INDENTURE dated as of May 3, 2021 among Natura Cosméticos S.A., as Issuer, Natura &Co Holding S.A., as Guarantor, and
Exhibit 4.12
EXECUTION VERSION
INDENTURE
dated as of May 3, 2021
among
Natura Cosméticos S.A.,
as Issuer,
Natura &Co Holding S.A.,
as Guarantor,
and
THE BANK OF NEW YORK MELLON,
as Trustee, Registrar, Transfer Agent and Paying Agent
U.S.$1,000,000,000
4.125% Sustainability-Linked Notes due 2028
NOTE: This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture.
INDENTURE, dated as of May 3, 2021, among Natura Cosméticos S.A., a corporation (sociedade anônima) incorporated under the laws of the Federative Republic of Brazil (the “Issuer”), Natura &Co Holding S.A., a corporation (sociedade anônima ) incorporated under the laws of the Federative Republic of Brazil (the “Guarantor”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee (together with its successors, in such capacity, the “Trustee”), registrar (the “Registrar”), transfer agent (the “Transfer Agent”) and paying agent (the “Paying Agent”).
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the creation of the Notes and, to provide therefor, the Issuer and the Guarantor have duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make the Notes, when duly issued and executed by the Issuer and authenticated and delivered hereunder, the valid obligations of the Issuer, and to make this Indenture a valid and binding agreement of each of the Issuer and the Guarantor, have been done; and
WHEREAS, the Trustee has accepted the trusts created by this Indenture and in evidence thereof has joined in the execution hereof.
NOW, THEREFORE, each party hereto agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders:
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Subsidiary of the Guarantor or at the time it merges or consolidates with or into the Guarantor or any of its Subsidiaries or assumed in connection with the acquisition of assets from such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary of the Guarantor or such acquisition, merger or consolidation and which Indebtedness is without recourse to the Guarantor or any of its Subsidiaries or to any of their respective properties or assets other than the Person or the assets to which such Indebtedness related prior to the time such Person became a Subsidiary of the Guarantor or the time of such acquisition, merger or consolidation.
“Additional Amounts” has the meaning set forth in Section 2.06.
“Additional Notes” means any 4.125% Sustainability-Linked Notes due 2028 issued after the Issue Date (other than pursuant to Section 2.07, Section 2.08, Section 2.11 and Section 3.09 of this Indenture) from time to time in accordance with the terms of this Indenture, including, without limitation, the provisions of Section 2.02.
“Affiliate” means, with respect to any specified Person, (a) any other Person which, directly or indirectly, is in control of, is controlled by or is under common control with such specified Person or (b) any other person who is a director or executive officer (i) of such specified Person, (ii) of any Subsidiary of such specified Person or (iii) of any Person described in clause (a) above. For purposes of this definition, “control” of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent” means any Registrar, Transfer Agent or Paying Agent.
“Agent Members” has the meaning set forth in Section 2.15 and means, with respect to DTC, Euroclear or Clearstream, a Person who has an account with DTC, Euroclear or Clearstream, respectively.
“Applicable Procedures” means, with respect to any transfer or exchange or transaction involving a Global Note or any beneficial interests therein, the rules and procedures of DTC, Euroclear and Clearstream that apply to such transfer or exchange or transaction and as in effect from time to time.
“Authenticating Agent” has the meaning set forth in Section 2.02.
“Bankruptcy Law” means the Bankruptcy Reform Act of 1978 (codified as 11 U.S.C. §§101 et seq), or Brazilian Law No. 11,101/05, as it may be amended from time to time, or any similar federal, state or foreign law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, or relief of debtors.
“Baseline Recalculation” means in the event of a material acquisition, merger, divestiture or similar transaction, a recalculation of the Greenhouse Gas Emissions Baseline pursuant to which the Issuer must (i) exclude the tCO2e and tonnes of product billed attributable to any business acquired, directly or indirectly, in a transaction or series of related transactions since the Issue Date by the Issuer, and (ii) exclude the tCO2e and tonnes of product billed attributable to any divestiture in a transaction or series of related transactions completed since the Issue Date, directly or indirectly, by the Issuer.
“Board of Directors” means, as to any Person, the board of directors (conselho de administração) or similar governing body of such Person or any duly authorized committee thereof.
“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Brazilian Corporate Law” means Law No. 6,404/76, as amended.
“Brazil” means the Federative Republic of Brazil.
“Business Day” means a day that is not a Legal Holiday.
“Capitalized Lease Obligation” means, as to any Person, the obligations of such Person under any lease that is required to be classified and accounted for as capital lease obligations on a balance sheet prepared in accordance with GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Change of Control” means the occurrence of one or more of the following events:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Guarantor and its Subsidiaries taken as a whole to any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act)), other than to one or more of the Permitted Holders, and other than pursuant to (i) any such transaction in which immediately after the consummation thereof, no “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) other than one or more Permitted Holders is the “beneficial owner” (as such term is used in Rules 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Person to which all or substantially all of the assets of the Guarantor and its Subsidiaries taken as a whole are sold, leased, transferred or conveyed, or (ii) any such sale, lease, transfer or conveyance to one or more Permitted Holders if immediately after such transaction no “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is the “beneficial owner” (as defined in Rules 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the voting power of the outstanding Voting Stock of such Permitted Holder; or
(2) the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any Person (including any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act)), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as such term is used in Rules 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Guarantor.
For purposes of clause (2) above, any direct or indirect holding company of the Guarantor shall not itself be considered a “person” or “group”; provided that no “person” or “group” (other than one or more of the Permitted Holders) beneficially owns, directly or indirectly, more than 50% of the total voting power of the Voting Stock of such holding company.
For the avoidance of doubt, a Change of Control shall not occur in the event of a merger or consolidation between Subsidiaries of the Guarantor or a merger of the Guarantor or any Subsidiary with or into the Guarantor or any Subsidiary, as the case may be.
“Clearstream” means Clearstream Banking, société anonyme and its successors.
“Code” means the United States Internal Revenue Code of 1986, as amended.
“Commodity Agreement” means any hedging agreement or other similar agreement or arrangement designed to protect the Guarantor or any of its Subsidiary against fluctuations in commodity prices (excluding contracts for the purchase or sale of goods in the ordinary course of business).
“Common Stock” means, with respect to any Person, any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common shares, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common shares.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the Par Call Date to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the Par Call Date.
“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Consolidated Total Assets” means, at any date of determination, the total amount of the consolidated assets of the Guarantor and its Subsidiaries, as set forth on the most recent consolidated quarterly financial statements of the Guarantor, calculated after giving pro forma effect to any acquisition or disposition of companies, divisions, lines of businesses, operations or assets by the Guarantor and its Subsidiaries subsequent to such date and on or prior to the date of determination.
“Corporate Trust Office” means the office of The Bank of New York Mellon, at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, at the date of this Indenture, located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, Attention: Global Corporate Trust, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).
“Covenant Defeasance” has the meaning set forth in Section 8.01.
“Currency Agreement” means any foreign exchange contract, currency swap agreement, currency option or other similar agreement or arrangement designed to protect the Guarantor or any of its Subsidiaries against fluctuations in currency values.
“Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“CVM” means the Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliários).
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.01, 2.07, 2.08, 2.11 or 3.09 hereof, substantially in the form of Exhibit A hereto, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Increases and Decreases of Interests in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provisions of this Indenture.
“DTC” means The Depository Trust Company, its nominees and successors.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, and its successors.
“Event of Default” has the meaning set forth in Section 6.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“External Verifier” means a qualified provider of third-party assurance or attestation services appointed by the Issuer to review the Issuer’s Sustainability Performance Targets.
“FATCA” has the meaning set forth in Section 2.06.
“Fair Market Value” means, with respect to any asset or Property, the price which could be negotiated in an arm’s length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined by the Board of Directors of the Guarantor acting in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Guarantor; provided, however, that with respect to any price less than U.S.$50.0 million only the good faith determination by the Guarantor’s senior management shall be required.
“Fitch” means Fitch Ratings Ltd. and its successors.
“GAAP” means (i) International Financial Reporting Standards, (ii) accounting practices generally accepted in the United States or (iii) accounting practices prescribed by Brazilian Corporate Law, the rules and regulations issued by the CVM and the accounting standards issued by the Brazilian Institute of Independent Accountants (Instituto dos Auditores Independentes do Brasil), in each case as in effect from time to time, in the Guarantor’s discretion.
“Global Note Legend” means the legend set forth in Exhibit B, which shall be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend, issued in accordance with Section 2.01, 2.07, 2.08, 2.11 or 3.09 hereof.
“Greenhouse Gas Emissions Baseline” means the Greenhouse Gas Emissions Intensity for the year ended December 31, 2019 published in the Sustainability-Linked Bond Report, or 3.18 tCO2e/tonnes of product billed, as it may be recalculated from time to time pursuant to a Baseline Recalculation reported in the Issuer’s Sustainability-Linked Bond Report, published on the Issuer’s website and accompanied by a verification statement from the External Verifier as required under the Sustainability-Linked Bond Framework.
“Greenhouse Gas Emissions Intensity” means tCO2e divided by tonnes of product billed.
“Greenhouse Gas Emissions Intensity Target” means the greater of: (i) the sustainability performance target to reduce Greenhouse Gas Emissions Intensity by 13% calculated for the year ended December 31, 2026 as measured against the Greenhouse Gas Emissions Baseline; or (ii) the SBTI-approved Target; provided that the Issuer may from time to time in its sole and absolute discretion revise the Greenhouse Gas Emissions Intensity Target, without the consent of the holders, to reflect a similar or more ambitious level of targets.
“Guarantee” has the meaning set forth in Section 11.01.
“guarantee” means any obligation, contingent or otherwise, of any person guaranteeing any Indebtedness or other obligation of any person and any obligation, direct or indirect, contingent or otherwise, of such person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (b) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided however, that the term guarantee will not include endorsements for collection or deposit in the ordinary course of business. The term guarantee used as a verb has a corresponding meaning.
“Guarantor” means Natura &Co Holding S.A., a corporation (sociedade anônima) organized and existing under the laws of the Federative Republic of Brazil.
“Holder” means the Person in whose name a Note is registered on the Register maintained by the Registrar.
“incur” means to directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of any Indebtedness.
“Indebtedness” means with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the deferred purchase price of Property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business);
(5) all Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction, excluding obligations in respect of letters of credit or bankers’ acceptances issued in respect of trade accounts payables to the extent not drawn upon or presented, or, if drawn upon or presented, to the extent the resulting obligation of the Person is paid within 10 Business Days;
(6) guarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below to the extent so guaranteed;
(7) all Obligations of any other Person of the type referred to in clauses (1) through (6) above that are secured by any Lien on any Property or asset of such Person; and
(8) to the extent not otherwise included in this definition, net obligations of all Interest Swap Obligations and all Obligations under Currency Agreements and Commodity Agreements .
The amount of Indebtedness of any Person will be deemed to be:
(A) with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the Obligation;
(B) with respect to Indebtedness secured by a Lien on the Property or asset of such Person but not otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the Fair Market Value of such Property or asset on the date the Lien attached and (y) the amount of such Indebtedness;
(C) with respect to any Indebtedness issued with original issue discount, the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness;
(D) with respect to any Interest Swap Obligations or Obligations under Currency Agreements and Commodity Agreements, the net amount payable if such agreement or arrangement giving rise to such obligation terminated at that time due to default by such Person; and
(E) otherwise, the outstanding principal amount thereof.
The principal amount of any Indebtedness or other obligation that is denominated in any currency other than U.S. dollars (after giving effect to any Interest Swap Obligations or Obligations under Currency Agreements and Commodity Agreements in respect thereof) shall be the amount thereof, as determined pursuant to the foregoing sentence, converted into U.S. dollars at the spot rate in effect on the date of determination.
Notwithstanding anything to the contrary, “Indebtedness” shall not be deemed to include any obligations that do not appear on the face of the balance sheet of the Guarantor.
“Indemnified Party” has the meaning set forth in Section 7.06.
“Indenture” means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof.
“Indenture Documents” means, collectively, this Indenture, the Notes and the Guarantee.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Issuer or the Guarantor.
“Initial Lien” has the meaning set forth in Section 4.08.
“Interest Payment Date” means the stated maturity of an installment of interest on the Notes (being each May 3 and November 3 of each year, beginning on November 3, 2021).
“Interest Swap Obligations” means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.
“Investment Grade” means BBB- or higher by Standard & Poor’s, Baa3 or higher by Moody’s or BBB- or higher by Fitch, or the equivalent of such global ratings by Standard & Poor’s, Moody’s or Fitch.
“Issuer” has the meaning specified in the preamble hereto.
“Issue Date” means May 3, 2021.
“Issuer Substitution Documents” has the meaning set forth in Section 10.01.
“Legal Defeasance” has the meaning set forth in Section 8.01.
“Legal Holiday” means a Saturday, a Sunday or a day on which commercial banks and foreign exchange markets are authorized or required by law to close in New York, New York or São Paulo, Brazil. If a payment date is a Legal Holiday at the place of payment, payment may be made at such place on the next succeeding day that is not a Legal Holiday, and no interest will accrue for the intervening period.
“Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale, repurchase or other title retention agreement and any agreement to give any security interest).
“Maturity Date” means, when used with respect to any Note, the date on which the principal of such Note becomes due and payable as therein or herein provided, whether at its Stated Maturity Date or by declaration of acceleration, call for redemption or otherwise.
“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“Non-Resident Holder” means any Holder that is an individual, entity, trust or organization that is not resident or domiciled in Brazil for purposes of Brazilian taxation.
“Non-U.S. Person” means a Person who is not a U.S. person (as defined in Regulation S).
“Notes” means, collectively, the 4.125% Sustainability-Linked Notes due 2028 issued under this Indenture on the Issue Date and any Additional Notes. The initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the initial Notes and any Additional Notes.
“Obligation” means all payment obligations, whether or not contingent, for principal, premium, interest, additional amounts, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
“Offer to Purchase” has the meaning assigned to such term in Section 3.10.
“Offering Memorandum” means the final offering memorandum dated April 26, 2021 prepared by the Guarantor and the Company in connection with the Notes.
