1 KLABIN S.A PRIVATE INSTRUMENT OF INDENTURE OF THE 7 TH ISSUANCE OF SIMPLE DEBENTURES, WITH PERSONAL GUARANTEE, COMBINED WITH SUBSCRIPTION WARRANTS KLABIN S.A., a corporation (sociedade anônima) with head office at Avenida Brigadeiro Faria Lima, n.º 3.600, enrolled with the Brazilian Corporate Taxpayers’ Registry of the Ministry of Finance (“CNPJ/MF”) under No. 89.637.490/0001-45, hereby represented pursuant to its Bylaws, hereinafter simply referred to as “ISSUER ” or “COMPANY ”, and, on the other hand, PENTÁGONO S.A. DISTRIBUIDORA DE TÍTULOS E SECURITIES, a financial institution authorized to operate by the Brazilian Central Bank, with headquarters at Avenida das Américas, nº 4.200, Bloco 04, Office 514, in the City of Rio de Janeiro, State of Rio de Janeiro, enrolled with the CNPJ/MF under No. 17.343.682/0001-38, representing the community of holders of the debentures subject matter of this issuance ("DEBENTURE-HOLDERS "), hereby represented pursuant to its Bylaws, hereinafter referred to as "FIDUCIARY AGENT ", and, as the intervening guarantor, KLABIN IRMÃOS & CIA., ordinary partnership with head office in the City of São Paulo, at Rua Tabapuã, nº 1.123, 22nd floor, offices 225/226, enrolled with the CNPJ/MF under No 60.485.034/0001-45, hereby represented pursuant to its Articles of Association (“KIC ” or “GUARANTOR ,” the GUARANTOR jointly with the ISSUER and the FIDUCIARY AGENT are collectively referred to as “PARTIES ,” and, individually and indistinctly, referred to as “PARTY ”). THE PARTIES AGREE to enter into this “KLABIN S.A Private Instrument of Indenture of the 7th Issuance of Simple Debentures, with Personal Guarantee, combined with Subscription warrants.” (“INDENTURE ”), with the following clauses and conditions: CLAUSE I - AUTHORIZATION 1. AUTHORIZATION OF THE ISSUANCE BY THE ISSUER This INDENTURE is entered into based on the resolutions of the Meeting of the Board of Directors of the ISSUER, held on April 22, 2014 (“MBD ”). 2. AUTHORIZATION OF PERSONAL GUARANTEE BY THE GUARANTOR The concession of the personal guarantee set forth in item 13 of Clause III below is performed based on the resolutions of the Managing Partners’ Meeting of the GUARANTOR, held on April 7, 2014. CLAUSE II - REQUIREMENTS The issuance of debentures (“ISSUANCE ”) shall be performed according to the following requirements: 1. REGISTRATION OF THE INDENTURE 1.1. The INDENTURE shall be filed in the Board of Trade of the State of São Paulo (“JUCESP ”) and the potential amendments thereto shall be recorded with the competent registry of commerce, according to the provisions of item II and paragraph 3, of article 62, of Law No. 6,404, dated December 15, 1976, as amended (“BRAZILIAN CORPORATE LAW ”).
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KLABIN S.A PRIVATE INSTRUMENT OF INDENTURE OF THE 7TH ISSUANCE OF SIMPLE DEBENTURES, WITH PERSONAL GUARANTEE, COMBINED WITH SUBSCRIPTION
WARRANTS KLABIN S.A., a corporation (sociedade anônima) with head office at Avenida Brigadeiro Faria Lima, n.º 3.600, enrolled with the Brazilian Corporate Taxpayers’ Registry of the Ministry of Finance (“CNPJ/MF”) under No. 89.637.490/0001-45, hereby represented pursuant to its Bylaws, hereinafter simply referred to as “ISSUER” or “COMPANY”, and, on the other hand, PENTÁGONO S.A. DISTRIBUIDORA DE TÍTULOS E SECURITIES, a financial institution authorized to operate by the Brazilian Central Bank, with headquarters at Avenida das Américas, nº 4.200, Bloco 04, Office 514, in the City of Rio de Janeiro, State of Rio de Janeiro, enrolled with the CNPJ/MF under No. 17.343.682/0001-38, representing the community of holders of the debentures subject matter of this issuance ("DEBENTURE-HOLDERS"), hereby represented pursuant to its Bylaws, hereinafter referred to as "FIDUCIARY AGENT", and, as the intervening guarantor, KLABIN IRMÃOS & CIA., ordinary partnership with head office in the City of São Paulo, at Rua Tabapuã, nº 1.123, 22nd floor, offices 225/226, enrolled with the CNPJ/MF under No 60.485.034/0001-45, hereby represented pursuant to its Articles of Association (“KIC” or “GUARANTOR,” the GUARANTOR jointly with the ISSUER and the FIDUCIARY AGENT are collectively referred to as “PARTIES,” and, individually and indistinctly, referred to as “PARTY”). THE PARTIES AGREE to enter into this “KLABIN S.A Private Instrument of Indenture of the 7th Issuance of Simple Debentures, with Personal Guarantee, combined with Subscription warrants.” (“INDENTURE”), with the following clauses and conditions:
CLAUSE I - AUTHORIZATION 1. AUTHORIZATION OF THE ISSUANCE BY THE ISSUER This INDENTURE is entered into based on the resolutions of the Meeting of the Board of Directors of the ISSUER, held on April 22, 2014 (“MBD”). 2. AUTHORIZATION OF PERSONAL GUARANTEE BY THE GUARANTOR The concession of the personal guarantee set forth in item 13 of Clause III below is performed based on the resolutions of the Managing Partners’ Meeting of the GUARANTOR, held on April 7, 2014.
CLAUSE II - REQUIREMENTS The issuance of debentures (“ISSUANCE”) shall be performed according to the following requirements: 1. REGISTRATION OF THE INDENTURE 1.1. The INDENTURE shall be filed in the Board of Trade of the State of São Paulo (“JUCESP”)
and the potential amendments thereto shall be recorded with the competent registry of commerce, according to the provisions of item II and paragraph 3, of article 62, of Law No. 6,404, dated December 15, 1976, as amended (“BRAZILIAN CORPORATE LAW”).
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1.2. By virtue of the GUARANTEE (as established in item 13.1 of Clause III, below) provided by
the GUARANTOR for the benefit of DEBENTURE-HOLDERS, this INDENTURE will be registered with the competent Registry of Deeds and Documents of the City of São Paulo, State of São Paulo and the City of Rio de Janeiro, State of Rio de Janeiro.
1.3. The ISSUER shall send to the FIDUCIARY AGENT one (1) original counterpart of the
INDENTURE duly filed with JUCESP and registered with the Registries of Deeds and Documents indicated above, on a timely basis, after the date of the respective filing and registration.
2. FILING AND DISCLOSURE OF THE MINUTES OF THE MEETING OF THE BOARD OF
DIRECTORS The minutes of the MBD shall be filed with JUCESP and published in the Official Gazette of the State of São Paulo and in newspaper Valor Econômico, pursuant to the BRAZILIAN CORPORATE LAW. 3. REGISTRATION OF THE ISSUANCE The ISSUANCE shall not be subject to registration with the Brazilian Securities and Exchange Commission (“CVM”), provided that the debentures and their respective series, as defined below (“DEBENTURES”), shall be subject to private placement, with no sale efforts before investors and no registration for distribution and trading in no organized market. 4. CORPORATE PURPOSE OF THE COMPANY The corporate purpose of the COMPANY is: (a) industrial and commercial exploration, including the import and export of cellulose, Wood pulp, paper, cardboard and similar products, their byproducts and derivative products, packages for any purposes, wood products in all forms, forest and agricultural products, including seeds, machinery and raw material; (b) forestry, agriculture and livestock, including the afforestation and reforestation through any modalities encouraged by legal provision, including raising of third parties’ resources; (c) mining, including mining research, industrialization and sale; (d) technology and services related to the corporate purpose; (e) transportation, supply points of fuels and lubricants, power generation and sale, as well as other ancillary activities necessary by means of their integrated industry nature; and (f) ownership interest in other companies. 5 AUTHORIZED CAPITAL. The Bylaws of the ISSUER sets forth authorized capital up to the limit of five billion and six hundred million (5,600,000,000) shares, which are sufficient for the issuance of subscription warrants issued by the ISSUER, to be attributed to the subscribers of the ISSUANCE, pursuant to the article 77 of the BRAZILIAN CORPORATE LAW and article 5, paragraph 9, of the COMPANY’s Bylaws (“SUBSCRIPTION WARRANTS”).
CLAUSE III – COMMON ASPECTS TO BOTH DEBENTURES SERIES The ISSUANCE of DEBENTURES shall occur according to the following conditions and aspects: 1. VALUE OF THE ISSUANCE The total value of the ISSUANCE is of seven hundred and ninety nine million, nine hundred and ninety two thousand reais (R$799,992,000.00).
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2 UNIT PAR VALUE The unit par value of DEBENTURES is of fourteen reais and forty cents (R$14.40) (“UNIT PAR VALUE”). 3 DEBENTURES The ISSUANCE of DEBENTURES shall be carried out in two (2) series, provided that to each one (1) 1ST SERIES DEBENTURE, as established below, subscribed, the subscriber shall subscribe one (1) 2ND SERIES DEBENTURE, as established below, and vice-versa, simultaneously. Accordingly, each subscriber must always subscribe, at least, two (2) DEBENTURES, one (1) 1ST SERIES DEBENTURE and one (1) 2ND SERIES DEBENTURE. 4 NUMBER OF DEBENTURES The COMPANY shall issue fifty five million, five hundred and fifty five thousand (55,555,000) DEBENTURES, which: a) twenty seven million, seven hundred and seventy seven thousand and five hundred (27,777,500) DEBENTURES refer to the 1st series, with the aspects set forth in Clause IV below (“1ST SERIES DEBENTURES”); and b) twenty seven million, seven hundred and seventy seven thousand and five hundred (27,777,500) DEBENTURES refer to the 2nd series, series, with the aspects set forth in Clause V below (“2ND SERIES DEBENTURES”). 5. USE OF PROCEEDS AND PURPOSE OF THE ISSUANCE The proceeds arising out of the ISSUANCE shall be allocated for the construction of a plant in the city of Ortigueira, State of Paraná, with estimated production capacity of one million and five hundred thousand (1,500,000) tons of cellulose per year, which approximately one million and one hundred thousand (1,100,000) refers to short fiber cellulose and four hundred thousand (400,000) tons refers to long fiber cellulose (“Pulp Mill”), which may include, at the ISSUER’s discretion, allocation to infrastructure, production and /or operational logistics related to the Pulp Mill. 6. FORM AND CLASS The DEBENTURES shall have the same book-entry form, with no issuance of share certificates or certificates. 7. TYPE The DEBENTURES are unsecured DEBENTURES with personal guarantee. 8. DATE OF ISSUANCE For all legal purposes, the date of this ISSUANCE will be April 22, 2014 (“DATE OF ISSUANCE”). 9. LIQUIDATOR BANK, BOOKKEEPING AGENT AND TRANSFER AGENT 9.1. The LIQUIDATOR BANK shall be Itaú Unibanco S.A., A financial institution with head
office in City of São Paulo, State of São Paulo, at Praça Alfredo Egydio de Souza Aranha, nº 100 - Olavo Setúbal, Tower enrolled with CNPJ/MF under No 60.701.190/0001-04
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(“LIQUIDATOR BANK”), and the BOOKKEEPING AGENT shall be Itaú Corretora de Securities S.A., a financial institution with head office in City of São Paulo, State of São Paulo, at Avenida Brigadeiro Faria Lima, nº 3.400, 10th floor, enrolled with CNPJ/MF under No 61.194.353/0001-64 (“BOOKKEEPING AGENT”).
9.2. No certificates representing the DEBENTURES shall be issued. For all purposes and
effects, the ownership of the DEBENTURES shall be evidenced by the statement issued by the BOOKKEEPING AGENT.
10. PRIVATE PLACEMENT AND TRADING 10.1 The DEBENTURES shall be issued for private placement, without the intermediation of
institutions comprising securities’ underwriting system and/or any sale efforts before investors. Such placement shall be necessarily carried out according to the provisions of item 3 of this Clause III.
10.2. The 1ST SERIES DEBENTURES may not be traded without the SUBSCRIPTION
WARRANTS and vice-versa, provided that, under item 8.2. of Clause VI hereof, the payment of shares deriving from the exercise of SUBSCRIPTION WARRANTS may only be performed upon payment of the 1ST SERIES DEBENTURES.
