
the
Issuer shall be regulated in rules governing the relations between them; (iii)
the Issuer shall determine the print shop entrusted with printing the
certificates, notwithstanding the agreements it makes on the matter with the
DCV; (iv) the Issuer shall deliver physical certificates to the DCV in the
period of 30 Business Days after the date of request for issue thereof by DCV;
(v) the physical certificates should comply with the security standards
established now or in the future by the Superintendency and contain coupons
representing maturities expressed in the payment schedule of the respective
series or subseries; (vi) prior to delivery from the Issuer, the Issuer shall
remove and void coupons expired on the date of materialization of this
certificate;
2. Procedure
in the Case of Misplacement, Theft or Robbery, Ruin or Destruction and
Replacement or Exchange of Certificates or Coupons
The
misplacement, theft or robbery, ruin or destruction of a certificate or of
one
or more coupons thereof that has been withdrawn from the DCV and, therefore,
is
on paper, as indicated in number 1 above, shall be the exclusive risk of the
Holder thereof and the Issuer is thus released from any liability. The Issuer
shall only be obligated to issue a duplicate of the respective certificate
or
coupon in replacement of the physical original, if so ordered by a final and
binding court decision rendered by an ordinary court that specifies the series,
subseries, date and number of the corresponding certificate or coupon, after
guarantee has been established in favor of the Issuer and to the discretionary
satisfaction thereof for an amount equal to that of the certificate or coupon
for which a duplicate has been requested. This guarantee shall remain in place
for a period of 5 years from the date of the last maturity of the certificate
or
coupons being replaced. However, if a certificate and/or coupon is damaged
before it is voided or the essential indications thereof are destroyed, the
Issuer may issue a duplicate after the interested party publishes a notice
in a
widely circulated national newspaper informing the public that the original
certificate is void. In this case, the requester shall deliver the ruined
certificate and coupon to the Issuer before the duplicate is issued thereto.
In
these cases, the Issuer reserves the right to request the guarantee indicated
herein above. In all the above situations, the duplicate certificate shall
indicate that the respective formalities have been completed. All costs
associated with the procedures described above, including, but not limited
to,
the corresponding publications, fees of advisors assisting those requesting
replacement or exchange of a certificate, and the costs inherent to issuing
a
replacement certificate, shall be paid by the requester.
13
3. Stipulations
that are deemed incorporated to the Certificates of Electronic
Bonds:
(i) The
name
and address of the Issuer and legal information on its legal incorporation;
(ii) The
city,
date and notarial office where this Indenture Agreement and Supplemental Deeds
hereto, if any, were executed and the number and date of registration in the
Securities Registry.
(iii) Serial
and subserial number of the Bonds and the correlative number of the certificate;
(iv) The
par
value of the Bond and the number of Bonds represented by the
certificate;
(v) An
indication that the electronic Bonds are bearer;
(vi) The
face
value of the facility and of the respective issue and period of placement
thereof;
(vii) The
term
of the Bonds;
(viii) Certification
that the issue is unsecured;
(ix) The
form
of adjustment of the Bonds, interest rate, a description of the interest
calculation procedure, the form and date of amortization and the dates and
place
of payment of interest, adjustments and amortizations;
(x) The
date
from which the Bonds earn interest and adjustments and from which the period
of
amortization begins to run;
(xi) The
name
of the Bondholders Representative and the way in which the replacement thereof
must be informed;
(xii) An
indication that only Holders who, on the closing date, have a position in the
respective electronic Bonds and are reported by the DCV to the Issuer according
to article 12 of the DCV Law and who, if relevant, provide the certificate
indicated in Article 32 of the DCV Regulations, as well as the paper Bond
Holders who meet the requirements indicated in Section 12.5.11 of this Indenture
Agreement, may participate in Bondholder Meetings;
(xiii) The
date
of the certificate, the seal of the Issuer and the signature of the Issuer
and
Bondholders Representative; and
14
(xiv) Each
certificate is understood to bear the following legend: “The only obligors to
payment of this Bond are the Issuer and the obligors thereto. The fact that
the
Superintendency of Securities and Insurance has registered the issue does not
mean that it secures payment thereof or the solvency of the Issuer. Accordingly,
the risk of acquisition is the exclusive responsibility of the
purchaser.”