“Officer” means the Chief Executive Officer, the President, the Chief Financial Officer, any other officer or authorized representative of the Issuer or the Guarantor, as the case may be, duly appointed at a meeting of its Board of Directors or relevant governing body, or empowered or authorized by a power of attorney granted by the Issuer or the Guarantor, as the case may be.
“Officers’ Certificate” means a certificate signed in the name of the Issuer or the Guarantor, as the case may be, by two Officers of the Issuer or the Guarantor, as the case may be, at least one of whom shall be, in the case of the Guarantor, the principal financial officer of the Guarantor, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel to the Issuer or the Guarantor, reasonably acceptable to the Trustee, complying with the requirements of Section 12.03 and Section 12.04, as they relate to the giving of an Opinion of Counsel.
“Par Call Date” means March 3, 2028.
“Paying Agent” has the meaning specified in the preamble hereto.
“Permitted Holders” means (i) ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Futura Multimercado Fundo de Investimento, Kairós Fundo de Investimento em Ações – Investimento no Exterior, Guilherme Peirão ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ Heli Dalla ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, Sirius III Multimercado Fundo de Investimento Crédito Privado Investimento no Exterior, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Passos, Passos Participações S.A., Fundo de Investimento de Ações Veredas – Investimento no Exterior and/or any immediate family members and any Person, directly or indirectly, controlled by any of them; and (ii) any Person, directly or indirectly, controlled by a Permitted Holder.
“Permitted Liens” means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate proceedings and as to which the Issuer, the Guarantor or any of their Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law or pursuant to customary reservations or retentions of title incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(4) any judgment Lien not giving rise to an Event of Default;
(5) easements, rights-of-way, defects, zoning restrictions and other similar charges or encumbrances in respect of real Property not interfering in any material respect with the ordinary course of the business of the Guarantor or any of its Subsidiaries;
(6) any interest or title of a lessor under any Capitalized Lease Obligation; provided that such Liens do not extend to any Property or assets which is not leased Property subject to such Capitalized Lease Obligation;
(7) Liens securing Purchase Money Indebtedness; provided, however, that (a) the Indebtedness shall not exceed (but may be less than) the cost (i.e., purchase price) of the Property or assets acquired, together, in the case of real Property, with the cost of the construction thereof and improvements thereto, and shall not be secured by a Lien on any Property or assets of the Guarantor or any Subsidiary of the Guarantor other than such Property or assets so acquired or constructed and improvements thereto and (b) the Lien securing such Indebtedness shall be created within 180 days of such acquisition or construction or, in the case of a Refinancing of any Purchase Money Indebtedness, within 180 days of such Refinancing; and provided, further, that, to the extent that the property or asset acquired is Share Capital, the Lien also may encumber other property or assets of the Person so acquired;
(8) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(9) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other Property relating to such letters of credit and products and proceeds thereof;
(10) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the Guarantor or any of its Subsidiaries, including rights of offset and set-off;
(11) Liens securing Interest Swap Obligations which Interest Swap Obligations relate to Indebtedness that is otherwise permitted under this Indenture;
(12) Liens securing Indebtedness under Currency Agreements and Commodity Agreements that are permitted under this Indenture;
(13) Liens securing Acquired Indebtedness; provided that:
(a) such Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Guarantor or any of its Subsidiaries and were not granted in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by the Guarantor or any of its Subsidiaries; and
(b) such Liens do not extend to or cover any Property or assets of the Guarantor or of any of its Subsidiaries other than the Property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Guarantor or any of its Subsidiaries and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by the Guarantor or any of its Subsidiaries;
(14) Liens existing as of the Issue Date, and any extension, renewal or replacement thereof; provided, however, that the total amount of Indebtedness so secured, if applicable, is not increased;
(15) Liens securing the Notes and all other monetary obligations under this Indenture and the Guarantee;
(16) Liens securing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under Section 4.08; provided, however, that such Liens: (i) are no less favorable to the Holders of the Notes and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (ii) do not extend to or cover any Property or assets of the Guarantor or any of its Subsidiaries not securing the Indebtedness so Refinanced;
(17) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(18) any rights of set-off of any person with respect to any deposit account of the Guarantor or any Subsidiary arising in the ordinary course of business and not constituting a financing transaction;
(19) any Liens granted by the Guarantor or any Subsidiary to secure borrowings from, directly or indirectly, (a) Banco Nacional de Desenvolvimento Econômico e Social — BNDES or any other Brazilian governmental development bank or credit agency, or (b) any international or multilateral development bank, government-sponsored agency, export-import bank or official export-import credit insurer;
(20) any Liens on inventory or receivables of the Guarantor or any Subsidiary securing the obligations of such Person under any lines of credit or working capital facility, receivables facility, securitization, factoring, discounting or similar financing transaction, or in connection with any structured export or import financing or other trade transaction; provided that the aggregate amount of inventory or receivables, as the case may be, securing Indebtedness shall not exceed 80.0% of the Guarantor’s aggregate inventory or outstanding receivables, as the case may be, from time to time;
(21) Liens on carbon credits or certificates of emission reductions or Liens securing clean development mechanisms projects; and
(22) Liens incurred by the Guarantor or any of its Subsidiaries with respect to obligations that do not exceed, at the time of incurrence, 15.0% of the Consolidated Total Assets of the Guarantor at any one time outstanding.
“Person” means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof, or any other legal entity.
“Post-Consumer Recycled Packaging Usage” means the proportion of absolute post-consumer recycled plastic used in finished product plastic packaging in relation to total absolute amount of plastic packaging materials, across the product portfolio of the Issuer.
“Post-Consumer Recycled Packaging Usage Target” means Post-Consumer Recycled Packaging Usage (measured as a percentage (%)) target set forth in the Sustainability-Linked Bond Framework, which results in a Post-Consumer Recycled Packaging Usage (%) of at least equal to 25% for the year ended December 31, 2026; provided that the Issuer may from time to time in its sole and absolute discretion revise the Post-Consumer Recycled Packaging Usage Target, without the consent of the holders, to reflect a similar or more ambitious level of targets.
“Preferred Stock” means, with respect to any Person, any Share Capital of such Person that has preferential rights to any other Share Capital of such Person with respect to dividends or redemptions or upon liquidation.
“Private Placement Legend” means the legend set forth in Exhibit C.
“Property” means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including Share Capital in, and other securities of, any other Person. For purposes of any calculation required pursuant to this Indenture, the value of any property shall be its Fair Market Value.
“Purchase Money Indebtedness” means Indebtedness of the Guarantor and its Subsidiaries incurred for the purpose of financing all or any part of the purchase price, or the cost of installation, construction or improvement, of Property or equipment; provided that the aggregate principal amount of such Indebtedness does not exceed the lesser of the Fair Market Value of such Property or such purchase price or cost.
“QIB” means a “qualified institutional buyer” (as defined in Rule 144A).
“Rating Agency” means each of (1) Standard & Poor’s, (2) ▇▇▇▇▇’▇ and (3) Fitch, or their respective successors, or if S&P, Fitch or ▇▇▇▇▇’▇ are not making ratings of the Notes publicly available, an internationally recognized U.S. rating agency or agencies, as the case may be, selected by the Issuer, which will be substituted for S&P, Fitch or ▇▇▇▇▇’▇, as the case may be.
“Rating Decline” means that at any time within 90 days (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either Rating Agency) after the date of public notice of a Change of Control, (i) in the event the Notes are assigned an Investment Grade rating by at least two of the Rating Agencies prior to such public notice, the rating of the Notes by at least two of the Rating Agencies shall be below an Investment Grade rating; or (ii) in the event the Notes are rated below an Investment Grade rating by at least two of the Rating Agencies prior to such public notice, the rating of the Notes by at least two of the Rating Agencies shall be decreased by one or more categories; provided that any such Rating Decline is in whole or in part in connection with a Change of Control.
“Record Date” means any of the Record Dates specified in the Notes, whether or not a Business Day.
“Redemption Date” means, when used with respect to any Note to be redeemed, the date fixed for redemption pursuant to this Indenture and the Notes.
“Redemption Price” means, when used with respect to any Note to be redeemed, the price fixed for redemption pursuant to this Indenture and the Notes.
“Reference Treasury Dealer” means BofA Securities, Inc. and HSBC Securities (USA) Inc., or their respective affiliates which are primary United States government securities dealers, and two other leading primary United States government securities dealers in New York City reasonably designated by the Issuer; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “Primary Treasury Dealer”), the Issuer will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m. New York time on the third Business Day preceding such Redemption Date.
“Refinance” means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.
“Registrar” has the meaning set forth in the preamble hereto.
“Register” is defined in Section 2.03.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto, bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, that will be initially issued in a principal amount equal to the principal amount of the Notes initially sold in reliance on Regulation S in accordance with Section 2.01 hereof.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Period” means the period of one year (in the case of Notes initially sold in reliance on Rule 144A) or 40 days (in the case of Notes initially sold in reliance on Regulation S) after the later of (1) the Issue Date, and (2) the last date on which the Issuer or any of its Affiliates was the owner of such Notes or any predecessor of such Notes.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be initially issued in a principal amount equal to the principal amount of the Notes initially sold in reliance on Rule 144A in accordance with Section 2.01 hereof.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“SBTI-approved Target” means the sustainability performance target percentage amount, which will be published in the Sustainability-Linked Bond Report for the year ended December 31, 2022, to reduce Greenhouse Gas Emissions Intensity as measured against the Greenhouse Gas Emissions Baseline calculated for the year ended December 31, 2026 that is determined by the Issuer, at its sole discretion, to be aligned with Natura &Co’s science-based greenhouse gas emissions targets that are approved by Science Based Targets Initiative and published on the website of Science Based Targets Initiative at ▇▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Share Capital” means:
(1) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person;
(2) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person; and
(3) any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above.
“Significant Subsidiary” of any Person means any Subsidiary, including its subsidiaries, that would be a “significant subsidiary” of such Person within the meaning of Rule 1-02 under Regulation S-X promulgated pursuant to the Securities Act.
“Standard & Poor’s” or “S&P” means Standard & Poor’s Rating Service or any successor thereto.
“Stated Maturity Date” means May 3, 2028.
“Subsidiary” means, with respect to any Person:
(1) any corporation of which the outstanding Share Capital having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person; or
(2) any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.
“Substituted Issuer” has the meaning set forth in Section 10.01.
“Surviving Entity” has the meaning set forth in Section 5.01.
“Sustainability Performance Targets” means: (1) the Greenhouse Gas Emissions Intensity Target and (2) the Post-Consumer Recycled Packaging Usage Target; provided that, for the purposes of calculating the Greenhouse Gas Emissions Intensity Target the Issuer may exclude the tCO2e in the numerator and tonnes of products billed in the denominator attributable to any business acquired or divested in a transaction or series of related acquisitions or divestitures completed since the Issue Date, directly or indirectly, by the Issuer, (y) for the purposes of calculating the Post-Consumer Intensity Target the Issuer may exclude from the numerator and the denominator the Post-Consumer Recycled Packaging Usage attributable to any business acquired or divested in a transaction or series of related acquisitions or divestitures completed since the Issue Date, directly or indirectly, by the Issuer.
“Sustainability-Linked Bond Framework” means the Sustainability-Linked Bond Framework adopted by the Issuer in April 2021.
“Sustainability-Linked Bond Report” means the report the Issuer has committed to publish on its website each calendar year-end at least until the Issuer has reported on the performance of the Sustainability Performance Targets on the applicable date.
“Taxes” has the meaning set forth in Section 2.06.
“Taxing Jurisdiction” has the meaning set forth in Section 2.06.
“tCO2e” means the sum of Scope 1 emissions (from direct operations), Scope 2 emissions (from acquisition of energy) and Scope 3 emissions (from all other upstream and downstream activities, excluding use phase), during a given period, measured in metric tonnes of carbon dioxide equivalent, according to GHG Protocol standards and the principles of Brazil’s ABNT NBR ISO 14064-1 standard.
“tonnes of product billed” means the sum in tonnes of products sold by the Issuer on a consolidated basis, excluding packaging.
“Transfer Agent” has the meaning specified in the preamble hereto.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
“Trustee” means the party named as such in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture, or any other officer to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“United States” or “U.S.” means the United States of America, its fifty states and the District of Columbia.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
“U.S. dollar” or “U.S.$” means the U.S. dollar, being the lawful currency of the United States of America.
“U.S. Dollar Equivalent” means, with respect to any monetary amount in a currency other than U.S. dollars, at any time of determination thereof, the amount of U.S. dollars obtained by translating such other currency involved in such computation into U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable other currency as published in U.S. dollars on the date that is two Business Days prior to the date of such determination. Notwithstanding any other provision of this Indenture, no specified amount of U.S. dollars shall be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies.
“Voting Stock” means Share Capital in a Person having power to vote for the election of directors or similar officials of such Person or otherwise voting with respect to actions of such Person.
. Whenever this Indenture refers to a provision of the Trust Indenture Act, such provision is incorporated by reference in, and made a part of, this Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings:
“indenture securities” means the Notes.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the Notes means the Issuer or any other obligor on the Notes.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by a Trust Indenture Act reference to another statute or defined by an SEC rule and not otherwise defined herein have the meanings assigned to them therein.
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or” is not exclusive;
(4) words in the singular include the plural, and words in the plural include the singular;
(5) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(6) when the words “includes” or “including” are used herein, they shall be deemed to be followed by the words “without limitation”;
(7) all references to Sections or Articles refer to Sections or Articles of this Indenture unless otherwise indicated;
(8) unless otherwise specified, in the computation of periods of time from a specified date to a later specified date, the word “from” shall mean “from and including,” the words “to” and “until” each shall mean “to but excluding,” and the word “through” shall mean “to and including”;
(9) the words “may” and “might” and similar terms used with respect to the taking of an action by any Person shall reflect that such action is optional and not required to be taken by such Person;
(10) unless otherwise expressly provided herein: (i) references to agreements (including this Indenture) and other documents shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent that such amendments and other modifications are not prohibited by this Indenture, the Notes or any other Indenture Document and (ii) references to any applicable law are to be construed as including all statutory and regulatory provisions or rules consolidating, amending, replacing, supplementing, interpreting or implementing such applicable law; and
(11) unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Indenture shall have such meanings when used in each other Indenture Document.