11. SUBSCRIPTION WARRANTS.
SUBSCRIPTION WARRANTS shall be attributed, as additional advantage to the subscribers of the ISSUANCE, according to the provisions of item 3 of this Clause III, which SUBSCRIPTION WARRANTS will entitle the holders thereof to subscribe for common and preferred shares issued by the COMPANY, which will be delivered as share deposit certificates comprised by, each of them, one (1) common share and four (4) preferred shares issued by the ISSUER (“UNITS”), pursuant to the terms and conditions included in Clause VI below and ANNEX II attached hereto. 12. PREEMPTIVE RIGHT TO THE SHAREHOLDERS OF THE ISSUER 12.1. As a result of the attribution of SUBSCRIPTION WARRANTS to the subscribers of the
ISSUANCE, the shareholders of the ISSUER shall be assured with the preemptive right to subscribe for the DEBENTURES (“SHAREHOLDERS”), according to the provisions of item 3 of this Clause III, proportionally to the number of common and/or preferred shares issued by the ISSUER (“SHARES”) held by them, pursuant to the BRAZILIAN CORPORATE LAW, according to the shareholding position as of the date of disclosure of shareholders’ notice (“PREEMPTIVE RIGHT”), for the period of thirty (30) days counted from the disclosure of notice to the shareholders of the ISSUER (“SHAREHOLDERS’ NOTICE”) including information regarding the ISSUANCE and the exercise period of the PREEMPTIVE RIGHT (“PREEMPTIVE PERIOD”).
12.1.1. SHAREHOLDERS may, at the sole discretion, assign their respective PREEMPTIVE
RIGHTS to interested third parties (“ASSIGNEES”), pursuant to paragraph six of article 171 of the BRAZILIAN CORPORATE LAW.
12.1.2. Each SHARE shall entitle the PREEMPTIVE RIGHT for the subscription of 0.0060632197
DEBENTURE of each series and, as a result, each UNIT, comprised by five (5) SHARES (1 common share and 4 preferred shares), shall entitle the PREEMPTIVE RIGHT for the subscription of 0.0303160986 DEBENTURE of each series, it being understood that to each one (1) 1ST SERIES DEBENTURE subscribed, the subscriber must subscribe one (1) 2ND SERIES DEBENTURE, and vice-versa, simultaneously. DEBENTURE fractions
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verified under the exercise of the PREEMPTIVE RIGHT, that is, DEBENTURES that cannot be attributed in whole, will be disregarded.
12.2. The SHAREHOLDERS or the ASSIGNEES that wish to subscribe DEBENTURES under
item 12.1 shall exclusively attend BOOKKEEPING AGENT branches indicated in the SHAREHOLDERS’ NOTICE, where they shall proceed with the execution of the DEBENTURES’ subscription list. In case of SHAREHOLDER or ASSIGNEE, represented by an attorney-in-fact, such attorney-in-fact shall hold the documentation evidencing the powers of representation to subscribe for the DEBENTURES. The SHAREHOLDERS or ASSIGNEES whose custody is in the Depository Center of BM&FBOVESPA (“CBLC”) shall exercise the PREEMPTIVE RIGHTS through their custody agents and pursuant to the rules established by CBLC itself.
12.3. The SHAREHOLDERS or the ASSIGNEES, who subscribe for the DEBENTURES during
the PREEMPTIVE PERIOD, may state, in the proper field of the subscription list of DEBENTURES, such interest to subscribe for potential unsubscribed DEBENTURES during the PREEMPTIVE PERIOD, proportionally to the amounts subscribed by them. The period to subscribe for potential unsubscribed DEBENTURES will be of ten (10) days counted from the conclusion of the PREEMPTIVE PERIOD. The number of DEBENTURES, subject to the provisions of item 3 of this Clause III, entitled to each subscriber (Debentures.Apportionment.Single) shall be established through the multiplication of the total number of unsubscribed DEBENTURES (Unsubscribed.Debentures) by the percentage calculated through the division of the number of DEBENTURES subscribed by the respective subscriber (Subscribed.Debentures) by the total number of DEBENTURES (Total Subscribed.Debentures) subscribed by all subscribers who requested to be entitled to the unsubscribed DEBENTURES (“SINGLE APPORTIONMENT”), as described in the following formula. Without prejudice to the use of such formula, the subscription of all unsubscribed DEBENTURES will be permitted, after the first use of the formula, by any subscriber who has expressly stated its intention to subscribe for up to all unsubscribed DEBENTURES, provided that, in the event of more than one subscriber states to be interested in the subscription of up to all unsubscribed DEBENTURES, such unsubscribed DEBENTURES will be apportioned between interested subscribers proportional to all DEBENTURES subscribed so far by such subscriber.
DebSubscribedTotal
DebSubscribedDebSubsNonDebApportSingle
..
......
12.4. Subscription lists of unsubscribed DEBENUTES inherent to the SINGLE
APPORTIONMENT may be requested at the bank branch of the BOOKKEEPING AGENT. The subscribers whose custody is under CBLC shall exercise the respective rights by means of their custody agents and in accordance with CBLC rules.
12.5. In the event calculations of the SINGLE APPORTIONMENT result in a fraction number,
such fraction will be disregarded. 12.6. The DEBENTURES not subscribed after the SINGLE APPORTIONMENT, as well as the
subscribed DEBENTURES potentially not paid as of the PAYMENT DATE, as established in item 2.1 of Clause IV, below, will be, at the ISSUER’s sole discretion, cancelled or disposed to third parties through auction to be held in BM&FBOVESPA trading environment, provided that, in this event, the respective notice will be disclosed to the market at least ten (10) days prior to the date the auction is held.
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12.7. The DEBENTURES included in auction as set forth in item 12.6 above not subscribed in the auction or not paid up by the respective subscribers within the respective period will be cancelled by the ISSUER.
12.8. Within up to tem (10) days counted from: (i) payment of all DEBENTURES, or, (ii) in the
events set forth in items 12.6 and 12.7 above, the cancellation of unsubscribed or unpaid DEBENTURES within such period, the BOOKKEEPING AGENT must send to the FIDUCIARY AGENT a report informing the position of DEBENTURE-HOLDERS.
13. PERSONAL GUARANTEE 13.1. As guarantee of the true, timely and full payment of all obligations assumed or that may be
assumed, through the amendment to this INDENTURE, by the ISSUER in connection with the DEBENTURES, the GUARANTOR hereby provides guarantee in favor of the DEBENTURE-HOLDERS, binding upon as guarantor and principal obligor, jointly liable with the ISSUER, for all and any obligations of the ISSUER arising out of this INDENTURE, as described as follows (“GUARANTEE”).
13.2. The GUARANTOR hereby represents, on an irrevocable and irreversible basis, to be jointly
liable and the principal obligor of the obligations assumed herein, including the GUARANTEE of all and any amounts, principal and/or ancillary, including default charges and conventional fine, due by the ISSUER hereunder, as well as all and any costs or expenses, including FIDUCIARY AGENT’s fees, evidently incurred by the FIDUCIARY AGENT or the DEBENTURE-HOLDERS as a result of proceedings, procedures and/or other legal measures or upon the execution of necessary acts, under the judiciary scope, to the safeguard of the rights and prerogatives arising out of this INDENTURE (“SECURED OBLIGATIONS”), until full compliance with the SECURED OBLIGATIONS, except for the events set forth in items 13.15. and 13.16. below.
13.3. The GUARANTOR undertakes to, regardless of any intention, action, dispute or claim
brought or exercised by the ISSUER with respect to its obligations, pay for the SECURED OBLIGATIONS under item 13.2. above within ten (10) business days, counted as from the written communication in this regard sent by the FIDUCIARY AGENT, informing about the lack of payment of any of the SECURED OBLIGATIONS.
13.4. The GUARANTOR, under items I and II of article 828 of Law No. 10,406, dated January 10,
2002, as amended (“CIVIL CODE”), expressly waives the benefits of order, rights and resignation options of any nature set forth in articles 333, sole paragraph, 366, 371, 821, 827, 834, 835, 836, 837, 838 and 839 of the CIVIL CODE and articles 77 and 595 of Law No. 5,869, dated January 11, 1973, as amended.
13.5. The GUARANTOR shall be subrogated in DEBENTURE-HOLDERS’ rights in the event it
complies with, in whole or in part, the GUARANTEE subject matter of this item 13. In the event of subrogation set forth in this Clause, the exercise of the subrogated credit right shall be subject to full compliance with the SECURED OBLIGATIONS with the full compliance with DEBENTURE-HOLDERS’ credit.
13.6. The GUARANTOR hereby acknowledges as the established period, for purposes of article
835 of the CIVIL CODE, the date which is one (1) year after the complete, effective and full settlement of all SECURED OBLIGATIONS.
13.7. The GUARANTOR agrees and undertakes to only require and/or claim the ISSUER for any
amount disbursed by the latter pursuant to the GUARANTEE after receipt by DEBENTURE-HOLDERS of all amounts due to them hereunder.
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13.8. Subject to the provisions of item 13.10. below, the GUARANTEE may be performed and required by the FIDUCIARY AGENT as many times as necessary until full and effective settlement of all SECURED OBLIGATIONS, provided that the FIDUCIARY AGENT shall, for such, promptly notify the ISSUER and the GUARANTOR.
13.9. By virtue of the GUARANTEE provided by the GUARANTOR for the benefit of the
DEBENTURE-HOLDERS, the ISSUER undertakes to register this INDENTURE in the competent Registry of Deeds and Documents in the City of São Paulo, State of São Paulo and in the City of Rio de Janeiro, State of Rio de Janeiro, within up to ten (10) days counted from the date of execution of this INDENTURE.
13.10. Subject to the provisions of items 13.15. through 13.17. below, the GUARANTEE will be
effective as of the date of execution of this INDENTURE and it shall be valid up to one (1) year after the complete, effective and full settlement of all SECURED OBLIGATIONS (“MATURITY DATE OF THE GUARANTEE”), and it shall remain valid and fully effective in the event of amendments, changes and/or any other modifications to the conditions set forth in the DEBENTURES or in the INDENTURE.
13.11. No payment shall be subject to the set-off of potential credits in favor of the GUARANTOR. 13.12. No objection or opposition of the ISSUER, except for the termination of the SECURED
OBLIGATIONS, may be admitted or instituted by the GUARANTOR in order to be exempt from the fulfillment of its obligations before the DEBENTURE-HOLDERS.
13.13. The GUARANTOR represents and warrants that (i) the provision of this GUARANTEE has
been duly authorized by its competent corporate bodies; and (ii) all permits required for the provision of this GUARANTEE have been obtained and are in full force.
13.14. The FIDUCIARY AGENT, according to the function attributed to it by this INDENTURE and
the BRAZILIAN CORPORATE LAW, shall require, when applicable, the judicial or extrajudicial execution of the GUARANTEE.
Replacement of the Personal Guarantee 13.15. Whereas the term of validity of the GUARANTOR is determined, provided that the
dissolution thereof is estimated to occur, pursuant to the respective articles of association, on December 31, 2020 (“DISSOLUTION DATE”), the ISSUER hereby undertakes to replace the GUARANTEE with a BANK GUARANTEE (as established in item 13.16. below) up to December 1, 2019, except if, up to such limit date, the ISSUER proves to the FIDUCIARY AGENT, upon submitting the restated articles of association of the GUARANTOR duly filed with JUCESP, that the GUARANTOR changed its articles of association in order to extend the term of validity thereof for (i) a term that is longer than the MATURITY DATE OF THE GUARANTEE or (ii) indefinite term.
13.16. In addition and without prejudice to the terms of item 13.15 above, the ISSUER may, at any
time, replace the GUARANTEE with a bank guarantee, upon submitting one or more letters of guarantee issued by a first-tier financial institutions, authorized by the Brazilian Central Bank, which economic financial condition grants them a good level of solvency, under satisfactory terms, at the discretion of DEBENTURES-HOLDERS representing the majority of outstanding DEBENTURES (“BANK GUARANTEE”). The BANK GUARANTEE will be contracted and borne, solely, by the ISSUER and must substantially have the same aspects, waives and it shall be effective until the MATURITY DATE OF THE GUARANTEE as set forth in this item 13 hereof.
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13.17. As from the replacement date of the GUARANTEE with the BANK GUARANTEE pursuant to items 13.15. and 13.16 above, upon the approval of the BANK GUARANTEE by DEBENTURES-HOLDERS representing the majority of the outstanding DEBENTURES, the GUARANTOR shall be, for all legal purposes and effects, released from all and any obligation set forth herein, provided, therefore that the GUARANTEE shall be automatically lawfully terminated, regardless of any amendment to this INDENTURE.
14. PLACEMENT TERM The maximum term for placement of DEBENTURES by the ISSUER shall be off one hundred and eighty (180) days counted from the DATE OF ISSUANCE. 15. DATE, PLACE AND PAYMENT CALCULATION All payments related to principal and profits to which the DEBENTURES are entitled shall be performed to DEBENTURE-HOLDERS upon the transfer of financial resources to the current account indicated by such DEBENTURE-HOLDER to the BOOKKEEPING AGENT, in accordance with the provisions of item 17 below. 16. PAYMENT INABILITY If the ISSUER is capable to perform any payment, when due, to any DEBENTURE-HOLDER, due to the inaccurate or outdated enrollment information of such DEBENTURE-HOLDER with the BOOKKEEPING AGENT, such DEBENTURE-HOLDER shall not be charged with any interests in arrears, fine or indemnification, and it shall be assured with the rights vested up to the date of the respective availability of resources by the ISSUER, plus, as applicable, the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and the 1ST SERIES COMPENSATORY INTERESTSS (as established in items 3.1. and 4.1. of Clause IV, below) and/or the ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE and the 2ND SERIES COMPENSATORY INTERESTSS (as established in items 3.1. and 4.1. of Clause V, below) due since the maturity date of the unfulfilled financial obligation until the actual date of payment thereof.
