Exhibit 4.18
[EXECUTION COPY]
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF June 27, 2002
to the
INDENTURE
Dated as of June 27, 1997
among
VOTO-VOTORANTIM OVERSEAS TRADING OPERATIONS N.V.,
as Issuer
JPMORGAN CHASE BANK,
as Registrar, Transfer Agent and Paying Agent
JPMORGAN CHASE BANK, LONDON BRANCH,
as Transfer Agent and Paying Agent
▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A.,
as Paying Agent
JPMORGAN TRUST BANK LTD.,
as Principal Paying Agent
VOTORANTIM PARTICIPACOES S.A.
VOTORANTIM CELULOSE E PAPEL S.A.
and
CIMENTO RIO ▇▇▇▇▇▇ ▇.▇.,
as Guarantors
and
JPMORGAN CHASE BANK,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture")
dated as of June 27, 2002, among Voto-Votorantim Overseas Trading Operations
N.V., a public limited liability company (naamloze vennootschap) duly organized
and existing under the laws of the Netherlands Antilles (the "Company"),
Votorantim Participacoes S.A.(formerly known as S.A. Industrias Votorantim)
("VPSA"), Votorantim Celulose e Papel S.A., for itself and as successor in
interest to Celpav Celulose e Papel Ltda., ("VCP"), and Cimento Rio ▇▇▇▇▇▇ ▇.▇.,
for itself and as successor in interest to Companhia de Cimento Portland Rio
▇▇▇▇▇▇ and Companhia de Cimento Portland Gaucho, ("CRB"), each of which is a
validly organized corporation (sociedade anonima) duly organized under the laws
of the Federative Republic of Brazil (each a "Guarantor" and together the
"Guarantors"), and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank, New York), as trustee (the "Trustee").
WHEREAS, the Company, the Guarantors, JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank, New York), as registrar, transfer agent and
paying agent, JPMorgan Chase Bank, London Branch (formerly known as The Chase
Manhattan Bank, London Branch), as transfer agent and paying agent, ▇.▇. ▇▇▇▇▇▇
Bank Luxembourg S.A. (formerly known as Chase Manhattan Bank Luxembourg S.A.),
as transfer paying agent and paying agent, JPMorgan Trust Bank Ltd. (formerly
known as Chase Trust Bank), as principal paying agent and the Trustee are
parties to an Indenture dated as of June 27, 1997 (as amended and supplemented
as of the date hereof, the "Existing Indenture") pursuant to which the Company
issued U.S.$400,000,000 of its 8.5% Notes due 2005 (the "Securities").
WHEREAS, Section 9.2 of the Existing Indenture provides that the
Company, the Guarantors, and the Trustee, with the written consent of the
Holders of a majority in aggregate principal amount of the outstanding
Securities, may enter into a supplemental indenture for purposes of amending the
Existing Indenture or such Securities.
WHEREAS, the Holders of a majority in aggregate principal amount of
the outstanding Securities shall, pursuant to this First Supplemental Indenture,
provide written consent to the execution and delivery of this First Supplemental
Indenture.
WHEREAS, all things necessary have been done to make this First
Supplemental Indenture, when executed and delivered by the Company, the legal,
valid and binding agreement of the Company.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, that for
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and for the purpose of amending and supplementing the Existing
Indenture, the Company, the Guarantors and the Trustee, for the benefit of the
Holders, agree as follows:
First Supplemental Indenture
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used in this First
Supplemental Indenture and not otherwise defined are used herein as defined in
the Existing Indenture. In addition, as used herein:
"Indenture Documents" means, collectively, the First Supplemental
Indenture, the Existing Indenture as amended by the First Supplemental Indenture
and the Securities.
"Indenture Obligors" means, collectively, the Company and the
Guarantors.
"Material Adverse Effect" means a material adverse change in or a
material adverse effect on (a) the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Indenture Obligor and
its Subsidiaries, or (b) the ability of any Indenture Obligor to perform its
obligations under the Indenture Documents or (c) the rights and remedies of the
Holders and the Trustee hereunder or under any of the other Indenture Documents.
ARTICLE II
AMENDMENT OF THE ORIGINAL INDENTURE
Upon receipt by the Trustee of duly executed counterparts of this
First Supplemental Indenture from the parties hereto, the Existing Indenture
shall be amended as follows:
Section 2.01. Amendment of Section 1.1. The following new defined
terms and definitions shall be added to Section 1.1 of the Existing Indenture in
the appropriate alphabetic locations:
"Capital Expenditures" means, as to any Person, expenditures
(including in respect of Capital Lease Obligations) made by such Person to
acquire or construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs unless such repairs
are required to be capitalized in accordance with GAAP).