The terms and provisions contained in the forms of the Notes annexed hereto as Exhibit A, shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Issuer, the Guarantor and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of a Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially in the form of Exhibit A attached hereto and shall bear the Global Note Legend thereon and the “Schedule of Increases and Decreases of Interests in the Global Note” attached thereto. Global Notes offered and sold in reliance on Rule 144A or Regulation S shall be issued substantially in the form of Exhibit A attached hereto and deposited with the Trustee as custodian for DTC, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided and shall bear the Global Note Legend and the Private Placement Legend. Notes issued in definitive form will be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the “Schedule of Increases and Decreases of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.07 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Restricted Global Note and the Regulation S Global Note that are held through Euroclear or Clearstream as indirect participants in DTC.
The aggregate principal amount of any Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee as custodian for DTC or its nominee, as hereinafter provided.
The Definitive Notes shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Notes may be listed, all as determined by the Officer executing such Notes, as evidenced by their execution of such Notes.
Two Officers (who shall have been duly authorized by all requisite corporate actions) shall sign the Notes for the Issuer by manual or electronic signature.
If an Officer whose signature is on a Note was an Officer at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized officer of the Trustee manually or electronically signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) the Notes for original issue on the Issue Date in the aggregate principal amount not to exceed U.S.$1,000,000,000 and (ii) one or more series of Additional Notes in an unlimited amount in each case upon written orders of the Issuer in the form of an Officers’ Certificate. In addition, each Officers’ Certificate shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated, and whether the Notes are to be initial Notes or Additional Notes. All Notes issued under this Indenture shall vote and consent together on all matters as one class, and no series of Notes shall have the right to vote or consent as a separate class on any matter. The Trustee shall have the right to decline to authenticate and deliver any Additional Notes under this Section 2.02 if the Trustee reasonably determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by a trust committee of Trust Officers shall determine that such action would expose the Trustee to personal liability to existing Holders.
The Trustee may appoint an authenticating agent (the “Authenticating Agent”) reasonably acceptable to the Issuer to authenticate Notes. Unless otherwise provided in the appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer.
The Notes shall be issuable in fully registered form only, without coupons, in minimum denominations of U.S.$200,000 in principal amount and integral multiples of U.S.$1,000 in excess thereof. If such form or terms have been so established, the Trustee shall not be required to authenticate such Notes if the issue of such Notes pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Notes and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
The Issuer may from time to time, without notice to or consent of the Holders of the Notes, create and issue an unlimited principal amount of Additional Notes of the same series as the Notes originally issued on the Issue Date, provided that if the Additional Notes are not fungible with such Notes for United States federal income tax purposes, the Additional Notes will have a different CUSIP number or numbers and will be represented by a different Global Note or Notes.
The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture, which agreement shall incorporate the provisions of the Trust Indenture Act and implement the provisions of this Indenture that relate to such Agent. The Issuer shall notify the Trustee in writing, in advance, of the name and address of any such Agent and otherwise be reasonably satisfactory to the Trustee. If the Issuer fails to maintain a Transfer Agent or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such.
The Issuer hereby initially appoints The Bank of New York Mellon at its Corporate Trust Office, as the Trustee hereunder, and The Bank of New York Mellon hereby accepts such appointment. The Trustee will have the powers and authority granted to and conferred upon it in the Notes and hereby and such further powers and authority to act on behalf of the Issuer as may be mutually agreed upon by the Issuer and the Trustee, and the Trustee will keep a copy of this Indenture available for inspection during normal business hours at its Corporate Trust Office.
The Issuer initially appoints the Trustee to act as the Registrar, Transfer Agent and Paying Agent. Any Agent may resign upon thirty (30) days’ written notice to the Issuer.
The Issuer initially appoints DTC to act as Depositary with respect to the Global Notes.
If the Issuer or the Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes or the Guarantee, as the case may be, the Issuer or the Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder or beneficial owner (including Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or beneficial owner would have received if such Taxes imposed or levied by or on behalf of a Taxing Jurisdiction had not been required to be withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:
(1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of or the execution, delivery, registration or enforcement of such Note);
(2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar Taxes;
(3) any Taxes payable otherwise than by deduction or withholding from payments of principal of, premium, if any, or interest on, such Note;
(4) any Taxes that would not have been so imposed but for the presentation of such Notes (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the Holder or beneficial owner thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30-day period;
(5) any Taxes imposed on a note presented for payment by or on behalf of a Holder who would have been able to avoid that withholding or deduction by presenting the relevant note to another paying agent;
(6) any Taxes that would not have been so imposed if the Holder or beneficial owner of the Note had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (a) such declaration of non-residence or other claim or filing for exemption is required by the applicable law, regulations or administrative practice of the Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or part of such Taxes and (b) at least thirty (30) days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law, regulations or administrative practice of the Taxing Jurisdiction, the relevant Holder or beneficial owner at that time has been notified by the Issuer or the Guarantor or any other Person through whom payment may be made, that a declaration of non-residence or other claim or filing for exemption is required to be made);
(7) any payment to a Holder of a Note that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(8) any Taxes imposed pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (collectively, “FATCA”); or
(9) in the case of any combination of the items listed above.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of any combination of clauses (1) to (9), inclusive, above.
The foregoing provisions will survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Issuer or the Guarantor, as the case may be. The Issuer or the Guarantor, as applicable, will (i) make such withholding or deduction of applicable Taxes and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or the Guarantor, as applicable, will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and will furnish such certified copies to the Trustee within thirty (30) days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available, furnish such other documentation that provides reasonable evidence of such payment.
At least thirty (30) days prior to each date on which any payment under or with respect to the Notes or the Guarantee, as the case may be, is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or the Guarantor will deliver to the Trustee an Officers’ Certificate, among other things, stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders of Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
The Issuer or the Guarantor, as the case may be, will pay any present or future stamp, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Taxes which arise in any jurisdiction from the initial execution, delivery or registration of the Notes, this Indenture or any other document or instrument in relation thereto or the enforcement of the Notes or the Guarantee following the occurrence and during the continuance of any Default, excluding all such Taxes, charges or similar levies imposed by any jurisdiction other than a Taxing Jurisdiction unless resulting from, or required to be paid in connection with, the enforcement of this Indenture, the Notes, the Guarantee or any other document or instrument in relation thereto following the occurrence and during the continuance of any Default with respect to the Notes or the Guarantee, and each of the Issuer and the Guarantor agrees to indemnify the Holders and beneficial owners of the Notes and the Trustee for any such Taxes, charges or similar levies paid by such Holders or beneficial owners or the Trustee.
Whenever in this Indenture or the Notes there is any reference to the payment of principal, premium, if any, or interest, or any other amount payable under or with respect to the Notes by the Issuer or the Guarantee by the Guarantor, such reference shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
No Agent shall be required to register the transfer or exchange of any Note (i) during a period beginning at the opening of business fifteen (15) days before the giving of a notice of redemption of Notes and ending at the close of business on the day of such notice and (ii) selected for redemption in whole or in part pursuant to Article Three, except the unredeemed portion of any Note being redeemed in part.
Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may be effected only through DTC, in accordance with this Indenture and the Applicable Procedures.
If on a Redemption Date, the Stated Maturity Date or any other Maturity Date, the Paying Agent holds an amount in U.S. dollars sufficient to pay all of the principal and interest due on the Notes payable on that date and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes cease to be outstanding and interest on them ceases to accrue.
Members of, or participants in, DTC (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC, or the Trustee as its custodian, or under any Global Note, and DTC may be treated by the Issuer, the Trustee, each Agent and any agent of the Issuer, the Trustee or such Agent as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee, each Agent or any agent of the Issuer, the Trustee or such Agent from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
(b) Transfers of the Global Notes shall be limited to transfers in whole, but not in part, to DTC, its successors or their respective nominees. Interests of beneficial owners in the Global Notes may be transferred or exchanged in accordance with the Applicable Procedures of DTC and the provisions of Section 2.16. In addition, Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the Global Notes if (i) DTC notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes and a successor Depositary is not appointed by the Issuer within ninety (90) days of such notice or (ii) the Notes have become immediately due and payable as a result of the occurrence and continuation of an Event of Default and the Transfer Agent has received a request from DTC to issue Definitive Notes.
(c) Any beneficial interest in one of the Global Notes that is transferred to a person who takes delivery in the form of an interest in another Global Note shall, upon transfer, cease to be an interest in such Global Note and become a beneficial interest in such other Global Note and, accordingly, shall thereafter be subject to all transfer restrictions, if any, and other procedures applicable to a beneficial interest in such other Global Notes for as long as it remains such an interest.
(d) In connection with any transfer or exchange of any beneficial interest in the Global Note to beneficial owners pursuant to clause (b) of this Section 2.15, the Transfer Agent shall (if one or more Definitive Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Notes of like tenor and aggregate principal amount.
(e) In connection with the transfer of an entire Global Note to beneficial owners pursuant to clause (b) of this Section 2.15, the Global Notes shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by DTC in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount of Definitive Notes of authorized denominations.
(f) Any Restricted Definitive Note delivered in exchange for an interest in the Global Note pursuant to clause (b) of this Section 2.15 shall, except as otherwise provided by Section 2.16, bear the Private Placement Legend.
(g) The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(a) If the owner of a beneficial interest in a Rule 144A Global Note wishes to transfer such interest (or any portion thereof) to a Non-U.S. Person pursuant to Regulation S prior to the expiration of the Restricted Period therefor, subject to the Applicable Procedures, upon receipt by the Registrar of:
(i) instructions from the Holder of the Rule 144A Global Note directing the Registrar to credit or cause to be credited a beneficial interest in the Regulation S Global Note equal to the principal amount of the beneficial interest in the Rule 144A Global Note to be transferred; and
(ii) a certificate in the form of Exhibit D duly executed by the transferor,
the Registrar shall increase the Regulation S Global Note and decrease the Rule 144A Global Note by such amount in accordance with the foregoing.
(b) If the owner of a beneficial interest in a Regulation S Global Note wishes to transfer such interest (or any portion thereof) to a QIB pursuant to Rule 144A prior to the expiration of the Restricted Period therefor, subject to the Applicable Procedures, upon receipt by the Registrar of:
(i) instructions from the Holder of the Regulations S Global Note directing the Registrar to credit or cause to be credited a beneficial interest in the Rule 144A Global Note equal to the principal amount of the beneficial interest in the Regulation S Global Note to be transferred; and
(ii) a certificate in the form of Exhibit E duly executed by the transferor,
the Registrar shall increase the Rule 144A Global Note and decrease the Regulation S Global Note by such amount in accordance with the foregoing.
(c) The Private Placement Legend may be removed and the related restrictions on transfer shall cease and terminate with respect to any particular Restricted Global Note or Restricted Definitive Note upon the written instructions of the Issuer, in its sole discretion, upon receipt by the Issuer of evidence satisfactory to it that, as of the date of determination, such Restricted Global Note or Restricted Definitive Note has been transferred by the Holder (a) under a registration statement that has been declared effective under the Securities Act or (b) under any other available exemption from the registration requirements of the Securities Act. In the case of clause (b), the Issuer may require the delivery of an Opinion of Counsel, a certification and/or other information satisfactory to it.
At the request of the Holder and upon the surrender of such Restricted Global Note or Restricted Definitive Note to the Trustee or Registrar for exchange in accordance with the provisions of this Section 2.16, any Restricted Global Note or Restricted Definitive Note as to which the Private Placement Legend has been removed and the related restrictions on transfer restrictions shall have terminated in accordance with the preceding paragraph shall be exchanged for a new Unrestricted Global Note or Unrestricted Definitive Note, as applicable, of like aggregate principal amount, but without the Private Placement Legend. Any Restricted Global Note or Restricted Definitive Note as to which the Private Placement Legend shall have been removed pursuant to this paragraph (and any Note issued upon registration of transfer of, exchange for or in lieu of such Note) shall thereupon cease to be a “Restricted Global Note” or “Restricted Definitive Note” for all purposes of this Indenture. Upon the registration of transfer, exchange or replacement of Notes bearing the Private Placement Legend, the Transfer Agent shall deliver only Notes that bear the Private Placement Legend unless (i) the circumstance contemplated by this Section 2.16 exists or (ii) there is delivered to the Transfer Agent and the Issuer an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. The Transfer Agent shall not register a transfer of any Note unless such transfer complies with the restrictions on transfer of such Note set forth in this Indenture. In connection with any transfer of Notes, each Holder agrees by its acceptance of the Notes to furnish the Transfer Agent or the Issuer such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Transfer Agent shall not be required to determine (but may rely on a determination made by the Issuer with respect to) the sufficiency of any such certifications, legal opinions or other information and whether or not the relevant Restricted Period has terminated.
(d) The Restricted Period may be extended, in the sole discretion of the Issuer, upon written notice to the Trustee in the event of one or more issuances of Additional Notes in accordance with this Indenture.
(e) By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it shall transfer such Note only as provided in this Indenture.
The Transfer Agent shall retain copies of all letters, notices and other written communications received pursuant to Section 2.15 or this Section 2.16 in accordance with its customary retention policies. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Transfer Agent.
Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary. None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, an Agent Member of, or a participant in, the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any Agent Member or participant thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any Agent Member, participant, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the Applicable Procedures of the Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members, participants and any beneficial owners.
Section 2.17. Transfers of Global Notes and Definitive Notes. A transfer of a Global Note or a Definitive Note (including the right to receive principal and interest payable thereon) may be made only by the Registrar’s entering the transfer in the Register. Prior to such entry, the Issuer, the Trustee and each Agent shall treat the person in whose name such Note is registered as the owner of the Note for all purposes (subject to the right of the Holders as of a Record Date to receive payments of interest on the related Interest Payment Date).