4. Certificate
of Positions
As
provided in articles 13 and 14 of the DCV Law, as long as the Bonds remain
electronic and on deposit with the DCV, the certificate of position issued
thereby will be an enforceable instrument valid in filing any attachment action
against the Issuer.
EIGHTH:
USE OF FUNDS
The
funds
received from placing the first issue of the Bonds under this facility, i.e.
the
Series E Bonds, the characteristics of which are set down in Section 6 hereof,
will be used entirely to refinance the Issuer’s liabilities. The funds from the
Bonds placed that have been issued under the facility after the first issue
identified in Section 6 hereof will be used for the purpose established in
the
respective Supplemental Deeds.
NINTH:
OBLIGATIONS, LIMITATIONS AND PROHIBITIONS
Until
the
Issuer has paid Holders for all principal and interest on the Bonds in
circulation that are issued under the Bond facility, the Issuer shall be subject
to the following obligations, limitations and prohibitions, without prejudice
to
those that apply thereto pursuant to the general rules in the pertinent
law:
1. It
must
maintain a debt ratio below 1.2, defined as the ratio between current
interest-bearing liabilities and equity, measured and calculated quarterly
using
the consolidated financial statements presented in the form and period
stipulated for the FECU. For these purposes:
(i) Current
interest-bearing liabilities are defined, in the FECU format, as the sum of
accounts 5.21.10.10, 5.21.10.20, 5.21.10.30, 5.21.10.40, 5.21.10.50, 5.22.10.00
and 5.22.20.00; and equity is defined in the FECU format as the sum of the
minority interest (FECU account 5.23.00.00) and of equity (FECU account
5.24.00.00).
2. It
must
maintain a minimum interest expense coverage of 3.5, defined as the ratio
between operating income plus depreciation plus amortization of intangibles
and
interest expense, measured and calculated quarterly for the period of 4
consecutive quarters prior to the date of calculation in respect of the
consolidated financial statements presented in the forms and periods stipulated
in the FECU. For these purposes:
(i) Operating
income corresponds, in the FECU format, to account 5.31.11.00;
(ii) Depreciation
corresponds, in the FECU format, to account 5.50.30.05; and
15
(iii) Amortization
of intangibles corresponds, in the FECU format, to account 5.50.30.10; and
(iv) Interest
expense corresponds, in the FECU format, to account 5.31.12.60.
3. It
must
keep assets free of liens for an amount equal to at least 1.3 times the unpaid
balance of all Bonds issued by the Issuer and outstanding, calculated and
measured quarterly on the consolidated balance sheet. For these purposes, the
Issuer will send the Bondholders Representative a description of the following
items together with the quarterly financial statements: Total assets, assets
deductible that are not deliverable in guarantee, liened assets and the unpaid
balance of all of the Bonds issued by the Issuer;
4. It
must
maintain a total consolidated equity, account 5.24.00.00 in the FECU, for at
least the equivalent to 13,000,000 Unidades de Fomento. This amount should
be
calculated quarterly.
5. It
must
not make investments in instruments issued by related persons nor perform other
transactions with related persons in conditions other than those prevailing
on
the market, as provided in article 89 of Companies Law 18,046. The Issuer's
subsidiaries shall also abide by the stipulations in the preceding paragraph.
The definition of "related persons" shall be as defined in article 100 of the
Securities Market Law. The Bondholders Representative may request information
on
transactions with related persons of the Issuer in order to confirm compliance
with the stipulations in this number and in such case, the Issuer shall send
the
Bondholders Representative such information together with the quarterly
financial statements;
6. It
must
send the Bondholder’s Representative a copy of its quarterly and annual
consolidated financial statements in the same period and format in which they
must be provided to the Superintendency of Securities and Insurance. The Issuer
shall also send the Bondholder’s Representative a copy of the risk rating
reports no later than 5 Business Days after receipt from its private rating
agencies. The Issuer undertakes to send the Bondholder’s Representative any
other relevant information on the Issuer required by the Superintendency, in
the
same form and on the same dates that it is delivered to the Superintendency.