17. MATURITY ON WEEKENDS OR HOLIDAYS The terms related to the payment of any pecuniary obligation set forth or arising out of this INDENTURE shall be automatically extended until the first subsequent business day, with no additions to the amounts to be paid, if the respective payment date thereof falls on a day that is not deemed to be a business day. For purposes of this INDENTURE, business day mans any day other than Saturday, Sunday, national holiday, municipal holiday in the City of São Paulo or any day in which, by any reason, BM&FBOVESPA is not in operation. 18. ISSUER'S SPECIAL OBLIGATIONS The ISSUER undertakes to, until full settlement of the DEBENTURES and pursuant to the other obligations set forth herein:
a) provide the FIDUCIARY AGENT with:
(i) after the end of each fiscal year, within up to two (2) business days after the legal term for the disclosure thereof, (a) copies of its complete financial statements related to such fiscal year, accompanied by the management report and the independent auditors’ report, except when such information are made available at the ISSUER’s website within such term and (b) report including information related to disposals,
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pledges or liens on assets comprising the non-current assets of the ISSUER, except when such information are, within such term, made available to DEBENTURE-HOLDERS at the ISSUER’s website;
(ii) within no longer than ninety (90) consecutive days after the end of each
fiscal year, statement of the Investors Relations Officer of the ISSUER certifying the fulfillment of the ISSUER’s obligations set forth herein;
(iii) information on the occurrence of any of the events indicated in item 20
promptly after acknowledgement or as requested by the FIDUCIARY AGENT. This information shall be accompanied by the ISSUER’s report with the description of occurrence and measures that the ISSUER intends to take with respect to such occurrence. If this information results from any event, act or fact that leads to the disclosure of a material fact by the ISSUER, pursuant to CVM Instruction No. 358, dated January 3, 2002, as amended ("CVM Instruction 358"), the disclosure of such event, act or fact to BNDESPAR shall occur simultaneously with its disclosure to the market, pursuant to such CVM Instruction 358;
(iv) copy of any correspondence or judicial or extrajudicial notification
received by the ISSUER that may impair the capacity of the ISSUER to comply with the obligations assumed herein, within up to five (5) business days after receipt thereof;
(v) information on non-compliance with any clause, term or condition hereof,
immediately after acknowledgement or as requested by the FIDUCIARY AGENT;
(vi) within up to five (5) business days after the effective registration with
JUCESP, promptly provide copies of all minutes of the General Meeting or Meeting of the Board of Directors of the ISSUER involving, in any way, the interests of the DEBENTURE-HOLDERS;
(vii) within up to five (5) business days counted from the date of receipt of
such request, the documents and/or information that may be reasonably requested by the FIDUCIARY AGENT, in writing, so that the latter may comply with its obligations hereunder and according to applicable law; and
(viii) for purposes of following up on the event set forth in item 20.1 (f) and
(m) below, the ISSUER undertakes to send, on a semi-annual basis, to the FIDUCIARY AGENT the reports of lawsuits in which the ISSUER is the defendant and which (i) amount is equal to or higher than one hundred million reais (R$100,000,000.00), adjusted by the Brazilian Wide Consumer Price Index – IPCA (“IPCA”), ascertained and disclosed by the Brazilian Institute of Geography and Statistics – IBGE, or (ii) refer to child labor, slavery or crimes against the environment, prepared by the counsel to the plaintiffs in such claims, with their respective opinions. The ISSUER is discharged from sending such report if the ISSUER is not the defendant in lawsuits with this amount or nature;
b) cause its statements to be published on the terms and in the manner required by
the corporate legislation;
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c) keep its accounting updated and execute the respective registries pursuant to applicable law and regulation;
d) call the General DEBENTURE-HOLDERS Meeting to resolve on any matter
directly or indirectly related to this ISSUANCE, if the FIDUCIARY AGENT is required to do so, pursuant to this INDENTURE and the applicable law, but it fails to do so;
e) not execute transactions outside its corporate purpose, pursuant to the statutory,
legal and regulatory provisions in force; f) remain in full compliance with respect to all taxes due to the Federal, State and
Municipal Treasuries, except with respect to those taxes that are contested in good faith by the ISSUER, on administrative and/or legal manners;
g) comply with, in all material respects, all applicable laws, rules, regulations and
orders, in any jurisdiction in which it conducts business or has assets, especially maintaining it good standing before environmental bodies, complying with the specific environmental laws, except for those obligations or laws claimed in good faith under administrative and/or judicial scopes;
h) subject to the provisions of item (g) above, keep the validity and regularity, in all
material respects, of all authorizations, licenses, permits, concessions or approvals required for the development of its business;
i) keep and preserve, in good order and working conditions, in all material aspects,
all of its material assets, required or useful for the proper development of its business;
j) ensure that its financial statements and accounting records have no incorrect or
false information or omits any material information that must be released pursuant to legal and regulatory provisions in force;
k) not to participate in or perform any transaction with related parties, except (i)
those already existing and/or approved as of the date hereof, as informed by the ISSUER in its Reference Form and/or other documents disclosed by the ISSUER at CVM’s website; or (ii) those to be performed strictly on arm's length basis and compatible with market practices;
l) comply with, as applicable, the "PROVISIONS APPLICABLE TO BNDES
AGREEMENTS," approved by Resolution No. 665, dated December 10, 1987, of the Board of Executive Officers of BNDES, published in the Federal Official Gazette (Section I) dated December 29, 1987, as subsequently amended, which constitute ANNEX I attached hereto (“APPLICABLE PROVISIONS”);
m) not to sell or encumber assets comprising its Non-current Assets subject to
property registration which, upon such disposal or encumbrance, exceed the individual or aggregate limit of twenty percent (20%) of Consolidated Non-current Assets, ascertained based on the most recent audited Financial Statements provided by the ISSUER to CVM, in compliance with the maintenance, at all times - not selling or encumbering – of at least eighty percent (80%) of Non-current Assets ascertained based on the audited Financial Statements as of December 31, 2013, except if previously approved by DEBENTURE-HOLDERS representing the majority of outstanding DEBENTURES and except for the assets comprising the fixed assets of ISSUER which were already encumbered
11
as of the date hereof or which may be encumbered in favor of Banco Nacional de Desenvolvimento Econômico e Social - BNDES;
n) in the event of occurrence of, due to the allocation of proceeds to the purpose set forth in item III.5, reduction of the ISSUER's staff during the validity period of the DEBENTURES, offer a training program towards to work opportunities within the region and/or employees' reallocation program in other companies, and submit to the FIDUCIARY AGENT document that specifies and proves conclusion of the negotiations executed with the competent representation(s) of the employees involved on the dismissal process.
o) adopt, during the validity period hereof, the measures and actions to prevent or
correct damages to the environment, safety and occupational health that may be caused, by the ISSUER and/or its subsidiaries as a result of the use of resources arising out of this ISSUANCE;
p) comply with the provisions of laws applicable to disabled persons; q) invest the funds raised with this ISSUANCE solely according to the purpose
referred to in item III.5. r) inform the FIDUCIARY AGENT and the DEBENTURE-HOLDERS, at their
request, as of the date of the event, the name and enrollment number with the Individual Taxpayers’ Register of the Ministry of Finance of any person who, has been appointed or invested in office as congressman or senator while exercising a compensated function or as its controller or serving as its officer; and
s) keep listed in Level 2 listing segment of the Corporate Governance of
BM&FBOVESPA, except if previously approved by DEBENTURE-HOLDERS representing the majority of outstanding DEBENTURES, provided that the ISSUER may be upgraded to a superior level of Corporate Governance.
19 DEFAULT In the event of default of any obligation assumed by the ISSUER in this INDENTURE, the provisions of the articles 40 to 47-A of the APPLICABLE PROVISIONS will be complied with, being understood that, for calculation of debit balance due, the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and the 1ST SERIES COMPENSATORY INTERESTSS (as established in items 3.1 and 4.1 of Clause IV, below) and the ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE and the 2ND SERIES COMPENSATORY INTERESTSS (as established in items 3.1 and 4.1 of Clause V, below), as well as the costs relating to both series, will be calculated pro rata temporis per business days until the date of the actual payment. The APPLICABLE PROVISIONS shall be construed as so “Beneficiary” means the ISSUER and “BNDES” means the DEBENTURE-HOLDERS. 20. EARLY MATURITY OF THE DEBENTURES 20.1. In addition to the events provided in articles 39, except the item II, 40 and 47-A of
APPLICABLE PROVISIONS, the FIDUCIARY AGENT may declare, in compliance with the items 20.2, 20.3 and 20.4 below, all DEBENTURES as early matured, and the ISSUER may be required, without prejudice to the penalties set forth in Sections II and III of Chapter IX of the APPLICABLE PROVISIONS, to pay the debt on the debit balance of the DEBENTURES, plus the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and of
12
1ST SERIES COMPENSATORY INTERESTSS (as established in items 3.1 and 4.1 of Clause IV, below) and/or the ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE and the 2ND SERIES COMPENSATORY INTERESTSS (as established in items 3.1 and 4.1 of Clause V, below) and additional charges levied upon until the date of payment, applying the provisions of item 19 above, and also without prejudice to search for indemnify for losses and damages that fully offsets any damage caused by the default of the ISSUER, on the occurrence of the following events:
a) failure to comply with any pecuniary obligation relating to the DEBENTURES, not
remedied within up to ten (10) days after the respective maturity date; b) reiterated protest against the ISSUER in individual or wholly value that is equal to
or greater than, in a period of 12 (twelve) consecutive months, R$ 100,000,000.00 (one hundred million reais), unless if, the term of 30 (thirty) calendar days counted as of the said protest, it is validly proven by the ISSUER, the controllers or the subsidiaries thereof that: (i) the protest was made by mistake or bad faith of any third party; (ii) the protest was canceled; or (iii) court guarantees were provided by the ISSUER or by subsidiaries thereof, as applicable, and accepted by the Judiciary. The values provided by this item will be updated on an annual basis from the DATE OF ISSUANCE by IPCA, under item 3.1. of Clause IV below;
c) request for judicial or extrajudicial recovery or self-bankruptcy formulated by the
ISSUER or the subsidiaries thereof or declaration of bankruptcy of the ISSUER or any of the subsidiaries thereof;
d) dissolution and liquidation of the ISSUER; e) it has not been remedied within the term of 30 (thirty) days as of the extrajudicial
notification sent by the FIDUCIARY AGENT, the failure to perform any non-pecuniary obligation provided for in this INDENTURE;
f) declaration of early maturity of any debt of the ISSUER by reason of contractual
default or definitive condemnation for payment within the judiciary, whose amount is individual or wholly equal or higher than R$ 100,000,000.00 (one hundred million reais). The value provided by this item will be updated on an annual basis from the DATE OF ISSUANCE by IPCA, under item 3.1. of Clause IV below;
g) inclusion, in a shareholder agreement or bylaws of the ISSUER, of a provision
requiring special quorum for analysis or approval of issues that limit or prevent the control of the COMPANY by the respective controlling shareholders, or further, the inclusion in those documents, of a provision:
(i) restricting the ISSUER’s growth capacity of technological development; (ii) restricting the Issuer’s Access to new markets; or (iii) restricting or prejudice the capacity of payment of the financial
obligations resulting from this ISSUANCE.
h) evidence that the representations provided in the INDENTURE are false or misleading, or further, significantly incorrect or incomplete on the date they were provided;
i) change or amendment of the corporate purpose of the ISSUER in order to
change the current main activities or to add to these new business activities
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which prevail or may represent deviations in relation to the activities currently undertaken, unless approved in advance by holders of DEBENTURES that represent the majority of outstanding DEBENTURES;
j) If the reduction of the capital stock of the ISSUER is approved with restitution to
shareholders of part of the value of SHARES or by reducing the value thereof, when not paid, at the amount of the entries, unless previously approved by holders of DEBENTURES that represent the majority of the outstanding DEBENTURES, being admitted to always and regardless of approval by DEBENTURE-HOLDERS the capital reduction for absorption of losses, in accordance with legally prescribed terms;
k) amendment, by any means, or transfer of control (as defined under article 116 of
BRAZILIAN CORPORATE LAW), direct or indirect, of the ISSUER, unless previously approved by holders of DEBENTURES that represent the majority of outstanding DEBENTURES;
l) non-compliance, by the ISSUER, within the periods stipulated, any provision
contained in Clause VI below; m) the existence of final and unappealable sentence concerning the practice of acts,
by the ISSUER, resulting in child labor, slave labor or crimes against the environment;
n) give destination to the funds raised in this ISSUANCE other than as specified in
item 5 of this Clause III; o) redemption or amortization of shares, as well as payment of dividends, except
the provisions of article 202 of the BRAZILIAN CORPORATE LAW, interest on own capital or any other profit sharing as statutorily provided, while in arrears before the DEBENTURE-HOLDERS;
p) approval of any merger, consolidation, spin-off, conversion or any other corporate
reorganization of the ISSUER, whether strictly corporate reorganization or that carried out by provision of relevant assets, unless such reorganization operation is approved by holders of DEBENTURES representing the majority of outstanding DEBENTURES;
q) purchase, by the ISSUER, of control or of significant interest in other companies,
"greenfield projects", "joint ventures" or consortia consisting of activities not complementary to the regular development of the corporate purpose of the ISSUER or of the corporate purpose of current companies controlled thereby, featuring relevant deviation of the corporate purpose of the ISSUER or of the corporate purpose of current companies controlled thereby, unless previously approved by holders of DEBENTURES that represent the majority of outstanding DEBENTURES;
r) default of any pecuniary obligation assumed before BNDES and the subsidiaries
thereof, by the ISSUER or an entity included in the Economic Group to which the ISSUER belongs, as per the definition of "Economic Group" provided for in the APPLICABLE PROVISIONS;
s) non fulfillment, by the ISSUER, of the obligation provided in item 18.1(m) of this
Clause (III), unless previously approved by holders of DEBENTURES that represent the majority of outstanding DEBENTURES;
14
t) graduation as Congressman or Senator of an individual who performs a paid
function in the ISSUER, or comprising, among the controllers or directors thereof, people included in the prohibitions prescribed by the Brazilian Constitution, article 54, items I and II,;
u) non fulfillment, by the ISSUER, of the obligation provided in item 18.1(s) of this
Clause III; v) non fulfillment, by the ISSUER, of the obligation provided in items 13.9 an 13.15
of this Clause III; and w) development of any new class of preferred share or development of any NEW
UNIT, as established in item 4.9.3 of Clause VI, below, unless, in either event, previously approved by holders of DEBENTURES that represent the majority of the outstanding DEBENTURES.
