FIRST AMENDMENT TO INDENTURE AGREEMENT BY AND BETWEEN DISTRIBUCIÓN Y SERVICIO D&S S.A. AND BANCO DE CHILE
FIRST
AMENDMENT TO INDENTURE AGREEMENT
BY
AND BETWEEN
DISTRIBUCIÓN
Y SERVICIO D&S S.A.
AND
BANCO
DE CHILE
In
Santiago, Chile, on February 9, 2007, before me, XXXXXX XXXXX XXXXXXXX,
Alternate Notary Public to Xx. XXXX XXXXXXX XXXXXX, Regular Notary of the
Forty-Eighth Notarial Office of Santiago, domiciled in this city at Huérfanos
770, 3rd floor, pursuant to Decree No. 122-2007 of the Presidency of the Court
of Appeals dated February 6, 2007, filed at the end of the February 2007
Registries, there appeared:
XXXXXX
XXXXX XXXXX
XXXXX, 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. 00.000.000-0, both domiciled, for these purposes, at Xxxxxxx
Xxxxxxx Xxxx Xxxxxxxx 0000, xxxxxxx of Quilicura, city of Xxxxxxxx (hereinafter
the "Issuer") as one party; and as the other,
Xx.
XXXXXXX XXXXXXXX XXXXX, Chilean, married, business administrator, national
identity card No. 6.374.597-9, and Xx. XXXXXX XXXXXXXX XXXXXXX, Chilean,
married, businessman, national identity card No. 6.636.671-5, both on behalf
of,
as shall be evidenced, BANCO DE CHILE, a juristic person engaged in banking,
all
domiciled at Xxxxxxx 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:
FIRST:
Recitals
1.1 On
December 29, 2006, the parties executed a public deed of an indenture agreement
in this same Notarial Office under Journal Number 18,507-2006, pursuant to
the
final subparagraph of article 104 of Law 18,045, the securities market law
(hereinafter the "Indenture Agreement"). Such deed established, inter alia,
the
characteristics, terms and other conditions of a bond facility for six million
unidades de fomento (hereinafter the "Facility").
1.2 As
required by law 18,045, the securities market law, and General Rule 30 of the
Superintendency of Securities and Insurance (hereinafter the "SVS"), as amended,
on January 4, 2006, the Issuer filed a registration request with the SVS to
which it accompanied, among other information, a copy of the Indenture
Agreement.
1.3 On
February 1, 2007, by means of Ordinary Letter Number 01501, the SVS made
observations to the information presented by the Issuer, including to the
Indenture Agreement.
1.4 The
parties hereby amend the Indenture Agreement in the manner indicated in the
next
clause.
SECOND:
Amendments
On
this
date, the parties, under due authorization, hereby amend the Indenture Agreement
and, therefore, the public deed dated December 29, 2006, executed under Journal
Number 18,507-2006 in this same Notarial Office, in the following
way:
2.1 (a) The
definition of Business Day in the first section is replaced in full by the
following: "Business Day means any day of the week except for
holidays";
(b) The
following new definition is added after the definition of Business Day: "Bank
Business Day means any day when banks and financial institutions open their
doors to the public for transactions forming part of their
business";
(c) The
two
parts in Section 5.10 where it says "Business Day" must be changed to "Bank
Business Day";
(d) The
two
parts in Section 5.11 where it says "Business Day" must be changed to "Bank
Business Day";
(e) The
two
parts in Section 9.6 where it says "Business Days" must be changed to "Bank
Business Days";
(f) "Business
Day" in Section 14.3 must be changed to "Bank Business Day";
2.2 The
figure "26,000,168,314 pesos" in Section 2.3.A is replaced by "26,168,314,000
pesos."
2.3 The
phrase "specifying the currency or unit of adjustment" is eliminated in Section
5.14.a).
2.4 The
phrase "If such statement is not made, it may be made at any time by the
Representative using the information available" is eliminated in Section
15.15.
2.5 The
part
in Section 6.6 is replaced entirely where it says "Bond Term. The Series E
Bonds
will expire March 1, 2015." It will read "Bond Term. The Series E Bonds will
expire September 1, 2016."
2.6 Section
Eight is replaced entirely by the following: "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 and primarily to refinance the Issuer’s liabilities.
However, they will be used subsidiarily to finance investment projects and
pay
costs associated with placement. 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 to restructure the Issuer's liabilities and/or finance investment
projects, and to pay the costs associated with placement. All such uses shall
be
determined in terms of percentage and specific uses in the respective
Supplemental Deeds."
2.7 The
following is added at the end of Section 11.5 and shall form an integral part
thereof: "; and regardless, provided the above situation is not cured in the
period of thirty days after the date when the respective lender has notified
the
Issuer of its decision to exercise the right to collect the credit
early."
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2.8 Section
12.3 is replaced entirely by the following: "3. The statement made by the Issuer
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 (u) 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 Bank Business Days in advance of the date of a
meeting."
2.9 The
following is added at the end of Section 13.5 and it forms an integral part
thereof: "The foregoing shall be understood without prejudice to the
Representative's right to request from the Issuer or the external auditors
thereof the reports necessary for an appropriate protection of the interests
of
its principals. It shall have the right to be fully informed in writing of
everything relating to the course of the Issuer's business, at any time, by
the
manager or substitute thereof. 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. The Representative shall keep
the internal information on the Issuer that it receives strictly confidential,
notwithstanding the powers available thereto to fulfill its
functions."
2.10 The
parties agree to amend the document entitled "Payment Schedule" that is attached
to the Indenture Agreement. Where it says "Expiration date: March 1, 2015,"
it
should say "Expiration date: September 1, 2016." Moreover, in order to reflect
solely this change, the parties agree to file a new Payment Schedule with this
deed.
THIRD:
The parties expressly state that except as amended herein, all stipulations
in
the Indenture Agreement remain unchanged.
FOURTH:
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 Xx. Xxxxxx Xxxx Xxxxx Xxxxx 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 Xx. Xxxx Xxxxxxx Xxxxxx. The authority of
Xxxxxxx Xxxxxxxx Xxxxx to represent BANCO DE CHILE is set down in the public
deed dated March 17, 2005, executed in the Santiago Notarial Office of Xx.
Xxxx
Xxxxxxxxx Cash. The authority of Xx. Xxxxxx Xxxxxxxx Xxxxxxx to represent BANCO
DE CHILE is evidenced in the public deed dated February 25, 2004, executed
in
the Santiago Notarial Office of Xx. Xxxx Xxxxxxxxx Cash. None of these
authorities are inserted as they are known to the parties and to the attesting
notary, at the specific request thereof. This text was written by Xx. Xxxxxxxxx
Xxxxxxx Xxxxxxx, attorney.
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In
witness whereof, the parties sign this instrument after reading it. A copy
is
issued. This page corresponds to the public deed of amendment of indenture
agreement between Distribución y Servicio D&S S.A. and BANCO DE CHILE. I
attest.
/s/
Xxxxxx Xxxx Xxxxx Xxxxx
ON
BEHALF
OF DISTRIBUCIÓN Y SERVICIO D&S S.A.
ID
NO.
10.087.763-5
/s/
Xxxxxxx Xxxxxxxx Xxxxx
ON
BEHALF
OF BANCO DE CHILE
ID
NO.
0.000.000-0
/s/
Xxxx
Xxxxxxxxx Cash
ON
BEHALF
OF BANCO DE CHILE
ID
NO.
0.000.000-0
4