The
Bondholder’s Representative may also request annual and quarterly financial
statements from the Issuer’s subsidiaries and the Issuer shall send them in no
more than 10 Business Days after such request. If the information provided
by
the Issuer is rated “confidential,” the Representative shall maintain an
appropriate confidentiality in regard thereto.
7. It
must
record provisions in its accounting books for adverse contingencies that must
be
indicated in the financial statements of the Issuer and its subsidiaries, when
pertinent, in the opinion of the Issuer’s management and/or external
auditors.
8. It
must
notify the Bondholder’s Representative of notices of Regular and Special
Shareholders Meetings of the Issuer, using for this purpose all formalities
and
periods particular to notice to shareholders. The person appointed by the
Bondholder’s Representative may attend those meetings with the right to speak,
but not the right to vote.
9. It
must
advise the Bondholder’s Representative of any material or essential event
occurring, understood to be as defined for open stock corporations.
16
10. It
must
keep the Bonds registered on the ▇▇▇▇▇▇▇▇ Stock Exchange as long as they are
outstanding.
11. It
must
keep under contract two private risk rating agencies registered in the pertinent
registries of the Superintendency as long as the Bonds issued under this
agreement are outstanding so that they will be rated permanently, on an ongoing
basis.
12. It
must
appoint independent external auditors annually in the terms of article 51 of
the
Companies Law.
13. It
must
prepare the Financial Statements according to generally accepted accounting
principles and standards and instructions of the Superintendency;
and
14. It
must
keep the goods and assets and those of its subsidiaries properly insured and
provide information to the Bondholders Representative on the renewal or
substitution of actual policies.
TENTH:
MERGER, DIVISION OR TRANSFORMATION OF THE ISSUER; CREATION OF SUBSIDIARIES;
SALE
OF ASSETS AND LIABILITIES; OR SALE OF ESSENTIAL ASSETS.
1. Merger
A
newly
incorporated company or the company taking over, as the case may be, in the
merger of the Issuer with one or more companies, either by creation or by
incorporation, will assume any and all of the obligations imposed upon the
Issuer in this Agreement and the Supplemental Deeds.
2. Division
All
companies arising from a division of the Issuer will be jointly and severally
liable for all obligations stipulated in this Agreement and in the Supplemental
Deeds, even though it may be stipulated among them that the obligation to pay
the Bonds issued under the facility will be proportional to the equity of the
Issuer allocated to each thereof or any other proportion, and notwithstanding
the lawful agreements that may be made with the Bondholders
Representative.
3. Transformation
Should
the Issuer change its legal nature, all obligations arising under this agreement
and the Supplemental Deeds will apply to the transformed company, without
exception.
4. Creation
of Subsidiaries
The
Issuer will notify the creation of one or more subsidiaries to the Bondholders
Representative, which will not affect the rights of Bondholders nor the
obligations of the Issuer under this Agreement and the Supplemental
Deeds.
17
5. Sale
of
Assets and Liabilities to Related Persons and Sale of Essential
Assets
In
this
case, the Issuer shall ensure that the transaction abides by arm's length
conditions similar to those usually prevailing on the market. Assets essential
to the Issuer are sales outlets and distribution power plants of the
Issuer.
ELEVENTH:
DEFAULTS BY THE ISSUER
The
Issuer will grant equal treatment to all Holders of Bonds issued hereunder.