20.2. Should any of the events referred to in items above occur, the ISSUER and/or the FIDUCIARY AGENT shall convene, within 5 (five) business days of the date on which they take knowledge of the occurrence of any such events, a General Meeting of DEBENTURE-HOLDERS to resolve on the declaration for early maturity of the DEBENTURES, subject to the quorum specified in item 2.5 of Clause VIII below ("DEFAULT DECLARATION FOR EARLY MATURITY").
20.3. Should any event indicated in item 20.1 above occur, if the DEFAULT DECLARATION
FOR EARLY MATURITY is approved, the FIDUCIARY AGENT shall declare early matured all obligations arising from the DEBENTURES and require immediate payment by the ISSUER of any financial obligations assumed within the scope of ISSUANCE, including charges that may be levied upon until the date of the actual payment thereof.
20.4. Without prejudice to the provisions in item 20.2 above, the General Meeting of
DEBENTURE-HOLDERS which has purpose the resolution of early maturity may also be called by DEBENTURE-HOLDERS representing 10% (ten percent), at least, of the outstanding DEBENTURES.
20.5. In the event of (i) no enforcement and/or resolution, on second call notice, of the General
Meeting of DEBENTURE-HOLDERS due to lack of quorum; or (ii) in the event of suspension of work for resolution at a later date, the FIDUCIARY AGENT shall not declare the early maturity of the obligations arising from the DEBENTURES until the early maturity is approved by the DEBENTURE-HOLDERS, as applicable, (a) in a new General Meeting of DEBENTURE-HOLDERS, (b) on second call notice of the General Meeting of DEBENTURE-HOLDERS, or (c) by virtue of the completion of the General Meeting of DEBENTURE-HOLDERS in which works have been suspended.
21. PENALTIES
Without prejudice to the penalties set forth in Sections II and III of Chapter IX of the APPLICABLE PROVISIONS, in the event of collection or judicial execution, the ISSUER shall pay a fine of 10% (ten per cent) over the amount of debt related to DEBENTURES, including the principal and charges, without prejudice to the payment of extrajudicial and judicial expenses and attorney's fees, arising from the filing of the collection action or execution. 22. WAIVER OF RIGHTS
15
Waiver of any rights under this INDENTURE shall not be assumed. The allowance, expressed or implied, by the DEBENTURE-HOLDERS, with delay or with the failure to perform any obligation by the Issuer shall not implicate novation. 23. PUBLICITY All acts and relevant decisions relating exclusively to ISSUANCE which, nevertheless, are to involve, directly or indirectly, the DEBENTURE-HOLDERS interests, at the reasonable discretion of the ISSUER, shall be published under "Notice to the Debenture-holders" on its webpage and Valor Econômico, and, it being understood that, if the Issuer changes its disclosure newspaper after the DATE OF ISSUANCE, the Issuer shall send notification to the FIDUCIARY AGENT informing the new vehicle and publish on the newspaper previously used, Notice to the Debenture-holders informing the new vehicle. 24. IMMUNITY OR EXEMPTION OF THE DEBENTURE-HOLDERS In the event any DEBENTURE-HOLDER is entitled to any immunity or tax exemption, the DEBENTURE-HOLDER shall provide to the BOOKKEEPING AGENT, within at least 10 (ten) business days prior to the date estimated to receive the amounts related to the DEBENTURES, the supporting documentation of such immunity or tax exemption, under the penalty of discounting from its earnings the amounts due under the terms of applicable tax legislation.
CLAUSE IV – SPECIFIC ASPECTS OF THE FIRST SERIES DEBENTURES 1. MATURITY 1.1. The MATURITY DATE OF 1ST SERIES DEBENTURES is on June 15, 2020
(“MATURITY DATE OF 1ST SERIES DEBENTURES”). 2. SUBSCRIPTION AND PAYMENT PRICE 2.1. The 1ST SERIES DEBENTURES shall be subscribed and paid at their UNIT PAR
VALUE, in national currency. Whether the 1ST SERIE are subscribed DEBENTURES under the exercise of the PREEMPTIVE RIGHT or under the SINGLE APPORTIONMENT, they shall be paid up on June 23, 2014 (“PAYMENT DATE”).
2.2. The subscription of 1ST SERIES DEBENTURES shall be performed (i) according to the
procedures set forth by BM&FBOVESPA, if the Debentures are subscribed by virtue of the PREEMPTIVE RIGHT of SHARES held in custody by CBLC; or (ii) according to the procedures set forth by the BOOKKEEPING AGENT, in the other events.
3. UNIT PAR VALUE ADJUSTMENT
3.1. The UNIT PAR VALUE of the 1ST SERIES DEBENTURES shall be adjusted at the variation of the IPCA, as of the PAYMENT DATE, calculated pro rata temporis by business days (“ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE”). The UNIT PAR VALUE of the 1ST SERIES DEBENTURES shall be adjusted using the following formula:
where:
C VNe VNa
16
VNa = Adjusted Par Value calculated with six (06) decimal places without rounding;
VNe = Debenture’s par value of the issuance or par value balance (par value remaining after monetary restatement for each period, or payment of monetary restatement, if applicable), informed/calculated with six (06) decimal places without rounding;
C .............................
= accumulated factor of the monthly variations of the indexes used, calculated with eight (08) decimal places without rounding, as follows:
where: (n). = total number of indexes considered in the restatement of the
asset, where n is a whole number; NIK = value of the index-number of the month prior to the restatement
month, should the restatement is on a previous date or on the date of the anniversary of the asset. After the anniversary date, value of the index-number of the restatement month;
NIK-1
= Value of the index-number for the month prior to month “k”;
dup = number of business days between the last anniversary date and the calculation date, limited to the total number of business days of validity of the price index, where “dup” is a whole number;
dut = Number of business days between the last and the next anniversary date, where “dut” is a whole number.
The IPCA shall apply to the shortest period allowed by applicable laws, with no need of adjustment of the INDENTURE or any other formality. 3.1.2. The fifteenth (15th) day of every month is deemed an anniversary date and, in case such
date is not a business day, the first subsequent business day shall be deemed so, according to item 17 of Clause III above.
3.1.3. Month of restatement is the monthly period between two consecutive dates of anniversary
of the asset in question. 3.1.4. The resulting factor of the expression: / is considered with eight (8) decimal places, without
rounding. 3.1.5. The product is calculated based on the most recent factor, and the oldest ones are added
later. The intermediary results are calculated with sixteen (16) truncated decimal places, not rounded.
3.1.6. The amounts for weekends or holidays shall be equal to the value of the following business
day, adjusting the pro rata as from the last prior business days.
n
k
dut
dup
1k
k
NI
NIC
1
17
3.1.7. If, on the restatement month the index- number is not yet available, the last available variation of the price index in question shall be used.
3.1.8. In case of temporary unavailability of the IPCA upon the payment of any pecuniary
obligation set forth in the INDENTURE, the last index-number shall be used in substitution, as calculated proportionally to the business days, however, upon the disclosure of the index-number due, no financial compensation is due either by the ISSUER nor the DEBENTURE-HOLDERS.
3.1.9. In the absence of calculation and/or disclosure of the index number for more than one
hundred and eighty (180) days of the date expected for its disclosure or, also, in case of its cancellation or for legal imposition or judicial decision, the IPCA shall be replaced by the substitute legally determined therefor. In case there is no legal substitute for the IPCA, the FIDUCIARY AGENT shall call a General DEBENTURE-HOLDERS’ Meeting, to be held within no more than twenty-three (23) days of the end of the term of any of the events set forth in the item above, in which the DEBENTURE-HOLDERS representing most of the outstanding DEBENTURES shall define the parameter to be applied and that best preserves the real amount of the ISSUANCE and compensate it in the same preceding levels. Until the resolution of this parameter, the last disclosed index number shall be used for the calculation of the value of any obligations provided for in this INDENTURE.
3.1.10. In any event, if the IPCA is disclosed again, even if after such term of one hundred and
eighty (180) days, such index shall be automatically applied, again, for purposes of the calculation of the pecuniary obligation at stake, beginning on the date of its disclosure, retroactively to the anniversary date, as established in item 3.1.2. of this Clause IV, of the month immediately preceding its disclosure, and, therefore, the General DEBENTURE-HOLDERS’ Meeting to resolve on this matter shall be waived.
3.1.11. The ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE shall be paid in national
currency, according to the following formula, on PAYMENT DATE OF THE 1ST SERIES DEBENTURES, as established in item 5.1. of this Clause IV.
ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE = VNa - VNe
where:
VNa = Adjusted Par Value calculated with six (06) decimal places without
rounding; VNe = Debenture’s par value of the issuance or par value balance (par value
remaining after monetary restatement for each period, or payment of monetary restatement, if applicable), informed/calculated with six (06) decimal places without rounding;
4. COMPENSATORY INTERESTS 4.1. The 1ST SERIES DEBENTURES shall bear prefixed interests corresponding to seven
point twenty-five percent (7.25%) per year, based on two hundred and fifty-two (252) business days, levied on the UNIT PAR VALUE adjusted pursuant to item 3 of this Clause IV above, or “VNa”, as of the PAYMENT DATE, calculated on a capitalization basis composed as pro rata temporis per business days (“1ST SERIES COMPENSATORY INTERESTS”) and paid at the end of each Capitalization Period, at the PAYMENT DATE OF THE 1ST SERIES DEBENTURES as established in item 5.1. of this Clause IV.
The calculation of the interests shall respect the following formula:
18
where:
J = amount of interest due at the end of each Capitalization Period,
calculated with six (06) decimal places without rounding; VNa = Adjusted Par Value calculated with six (06) decimal places
without rounding; FatorJuros (InterestFactor)
= fixed interest factor calculated with nine (09) decimal places without rounding, as follows:
where:
It is defined:
Capitalization Period: time interval initiated on the PAYMENT DATE, in case of the first Capitalization Period, or on the estimated payment date of the interests immediately preceding, in case of other Capitalization Periods, and ended the estimated payment date of interests, corresponding to the period, pursuant to the PAYMENT DATE OF THE 1ST SERIES DEBENTURES, defined below. Each Capitalization Period succeeds the previous without interruption.
5. PAYMENT OF THE ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE AND THE 1ST
SERIES COMPENSATORY INTERESTS 5.1. The ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and the 1ST SERIES
COMPENSATORY INTERESTS shall be payable every six months, always on the fifteenth (15th) day of June and December of each year, provided that the first payment shall be payable on 06/15/2016 and the last payment, on the MATURITY DATE OF 1ST SERIES DEBENTURES, and also jointly with the early maturity, (under item 20.1. of Clause III above), with the settlement of the 1ST SERIES DEBENTURES (under item 7 of this Clause IV) on the EXERCISE DATE OF SUBSCRIPTION WARRANTS (as established on item 8 of Clause VI below), upon the payment of the 1ST SERIES DEBENTURES, subject to the provisions of item 8.2 of Clause VI below (“PAYMENT DATE OF THE 1ST SERIES DEBENTURES”).
5.2. Incidence of each installment of the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE
and of the 1ST SERIES COMPENSATORY INTERESTS shall be calculated from the day of payment of the prior installment (exclusive) until the day expected for its payment
1FatorJurosVNaJ
1
100
taxa FatorJuros
DT
DP
252
n
Taxa (rate)
= fixed interest rate, in the percentage per year form, informed with four (4) decimal places;
(n). = number of business days between the date of the next event and the date of the prior event, where "n" is a whole number;
DP = number of business days between the last event and the current date, where "DP" is a whole number;
DT = number of business days between the last and the next event, where "DT" is a whole number.
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(inclusive), subject to the provisions of item 17 of the Clause III above. Incidence of the first installment of the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and of the 1ST SERIES COMPENSATORY INTERESTS shall occur from the PAYMENT DATE until June 15, 2016.
