Suzano S.A F-3ASR, filed May 1, 2025
Suzano S.A. (SUZ)
As filed with the Securities and Exchange Commission on April 30, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
| Suzano S.A. | Suzano Netherlands B.V. | Suzano Austria GmbH |
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(Exact name of Registrant as specified in its charter) | ||
| Suzano Inc. | Not Applicable | Not Applicable |
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(Translation of Registrant’s name into English) | ||
| The Federative Republic of Brazil | The Netherlands | The Republic of Austria |
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(State or other jurisdiction of incorporation or organization) | ||
| Not Applicable | Not Applicable | Not Applicable |
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(I.R.S. Employer Identification Number) | ||
| Av. Professor Magalhaes Neto, 1,752 10th Floor, Rooms 1009, 1010 and 1011 Salvador, Brazil 41810-012 Telephone: +55 (11) 3503-9330 |
Spaces Zuidas I, Office 4.10, Barbara Strozzilaan 201, 1083HN Amsterdam The Netherlands Telephone: +31 202 991 673 |
Jakov-Lind-Straße 13 1020 Vienna |
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(Address and telephone number of Registrant’s principal executive offices) | ||
Suzano Pulp and Paper America, Inc.
800, Corporative Drive, Suite 320
Fort Lauderdale, Florida, 33334
United States
Telephone: +1 (954) 772-7716
(Name, address and telephone number of agent for service)
Copy to:
Juan G. Giráldez, Esq.
Jonathan Mendes de Oliveira, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ¨
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ¨
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act.
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012
P R O S P E C T U S
| Suzano Austria GmbH | Suzano Netherlands B.V. |
| Guaranteed Debt Securities | Guaranteed Debt Securities |
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Suzano S.A.
Guarantees | |
Suzano Austria GmbH and Suzano Netherlands B.V. may each from time to time issue debt securities guaranteed by Suzano S.A. This prospectus describes some of the general terms that may apply to these securities and the general manner in which they may be offered. When we offer securities, the specific terms of the securities, including the offering price, and the specific manner in which they may be offered, will be described in supplements to this prospectus. You should read this prospectus and any accompanying prospectus supplement carefully before you invest.
Investing in our securities involves risks. See the “Risk Factors” section set forth in our most recent annual report on Form 20-F, which is incorporated by reference herein, and, if any, in the relevant prospectus supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
April 30, 2025
Table of Contents
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In this prospectus, unless the context otherwise requires, references to “Suzano”, the “Company,” or the “Guarantor” mean Suzano S.A. and its consolidated subsidiaries taken as a whole, references to “Suzano Austria” mean Suzano Austria GmbH, and references to “Suzano Netherlands” mean Suzano Netherlands B.V.. Terms such as “we”, “us” and “our” generally refer to Suzano, Suzano Austria and Suzano Netherlands, unless the context requires otherwise.
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (which we refer to as the SEC) utilizing a “shelf” registration process. Under the shelf registration process, using this prospectus, together with a prospectus supplement, we may sell from time to time the debt securities described in this prospectus in one or more offerings.
This prospectus only provides a general description of the securities and guarantees that we may offer. Each time we offer securities, we will prepare a prospectus supplement containing specific information about the particular offering and the terms of those securities. We may also add, update or change other information contained in this prospectus by means of a prospectus supplement or by incorporating by reference information we file with the SEC. In the event the information set forth in a prospectus supplement differs in any way from information set forth in this prospectus, you should rely on the information set forth in the prospectus supplement. The registration statement that we filed with the SEC includes exhibits that provide more detail on the matters discussed in this prospectus. Before you invest in any securities offered by this prospectus, you should read this prospectus, any related prospectus supplement and the related exhibits filed with the SEC, together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference.”
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by reference to the actual documents. Copies of the documents referred to herein have been filed, or will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Where You Can Find More Information.”
Neither the delivery of this prospectus nor any sale made under it implies that there has been no change in our affairs or that the information in this prospectus is correct as of any date after the date of this prospectus. You should not assume that the information in this prospectus, including any information incorporated in this prospectus by reference, any accompanying prospectus supplement or any free writing prospectus prepared by us, is accurate as of any date other than the date on the front of those documents. Our business, financial condition, results of operations and prospects may have changed since that date.
You should rely only on the information contained in or incorporated by reference in this prospectus or a prospectus supplement. We have not authorized anyone to provide you with different information. We are not making an offer to sell securities in any jurisdiction where the offer or sale of such securities is not permitted.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC on Form F-3 under the Securities Act of 1933 relating to the securities offered by this prospectus. This prospectus, which is a part of that registration statement, does not contain all of the information set forth in the registration statement. For more information with respect to our company and the securities offered by this prospectus, you should refer to the registration statement and to the exhibits filed with it. Statements contained or incorporated by reference in this prospectus regarding the contents of any contract or other document are not necessarily complete, and, where the contract or other document is an exhibit to the registration statement or incorporated or deemed to be incorporated by reference, each of these statements is qualified in all respects by the provisions of the actual contract or other document.
We are subject to the information requirements of the United States Exchange Act of 1934 (“Exchange Act”), applicable to a foreign private issuer, and accordingly file or furnish reports, including annual reports on Form 20-F, reports on Form 6-K, and other information with the SEC. You may read and copy any materials filed with the SEC at its Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Any filings we make electronically will be available to the public over the Internet at the SEC’s web site at www.sec.gov. These reports and other information may also be inspected and copied at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
Common shares of Suzano, represented by ADSs, are listed on the New York Stock Exchange under the symbol “SUZ”. Additional information concerning us and our securities may be available through the New York Stock Exchange.
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This prospectus includes forward-looking statements, principally under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” We have based these forward-looking statements largely on our current expectations about future events and financial trends affecting our business. These forward-looking statements are subject to risks, uncertainties and assumptions, including among other things:
| · | our management and future operation; |
| · | the implementation of our main operational strategies, including our potential participation in acquisitions, joint venture transactions or other investment opportunities; |
| · | general economic, political and business conditions, both in Brazil and in our principal export markets; |
| · | industry trends and the general level of demand for, and change in the market prices of, our products; |
| · | existing and future governmental regulation, including tax, labor, pension and environmental laws and regulations and import tariffs in Brazil and in other markets in which we operate or to which we export our products; |
| · | the competitive nature of the industries in which we operate; |
| · | our level of capitalization, including the levels of our indebtedness and overall leverage; |
| · | the cost and availability of financing; |
| · | our compliance with the covenants contained in the instruments governing our indebtedness; |
| · | the implementation of our financing strategy and capital expenditure plans; |
| · | the impact of the ongoing wars in Ukraine and in the Middle East, the economic sanctions imposed on Russia and their impact on the global economy, which are highly uncertain and difficult to predict; |
| · | inflation and fluctuations in currency exchange rates, including the Brazilian real and the U.S. dollar; |
| · | legal and administrative proceedings to which we are or may become a party; |
| · | the volatility of the prices of the raw materials we sell or purchase to use in our business; |
| · | our ability to comply with our ESG targets and commitments; |
| · | the implementation of new technologies to mitigate operational risks or achieve our ESG targets and commitments; |
| · | compliance with financial covenants; |
| · | changes in labor costs, maintenance costs |
| · | other statements included in this annual report that are not historical; and |
| · | other factors or trends affecting our financial condition or results of operations, including those factors identified or discussed under “Risk Factors.” |
The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “hope,” “intend,” “may,” “might,”, “plan”, “potential” “should,” “target”, “would,” “will,” “understand” and similar words are intended to identify forward-looking statements. We undertake no obligation to update publicly or revise any forward-looking statements because of new information, future events or otherwise. In light of these risks and uncertainties, the forward-looking information, events and circumstances discussed in this prospectus might not occur and are not guarantees of future performance. Our actual results and performance may differ substantially from the forward-looking statements included in this prospectus.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This prospectus incorporates important business and financial information about us that is not included in or delivered with this prospectus. The SEC allows us to “incorporate by reference” information filed with and/or furnished to the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and certain later information that we file with and/or furnish to the SEC will automatically update and supersede this information. We incorporate by reference the following documents:
| 1. | our annual report on Form 20-F for the fiscal year ended December 31, 2024, filed with the SEC on April 28, 2025 (File 001-38755 and SEC Accession No. 0001628280-25-020368); |
| 2. | any future annual reports on Form 20-F filed with the SEC after the date of this prospectus and prior to the termination of the offering of the debt securities offered by this prospectus; |
| 3. | any future reports on Form 6-K that we furnish to the SEC after the date of this prospectus that are identified in such reports as being incorporated by reference in this prospectus . |
We will provide without charge to any person to whom a copy of this prospectus is delivered, upon the written or oral request of any such person, a copy of any or all of the documents referred to above which have been or may be incorporated herein by reference, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference in such documents). Requests should be directed to Suzano’s Investor Relations Department located at Avenida Brigadeiro Faria Lima, 1,355, 7th floor, São Paulo, SP, 01452-919, Brazil (telephone: +55 (11) 3503-9000, e-mail: ri@suzano.com.br).
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With 100 years of experience, we operate mainly in the pulp (paper grade and fluff) and paper (paperboard, printing and writing and tissue) segments. We believe that we are one of the largest vertically integrated producers of pulp and paper in Latin America and, according to Hawkins Wright, we were the largest producer of eucalypt pulp in the world and virgin market pulp in the world in 2024. As other Brazilian eucalyptus pulp producers, we have one of the lowest cost of pulp production in the world. We believe our modern technology of plantation and harvesting and our strategic location for plantation facilities are among our competitive strengths. We believe we are one of Brazil’s largest paper producers, and based on data from IBÁ, we accounted for nearly 43% of the printing and writing paper and 25% of the paperboard produced in Brazil in 2024.
Our structure includes administrative offices in Salvador and São Paulo, two integrated pulp and paper production facilities in the state of São Paulo (Suzano and Limeira units), a non-integrated paper production facility in the state of São Paulo (Rio Verde unit), an integrated pulp, paper and tissue facility in the state of Bahia (Mucuri unit), an integrated pulp and tissue facility in the state of Maranhão (Imperatriz unit), two paper facilities in the states of Pará and Ceará (Facepa), and FuturaGene, a biotechnology research and development unit. We also own pulp production facilities in the state of Espírito Santo (Aracruz unit), in the state of São Paulo state (Jacareí Unit), two units in the state of Mato Grosso do Sul (Três Lagoas unit and Ribas do Rio Pardo unit) and 50% equity participation in Veracel together with Stora Enso, an industrial unit located in Eunápolis (in the state of Bahia).
After we completed the acquisition of Kimberly-Clark's Tissue business, our structure also includes a tissue facility in the state of São Paulo (Mogi das Cruzes unit). In October 2024, we completed the acquisition of an integrated paper production mill in Pine Bluff and an extrusion and conversion facility in Waynesville, in the US. Both assets were previously owned by Pactic Evergreen. We own one of the largest distribution structures for paper and graphic products in South America, maintain a office in China and have subsidiaries in the United States, Switzerland, Argentina, and Austria. Our eucalyptus pulp production satisfies 100% of our requirements for paper production, and we sell the remaining production as market pulp. As of December 31, 2024 our total eucalyptus pulp installed capacity was 14.4 million tons per year. The scale of our production capacity, the proximity of our planted forests to our mills and the integration of our pulp and paper production process allow us to benefit from substantial economies of scale and low production costs.
Our Limeira, Suzano, Rio Verde and Jacareí mills are located near the city of São Paulo, the largest consumer market in Brazil according to data from IBÁ and RISI. These mills are located approximately 150 km from the port of Santos, an important export hub. They can supply both domestic and international markets in a competitive manner. Our Mucuri and Aracruz units are focused primarily on export markets. Mucuri is located approximately 250 km from Portocel, a port specialized in exporting pulp located in the state of Espírito Santo, in which Suzano holds a 51% stake, while Aracruz is located only three km from Portocel. The Imperatriz unit, in Maranhão, is also focused primarily on export markets. Its gateway for the external market is the Port of Itaqui, 600 km far from Imperatriz. Exports are carried from our mill to the ports by train, which allows for very competitive transportation costs. The Três Lagoas and Ribas do Rio Pardo unit, in Mato Grosso do Sul, are both focused on export markets, and most of its volume is transported by train to the Port of Santos, where all exporting volumes are shipped. The relatively short distances between our planted forests, our mills and most of our Brazilian customers or export facilities provide us with relatively low transportation costs.
Our shares are traded on the special listing segment of the B3 (Brasil, Bolsa, Balcão), which provides for the highest level of corporate governance in the Brazilian market, and our ADSs are traded on the NYSE.
Suzano Austria is a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Republic of Austria, registered under registration number FN 62444 f with the companies’ register (Firmenbuch) of the Commercial Court of Vienna, with its corporate seat in Vienna and its principal office at Jakov-Lind-Straße 13/5, 1020 Vienna, Austria. Suzano Austria is a wholly owned trading company, with indefinite term of duration, and its corporate purpose is the acquisition, sale and participation of and in other companies as well as the trade in, purchase and sale of, as well as the activity as a commercial agent in relation to, and the transport of, paper and pulp of any kind and quality as well as all other products that originate from wood processing and forest management. Suzano Austria’s capital is €36,336.42 and divided into quotas, all held and fully paid in by Suzano.
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Suzano Netherlands is a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands on December 12, 2023, with its corporate seat (statutaire zetel) in Amsterdam, the Netherlands, having its registered office at Spaces Zuidas I, Office 4.10, Barbara Strozzilaan 201, 1083 HN Amsterdam, and registered with the trade register of the Dutch chamber of commerce under number 92243207. Suzano Netherlands is a wholly owned finance subsidiary of Suzano S.A., and its corporate object is to raise credit and/or liquid assets, including through the issuance of debt securities, for the purpose of financing the activities of Suzano S.A., its subsidiaries, other affiliates and/or companies in which Suzano S.A. holds a direct or indirect equity interest. The principal executive office of Suzano Netherlands is located at Avenida Professor Magalhães Neto, 1752, Pituba, Salvador, Bahia, Brazil.
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LEGAL OWNERSHIP OF DEBT SECURITIES
In this prospectus and in any applicable prospectus supplement, when we refer to the “holders” of debt securities as being entitled to specified rights or payments, we mean only the actual legal holders of the debt securities. While you will be the holder if you hold a security registered in your name, more often than not the registered holder will actually be either a broker, bank, other financial institution or, in the case of a global security, a depositary. Our obligations, as well as the obligations of the trustee, any warrant agent, any transfer agent, any registrar, any depositary and any third parties employed by us or the other entities listed above, run only to persons who are registered as holders of our debt securities, except as may be specifically provided for in a contract governing the debt securities. For example, once we make a payment to the registered holder, we have no further responsibility for the payment even if that registered holder is legally required to pass the payment along to you as a street name customer but does not do so.
Street Name and Other Indirect Holders
Holding debt securities in accounts at banks or brokers is called holding in “street name.” If you hold our debt securities in street name, we will recognize only the bank or broker, or the financial institution that the bank or broker uses to hold the debt securities, as a holder. These intermediary banks, brokers, other financial institutions and depositaries pass along to you, as an indirect holder, principal, interest, dividends and other payments, if any, on the debt securities, either because they agree to do so in their customer agreements or because they are legally required to do so. This means that if you are an indirect holder, you will need to coordinate with the institution through which you hold your interest in a security in order to determine how the provisions involving holders described in this prospectus and any prospectus supplement will actually apply to you. For example, if the debt security in which you hold a beneficial interest in street name can be repaid at the option of the holder, you cannot redeem it yourself by following the procedures described in the prospectus supplement relating to that security. Instead, you would need to cause the institution through which you hold your interest to take those actions on your behalf. Your institution may have procedures and deadlines different from or additional to those described in the applicable prospectus supplement.