"Cash Threshold" means, at any time, the lesser of (i) the aggregate
amount of cash of any Guarantor and its Subsidiaries on a consolidated
basis at such time and (ii) the Current Portion of Long-Term Debt of such
Guarantor and its Subsidiaries at such time.
"Current Portion" means, at any time, as to any Long-Term Debt, the
portion thereof scheduled to mature within one year.
First Supplemental Indenture
----------------------------
"Debt Service Coverage Ratio" means, as at the last day of any fiscal
quarter of any Guarantor the ratio of (i) EBITDA for the period of four
consecutive fiscal quarters of such Guarantor ending on such date minus the
aggregate amount of Capital Expenditures of such Guarantor and its
Subsidiaries on a consolidated basis made during such period plus the Cash
Threshold on such date to (ii) the Current Portion of Long-Term Debt on
such date plus Interest Expense for the period of four consecutive fiscal
quarters of such Guarantor and its Subsidiaries on a consolidated basis
ending on such date.
"EBITDA" shall mean, for any period, with respect to any Guarantor and
its consolidated Subsidiaries, the sum, determined on a consolidated basis,
of net operating income (calculated before taxes, Interest Expenses,
extraordinary and unusual items and income or loss attributable to equity
in Affiliates) for such period plus depreciation and amortization (to the
extent deducted in determining net operating income) for such period,
determined in accordance with GAAP.
"GAAP" means generally accepted accounting principles in Brazil or, in
the case of the Company, the Netherlands Antilles.
"Interest Expense" means, for any period, for any Guarantor and its
Subsidiaries on a consolidated basis, the sum (determined without
duplication) of the aggregate amount of interest accruing during such
period on Indebtedness of such Guarantor and its Subsidiaries, including
the interest portion of payments under Capital Lease Obligations and any
capitalized interest and amortization of debt discount and expense,
provided that Interest Expense shall not include expenses arising in
connection with foreign exchange losses, including, without limitation,
foreign exchange losses upon loans and foreign currency translation
adjustments, or monetary correction.
"Long-Term Debt" means, as to any Guarantor or its Subsidiary at any
date, Indebtedness for or in respect of borrowed money scheduled to mature
more than one year after such date, or in the case of Indebtedness under
any revolving credit facility, having a tenor which is extendable or
renewable at the option of the borrower thereof to a date more than one
year from such date.
"Net Debt" means, as at any time, an amount equal to the Total Debt
less the aggregate amount of all cash, cash equivalents and marketable
securities (valued in accordance with GAAP) of any Guarantor and its
consolidated Subsidiaries.
"Net Debt to EBITDA Ratio" means, at any time, the ratio of (i) Net
Debt at such time to (ii) EBITDA for the then most recently concluded
12-month period.
"Net Worth" shall mean, as at any date, the sum, for any Guarantor and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following:
First Supplemental Indenture
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(a) the amount of capital stock; plus
(b) the amount of paid-in capital; plus
(c) the amount of retained earnings (or, in the case of a retained
earnings deficit, minus the amount of such deficit).
"St. ▇▇▇▇▇ Credit Agreement" means the Credit Agreement dated as of
June 25, 2002 among St. ▇▇▇▇▇ Holding II B.V., a Netherlands Antilles private
limited liability company, each of the lenders that is a signatory thereto under
the caption "BANKS" on the signature pages thereto, Citibank, N.A., acting
through its Citibank Agency and Trust Services department, as collateral agent,
and Citibank, N.A., as administrative agent, as from time to time amended.
"Total Bank Debt" means, as at any date, the aggregate outstanding
principal amount of Indebtedness for or in respect of borrowed money of any
Guarantor and its consolidated Subsidiaries on a consolidated basis.
"Total Bank Debt to Total Capitalization Ratio" means, as at the last
day of any fiscal quarter of any Guarantor, the ratio of (i) Total Bank Debt to
(ii) Total Capitalization.
"Total Capitalization" means, as at any date for any Guarantor and its
consolidated Subsidiaries on a consolidated basis, the sum, of: (a) Total Bank
Debt plus (b) Net Worth plus (c) minority interests.
"Total Debt" means, at any time, the aggregate outstanding principal
amount of all Indebtedness that would, in accordance with GAAP, appear on the
liability side of a consolidated balance sheet of any Guarantor and its
consolidated Subsidiaries.