5.3. Payment of the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and of the 1ST
SERIES COMPENSATORY INTERESTS, under this Clause IV, shall observe the table below:
Payment Date
First Payment 06/15/2016
Second Payment 12/15/2016
Third Payment 06/15/2017
Fourth Payment 12/15/2017
Fifth Payment 06/15/2018
Sixth Payment 12/15/2018
Seventh Payment 06/15/2019
Eighth Payment 12/15/2019
Ninth Payment 06/15/2020
5.4. There is no renegotiation scheduled for the 1ST SERIES DEBENTURES. 5.5. The ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and the 1ST SERIES
COMPENSATORY INTERESTS shall be paid in national currency and shall not be, in any event, deemed a part of the UNIT PAR VALUE, including in case of exercise of the rights granted by the SUBSCRIPTION WARRANTS.
6 AMORTIZATION OF THE DEBENTURES. 6.1. The UNIT PAR VALUE of the 1ST SERIES DEBENTURES shall not be repaid, being fully
settled under item 7.1 of this Clause IV.
7. SETTLEMENT OF DEBENTURES
7.1. The UNIT PAR VALUE of the 1ST SERIES DEBENTURES shall be settled, in national
currency, on the MATURITY DATE OF 1ST SERIES DEBENTURES, or in the early maturity, in any of the cases of item 20.1 of Clause III, or also to the DEBENTURE-HOLDERS that exercise the SUBSCRIPTION WARRANTS on the EXERCISE DATE OF SUBSCRIPTION WARRANTS, in this last case through payment of the UNIT PAR VALUE of the 1ST SERIES DEBENTURES under the terms set forth in item 8.2 of Clause VI of this INDENTURE.
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7.2. In all cases set forth in item 7.1 above, on same date of the settlement of the UNIT PAR VALUE of the 1ST SERIES DEBENTURES, the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and the 1ST SERIES COMPENSATORY INTERESTS applicable until such date shall be paid in national currency.
7.3. Additionally, exclusively in the case of exercise of the SUBSCRIPTION WARRANTS and
considering that the number of SHARES, LOT OF SHARES (as defined in item 4.1 of Clause VI below) or UNITS which the SUBSCRIPTION WARRANTS shall give the right to subscribe shall not be adjusted by the eventual payment of EARNINGS (as defined below), and the holder of the 1ST SERIES DEBENTURES that may exercise the rights granted by the SUBSCRIPTION WARRANTS, in the form set forth in item 8.2 of Clause VI of this INDENTURE, shall have the right to receive, in national currency, on the EXERCISE DATE OF SUBSCRIPTION WARRANTS (as defined in item 8.1 of Clause VI of this INDENTURE),together with the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and the 1ST SERIES COMPENSATORY INTERESTS applicable up to such date, any amounts, in goods or in national currency, as dividends, interests on its own capital, earnings or at any other title disclosed to the owners of SHARES, even if as a result of capital reduction or amortization or redemption of SHARES (“EARNINGS”), as of the PAYMENT DATE until the EXERCISE DATE OF SUBSCRIPTION WARRANTS, in a value equivalent to the SHARES purchased as a result of the exercise of the SUBSCRIPTION WARRANTS, taking, however, any deductions and retentions as collection of taxes incident to the payment of the EARNINGS into consideration.
CLAUSE V – ASPECTS OF THE SECOND SERIES DEBENTURES 1. MATURITY 1.1. The maturity of the 2ND SERIES DEBENTURES is on June 15, 2022 (“MATURITY DATE
OF 2ND SERIES DEBENTURES”). 2. SUBSCRIPTION AND PAYMENT PRICE 2.1. The 2ND SERIES DEBENTURES shall be subscribed and paid by its UNIT PAR VALUE,
in national currency. Either the 2ND SERIES Subscribed DEBENTURES in the sphere of the exercise of the PREEMPTIVE RIGHT or in the SINGLE SURPLUS APPORTIONMENT, they shall be paid on the PAYMENT DATE.
2.2. The subscription of the 2ND SERIES DEBENTURES shall be carried out (i) by means of
the procedures set forth by BM&FBOVESPA, in case the Debentures are subscribed as a result of the PREEMPTIVE RIGHT of SHARES held under custody of CBLC; or (ii) by means of the procedures set forth by the BOOKKEEPING AGENT, in the remaining cases.
3. RESTATEMENT OF THE UNIT PAR VALUE
3.1. The UNIT PAR VALUE of the 2ND SERIES DEBENTURES shall be adjusted by the variation of the IPCA as of the PAYMENT DATE, calculated pro rata temporis by business days (“ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE”). The UNIT PAR VALUE of the 2ND SERIES DEBENTURES shall be adjusted by the following formula:
C VNe VNa
21
where:
VNa = Adjusted Par Value calculated with six (06) decimal places without rounding;
VNe = Debenture’s par value of the issuance or par value balance (par value remaining after monetary restatement for each period, or payment of monetary restatement, if applicable), informed/calculated with six (06) decimal places without rounding;
C .............................
= accumulated factor of the monthly variations of the indexes used, calculated with eight (08) decimal places without rounding, as follows:
where: n. = total number of indexes considered in the restatement of the
asset, where n is a whole number; NIK = value of the index-number of the month prior to the restatement
month, should the restatement is on a previous date or on the date of the anniversary of the asset. After the anniversary date, value of the index-number of the restatement month;
NIK-1
= Value of the index-number for the month prior to month “k”;
dup = number of business days between the last anniversary date and the calculation date, limited to the total number of business days of validity of the price index, where “dup” is a whole number;
dut = Number of business days between the last and the next anniversary date, where “dut” is a whole number.
3.1.1. The IPCA shall apply to the shortest period allowed by applicable legislation, with no need of adjustment of the Indenture or any other formality.
3.1.2. The fifteenth (15th) day of every month is deemed an anniversary date and, in case such
date is not a business day, the first subsequent business day shall be deemed so, according to item 17 of Clause III above.
3.1.3. Month of restatement is the monthly period between two consecutive dates of anniversary
of the asset in question. 3.1.4. The resulting factor of the expression: / is considered with eight (8) decimal places, without
rounding. 3.1.5. The product is calculated based on the most recent factor, and the oldest ones are added
later. The intermediary results are calculated with sixteen (16) fragmented decimal places, not rounded.
3.1.6. The amounts for weekends or holidays shall be equal to the value of the following business
day, adjusting the pro rata as from the last prior business days.
n
k
dut
dup
1k
k
NI
NIC
1
22
3.1.7. If, on the restatement month the index- number is not yet available, the last available
variation of the price index in question shall be used. 3.1.8. In case of temporary unavailability of the IPCA upon the payment of any pecuniary
obligation set forth in the INDENTURE, the last index-number shall be used in substitution, as calculated proportionally to the business days, however, upon the disclosure of the index-number due, no financial compensation is due either by the ISSUER nor the DEBENTURE- HOLDERS.
3.1.9. In the absence of calculation and/or disclosure of the index number for more than one
hundred and eighty (180) days after the date expected for its disclosure, or, also, in case of its cancellation or for legal imposition or judicial decision, the IPCA shall be replaced by the substitute legally determined therefor. In case there is no legal substitute for the IPCA, the FIDUCIARY AGENT shall call a General DEBENTURE-HOLDERS’ Meeting, to be held within no more than twenty-three (23) days of the end of the term of any of the events set forth in the preceding item, in which the DEBENTURE-HOLDERS representing most of the outstanding DEBENTURES shall define the parameter to be applied and that best preserves the real amount of the ISSUANCE and reimburse it in the same preceding levels. Until resolution of this parameter, the index number last disclosed for the calculation of value of any obligations provided in this INDENTURE shall be used.
3.1.10. In any event, if the IPCA is disclosed again, even after such term of one hundred and
eighty (180) days, such index shall be automatically applied again for purposes of calculation of the pecuniary obligation at stake, beginning on the date of its disclosure, retroactively to the anniversary date, as established in item 3.1.2. of this Clause IV, of the month immediately preceding its disclosure, and, therefore, the General DEBENTURE-HOLDERS’ Meeting to resolve on this matter shall be waived.
3.1.11. The ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE shall be paid in national currency, pursuant to the formula below, in the PAYMENT DATE OF THE 2ND SERIES DEBENTURES, as established in item 5.1 of this Clause V.
ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE = VNa - VNe
where:
VNa = Adjusted Par Value calculated with six (06) decimal places without
rounding; VNe = Debenture’s par value of the issuance or par value balance (par value
remaining after monetary restatement for each period, or payment of monetary restatement, if applicable), informed/calculated with six (06) decimal places without rounding;
4. COMPENSATORY INTERESTS 4.1. The 2ND SERIES DEBENTURES shall generate pre-fixed interests corresponding to two
point fifty percent (2.50%) per annum, base two hundred and fifty-two (252) business days, levied on the UNIT PAR VALUE updated pursuant to item 3 of this Clause V above, or “VNa”, as of the PAYMENT DATE, calculated in a capitalization basis composed in a pro rata temporis form for business days (“2ND SERIES COMPENSATORY INTERESTS") and paid at the end of each Capitalization Period, on the PAYMENT DATE OF THE 2ND SERIES DEBENTURES, as established in item 5.1 of this Clause V.
The calculation of the interests shall follow the formula below:
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where:
J = amount of interest due at the end of each Capitalization Period,
calculated with six (06) decimal places without rounding; VNa = Adjusted Par Value calculated with six (06) decimal places
without rounding; FatorJuros (InterestFactor)
= fixed interest factor calculated with nine (09) decimal places without rounding, as follows:
where:
Definition:
Capitalization Period: time interval starting on the PAYMENT DATE, in the case of the first Capitalization Period, or on the estimated payment date of the immediately preceding interests, in the case of the other Capitalization Periods, and ends on the estimated payment date of the interests corresponding to the period, pursuant to the PAYMENT DATE OF THE 2ND SERIES DEBENTURES defined below. Each Capitalization Period succeeds the previous one without interruption.
5. PAYMENT OF THE ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE AND THE 2ND
SERIES COMPENSATORY INTERESTS 5.1. The ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE and the 2ND SERIES
COMPENSATORY INTERESTS shall be payable every six months, always on the fifteenth (15th) day of the months of June and December of each year, and the first payment shall be payable on June 15, 2016 and the last payment on the MATURITY DATE OF 2ND SERIES DEBENTURES, and also together with the early maturity, under item 20.1. of Clause III above and with the liquidation of the 2ND SERIES DEBENTURES, under item 7 of this Clause V (“PAYMENT DATE OF THE 2ND SERIES DEBENTURES”).
5.2. Incidence of each installment of the ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE
and of the 2ND SERIES COMPENSATORY INTERESTS shall be calculated from the day of payment of the prior installment (exclusive) until the day expected for its payment (inclusive), subject to the provisions of item 17 of Clause III above. Incidence of the first installment of the ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE and of the 2ND
1FatorJurosVNaJ
1
100
taxa FatorJuros
DT
DP
252
n
Taxa (rate)
= fixed interest rate, in the percentage per year form, informed with four (04) decimal places;
n = number of business days between the date of the next event and the date of the prior event, where "n" is a whole number;
DP = number of business days between the last event and the current date, where "DP" is a whole number;
DT = number of business days between the last and the next event, where "DT" is a whole number.
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SERIES COMPENSATORY INTERESTS shall occur from the PAYMENT DATE until June 15, 2016.
5.3. Payment of the ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE and of the 2ND
SERIES COMPENSATORY INTERESTS, under this Clause V, shall observe the table below:
Payment date
First payment 06/15/2016
Second payment 12/15/2016
Third payment 06/15/2017
Fourth payment 12/15/2017
Fifth payment 06/15/2018
Sixth payment 12/15/2018
Seventh payment 06/15/2019
Eighth payment 12/15/2019
Ninth payment 06/15/2020
Tenth payment 12/15/2020
ELEVENTH PAYMENT 06/15/2021
TWELFTH PAYMENT 12/15/2021
THIRTEENTH PAYMENT 06/15/2022
5.4. There is no renegotiation scheduled for the 2ND SERIES DEBENTURES. 5.5. The ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE and the 2ND SERIES
COMPENSATORY INTERESTS shall be paid in national currency and shall not be, in any event, deemed a part of the UNIT PAR VALUE.
6.1. The UNIT PAR VALUE of the 2ND SERIES DEBENTURES shall be repaid in thirteen (13)
half-year and consecutive installments, each with a value equivalent to the UNIT PAR VALUE balance of each 2ND SERIES DEBENTURE divided by the number of amortization installments yet to expire, according to the table below, and the first installment shall be due to June 15, 2016, subject to the provisions of item 17 of Clause III above, and the ISSUER undertakes to settle, upon the last installment, on the MATURITY DATE OF 2ND SERIES DEBENTURES, all obligations related to the 2ND SERIES DEBENTURES:
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Payment date
First Amortization 06/15/2016
Second Amortization 12/15/2016
Third Amortization 06/15/2017
Fourth Amortization 12/15/2017
Fifth Amortization 06/15/2018
Sixth Amortization 12/15/2018
Seventh Amortization 06/15/2019
Eighth Amortization 12/15/2019
Ninth Amortization 06/15/2020
Tenth Amortization 12/15/2020
Eleventh Amortization 06/15/2021
Twelfth Amortization 12/15/2021
Thirteenth Amortization 06/15/2022
7. SETTLEMENT OF DEBENTURES
7.1. On the MATURITY DATE OF 2ND SERIES DEBENTURES, or on the early maturity, in any of
the cases of item 20.1 of Clause III above, the ISSUER shall proceed to the total settlement of the 2ND SERIES DEBENTURES at its UNIT PAR VALUE balance plus the balance of the ADJUSTMENT OF 2ND SERIES UNIT PAR VALUE and the 2ND SERIES COMPENSATORY INTERESTS levied up to such date under this Clause V.