If you hold our debt securities in street name or through other indirect means, you should check with the institution through which you hold your interest in a security to find out, among other things:
| · | how it handles payments and notices with respect to the debt securities; |
| · | whether it imposes fees or charges; |
| · | how it handles voting, if applicable; |
| · | how and when you should notify it to exercise on your behalf any rights or options that may exist under the debt securities; |
| · | whether and how you can instruct it to send you debt securities registered in your own name so you can be a direct holder as described below; and |
| · | how it would pursue rights under the debt securities if there were a default or other event triggering the need for holders to act to protect their interests. |
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Global Securities
A global security is a special type of indirectly held security. If we choose to issue our debt securities, in whole or in part, in the form of global securities, the ultimate beneficial owners can only be indirect holders. We do this by requiring that the global security be registered in the name of a financial institution we select and by requiring that the debt securities included in the global security not be transferred to the name of any other direct holder unless the special circumstances described below occur. The financial institution that acts as the sole direct holder of the global security is called the “depositary.” Any person wishing to own a security issued in global form must do so indirectly through an account with a broker, bank or other financial institution that in turn has an account with the depositary. The prospectus supplement will indicate whether the debt securities will be issued only as global securities.
As an indirect holder, your rights relating to a global security will be governed by the account rules of your financial institution and of the depositary, as well as general laws relating to debt securities transfers. We will not recognize you as a holder of the debt securities and instead deal only with the depositary that holds the global security.
You should be aware that if our debt securities are issued only in the form of global securities:
| · | you cannot have the debt securities registered in your own name; |
| · | you cannot receive physical certificates for your interest in the debt securities; |
| · | you will be a street name holder and must look to your own bank or broker for payments on the debt securities and protection of your legal rights relating to the debt securities; |
| · | you may not be able to sell interests in the debt securities to some insurance companies and other institutions that are required by law to own their debt securities in the form of physical certificates; |
| · | the depositary’s policies will govern payments, dividends, transfers, exchange and other matters relating to your interest in the global security. We, the trustee, any warrant agent, any transfer agent and any registrar have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in the global security. We, the trustee, any warrant agent, any transfer agent and any registrar also do not supervise the depositary in any way; and |
| · | the depositary will require that interests in a global security be purchased or sold within its system using same-day funds for settlement. |
In a few special situations described below, a global security representing our debt securities will terminate and interests in it will be exchanged for physical certificates representing the debt securities. After that exchange, the choice of whether to hold debt securities directly or in street name will be up to you. You must consult your bank or broker to find out how to have your interests in the securities transferred to your name, so that you will be a direct holder.
Unless we specify otherwise in the prospectus supplement, the special situations for termination of a global security representing our debt securities are:
| · | when the depositary notifies us that it is unwilling or unable to continue as depositary for such global security or the depositary ceases to be a clearing agent registered under the Exchange Act, at a time when such depositary is required to be so registered in order to act as depositary, and, in each case, we do not or cannot appoint a successor depositary within 90 days; |
| · | when we notify the trustee that we wish to terminate the global security; or |
| · | when an event of default on debt securities has occurred and has not been cured. (Defaults are discussed later under “Description of Debt Securities—Events of Default.”) |
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The prospectus supplement may also list additional situations for terminating a global security that would apply to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary (and not us, the trustee, any warrant agent, any transfer agent or any registrar) is responsible for deciding the names of the institutions that will be the initial direct holders.
In the remainder of this document, “you” means direct holders and not street name or other indirect holders of securities. Indirect holders should read the previous subsection starting on page 8 entitled “Street Name and Other Indirect Holders.”
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DESCRIPTION OF DEBT SECURITIES
The following briefly summarizes the material provisions of the debt securities and the indentures that will govern the debt securities, other than pricing and related terms and other specifications that will be disclosed in a prospectus supplement. You should read the more detailed provisions of the applicable indenture, including the defined terms, for provisions that may be important to you. You should also read the particular terms of your series of debt securities, which will be described in more detail in a prospectus supplement. All references to Suzano in this section refer to Suzano S.A., and not to its consolidated subsidiaries.
Indentures
Any debt securities and guarantees that we issue will be governed by an indenture. The indenture is a contract entered into among either of Suzano Netherlands or Suzano Austria as issuer and Suzano as guarantor, and a trustee, currently The Bank of New York Mellon. The trustee under the indenture has two main roles:
| a) | First, the trustee can enforce your rights against Suzano Austria and Suzano Netherlands if Suzano Austria or Suzano Netherlands defaults. There are some limitations on the extent to which the trustee acts on your behalf, described below under “—Events of Default.” |
| b) | Second, the trustee performs administrative duties for us, such as sending principal and interest payments to you, transferring your debt securities to a new buyer if you sell and sending notices to you. |
Suzano Austria will issue debt securities guaranteed by Suzano under an indenture we refer to as the Suzano Austria indenture.
Suzano Netherlands will issue debt securities guaranteed by Suzano under an indenture we refer to as the Suzano Netherlands indenture.
The indentures and their associated documents contain the full legal text of the matters described in this section. We have agreed in each indenture that New York law governs the indenture and the debt securities. We have filed a copy of the Suzano Austria indenture and the Suzano Netherlands indenture with the SEC as exhibits to our registration statement. We have consented in each indenture to the non-exclusive jurisdiction of any U.S. federal and state courts sitting in the borough of Manhattan in the City of New York. (Sections 1.13 and 1.15)
Types of Debt Securities
This section summarizes material terms of the debt securities that are common to all series and to the Suzano Austria and Suzano Netherlands indentures, unless otherwise indicated in this section or in the prospectus supplement relating to a particular series.
Because this section is a summary, it does not describe every aspect of the debt securities. This summary is subject to and qualified in its entirety by reference to all the provisions of the indentures, including the definition of various terms used in the indentures. For example, we describe the meanings for only the more important terms that have been given special meanings in the indentures. We also include references in parentheses to some sections of the indentures. Whenever we refer to particular sections or defined terms of the indentures in this prospectus or in any prospectus supplement, those sections or defined terms are incorporated by reference herein or in such prospectus supplement.
We may issue original issue discount securities, which generally are debt securities that are offered and sold at or more than a de minimis amount of discount to their stated principal amount. We may also issue indexed securities or securities denominated in currencies other than the U.S. dollar, currency units or composite currencies, as described in more detail in the prospectus supplement relating to any such debt securities. We will describe the U.S. federal income tax consequences and any other special considerations applicable to debt securities, including original issue discount, indexed or foreign currency debt securities in the applicable prospectus supplement.
In addition, the material financial, legal and other terms particular to a series of debt securities will be described in the prospectus supplement relating to that series. Those terms may vary from the terms described here. Accordingly, this summary also is subject to and qualified by reference to the description of the terms of the series described in the applicable prospectus supplement.
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In addition, the prospectus supplement will state whether we will list the debt securities of the series on any stock exchanges and, if so, which ones.
Form, Exchange and Transfer
The debt securities will be issued, unless otherwise indicated in the applicable prospectus supplement, in any integral multiples of US$1,000 thereof. (Section 3.02)
You may have your debt securities broken into more debt securities of smaller authorized denominations or combined into fewer debt securities of larger authorized denominations, as long as the total principal amount is not changed. This is called an exchange. (Section 3.06)
You may exchange or transfer your registered debt securities at the office of the trustee. The trustee will maintain an office in New York, New York. The trustee acts as our agent for registering debt securities in the names of holders and transferring registered debt securities. The entity that maintains the list of registered holders is called the “security registrar.” It will also register transfers of the registered debt securities. (Section 3.06)
You will not be required to pay a service charge for any registration of transfer or exchange of the debt securities, but you and the trustee may be required to pay any tax or other governmental charge associated with the registration of transfer or exchange. The registration of transfer or exchange of a registered debt security will only be made if you have duly endorsed the debt security or provided the security registrar with a written instrument of transfer satisfactory in form to the security registrar. (Section 3.06)
If we designate additional transfer agents, they will be named in the applicable prospectus supplement. We may cancel the designation of any particular transfer agent. Suzano may also approve a change in the office through which any transfer agent acts or choose to act as our transfer agent.
If the debt securities are redeemable and we redeem less than all the debt securities of a particular series, we may block the transfer or exchange of debt securities to freeze the list of holders to prepare the mailing during the period beginning 15 days before the day we mail the notice of redemption and ending on the day of that mailing. We may also refuse to register transfers or exchanges of debt securities selected for redemption. However, we will continue to permit transfers and exchanges of the unredeemed portion of any debt security being partially redeemed.
Payment and Paying Agents
If your debt securities are in registered form, we will pay interest to you if you are listed in the trustee’s records as a direct holder at the close of business on a particular day in advance of each due date for interest, even if you no longer own the security on the interest due date. That particular day is called the “regular record date” and will be stated in the prospectus supplement. (Section 3.09)
We will pay interest, principal, additional amounts and any other money due on global registered debt securities pursuant to the applicable procedures of the depositary or, if the debt securities are not in global form, at our office or agency maintained for that purpose in New York City. We may also choose to pay interest by mailing checks. We may also arrange for additional payment offices, and we may cancel or change our use of these offices, including the trustee’s corporate trust office. These offices are called “paying agents.” We may also choose to act as our own paying agent. (Section 10.02)
Regardless of who acts as paying agent, all money that we pay as principal, premium or interest to a paying agent, or then held by us in trust, that remains unclaimed at the end of two years after the amount is due to a direct holder will be repaid to us or (if then held in trust) discharged from trust. After that two-year period, direct holders may look only to us for payment and not to the trustee, any other paying agent or anyone else. (Section 4.03)
| Street name and other indirect holders should consult their banks or brokers for information on how they will receive payments. |
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Notices
We and the trustee will send notices only to direct holders, using their addresses as listed in the trustee’s records (Section 1.06). In addition, if the debt securities of a series are listed on a securities exchange, we will provide notice to the holders in accordance with the applicable rules of such exchange.
Modification and Waiver
Each indenture provides several categories of changes that can be made to the indenture and the debt securities. Such changes may or may not require the consent of the holders, as described below.
Changes Requiring Each Holder’s Approval
Each indenture provides that there are changes to the indenture that cannot be made without the approval of each holder of the outstanding debt securities affected thereby (Section 9.02). Those types of changes include:
| a) | to reduce the principal amount of or change the stated maturity of any installment of principal of any debt security; |
| b) | to reduce the rate of or change the payment date of any interest payment on any debt security; |
| c) | to reduce the amount payable upon the redemption of any debt security in respect of an optional redemption, change the times at which any debt security may be redeemed or, once notice of redemption has been given, change the time at which it must thereupon be redeemed; |
| d) | to make any debt security payable in currency or at any place other than that stated in the relevant debt security; |
| e) | to impair the right of any holder of debt securities to institute suit for the enforcement of any payment on or with respect to any debt security; or |
| f) | to make any change in the percentage of the principal amount of the debt securities required for amendments or waivers. |
It is not necessary for holders of the debt securities to approve the particular form of any proposed amendment, supplement or waiver, but is sufficient if their consent approves the substance thereof.
Neither Suzano nor any of its subsidiaries or affiliates may, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the indentures or the debt securities unless such consideration is offered to be paid or agreed to be paid to all holders of the debt securities that consent, waive or agree to amend such term or provision within the time period set forth in the solicitation documents relating to the consent, waiver or amendment.
Changes Not Requiring Approval
Each indenture provides that some changes do not require any approval by holders of outstanding debt securities under that indenture (Section 9.01). Those types of changes include:
| a) | to cure any ambiguity, defect or inconsistency in the applicable indenture with respect to the debt securities; |
| b) | to comply with the covenant described under the caption “—Certain Covenants—Consolidation, Merger or Sale of Substantially All Assets” with respect to the debt securities; |
| c) | to evidence and provide for the acceptance of an appointment by a successor trustee with respect to the debt securities; |
| d) | to provide for uncertificated debt securities in addition to or in place of Certificated debt securities; |
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| e) | to provide for any guarantee of the debt securities, to secure the debt securities or to confirm and evidence the release, termination or discharge of any guarantee of or lien securing the debt securities when such release, termination or discharge is permitted by the indentures; |
| f) | to provide for or confirm the issuance of additional debt securities; or |
| g) | to make any other change that does not materially, adversely affect the rights of any holder of debt securities or to conform the indentures to this “Description of Debt Securities.” |
Changes Requiring Majority Approval
Except as otherwise provided in “—Default and Remedies—Consequences of an Event of Default” or “Changes Requiring Each Holder’s Approval”, the indentures and the debt securities of a series may be amended with the written consent of the holders of a majority in principal amount of the outstanding debt securities of such series and the holders of a majority in principal amount of the outstanding debt securities of such series may waive future compliance with any provision of the indentures or the debt securities of such series. (Section 9.02)
Voting Mechanics
Debt securities will not be considered outstanding, and therefore will not be eligible to vote or take other action under the applicable indenture, if we have deposited or set aside in trust money for their payment, repurchase or redemption. Debt securities will also not be eligible to vote or take other action under the applicable indenture if they have been defeased as described under “—Defeasance and Discharge.” Debt securities held by Suzano Austria, Suzano Netherlands or their affiliates are not considered outstanding. (Section 13.02)
We will generally be entitled to set any day as a record date for the purposes of determining the holders of outstanding debt securities that are entitled to vote or take other action under the applicable indenture. In limited circumstances, the trustee, and not Suzano Austria or Suzano Netherlands, will be entitled to set a record date for action by holders. If a record date is set for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding debt securities of that series on the record date and must be taken within 180 days following the record date or another period that we or the trustee, as applicable, may specify. This period may be shortened or lengthened (but not beyond 180 days). (Section 1.04)
| Street name and other indirect holders should consult their banks or brokers for information on how approval may be granted if we seek to change the indenture or the debt securities or request a waiver. |
Redemption
Unless otherwise indicated in the applicable prospectus supplement, your debt security will not be entitled to the benefit of any sinking fund; that is, we will not deposit money on a regular basis into any separate custodial account to repay your debt securities. In addition, other than as set forth in “—Optional Tax Redemption” below, unless otherwise specified in the applicable prospectus supplement, we will not be entitled to redeem your debt security before its stated maturity. (Section 11.09)
If the applicable prospectus supplement specifies a redemption date, it will also specify one or more redemption prices, which may be expressed as a percentage of the principal amount of your debt security or by reference to one or more formula used to determine the redemption price. It may also specify one or more redemption periods during which the redemption prices relating to a redemption of debt securities during those periods will apply.
If the applicable prospectus supplement specifies a redemption commencement date, we may redeem your debt security at our option at any time on or after that date. If we redeem your debt security, we will do so at the specified redemption price, together with interest accrued to the redemption date. If different prices are specified for different redemption periods, the price we pay will be the price that applies to the redemption period during which your debt security is redeemed. If less than all of the debt securities are redeemed, the trustee will authenticate and deliver to the holder of such debt securities without service charge, a new debt security or securities of the same series and of like tenor, of any authorized denomination as requested by such holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the debt security so surrendered. If less than all of the debt securities are redeemed, the debt securities to be redeemed will be determined in accordance with the applicable procedures of the depositary. (Section 11.03)
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In the event that we exercise an option to redeem any debt security, we will give to the trustee and the holder written notice of the principal amount of the debt security to be redeemed, not less than 10 days nor more than 60 days before the applicable redemption date. (Section 11.02)
Subject to any restrictions described in the prospectus supplement, we or our affiliates may purchase debt securities from investors who are willing to sell from time to time, either in the open market at prevailing prices or in private transactions at negotiated prices. Debt securities that we or they purchase may, in our discretion, be held, resold or canceled.