(a) Tax Redemption. The Issuer or Guarantor may, at its option, redeem the Notes, in whole but not in part, upon notice of not less than ten (10) nor more than sixty (60) days, at a Redemption Price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (subject to the right of the Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date) and Additional Amounts, if any, to the Redemption Date, if as a result of:
(1) any amendment to, or change in, the laws or treaties (or any regulations or rulings promulgated thereunder) of a Taxing Jurisdiction; or
(2) any amendment to or change in an official interpretation or application regarding such laws, treaties, regulations or rulings (including a determination by a court of competent jurisdiction),
which amendment or change becomes effective on or after the Issue Date, (i) the Issuer or the Guarantor, as the case may be, has become or would become obligated to pay, on the next date on which any amount would be payable with respect to the Notes (and, in respect of the Obligations of the Guarantor, the Guarantor is making or will be making payments with respect to the Notes in lieu of the Issuer), any Additional Amounts in excess of those attributable to a Brazilian withholding tax rate of 15% (or in the case of any successor Person to the Issuer or the Guarantor who is a Non-Resident Holder of the Notes, the rate of withholding applicable to payments on the Notes in the jurisdiction in which such successor is resident on the date such successor replaces the Issuer or the Guarantor, as applicable), determined without regard to any interest, fees, penalties or other additions to tax and (ii) the Issuer or the Guarantor, as the case may be, determines in good faith that such obligation cannot be avoided by the use of reasonable measures available to the Issuer or the Guarantor (including, without limitation, by changing the jurisdiction from which or through which payment is made, to the extent such change would be a reasonable measure in light of the circumstances); provided that:
(i) no such notice of redemption may be given earlier than sixty (60) days prior to the earliest date on which the Issuer or the Guarantor, as the case may be, would be obligated to pay such Additional Amounts were a payment in respect of the Notes then due and payable, and
(ii) at the time such notice is given, such obligation to pay such Additional Amounts remains in effect.
No such redemption shall be effective unless and until the Trustee receives the amount payable upon redemption as set forth above.
Immediately prior to the delivery of any notice of redemption to the Holders pursuant to this Section 3.02(a), the Issuer or the Guarantor will deliver to the Trustee:
(1) an Officers’ Certificate (A) stating that the Issuer is entitled to effect such redemption, (B) setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred, and (C) stating that all governmental approvals, if any, necessary to effect such redemption have been obtained and are in full force and effect, and
(2) an Opinion of Counsel in the relevant Taxing Jurisdiction, to the effect that (A) the Issuer or the Guarantor, as the case may be, has or will become obligated to pay such Additional Amounts as a result of such amendment or change and (B) all governmental approvals, if any, necessary to effect such redemption have been obtained and are in full force and effect.
Any notice of redemption pursuant to this provision will be irrevocable.
The foregoing provisions will apply mutatis mutandis to the laws and official interpretations or applications of any jurisdiction in which any successor permitted under Section 5.01 or the Substituted Issuer (as described under Section 10.01) is organized, but only with respect to events arising after the date of succession or substitution.
(b) Optional Redemption with Make-Whole Premium. The Issuer or the Guarantor may, at its option, redeem the Notes, in whole or in part, at any time prior to the Par Call Date, upon not more than 60 and not fewer than ten (10) days’ notice to the Holders of the Notes. The Issuer or the Guarantor may redeem the Notes either as a whole or in part at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Notes being redeemed and (ii) the sum of the present values of each remaining scheduled payment of principal and interest thereon (exclusive of any such interest accrued to the date of redemption) as if the Notes were redeemed on the Par Call Date, discounted (for purposes of determining present value) to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points, plus accrued and unpaid interest and Additional Amounts, if any, thereon through, but excluding, the redemption date; provided that Notes in an aggregate principal amount equal to at least U.S.$100 million remain outstanding immediately after the occurrence of any partial redemption of Notes.
The value of the accrued and unpaid interest will be calculated using the Subsequent Interest Rate, unless the Sustainability Performance Target has been satisfied and the issuer has provided the Satisfaction Notification to the trustee, in which case the Initial Rate of Interest will be used for making the calculation.
(c) Optional Redemption at Par. The Issuer or the Guarantor may, at its option, redeem the Notes, in whole or in part, at any time on or after the Par Call Date. The Issuer or the Guarantor may redeem the Notes either as a whole or in part at a Redemption Price equal to100.000% of the principal amount of the Notes being redeemed plus accrued and unpaid interest and Additional Amounts, if any, on the principal amount of the Notes being redeemed to, but excluding, such redemption date; provided that Notes in an aggregate principal amount equal to at least U.S.$100 million remain outstanding immediately after the occurrence of any partial redemption of Notes.
(d) Each Officers’ Certificate provided for in this Section 3.02 shall be accompanied by an Opinion of Counsel stating that such redemption shall comply with the conditions contained herein and in the Notes.
(1) in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed; or
(2) if such Notes are not then listed on a securities exchange, the Notes to be redeemed shall be selected by lot, or by the Trustee on a pro rata basis or on as nearly a pro rata basis by lot or by such method as the Trustee deems fair and appropriate in the case of Definitive Notes; provided that no partial redemption will reduce the principal amount of a Note not redeemed to less than U.S.$200,000;
provided however, in each case, that the selection of Notes held as Global Notes shall be in accordance with the Applicable Procedures of the Depositary.
The Notes shall be selected from the Notes outstanding and not previously called for redemption and the Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount at maturity thereof, to be redeemed. Notes in denominations of U.S.$200,000 in principal amount at maturity may be redeemed only in whole. The Trustee may select for redemption portions (equal to U.S.$1,000 in principal amount at maturity or any integral multiple thereof) of the principal of Notes that have denominations larger than U.S.$200,000. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.
If Notes are redeemed in part pursuant to Paragraph 5(B) and 5(C) of the Notes, the remaining outstanding principal amount (including any Additional Notes, but excluding any Notes held by the Company or any of its Affiliates) must be at least equal to U.S.$100.0 million.
(b) Any redemption or Notice of any redemption of the Notes (including in connection with any transaction (or series of related transactions) or an event that constitutes a Change of Control) may, at the Issuer or the Guarantor’s discretion, as applicable, be given prior to the completion or the occurrence thereof and any such redemption or notice may, at the Issuer or the Guarantor’s discretion, as applicable, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the transaction or event, as the case may be.
A new Note in a principal amount equal to the unredeemed portion thereof, if any, will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a global note will be made, as appropriate).
In addition to the requirements set forth in Sections 3.03 through 3.05 with respect to a notice of redemption, the notice shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(e) that, unless the Issuer or the Guarantor Defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
(f) the Section of the Indenture pursuant to which the Notes called for redemption are being redeemed;
(g) any conditions for redemption; and
(h) the CUSIP or ISIN number, if any.
At the Company’s or the Guarantor’s election and at the written request of either, the Trustee shall give the notice of redemption in the Issuer’s or the Guarantor’s name and at the Issuer’s or the Guarantor’s expense; provided that the Issuer or the Guarantor shall deliver to the Trustee, at least five (5) Business Days prior to the date when the notice of redemption is sent to the Holders (unless a shorter notice period shall be acceptable to the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and providing the form of such notice setting forth the information to be stated in such notice.
If any Note to be redeemed shall not be so paid upon surrender thereof in accordance with the Company’s or the Guarantor’s instructions for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes. Upon surrender to the Paying Agent, such Notes shall be paid at the applicable Redemption Price, plus accrued interest to the Redemption Date; provided, however, that installments of interest payable on or prior to the Redemption Date shall be payable to the Holders of such Notes registered as such at the close of business on the relevant Record Date according to their terms.
(b) The offer must include or state the following as to the terms of the Offer to Purchase:
(i) the provision of this Indenture pursuant to which the Offer to Purchase is being made;
(ii) the aggregate principal amount of the outstanding Notes offered to be purchased by the Guarantor pursuant to the Offer to Purchase (including, if less than 100%, the manner by which such amount has been determined pursuant to this Indenture) (the “purchase amount”);
(iii) the purchase price, including the portion thereof representing accrued interest;
(iv) an expiration date (the “expiration date”) not less than ten (10) days or more than sixty (60) days after the date of the offer, and a settlement date for purchase (the “purchase date”) not more than five Business Days after the expiration date;
(v) information concerning the business of the Guarantor and its Restricted Subsidiaries which the Guarantor in good faith believes will enable the Holders to make an informed decision with respect to the Offer to Purchase;
(vi) a Holder may tender all or any portion of its Notes, subject to the requirement that any portion of a Note tendered must be in a multiple of $1,000 principal amount and if such Holder tenders in part that portion not tendered is equal to an authorized denomination;
(vii) the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase;
(viii) each Holder electing to tender a Note pursuant to the offer will be required to surrender such Note at the place or places specified in the offer prior to the close of business on the expiration date (such Note being, if the Guarantor or the Trustee so requires, duly endorsed or accompanied by a duly executed written instrument of transfer);
(ix) interest on any Note not tendered, or tendered but not purchased by the Guarantor pursuant to the Offer to Purchase, will continue to accrue;
(x) on the purchase date the purchase price will become due and payable on each Note accepted for purchase pursuant to the Offer to Purchase, and interest on Notes purchased will cease to accrue on and after the purchase date, unless payment of the purchase price is not made (and the purchase does not take place) on that date;
(xi) Holders are entitled to withdraw Notes tendered by giving notice, which must be received by the Guarantor or the Trustee not later than the close of business on the expiration date, setting forth the name of the Holder, the principal amount of the tendered Notes, the certificate number of the tendered Notes and a statement that the Holder is withdrawing all or a portion of the tender;
(xii) if Notes in an aggregate principal amount less than or equal to the purchase amount are duly tendered and not withdrawn pursuant to the Offer to Purchase, the Guarantor will purchase all such Notes, and (y) if the Offer to Purchase is for less than all of the outstanding Notes and Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Guarantor will purchase Notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, with adjustments so that if all of a Holder’s Notes are not purchased by the Guarantor only Notes with minimum denominations of $200,000 and in multiples of $1,000 principal amount in excess thereof will remain unpurchased by the Guarantor from each Holder;
(xiii) if any Note is purchased in part, new Notes equal in principal amount to the unpurchased portion of the Note will be issued; and
(xiv) if any Note contains a CUSIP or ISIN number, no representation is being made as to the correctness of the CUSIP or ISIN number either as printed on the Notes or as contained in the offer and that the Holder should rely only on the other identification numbers printed on the Notes.
(c) Prior to the purchase date, the Guarantor will accept tendered Notes for purchase as required by the Offer to Purchase and deliver to the Trustee all Notes so accepted, together with an Officers’ Certificate specifying which Notes have been accepted for purchase. On the purchase date the purchase price will become due and payable on each Note accepted for purchase, and interest on Notes purchased will cease to accrue on and after the purchase date, unless payment of the purchase price is not made (and the purchase does not take place) on that date. The Trustee will promptly return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in principal amount to any unpurchased portion of any Notes accepted for purchase in part.
(d) The Guarantor will comply with Rule 14e-1 under the Exchange Act (to the extent applicable) and all other applicable laws in making any Offer to Purchase, and the above procedures will be deemed modified as necessary to permit such compliance. Further to the foregoing, to the extent that the provisions of any securities laws or regulations conflict with this Section 3.10, the Guarantor shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 3.10 by virtue thereof.
(e) In connection with any tender offer (including any Offer to Purchase in connection with a Change of Control made in accordance with the terms of the indenture) for Notes, in the event that the Holders of not less than 85% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw the Notes in such tender offer or a third party purchases all the Notes held by such holders, the Guarantor will have the right, on not less than 10 nor more than sixty (60) days’ prior notice, given not more than thirty (30) days following such purchase date, to redeem all of the Notes that remain outstanding following such purchase at a price equal to the price paid to each other holder in such tender offer plus, to the extent not included in the purchase price, accrued and unpaid interest and Additional Amounts, if any, on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
From and including November 3, 2027 (the “Interest Rate Step Up Date”), the interest rate payable on the Notes will be increased by 65 basis points to 4.775% per annum (the “Subsequent Rate of Interest”) unless the Issuer has notified (the “Satisfaction Notification”) the Trustee in accordance with Section 12.01 in writing at least thirty (30) days prior to the Interest Rate Step Up Date (the “Notification Date”) that in respect of the year ended December 31, 2026: (i) the Sustainability Performance Targets have been satisfied in respect of the year ended December 31, 2026 and (ii) the satisfaction of each of the Sustainability Performance Targets has been confirmed by the External Verifier in accordance with its customary procedures. If as of the Notification Date (x) the Issuer fails, or is unable, to provide the Satisfaction Notification, (y) the Sustainability Performance Targets have not been satisfied or (z) the External Verifier has not confirmed satisfaction of each of the Sustainability Performance Targets, the Subsequent Rate of Interest will apply for each interest period from and including the Interest Rate Step Up Date up to, and including, the Stated Maturity Date.
Notwithstanding anything to the contrary contained in this Indenture, the Issuer and any Paying Agent may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States from principal or interest payments hereunder without any liability therefor.
If a Default or an Event of Default occurs and is continuing, and a responsible Trust Officer of the Trustee has received written notice thereof pursuant to Section 7.02(h), the Trustee shall notify each Holder as provided herein under Section 12.01 of the Event of Default within five (5) days after receiving written notice thereof; provided that except in the case of an Event of Default in payment of principal of, or premium, if any, or interest on any Notes, the Trustee may withhold the notice to the Holders if a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of the Holders.
(1) within 120 days following the end of each fiscal year of the Guarantor after the Issue Date, English language versions of the audited annual financial statements (including the notes thereto) in accordance with GAAP and accompanied by an opinion of internationally recognized independent public accountants selected by the Guarantor;
(2) within sixty (60) days following the end of the first three fiscal quarters in each fiscal year of the Guarantor beginning with the quarter ending after the Issue Date, English language versions of unaudited quarterly financial statements (including the notes thereto);
(3) simultaneously with the delivery of the audited annual financial statements referred to in clause (1) above, an Officers’ Certificate from the Guarantor stating whether an Event of Default exists on the date of such certificate and, if an Event of Default exists, setting forth the details thereof and the action which the Guarantor is taking or proposes to take with respect thereto; and
(4) for so long as the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Guarantor will furnish to any Holder or to any prospective purchaser designated by such Holder, upon request of such Holder, any financial and other information (to the extent not otherwise provided as set forth above) described in Rule 144A(d)(4) under the Securities Act with respect to the Guarantor and its Subsidiaries to the extent required in order to permit such Holder to comply with Rule 144A with respect to any resale of its Notes unless, during that time, the Guarantor is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, or is exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act and no such information about the Guarantor is otherwise required pursuant to Rule 144A.