CLAUSE VI - SUBSCRIPTION WARRANTS
1. NUMBER One (1) SUBSCRIPTION WARRANTS shall be issued for the joint subscription of one (1) 1ST SERIES DEBENTURE and one (1) 2ND SERIES DEBENTURE, pursuant to the provisions in item 3 of Clause III of this INDENTURE, amounting to, accordingly, the issuance of twenty-seven million, seven hundred and seventy-seven thousand and five hundred (27,777,500) SUBSCRIPTION WARRANTS. 2. ISSUANCE VALUE No value shall be attributed to the issuance of the SUBSCRIPTION WARRANTS, as the SUBSCRIPTION WARRANTS shall be attributed as an additional advantage to the subscribers of the ISSUANCE. 3. SERIES The SUBSCRIPTION WARRANTS shall be issued in an only series. 4. EXERCISE PRICE AND NUMBER OF SHARES TO BE SUBSCRIBED 4.1. The exercise price of the SUBSCRIPTION WARRANTS shall be of fourteen Reais and
forty centavos (R$14,40) (the “EXERCISE PRICE”) for one (1) lot of shares issued by the COMPANY, composed of one (1) common share and four (4) preferred shares issued by it (“LOT OF SHARES”) (equivalent to two Reais and eighty-eight centavos (R$2,88) per
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common or preferred share), and the LOTS OF SHARES shall be automatically submitted as UNITS, under articles 6 to 12 of the ISSUER bylaws. The price per share has been ascertained based on the average of closing quotations of issuance of the ISSUER on the twenty-one (21) last trading sessions at BM&FBOVESPA preceding 01/03/2014 (11/29/2013 to 01/02/2014), plus a premium of twenty percent (20%).
4.2. As set forth in item 4.1 above, each SUBSCRIPTION WARRANTS shall grant to its
owner, at its sole discretion and at any time until the MATURITY OF THE SUBSCRIPTION WARRANTS (as defined in item 9 of this Clause VI below), the right to subscribe one (1) LOT OF SHARES, which shall be exclusively delivered in the form of one (1) UNIT, pursuant to the procedures described in item 8 below.
4.3. Except as provided for in items 4.4, 4.6, 4.7, 4.8, 4.9, and 4.10 below, a number of
SHARES, LOT OF SHARES or UNITS which the SUBSCRIPTION WARRANTS shall give right to subscribe shall be fixed and non-adjustable, irrespectively of any adjustment or compensation provided for in this INDENTURE, SHARE or UNIT price, payment of EARNINGS, or any other act or fact related to the ISSUER.
4.4. The EXERCISE PRICE and, consequently, a number of SHARES, LOT OF SHARES and
UNITS arising from the exercise of the SUBSCRIPTION WARRANTS shall be simultaneous on proportionally adjusted whenever there is a bonus, splitting or grouping of SHARES, at any title, that may occur as of the DATE OF ISSUANCE, without any burden for the holders of the SUBSCRIPTION WARRANTS and proportionally to such events. Thus, (i) in case of grouping of SHARES, the EXERCISE PRICE shall be multiplied by the same ratio regarding the grouping of SHARES; and (ii) in case of splitting of SHARES or bonus, the EXERCISE PRICE shall be divided by the same ratio regarding the splitting of SHARES or by the same ratio used for bonus.
4.5. The SHARES and UNITS resulting from the exercise of the right granted by the
SUBSCRIPTION WARRANTS: (i) shall have the same characteristics and conditions and shall enjoy the same rights and advantages statutorily attributed currently and in the future to the preferred and common shares issued by the COMPANY and to the UNITS currently existing; and (ii) shall participate completely on the distribution of the results, which resolution occurs as of the date of the EXERCISE NOTICE (as established in item 8.1 of Clause VI below), including dividends and interest on its own capital.
4.6. Until the SUBSCRIPTION WARRANTS MATURITY (as defined in item 9 of this Clause VI
below), if the General Meeting or Board of Directors of the ISSUER decide to issue debentures convertible into SHARES (“NEW ISSUANCE”) to public or private subscription, which conversion price is below the EXERCISE PRICE, each holder of the SUBSCRIPTION WARRANTS shall have, at its sole discretion and at any time, the right to exercise the subscription rights resulting from the SUBSCRIPTION WARRANTS (individually or jointly) at the same conversion price of the NEW ISSUANCE (“ANTI-DILUTIVE EXERCISE PRICE”).
4.7. Until the SUBSCRIPTION WARRANTS MATURITY (as defined in item 9 in this Clause VI
below), if the General Meeting or the Board of Directors of the ISSUER decide to issue new subscription warrants (“NEW ISSUANCE”) to public or private subscription, which exercise price is below the EXERCISE PRICE, each holder of the SUBSCRIPTION WARRANTS shall have, at its sole discretion and at any time, the right to exercise the subscription rights resulting from the SUBSCRIPTION WARRANTS (individually or jointly) at the same exercise price of the NEW ISSUANCE (“ANTI-DILUTIVE EXERCISE PRICE”).
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4.8. Until the SUBSCRIPTION WARRANTS MATURITY (as defined in item 9 of this Clause VI below), if the General Meeting or the Board of Directors of the ISSUER decide to issue new SHARES (“NEW ISSUANCE”) to public or private subscription, including capital increases as a result of corporate reorganizations (mergers and incorporations), which issuance price is below the EXERCISE PRICE, each holder of the SUBSCRIPTION WARRANTS shall have, at its sole discretion and at any time, the right to exercise the subscription rights resulting from the SUBSCRIPTION WARRANTS (individually or jointly) at the same issuance price of the NEW ISSUANCE (“ANTI-DILUTIVE EXERCISE PRICE”).
4.9. In any of the cases of NEW ISSUANCE provided for in items 4.6, 4.7 and 4.8 above, in
case the security under the NEW ISSUANCE has a different composition than the composition of the UNITS currently provided for in article 8, paragraph two, of the ISSUER bylaws, each one composed by one (1) common share and four (4) preferred shares, the determination of the ANTI-DILUTIVE EXERCISE PRICE shall respect the following criteria:
4.9.1 In case they are the object of the same NEW ISSUANCE of common shares
and preferred shares with different and individual issuance prices, the ANTI-DILUTIVE EXERCISE PRICE shall correspond to one (1) time the unit price per common share object of the NEW ISSUANCE plus four (4) times the unit price per preferred share object of the same NEW ISSUANCE, pursuant to the formula below:
PEAD = Pord + 4xPpref Where: PEAD – ANTI-DILUTIVE EXERCISE PRICE Pord – Unit price per common share object of NEW ISSUANCE Ppref – Unit price per preferred share object of NEW ISSUANCE
4.9.2 In case they are subject to a NEW ISSUANCE of only common shares or only preferred shares, the ANTI-DILUTIVE EXERCISE PRICE shall correspond to five (5) times the unit price per share subject to the NEW ISSUANCE;
4.9.3 In case the following are subject to the NEW ISSUANCE, (i) share deposit
certificates with a composition different from the composition of the UNIT (“NEW UNIT”); (II) securities convertible into NEW UNIT(S) or in LOTS OF SHARES with a composition different from the composition of the UNIT (“NEW LOT OF SHARES”) or, still, (iii) securities that grant the right to subscription of NEW UNIT(S) or NEW LOT(S) OF SHARES; the ANTI-DILUTIVE EXERCISE PRICE shall correspond to five (5) times the result of the division of the unit value of the NEW UNIT or, as applicable, of the NEW LOT OF SHARES, by the number of shares, common or preferred, that integrate it, pursuant to the formula below:
PEAD = 5x[Pnunit/Qshares] Where: PEAD – ANTI-DILUTIVE EXERCISE PRICE Pnunit – Unit price per NEW UNIT or NEW LOT OF SHARES Qshares – Number of SHARES, preferred and/or common, that are part of the NEW UNIT
or the NEW LOT OF SHARES
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4.10. Additionally, each holder of SUBSCRIPTION WARRANTS shall have, during the term if one hundred and eighty (180) days of the Payment date, the right to exercise the subscription rights arising from the SUBSCRIPTION WARRANTS at the same (i) issuance price established for any NEW ISSUANCE of SHARES by the ISSUER; (ii) conversion price established for any NEW ISSUANCE of convertible debentures; or (iii) exercise price of NEW ISSUANCE of subscription warrants; which has(have) occurred or may occur within 90 days after April 15, 2014.
5. TIME TO EXERCISE THE SUBSCRIPTION WARRANTS The SUBSCRIPTION WARRANTS may be exercised beginning on the PAYMENT DATE until the date of MATURITY OF THE SUBSCRIPTION WARRANTS, at their holder’s sole discretion. 6. FORM The SUBSCRIPTION WARRANTS shall be in the book-entry form, and subject to the provisions of item 9 of Clause III. 7. DATE OF ISSUANCE The SUBSCRIPTION WARRANTS are issued on April 22, 2014. 8. SUBSCRIPTION AND PAYMENT 8.1. The holders of the SUBSCRIPTION WARRANTS may choose the exercise of their
SUBSCRIPTION WARRANTS until the date of MATURITY OF THE SUBSCRIPTION WARRANTS, except in days of General Meeting of the Shareholders of the ISSUER and shall express their intention through an exercise notice to be effected in writing to the ISSUER (“EXERCISE NOTICE”), which shall forward the notification through letter filed with the FIDUCIARY AGENT in the next business day. For all legal effects, the DATE OF EXERCISE shall be the fifth business day of the receipt of the EXERCISE NOTICE by the ISSUER (“EXERCISE DATE OF SUBSCRIPTION WARRANTS”).
8.2 Payment in full of the LOT OF SHARES resulting from the exercise of each
SUBSCRIPTION WARRANTS shall only be made upon payment of one (1) 1ST SERIES DEBENTURE to each SUBSCRIPTION WARRANTS exercised.
8.3 At the EXERCISE DATE OF SUBSCRIPTION WARRANTS, BM&FBOVESPA and/or the
BOOKKEEPING AGENT, as applicable, shall deposit, on the respective account of the holder of the SUBSCRIPTION WARRANTS exercised, the amount of UNITS that shall be formed with the LOTS OF SHARES corresponding to the amount of SUBSCRIPTION WARRANTS exercised, pursuant to its operating procedures. Any expenses related to the deposit shall be paid by the ISSUER. The taxes related to the deposit shall be paid by the respective taxpayer.
8.4. In case there are fractions of LOTS OF SHARES resulting from the exercise of the
SUBSCRIPTION WARRANTS carried out based on the items above, the amount corresponding to such fractions shall be paid in national currency, at the EXERCISE DATE OF SUBSCRIPTION WARRANTS.
8.5. At the EXERCISE DATE OF SUBSCRIPTION WARRANTS, the ISSUER shall make, to
those who have exercised the SUBSCRIPTION WARRANTS, the pro rata temporis payment of the ADJUSTMENT OF 1ST SERIES UNIT PAR VALUE and of the 1st SERIES COMPENSATORY INTERESTS payable under items 3 and 4 of Clause IV above, until the EXERCISE DATE OF SUBSCRIPTION WARRANTS, so that there are no pecuniary
29
obligations overdue and not paid before the holder of the 1st SERIES DEBENTURE submitted as payment, and everything is in compliance with item 5.1 of Clause IV of this Indenture.
8.6. The increase in the capital of the ISSUER arising from the exercise of SUBSCRIPTION
WARRANTS, pursuant to the form established in item III of article 166 of the BRAZILIAN CORPORATE LAW and in the ISSUER bylaws, shall be approved in a meeting of its Board of Directors and filed by the ISSUER with the applicable Commercial Registry within the term of 30 days after its effectiveness, and its respective receipts shall be forwarded to the FIDUCIARY AGENT until the end of such term.
8.7. On the EXERCISE DATE OF SUBSCRIPTION WARRANTS, the UNITS shall be made
available to the holders of SUBSCRIPTION WARRANTS that have exercised them under item 8.3 above. The FIDUCIARY AGENT and the ISSUER are hereby required to take all necessary measures to the communication and formalization of the exercise of the SUBSCRIPTION WARRANTS under this INDENTURE. (It being understood that the FIDUCIARY AGENT shall be responsible for the performance of the legal and regulatory obligations attributed thereto.)