Optional Tax Redemption
Unless otherwise specified in a board resolution or a prospectus supplement, each series of debt securities contained in one or more particular issues may be redeemed at the option of the Suzano Austria or Suzano Netherlands or their successors, in whole but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any interest payment date) at a redemption price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction of Suzano Austria or Suzano Netherlands or their successor or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date specified for such series pursuant to the terms of the debt securities causing Suzano Austria or Suzano Netherlands or their successors to pay any Additional Amounts. (Section 11.08)
Payment of Additional Amounts
Each indenture provides that all payments in respect of the debt securities issued thereunder will be made without withholding or deduction for or on account of any present or future taxes, duties, assessments, or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil, Austria (in the case of Suzano Austria), the Netherlands (in the case of Suzano Netherlands) or any other jurisdiction or political subdivision thereof having power to tax in which Suzano Austria or Suzano Netherlands (or any successor to either of them), as applicable, is organized or from or through which a payment is made (a “Relevant Taxing Jurisdiction”), unless Suzano Austria or Suzano Netherlands, as applicable, is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges. In such event, Suzano Austria or Suzano Netherlands, as applicable, will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts as may be necessary to ensure that the net amounts receivable by holders of debt securities after such withholding or deduction shall equal the respective amounts of principal and interest which would have been receivable in respect of the debt securities in the absence of such withholding or deduction (“Additional Amounts”). Notwithstanding the foregoing, no such Additional Amounts shall be payable:
| a) | in respect of any taxes, duties, assessments or governmental charges that would not have been so withheld or deducted but for the existence of any present or former connection between the holder or beneficial owner of the debt securities (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder or beneficial owner, if such holder or beneficial owner is an estate, a trust, a partnership, a limited liability company or a corporation) and the Relevant Taxing Jurisdiction, including, without limitation, such holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the debt securities or enforcement of rights and the receipt of payments with respect to the debt securities; |
| b) | in respect of debt securities presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the holder of such debt securities would have been entitled to such Additional Amounts on surrender of such debt securities for payment on the last day of such period of 30 days; |
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| c) | in respect of any taxes, duties, assessments or other governmental charges that would not have been so withheld or deducted but for the failure by the holder, the beneficial owner of the debt securities, or, in the case of amounts payable to the Trustee, the Trustee to (i) make a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled, or (ii) comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, if (1) compliance is required by the Relevant Taxing Jurisdiction, as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) Suzano Austria or Suzano Netherlands has given the holders or the Trustee, as applicable, notice that holders or the Trustee (as applicable) will be required to provide such certification, identification or other requirement; provided that, in no event shall such holder’s, beneficial owner’s, or Trustee’s requirement to make a valid and legal claim for exemption from or reduction of such taxes require such holder, beneficial owner or the Trustee to provide materially more onerous information, documents or other evidence than comparable reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as U.S. IRS Forms W-8 or W-9 or any comparable successor forms); |
| d) | in respect of any estate, inheritance, gift, sales, transfer, capital gains, excise or personal property or similar tax, assessment or governmental charge; |
| e) | in respect of any withholding or deduction that is imposed on the debt securities that is presented for payment, where presentation is required, by or on behalf of a holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting such debt securities to another paying agent; |
| f) | in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of or interest on the debt securities; |
| g) | in respect of any taxes payable under Section 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, any regulations or other official guidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith; |
| h) | in respect of any withholding pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021); or |
| i) | in respect of any combination of the above. (Section 10.10) |
In addition, no Additional Amounts shall be paid with respect to any payment on a debt security to a holder or beneficial owner who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the holder.
The prospectus supplement relating to the debt securities may describe additional circumstances in which we would not be required to pay Additional Amounts. (Section 10.10)
For purposes of the above, “Relevant Date” means, with respect to any payment on a debt security, whichever is the later of: (i) the date on which such payment first becomes due; and (ii) if the full amount payable has not been received by the Trustee on or prior to such due date, the date on which notice is given to the holders that the full amount has been received by the Trustee.
Any reference in this prospectus, any prospectus supplement, the indentures or the debt securities to principal, interest or any other amount payable in respect of the debt securities by Suzano Austria or Suzano Netherlands or the debt securities guarantees by the guarantor will be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this subsection. (Section 10.10)
Suzano Austria and Suzano Netherlands shall promptly pay when due any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery or registration of each note or any other document or instrument referred to herein or therein except, in certain cases, for taxes, charges or similar levies resulting from certain registrations of transfer or exchange debt securities.
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The foregoing obligation will survive termination or discharge of the indentures, payment of the debt securities and/or the resignation or removal of the Trustee or any agent hereunder.
Certain Covenants
Ranking
Unless otherwise specified in the applicable prospectus supplement, each of Suzano, Suzano Austria and Suzano Netherlands will ensure that its respective obligations under the indentures, the debt securities and the debt securities guarantees will at all times constitute general senior, unsecured and unsubordinated obligations of Suzano or Suzano Austria or Suzano Netherlands, ranking pari passu, without any preferences among themselves, with all of its other present and future unsecured and unsubordinated obligations (other than obligations preferred by statute or by operation of law), except to the extent any such other Debt ranks above such obligations by reason of Liens permitted under the covenant described under “—Limitation on Liens.”
Limitation on Liens
Unless otherwise specified in the applicable prospectus supplement, Suzano will not, and will not permit any Subsidiary to, directly or indirectly, incur or permit to exist any Lien securing the payment of Debt on any of its properties or assets, whether owned at the Issue Date or thereafter acquired, other than Permitted Liens, without effectively providing that the debt securities or the debt securities guarantees, as applicable, are secured equally and ratably with (or, if the obligation to be secured by the Lien is subordinated in right of payment to the debt securities or any debt securities guarantees, prior to) the obligations so secured for so long as such obligations are so secured.
Consolidation, Merger or Sale of Substantially All Assets
Unless otherwise specified in the applicable prospectus supplement, each of Suzano, Suzano Austria and Suzano Netherlands will covenant that it will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its assets (determined on a consolidated basis) to, any person, without the consent of the holders of a majority in aggregate principal amount of the debt securities outstanding under the applicable indenture, unless:
| · | the person formed by such consolidation or into which Suzano, Suzano Austria and Suzano Netherlands, as the case may be, is merged into (if other than Suzano, Suzano Austria and Suzano Netherlands, as the case may be) or the person that acquires by conveyance, transfer or lease all or substantially all of the properties or assets of Suzano, Suzano Austria and Suzano Netherlands, as the case may be, which we refer to as the “successor person,” will expressly assume, by a supplemental indenture to the applicable indenture, all obligations of Suzano, Suzano Austria and Suzano Netherlands, as the case may be, under the applicable indenture and the debt securities or guarantee, as applicable, issued under that indenture; |
| · | immediately after giving effect to such transaction, no Event of Default with respect to any debt security issued under the applicable indenture will have occurred and be continuing; and |
| · | Suzano, Suzano Austria or Suzano Netherlands, as the case may be, has delivered to the trustee under the applicable indenture: |
| o | a certificate signed by an executive officer stating that such consolidation, merger, conveyance, transfer or lease complies with this covenant and that all relevant conditions precedent provided in the applicable indenture have been complied with; and |
| o | an opinion of counsel stating that such consolidation, merger, conveyance, transfer or lease complies with this covenant and that all relevant conditions precedent provided in the applicable indenture have been complied with. |
Upon any consolidation, merger, conveyance or transfer in accordance with these conditions, the successor person will succeed to, and be substituted for, and may exercise every right and power of, Suzano, Suzano Austria and Suzano Netherlands, as the case may be, under the debt securities with the same effect as if the successor person had been named as the issuer or guarantor, as applicable, of the debt securities issued under the applicable indenture. If a successor person is incorporated in or considered to be resident in a jurisdiction other than Brazil, Austria or the Netherlands (as applicable), such jurisdiction will be referred to as a “successor jurisdiction.” No successor person will have the right to redeem the debt securities unless Suzano, Suzano Austria and Suzano Netherlands, as applicable, would have been entitled to redeem the debt securities in similar circumstances. (Article 8)
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If the conditions described above are satisfied, Suzano, Suzano Austria and Suzano Netherlands will not need to obtain the consent of the holders in order to merge or consolidate or convey or transfer all or substantially all of its properties and assets to any other person. Also, Suzano, Suzano Austria and Suzano Netherlands will not need to satisfy these conditions if they enter into other types of transactions, including the following:
| · | any transaction in which Suzano, Suzano Austria or Suzano Netherlands acquires the stock or assets of another person; |
| · | any transaction that involves a change of control of Suzano, Suzano Austria or Suzano Netherlands, but in which Suzano, Suzano Austria or Suzano Netherlands do not merge or consolidate; and |
| · | any transaction in which Suzano, Suzano Austria or Suzano Netherlands sells or otherwise disposes of less than substantially all of its properties and assets. |
Repurchase of Debt Securities upon a Change of Control
Unless otherwise specified in the applicable prospectus supplement, not later than 30 days following a Change of Control that results in a Rating Decline for any series of debt securities, Suzano Austria or Suzano Netherlands shall make an Offer to Purchase all outstanding debt securities of such series at a purchase price equal to 101% of the principal amount plus accrued interest to the date of purchase.
An “Offer to Purchase” must be made by written offer, which will specify the principal amount of debt securities subject to the offer and the purchase price. The offer must specify an expiration date (the “expiration date”) not less than 30 days or more than 60 days after the date of the offer and a settlement date for purchase (the “purchase date”) not more than five Business Days after the expiration date. The offer must include information concerning the business of Suzano and its Subsidiaries which Suzano or Suzano Austria or Suzano Netherlands in good faith believes will enable the holders to make an informed decision with respect to the Offer to Purchase. The offer will also contain instructions and materials necessary to enable holders to tender debt securities pursuant to the offer.
A holder may tender all or any portion of its debt securities pursuant to an Offer to Purchase, subject to the minimum denomination requirement and the requirement that any portion of a debt security tendered must be in a multiple of U.S.$1,000 principal amount. Holders are entitled to withdraw debt securities tendered up to the close of business on the expiration date. On the purchase date, the purchase price will become due and payable on each debt securities accepted for purchase pursuant to the Offer to Purchase, and interest on debt securities purchased will cease to accrue on and after the purchase date provided that payment is made available on that date.
We will comply with Rule 14e-1 under the Exchange Act (to the extent applicable) and all other applicable laws and regulations in making any Offer to Purchase, and the above procedures will be deemed modified as necessary to permit such compliance.
We are only required to offer to repurchase the debt securities of a series in the event that a Change of Control results in a Rating Decline for such series. Consequently, if a Change of Control were to occur which does not result in a Rating Decline, Suzano Austria or Suzano Netherlands would not be required to offer to repurchase the debt securities of such series. In addition, neither Suzano Austria nor Suzano Netherlands will be required to make an Offer to Purchase upon a Change of Control if (1) a third party makes the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements set forth in the indenture applicable to an Offer to Purchase made by Suzano Austria or Suzano Netherlands and purchases all debt securities of such series properly tendered and not withdrawn under the Offer to Purchase, or (2) notice of redemption for all outstanding debt securities of such series has been given pursuant to the indentures as described above under the caption “—Optional Redemption,” unless and until there is a default in payment of the applicable redemption price.
Notwithstanding anything to the contrary contained herein, an Offer to Purchase may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Offer to Purchase is made.
Certain existing and/or future Debt of Suzano Austria or Suzano Netherlands may provide that a Change of Control is a default or require repurchase upon a Change of Control. Moreover, the exercise by the noteholders of their right to require Suzano Austria or Suzano Netherlands to purchase the debt securities could cause a default under other debt, even if the Change of Control itself does not, due to the financial effect of the purchase on Suzano Austria or Suzano Netherlands. In addition, any remittance of funds outside of Brazil to noteholders or the Trustee may require the consent of the Central Bank, which may not be granted. Our ability to pay cash to the noteholders following the occurrence of a Change of Control may be limited by Suzano Austria’s or Suzano Netherlands’s then existing financial resources. There can be no assurance that sufficient funds will be available when necessary to make the required purchase of the debt securities.
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Except as described above with respect to a Change of Control, the applicable indenture will not contain provisions that permit the holder of the debt securities to require that Suzano Austria or Suzano Netherlands purchase or redeem the debt securities in the event of a takeover, recapitalization or similar transaction.
The provisions under the applicable indentures relating to Suzano Austria’s or Suzano Netherlands’s obligation to make an offer to repurchase the debt securities as a result of a Change of Control may be waived or amended as described in “—Modification and Waiver.”
Substitution of the Issuer
Without the consent of any holders of debt securities (and, by purchasing any debt securities, each holder expressly consents to the provisions of this section), Suzano or any Wholly Owned Subsidiary of Suzano may, at any time and in Suzano’s sole discretion, replace Suzano Austria or Suzano Netherlands, as the case may be, as issuer and principal debtor in respect of any series of debt securities issued by Suzano Austria or Suzano Netherlands, provided that Suzano, the successor issuer (if a Wholly Owned Subsidiary of Suzano) and the trustee enter into a supplemental indenture under which (i) the successor issuer assumes all of the obligations of Suzano Austria or Suzano Netherlands, as the case may be, under such debt securities and, unless the successor issuer is Suzano, Suzano reaffirms that its existing guarantee remains in full force and effect, and (ii) the successor issuer agrees to a covenant in terms corresponding to the obligations of Suzano Austria or Suzano Netherlands, as the case may be, in respect of the payment of additional amounts as described under “— Payment of Additional Amounts” (but replacing references to Austria or the Netherlands with references to the jurisdiction of organization of the successor issuer, as applicable). The successor issuer will have the right to an effect the optional redemption for tax reasons as described above under “— Optional Tax Redemption” or provided for in the prospectus supplement.
Upon a substitution of Suzano Austria or Suzano Netherlands, as the case may be, as issuer as described hereunder, the successor issuer will succeed to, and may exercise every right and power of, Suzano Austria or Suzano Netherlands, as the case may be, under the relevant series of debt securities under the applicable indenture with the same effect as if such successor issuer had been named as the issuer under the applicable indenture and the debt securities, and Suzano Austria or Suzano Netherlands, as the case may be, will be released from its liability as obligor upon such debt securities. Any such substitution might be treated for U.S. federal income tax purposes as a deemed disposition of debt securities by a U.S. holder in exchange for new debt securities issued by the new obligor. As a result of this deemed disposition, a U.S. holder could be required to recognize capital gain or loss for U.S. federal income tax purposes equal to the difference, if any, between the issue price of the new debt securities (as determined for U.S. federal income tax purposes), and the U.S. holder’s tax basis in the debt securities. U.S. holders should consult their tax advisors concerning the U.S. federal income tax consequences to them of a change in obligor with respect to the debt securities. (Section 8.02)
Defeasance and Discharge
The following discussion of full defeasance and covenant defeasance will apply to your series of debt securities.