As an alternative to providing the Trustee and the Holders with the information described above, the Guarantor may post copies of such information on a website maintained by or on behalf of the Guarantor or provide substantially comparable public availability of such information. Delivery to the Trustee and the Holders of notice as provided under Section 12.01 of the availability of the information described above on a website maintained by or on behalf of the Guarantor shall constitute delivery of such information to the Holders for purposes of this Section 4.09. Delivery of the above reports (other than paragraph (4) above) to the Trustee is for informational purposes only, and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor’s compliance with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
(1) either the Guarantor shall be the surviving or continuing corporation or the Person (if other than the Guarantor) formed by such consolidation or into which the Guarantor is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Guarantor and of the Guarantor’s Subsidiaries, substantially as an entirety (the “Surviving Entity”):
(a) shall be a Person organized and validly existing under the laws of Brazil, the United States of America, any state thereof or the District of Columbia, or any other country that is a member country of the European Union or of the Organisation for Economic Co-operation and Development (OECD); and
(b) shall expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual performance of every covenant of the Notes and this Indenture on the part of the Guarantor to be performed or observed thereunder (including the payment of Additional Amounts, subject to the same exceptions as set forth under Section 2.06);
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b) above, no Event of Default shall have occurred or be continuing; and
(3) the Guarantor or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
Notwithstanding anything to the contrary in the foregoing, so long as no event or condition that, with the giving of notice, the lapse of time or failure to satisfy certain specified conditions, or any combination thereof, would constitute an Event of Default under this Indenture or the Notes or an Event of Default will have occurred and be continuing at the time of such proposed transaction or would result therefrom, any merger or consolidation of the Guarantor with an Affiliate organized solely for the purpose of reincorporating the Guarantor in another jurisdiction need only comply with Section 5.01(1).
The Issuer may not, and the Guarantor will not cause or permit the Issuer to (i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into the Issuer (other than a consolidation or merger of the Guarantor or any of its Subsidiaries with or into the Issuer), or (ii) directly or indirectly, transfer, sell, lease or otherwise dispose of all or substantially all of its assets (determined on a consolidated basis of the Issuer and its Subsidiaries) to any Person (other than the Guarantor or any of its Subsidiaries), unless, in the case of each of (i) and (ii):
(1) in the case of a transaction in which the Issuer does not survive, the successor entity shall expressly assume, by a supplemental indenture executed and delivered to the Trustee, all of the Issuer’s obligations under the Indenture;
(2) if, as a result of any such transaction, property or assets of the Issuer would become subject to a Lien prohibited under Section 4.08, the Issuer or the successor entity shall have secured the Notes as described under Section 4.08;
(3) immediately after giving effect to such transaction, no Event of Default will have occurred and be continuing; and
(4) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer, lease or acquisition (and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture) complies with this Section 5.01 and that all conditions precedent provided for in the indenture relating to such transaction have been complied with.
(1) any failure to pay the principal of or premium (including any related Additional Amounts), if any, on any Notes, when such principal becomes due and payable, at the Stated Maturity Date or any other Maturity Date, upon redemption or otherwise;
(2) any failure to pay interest and Additional Amounts, if any, on any Notes or any other amount (other than principal for the Notes) when the same becomes due and payable, and the default continues for a period of thirty (30) days;
(3) any failure to comply with Section 5.01;
(4) a default in the observance or performance of any other covenant or agreement contained in this Indenture (other than the payment of the principal of, or premium, if any, or interest and Additional Amounts, if any, on any Note) which default continues for a period of sixty (60) days after the Guarantor receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (with a copy to the Trustee if given by the Holders);
(5) any failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness of the Guarantor or any of its Subsidiaries, or the acceleration of the final stated maturity of any such Indebtedness if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at final maturity or which has been accelerated, aggregates U.S.$125.0 million or more at any time;
(6) one or more final and non-appealable judgments in an aggregate amount in excess of U.S.$125.0 million shall have been rendered against the Guarantor or any of its Subsidiaries (other than any judgment as to which a reputable and solvent third-party insurer has accepted full coverage) and such judgments remain undischarged, unpaid or unstayed for a period of 90 consecutive days after such judgment or judgments become final and non-appealable and amounts thereunder are due and payable;
(7) the Issuer, the Guarantor or any Significant Subsidiary shall (a) apply for or consent to the appointment of a receiver, trustee, liquidator or similar official for all or any substantial part of the Property of the Issuer, the Guarantor or such Significant Subsidiary, (b) make a general assignment for the benefit of the creditors of the Issuer, the Guarantor or such Significant Subsidiary, (c) file a voluntary petition in bankruptcy or a petition seeking judicial reorganization (pedido de recuperação judicial), seeking extrajudicial reorganization (pedido de recuperação extrajudicial), or seeking to take advantage of any applicable insolvency law, (d) file any answer admitting the allegations of bankruptcy or insolvency of a petition filed against the Issuer, the Guarantor or such Significant Subsidiary in any bankruptcy, reorganization or insolvency proceeding, or (e) take any corporate action for the purpose of effecting any of the foregoing under Brazilian Law No. 11,101/05;
(8) without its application, approval or consent, a proceeding shall be instituted in any court of competent jurisdiction, seeking in respect of the Issuer, the Guarantor or any Significant Subsidiary adjudication in bankruptcy (decretação de falência), dissolution, winding-up, liquidation, a composition, arrangement with creditors, readjustment of debt, the appointment of a trustee, receiver, administrator, liquidator or similar official for the Issuer, the Guarantor or such Significant Subsidiary or other like relief under any applicable bankruptcy or insolvency law; and either (a) such proceeding shall not be contested by the Issuer, the Guarantor or such Significant Subsidiary, or (b) such proceedings shall continue undismissed for any period of 120 consecutive days unless a judicial deposit is made for the claimed amounts; or
(9) any of the Notes, this Indenture or the Guarantee or any part thereof, shall cease to be in full force and effect or is declared to be null and void and unenforceable or inadmissible in evidence in the courts of Brazil, or is found to be invalid, or it becomes unlawful for the Issuer or the Guarantor, as the case may be, to perform any obligation thereunder, or the Issuer or the Guarantor, as the case may be, shall contest the enforceability of or deny its obligations under this Indenture or the Guarantee (other than by reason of release in accordance with the terms of this Indenture), or the Issuer shall contest the enforceability of or deny its obligations under the Notes or this Indenture.
(1) If an Event of Default (other than an Event of Default specified in Section 6.01(7) or (8)) shall occur and be continuing and has not been waived, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes may declare the principal of and premium, if any, accrued interest and Additional Amounts, if any, on all the Notes to be due and payable by notice in writing to the Issuer, the Guarantor and the Trustee (if given by the Holders) specifying the Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable. All amounts due and payable shall be paid in an amount in U.S. dollars.
(2) If an Event of Default specified in Section 6.01(7) or (8) shall occur and be continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest and Additional Amounts, if any, on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(3) At any time after a declaration of acceleration with respect to the Notes as described in clause (1) or (2), the Holders of a majority in principal amount of the outstanding Notes may rescind and cancel such declaration and its consequences:
(a) if the rescission would not conflict with any judgment or decree;
(b) if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, interest or Additional Amounts, if any, that has become due solely because of the acceleration;
(c) if the Issuer or the Guarantor has paid or deposited with the Trustee (to the extent the payment of such interest is lawful) interest on overdue installments of interest and overdue principal and premium, if any, and Additional Amounts, if any, which has become due otherwise than by such declaration of acceleration; and
(d) if the Issuer or the Guarantor has paid or deposited with the Trustee compensation acceptable to the Trustee and reimbursed the documented expenses, disbursements and advances of the Trustee, its agents, and counsel under this Indenture.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
(1) such Holder has previously given the Trustee notice that an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes voting as a single class have requested the Trustee to pursue the remedy;
(3) such Holders have offered the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such request within sixty (60) days after the receipt of the request and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the then outstanding Notes voting as a single class have not given the Trustee a direction inconsistent with such request within such 60-day period,
it being understood that a Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder or to enforce any right under this Indenture except in the manner herein provided and for the equal and proportionate benefit of all Holders.
First: to the Trustee, its agents and attorneys, and the Agents for amounts due under Section 7.06 (including payment of all compensation, expenses and all liabilities incurred and all advances made by the Trustee and any Agent and the costs and expenses of collection);
Second: if the Holders pursuant to Section 6.06 proceed against the Issuer directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
Fourth: to the Issuer or any other obligor on the Notes, as their interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Issuer, may fix a Record Date and payment date for any payment to Holders pursuant to this Section 6.10.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise thereof as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only such duties as are specifically set forth in this Indenture and no covenants or obligations shall be implied in or read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however, in case of any such certificates or opinions furnished to the Trustee which by the provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this clause (c) does not limit the effect of clause (b) above;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability. The Trustee shall be under no obligation to exercise of any of its rights or powers under this Indenture at the request, order or direction of any Holders unless such Holders have offered to the Trustee security and indemnity satisfactory to the Trustee against the costs and expenses which may be incurred by it in compliance with such request, order or direction.
(e) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to clauses (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on, or to invest, any money or assets received by it except as the Trustee may agree in writing with the Issuer. Money and assets held in trust by the Trustee need not be segregated from other funds or assets held by the Trustee except to the extent required by law.
(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement instrument, opinion, report, request direction, consent, order, bond, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in a document.
(b) Before the Trustee acts or refrains from acting, it may consult with counsel and may require an Officers’ Certificate or an Opinion of Counsel, or both, which shall conform to Sections 12.03 and 12.04. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The written advice of the Trustee’s counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by the Trustee hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action that it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers under this Indenture.
(e) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond, debenture, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled, upon reasonable notice to the Issuer, to examine the books, records and premises of the Issuer, personally or by agent or attorney and to consult with the officers and representatives of the Issuer, including the Issuer’s accountants and attorneys. Except as expressly stated herein to the contrary, in no event shall the Trustee have any responsibility to ascertain whether there has been compliance with any of the covenants or provisions of Articles Four or Five hereof.
(f) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(g) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(h) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless a Trust Officer of the Trustee shall have received from the Issuer or any other obligor upon the Notes or from any Holder written notice thereof at its address set forth in Section 12.01 hereof, and such notice references the Notes and this Indenture.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, each of the Agents and each other agent, custodian and other Person employed to act hereunder.
(j) The Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any persons authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(k) The permissive right of the Trustee to take any action under this Indenture shall not be construed as an obligation or duty to so act.
(l) The Trustee shall not be obligated to take any action with respect to any Event of Default specified in Section 6.01(7) or (8), unless it has been instructed to do so in writing by the Holders of at least 25% in principal amount of the outstanding Notes and has been offered security and indemnity satisfactory to the Trustee against the costs and expenses which may be incurred by it in compliance with such instruction.
(m) In no event shall the Trustee be responsible or liable for special, indirect, or consequential or punitive loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(n) Notwithstanding any provision herein to the contrary, in no event shall the Trustee be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.
(o) The Trustee will implement the Subsequent Rate of Interest upon receipt from the Issuer of written notice of the Subsequent Rate of Interest and confirmation of the Interest Rate Step Up Date and absent such notice the Issuer shall hold harmless the Trustee. Failure by the Issuer to provide such notice shall in no way affect the Issuer’s rights with regard to the Subsequent Rate of Interest which, subject to the terms hereof, shall be deemed effective upon the Interest Rate Step Up Date.
The Issuer and the Guarantor, jointly and severally, hereby indemnify each Indemnified Party and its agents, employees, stockholders and directors and officers for, and holds each of them harmless from and against, any loss, cost, damage, claim, liability or expense (including taxes (other than taxes based upon the income of an Indemnified Party) and the fees and expenses of counsel) (collectively, “Losses”) incurred by any of them except for such Losses to the extent caused by any gross negligence, bad faith or willful misconduct on the part of such Indemnified Party, arising out of or in connection with this Indenture, the Notes, the Guarantee and/or the performance of its duties and the exercise of its rights and/or the administration of this trust, including the reasonable costs and expenses of enforcing this Indenture against the Issuer and/or the Guarantor (including this Section 7.06) and defending itself against any claim or liability in connection with the exercise or performance of any of such Indemnified Party’s rights, powers or duties hereunder or thereunder (including the reasonable fees and expenses of counsel). The Trustee shall notify the Issuer and the Guarantor promptly of any claim asserted against an Indemnified Party for which such Indemnified Party has advised the Trustee that it may seek indemnity hereunder. Failure by the Trustee to so notify the Issuer and the Guarantor shall not relieve the Issuer and the Guarantor of their respective obligations hereunder. At the Indemnified Party’s sole discretion, the Issuer and the Guarantor shall defend the claim and the Indemnified Party shall cooperate and may participate in the defense; provided that any settlement of a claim shall be approved in writing by the Indemnified Party. Alternatively, the Indemnified Party may at its option have separate counsel of its own choosing and the Issuer and the Guarantor, jointly and severally, shall be liable to pay the reasonable fees and expenses of such counsel. Neither the Issuer nor the Guarantor need pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.
To secure the Issuer’s and the Guarantor’s payment obligations in this Section 7.06, each Indemnified Party shall have a Lien prior to the Notes, on and the right to set-off any amounts owed to it hereunder from, all money or property held or collected by the Trustee, in its capacity as Trustee, except assets or money held in trust to pay principal of or interest on particular Notes which have been called for redemption.
When an Indemnified Party incurs expenses or renders services after an Event of Default specified in Section 6.01 (7) or (8) occurs, such expenses (including the reasonable fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any Bankruptcy Law.
The obligations of the Issuer and the Guarantor under this Section 7.06 shall survive the satisfaction and discharge of this Indenture, the payment of the Notes, and the resignation or removal of the Trustee.
The Trustee shall comply with the provisions of Trust Indenture Act Section 312(b)(2) to the extent applicable.
(1) the Trustee fails to comply with Section 7.09;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting with respect to the Notes.
If the Trustee resigns, is removed by the Issuer or the Guarantor or by the Holders of a majority in aggregate principal amount of Notes then outstanding and the Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason, the Issuer or the Guarantor shall notify each Holder in writing of such event and shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, trusts, duties and obligations of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such Trustee so ceasing to act hereunder subject nevertheless to its Lien, if any, provided for in Section 7.06. Upon request of the Issuer or the successor Trustee, such retiring Trustee shall at the expense of the Issuer and upon payment of the charges of the Trustee then unpaid, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
If a successor Trustee does not take office within thirty (30) days after the retiring Trustee resigns or is removed, the retiring Trustee, at the Issuer’s expense, the Issuer or the Holders of at least 10% in principal amount of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.09, any Holder who satisfies the requirements of Trust Indenture Act Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
The Issuer shall give notice of any resignation and any removal of the Trustee and each appointment of a successor Trustee to all Holders in writing. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office and its notice address for purposes of Section 12.01.