The
Issuer recognizes and agrees that any Bondholder may require payment of debt
outstanding thereto should the Issuer not pay all sums owed in full to
Bondholders for amortizations of principal, adjustments or ordinary or default
interest, in the form, period and conditions set down in this Agreement and
Supplemental Deeds. The Issuer also acknowledges and agrees that the Bondholders
may, upon prior resolution of the Bondholders Meeting by the quorum established
in article 124 of the Securities Market Law, demand full early payment of
unamortized principal and interest accrued on all Bonds issued under the
facility and it therefore agrees that all obligations assumed in regard thereto
under this Agreement and under the Supplemental Deeds will be considered due
on
the same date that the Bondholders Meetings adopts the respective resolution,
if
one or more of the following events occurs:
1. The
Issuer becomes delinquent or simply delays in the payment of any installment
of
principal or interest on the Bonds and does not remedy this within 15 days
after
occurrence, notwithstanding paying default interest indicated in Section 5.11
hereof. A delay in collection by a Bondholder will not constitute
delinquency;
2. If
the
Borrower becomes delinquent in paying money obligations, whether direct or
indirect, owed to third parties for a total accumulated amount greater than
the
equivalent to 5% of the Issuer's total assets (account 5.10.00.00 of the FECU),
according to its most recent consolidated statements, and does not remedy this
within 30 days after occurrence. A delay in paying commitments subject to
lawsuits or litigation outstanding for obligations not recognized by the Issuer
shall not be considered delinquency, which must be countersigned by the Issuer’s
auditors;
3. A
default
on any obligation stipulated in Section 9 hereof or the Issuer or any of its
subsidiaries becomes insolvent, provided the above situations are not cured
in
the period of 30 days after the date of notice to the Bondholders
Representative.
4. Any
representation made by the Issuer in the instruments issued or subscribed
because of reporting obligations assumed herein is or proves to be maliciously
false or incomplete;
5. Any
other
creditor of the Issuer legitimately collects all of a term money loan therefrom
in exercise of the right of acceleration because of an event contained in the
respective agreement except, however, when the event consists of default on
a
money obligation that does not exceed the equivalent to 5% of the Issuer's
total
assets (account No. 5.10.00.00 of the FECU), according to its most recent
consolidated financial statements;
18
6. The
Issuer is dissolved or wound up or the term of duration thereof is reduced
to a
period less than the final expiration of amortizations of all Bonds issued
under
the facility. The Issuer promises to give notice to the Bondholders
Representative of any of the occurrences indicated in numbers 1 to 6 of this
clause as soon as it occurs or becomes known thereto.
The
Bondholders may act individually or jointly, personally or through the
Bondholders Representative, in making early collection of the Bonds in this
issue for the reasons indicated in this clause.
TWELFTH:
BONDHOLDERS MEETINGS
Bondholders
Meetings will be convened, held, installed, resolutions adopted and generally
conducted in the manner stipulated in the Securities Law, in particular article
122 et seq., in the rules issued by the Superintendency, and in the following
particular rules:
1. When
the
Bondholders Meeting is convened to discuss any of the matters that differentiate
one series in circulation issued under this facility from another, the
Bondholders Representative may choose to convene a Bondholders Meeting at which
the Bondholders in each series will vote separately or convene separate meetings
for Holders in each series or the respective series.
2. The
Bondholders shall meet in Bondholders Meetings provided they are convened by
the
Representative pursuant to article 122 et seq. of the Securities Market
Law.
3. The
statement made by the Issuer or the Representative pursuant to Section 5.15
hereof shall be used to determine the Bonds in circulation, the par value
thereof and the series and subseries thereof. In order to determine the Bonds
in
circulation and the par value thereof (i) before all Bonds in the first issue
under the facility or all Bonds issued under Supplemental Deeds, as the case
may
be, have been placed or (ii) after the period for placement has expired but
the
Issuer has not made the aforesaid statement, the Issuer shall make a similar
statement regarding the Bonds placed through that date, at least 6 Business
Days
in advance of the date of a meeting. If it does not, the statement may be made
by the Bondholders Representative using the information available.
4. The
notice of the Bondholders Meeting shall be given by the representative by means
of a prominent notice published at least three times on different days in the
Newspaper within 20 days prior to the date set for the meeting. The first notice
may not be published less than 15 days in advance of the meeting. Notices shall
state the day, time and place and purpose of the meeting. Moreover, since it
is
an electronic issue, at least 15 Business Days in advance of the Meeting, DCV
shall be given written notice of the date, time and place of the meeting in
order for it to be able to inform its depositors through its own
systems.