9. MATURITY Subject to its terms and conditions, the SUBSCRIPTION WARRANTS shall be valid until the MATURITY DATE OF 1ST SERIES DEBENTURES or the early maturity in any of the hypotheses of item 20.1 of Clause III (“SUBSCRIPTION WARRANTS MATURITY”). 10. TRADING The SUBSCRIPTION WARRANTS issued herein by the ISSUER may not be traded separately from the 1ST SERIES DEBENTURES and vice-versa, as, under item 8.2 of this Clause VI, the payment of the shares arising from the exercise of the SUBSCRIPTION WARRANTS may only be made through payment of one (1) 1ST SERIES DEBENTURE.CLAUSE VII - FIDUCIARY AGENT 1. APPOINTMENT The ISSUER constitutes and appoints as FIDUCIARY AGENT of this ISSUANCE the PENTÁGONO S.A. DISTRIBUIDORA DE TÍTULOS E VALORES MOBILIÁRIOS, qualified on preamble of this INDENTURE hereby and pursuant to the best law, accepts the appointment for, pursuant to law and to this Indenture, to declare the sharing of the Debenture-holders, stating that:
a) there is not, under penalties of law, any legal restraint, pursuant to paragraph 3 of the article 66 of BRAZILIAN CORPORATE LAW, in CVM Instruction No 28, of November 23, 1983, as amended, or in the event of change, the rules which may substitute them, in order to perform the duty in which is granted;
b) accepts its granted duty, fully assuming the established duties and attributions set
forth on the specific legislation and in this INDENTURE; c) acknowledges the applicable regulation issued by Brazilian Central Bank, CVM
and other proper authorities; d) was verified the veracity of the information contained in this INDENTURE,
procured to cure to the omissions, faults and defects as acknowledged; e) fully accepts this INDENTURE and all its terms and conditions;
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f) is a financial institution, being duly constituted, organized and existing pursuant to the Brazilian laws;
g) is duly authorized to execute this INDENTURE and to comply with its obligations
set forth herein, being satisfied all required legal requirements and statutory therefore;
j) the execution of this INDENTURE and the performance of its obligations set forth
herein do not violate any of the obligations previously undertaken by the FIDUCIARY AGENT;
k) this INDENTURE constitutes of valid and effective FIDUCIARY AGENT's obligation, being enforceable pursuant to its terms;
l) on the date of execution of this INDENTURE, pursuant to the organizational chart forwarded by the ISSUER, the FIDUCIARY AGENT identified that it provides services of FIDUCIARY AGENT in the sixth (6th) issuance of subordinated debentures mandatorily convertible into shares for private subscription by the ISSUER (“6TH Issuance by the ISSUER”), with maturity on January 8, 2019, in which twenty-seven thousand and two hundred (27,200) debentures were issued on the DATE OF ISSUANCE in the amount of one billion, seven hundred million Reais (R$1,700,000,000.00). No anticipated event of redemption, amortization conversion, renegotiation and/or default was verified until this date. On the date of issuance, the debentures of the 6th Issuance by the ISSUER do not have guarantees, as provided for in the indenture of issuance.
2. TERM OF OFFICE The FIDUCIARY AGENT will initiate the exercise of his duties on the date of the present INDENTURE or any amendment concerning the replacement, and must remain in the exercise of their duties until the actual replacement or full settlement of its obligations under this INDENTURE. 3 REPLACEMENT. 3.1. In the events of absence, temporary restraints, resignation, intervention, judicial or
extrajudicial settlement, bankruptcy or any other occurrence of vacancy, a General DEBENTURE-HOLDERS’ Meeting shall be held within the maximum term of thirty (30) days of the event that determines it in order to choose the new FIDUCIARY AGENT, which may be called by the FIDUCIARY AGENT itself, to be replaced by the ISSUER or by the DEBENTURE-HOLDERS representing at least 10% (ten percent) of the outstanding DEBENTURES. If the call notice does not occur within fifteen (15) days before the end of the abovementioned term, the ISSUER shall be responsible for delivering it, within a fifteen (15)-day term for the first call notice and a eight (8)-day term for the second call notice, it being understood that the ISSUER may appoint a temporary alternate while the process of choosing the new FIDUCIARY AGENT is not consummated.
3.2. In the event the FIDUCIARY AGENT will not be able to continue performing his duties by
supervening circumstances of this INDENTURE, shall immediately report the fact to DEBENTURE HOLDERS, requesting his replacement.
3.3. It is made available to DEBENTURE-HOLDERS, after the closing date for the distribution
of the DEBENTUREs, to proceed with the replacement of the FIDUCIARY AGENT, and the appointment of his substitute, in a meeting of each one of the series specifically convened for this purpose.
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3.4. The replacement of the FIDUCIARY AGENT shall be subject to an amendment to this
INDENTURE, which must be filed at JUCESP 3.5. In any replacement event, the compensation of the new FIDUCIARY AGENT shall comply
with the limits established in item 7.1 below. 4. DUTIES In addition to other duties set forth by law, are duties and assignments of the FIDUCIARY AGENT:
a) to protect the rights and interests of the DEBENTURE-HOLDERS, employing, in exercising of the function, the care and diligence that any active and trustworthy man uses in managing his own property;
b) to resign to the function, in the event of occurrence of conflicts of interest or any other
type of disability; c) keep carefully every bookkeeping, correspondence and other documents related to the
exercise of its functions; d) verify, when accepting the duties, the accuracy of the information included in this
INDENTURE, and undertake all measures to resolve omissions, failures or defects detected;
e) to promote, with the competent bodies, in case the ISSUER does not do so, the
registration of the amendments to this INDENTURE, curing any gaps and irregularities possibly existing therein. In this case, the registry officer shall notify the ISSUER management to receive the guidance and documents required without prejudice to the occurrence of failure by the ISSUER to perform its non-monetary obligation.
f) to monitor the observance of the periodicity in the provision of mandatory information,
alerting the DEBENTURE-HOLDERS about eventual omissions and untruths of such known information;
g) to request, when deemed necessary for the faithful performance of their duties, the
civil distributors updated certificates, of the Public Treasury, protest notaries, Boards of Conciliation and Judgment, Prosecutor of the Treasury, where is located the headquarter of the ISSUER;
h) to call, when necessary, the General DEBENTURE-HOLDERS’ Meeting through
an announcement published at least three (3) times in the press bodies set forth in item 22 of Clause III above;
j) attend to the DEBENTURE-HOLDERS’ general meeting in order to provide the
information requested; j) to prepare an annual report intended to the DEBENTURE-HOLDERS, under
Article 68, Paragraph 1, item “b” of the BRAZILIAN CORPORATE LAW. For preparation of such report, the ISSUER undertakes to send the organizational chart of its corporate group, which shall include, among other things, the controlling shareholders, subsidiaries, companies under common control, affiliates, and companies which are members of the Issuer’s controlling group, as
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applicable, in the closure of each fiscal year, all corporate acts, financial data and other information and/or documents required for preparation of the report that may be reasonably requested by the FIDUCIARY AGENT, which shall be duly forwarded by the ISSUER until the maximum term of thirty (30) days before the end of the term for providing the report. The report shall include, at least, the information below:
a) possible omission or known untruth, included in the information disclosed by the ISSUER or, also, default or delay on the mandatory disclosure of information by the ISSUER;
(b) statutory changes occurred during the period;
(c) comments about the financial statements of the ISSUER, focusing on the economic and financial indicators and the capital structure of the ISSUER;
d) position of the distribution or placement of DEBENTURES in the market;
(e) amortization of the UNIT PAR VALUE of the 2ND SERIES DEBENTURES, payment and renegotiation, as the case may be, of the COMPENSATORY INTERESTS of the DEBENTURES during the period, as well as acquisitions and sales of DEBENTURES by the ISSUER;
f) monitoring of the allocation of proceeds collected through ISSUANCE, according to the information obtained with the managers of the ISSUER;
(g) list of the properties and amounts delivered to its management;
(h) fulfillment of other obligations undertaken by the ISSUER in this INDENTURE; and
(i) a statement about his competence to continue serving as a FIDUCIARY AGENT.
k) to deliver the report mentioned in item "j" above to Debenture-Holders not later than 4
(four) months from the close of the fiscal year of the Issuer, and for a period of at least 3 (three) months, at least in following locations:
(i) at the offices of the ISSUER, and (ii) in his office, although it is available on the website of the FIDUCIARY
AGENT.
J) to exercise all rights and prerogatives available to DEBENTURE-HOLDERS and the FIDUCIARY AGENT set forth in this INDENTURE and the documents attached thereto, unless such rights and privileges are waived in the DEBENTURE-HOLDERS’ general meeting of both series convened for this purpose, in that DEBENTURE-HOLDERS represent all of the outstanding DEBENTURES, including, without limitation, sending and forwarding all notices and communications set forth there;
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m) to keep the list of the DEBENTURE-HOLDERS and their addresses updated, upon, among other things, managements with the ISSUER and the BOOKKEEPING AGENT, provided that, for purposes of compliance with the provisions in this item, the ISSUER and the DEBENTURE-HOLDERS, as soon as they subscribe for, pay-up or acquire the DEBENTURES, hereby expressly authorize the BOOKKEEPING AGENT to disclose, at any time, the position of the DEBENTURES, as well as the list of the DEBENTURE-HOLDERS;
n) to monitor compliance with the clauses of this INDENTURE, and o) To notify the DEBENTURE-HOLDERS, individually if possible, within sixty (60) days of
any default by the Issuer, the obligations undertaken in this INDENTURE, indicating the place in which will provide further information interested.
If that is not possible, the FIDUCIARY AGENT shall notify the DEBENTURE-HOLDERS through Notice to the Debenture-holders to be published in the newspapers set forth in item 22 of Clause III above;
p) to inform to the DEBENTURE-HOLDERS the calculation of the EXERCISE
PRICE adjusted in compliance with items 4.3 through 4.10 of Clause VI above immediately after the occurrence of the events provided for in such items; and
q) to make the par value of the DEBENTURES available, as calculated by the
ISSUER, providing it to the DEBENTURE-HOLDERS and to the others participating in the market, through its call center and/or its website.
5. SPECIFIC DUTIES 5.1 Subject to the provisions of item 5.2 below, the FIDUCIARY AGENT will use any judicial
or extrajudicial proceedings against the ISSUER, to protect and defend the interests of the communion of the DEBENTURE-HOLDERS and the realization of their claims, having to, in the event of default of the ISSUER:
a) to declare under the terms of this INDENTURE, early maturity of the DEBENTURES,
and charge its principal and accessories, and b) to take any measure required for realization of the credits of the DEBENTURE-
HOLDERS, under this INDENTURE. 5.2 Any judicial or extrajudicial measure to be taken by the FIDUCIARY AGENT against the
ISSUER, under item 5.1 above, will depend on the prior approval of the DEBENTURE-HOLDERS in a General Meeting especially called for this purpose.
6. LIABILITY 6.1. The FIDUCIARY AGENT shall only be exempted from the responsibility for not adopting the
measures contemplated in items “a” and “b” of item 5.1 above, pursuant to the provisions in item 5.2 above, if, upon the General DEBENTURE-HOLDERS’ Meeting is called, it so authorized by resolution of DEBENTURE-HOLDERS representing all outstanding DEBENTURES.
6.2. The FIDUCIARY AGENT shall not issue any type of opinion or make any judgment about
the orientation on any fact of the issuance that is able to be defined by the DEBENTURE-HOLDERS, and the FIDUCIARY AGENT undertakes to only act in compliance with instructions conveyed by the DEBENTURE-HOLDERS. In this regard, the FIDUCIARY AGENT does not have any responsibility for the result or for the legal effects resulting from
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the strict compliance with DEBENTURE-HOLDERS guidelines conveyed to the FIDUCIARY AGENT as defined by the DEBENTURE-HOLDERS and rendered before the ISSUER, regardless of any losses that the DEBENTURE-HOLDERS or the ISSUER may incur as a result of such compliance. The FIDUCIARY AGENT acts within the scope of CVM Instruction No. 28, as amended, and of the applicable articles of the BRAZILIAN CORPORATE LAW, being exempted, under any form or pretext, from any additional responsibility that did not result from the applicable law.
6.3. Without prejudice to the duty of diligence of the FIDUCIARY AGENT, it shall represent that
the original documents or certified copies of documents forwarded by the ISSUER or third parties at its request were not subject to fraud or forgery. The FIDUCIARY AGENT shall not be, in any case, responsible for the preparation of corporate documents of the ISSUER, and the preparation of such documents remains as a legal and regulatory obligation of the ISSUER, in the terms of the applicable law.
6.4. The acts or manifestations by the FIDUCIARY AGENT that create responsibility for the
DEBENTURE-HOLDERS and/or hold third parties harmless from obligations to them, as well as those related to the proper performance of the obligations undertaken herein shall only be effective when so previously resolved by the DEBENTURE-HOLDERS in the General Meeting.