Full Defeasance
We can legally release ourselves from any payment or other obligations on the debt securities, except for various obligations described below (called “full defeasance”), if we, in addition to other actions, put in place the following arrangements for you to be repaid:
| · | We must irrevocably deposit in trust for your benefit and the benefit of all other direct holders of the debt securities a combination of money and non-callable U.S. government or U.S. government agency debt securities or bonds that, in the opinion of a firm of nationally recognized independent public accounts, will generate enough cash without reinvestment to make interest, principal and any other payments, including additional amounts, on the debt securities on their various due dates. |
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| · | We must deliver to the trustee a legal opinion of our counsel, based upon a ruling by the U.S. Internal Revenue Service or upon a change in applicable U.S. federal income tax law, confirming that under then current U.S. federal income tax law we may make the above deposit and a beneficial owner of the debt securities will not recognize gain or loss for U.S. federal income tax purposes as a result thereof and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as if we did not make the deposit. |
If we ever did accomplish full defeasance as described above, you would have to rely solely on the trust deposit for repayment on the debt securities. You could not look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from claims of our lenders and other creditors if we ever become bankrupt or insolvent. However, even if we take these actions, a number of our obligations relating to the debt securities will remain. These include the following obligations:
| · | to register the transfer and exchange of debt securities; |
| · | to replace mutilated, destroyed, lost or stolen debt securities; |
| · | to maintain paying agencies; |
| · | to hold money for payment in trust; and |
| · | to indemnify the trustee according to the terms of the indenture. |
Covenant Defeasance
We can make the same type of deposit described above and be released from all or some of the restrictive covenants (if any) that apply to the debt securities of any particular series. This is called “covenant defeasance.” In that event, you would lose the protection of those restrictive covenants but would gain the protection of having money and securities set aside in trust to repay the debt securities. In order to achieve covenant defeasance, we must do the following:
| · | We must irrevocably deposit in trust for your benefit and the benefit of all other direct holders of the debt securities a combination of money and non-callable U.S. government or U.S. government agency debt securities or bonds that, in the opinion of a nationally recognized firm of independent accountants, will generate enough cash without reinvestment to make interest, principal and any other payments, including additional amounts, on the debt securities on their various due dates. |
| · | We must deliver to the trustee a legal opinion of our counsel confirming that under then current U.S. federal income tax law we may make the above deposit and a beneficial owner of the debt securities will not recognize gain or loss for U.S. federal income tax purposes as a result thereof and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as if we did not make the deposit. |
If we accomplish covenant defeasance, the following provisions of the indenture and/or the debt securities would no longer apply:
| · | Any covenants applicable to the series of debt securities and described in the applicable prospectus supplement. |
| · | The events of default relating to breach of those covenants being defeased and acceleration of the maturity of other debt, described later under “Events of Default”. |
If we accomplish covenant defeasance, you can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit. In fact, if any event of default occurred (such as our bankruptcy) and the debt securities become immediately due and payable, there may be such a shortfall. Depending on the event causing the default, you may not be able to obtain payment of the shortfall. (Section 13.03)
Events of Default
Each indenture provides that you will have special rights if an event of default occurs and is not cured or waived, as described later in this subsection and as may be specified in the applicable prospectus supplement.
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What Is an Event of Default?
Each indenture provides that the term “event of default” with respect to any series of debt securities means any of the following:
a) Failure to pay any interest (or additional amounts, if any) on any of the debt securities of that series on the date when due, which failure continues for a period of 30 days; or failure to pay any principal on any of the debt securities of that series on the date when due, which failure continues for a period of three days;
b) Failure to comply with any of its other covenants or agreements in respect of the debt securities of that series or the applicable indenture (other than those referred in the item above) and such failure continues for a period of 60 days after Suzano, Suzano Austria or Suzano Netherlands, as applicable, receives a notice of default from the trustee acting at the written direction of holders of 25% of the principal amount of the outstanding debt securities of the affected series; or by the holders of 25% of the principal amount of the outstanding debt securities of the affected series;
c) The maturity of any Debt of Suzano, Suzano Austria or Suzano Netherlands, as applicable, or any of the Significant Subsidiaries thereof in a total aggregate principal amount of US$125,000,000 or more is accelerated in accordance with the terms of that Debt, it being understood that prepayment or redemption by Suzano, Suzano Austria or Suzano Netherlands or any of the Significant Subsidiaries thereof, as applicable, of any Debt is not acceleration for this purpose;
d) One or more final and non-appealable judgments or orders for the payment of money are rendered against Suzano, Suzano Austria or Suzano Netherlands, as applicable, or any of the Significant Subsidiaries thereof, and are not paid or discharged, and there is a period of 60 consecutive days following entry of the final and non-appealable judgment or order that causes the aggregate amount for all such final and non-appealable judgments or orders outstanding and not paid or discharged against all such Persons to exceed US$125,000,000 or the equivalent thereof at the time of determination (in excess of amounts which any insurance carriers have agreed to pay under applicable policies) during which a stay of enforcement, by reason of a pending appeal or otherwise, is not in effect;
e) Proceedings are initiated against Suzano, Suzano Austria or Suzano Netherlands, as applicable, or any of the Significant Subsidiaries thereof under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, and any such proceeding is not dismissed or stayed within 60 days after the entering of such proceeding, or an administrator, receiver, administrador judicial, liquidator, custodian, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official), excluding in any event a restructuring expert (herstructureringsdeskundige) or an observer (observator) in the case of Suzano Netherlands, is appointed to take possession or control of, or a distress, execution, attachment or sequestration or other process is levied, enforced upon, sued out or put in force against, all or any material part of the undertaking, property, assets or revenues of Suzano, Suzano Austria or Suzano Netherlands, as applicable, or any of the Significant Subsidiaries thereof and is not dismissed or stayed within 60 days;
f) Suzano, Suzano Austria or Suzano Netherlands, as applicable, or any of the Significant Subsidiaries thereof commences voluntarily or consents to judicial, administrative or other proceedings relating to it under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, or makes or enters into any composition, recuperação judicial or extrajudicial or other similar arrangement with its creditors, or appoints or applies for the appointment of an administrator, receiver, administrador judicial, liquidator, custodian, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official), excluding in any event a restructuring expert (herstructureringsdeskundige) or an observer (observator) in the case of Suzano Netherland, to take possession or control of the whole or any material part of its undertaking, property, assets or revenues, or takes any judicial, administrative or other similar proceeding under any law for a readjustment or deferment of its Debt or any part of it the Guarantee ceases to be in full force and effect, other than in accordance with the terms of the relevant indenture, or Suzano denies or disaffirms its obligations under the Guarantee; or
g) The Guarantee ceases to be in full force and effect, other than in accordance with the terms of the relevant indenture, or Suzano denies or disaffirms its obligations under the Guarantee; or
h) Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as any of the events referred to in any of items (e), (f) or (g) of this section.
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An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture, although the default and acceleration of one series of debt securities may trigger a default and acceleration of another series of debt securities.
The Trustee will not be deemed to have notice of any Default or Event of Default (other than a payment default) unless a written notice of any event which is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the particular Notes and the Indenture. (Section 6.03)
Remedies upon an Event of Default
If an event of default has occurred and has not been cured, the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. This is called a declaration of acceleration of maturity. If an event of default occurs because of certain events in bankruptcy, insolvency or reorganization, or an equivalent proceeding under the applicable law, the principal amount of all the debt securities of that series will be automatically accelerated without any action by the trustee, any holder or any other person. A declaration of acceleration of maturity may be canceled by the holders of at least a majority in principal amount of the debt securities of the affected series. (Section 5.02)
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the indenture at the request of any holders unless the holders offer the trustee satisfactory security or indemnity from expenses and liability. (Section 6.03) If satisfactory indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. These same holders may also direct the trustee in performing any other action under the indenture. (Section 5.12)
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
| · | You must give the trustee written notice that an event of default has occurred and remains uncured. |
| · | The holders of not less than 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default, and must offer satisfactory indemnity or security to the trustee against the cost and other liabilities of taking that action. |
| · | The trustee must have not taken action for 60 days after receipt of the above notice and offer of indemnity or security. |
| · | The holders of a majority in principal amount of all outstanding debt securities of the relevant series must not have given the trustee a direction during the sixty-day period that is inconsistent with the above notice. (Section 5.07) |
However, you are entitled at any time to bring a lawsuit for the payment of money due on your debt security on or after its due date and if your debt security is convertible or exchangeable into another security to bring a lawsuit for the enforcement of your right to convert or exchange your debt security or to receive securities upon conversion or exchange. (Section 5.08)
| Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and to make or cancel a declaration of acceleration. |
We will furnish to the trustee within 120 days after the end of our fiscal year every year a written statement of certain of our officers that will either certify that, to the best of their knowledge, we are in compliance with the indenture and the debt securities or specify any default. (Section 10.05)
Waiver of Default
The holders of not less than a majority in principal amount of the debt securities of any series may waive any default and its consequences for the debt securities of the series, except for defaults which cannot be waived without the consent of each holder. If this happens, the default will be treated as if it had not occurred. No one can waive a payment default, however, without the approval of each holder of the affected series of securities. (Section 5.13)
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| Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to waive a default. |
Certain Defined Terms
“Capital Lease” means, with respect to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property, which obligations are required to be classified and accounted for as a capital lease or liability set forth on a balance sheet of such Person under Reporting GAAP. The stated maturity of such obligations shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of such obligations shall be the capitalized amount that would appear on the balance sheet of such Person in accordance with Reporting GAAP. Notwithstanding the foregoing, whether or not the lease will be accounted for as a capital lease and the amount of any capital leases shall be determined without giving effect to IFRS 16.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations, quotas or other equivalents (however designated) of capital stock of a corporation, any and all ownership interests in a Person other than a corporation and any and all warrants or options to purchase any of the foregoing which would be shown as capital stock on the consolidated balance sheet of such Person and its consolidated Subsidiaries prepared in accordance with Reporting GAAP but excluding any debt securities convertible into such equity.
“Change of Control” means the consummation of any transaction by which (i) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a person or group that includes any one or more of the Permitted Holders, becomes after the date hereof the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the outstanding Voting Stock of Suzano or (ii) (x) the Permitted Holders cease to “beneficially own” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, collectively, at least 50% of the total voting power of the outstanding Voting Stock of Suzano, (y) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a person or group that includes any one or more of the Permitted Holders, becomes after the date hereof the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of a greater percentage of the total voting power of the outstanding Voting Stock of Suzano than the percentage beneficially owned collectively by the Permitted Holders and (z) the Permitted Holders cease to have, directly or indirectly, the power to direct or cause the direction of the management and policies of Suzano or (iii) Suzano shall cease to own, directly or indirectly, at least a majority of the issued and outstanding shares of Voting Stock of Suzano Austria or Suzano Netherlands or shall cease to have the power, directly or indirectly, to direct or cause the direction of the management and policies of Suzano Austria or Suzano Netherlands.
“Consolidated Net Tangible Assets” means the total amount of assets of Suzano and its Subsidiaries on a consolidated basis, less current liabilities, less depreciation, amortization and depletion, less goodwill, trade names, trademarks, patents and other intangibles, calculated based on the most recent balance sheet for which internal financial statements are available, all calculated in accordance with Reporting GAAP and calculated on a pro forma basis to give effect to any acquisition or disposition of companies, divisions, lines of businesses or operations by Suzano and its Subsidiaries subsequent to such date and on or prior to the date of determination.
“Debt”
means, with respect to any Person, determined without duplication:
| (1) | all indebtedness of such Person for borrowed money; |
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| (2) | all obligations of such Person for the deferred purchase price of Property or services, excluding trade payables arising in the ordinary course of such Person’s business, but only if and for so long as such trade payables remain payable on customary trade terms; |
| (3) | all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; |
| (4) | all obligations, contingent or otherwise, of such Person in connection with any securitization of any receivables of such Person; |
| (5) | all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the borrower or the lender under such agreement in an event of default are limited to repossession or sale of such Property); |
| (6) | all Capital Lease Obligations and all obligations under “synthetic leases” of such Person; |
| (7) | all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit, financial guaranty insurance policies or other similar instruments, excluding obligations in respect of trade letters of credit or bankers’ acceptances issued in respect of trade accounts payables to the extent not drawn upon or presented, or, if drawn upon or presented, to the extent the resulting obligation of the Person is paid within 10 Business Days; |
| (8) | all obligations of such Person to redeem, retire, defease or otherwise make any payment in respect of any Capital Stock of such Person; |
| (9) | all net obligations of such Person in respect of any Hedging Agreements (but without regard to any notional principal amount relating thereto); |
| (10) | all obligations of such Person to pay the deferred and unpaid purchase price of property or services, all conditional sale obligations and all obligations of such person under any title retention agreement, excluding trade payables arising in the ordinary course of business; |
| (11) | all Debt of other Persons referred to in clauses (1) through (10) above that is guaranteed by such Person to the extent so guaranteed; and |
| (12) | all Debt of other Persons referred to in clauses (1) through (11) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) a Lien on Property of such Person even though such Person has not assumed such Debt. |
The amount of Debt of any Person will be deemed to be:
| a) | with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation; |
| b) | with respect to Debt secured by a Lien on an asset of such Person but not otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the fair market value of such asset on the date the Lien attached and (y) the amount of such Debt; |
| c) | with respect to any Debt issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt; |
| d) | with respect to any Hedging Agreement, the net amount payable if such Hedging Agreement terminated at that time due to default by such Person; and |
| e) | otherwise, the outstanding principal amount thereof. |
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“Default” means an event or condition with respect to a series of Securities that, with the giving of notice, lapse of time or failure to satisfy certain specified conditions, or any combination thereof, would become an Event of Default with respect to the Securities of such series if not cured or remedied.
“Hedging Agreement” means, with respect to any Person, any interest rate protection agreement, any currency or commodity swap, cap or collar agreement, any equity swap, any weather related derivative or any arrangement similar to any of the foregoing entered into by such Person providing for the transfer or mitigation of interest rate, currency, commodity price, equity risks, weather related risks or other risks either generally or under specific contingencies.
“Lien” means any mortgage, pledge, usufruct, fiduciary transfer (alienação fiduciária), charge, encumbrance, lien or other security interest, or any preferential arrangement (including a securitization) that has the practical effect of creating a security interest.
“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 15% of such Person’s total consolidated assets, as such total assets are set forth on the most recent consolidated financial statements of such Person prepared in accordance with Reporting GAAP.
“Permitted Holders” means (a) David Feffer, Daniel Feffer, Jorge Feffer and Ruben Feffer, as well as any of their respective heirs, or (b) an entity that is directly or indirectly controlled by one or more of the Persons listed in clause (a) above.