5. The
people who, on the Closing Date, hold a position in the electronic Bonds
according to the list provided by DCV to the Issuer, as provided in article
12
of the DCV Law, and who also furnish the certificate indicated in article 32
of
the DCV Regulations, may participate at the Bondholders Meeting. For these
purposes, the Closing Date of position accounts in DCV will be the fifth
Business Day prior to the date of the Meeting wherefore the Issuer shall provide
the pertinent information to DCV sufficiently in advance. By mere delivery
of
the list from DCV, the Holders of positions appearing thereon shall be deemed
registered in the Special Registry that the Issuer will open for purposes of
meeting attendance; as shall the Holders of paper Bonds who have withdrawn
their
certificates from DCV, provided they have been registered for participation
in
the respective meeting five Business Days in advance of the date thereof in
the
Special Registry that the Issuer will open for that purpose. These Holders
must
present the corresponding certificates or certificates of custody of the
certificates issued by an authorized institution in order to be registered.
In
this latter case, the certificate shall state the series, subseries and number
of the paper certificates in custody, the number of Bonds included therein
and
their par value.
19
6. The
Special Bondholders Meeting may authorize the Representative to agree with
the
Issuer upon the amendments to this Indenture Agreement specifically authorized
thereby, under the approval of two-thirds of all of the votes of the Bonds
in
circulation issued under this facility, notwithstanding the provisions in the
third subparagraph of article 125 of the Securities Market Law.
7. The
Bonds
belonging to Holders who are persons related to the Issuer shall not be taken
into account for purposes of a quorum and of the majorities required at meetings
to approve the resolutions indicated in the preceding number, nor for the
resolutions indicated in articles 105, 112 and 120 of the Securities Market
Law.
8. Bondholders
Meetings may deliberate on and approve the removal of the Representative and
appointment of the replacement thereof, authorization for acts required by
the
law and, generally, all matters of common interest to the
Bondholders.
9. The
Issuer shall pay the reasonable expenses arising because of a Bondholders
Meeting, either to rent rooms or equipment, publish notices and make other
publications.
THIRTEENTH:
BONDHOLDERS REPRESENTATIVE
1. Election,
resignation, replacement and removal
The
Bondholders Meeting may always remove the Representative and revoke the power
of
attorney thereof without having to state a reason. After resignation of the
Representative or approval of the removal thereof, the Bondholders Meeting
shall
necessarily immediately appoint a replacement. The resignation or removal of
the
Representative shall take effect only after the replacement has accepted the
position. The replacement of the Representative appointed in the manner
stipulated in this clause shall accept the position at the same Bondholders
Meeting where he is appointed or by a written declaration that he will deliver
to the Issuer and to the removed or resigned Representative, which shall state
his intent to accept the appointment or designation as new Representative.
The
resignation or removal and new appointment shall take effect from the date
of
the meeting where the replacement stated his acceptance of the position or
from
the date of the aforesaid declaration, and the replacement shall be vested
with
all rights, powers, duties and obligations that the law and this instrument
confer upon the Representative. Notwithstanding the foregoing, the Issuer and
the replacement of the Representative may require that the Representative
deliver all documents and information on this issue in the possession
thereof.
20
No
replacement of the Representative may accept the position unless he meets the
requirements in the law and this instrument to be a Representative. Once the
Representative is replaced, the appointment of the replacement and acceptance
of
the position by such replacement must be disclosed within 15 Business Days
following occurrence, by notice published on two different Business Days in
a
widely circulated newspaper in the country. This notwithstanding, the
Superintendency and the Issuer must be informed of all these circumstances
on
the Business Day following occurrence. Furthermore, since it is an electronic
issue, the notice on the election, replacement or removal of the Bondholders
Representative shall be notified to DCV in order for it to be able to disclose
it to its depositors through its own systems. The Indenture Agreement does
not
need to be amended to record this situation.