Notwithstanding any resignation or replacement of the Trustee pursuant to this Section 7.07, the Issuer’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
In case any Notes have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes
(b) If the Trustee has or acquires a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Any certificate or opinion of an Officer of the Issuer or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion, or representation by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or opinion of counsel or representation by counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Issuer or the Guarantor stating that the information with respect to such factual matters is in the possession of the Issuer or the Guarantor, unless such counsel has actual knowledge that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
(b) Upon the Issuer’s and the Guarantor’s exercise under Section 8.01(a) of the option applicable to this Section 8.01(b), the Issuer and the Guarantor shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes and the Guarantee on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of the Sections and matters under this Indenture referred to in clauses (i), (ii) and (iii) below, and the Issuer and the Guarantor shall be deemed to have satisfied all their other obligations under such Notes and this Indenture and the Guarantee, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.01(d) and as more fully set forth in such clause, payments in respect of the principal of and premium, if any, interest and Additional Amounts, if any, on such Notes when such payments are due, (ii) obligations listed in Section 8.03, subject to compliance with this Section 8.01 and (iii) the rights, powers, trust, duties and immunities of the Trustee and Agents and the obligation of the Issuer in connection therewith. The Issuer may exercise its option under this Section 8.01(b) notwithstanding the prior exercise of its option under Section 8.01(c) below with respect to the Notes.
(c) Upon the Issuer’s and the Guarantor’s exercise under Section 8.01(a) of the option applicable to this clause (c), the Issuer and the Guarantor and the Guarantor’s Subsidiaries shall be released and discharged from their obligations under any covenant contained in Section 4.04, Section 4.07 through 4.09, and Section 5.01(2), with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuer’s and the Guarantor’s exercise under Section 8.01 hereof of the option applicable to this clause (c), subject to the satisfaction of the conditions set forth in clause (d) below, the events described in Sections 6.01(3) (solely with respect to Section 5.01(2), (4), (5), (6), and, solely with respect to a Significant Subsidiary, Sections 6.01(7) and (8), shall not constitute Events of Default.
(d) The following shall be the conditions to application of either Section 8.01(b) or Section 8.01(c) above to the outstanding Notes:
(1) The Issuer or the Guarantor shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, in trust, for the benefit of the holders cash in U.S. dollars, non-callable U.S. government obligations, or a combination thereof, in such amounts as are sufficient, in the written opinion of a nationally recognized firm of independent public accountants delivered to the Trustee, to pay the principal of, premium, if any, interest and Additional Amounts, if any, on the outstanding Notes on the stated dates for payment thereof or on the applicable Redemption Date, as the case may be; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Issuer or the Guarantor instructing the Trustee (or other qualifying trustee) to apply such proceeds of such non-callable U.S. government obligations to said payments with respect to the Notes to maturity or redemption;
(2) In the event the Issuer and the Guarantor elect Section 8.01(b) above, the Issuer or the Guarantor shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that (a) the Issuer or the Guarantor has received from, or there has been published by, the U.S. Internal Revenue Service a ruling; or (b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance contemplated hereby and will be subject to U.S. federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) In the event the Issuer and the Guarantor elect Section 8.01(c) above, the Issuer or the Guarantor shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that the Holders and beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance contemplated hereby and will be subject to U.S. federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) No Event of Default shall have occurred and be continuing on the date of such deposit pursuant to clause (1) of this Section 8.01(d);
(5) Such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under any material agreement or instrument (other than this Indenture) to which the Guarantor or any of its Subsidiaries is a party or by which the Guarantor or any of its Subsidiaries is bound;
(6) The Trustee shall have received an Officers’ Certificate of the Issuer and the Guarantor stating that the deposit under clause (1) of this Section 8.01(d) was not made by the Issuer or the Guarantor with the intent of preferring the Holders over any other creditors of the Issuer or the Guarantor, or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer, the Guarantor or others; and
(7) The Trustee shall have received an Officers’ Certificate of the Issuer and the Guarantor and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Issuer must make arrangements reasonably satisfactory to the Trustee, at the time of such deposit, for the giving of the notice of such redemption or redemptions by the Trustee in the name and at the expense of the Issuer.
(1) either:
(a) all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or the Guarantor and thereafter repaid to the Issuer or the Guarantor or discharged from such trust) have been delivered to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable at their stated maturity within one year or (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee, and the Issuer or the Guarantor has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, interest and Additional Amounts, if any, on the Notes to the date of deposit (if amounts are then due and payable) or to the Redemption Date or Maturity Date together with irrevocable instructions from the Issuer or the Guarantor directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;
(2) no Event of Default has occurred and is continuing on the date of the deposit or will occur as a result of the deposit;
(3) the Issuer or the Guarantor has paid all other sums payable by each under this Indenture;
(4) the Issuer or the Guarantor has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or the Redemption Date, as the case may be; and
(5) the Trustee shall have received an Officers’ Certificate of the Issuer and the Guarantor and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
Each of the Issuer and the Guarantor shall pay and indemnify, jointly and severally, the Trustee against any tax, fee or other charge imposed on or assessed against the non-callable U.S. government obligations deposited pursuant to Section 8.01 or the principal, premium, if any, and interest, received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Notes.
Claims against the Issuer for the payment of principal, premium, if any, interest or Additional Amounts, if any, in respect of the Notes will be prescribed unless made within six years of the due date for payment of such principal, premium, if any, or interest and Additional Amounts, if any.
(1) to cure any ambiguity, defect or inconsistency contained therein;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to provide for the assumption of (i) the Issuer’s obligations under this Indenture and under the Notes, or (ii) the Guarantor’s obligations under this Indenture and the Guarantee, in each case, in accordance with Section 5.01;
(4) to provide for the assumption of the Issuer’s obligations under this Indenture and the Notes in accordance with Article Ten;
(5) to allow any Subsidiary or any other Person to guarantee the Notes;
(6) to provide for the issuance of Additional Notes in accordance with this Indenture;
(7) to evidence the replacement of the Trustee as provided for under this Indenture;
(8) if necessary, in connection with any addition or release of any security permitted under this Indenture;
(9) to conform the text of this Indenture, the Notes or the Guarantee to any provision of the section of the Offering Memorandum, entitled “Description of the Notes,” to the extent that such provision in such section was intended to be a verbatim recitation of a provision of this Indenture, the Guarantee or the Notes;
(10) to surrender any right conferred upon the Issuer or the Guarantor;
(11) to comply with any requirements of the SEC in connection with any qualification of this Indenture under the Trust Indenture Act; or
(12) to make any other change that would provide any additional rights or benefits to the Holders or that does not materially and adversely affect the rights of any such Holder or beneficial owner under this Indenture, the Notes or the Guarantee.
After an amendment, modification, waiver or supplement under this Section 9.01 becomes effective, the Issuer shall give to the Holders affected thereby a notice as provided under Section 12.01 briefly describing the amendment, modification, waiver or supplement. Any failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, modification, waiver or supplement.
(1) reduce the percentage of the principal amount of the Notes whose Holders must consent to an amendment, supplement or waiver of any provision of this Indenture or the Notes;
(2) reduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, or Additional Amounts, if any, on any Notes;
(3) reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption or reduce the Redemption Price therefor;
(4) after the time an Offer to Purchase is required to have been made, reduce the purchase amount or purchase price, or extend the latest expiration date or purchase date thereunder;
(5) change the currency or place of payment in which amounts due in respect of the Notes are payable;
(6) make any change in provisions of this Indenture (i) protecting the contractual right of each Holder expressly set forth in this Indenture to receive payment of principal of, premium, if any, interest, and Additional Amounts, if any, on such Note on or after the due date thereof, (ii) protecting the contractual right of each Holder expressly set forth in this Indenture to bring suit to enforce such payment, or (iii) permitting Holders of a majority in outstanding principal amount of Notes to waive certain Defaults or Events of Default;
(7) subordinate the Notes in right of payment to any other Indebtedness of the Issuer or the Guarantor or otherwise affect the ranking of the Notes or the Guarantee in a manner adverse to the Holders;
(8) make any change in the Guarantee that would materially and adversely affect the Holders otherwise than in accordance with the terms of this Indenture;
(9) release any security interest that may have been granted in favor of the Holders other than pursuant to the terms of such security interest;
(10) amend or modify the provisions described under Section 2.06 or reduce the price payable pursuant to Section 3.02 of this Indenture and Paragraphs 5(A), 5(B) or 5(C) of the Notes, or an Offer to Purchase made pursuant to Section 4.11; or
(11) make any change in the preceding amendment and waiver provisions.
The consent of the Holders is not necessary under this Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment. After an amendment to this Indenture pursuant to the preceding paragraph becomes effective, the Issuer will be required to give notice to the Holders as provided under Section 12.01 briefly describing such amendment. Any failure to give such notice to all Holders, or any defect therein, will not impair or affect the validity of such amendment.
The Issuer may, but shall not be obligated to, fix a Record Date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver, which Record Date shall be either (i) at least thirty (30) days prior to the first solicitation of such consent or (ii) the date of the most recent list furnished to the Trustee under Section 2.05. If a Record Date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such Record Date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such Record Date. No such consent shall be valid or effective for more than ninety (90) days after such Record Date.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder unless it makes a change described in any of clauses (1) through (9) of Section 9.02, in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note; provided that any such waiver shall not impair or affect the right of any Holder to receive payment of principal of, premium, if any, and interest on a Note, on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder; and provided, further, that new Notes with such amendments or waivers will be issued to those consenting Holders. Such new Notes shall have separate CUSIP numbers, ISINs and Common Codes from those Notes held by non-consenting Holders.
(1) such documents shall be executed by the Substituted Issuer, the Issuer, the Guarantor and the Trustee as may be necessary to give full effect to the substitution, including a supplemental indenture under which the Substituted Issuer assumes all of the Issuer’s obligations under this Indenture and the Notes (the “Issuer Substitution Documents”); and pursuant to which the Substituted Issuer shall undertake in favor of each Holder, the Trustee and the Agents to be bound by the terms and conditions of the Notes and the provisions of this Indenture as fully as if the Substituted Issuer had been named in the Notes and herein as the principal debtor in respect of the Notes in place of the Issuer (or any previous substitute) and pursuant to which the Guarantor shall continue to unconditionally and irrevocably guarantee in favor of each Holder the payment of all sums payable by the Substituted Issuer as such principal debtor on the same terms mutatis mutandis as the Issuer, and the covenants and Events of Default shall apply to the Substituted Issuer in respect of the Notes as if no such substitution had occurred, it being the intent that the rights of Holders in respect of the Notes shall be unaffected by such substitution;
(2) if Natura Cosméticos ceases to be the Issuer under this Indenture and the Notes, the Issuer Substitution Documents shall provide that Natura Cosméticos shall unconditionally and irrevocably guarantee in favor of each Holder of the Notes the payment of all sums payable by the Substituted Issuer as such principal debtor on the same terms mutatis mutandis as the Guarantor;
(3) if the Substituted Issuer is organized in a jurisdiction other than Brazil, the Issuer Substitution Documents will contain covenants (i) to ensure that each Holder of Notes has the benefit of a covenant in terms corresponding to the obligations of the Issuer, in respect of the payment of Additional Amounts (but replacing references to Brazil in Section 2.06 with references to the other jurisdiction of organization of the Substituted Issuer); and (ii) to indemnify the Holder of Notes against all taxes or duties that arise by reason of a law or regulation in effect on the effective date of the substitution that are incurred or levied against such Holder in Brazil as a result of the substitution and that would not have been so incurred or levied had the substitution not been made;
(4) the Issuer shall have delivered, or procured the delivery, to the Trustee of a legal opinion from a firm of lawyers in the country of incorporation of the Substituted Issuer, to the effect that the Issuer Substitution Documents constitute legal, valid and binding obligations of the Substituted Issuer;
(5) the Issuer shall have delivered, or procured the delivery, to the Trustee of a legal opinion from a firm of Brazilian lawyers acting for the Issuer to the effect that the Issuer Substitution Documents constitute legal, valid and binding obligations of the Issuer;
(6) the Issuer shall have delivered, or procured the delivery, to the Trustee of a legal opinion from a leading firm of New York lawyers to the effect that the Issuer Substitution Documents constitute legal, valid and binding obligations of the parties thereto under New York law;
(7) the Substituted Issuer shall have appointed a process agent in the Borough of Manhattan, the City of New York to receive service of process on its behalf in relation to any legal action or proceedings arising out of or in connection with the Notes or the Issuer Substitution Documents;
(8) there shall be no outstanding Event of Default in respect of the Notes; and
(9) the substitution shall comply with all applicable requirements under the laws of the jurisdiction of organization of the Substituted Issuer and Brazil.
Upon the execution of the Issuer Substitution Documents as referred to in paragraph (1) above, the Substituted Issuer shall be deemed to be named in the Notes as the principal debtor in place of the Issuer (or of any previous substitute under these provisions) and the Notes shall thereupon be deemed to be amended to give effect to the substitution. The execution of the Issuer Substitution Documents shall operate to release the Issuer (or such previous substitute as aforesaid) from all its obligations in respect of the Notes and this Indenture including its obligation to indemnify the Trustee and Agents under this Indenture.
The Issuer Substitution Documents shall be deposited with and held by the Trustee for so long as any Note remains outstanding and for so long as any claim made against the Substituted Issuer or the Issuer by any Holder in relation to the Notes or the Issuer Substitution Documents shall not have been finally adjudicated, settled or discharged.
Not later than 10 Business Days after the execution of the Issuer Substitution Documents, the Substituted Issuer shall give notice thereof to the Holders in accordance with the provisions described herein.
The Guarantee shall rank equal in right of payment with all existing and future senior unsecured obligations of the Guarantor (other than obligations preferred by statute or by operation of law) and rank senior in right of payment to all existing and future Indebtedness that is subordinated to the Guarantee of the Guarantor. The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by the Trustee or any of the Holders with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and in this Guarantee.