“Permitted Liens” means:
| (1) | any Lien existing on the date of the applicable indenture; |
| (2) | any Lien on any property or assets (including Capital Stock of any person) securing Debt incurred solely for purposes of financing the acquisition, construction or improvement of such property or assets after the date of the applicable indenture; provided that (a) the aggregate principal amount of Debt secured by the Liens will not exceed (but may be less than) 130% of the cost (i.e., purchase price) of the property or assets so acquired, constructed or improved and (b) the Lien is incurred before, or within 365 days after the completion of, such acquisition, construction or improvement and does not encumber any other property or assets of Suzano or any of its Subsidiaries; and provided, further, that to the extent that the property or asset acquired is Capital Stock, the Lien also may encumber other property or assets of the person so acquired; |
| (3) | any Lien securing Debt incurred for the purpose of financing all or part of the cost of the acquisition, construction or development of a project; provided that the lenders of such Debt expressly agree to limit their recourse in respect of such Debt to assets (including Capital Stock of the project entity) and/or revenues of such project with an aggregate value of not more than the amount of such Debt; and provided, further, that the Lien is incurred before, or within 365 days after the completion of, that acquisition, construction or development and does not apply to any other property or assets of Suzano or any Subsidiary; |
| (4) | any Lien extending, renewing or replacing (or successive extensions, renewals or replacements of), in whole or in part, any Lien referred to in items (1), (2), (3) above, and (6) and (7) below; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, except for any increase reflecting premiums, fees and expenses in connection with such extension, renewal or replacement; |
| (5) | any Lien existing on any property or assets of any person before that person’s acquisition (in whole or in part) by, merger into or consolidation with Suzano or any of its Subsidiaries after the date of the applicable indenture; provided that the Lien is not created in contemplation of or in connection with such acquisition, merger or consolidation; |
| (6) | any Lien in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of Suzano or any of its Subsidiaries in the ordinary course of business; |
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| (7) | any Liens granted to secure borrowings from, directly or indirectly, (a) Banco Nacional de Desenvolvimento Econômico e Social—BNDES (including borrowings from any Brazilian governmental bank with funds provided by Brazilian regional funds including Financiadora de Estudos e Projetos — FINEP, Fundo de Desenvolvimento do Nordeste — FDNE, Banco do Nordeste do Brasil and Fundo de Desenvolvimento do Centro Oeste — FCO), or any other Brazilian governmental development bank or credit agency or (b) any international or multilateral development bank or government-sponsored agency, export-import bank or official export-import credit insurer; |
| (8) | any pledge or deposit made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other similar social security legislation; |
| (9) | any deposit to secure appeal bonds, judicial deposits or other similar guarantees in proceedings being contested in good faith to which Suzano or any Subsidiary is a party, good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which Suzano or any its Subsidiaries is a party or deposits for the payment of rent, in each case made in the ordinary course of business and for which adequate reserves have been made as required in accordance with Reporting GAAP; |
| (10) | any Lien imposed by law that was incurred in the ordinary course of business, including, without limitation, carriers’, warehousemen’s and mechanics’ liens, statutory landlord’s liens, customary reservations or retentions of title easements, rights of way, defects, zoning restrictions and other similar charges or encumbrances arising in the ordinary course of business, in each case for sums not yet due or being contested in good faith by appropriate proceedings and for which adequate reserves have been made as required in accordance with Reporting GAAP; |
| (11) | any Lien or rights of set-off of any Person with respect to any Cash Equivalents on deposit account or securities account of Suzano or any of its Subsidiaries arising in the ordinary course of business in favor of the bank(s) or security intermediary(ies) with which such accounts are maintained, securing only amounts owing to such bank(s) with respect to cash management and operating account arrangements; provided that any Lien or rights of netting or set-off which arise from general banking conditions (algemene bankvoorwaarden) applicable to Suzano Netherlands shall at all times be permitted; |
| (12) | any Lien on (i) cash or cash equivalents or other securities securing Hedging Agreements or other similar transactions permitted in accordance with this Indenture or (ii) any right, title, interest and claim in, to and under, Hedging Agreements or other similar transactions permitted in accordance with this Indenture, or any proceeds thereof, to secure a given Debt, to the extent that the purpose of such Hedging Agreement is to mitigate risks related to such Debt; |
| (13) | any Lien securing taxes, assessments and other governmental charges or levies, in each case the payment of which is not yet due or is being contested in good faith by appropriate proceedings diligently conducted and for which such reserves or other appropriate provisions, if any, have been established as required by Reporting GAAP; |
| (14) | any Liens on the receivables of Suzano or any of its Subsidiaries securing the obligations of such Person under any line of credit or working capital facility or other credit facility; provided that the aggregate amount of receivables securing Debt shall not exceed 80% of Suzano’s and its Subsidiaries’ aggregate outstanding receivables from time to time; |
| (15) | any encumbrance, security deposit or reserve maintained in the ordinary course of business and required by Applicable Law; |
| (16) | any Lien which arises pursuant to a final judgment(s) that do not constitute an Event of Default; |
| (17) | any Lien securing Debt or other obligations of a Subsidiary of Suzano, Suzano Austria or Suzano Netherlands owing to Suzano, Suzano Austria or Suzano Netherlands or a Subsidiary thereof; |
| (18) | any Lien on Property or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary; provided that, such Liens may not (i) extend to any Property owned by such Person other than the Property so acquired, or (ii) have been incurred in connection with or in anticipation of such acquisition; |
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| (19) | incurring a joint and several liability (including any netting or rights of set-off) as a result of a fiscal unity (fiscale eenheid) for Dutch tax purposes; and |
| (20) | in addition to the foregoing Liens set forth in clauses (1) through (19) above, Liens securing Debt of Suzano or any of its Subsidiaries which do not in aggregate principal amount, at any time of determination, exceed 20% of Suzano’s Consolidated Net Tangible Assets (the “General Liens Basket”). |
“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, other entity or any government or any agency or political subdivision thereof.
“Reporting GAAP” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board or any other accounting standard that the Company may adopt as its primary reporting accounting standard in its reports filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
“Rating Decline” means that at any time within 90 days (which period shall be extended so long as the rating of the debt securities is under publicly announced consideration for possible down grade by either Rating Agency) after the earlier of the date of public notice of a Change of Control and of the issuer’s intention or that of any Person to effect a Change of Control, (i) in the event the debt securities are assigned an Investment Grade rating by at least two of the Rating Agencies prior to such public notice, the rating of such debt securities by at least two of the Rating Agencies shall be below an Investment Grade Rating; or (ii) in the event such debt securities are not assigned an Investment Grade Rating by at least two of the Rating Agencies prior to such public notice, the rating of such debt securities by at least two of the Rating Agencies shall be decreased by one or more categories, provided that there shall be no Rating Decline to the extent such debt securities continue to have an Investment Grade Rating by at least one of the Ratings Agencies; provided that any such Rating Decline is expressly stated by the applicable Rating Agencies to have been the result of the Change of Control.
“Stated Maturity” means (i) with respect to any Debt, the date specified as the fixed date on which the final installment of principal of such Debt is due and payable or (ii) with respect to any scheduled installment of principal of or interest on any Debt, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing such Debt, not including any contingent obligation to repay, redeem or repurchase prior to the regularly scheduled date for payment.
“Subsidiary” means with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more Subsidiaries of such Person (or a combination thereof).
“Voting Stock” of a Person means Capital Stock in such Person having power to vote for the election of directors or similar officials of such Person or otherwise voting with respect to actions of such Person (other than such Capital Stock having such power only by reason of the happening of a contingency).
“Wholly Owned Subsidiary” means, with respect to any corporate entity, any person of which 95% of the outstanding capital stock (other than qualifying shares, if any) having by the terms thereof ordinary voting power (not dependent on the happening of a contingency) to elect the Board of Directors (or equivalent controlling governing body) of such person is at the time owned or controlled directly or indirectly by such corporate entity, by one or more wholly-owned subsidiaries of such corporate entity or by such corporate entity and one or more wholly-owned subsidiaries thereof.
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FORM OF SECURITIES, CLEARING AND SETTLEMENT
Global Securities
Unless otherwise specified in the applicable prospectus supplement, the following information relates to the form, clearing and settlement of U.S. dollar-denominated debt securities.
We will issue the securities in global form. Securities issued in global form will be represented, at least initially, by one or more global debt securities. Upon issuance, global securities will be deposited with the trustee as custodian for The Depository Trust Company (“DTC”), and registered in the name of Cede & Co., as DTC’s partnership nominee. Ownership of beneficial interests in each global security will be limited to persons who have accounts with DTC, whom we refer to as DTC participants, or persons who hold interests through DTC participants. We expect that, under procedures established by DTC, ownership of beneficial interests in each global security will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC participants) and the records of DTC participants (with respect to other owners of beneficial interests in the global securities).
Beneficial interests in the global securities may be credited within DTC to Euroclear Bank SA/NV (“Euroclear”) and Clearstream Banking, S.A. (“Clearstream”) on behalf of the owners of such interests.
Investors may hold their interests in the global securities directly through DTC, Euroclear or Clearstream, if they are participants in those systems, or indirectly through organizations that are participants in those systems.
Beneficial interests in the global securities may not be exchanged for securities in physical, certificated form except in the limited circumstances described below.
Book-Entry Procedures for Global Securities
Interests in the global securities will be subject to the operations and procedures of DTC, Euroclear and Clearstream. We provide the following summaries of those operations and procedures solely for the convenience of investors. The operations and procedures of each settlement system are controlled by that settlement system and may be changed at any time. We are not responsible for those operations or procedures.
DTC has advised that it is:
| · | a limited purpose trust company organized under the New York Banking Law; |
| · | a “banking organization” within the meaning of the New York Banking Law; |
| · | a member of the U.S. Federal Reserve System; |
| · | a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
| · | a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. |
DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between its participants through electronic computerized book-entry changes to the accounts of its participants. DTC’s participants include securities brokers and dealers; banks and trust companies; clearing corporations; and certain other organizations. Indirect access to DTC’s system is also available to others such as securities brokers and dealers; banks and trust companies; these indirect participants clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. Investors who are not DTC participants may beneficially own securities held by or on behalf of DTC only through DTC participants or indirect participants in DTC.
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So long as DTC or its nominee is the registered owner of a global security, DTC or its nominee will be considered the sole owner or holder of the securities represented by that global security for all purposes under the indenture. Except as provided below, owners of beneficial interests in a global security:
| · | will not be entitled to have securities represented by the global security registered in their names; |
| · | will not receive or be entitled to receive physical, certificated securities; and |
| · | will not be considered the registered owners or holders of the securities under the indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the trustee under the indenture. |
As a result, each investor who owns a beneficial interest in a global security must rely on the procedures of DTC to exercise any rights of a holder of securities under the indenture (and, if the investor is not a participant or an indirect participant in DTC, on the procedures of the DTC participant through which the investor owns its interest).
Payments of principal, premium, if any, and interest with respect to the securities represented by a global security will be made by the issuer to the trustee and by the trustee (to the extent funded by the issuer) to DTC’s nominee as the registered holder of the global security. Neither we nor the trustee will have any responsibility or liability for the payment of amounts to owners of beneficial interests in a global security, for any aspect of the records relating to or payments made on account of those interests by DTC, or for maintaining, supervising or reviewing any records of DTC relating to those interests.
Payments by participants and indirect participants in DTC to the owners of beneficial interests in a global security will be governed by standing instructions and customary practices and will be the responsibility of those participants or indirect participants and not of DTC, its nominee or us.
Transfers between participants in DTC will be effected under DTC’s procedures and will be settled in same-day funds. Transfers between participants in Euroclear or Clearstream will be effected in the ordinary way under the rules and operating procedures of those systems.
Cross-market transfers between DTC participants, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected within DTC through the DTC participants that are acting as depositaries for Euroclear and Clearstream. To deliver or receive an interest in a global security held in a Euroclear or Clearstream account, an investor must send transfer instructions to Euroclear or Clearstream, as the case may be, under the rules and procedures of that system and within the established deadlines of that system. If the transaction meets its settlement requirements, Euroclear or Clearstream, as the case may be, will send instructions to its DTC depositary to take action to effect final settlement by delivering or receiving interests in the relevant global securities in DTC, and making or receiving payment under normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the DTC depositaries that are acting for Euroclear or Clearstream.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant that purchases an interest in a global security from a DTC participant will be credited on the business day for Euroclear or Clearstream immediately following the DTC settlement date. Cash received in Euroclear or Clearstream from the sale of an interest in a global security to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Euroclear or Clearstream cash account as of the business day for Euroclear or Clearstream following the DTC settlement date.
DTC, Euroclear and Clearstream have agreed to the above procedures to facilitate transfers of interests in the global securities among participants in those settlement systems. However, the settlement systems are not obligated to perform these procedures and may discontinue or change these procedures at any time. Neither we nor the trustee, registrar, transfer agent or any paying agent have any responsibility for the performance by DTC, Euroclear or Clearstream or their participants or indirect participants of their obligations under the rules and procedures governing their operations.
Certificated Securities
Beneficial interests in the global securities may not be exchanged for securities in physical, certificated form unless:
| · | DTC notifies us at any time that it is unwilling or unable to continue as depositary for the global securities and a successor depositary is not appointed within 90 days; |
| · | DTC ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days; |
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| · | we, at our option, notify the trustee that we elect to cause the issuance of certificated securities; or |
| · | certain other events provided in the indenture should occur, including the occurrence and continuance of an event of default with respect to the securities. |
In all cases, certificated securities delivered in exchange for any global security will be registered in the names, and issued in any approved denominations, requested by the depository.
For information concerning paying agents for any securities in certificated form, see “Description of Debt Securities—Payment and Paying Agents.”
Debt Securities Denominated in a Currency other than U.S. Dollars
Unless otherwise specified in the applicable prospectus supplement, the following information relates to the form, clearing and settlement of debt securities denominated in a currency other than the U.S. dollar.
We will issue the debt securities as one or more global securities registered in the name of a common depositary for Euroclear and Clearstream. Investors may hold book-entry interests in the global securities through organizations that participate, directly or indirectly, in Euroclear or Clearstream. Book-entry interests in the debt securities and all transfers relating to the debt securities will be reflected in the book-entry records of Euroclear and Clearstream.
The distribution of the debt securities will be carried through Euroclear and Clearstream. Any secondary market trading of book-entry interests in the debt securities will take place through participants in Euroclear and Clearstream and will settle in same-day funds. Owners of book-entry interests in the debt securities will receive payments relating to their debt securities in U.S. dollars or such other currency in which the debt securities are denominated, as applicable. Euroclear and Clearstream have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow securities to be issued, held and transferred among the clearing systems without the physical transfer of certificates. Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market.
The policies of Euroclear and Clearstream will govern payments, transfers, exchange and other matters relating to the investor’s interest in securities held by them. We have no responsibility for any aspect of the records kept by Euroclear or Clearstream or any of their direct or indirect participants. We do not supervise these systems in any way.
Euroclear and Clearstream and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. You should be aware that they are not obligated to perform or continue to perform these procedures and may modify them or discontinue them at any time.
Except as provided below, owners of beneficial interest in the debt securities will not be entitled to have the debt securities registered in their names, will not receive or be entitled to receive physical delivery of the debt securities in definitive form and will not be considered the owners or holders of the debt securities under the indenture governing the debt securities, including for purposes of receiving any reports delivered by us or the trustee pursuant to the indenture. Accordingly, each person owning a beneficial interest in a debt security must rely on the procedures of the Euroclear and Clearstream and, if that person is not a participant, on the procedures of the participant through which that person owns its interest, in order to exercise any rights of a holder of debt securities.
This description of the clearing systems reflects our understanding of the rules and procedures of Euroclear and Clearstream as they are currently in effect. These systems could change their rules and procedures at any time. We have obtained the information in this section concerning Euroclear and Clearstream and their book-entry systems and procedures from sources that we believe to be reliable, but we take no responsibility for the accuracy of this information.
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Euroclear and Clearstream
Clearstream has advised that: it is a duly licensed bank organized as a société anonyme incorporated under the laws of Luxembourg and is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector (Commission de Surveillance du Secteur Financier); it holds securities for its customers and facilitates the clearance and settlement of securities transactions among them, and does so through electronic book-entry transfers between the accounts of its customers, thereby eliminating the need for physical movement of certificates; it provides other services to its customers, including safekeeping, administration, clearance and settlement of internationally traded securities and lending and borrowing of securities; it interfaces with the domestic markets in over 30 countries through established depositary and custodial relationships; its customers include worldwide securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other professional financial intermediaries; its U.S. customers are limited to securities brokers and dealers and banks; and indirect access to the Clearstream system is also available to others that clear through Clearstream customers or that have custodial relationships with its customers, such as banks, brokers, dealers and trust companies.
Euroclear has advised that: it is incorporated under the laws of Belgium as a bank and is subject to regulation by the Belgian Financial Services and Markets Authority (L’Autorité des Services et Marchés Financiers) and the National Bank of Belgium (Banque Nationale de Belgique); it holds securities for its participants and facilitates the clearance and settlement of securities transactions among them; it does so through simultaneous electronic book-entry delivery against payments, thereby eliminating the need for physical movement of certificates; it provides other services to its participants, including credit, custody, lending and borrowing of securities and tri-party collateral management; it interfaces with the domestic markets of several countries; its customers include banks, including central banks, securities brokers and dealers, banks, trust companies and clearing corporations and certain other professional financial intermediaries; indirect access to the Euroclear system is also available to others that clear through Euroclear customers or that have custodial relationships with Euroclear customers; and all securities in Euroclear are held on a fungible basis, which means that specific certificates are not matched to specific securities clearance accounts.
Clearance and Settlement Procedures
We understand that investors that hold their debt securities through Euroclear or Clearstream accounts will follow the settlement procedures that are applicable to securities in registered form. Debt securities will be credited to the securities custody accounts of Euroclear and Clearstream participants on the business day following the settlement date for value on the settlement date. They will be credited either free of payment or against payment for value on the settlement date.
We understand that secondary market trading between Euroclear or Clearstream participants will occur in the ordinary way following the applicable rules and operating procedures of Euroclear and Clearstream. Secondary market trading will be settled using procedures applicable to securities in registered form.
You should be aware that investors will only be able to make and receive deliveries, payments and other communications involving the debt securities through Euroclear and Clearstream on business days. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States or Brazil.