2. Events
of
Vacancy
The
Bondholders Representative shall leave office because of resignation submitted
to the Bondholders Meeting, because of disqualification or because of removal
by
the Bondholders Meeting. Neither the Bondholders Meeting nor the Issuer shall
have the right to render an opinion or qualify the sufficiency of the reason
serving as the basis for the Representative's resignation, which shall be at
the
exclusive and sole discretion thereof.
3. Rights
and Powers of Control
In
addition to the powers corresponding thereto as Representative and those granted
thereto by the Bondholders Meeting, the Representative shall have all the
attributions conferred thereupon by law and this Agreement. The Representative
shall, in particular, take all judicial actions available in defense of the
common interest of the principals thereof. He shall state the majority intent
of
his principals in claims and other judicial proceedings undertaken by the
Representative in the collective interest of the Bondholders, but shall not
need
to prove that fact. If the Bondholders Representative must assume the individual
or collective representation of all or any thereof in the exercise of actions
in
defense of the interests of such Bondholders, said Bondholders must previously
provide him with the funds necessary to undertake that mission, including,
inter
alia, those involving payment of attorneys' fees and other judicial expenses.
In
the case of an electronic issue, the certificate of position issued by the
DCV
will be an enforceable instrument and valid in taking attachment action against
the Issuer, as provided in Articles 13 and 14-bis of the DCV Law. The
Representative will also be empowered to request and examine the books and
documents of the Issuer provided there is good reason, in the opinion thereof,
to do so and it is in the intention of protecting the interests of the
principals thereof. He may ask the Issuer or external auditors thereof for
the
reports he deems pertinent for the same purposes and he will have the right
to
be fully informed in writing at any time of everything relating to the course
of
the Issuer's business and that of its subsidiaries by the CEO of the Issuer
or
his replacement. This right shall be exercised in a way that does affect
corporate operations. The Representative may also attend the Issuer’s
shareholders meetings without the right to vote and shall therefore be given
notice of regular and special shareholders meetings through all the formalities
and in the periods for notice to shareholders.
21
4. Duties
and responsibilities. In addition to the duties and obligations granted to
the
Representative herein, the Representative shall have all other obligations
stipulated in the law itself. He shall also be obligated, upon request by any
of
the Bondholders, to provide essential information on the Issuer that the Issuer
must disclose in accordance with the law and will directly affect the
Bondholders, always provided such information has been sent previously thereto
by the Issuer. The Representative shall keep confidential the business, data
and
information he receives in exercise of his inspection authority and may not
disclose or reveal the reports, circumstances and details of such transactions
unless it is strictly indispensable to performing his duties. The Representative
is forbidden to delegate all or part of his functions. The Issuer shall pay
for
all necessary, reasonable and certified expenses incurred by the Bondholders
Representative in performing the functions contained in the law and in this
Agreement, including those originating in the notice and holding of a
Bondholders Meeting, which include the fees of the professionals involved,
publication of meeting notices and other related expenses, and the Issuer shall
provide the Bondholders Representative in due course with the funds to pay
for
them. The Representative shall act exclusively to the best interests of his
principals and be liable for ordinary negligence in the performance of his
duties, notwithstanding the administrative and criminal liability that is
attributable thereto. It is stipulated that the representations contained herein
and in the Bond certificates, except in regard to information on the
Representative and such other representations and contractual stipulations
that
are the liability of the Representative pursuant to law, must be considered
representations by the Issuer itself. The Representative shall assume no
liability for the accuracy or veracity thereof.
5. Information
The
Representative and the Bondholders themselves shall be deemed informed of the
operations and financial statements that the Issuer must report to the
Superintendency because of this issue by delivery of the information that the
Issuer must provide to the Superintendency pursuant to the law, regulations
and
administrative rules. A copy of such information shall be sent simultaneously
to
the Bondholders Representative. The foregoing is without prejudice to the
Issuer's obligation to deliver the information indicated in Sections 9.6 and
9.9
hereof to the Bondholders Representative in the terms therein stipulated. The
Representative shall be understood to have fulfilled his obligation to report
to
the Bondholders if he maintains such information available thereto at his main
offices. The Representative shall be understood to have fulfilled this
obligation to confirm compliance by the Issuer with the terms, clauses and
obligations herein through the information that he provides pursuant to this
same clause.
