Exhibit 2(c)
THIS SUPPLEMENTAL INDENTURE is dated December 13, 2002 (the "Supplemental
Indenture")
BETWEEN
(1) ESPIRITO SANTO CENTRAIS ELETRICAS S.A. - ESCELSA (hereinafter referred
to as the "Issuer"); and
(2) X.X. XXXXXX XXXXX BANK (formerly known as The Chase Manhattan Bank and
hereinafter referred to as the "Trustee", which expression shall,
where the context so admits, include all persons for the time being
the trustee or trustees of this Supplemental Indenture).
WHEREAS,
(A) There has heretofore been executed and delivered to the Trustee an
Indenture dated July 28, 1997 (the "Indenture"), providing for the
issuance of the Issuer's 10% Senior Notes due 2007 (the "Notes");
(B) As provided in Section 7.02. of the Indenture, the holders of no less
than a majority in aggregate principal amount of the Notes for the time
being outstanding, by way of consent evidenced as provided in Article 6
of the Indenture, approved certain amendments to the Indenture and
authorized, directed and requested the Trustee to enter into a
supplemental indenture, supplemental to the Indenture, to give effect
to the provisions approved thereby;
(C) The Trustee, as per the approval of the holders of a majority in the
aggregate principal amount of Notes, and the Issuer, by its execution
of this Supplemental Indenture, consent and agree to such amendments;
(D) This Supplemental Indenture is by way of supplement to the Indenture;
(E) Each of the parties hereto has duly authorized the execution and
delivery of this Supplemental Indenture so that, as of and from the
date of this Supplemental Indenture, the relevant provisions of the
Indenture shall stand amended and restated; and
(F) Pursuant to Section 7.04. of the Indenture, there has been delivered to
the Trustee on the date hereof an Officers' Certificate and an Opinion
of Counsel certifying that this Supplemental Indenture complies with
the applicable provisions of the Indenture.
NOW THIS INDENTURE WITNESSES AND IT IS HEREBY DECLARED:
1. Interpretation
All capitalized terms not defined in this Supplemental Indenture shall
have the meanings set forth in the Indenture.
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2. Amendments to the Indenture
The Indenture is hereby amended as follows:
(i) Sections 3.05. Certificates to Trustee, 3.08. Limitation on
Indebtedness, 3.09. Limitation on Restricted Payments, 3.10.
Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries, 3.11. Limitation on Issuances of
Guarantees by Restricted Subsidiaries, 3.12. Limitation on
Transactions with Shareholders and Affiliates, 3.13. Limitation on
Liens, 3.14. Limitation on Sale-Leaseback Transactions, 3.16.
Limitations on the Issuance of Capital Stock of Restricted
Subsidiaries, 3.18. Provision of Financial and other Information,
3.19. Subsidiary Guarantees, 3.21. Waiver of Stay, Extension or
Usary Laws, 3.22. Maintenance of Properties and Insurance, 3.23.
Registration and 8.01. When ESCELSA or Subsidiary Guarantor May
Merge shall be deleted in their entirety.
(ii) Subsections 3.15. (i) and (ii) Limitation on Asset Sales shall be
deleted in their entirety.
(iii) Subsection 3.15 (iii) will be amended as follows: Reference to the
words "$10 million" shall be deleted and replaced with the words
"$200 million".
(iv) Section 4.01. shall be amended and restated as follows:
"SECTION 4.01. Event of Default Defined. In case one or more of
the following Events of Default (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall have occurred and
be continuing, that is to say:
(a) default in the payment of principal of, or premium, if any,
on any Note when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise; or
(b) default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a
period of 30 days."
3. Miscellaneous
(i) Ratification of Indenture.
The Indenture as supplemented by this Supplemental Indenture, is
in all respects ratified and confirmed, and this Supplemental
Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
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(ii) Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Issuer and not
by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental
Indenture.
(iii) New York Law to Govern.
THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, EACH NOTE AND EACH
COUPON SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF
LAW).
(iv) Separability.
In case any one or more of the provisions contained in this
Supplemental Indenture or in the Notes shall for any reason be
held to be invalid, illegal or unenforceable in any respect,
then, to the extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other
provisions of this Supplemental Indenture or of the Notes, but
this Supplemental Indenture and the Notes shall be construed
as if such invalid or illegal or unenforceable provision had
never been contained herein or therein.
(v) Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
(vi) Provisions Required by Trust Indenture Act of 1939 to Control.
If any provision of this Supplemental Indenture limits,
qualifies or conflicts with a provision which is required to
be included in this Supplemental Indenture by the Trust
Indenture Act of 1939, the required provision shall control.
(vii) Effectiveness.
This Supplemental Indenture becomes effective and
unconditional on the date any and all Notes are accepted for
payment by Electricidade de Portugal pursuant to the Offer to
Purchase and Consent Solicitation Statement dated November 20,
2002.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of December , 2002.
ESPIRITO SANTO CENTRAIS ELETRICAS S.A. - ESCELSA
By: /s/ Antonio Xxxxxxx xx Xxxxx
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Name: Antonio Xxxxxxx xx Xxxxx
Title: Chief Executive Officer
By: /s/ Xxxxxx Xxxxxxx Xxxxx
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Name: Xxxxxx Xxxxxxx Xxxxx
Title: Chief Financial Officer
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XX XXXXXX CHASE BANK, as Trustee
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice President
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