In addition, because of time zone differences, there may be problems with completing transactions involving Euroclear and Clearstream on the same business day as in the United States or Brazil. U.S. and Brazilian investors who wish to transfer their interests in the debt securities, or to make or receive a payment or delivery of the debt securities on a particular day may find that the transactions will not be performed until the next business day in Luxembourg or Brussels, depending on whether Euroclear or Clearstream is used.
Euroclear or Clearstream will credit payments to the cash accounts of participants in Euroclear or Clearstream in accordance with the relevant systemic rules and procedures, to the extent received by its depositary. Euroclear or Clearstream, as the case may be, will take any other action permitted to be taken by a holder under the indenture on behalf of a Euroclear or Clearstream participant only in accordance with its relevant rules and procedures.
Euroclear and Clearstream have agreed to the foregoing procedures in order to facilitate transfers of the debt securities among participants of Euroclear and Clearstream. However, they are under no obligation to perform or continue to perform those procedures, and they may discontinue those procedures at any time.
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Same-Day Settlement and Payment
The underwriters will settle the debt securities in immediately available funds. We will make all payments of principal and interest on the debt securities in immediately available funds. Secondary market trading between participants in Euroclear and Clearstream will occur in accordance with the applicable rules and operating procedures of Euroclear and Clearstream and will be settled using the procedures applicable to securities in immediately available funds. See “—Clearstream and Euroclear.”
Certificated Debt Securities
We will issue debt securities to you in certificated registered form only if:
| · | Euroclear or Clearstream is no longer willing or able to discharge its responsibilities properly, and neither the trustee nor we have appointed a qualified successor within 90 days; or |
| · | we, at our option, notify the trustee that we elect to cause the issuance of certificated debt securities; or |
| · | certain other events provided in the indenture should occur, including the occurrence and continuance of an event of default with respect to the debt securities. |
If any of these three events occurs, the trustee will reissue the debt securities in fully certificated registered form and will recognize the registered holders of the certificated debt securities as holders under the indenture.
In the event that we issue certificated securities under the limited circumstances described above, then holders of certificated securities may transfer their debt securities in whole or in part upon the surrender of the certificate to be transferred, together with a completed and executed assignment form endorsed on the definitive debt security, at the offices of the transfer agent in New York City. Copies of this assignment form may be obtained at the offices of the transfer agent in New York City. Each time that we transfer or exchange a new debt security in certificated form for another debt security in certificated form, and after the transfer agent receives a properly completed assignment form, we will make available for delivery the new definitive debt security at the offices of the transfer agent in New York City. Alternatively, at the option of the person requesting the transfer or exchange, we will mail, at that person’s risk, the new definitive debt security to the address of that person that is specified in the assignment form. In addition, if we issue debt securities in certificated form, then we will make payments interest on and any other amounts payable under the debt securities to holders in whose names the debt securities in certificated form are registered at the close of business on the record date for these payments. If the debt securities are issued in certificated form, we will make payments of principal and any redemption payments against the surrender of these certificated debt securities at the offices of the paying agent in New York City.
Unless and until we issue the debt securities in fully-certificated, registered form,
| · | you will not be entitled to receive a certificate representing our interest in the debt securities; |
| · | all references in this prospectus or any prospectus supplement to actions by holders will refer to actions taken by a depositary upon instructions from their direct participants; and |
| · | all references in this prospectus or in any prospectus supplement to payments and notices to holders will refer to payments and notices to the depositary as the registered holder of the debt securities, for distribution to you in accordance with its policies and procedures. |
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Suzano fully, unconditionally and irrevocably guarantees the debt securities issued by Suzano Austria or Suzano Netherlands, both being Wholly Owned Subsidiaries of Suzano, and all obligations due under the related indentures. The following description summarizes the general terms and provisions of the guarantee that is provided by Suzano in the Suzano Austria indenture and the Suzano Netherlands indenture. You should read the more detailed provisions of the Suzano Austria indenture and the Suzano Netherlands indenture, including the defined terms, for provisions that may be important to you. This summary is subject to, and qualified in its entirety by reference to, the provisions of the Suzano Austria indenture and the Suzano Netherlands indenture.
Pursuant to the Suzano Austria indenture and the Suzano Netherlands indenture, Suzano has fully, irrevocably and unconditionally agreed, from time to time upon the receipt of notice from the trustee that Suzano Austria and/or Suzano Netherlands, as the case may be, has failed to make the required payments under a series of debt securities and the Suzano Austria indenture and/or the Suzano Netherlands indenture, as the case may be, to make any required payment, whether of principal, interest or any other amounts. The amount to be paid by Suzano under the each of the guarantees will be an amount equal to the amount of the payment Suzano Austria or Suzano Netherlands, as applicable, fails to make.
The obligations of Suzano under each of the guarantees will rank:
| · | equal in right of payment to all other existing and future senior unsecured debt of Suzano subject to certain statutory preferences under applicable law, including labor and tax claims; and |
| · | senior in right of payment to Suzano’s subordinated debt (Article 12 of the Suzano Austria indenture and the Suzano Netherlands indenture). |
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At the time of offering any securities, we will supplement the following summary of the plan of distribution with a description of the offering, including the particular terms and conditions thereof, set forth in a prospectus supplement relating to those securities.
Each prospectus supplement with respect to a series of securities will set forth the terms of the offering of those securities, including the name or names of any underwriters or agents, the price of such securities and the net proceeds to us from such sale, any underwriting discounts, commissions or other items constituting underwriters’ or agents’ compensation, any discount or concessions allowed or reallowed or paid to dealers and any securities exchanges on which those securities may be listed.
We may sell the securities from time to time in their initial offering as follows:
| · | through agents; |
| · | to dealers or underwriters for resale; |
| · | directly to purchasers; or |
| · | through a combination of any of these methods of sale. |
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders. In some cases, we or dealers acting with us or on our behalf may also purchase securities and reoffer them to the public by one or more of the methods described above. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
The securities we distribute by any of these methods may be sold to the public, in one or more transactions, either:
| · | at a fixed price or prices, which may be changed; |
| · | at market prices prevailing at the time of sale; |
| · | at prices related to prevailing market prices; or |
| · | at negotiated prices. |
We may solicit offers to purchase securities directly from the public from time to time. We may also designate agents from time to time to solicit offers to purchase securities from the public on our behalf. The prospectus supplement relating to any particular offering of securities will name any agents designated to solicit offers, and will include information about any commissions we may pay the agents, in that offering. Agents may be deemed to be “underwriters” as that term is defined in the Securities Act of 1933.
From time to time, we may sell securities to one or more dealers acting as principals. The dealers, who may be deemed to be “underwriters” as that term is defined in the Securities Act of 1933, may then resell those securities to the public.
We may sell securities from time to time to one or more underwriters, who would purchase the securities as principal for resale to the public, either on a firm-commitment or best-efforts basis. If we sell securities to underwriters, we may execute an underwriting agreement with them at the time of sale and will name them in the applicable prospectus supplement. In connection with those sales, underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of the securities for whom they may act as agents. Underwriters may resell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from purchasers for whom they may act as agents. The applicable prospectus supplement will include any required information about underwriting compensation we pay to underwriters, and any discounts, concessions or commissions underwriters allow to participating dealers, in connection with an offering of securities.
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If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
We may authorize underwriters, dealers and agents to solicit from third parties offers to purchase securities under contracts providing for payment and delivery on future dates. The applicable prospectus supplement will describe the material terms of these contracts, including any conditions to the purchasers’ obligations, and will include any required information about commissions we may pay for soliciting these contracts.
Underwriters, dealers, agents and other persons may be entitled, under agreements that they may enter into with us, to indemnification by us against certain liabilities, including liabilities under the Securities Act of 1933.
Each series of securities will be a new issue, and there will be no established trading market for any security prior to its original issue date. We may not list any particular series of securities on a securities exchange or quotation system. No assurance can be given as to the liquidity or trading market for any of the securities.
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The financial statements and management’s assessment of the effectiveness of internal control over financial reporting(which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the annual report on Form 20-F for the year ended December 31, 2024 have been so incorporated in reliance on the report of PricewaterhouseCoopers Auditores Independentes Ltda., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
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Unless otherwise specified in the applicable prospectus supplement, Cleary Gottlieb Steen & Hamilton LLP will provide an opinion regarding the validity of the debt securities and the guarantees under New York law; Mr. Walner Alves Cunha Junior, Suzano’s general counsel, will provide an opinion regarding the authorization of the guarantees of Suzano under Brazilian law; Weber Harrer Rechtsanwälte GmbH & Co KG, special Austrian counsel to Suzano, will provide an opinion regarding the authorization of the debt securities of Suzano Austria under Austrian law; and Linklaters LLP, special Dutch counsel to Suzano Netherlands, will provide an opinion regarding the authorization of the debt securities of Suzano Netherlands under Dutch law.
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ENFORCEABILITY OF CIVIL LIABILITIES
Brazil
All, or substantially all, of Suzano’s directors and officers and certain advisors named herein reside outside the United States. As a result, it may not be possible, or it may be difficult, for you to effect service of process upon us or these other persons within the United States, or to enforce judgments obtained in United States courts against us or them, including those predicated upon the civil liability provisions of the federal securities laws of the United States.
We have been advised by our internal Brazilian general counsel that a judgment of a United States court for civil liabilities predicated upon the federal securities laws of the United States may be enforced in Brazil, subject to certain requirements described below. Such counsel has advised us that a judgment obtained outside Brazil against Suzano or the persons described above would be enforceable in Brazil without retrial or re-examination of the merits of the original action including, without limitation, any final judgment for payment of a sum certain of money rendered by any such court, provided that such judgment has been previously recognized by the Superior Court of Justice of Brazil (Superior Tribunal de Justiça), or “STJ”. In order to be recognized by the STJ, a foreign judgment must meet the following conditions:
| · | it must comply with all formalities necessary for its enforcement under the laws of the jurisdiction where it was rendered; |
| · | it must have been issued by a competent court after proper service of process on the parties, which service must be in accordance with Brazilian law if made in Brazil, or after sufficient evidence of the parties’ absence (revelia) has been given, in accordance with applicable law; |
| · | it must be final and therefore not be subject to appeal; |
| · | it must be effective under the laws of the country where the foreign judgment is granted; |
| · | it must not be contrary to Brazilian national sovereignty, or public policy or good morals or violate human dignity; |
| · | it must not violate a final and unappealable decision issued by a Brazilian court; |
| · | it must not violate the exclusive jurisdiction of the Brazilian courts; and |
| · | it must be (i) duly authenticated by a Brazilian consulate in the United States or (ii) if the place of signing is a contracting state to the Convention Abolishing the Requirement of Legalization for Foreign Public Documents dated October 5, 1961, apostilled, and, in either case, must be accompanied by a sworn translation into Portuguese, unless an exemption is provided by an international treaty to which Brazil is a signatory. |
The recognition process may be time-consuming and may also give rise to difficulties in enforcing the foreign judgment in Brazil. Accordingly, we cannot assure you that recognition would be obtained, that the recognition process would be conducted in a timely manner or that a Brazilian court would enforce a monetary judgment, including for violation of the securities laws of countries other than Brazil, including the federal securities laws of the United States.
Austria
Suzano Austria is a limited liability company incorporated under the laws of the Republic of Austria and has its corporate seat in Vienna, Austria. All of Suzano Austria’s assets are located outside the United States and all of Suzano Austria’s directors reside outside the United States. As a result, it may be difficult for investors to effect service of process within the United States upon Suzano Austria, or upon such non-United States residing persons. Any civil liabilities based on the securities laws of the United States may not be enforceable in Austria against Suzano Austria or any director residing outside the United States, either in an original action or in action to enforce a judgement obtained in U.S. courts.
In the terms and conditions of the securities, Suzano Austria has (1) agreed that the courts of the State of New York and the federal courts of the United States, in each case sitting in the Borough of Manhattan, The City of New York, will have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with the securities and, for such purposes, will irrevocably submit to the non-exclusive jurisdiction of such courts and (2) named an agent for service of process in the Borough of Manhattan, The City of New York. See “Description of the Debt Securities.”
The United States and Austria do not have a treaty providing for reciprocal recognition and enforcement of judgments in civil and commercial matters. Therefore, a final judgment for payment of money rendered by the courts of the State of New York and the federal courts of the United States, in each case sitting in the Borough of Manhattan, the City of New York, based on civil liability, whether or not predicated solely upon U.S. federal securities laws, or any other court in the United States may not be enforceable, either in whole or in part, in Austria.
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However, if the party in whose favor such final judgment is rendered brings a new suit in a competent court in Austria, such party may submit to the Austrian court the final judgment rendered in the United States. Under such circumstances, a judgment by a federal or state court of the United States against Suzano Austria or its managing directors will be regarded by an Austrian court only as evidence of the outcome of the dispute to which such judgment relates, and an Austrian court may choose to re-hear the dispute. In addition, awards of punitive damages in actions brought in the United States or elsewhere are unenforceable in Austria.
The Netherlands
Suzano Netherlands is a private company with limited liability incorporated under the laws of the Netherlands and has its corporate seat in Amsterdam, the Netherlands. All of Suzano Netherlands’s assets are located outside the United States and all of Suzano Netherlands’s directors reside outside the United States. As a result, it may be difficult for investors to effect service of process within the United States upon Suzano Netherlands, or upon such non-United States residing persons. Any civil liabilities based on the securities laws of the United States may not be enforceable in the Netherlands against Suzano Netherlands or any director residing outside the United States, either in an original action or in action to enforce a judgement obtained in U.S. courts.
In the terms and conditions of the securities, Suzano Netherlands has (1) agreed that the courts of the State of New York and the federal courts of the United States, in each case sitting in the Borough of Manhattan, The City of New York, will have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with the securities and, for such purposes, will irrevocably submit to the non-exclusive jurisdiction of such courts and (2) named an agent for service of process in the Borough of Manhattan, The City of New York. See “Description of the Debt Securities.”
The United States and the Netherlands currently do not have a treaty providing for the reciprocal recognition and enforcement of judgments, other than in arbitration awards, in civil and commercial matters. Consequently, a final judgment for payment given by any court in the United States, whether or not predicated solely upon U.S. securities laws, would not be enforceable in the Netherlands. However, if a person has obtained a final and conclusive judgment for the payment of money rendered against Suzano Netherlands by the foreign court which is enforceable in the United States of America (the "foreign judgment"), and files his claim with the competent Dutch court, the Dutch court will generally give binding effect to the foreign judgment insofar as it finds that the jurisdiction of the foreign court has been based on grounds which are internationally acceptable and that proper legal procedures have been observed, and unless the foreign judgment contravenes Dutch public policy or is incompatible with a judgment rendered between the same parties by a Dutch court or with an earlier judgment rendered between the same parties by a non-Dutch court in a dispute that concerns the same subject and is based on the same cause, provided that the earlier judgment qualifies for recognition in the Netherlands.
Subject to the foregoing and provided that service of process occurs in accordance with applicable treaties, investors may be able to enforce in the Netherlands, judgments in civil and commercial matters obtained from U.S. federal or state courts. However, no assurance can be given that such judgments will be enforceable. In addition, it is doubtful whether a Dutch court would accept jurisdiction and impose civil liability in an original action commenced in the Netherlands and predicated solely upon U.S. federal securities laws.
Any enforcement of agreements governed by foreign law and any foreign judgments in the Netherlands will be subject to the rules of Dutch civil procedure. Judgments may be rendered in a foreign currency, but enforcement is executed in euro at the applicable rate of exchange. Enforcement of obligations in the Netherlands will be subject to the nature of the remedies available in the courts of the Netherlands. Under certain circumstances, a Dutch court has the power to stay proceedings (aanhouden) or to declare that it has no jurisdiction, if concurrent proceedings are being brought elsewhere.
A Dutch court may reduce the amount of damages granted by a U.S. court and recognize damages only to the extent that they are necessary to compensate actual losses and damages.