Section 2.02. Amendment of Section 5.1. Section 5.1 of the Existing
Indenture is hereby amended by (i) deleting the word "and" at the end of
paragraph (n) thereof, (ii) deleting the period at the end of paragraph (o)
thereof, and substituting "; and" therefor, and (iii) adding a new paragraph (p)
at the end thereof to read as follows:
"(p) the occurrence of an "Event of Default" under and as defined in
the St. ▇▇▇▇▇ Credit Agreement."
Section 2.03. Amendment of Article 10. Article 10 of the Existing
Indenture is hereby amended by adding to the end thereof a new Section 10.15 to
read as follows:
"SECTION 10.15 Financial Covenants
(a) Debt Service Coverage Ratio. Each Guarantor will not permit its
Debt Service Coverage Ratio at any time to be less than 1.30 to 1.00.
First Supplemental Indenture
----------------------------
(b) Total Bank Debt to Total Capitalization Ratio. Each Guarantor will
not permit its Total Bank Debt to Total Capitalization Ratio at any time to
be greater than 0.70 to 1.00.
(c) Net Debt to EBITDA Ratio. Each Guarantor will not permit its Net
Debt to EBITDA Ratio as at each June 30 and December 31, to be higher than
3.00 to 1.00.
For the purposes of this Section 10.15 only (and any defined terms used in
the calculations described in this Section), the definition of "Subsidiary"
set forth in Section 1.1. shall exclude Votorantim Financas S.A., and all
other direct and indirect Subsidiaries of VPSA which are principally
engaged in the financial services business and related activities."
ARTICLE III
WAIVER
Section 3.01. Section 10.13. Upon receipt by the Trustee of duly
executed counterparts of this First Supplemental Indenture from the parties
hereto, compliance by the Guarantors with Section 10.13 of the Existing
Indenture shall be waived to the extent necessary to permit St. ▇▇▇▇▇ Holding II
B.V, a Netherlands Antilles private limited liability company ("St. ▇▇▇▇▇"), to
enter into the Credit Agreement dated as of June 25, 2002 among St. ▇▇▇▇▇, each
of the lenders that is a signatory thereto under the caption "BANKS" on the
signature pages thereto, Citibank, N.A., acting through its Citibank Agency and
Trust Services department, as collateral agent, and Citibank, N.A., as
administrative agent, as from time to time amended, and the transactions
contemplated thereby and by the other Credit Documents (as defined therein).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties. Each Indenture Obligor
represents and warrants to the Trustee and the Holders that:
(a) Power and Authority. It (a) in the case of the Issuer, is a
public limited liability company duly incorporated and validly
existing under the laws of the Netherlands Antilles, and in the case
of each Guarantor, is a validly organized corporation (sociedade
anonima) duly organized under the laws of the Federative Republic of
Brazil, (b) has full power, authority and legal right to make and
perform each of the Indenture Documents; and (c) is in compliance in
all material respects with all applicable laws and regulations and
with all material contractual obligations applicable to it.
(b) Due Authorization, Etc. The execution, delivery and
performance by it of the Indenture Documents and of all other
documents and instruments to be executed and delivered hereunder or
thereunder by it are within its corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene
(a) its charter or by-
First Supplemental Indenture
----------------------------
laws or (b) any applicable law, decree, regulation, judgment, award,
injunction or similar legal restriction, as now in effect.
(c) No Additional Authorization Required. All licenses,
authorizations and approvals and other actions by, and all notices to
and filings and registrations with, any Government Agency, and all
third-party approvals, required for the due execution, delivery and
performance by it of the Indenture Documents or for the legality,
validity or enforceability of the Indenture Documents have been
obtained and are in full force and effect and true copies thereof have
been provided to the Holders, except for the authorization of the
Central Bank of Brazil for the remittance of any payment by the
Guarantors under the Existing Indenture as amended by the First
Supplemental Indenture directly from Brazil by each Guarantor by means
of a foreign exchange transaction.
(d) Legal Effect. Each of the Indenture Documents have been duly
executed and delivered by each Indenture Obligor and are legal, valid
and binding obligations of such Indenture Obligor, enforceable against
such Indenture Obligor in accordance with its terms.
(e) Financial Statements. The (a) consolidated balance sheet of
each Indenture Obligor as of December 31, 2001, and the related
consolidated statements of income and cash flows for the fiscal year
ending on that date, and (b) consolidated balance sheet of each
Indenture Obligor as of December 31, 2001, and the related
consolidated statements of income and cash flows for the fiscal
quarter ending on that date, are complete and correct and fairly
present the financial condition of such Indenture Obligor and its
consolidated Subsidiaries as at said dates and the consolidated
results of its operations for the fiscal periods ending on said dates,
all in accordance with GAAP, and none of the Indenture Obligors or any
of their consolidated Subsidiaries have any material contingent
liabilities or unusual forward or long-term commitments not disclosed
therein. Since December 31, 2001, no event or circumstance has
occurred that has had a Material Adverse Effect.