6. Fee
The
Issuer shall pay Banco de Chile the following sums as the Holders
Representative:
(i) An
initial fee for each indenture agreement under the facility, equal to 50
Unidades de Fomento plus Value-Added Tax;
(ii) A
fixed
annual fee of 80 Unidades de Fomento, plus Value-Added Tax, for the entire
time
that the Bonds issued under the facility are outstanding. This fee will accrue
as of the date of the first placement of Bonds issued under the facility and
shall be paid annually in advance, the first payment to be made at the time
of
the first placement of Bonds issued under the facility; and
22
(iii) A
fee of
50 Unidades de Fomento, plus Value-Added Tax, for each Holders
Meeting.
FOURTEENTH:
PAYING BANK
1. Appointment
BANCO
DE
CHILE or the replacement or successor thereof in the manner indicated herein
below shall be the bank that pays the obligations under the Bonds issued against
the facility. Its function will be to act as a deputy in the payment of interest
and principal and any other payment under the Bonds and to effectuate the other
proceedings and measures necessary to that end. The Paying Bank shall be
replaced by public deed executed by the Issuer, the Representative and the
new
Paying Bank. Such replacement shall take effect only once the replaced Paying
Bank has been notified of such deed by a minister of faith and said deed has
been annotated at the margin of this deed. The Paying Bank may not be replaced
30 Business Days prior to any principal or interest payment date. In the event
of replacement of the Paying Bank, the place of payment of the Bonds will be
the
place indicated in the deed of replacement or in the Issuer’s domicile, if
nothing is said therein. The Paying Bank may resign from his position with
reason at least 90 days in advance of any date for the payment of interest
or
amortization of principal and shall give notice that same time in advance by
certified letter to the Issuer, to the Bondholders Representative and to the
DCV. In that case, it shall be replaced in the manner stated above and if no
replacement is appointed, payments of principal and/or interest on the Bonds
shall be made at the Issuer's office. Any change or substitution of the Paying
Bank for any reason will be notified to the Bondholders by notice published
on
two different days in the Newspaper. The first notice shall be published no
less
than 30 days in advance of the next expiration date of any coupon. Replacement
of the Paying Bank shall not require nor suppose any amendment to this Indenture
Agreement.
2. Fee
BANCO
DE
CHILE shall receive a fixed annual fee of 50 Unidades de Fomento, plus
Value-Added Tax, for its services as Paying Bank as long as the Bonds issued
under the facility are outstanding. This fee shall accrue as of the date of
the
first placement of Bonds issued under the facility and shall be paid annually
in
advance, the first payment to be made at the time of the first placement of
Bonds issued under the facility.
3. Place
and
Form of Payment and Supply of Funding
Payment
shall be made at the main offices of the Paying Bank, currently located at
▇▇▇▇▇▇▇ 251, this city, during normal public banking hours. The Paying Bank
shall make payments to the Holders for order and account of the Issuer. The
Issuer shall supply the necessary funds to the Paying Bank for the payment
of
interest and principal on the Bonds by deposit of available funds at least
one
Business Day in advance of the date when the respective payment must be made.
The Paying Bank shall not make the respective payment of principal or interest
on the Bonds, without any liability thereto, if it does not receive funding
opportunely. The Paying Bank shall not make any partial payments if it does
not
receive sufficient funds to make all of the corresponding payments. For purposes
of the relations between the Issuer and the Paying Bank, the legitimate Holder
of electronic Bonds shall be presumed to be the one who has that status
according to certification by the DCV, as provided in the DCV Law, the DCV
Regulations and the DCV Internal Regulations. In the case of paper certificates,
whoever presents such certificates simultaneous to delivery of the respective
coupons for collection of the latter shall be presumed to be the legitimate
Holder of the Bonds.