The Guarantor unconditionally and irrevocably waive any and all rights provided under Articles 333, sole paragraph, 366, 368, 821, 827, 829, 830, 832, 833, 834, 835, 837, 838 and 839 of the Brazilian Civil Code and Articles 130 and 794 of the Brazilian Civil Procedure Code.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantor, or any Custodian, trustee, liquidator or other similar official acting in relation to the Issuer or the Guarantor, any amount paid by the Issuer or the Guarantor to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor further agrees that, as between the Holders and the Trustee (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of its Guarantee notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of its Guarantee.
(1) if the Issuer or the Guarantor exercises its Legal Defeasance option or its Covenant Defeasance option as described in Section 8.01;
(2) upon satisfaction and discharge of this Indenture in accordance with Section 8.02 or payment in full in immediately available funds of the principal of premium, if any, accrued and unpaid interest on the Notes and all other Obligations; or
The Trustee shall promptly execute and deliver an appropriate instrument evidencing such release upon receipt of a written request by the Issuer or the Guarantor accompanied by an Officers’ Certificate certifying as to compliance with this Section 11.02. If the Guarantor has not been so released, it remains liable for the full amount of its Guarantee as provided in this Article Eleven.
If to the Trustee: The Bank of New York Mellon, as Trustee
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Attention: Global Corporate Trust – Global Americas
If to the Issuer or the Guarantor: c/o Natura &Co Holding S.A.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ Filho, Chief Legal and Compliance Officer
Each of the Issuer, the Guarantor and the Trustee by written notice to the other parties hereto may designate additional or different addresses for notices to such Person. Any notice or communication to the Issuer, the Guarantor or the Trustee shall be deemed to have been given or made as of the date of actual receipt thereof.
Any notice or communication mailed to a Holder of Definitive Notes shall be mailed to such Holder by first class mail, postage prepaid, or other equivalent means at such Holder’s address as it appears on the Register maintained by the Registrar and shall be sufficiently given to such Holder if so mailed within the time prescribed. Any notice or communication given to a Holder of Global Notes shall be given to the Depositary in accordance with its Applicable Procedures. For the avoidance of doubt, notwithstanding any other provision herein, where this Indenture provides for notice of any event to any Holder of an interest in Global Notes (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Notes (or its designee), according to the Applicable Procedures of each Depositary, if any, prescribed for the giving of such notice.
Any requirement of notice under this Indenture may be waived by the Person entitled to such notice before or after such notice is required to be given, and such waivers shall be filed with the Trustee.
Failure to give a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is given in the manner provided above, it is duly given, whether or not the addressee receives it.
In respect of this Indenture, none of the Trustee nor any Agent shall have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission (an “Instruction”). If the Trustee or Agent acts upon an Instruction, the Trustee’s or Agent’s, as applicable, understanding of such Instructions shall be deemed controlling. None of the Trustee nor any Agent shall have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with Instructions notwithstanding such Instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of electronic methods to submit Instructions to the Trustee and/or any Agent, including without limitation the risk of the Trustee and/or any Agent acting on unauthorized Instructions, and the risk of interception and misuse by third parties. The Issuer (i) acknowledges that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer, (ii) acknowledges that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances, and (iii) agrees to notify the Trustee and Agent immediately upon learning of any compromise or unauthorized use of the security procedures.
(1) an Officers’ Certificate, in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent to be performed by the Issuer or the Guarantor, as the case may be, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent to be performed by the Issuer or the Guarantor, as the case may be, if any, provided for in this Indenture relating to the proposed action have been complied with.
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is reasonably necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with.
FOR THE PURPOSES OF PARAGRAPH 2 OF ARTICLE 9 OF BRAZILIAN DECREE LAW NO. 4,657, OF SEPTEMBER 4, 1942, AS AMENDED, WHICH STATES THAT THE OBLIGATIONS ARISING UNDER THIS INDENTURE ARE DEEMED UNDERTAKEN IN THE JURISDICTION IN WHICH THE PROPONENT IS DOMICILED, AND FOR NO OTHER PURPOSES WHATSOEVER, THE TRUSTEE IS THE PROPONENT OF THIS INDENTURE.
(b) Each of the Issuer and the Guarantor irrevocably appoints Cogency Global Inc., 122 East 42nd Street, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, as its authorized agent on which any and all legal process may be served in any such action, suit or proceeding brought in the United States District Court for the Southern District of New York or in any New York State court (in either case sitting in the Borough of Manhattan, New York City). Such appointment shall be irrevocable so long as any of the Notes or the Guarantee remain outstanding or until the irrevocable appointment of a successor agent. Each of the Issuer and the Guarantor agrees that service of process in respect of it upon such agent, together with written notice of such service sent to it in the manner provided for in Section 12.01, shall be deemed to be effective service of process upon it in any such action, suit or proceeding. Each of the Issuer and the Guarantor agrees that the failure of such agent to give notice to it of any such service of process shall not impair or affect the validity of such service or any judgment rendered in any action, suit or proceeding based thereon. If for any reason such agent shall cease to be available to act as such (including by reason of the failure of such agent to maintain an office in New York City), each of the Issuer and the Guarantor agrees promptly to designate a new agent in New York City, on the terms and for the purposes of this Section 12.13. Nothing herein shall in any way be deemed to limit the ability of the Trustee or any Holder to serve any such legal process in any other manner permitted by applicable law or to obtain jurisdiction over the Issuer or the Guarantor or bring actions, suits or proceedings against it in such other jurisdictions, and in such manner, as may be permitted by applicable law.
(c) To the extent that either the Issuer or the Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution or execution, on the ground of sovereignty or otherwise) with respect to itself or its Property, it hereby irrevocably waives, to the fullest extent permitted by applicable law, such immunity in respect of its obligations under this Indenture, the Notes or the Guarantee.
(d) This Indenture, the Notes, the Guarantee and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Issuer and the Guarantor. Each of the Issuer and the Guarantor irrevocably and unconditionally and to the fullest extent permitted by law, waives, and agrees not to plead or claim, any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) for itself of any of its property, assets or revenues wherever located with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Indenture, the Notes, the Guarantee or any document delivered pursuant hereto, in each case for the benefit of its assigns, it being intended that the foregoing waiver and agreement will be effective, irrevocable and not subject to withdrawal in any and all jurisdictions, and, without limiting the generality of the foregoing, agrees that the waivers set forth in this paragraph shall have the fullest scope permitted under the U.S. Foreign Sovereign Immunities Act of 1976 and are intended to be irrevocable for the purposes of such act.
(e) Each of the Issuer and the Guarantor irrevocably waives, to the fullest extent permitted by applicable law, any claim that any action or proceeding relating in any way to this Indenture (or the Notes or the Guarantee) should be dismissed or stayed by reason, or pending the resolution, of any action or proceeding commenced by the Issuer relating in any way to this Indenture (or the Notes or the Guarantee) whether or not commenced earlier. To the fullest extent permitted by applicable law, the Issuer and the Guarantor shall take all measures necessary for any such action or proceeding to proceed to judgment before the entry of judgment in any such action or proceeding commenced by the Issuer.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.
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THE BANK OF NEW YORK MELLON, as Trustee, Paying Agent, Registrar |
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[Signature Page to the Indenture]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
[Rule 144A Global Note]
[Regulation S Global Note]
[Definitive Note]
| Registered Holder: [Cede & Co] | |||
| [CUSIP: | 1 | ||
| ISIN: | |||
| Common Code: |
4.125% Sustainability-Linked Notes due 2028
| No. | U.S. | 2 |
Natura Cosméticos S.A. (the “Issuer”) was incorporated as, a corporation (sociedade anônima) incorporated under the laws of the Federative Republic of Brazil, registered under the Brazilian tax number (Cadastro Nacional da Pessoa Jurídica — CNPJ) No. 71.673.990/0001-77, and with registered office at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇, São Paulo, Brazil.
The Issuer promises to pay to [Cede & Co.] or registered assigns, the principal sum of _______________ U.S. DOLLARS (or such greater or lesser amount as may from time to time be endorsed in accordance with the Indenture on the “Schedule of Increases and Decreases of Interests in the Global Note” attached hereto) on May 3, 2028.
Additional provisions set forth on the reverse of this Note shall have the same effect as if set forth in this place.
| 1 | For Rule 144A Global Note: CUSIP: 63883K AB1 / ISIN: US63883KAB17 / Common Code: 233897787. For Regulation S Global Note: CUSIP: P7088C AC0 / ISIN: USP7088CAC03 / Common Code: 233897833. |
| 2 | For Rule 144A Global Note: U.S.$500,441,000.00. For Regulation S Global Note: U.S.$499,559,000.00. |
Interest Payment Dates: May 3 and November 3, commencing on November 3, 2021.
Record Dates: April 18 and October 18.
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK MELLON, as Trustee
certifies that this is one of the Notes issued under
the within-mentioned Indenture.
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Reverse of Note
4.125% Sustainability-Linked Notes due 2028
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Natura Cosméticos S.A., a corporation (sociedade anônima) incorporated under the laws of the Federative Republic of Brazil (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. Interest on the Note will accrue from the most recent date on which interest has been paid or, if no interest has been paid, from and including the date of issuance. The Issuer will pay interest semi-annually in arrears in immediately available funds on each Interest Payment Date, commencing on November 3, 2021. The Issuer will, to the extent permitted by applicable law, pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; and it will, to the extent permitted by applicable law, pay interest on overdue installments of interest from time to time on demand at the same rate.
From and including November 3, 2027 (the “Interest Rate Step Up Date”), the interest rate payable on the Notes will be increased by 65 basis points to 4.775% per annum (the “Subsequent Rate of Interest”) unless the Issuer has notified (the “Satisfaction Notification”) the Trustee in accordance with Section 12.01 in writing at least thirty (30) days prior to the Interest Rate Step Up Date (the “Notification Date”) that in respect of the year ended December 31, 2026: (i) the Sustainability Performance Targets have been satisfied in respect of the year ended December 31, 2026 and (ii) the satisfaction of each of the Sustainability Performance Targets has been confirmed by the External Verifier in accordance with its customary procedures. If as of the Notification Date (x) the Issuer fails, or is unable, to provide the Satisfaction Notification, (y) the Sustainability Performance Targets have not been satisfied or (z) the External Verifier has not confirmed satisfaction of each of the Sustainability Performance Targets, the Subsequent Rate of Interest will apply for each interest period from and including the Interest Rate Step Up Date up to, and including, the Stated Maturity Date.
Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
(2) METHOD OF PAYMENT: The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are the registered Holders at the close of business on the Record Date immediately preceding the Interest Payment Date even if the Notes are cancelled on registration of transfer or registration of exchange after such Record Date, and on or before such Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay principal and interest in U.S. dollars. The Notes will be payable as to principal, premium and interest at the office or agency of the Issuer maintained for such purpose within or without the City and State of New York, or, at the option of the Issuer, payment of interest may be made by check payable in U.S. dollars mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, interest, and premium, if any, on all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Issuer or any Paying Agent.
(3) AGENTS. Initially, The Bank of New York Mellon, the Trustee under the Indenture, will act as Registrar, Transfer Agent and Paying Agent.
(4) INDENTURE. The Notes and the Guarantee were issued under an Indenture, dated as of May 3, 2021 (the “Indenture”), among the Issuer, the Guarantor named therein, the Trustee and the other parties thereto. The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of such terms. The Notes are senior unsecured obligations of the Issuer. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.
(5) REDEMPTION AND REPURCHASE.
(A) Redemption for Tax Reasons. The Issuer or Guarantor may, at its option, redeem the Notes, in whole but not in part, upon notice of not less than ten (10) nor more than sixty (60) days, at a Redemption Price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (subject to the right of the Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date) and Additional Amounts, if any, to the Redemption Date, if as a result of:
(1) any amendment to, or change in, the laws or treaties (or any regulations or rulings promulgated thereunder) of a Taxing Jurisdiction; or
(2) any amendment to or change in an official interpretation or application regarding such laws, treaties, regulations or rulings (including a determination by a court of competent jurisdiction),
which amendment or change becomes effective on or after the Issue Date, (i) the Issuer or the Guarantor, as the case may be, has become or would become obligated to pay, on the next date on which any amount would be payable with respect to the Notes (and, in respect of the Obligations of the Guarantor, the Guarantor is making or will be making payments with respect to the Notes in lieu of the Issuer), any Additional Amounts in excess of those attributable to a Brazilian withholding tax rate of 15% (or in the case of any successor Person to the Issuer or the Guarantor who is a Non-Resident Holder of the Notes, the rate of withholding applicable to payments on the Notes in the jurisdiction in which such successor is resident on the date such successor replaces the Issuer or the Guarantor, as applicable), determined without regard to any interest, fees, penalties or other additions to tax and (ii) the Issuer or the Guarantor, as the case may be, determines in good faith that such obligation cannot be avoided by the use of reasonable measures available to the Issuer or the Guarantor (including, without limitation, by changing the jurisdiction from which or through which payment is made, to the extent such change would be a reasonable measure in light of the circumstances); provided that:
(a) no such notice of redemption may be given earlier than sixty (60) days prior to the earliest date on which the Issuer or the Guarantor, as the case may be, would be obligated to pay such Additional Amounts were a payment in respect of the Notes then due and payable, and
(b) at the time such notice is given, such obligation to pay such Additional Amounts remains in effect.
No such redemption shall be effective unless and until the Trustee receives the amount payable upon redemption as set forth above.
Immediately prior to the delivery of any notice of redemption to the Holders pursuant to this provision, the Issuer or the Guarantor will deliver to the Trustee:
(i) an Officers’ Certificate (A) stating that the Issuer is entitled to effect such redemption, (B) setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred, and (C) stating that all governmental approvals, if any, necessary to effect such redemption have been obtained and are in full force and effect, and
(ii) an Opinion of Counsel in the relevant Taxing Jurisdiction, to the effect that (A) the Issuer or the Guarantor, as the case may be, has or will become obligated to pay such Additional Amounts as a result of such amendment or change and (B) all governmental approvals, if any, necessary to effect such redemption have been obtained and are in full force and effect.
Any notice of redemption pursuant to this provision will be irrevocable.