(f) Ranking; Priority. The payment obligations of the Indenture
Obligors under the Indenture Documents are and will at all times be
unconditional general obligations of the Indenture Obligors, and will
at all times rank at least pari passu with all other present and
future unsubordinated Indebtedness of the Indenture Obligors
(g) No Actions or Proceedings. There is no litigation,
investigation or proceeding pending or, to the best knowledge of any
Indenture Obligor, threatened against any of the Indenture Obligors by
or before any Government Agency that (either individually or in the
aggregate) (a) could reasonably be expected to have a Material Adverse
Effect or (b) purports to affect the legality, validity, binding
effect or enforceability of any of the Indenture Documents.
(h) Commercial Activity; Absence of Immunity. Each Indenture
Obligor is subject to civil and commercial law with respect to its
obligations under the Indenture Documents, and the making and
performance by it of such Indenture Documents
First Supplemental Indenture
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constitute private and commercial acts rather than public or
governmental acts. Each Indenture Obligor is not entitled to immunity
on the ground of sovereignty or the like from the jurisdiction of any
court or from any action, suit, set-off or proceeding, or service of
process in connection therewith, arising under the Indenture
Documents.
(i) Event of Default. No event has occurred and is continuing
that constitutes a Default or an Event of Default under the Indenture.
ARTICLE V
MISCELLANEOUS
Section 5.01. Effectiveness and Effect. The provisions set forth in
this First Supplemental Indenture shall be deemed to be, and shall be construed
as, a part of the Existing Indenture. All references to "the Indenture" and
terms of similar import in the Existing Indenture, the Securities or in any
other agreement, document or instrument delivered in connection therewith or
pursuant thereto shall be deemed to refer to the Existing Indenture as amended
by this First Supplemental Indenture. Except as amended hereby, the Existing
Indenture shall remain in full force and effect.
Section 5.02. Severability of Provisions. In case any provision in
this First Supplemental Indenture shall be invalid, illegal or unenforceable,
the validity, illegality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 5.03. Effect of Headings. The headings of the Articles,
Sections, subsections, clauses and paragraphs hereof are for convenience of
reference only, and shall not affect the construction or interpretation of this
First Supplemental Indenture.
Section 5.04. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original, but
all such counterparts shall together constitute but one and the same instrument.
Delivery of an executed counterpart of a signature page of this First
Supplemental Indenture by telecopy shall be effective as delivery of a manually
executed counterpart of this First Supplemental Indenture.
Section 5.05. GOVERNING LAW. THE RIGHTS AND OBLIGATIONS OF EACH OF THE
PARTIES UNDER THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. For the purposes
of paragraph 2 of Article 9 of the Brazilian Decree-Law No. 4.657 of September
4, 1942, and for no other purpose or reason whatsoever, the transaction
contemplated hereby have been proposed by the Trustee on behalf of the Holders
to the Guarantors upon the request of the Company and the Guarantors.
Section 5.06. Binding Effect. This First Supplemental Indenture shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
First Supplemental Indenture
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
VOTO-VOTORANTIM OVERSEAS TRADING
OPERATIONS N.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-fact
Witnessed by:
1.______________________
2.______________________
First Supplemental Indenture
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VOTORANTIM PARTICIPACOES S.A. (formerly
known S.A. Industrias Votorantim)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
VOTORANTIM CELULOSE E PAPEL S.A., for
itself and as successor in interest
to Celpav Celulose e Papel Ltda.
By /s/ ▇▇▇▇ Calfat
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Name: ▇▇▇▇ Calfat
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
CIMENTO RIO ▇▇▇▇▇▇ ▇.▇.,
for itself and as successor in interest to
Companhia de Cimento Portland Rio ▇▇▇▇▇▇
and Companhia de Cimento Portland Gaucho
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-fact
Witnessed by:
1.______________________
2.______________________
First Supplemental Indenture
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JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank, New York),
as Trustee
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Trust Officer
Witnessed by:
1./s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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2./s/ ▇▇▇▇▇▇ More
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First Supplemental Indenture
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CONSENTED TO AND AGREED:
ST. ▇▇▇▇▇ HOLDINGS II B.V.
By ING Trust (Antilles) N.V.
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-fact
Witnessed by:
1.______________________
2.______________________
First Supplemental Indenture
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