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LIMITATIONS BY AUSTRIAN CAPITAL MAINTENANCE RULES AND CERTAIN INSOLVENCY LAW CONSIDERATIONS
Austrian Capital Maintenance Rules
The issue and sale of debt securities by Suzano Austria (the “Austrian Debt Securities”) may be subject to Austrian capital maintenance rules (Kapitalerhaltungsvorschriften) pursuant to Austrian corporate law, in particular Section 82 of the Austrian Act on Limited Liability Companies (Gesetz über Gesellschaften mit beschränkter Haftung or GmbHG), if Suzano Austria transfers the net proceeds from the sale of Austrian Debt Securities to Suzano S.A. or any of its affiliates, in particular to repay Suzano S.A.’s or any other group company’s indebtedness (except for downstream payments).
The GmbHG prohibits an Austrian limited liability company from returning equity to its shareholders (Verbot der Einlagenrückgewähr) in circumstances other than as a distribution of balance sheet profits (if, to the extent and as long as available for distribution under Austrian law), by a reduction of share capital or as liquidation surplus on liquidation of that corporation. The provisions on the prohibition to repay capital also cover benefits granted by an Austrian limited liability company to its direct or indirect shareholders or other members of the group of companies (side-stream or upstream) where no “adequate consideration” is received in return or no special corporate benefit of the company from such transaction exists. An adequate consideration must, as a minimum standard, not be less than a comparable consideration, which would have been received by an unrelated third party granting such benefit. Any agreement between an Austrian limited liability company and its shareholder and/or any third party granting an advantage to the shareholder which would not, or not in the same way, have been granted for the benefit of an unrelated third party or which does not provide for a special corporate benefit of the company is void and may not be entered into by such company.
Austrian courts have broadly interpreted the mandatory principle of Austrian law prohibiting the return of equity from a limited liability company to its shareholder. The prohibition also encompasses cases where a limited liability company incurs indebtedness for the benefit of its direct or indirect shareholder (or for the benefit of another member of the group controlled by its direct or indirect shareholder) without an adequate consideration or a special corporate benefit for the company and in cases where doubts exist towards the reliability and solvency of the borrower (i.e. the shareholder) which could give reason to believe that potential recourse claims against the shareholder might fail.
Accordingly, net proceeds from the issue and sale of Austrian Debt Securities by Suzano Austria used for the repayment of indebtedness of entities other than Suzano Austria have to be assessed on the basis of such limitations imposed by Austrian law.
Although third parties are not normally addressees of the prohibition to return equity, any transaction contravening Austrian capital maintenance rules would nevertheless be regarded void vis à vis the third party if such third party knew or should have known that such transaction was processed in violation of the grantor’s capital maintenance obligations. Details of the principle of forbidden return of equity to the shareholder are, however, highly controversial. Moreover, Austrian capital maintenance rules are subject to ongoing court decisions, which are generally made on a case-by-case basis in light of the specific facts of the relevant case, and it cannot be ruled out that future court rulings may not further limit the access of creditors and/or shareholders to assets of subsidiaries constituted in the form of a corporation.
Austrian Insolvency Law
Suzano Austria is incorporated under the laws of Austria; thus, a rebuttable presumption exists that such entity also has its respective “centre of main interests” in Austria. In the event of an insolvency of a company having its “centre of main interests” in Austria, insolvency proceedings may be initiated in Austria. Such proceedings will be governed by Austrian law (for example, if the “centre of main interests” of such company is within Austria or if such company has an “establishment” in the territory of Austria or, where the E.U. Insolvency Regulation (Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings(recast) (the “E.U. Insolvency Regulation”)) does not apply, if such company has assets in Austria). Under certain circumstances, insolvency proceedings may also be opened in Austria in accordance with Austrian law with respect to the assets of companies that are not organized under Austrian law.
The following is a brief description of certain aspects of Austrian insolvency law. The law relating to insolvency is regulated by the Austrian Insolvency Act (Insolvenzordnung) (the “AIA”).
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Insolvency proceedings (Insolvenzverfahren) are opened by a court in the event that the debtor is insolvent (zahlungsunfähig) (i.e., unable to pay its debts as and when they fall due) or over-indebted within the meaning of the AIA (überschuldet) (i.e., its liabilities exceed the value of its assets (evaluated on the basis of its estimated liquidation value) in combination with a negative prognosis on its ability to continue as a going concern (negative Fortbestehensprognose)). Under Austrian law, insolvency proceedings may be initiated either by the (insolvent) company or a creditor by filing an application to that effect with a court of competent jurisdiction. If the requirements for the opening of insolvency proceedings are met (insolvency or over-indebtedness), the (insolvent) company must apply for the opening of insolvency proceedings without undue delay, but no later than sixty days after the occurrence of insolvency. If insolvency proceedings are initiated upon a creditor’s request, such creditor will have to show that the debtor is insolvent or over indebted. In the event that the debtor is at imminent risk of being unable to pay its debts as and when they fall due (drohende Zahlungsunfähigkeit), insolvency proceedings may be initiated only upon the debtor’s request.
If the debtor has submitted, together with its application requesting the opening of insolvency proceedings, an application for the commencement of restructuring proceedings (Sanierungsverfahren), the court may order the opening of either (i) insolvency proceedings or (ii) restructuring proceedings. The legal provisions regulating restructuring proceedings do not apply to insolvency proceedings.
If it is the debtor that has applied for the initiation of insolvency proceedings and has submitted to the court a restructuring plan (Sanierungsplan) that offers a recovery rate of at least 20% payable to the unsecured creditors over a maximum period of two years, from the date of adoption of the restructuring plan any proceedings so initiated by the court will be in the form of restructuring proceedings. A debtor may also submit a restructuring plan in the course of insolvency proceedings that are already in progress whereupon such proceedings will continue as restructuring proceedings. For the debtor’s restructuring plan to be approved by the court it must meet certain criteria specified by law.
The purpose of a restructuring plan is to enable a debtor to be released from a portion of its debts (not to exceed 80% of the aggregate amount thereof) and to continue its business operations. A restructuring plan has to be approved by a “qualified majority” of the debtor’s unsecured creditors. A “qualified majority” refers to a majority of the debtor’s unsecured creditors present at the respective court hearing, provided that such majority represents more than 50% of the aggregate amount of all claims of the unsecured creditors being present at such hearing. Once the debtor has complied with the terms of a restructuring plan that was duly approved by the creditors and confirmed by the court, it will be released from its remaining outstanding unsecured debts. Unsecured creditors whose claims under the restructuring plan have not been satisfied in accordance with the plan’s terms may enforce their individual claims against the debtor, in which case the restructuring proceedings will be continued as insolvency proceedings.
If the restructuring proceedings have been initiated and the debtor has submitted a restructuring plan that offers a recovery rate of at least 30% to the unsecured creditors over a maximum two-year period after the approval of such restructuring plan, the debtor qualifies for self-administration (Sanierungsverfahren mit Eigenverwaltung).
Unless the debtor qualifies for self-administration, it is not allowed as of the date of the opening of the insolvency or the restructuring proceedings, as the case may be, to dispose of the assets belonging to the insolvency estate (Insolvenzmasse). The opening of insolvency proceedings takes effect on the day following the publication of the court’s order opening such proceedings in the official online database of Austrian insolvencies (www.edikte.justiz.gv.at). After the opening of insolvency proceedings, transactions of the debtor with respect to assets belonging to the insolvency estate have no effect against the creditors of the insolvency estate.
Upon its decision to open the insolvency proceedings, the court will appoint an insolvency administrator (Insolvenzverwalter) and may, depending on the nature and the size of the debtor’s business (either ex officio or upon the request of the creditors’ meeting (Gläubigerversammlung)), appoint a creditors’ committee (Gläubigerausschuss) charged with monitoring and assisting the insolvency administrator in the discharge of its duties. After the opening of insolvency proceedings (and unless the debtor qualifies for self-administration), only the insolvency administrator is entitled to act on behalf of the insolvency estate.
Under Austrian law, an insolvency administrator’s role is to continue the debtor’s business with a view to enabling a potential reorganization of such business either by implementing the debtor’s restructuring plan or by a sale of the debtor’s assets. If neither a restructuring plan nor a sale of the debtor’s business is possible, the insolvency administrator will discontinue the debtor’s business operations. As a result of the ensuing insolvency proceedings, the debtor’s assets will be liquidated and the proceeds realized thereby will be distributed to the debtor’s creditors, with the debtor remaining liable for any portion of its debts not satisfied by such proceeds.
41
If the debtor qualifies for self-administration, the court will proceed with the appointment of a restructuring administrator (Sanierungsverwalter) to monitor the activities of the debtor. In such case, certain transactions are either subject to the restructuring administrator’s approval or may be performed only by the restructuring administrator.
Creditors (Insolvenzgläubiger) wishing to assert their claims against the debtor must participate in the insolvency proceedings and file their claim with the competent court within the time period set out in the court order opening the insolvency proceedings. At the respective examination hearing (Prüfungstagsatzung), the insolvency administrator has to declare whether it acknowledges or contests each of the claims filed with the court. If the insolvency administrator acknowledges a creditor’s claim, such creditor will be entitled to participate in the insolvency proceedings and the pro rata distribution to unsecured creditors that will follow. If a creditor’s claim is contested by the insolvency administrator, the creditor will have to seek enforcement of its claim in civil proceedings and only then participate in the insolvency proceedings.
Claims of unsecured creditors which were created before the opening of the insolvency proceedings rank pari passu among themselves. Certain claims which lawfully arose against the insolvency estate after the opening of the insolvency proceedings (privileged claims (Masseforderungen)) enjoy priority in insolvency proceedings. This includes all taxes, fees, tariffs, social security contributions and any other public assessment concerning the insolvency estate if and to the extent that the facts and circumstances triggering any such obligation are established during the insolvency proceeding.
Claims which are secured by collateral, such as a mortgage, a pledge over bank accounts or shares, an assignment of receivables for security purposes or a security transfer of moveable assets (preferential claims (Absonderungsrechte)), are entitled to preferential payment in the distribution of the proceeds resulting from the realization of the charged asset. Creditors who have a right to preferential treatment may participate in the pro rata distribution to the unsecured creditors only to the extent that the proceeds from the realization of the assets charged to them did not cover their claims or if they have waived their right to preferential treatment. Secured creditors do not have a voting right with respect to the approval of the restructuring plan to the extent their claim is covered by security. Claims relating to the payment of taxes, social security contributions and employee compensation are not, as such, privileged or preferential claims under Austrian law.
The costs of the insolvency proceedings and certain liabilities accrued during such proceedings constitute privileged claims (Masseforderungen) and rank senior to all other insolvency claims (Insolvenzforderungen). Claims of creditors with a right of segregation of assets (Aussonderungsberechtigte), such as creditors with a retention of title or trustees, remain unaffected by the opening of insolvency proceedings.
Once insolvency proceedings have been opened it is no longer possible to obtain an execution lien with respect to assets belonging to the insolvency estate. All execution proceedings against the debtor are subject to an automatic stay during the duration of the insolvency proceeding (Vollstreckungssperre). Execution liens obtained within the last 60 days prior to the opening of insolvency proceedings expire upon the opening of such insolvency proceedings.
An Austrian court may appoint a trustee (Kurator) for the Austrian Debt Securities issued by Suzano Austria to exercise the rights and represent the interests of holders of Austrian Debt Securities on their behalf in which case the ability of holders of Austrian Debt Securities to pursue their rights under the Austrian Debt Securities individually may be significantly limited. Pursuant to the Austrian Notes Trustee Act (Kuratorengesetz), a trustee may be appointed upon the request of any interested party (e.g. a holder of the Notes) or upon the initiative of the competent court, for the purposes of representing the common interests of the holders in matters concerning their collective rights. In particular, this may occur if insolvency proceedings are initiated against Suzano Austria, in connection with any amendments to the terms and conditions of the Austrian Debt Securities or changes relating to Suzano Austria, or under other similar circumstances, including also restructuring scenarios. If a trustee is appointed, the trustee will exercise the collective rights and represent the interests of all of the holders of Austrian Debt Securities and will be entitled to make statements on their behalf which shall be binding on all holders. Where a trustee represents the interests and exercises the rights of holders, this may conflict with or otherwise adversely affect the interests of individual or all holders. Investors should note that a trustee will not be subject to any instructions given by single holders of Austrian Debt Securities or the holders’ meeting and that the trustee is obliged to act in the best interest of all holders, not taking into account particular interests of certain holders or groups of holders.
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Dutch Insolvency Law
Suzano Netherlands is incorporated under the laws of the Netherlands. Accordingly, where Suzano Netherlands has its “centre of main interests” or an “establishment in the Netherlands”, it may be subject to Dutch insolvency proceedings. In the event it was determined that Suzano Netherlands has its “centre of main interest” outside of the European Union, Suzano Netherlands may still be subjected to insolvency proceedings in the Netherlands due to the fact that the E.U. Insolvency Regulation would not apply. In that event, Dutch courts can claim jurisdiction based on the Dutch Bankruptcy Act (Faillissementswet) because Suzano Netherlands has its statutory seat in the Netherlands. Under certain circumstances, bankruptcy proceedings may also be opened in the Netherlands in accordance with Dutch law over the assets of companies that are not established under Dutch law.
Dutch insolvency law differs from insolvency proceedings in the United States and other jurisdictions and may make it more difficult for holders of debt securities issued and sold by Suzano Netherlands (the “Dutch Debt Securities”) to recover the amount they would normally expect to recover in a liquidation or bankruptcy proceeding in the United States or another jurisdiction. The following is a brief description of certain aspects of Dutch insolvency law.
There are two applicable corporate insolvency regimes under Dutch law: the first, suspension of payments (surseance van betaling), is intended to facilitate the reorganization of a debtor’s indebtedness and enable the debtor to continue as a going concern. The second, bankruptcy (faillissement), is primarily designed to liquidate and distribute the debtor’s assets to its creditors. In addition, the Act on Court Confirmation of Extrajudicial Restructuring Plans (Wet homologatie onderhands akkoord) (the “WHOA”) allows a debtor to offer a composition outside of formal insolvency proceedings such as suspension of payments or bankruptcy. Both insolvency regimes and the WHOA are set forth in the Dutch Bankruptcy Act. In practice, a suspension of payments often results in bankruptcy. A general description of the principles of the regimes is set out below.
Under Dutch law secured creditors (and in case of suspension of payment also preferential creditors (including tax and social security authorities)) may enforce their rights against assets of the company to satisfy their claims as if there were no insolvency proceedings. A recovery under Dutch law could, therefore, involve a sale of assets that does not reflect the going concern value of the debtor. However, the court may order a “cooling down period” (afkoelingsperiode) for a maximum period of four months during which enforcement actions by secured or preferential creditors are barred.
Any pending executions of judgments against Suzano Netherlands would be suspended by operation of law when suspension of payments is granted and would be terminated by operation of law when bankruptcy is declared. In addition, any attachment by holder of Dutch Debt Securities on its assets will cease to have effect upon the suspension of payments having become definitive, a composition having been ratified by the court or the declaration of bankruptcy (as the case may be) subject to the ability of the court to set an earlier date for such termination. Litigation pending on the date of the bankruptcy order is automatically stayed. Under Dutch law, bankruptcy and moratorium of payment generally take effect at 00.00 a.m. on the day of the judgment of the bankruptcy or the moratorium of payments.
In a suspension of payments or a bankruptcy, a composition (akkoord) may be offered to creditors (including holders of Dutch Debt Securities). A composition will be binding on all unsecured and non-preferential creditors (including holders of Dutch Debt Securities) if it is (i) approved by a simple majority of the creditors being present or represented at the creditors' meeting, representing at least fifty per cent. of the amount of the claims that are admitted for voting purposes, and (ii) subsequently ratified (gehomologeerd) by the competent Dutch court. Consequently, Dutch insolvency laws could preclude or inhibit the ability of the holders of Dutch Debt Securities to effect a restructuring and could reduce the recovery of such holder in Duch suspension of payments proceedings or bankruptcy. Interest accruing after the date on which a moratorium or bankruptcy is granted cannot be claimed in a composition.