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FIFTEENTH:
DOMICILE AND ARBITRATION
For
all
legal purposes derived from this Agreement, the parties elect their special
domicile as the city and borough of ▇▇▇▇▇▇▇▇ and submit to the competence of
its
ordinary courts of justice regarding all such matters that are not expressly
submitted to the venue of the arbitral tribunal established herein below.
Notwithstanding the unwaiveable right of the plaintiff to resort to the ordinary
courts, the differences arising because of the issue of the Bonds under this
facility, the term or extinguishment thereof, whether arising among the
Bondholders or the Representative thereof, and the Issuer, will be submitted
to
the decision of an arbiter, who shall follow the rules stipulated in the law
for
ordinary judges, according to the nature of the action filed, in regard to
procedure as well as a final decision. Said arbiter shall be appointed by mutual
consent of the disputing parties and failing consent, by the ordinary courts.
However, in that case, the appointment may only fall upon an attorney who is
or
has been a ▇▇▇▇ or director of the University of Chile and Catholic University
of Chile Law School, Santiago campus, or a full professor of Civil or Commercial
Law who is teaching or has taught those subjects at said universities for at
least 5 years. The request for appointment of an arbiter made by any of the
parties to the ordinary courts shall suffice to prove that there is no agreement
thereamong. There shall be no remedy against the resolutions of the arbiter,
except for the remedy of complaint. The fees of the arbitral tribunal and the
procedural costs will be paid by whoever has filed the arbitration, except
in
disputes in which the Issuer is a party, in which case both expenses will be
borne by the Issuer, notwithstanding the right of the affected parties to take
recourse, if relevant, against the party ultimately condemned to pay
costs.
SIXTEENTH:
APPLICATION OF COMMON RULES
Anything
not regulated in Section 6 hereof in regard to the Bonds forming part of the
first issue under the facility or in the respective Supplemental Deeds for
Bonds
in subsequent issues shall be subject to the common rules stipulated herein
for
all Bonds issued under this facility, regardless of their series or
subseries.
SEVENTEENTH:
SUBSIDIARY RULES AND INNATE RIGHTS
Alternative
to the stipulations herein, the pertinent laws and regulations as well as the
rules, rulings and instructions issued now or in the future by the
Superintendency of Securities and Insurance in use of its legal authority shall
apply to the Bonds issued under the facility.
EIGHTEENTH:
It is stipulated that according to article 112 of the Securities Market Law,
no
special trustee, custodian or qualified experts need be appointed for this
Bond
issue.
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NINETEENTH:
REGISTRATIONS AND EXPENSES
The
bearer of a notarized copy of this deed is empowered to request the
corresponding registrations. The taxes, notarial and registration expenses
and
eventual releases arising under this instrument will be paid by the
Issuer.
AUTHORITIES
The
authority of ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
to
represent Distribución y Servicio D&S S.A. is evidenced in the public deed
dated December 28, 2006, executed in the Santiago Notarial Office of ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇. The authority of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ to represent BANCO DE
CHILE is set down in the public deed dated March 17, 2005, executed in the
Santiago Notarial Office of ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Cash.
The
authority of ▇▇. ▇▇▇▇▇▇▇ Le-Beuffe Souper to represent BANCO DE CHILE is
evidenced in the public deed dated June 30, 2003, executed in the Santiago
Notarial Office of ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Cash. None of these authorities are
inserted as they are known to the parties, at the specific request thereof,
and
as the attesting notary has seen them. This text was written by ▇▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, attorney.
In
witness whereof, the parties sign this instrument after reading it. A copy
is
issued. This page corresponds to the deed of the Indenture Agreement between
Distribución y Servicio D&S S.A. and BANCO DE CHILE. I attest.
/s/
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
ON
BEHALF OF DISTRIBUCIÓN
Y SERVICIO D&S S.A.
ID
NO. 10.087.763-5
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ON
BEHALF OF BANCO DE CHILE
ID
NO. ▇.▇▇▇.▇▇▇-▇
/s/
▇▇▇▇▇▇▇ Le-Beuffe Souper
ON
BEHALF OF BANCO DE CHILE
ID
NO. ▇.▇▇▇.▇▇▇-▇
25