7. COMPENSATION OF THE FIDUCIARY AGENT 7.1. Shall be payable by the ISSUER to the FIDUCIARY AGENT, or an institution that may
replace him in this capacity, under item 3.5 above, for fees for the performance of the duties and responsibilities incumbent on it, pursuant to the law and this INDENTURE, a remuneration to be paid as follows
a) annual installments of eighteen thousand Reais (R$18,000.00) each, and the first
installment is due on the fifth (5th) business day after the execution of this INDENTURE and the remaining ones on the same date of the subsequent years;
b) The compensation shall be payable even after maturity of the DEBENTURES in
case the FIDUCIARY AGENT is still working on the collection of defaults not remedied by the ISSUER and provided that such payment is not made together with such annual installment;
c) In case of default in the payment of any amount payable as a result of this
compensation, the overdue debts shall be subject to contractual default interest of two percent (2%) on the outstanding debt, as well as default interest of one percent (1%) per month, being the outstanding debt overdue subject to monetary restatement by the IGP-M/FGV, applicable from the date of default to the date of the actual payment, calculated pro rata die;
Such installments will be annually adjusted by the accumulated variation of the IGP-
M/FGV, or in its absence, by the official index that may replace it, as from the date of execution of the INDENTURE to the dates of payment of each installment, calculated on a pro-rata die basis.
e) The installments shall be plus (i) Taxes Over Services of any Nature (ISS); (ii)
Social Integration Program (PIS); (iii) Social Security Financing Contribution (COFINS); and (iv) any other taxes that may be levied on the compensation of the FIDUCIARY AGENT, except for the income taxes (IR) and social contribution on net profits (CSLL), at the rates effective on the dates of each payment.
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8. EXPENSES. 8.1. The ISSUER shall indemnify the FIDUCIARY AGENT for all expenses he has incurred
reasonable and proven to protect the rights and interests of the DEBENTURE-HOLDERS or to make their claims.
8.2. The costs referred to in this item will consist, including the following:
a) disclosure of reports, notices and communications, as set forth in this INDENTURE, and other requested by the applicable regulations;
b) travel expenses, lodging, transportation and food, when acting as FIDUCIARY
AGENT; c) extraction of certificates, when acting as FIDUCIARY AGENT; and d) in the event of any additional or specific surveys and expertise which are
indispensable, if there are omissions and/or ambiguities in the information pertinent to the strict interests of the DEBENTURE-HOLDERS;.
8.3. The reimbursement, referred to in this item, shall be made within the term of ten (10)
business days of delivery to the ISSUER of a copy of the documents supporting the expenses reasonably and effectively made and required for the protection of the rights of the holders of the DEBENTURES.
8.4. The FIDUCIARY AGENT may, in case of default by the ISSUER in the payment of the
expenses referred to in the items above for a period longer than thirty (30) days, request to the DEBENTURE-HOLDERS an advance to the payment of reasonable expenses with legal, judicial or administrative procedures that the FIDUCIARY AGENT may incur to safeguard the DEBENTURE-HOLDERS interests, expenses which shall be previously approved and advanced by the DEBENTURE-HOLDERS, in the proportion of their credits, and subsequently reimbursed by the ISSUER, provided that the expenses to be advanced by the DEBENTURE-HOLDERS, in the proportion of their credits, (a) include expenditures with third-party attorney’s fees, deposits, costs and judicial fees in the suits proposed by the FIDUCIARY AGENT or arising from suits against it proposed in the exercise of its function, or that even cause losses or financial risks, as representative of the DEBENTURE-HOLDERS; the eventual expenses, deposits and court costs arising from loss in lawsuits shall be equally incurred by the DEBENTURE-HOLDERS, as well as their compensation, and the FIDUCIARY AGENT may request an advance to the DEBENTURE-HOLDERS for coverage of the loss of suit determined in court, it being understood that the resources shall be timely provided so that there is no possibility of failure to comply with a judicial order by this FIDUCIARY AGENT; and (b) the DEBENTURE-HOLDERS prevented by virtue of law from doing so are excluded, and the other DEBENTURE-HOLDERS shall divide the expenses in the proportion of their credits, and it is hereby stipulated that there will be subsequent reimbursement to the DEBENTURE-HOLDERS that made the division in a proportion in excess of the proportion of their credits, as of the eventual receipt of funds by those DEBENTURE-HOLDERS who were prevented from dividing expenses related to their interest and the credit of the FIDUCIARY AGENT for expenses incurred to protect rights and interests or to realize credits of the DEBENTURE-HOLDERS that have not being paid pursuant to item 8.3 above, to be added to the ISSUER's debt, with preference over those in the payment order.
CLAUSE VIII - DEBENTURE-HOLDERS’ GENERAL MEETING
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The owners of DEBENTURES of each series will meet at any time in general meeting, on the purpose of resolving on matters of interest to the communion of their respective DEBENTURE-HOLDERS. When the matter concerns only one of the series, the meeting shall only involve the agreement between the DEBENTURES-HOLDERS of the relevant series. 1. CALL NOTICE: The meeting may be convened by the ISSUER, the FIDUCIARY AGENT and DEBENTURE-HOLDERS representing 10% (ten percent), at least, of the outstanding DEBENTURES. Any proposed modifications under the DEBENTURES shall be made exclusively by the COMPANY. 2. INSTALLATION AND RESOLUTION 2.1 The general meeting shall be held with the quorum provided for in article 71, paragraph
three of the BRAZILIAN CORPORATE LAW and it shall resolve on the vote of the DEBENTURE-HOLDERS representing at least fifty percent (50%) plus one (1) of the outstanding DEBENTURES.
2.2 In the resolutions of the meeting, each DEBENTURE shall entitle right to one vote,
accepting the constitution of proxies, pursuant to the provisions in paragraphs 1 and 2 of article 126 of the BRAZILIAN CORPORATE LAW.
2.3 Except for the provisions to the contrary in this INDENTURE, any modifications to the
terms of the DEBENTURES subject matter of this issuance will depend on the approval of DEBENTURE-HOLDERS representing at least fifty percent (50%) plus one (1) DEBENTURE of the outstanding DEBENTURES of each series.
2.4 For purposes of constituting the quorum referred to in this Clause, the DEBENTURES
eventually held by the ISSUER shall be excluded from the number of outstanding DEBENTURES.
2.5. The DEFAULT DECLARATION FOR EARLY MATURITY of the DEBENTURES shall be
discussed in the General DEBENTURE-HOLDERS’ Meetings of each series, to be held separately, pursuant to item 20.2 of Clause III above. The EARLY MATURITY of each series of the DEBENTURES will depend on the approval of the DEBENTURE-HOLDERS representing at least two thirds (2/3) of the DEBENTURES of the relevant outstanding series on the date of the relevant resolution and shall not entail the EARLY MATURITY of the DEBENTURES of other series.
CLAUSE IX – REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE GUARANTOR
9.1. The ISSUER represents and warrants to the DEBENTURE-HOLDERS that, on the date of
execution of this INDENTURE, as well as on the DATE OF ISSUANCE:
a) is a company validly constituted and functioning pursuant to the law of joint stock companies in force;
b) for the execution of this INDENTURE and assumption and performance of the
obligations resulting therefrom, all permits of its deliberative and executive bodies (Board of Directors and Board of Executive Officers) were obtained, and no
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resolution of its General Shareholders’ Meeting and no previous resolution of its shareholders are mandatory or necessary therefor as a result of shareholders’ agreements eventually filed in its principal place of business;
c) the legal representatives who sign this INDENTURE have statutory powers to
undertake, on behalf of the ISSUER, the obligations set out here, and, as the FIDUCIARY AGENTS have the powers granted legitimately, with their mandate in full force;
d) their economic, financial and property situation, reflected in the financial statements
required by corporate law until the date on which this statement is made, has not experienced any significant change that can adversely affect the performance of its obligations under this INDENTURE;
e) no evidence of any issue or drawn against each other which have been filed to
protest or that have been protested, which the unit value or aggregate, is equal to or greater than R$ 100,000,000.00 (one hundred million), except for those submitted to protest, have been the subject of litigation, with reasonable grounds of law, restraining injunction of protest followed, as applicable, the respective principal action;
f) the execution of this INDENTURE and the underwriting and fulfillment of
obligations arising from it do not lead, directly or indirectly, the breach, in whole or in part of, (i) any contracts of any nature, entered into before the date of signing this INDENTURE, including the ISSUER is a party or to which they are linked in any capacity, either corporeal goods, immaterial, tangible, intangible, movable or immovable of his property, (ii) any law or regulation to which the ISSUER or any of tangible goods, intangible, tangible, intangible, movable or immovable property of his subject, and (iii) any order, decision, although preliminary, judicial or administrative proceedings affecting the Issuer or any of corporeal goods, immaterial, tangible, intangible, movable or immovable of his property;
g) this INDENTURE constitutes legal obligation, valid and binding of the ISSUER,
enforceable pursuant to its terms and conditions, and the non-cash payments and obligations set forth in this INDENTURE are not subject to any debt of the ISSUER, save preference money order in the event of liquidation of the ISSUER, and
h) already obtained all material permits and licenses (including environmental)
required by federal, state, and municipal authorities to exercise its activities until then, including licenses and/or permits regarding the environment, being all of them effective.
9.2. The GUARANTOR represents and warrants to the DEBENTURE-HOLDERS that, on the
date of execution of this INDENTURE, as well as on the DATE OF ISSUANCE:
a) is a collective name corporation duly organized and existing under the Brazilian laws;
b) is duly authorized and obtained all licenses and permits, including the corporate
ones, required for granting the GUARANTEE and performing its obligations set forth herein, meeting all legal and statutory requirements necessary therefor;
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c) the GUARANTEE's legal representatives signing this INDENTURE have statutory and/or granted powers to incur, on its behalf, the obligations established and, as such, have the lawfully granted powers in full force;
i) the grant and execution, of the GUARANTOR, of this INDENTURE and the
underwriting and fulfillment of obligations arising from it do not lead, directly or indirectly, the failure to perform, in whole or in part , (i) any contracts of any nature, entered into before the date of signing this INDENTURE, including the GUARANTOR is a party or to which they are linked in any capacity, either corporeal goods, immaterial, tangible, intangible, movable or immovable of his property, (ii) any law or regulation to which the GUARANTOR or any of tangible goods, intangible, tangible, intangible, movable or immovable property of his subject, and (iii) any order, decision, although preliminary, judicial or administrative proceedings affecting the GUARANTOR or any of corporeal goods, immaterial, tangible, intangible, movable or immovable of his property;
j) the GUARANTEE constitutes a legal, valid, and binding obligation of the
GUARANTOR, enforceable pursuant to the terms and conditions in this INDENTURE.
9.3. The ISSUER and the GUARANTOR undertake to notify, within ten (10) business days, the
DEBENTURE-HOLDERS and the FIDUCIARY AGENT in case any of the representations herein become fully or partially untrue, incomplete, or incorrect.
CLAUSE X – NOTICES The notices to be sent pursuant to this INDENTURE, if made by facsimile or electronic mail shall be deemed received on the date of its posting, since its receipt is acknowledged by a call sign (receipt issued by the machine used by the sender, upon confirmation by phone), and the originals are sent within 5 (five) business days after sending the message if made by mail, the notices shall be deemed given when received by protocol or "return receipt" issued by Mail or telegram, on the address of the following qualifications:
CLAUSE XI – GENERAL PROVISION It is understood that any amendment to this INDENTURE, in addition to the approval set forth in item 2.3 of Clause VIII above, will depend on the consent and signature of the GUARANTOR and the remaining PARTIES.
CLAUSE XII - JURISDICTION It is chosen as jurisdiction to settle any dispute arising from this INDENTURE, the forum of the district's Capital of Rio de Janeiro, State of Rio de Janeiro, expressly waiving any other, no more special or privileged they may be. The PARTIES execute this INDENTURE, in 3 (three) counterparts, same in format and content, in the presence of 2 (two) witnesses.
PAGE 1/4 OF SIGNATURES OF THE KLABIN S.A PRIVATE INSTRUMENT OF INDENTURE OF THE 7TH ISSUANCE OF SIMPLE DEBENTURES, WITH PERSONAL GUARANTEE, COMBINED WITH SUBSCRIPTION WARRANTS.
PAGE 2/4 OF SIGNATURES OF THE KLABIN S.A PRIVATE INSTRUMENT OF INDENTURE OF THE 7TH ISSUANCE OF SIMPLE DEBENTURES, WITH PERSONAL GUARANTEE, COMBINED WITH SUBSCRIPTION WARRANTS.
Pentágono S.A. Distribuidora de Títulos e Securities ______________________________ Name: Position:
______________________________ Name: Position:
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PAGE 3/4 OF SIGNATURES OF THE KLABIN S.A PRIVATE INSTRUMENT OF INDENTURE OF THE 7TH ISSUANCE OF SIMPLE DEBENTURES, WITH PERSONAL GUARANTEE, COMBINED WITH SUBSCRIPTION WARRANTS.
KLABIN IRMÃOS & CIA.
______________________________ Name: Position:
______________________________ Name: Position:
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PAGE 4/4 OF SIGNATURES OF THE KLABIN S.A PRIVATE INSTRUMENT OF INDENTURE OF THE 7TH ISSUANCE OF SIMPLE DEBENTURES, WITH PERSONAL GUARANTEE, COMBINED WITH SUBSCRIPTION WARRANTS. Witnesses: ______________________________ ______________________________ Name: Name C.P.F.: C.P.F.:
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EXHIBIT I TO THE INDENTURE PROVISIONS APPLICABLE TO THE BNDES AGREEMENTS
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EXHIBIT 2 TO THE INDENTURE
SUBSCRIPTION WARRANTS OF ISSUANCE OF KLABIN S.A., ATTRIBUTED TO THE KLABIN S.A. 7th PRIVATE ISSUANCE OF SIMPLE DEBENTURES, WITH PERSONAL GUARANTEE, COMBINED WITH SUBSCRIPTION WARRANTS.