The foregoing provisions will apply mutatis mutandis to the laws and official interpretations or applications of any jurisdiction in which any successor permitted under Section 5.01 of the Indenture or the Substituted Issuer (as described under Section 10.01 of the Indenture) is organized, but only with respect to events arising after the date of succession or substitution.
(B) Optional Redemption with Make-Whole Premium. The Issuer or the Guarantor may, at its option, redeem the Notes, in whole or in part, at any time prior to the Par Call Date, upon not more than 60 and not fewer than ten (10) days’ notice to the Holders of the Notes. The Issuer or the Guarantor may redeem the Notes either as a whole or in part at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Notes being redeemed and (ii) the sum of the present values of each remaining scheduled payment of principal and interest thereon (exclusive of any such interest accrued to the date of redemption) as if the Notes were redeemed on the Par Call Date, discounted (for purposes of determining present value) to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points, plus accrued and unpaid interest and Additional Amounts, if any, thereon through, but excluding, the redemption date; provided that Notes in an aggregate principal amount equal to at least U.S.$100 million remain outstanding immediately after the occurrence of any partial redemption of Notes.
The value of the accrued and unpaid interest will be calculated using the Subsequent Interest Rate, unless the Sustainability Performance Target has been satisfied and the issuer has provided the Satisfaction Notification to the trustee, in which case the Initial Rate of Interest will be used for making the calculation.
(C) Optional Redemption at Par. The Issuer or the Guarantor may, at its option, redeem the Notes, in whole or in part, at any time on or after the Par Call Date. The Issuer or the Guarantor may redeem the Notes either as a whole or in part at a Redemption Price equal to100.000% of the principal amount of the Notes being redeemed plus accrued and unpaid interest and Additional Amounts, if any, on the principal amount of the Notes being redeemed to, but excluding, such redemption date; provided that Notes in an aggregate principal amount equal to at least U.S.$100 million remain outstanding immediately after the occurrence of any partial redemption of Notes.
(D) Offer to Purchase. Notwithstanding the foregoing, in connection with any tender offer (including any Offer to Purchase in connection with a Change of Control made in accordance with the terms of the indenture) for Notes, in the event that the Holders of not less than 85% of the aggregate principal amount of the outstanding Notes validly tender and do not withdraw the Notes in such tender offer or a third party purchases all the Notes held by such holders, the Guarantor will have the right, on not less than 10 nor more than sixty (60) days’ prior notice, given not more than thirty (30) days following such purchase date, to redeem all of the Notes that remain outstanding following such purchase at a price equal to the price paid to each other holder in such tender offer plus, to the extent not included in the purchase price, accrued and unpaid interest and Additional Amounts, if any, on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
There is no sinking fund or mandatory redemption applicable to this Note.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the Par Call Date to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the Par Call Date.
“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Issuer or the Guarantor.
“Reference Treasury Dealer” means BofA Securities, Inc. and HSBC Securities (USA) Inc., or their respective affiliates which are primary United States government securities dealers, and two other leading primary United States government securities dealers in New York City reasonably designated by the Issuer; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “Primary Treasury Dealer”), the Issuer will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m. New York time on the third Business Day preceding such Redemption Date.
(6) NOTICE OF REDEMPTION. Notice of redemption will be given at least ten (10) days but not more than sixty (60) days before the Redemption Date to each Holder of Notes to be redeemed in accordance with Section 12.01 of the Indenture. If fewer than all of the Notes are to be redeemed, at any time, selection of Notes for redemption will be made in accordance with Section 3.03 of the Indenture; provided that no partial redemption will reduce the principal amount of a Note not redeemed to a denomination of less than U.S.$200,000.
Except as set forth in the Indenture, if monies for the redemption of the Notes called for redemption shall have been deposited with any Paying Agent for redemption on the Business Day prior to such Redemption Date sufficient to pay such Redemption Price plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date, the Notes called for redemption will cease to bear interest from and after such Redemption Date, and the only remaining right of the Holders of such Notes will be to receive payment of the Redemption Price plus accrued and unpaid interest as of the Redemption Date upon surrender to any Paying Agent of the Notes redeemed.
(7) ADDITIONAL AMOUNTS. The Issuer shall pay to the Holders of Notes such Additional Amounts as may become payable under Section 2.06 of the Indenture.
(8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of U.S.$200,000 and integral multiples of U.S.$1,000. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. The Transfer Agent or Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes, fees or similar governmental charges payable in connection therewith as permitted by the Indenture. No Agent need register the transfer of or exchange of any Notes or portions thereof selected for redemption.
(9) PERSONS DEEMED OWNERS. Subject to the rights of Holders as of a Record Date to receive interest on the related Interest Payment Date, the registered Holder of a Note shall be treated as the owner of it and the Notes of which it is composed for all purposes.
(10) UNCLAIMED MONEY. If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agents shall, upon written request of the Issuer, pay the money without interest thereon back to the Issuer. After that, all liability of the Trustee and such Paying Agent with respect to such money shall cease.
(11) DEFEASANCE; DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Issuer or the Guarantor at any time deposits with the Trustee (a) cash in U.S. dollars, non-callable U.S. government obligations, or a combination thereof, sufficient to pay the principal of, premium, if any, interest and Additional Amounts, if any, on the outstanding Notes on the applicable Redemption Date or on the Stated Maturity Date and complies with the applicable provisions of the Indenture relating thereto, the Issuer and the Guarantor may defease its obligations with respect to the outstanding Notes or with respect to certain covenants thereunder or (b) funds in an amount sufficient to pay and discharge Indebtedness on the Notes and complies with the applicable provisions of the Indenture relating thereto, the Issuer and the Guarantor shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, in each case, except for the rights of Holders to receive payments in respect of the principal of, and premium, if any, and interest and Additional Amounts, if any, on the Notes when such payments are due from the deposits referred to above.
(12) AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the Indenture, the Notes or the Guarantee may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, and certain existing Defaults or Events of Default or noncompliance with certain provisions may be waived with the written consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding. Without consent of any Holder, the parties to the Indenture may amend or supplement the Indenture, the Notes or the Guarantee to, among other things, cure any ambiguity, defect or inconsistency, provide for uncertificated Notes or Guarantee in addition to or in place of certificated Notes or Guarantee, or comply with Section 5.01 or Article Ten of the Indenture or make any other change that does not materially and adversely affect the rights of any Holder of a Note.
(13) COVENANTS. The Indenture imposes certain limitations on the ability of the Guarantor and any of its Subsidiaries to, among other things, merge or consolidate with any other Person, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets. These limitations are subject to important qualifications and exceptions.
(14) SUCCESSORS. When a successor assumes, in accordance with the Indenture, all the obligations of its predecessor under the Notes, the Guarantee and the Indenture, the predecessor will be released from those obligations.
(15) DEFAULTS AND REMEDIES. If an Event of Default occurs and is continuing, all of the Notes may be declared or shall become due and payable in the manner, at the time and with the effect provided in the Indenture. Holders of Notes may not enforce the Indenture except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal or interest) if it determines that withholding notice is in their interest.
(16) THE TRUSTEE DEALINGS WITH THE ISSUER. Subject to the terms of the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, the Subsidiaries or their respective Affiliates as if it were not the Trustee.
(17) NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, or shareholder of the Issuer or the Guarantor, as such, shall have any liability for any obligations of the Issuer or the Guarantor under the Notes, the Guarantee or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.
(18) GUARANTEE. Payment of principal and interest and Additional Amounts, if any (including interest on overdue principal and overdue interest, if lawful), is unconditionally and irrevocably guaranteed by the Guarantor.
(19) AUTHENTICATION. This Note shall not be valid until the Trustee or Authenticating Agent manually or electronically signs the certificate of authentication on this Note.
(20) GOVERNING LAW. THIS NOTE, THE GUARANTEE AND THE INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(21) WAIVER OF JURY TRIAL. Each of the parties to the Indenture and each Holder by purchase of the Notes have irrevocably waived, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding among the parties thereto arising out of or relating to the Indenture, the Notes, the Guarantee or the transactions contemplated hereby or thereby.
(22) CUSIP NUMBERS, ISINS AND COMMON CODE. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers, ISINs and Common Codes to be printed on the Notes and the Trustee may use the CUSIP numbers, ISINs and Common Codes in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
(22) ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (=tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=Uniform Gifts to Minors Act).
The Issuer will furnish to any Holder of a Note upon written request and without charge a copy of the Indenture. Requests may be made to:
Natura Cosméticos S.A.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ Filho, Chief Legal and Compliance Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(1) or (we) assign and transfer this Note to: ______________________________
(Insert assignee’s legal name)
______________________________________________________
(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
and irrevocably appoint ______________________________________________ to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: _____________________
Your Signature: ____________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee[*]: ____________________
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS
IN THE GLOBAL NOTE3
The following increases and decreases in this Global Note have been made:
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Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal Amount at maturity of this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee or Custodian |
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| 3 | This schedule should be included only if the Note is issued in global form. |
GLOBAL NOTE LEGEND
Each Global Note will bear a legend in substantially the following form:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. THIS NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE. BENEFICIAL INTERESTS IN THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE INDENTURE.”
PRIVATE PLACEMENT LEGEND
Each Restricted Global Note and each Restricted Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: SUCH DATE AS MAY BE DETERMINED BY THE ISSUER] [IN THE CASE OF REGULATION S NOTES: 40 DAYS OR SUCH LATER DATE AS MAY BE DETERMINED BY THE ISSUER] AFTER THE LATER OF (1) THE ORIGINAL ISSUE DATE HEREOF AND (2) THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY), ONLY (A) TO THE ISSUER OR NATURA &CO HOLDING S.A., (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) THROUGH OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN RELIANCE UPON REGULATION S OR (E) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR OTHER TRANSFER PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, A CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE ISSUER.”
FORM OF CERTIFICATE OF TRANSFER
The Bank of New York Mellon, as Trustee
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Attention: Global Corporate Trust – Global Americas
Re: Natura Cosméticos – 4.125% Sustainability-Linked Notes due 2028
Reference is hereby made to the Indenture, dated as of May 3, 2021 (the “Indenture”), among Natura Cosméticos S.A., as issuer (the “Issuer”), Natura &Co Holding S.A., as guarantor (the “Guarantor”), The Bank of New York Mellon, as trustee, and the other parties thereto. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to U.S.$_____ aggregate principal amount of the Issuer’s 4.125% Sustainability-Linked Notes due 2028 (the “Notes”) [in the case of a transfer of an interest in a Rule 144A Global Note: which represent an interest in a Rule 144A Global Note (CUSIP: 63883K AB1 / ISIN: US63883KAB17 / Common Code: 233897787) beneficially owned by the undersigned (the “Transferor”) to effect the transfer of such Notes in exchange for an equivalent beneficial interest in the Regulation S Global Note (CUSIP: P7088C AC0 / ISIN: USP7088CAC03 / Common Code: 233897833).
In connection with such request, and with respect to such Notes, the Transferor confirms that such sale has been effected pursuant to and in accordance with Regulation S under the U.S. Securities Act of 1933, as amended (“Regulation S”), and, accordingly, the Transferor represents that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on the Transferor’s behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither the Transferor nor any person acting on the Transferor’s behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) the Transferor is the beneficial owner of the principal amount of Notes being transferred.
In addition, if the sale is made during a Restricted Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, the Transferor confirms that such sale has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S, as the case may be.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:_________________________
____________________________
Authorized Signature
FORM OF CERTIFICATE OF EXCHANGE
The Bank of New York Mellon
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Email: ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: Global Corporate Trust – Global Americas
Re: Natura Cosméticos – 4.125% Sustainability-Linked Notes due 2028
Reference is hereby made to the Indenture, dated as of May 3, 2028 (the “Indenture”), among Natura Cosméticos S.A., as issuer (the “Issuer”), Natura &Co Holding S.A., as guarantor (the “Guarantor”), The Bank of New York Mellon, as trustee, and the other parties thereto. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to U.S.$_____ aggregate principal amount of the Issuer’s 4.125% Sustainability-Linked Notes due 2028 (the “Notes”) [in the case of a transfer of an interest in a Regulation S Global Note: which represent an interest in a Regulation S Global Note (CUSIP: P7088C AC0 / ISIN: USP7088CAC03 / Common Code: 233897833) beneficially owned by the undersigned (the “Transferor”) to effect the transfer of such Notes in exchange for an equivalent beneficial interest in the Rule 144A Global Note (CUSIP: 63883K AB1 / ISIN: US63883KAB17 / Common Code: 233897787).
In connection with such request, and with respect to such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with Rule 144A under the U.S. Securities Act of 1933, as amended (“Rule 144A”), to a transferee that the Transferor reasonably believes is purchasing the Notes for its own account or an account with respect to which the transferee exercises sole investment discretion, and the transferee, as well as any such account, is a “qualified institutional buyer” within the meaning of Rule 144A, in a transaction meeting the requirements of Rule 144A and in accordance with applicable securities laws of any state of the United States or any other jurisdiction.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:_________________________
____________________________
Authorized Signature
[FORM OF] NOTATION OF GUARANTEE
For value received, Natura &Co Holding S.A., as guarantor (the “Guarantor”) (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally and irrevocably guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, dated as of May 3, 2021 (the “Indenture”), among Natura Cosméticos S.A., as issuer (the “Issuer”), the Guarantor, The Bank of New York Mellon, as trustee, and the other parties thereto (a) the principal of, premium, if any, interest, and Additional Amounts, if any, on the Notes shall be promptly paid in full when due, subject to any applicable grace period, whether upon an Interest Payment Date, at the Stated Maturity Date or any other Maturity Date, upon redemption pursuant to the terms of the Notes, by acceleration or otherwise, and, to the extent permitted by applicable law, interest on the overdue principal of, premium, if any, and interest on the Notes and all costs and expenses (including legal fees and expenses) incurred by Holders to enforce their rights under the Guarantee, and all other obligations of the Issuer to the Holders and the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any of the Notes or of any such other obligations, the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (a) and (b) above, to the limitations set forth in Section 11.03 of the Indenture. The obligations of the Guarantor to the Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
[Signature page follows]
IN WITNESS WHEREOF, the Guarantor has caused this endorsement with respect to the U.S.$____________ _______% Notes Due 20___ of Natura Cosméticos S.A. to be duly executed.
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