The existence, value and ranking of any claims submitted by holders of debt securities may be challenged in Dutch insolvency proceedings. Generally, in a creditors’ meeting (verificatievergadering), the receiver (curator) in bankruptcy, the administrator (bewindvoerder) in suspension of payment proceedings, the insolvent debtor and all verified creditors may dispute the verification of claims of other creditors. Creditors whose claims or value thereof are disputed in the creditors’ meeting may be referred to separate court proceedings (renvooiprocedure) in bankruptcy proceedings, while in suspension of payment proceedings the competent court will decide how a disputed claim will be treated for voting purposes. These situations could cause a holder of Dutch Debt Securities to recover less than the principal amount of their claim. Renvooi procedures could also cause payments to holders of Dutch Debt Securities be delayed compared to holders of undisputed claims.
The Dutch Bankruptcy Act does not in itself recognize the concept of classes of creditors. Remaining amounts, if any, after satisfaction of the secured and the preferential creditors are distributed among the unsecured non-preferential creditors, who will be satisfied on a pro-rata basis. Contractual subordination may to a certain extent be given effect in Dutch insolvency proceedings with the actual effect largely depending on the way such subordination is construed.
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With the entry into force of the WHOA on January 1, 2021, debtors now have the possibility to offer a composition outside of formal insolvency proceedings. Under the WHOA, a composition can be offered to (secured) creditors as well as shareholders by the debtor or by a court-appointed restructuring expert. Upon confirmation by the court, such composition is binding on the creditors and shareholders to whom it has been offered and affects their rights.
The WHOA provides, inter alia, for cross class cramdown, the restructuring of group company obligations through either one or more aligned proceedings, the termination of onerous contracts with deactivation of ipso facto, and supporting court measures. A composition plan under the WHOA can extend to claims against entities that are not incorporated under Dutch law and/or are residing outside the Netherlands.
Under the WHOA, voting on a composition plan is done in classes. Approval by a class requires a decision adopted with a majority of two third of the claims of that class that have voted on the plan or, in the case of a class of shareholders, two thirds of the shares of that class that have voted on the plan. The WHOA provides for the possibility for a composition plan to be binding on a non-consenting class (cross class cramdown). Under the WHOA, the court will confirm a composition plan if at least one class of creditors (other than a class of shareholders) that can be expected to receive a distribution in case of a bankruptcy of the debtor approves the plan, unless there is a statutory ground for refusal. The court can, inter alia, refuse confirmation of a composition plan on the basis of (i) a request by an affected creditor of a consenting class if the value of the distribution that such creditor receives under the plan is lower than the distribution it can be expected to receive in case of a bankruptcy of the debtor or (ii) a request of an affected creditor of a non-consenting class, if the plan provides for a distribution of value that deviates from the statutory or contractual ranking and priority to the detriment of that class.
Under the WHOA, the court may grant a stay on enforcement of a maximum of four months, with a possible extension of four months. During such period, inter alia, all enforcement action against the assets of (or in the possession of) the debtor is suspended, including action to enforce security over the assets of the debtor. Accordingly, during such stay a pledgee of claims may not collect nor notify the debtors of such pledged claims of its rights of pledge.
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DATA PROTECTION PRIVACY NOTICE
Data Protection in Austria
The General Data Protection Regulation (EU) 2016/679 (“GDPR”) regulates data protection and privacy for all individual citizens of the European Union (EU) and the European Economic Area (EEA). It addresses the transfer of personal data outside the EU and EEA areas. The GDPR aims primarily to give control to individuals over their personal data and to simplify the regulatory environment for international business within the EU. The regulation contains provisions and requirements related to the processing of personal data of individuals (formally called “data subjects” in the GDPR) inside the EEA, and applies to any enterprise established in the EEA or — regardless of its location and the data subjects' citizenship — that is processing the personal information of data subjects inside the EEA.
In defined situations under this prospectus, Suzano Austria may come into the position to collect data from holders, including EU residents. Before collecting such data, Suzano Austria shall have put in place appropriate technical and organizational measures to implement the data protection principles. Business processes that handle personal data must be designed and built with consideration of the principles and provide safeguards to protect data (for example, using pseudonymization or full anonymization where appropriate), and use the highest-possible privacy settings by default, so that the datasets are not publicly available without explicit, informed consent, and cannot be used to identify a subject without additional information (which must be stored separately). No personal data may be processed unless this processing is done under a lawful basis specified by the GDPR. Suzano Austria, in advance, shall clearly disclose the fact of any data collection, declare the lawful basis and purpose for data processing, and state how long data is being retained and whether data is shared with third parties or outside of the EEA. Holders will have the right to request a portable copy of the data collected by a Suzano Austria in a common format, and the right to have their data erased under certain circumstances. Among others, Suzano Austria may be required to employ a data protection officer (DPO) who is responsible for managing compliance with the GDPR.
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INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
Neither the laws of Brazil nor the bylaws of Suzano provide for indemnification of any controlling persons, directors or officers of Suzano. However, Suzano’s directors and officers benefit from insurance against civil liabilities, including civil liabilities in connection with the registration, offering and sale of the debt securities.
Neither Suzano Austria’s articles of association nor the laws of Austria provide for indemnification of directors or officers.
Suzano Netherlands’s articles of association (statuten) do not provide for indemnification of its directors or officers; however, Dutch law provides for the possibility to discharge managing directors of any potential liability in respect of their management actions in the preceding financial year at the annual general meeting when adopting the annual accounts. This discharge is not absolute and is without prejudice to, inter alia, the provisions of article 2:248 of the Dutch Civil Code and other circumstances in which such discharge can retroactively be rendered void.
The underwriting agreements included as Exhibit 1.1 and 1.2, respectively, to this prospectus include provisions relating to the indemnification of the directors and certain officers of Suzano, Suzano Austria and Suzano Netherlands, respectively. Any other underwriting agreement used or executed in connection with this prospectus (or any supplement hereto) may also include provisions relating to the indemnification of the directors and certain officers of Suzano, Suzano Austria and Suzano Netherlands, respectively
Item 9. Exhibits.
| II-1 |
Item 10. Undertakings.
| (a) | Each of the undersigned registrants hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
i. To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
ii. To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
iii. To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Item 8.A. of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement;
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
| II-2 |
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of the registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section (10)(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and
(6) That, for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the registrants undertake that in a primary offering of securities of the registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the registrant or its securities provided by or on behalf of the registrant; and (iv) any other communication that is an offer in the offering made by the registrant to the purchaser.
(b) Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each of the registrants pursuant to the foregoing provisions, or otherwise, each of the registrants has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
| II-3 |
SIGNATURES OF SUZANO S.A.
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statements to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of São Paulo, Brazil, on April 30, 2025.
| SUZANO S.A. | |||
| By: | /s/ João Alberto Fernandez de Abreu | ||
| Name: | João Alberto Fernandez de Abreu | ||
| Title: | Chief Executive Officer | ||
| By: | /s/ Marcos Moreno Chagas Assumpção | ||
| Name: | Marcos Moreno Chagas Assumpção | ||
| Title: | Executive Vice-President, Finance and Investor Relations | ||
II-4
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints João Alberto Fernandez de Abreu and Marcos Moreno Chagas Assumpção, jointly and severally (with full power to each of them to act alone) his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement on Form F-3, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his/her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated in respect of Suzano S.A. on April 30, 2025.
| Signature | Title | Date | ||
|
/s/ João Alberto Fernandez de Abreu |
Chief Executive Officer | April 30, 2025 | ||
| João Alberto Fernandez de Abreu | ||||
| /s/ Marcos Moreno Chagas Assumpção | Executive Vice-President, Finance and Investor Relations | April 30, 2025 | ||
Marcos Moreno Chagas Assumpção |
||||
| /s/ David Feffer | President of Board of Directors | April 30, 2025 | ||
| David Feffer | ||||
| /s/ Daniel Feffer | Vice-President of Board of Directors | April 30, 2025 | ||
| Daniel Feffer | ||||
| /s/ Nildemar Secches | Vice-President of Board of Directors | April 30, 2025 | ||
| Nildemar Secches | ||||
| /s/ Gabriela Feffer Moll | Member of Board of Directors | April 30, 2025 | ||
| Gabriela Feffer Moll | ||||
| /s/ Gabriela Feffer Moll | Member of Board of Directors | April 30, 2025 | ||
| Gabriela Feffer Moll | ||||
| /s/ Maria Priscila Rodini Vansetti Machado | Member of Board of Directors | April 30, 2025 | ||
| Maria Priscila Rodini Vansetti Machado | ||||
| /s/ Paulo Rogerio Caffarelli | Member of Board of Directors | April 30, 2025 | ||
| Paulo Rogerio Caffarelli | ||||
| /s/ Paulo Sergio Kakinoff | Member of Board of Directors | April 30, 2025 | ||
| Paulo Sergio Kakinoff | ||||
| /s/ Rodrigo Calvo Galindo | Member of Board of Directors | April 30, 2025 | ||
| Rodrigo Calvo Galindo | ||||
| /s/ Walter Schalka | Member of Board of Directors | April 30, 2025 | ||
| Walter Schalka |
II-5
SIGNATURE OF AUTHORIZED REPRESENTATIVE OF SUZANO S.A.
Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Suzano S.A., has signed this registration statement or amendment thereto, as the case may be, in São Paulo, Brazil, on January April 30, 2025.
| Signature | Title | ||
| Suzano Pulp and Paper America, Inc. | Authorized Representative in the United States | ||
| By: | /s/ Guilherme Melhado Miranda | ||
| Name: | Guilherme Melhado Miranda | ||
| Title: | Officer - President | ||
| By: | /s/ Pedro Teixeira Barros e Sousa de Olim | ||
| Name: | Pedro Teixeira Barros e Sousa de Olim | ||
| Title: | Officer - Secretary | ||
II-6
SIGNATURE PAGE OF SUZANO AUSTRIA GMBH
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of São Paulo, Brazil, on January April 30, 2025.
| SUZANO AUSTRIA GMBH | ||
| By: | /s/ Tiago Sousa Seixas | |
| Name: | Tiago Sousa Seixas | |
| Title: | Managing Director | |
| By: | /s/ Paulo Henrique Maia Leime | |
| Name: | Paulo Henrique Maia Leime | |
| Title: | Managing Director | |
II-7
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints João Alberto Fernandez de Abreu and Marcos Moreno Chagas Assumpção his/her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, acting individually, to sign any and all amendments (including post-effective amendments) to the registration statement on Form F-3, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the indicated capacities as indicated below on April 30, 2025, in respect of Suzano Austria GmbH.
| Signature | Title | |
| /s/ Tiago Sousa Seixas | ||
| Tiago Sousa Seixas | Managing Director | |
| /s/ Paulo Henrique Maia Leime | ||
| Paulo Henrique Maia Leime | Managing Director |
II-8
SIGNATURE OF AUTHORIZED REPRESENTATIVE OF SUZANO AUSTRIA GMBH
Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative of Suzano Austria GmbH, has signed this registration statement in the City of São Paulo, Brazil, on April 30, 2025.
| Signature | Title | ||
| Suzano Pulp and Paper America, Inc. | Authorized Representative in the United States | ||
| By: | /s/ Guilherme Melhado Miranda | ||
| Name: | Guilherme Melhado Miranda | ||
| Title: | Officer - President | ||
| By: | /s/ Pedro Teixeira Barros e Sousa de Olim | ||
| Name: | Pedro Teixeira Barros e Sousa de Olim | ||
| Title: | Officer - Secretary | ||
II-9
SIGNATURE PAGE OF SUZANO NETHERLANDS
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of São Paulo, Brazil, on April 30, 2025.
| SUZANO NETHERLANDS B.V. | ||
| By: | /s/ Tiago Sousa Seixas | |
| Name: | Tiago Sousa Seixas | |
| Title: | Managing Director A | |
| By: | /s/ Justo Jose Gomez Palmes | |
| Name: | Justo Jose Gomez Palmes | |
| Title: | Managing Director B | |
II-10
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints João Alberto Fernandez de Abreu and Marcos Moreno Chagas Assumpção his/her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, acting individually, to sign any and all amendments (including post-effective amendments) to the registration statement on Form F-3, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the indicated capacities as indicated below on April 30, 2025, in respect of Suzano Netherlands B.V.
| Signature | Title | |
| /s/ Tiago Sousa Seixas | ||
| Tiago Sousa Seixas | Managing Director A | |
| /s/ Justo Jose Gomez Palmes | ||
| Justo Jose Gomez Palmes | Managing Director B |
II-11
SIGNATURE OF AUTHORIZED REPRESENTATIVE OF SUZANO NETHERLANDS
Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative of Suzano Netherlands B.V., has signed this registration statement in the City of São Paulo, Brazil, on April 30, 2025.
| Signature | Title | ||
| Suzano Pulp and Paper America, Inc. | Authorized Representative in the United States | ||
| By: | /s/ Guilherme Melhado Miranda | ||
| Name: | Guilherme Melhado Miranda | ||
| Title: | Officer - President | ||
| By: | /s/ Pedro Teixeira Barros e Sousa de Olim | ||
| Name: | Pedro Teixeira Barros e Sousa de Olim | ||
| Title: | Officer - Secretary | ||
II-12
Exhibit 1.1
WARNING
The taking of this document or any certified copy thereof or any document which confirms or refers to this document or any document constituting substitute documentation thereof (each a “Stamp Duty Sensitive Document”) into the Republic of Austria as well as printing out any e-mail communication which confirms or refers to any Stamp Duty Sensitive Document or to which a copy, a pdf-scan or any other scan of any Stamp Duty Sensitive Document is attached in the Republic of Austria and sending any e-mail communication carrying a signature (whether digitally, manuscript or otherwise technically reproduced) which confirms or refers to any Stamp Duty Sensitive Document or to which a copy, a pdf-scan or any other scan of any Stamp Duty Sensitive Document is attached to or from an Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original document as well as all certified copies thereof and written and signed confirmations thereof or references thereto and any document constituting substitute documentation thereof outside of the Republic of Austria and do not (i) print out any e-mail communication which confirms or refers to any Stamp Duty Sensitive Document or to which a copy, a pdf-scan or any other scan of any Stamp Duty Sensitive Document is attached in the Republic of Austria and (ii) send any e-mail communication carrying a signature (whether digitally, manuscript or otherwise technically reproduced) which confirms or refers to any Stamp Duty Sensitive Document or to which a copy, a pdf-scan or any other scan of any Stamp Duty Sensitive Document is attached to or from an Austrian addressee.
Suzano austria gmbh
Debt Securities
Guaranteed by Suzano S.A.
UNDERWRITING AGREEMENT
BASIC PROVISIONS
[DATE]
To the Underwriters named in the
Terms Agreement supplemental hereto
Ladies and Gentlemen:
Suzano Austria GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Republic of Austria, registered under registration number FN 62444 f with the companies’ register (Firmenbuch) of the Commercial Court of Vienna, with its corporate seat in Vienna and its principal office at Jakov-Lind-Straße 13/5, 1020 Vienna, Austria (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time certain of its debt securities specified in the Terms Agreement described below. The debt securities will be irrevocably and unconditionally guaranteed (the “Guarantee”) as to payment of principal, premium (if any) and interest by Suzano S.A., a company organized under the laws of Brazil, as guarantor (the “Guarantor”). Unless otherwise specified in the Terms Agreement, such debt securities will be issued under an amended and restated indenture, dated as of [date], 2025 (the “Indenture”) entered into by and among the Company, the Guarantor and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”). Such debt securities may have varying designations, denominations, currencies, interest rates and payment dates, maturities, redemption provisions and selling prices.
Whenever the Company and the Guarantor determine to make an offering of debt securities through one or more investment banking firms, they will enter into a terms agreement (the “Terms Agreement”) with such firm or firms named therein providing for the sale of the specific series of debt securities to be issued and sold by the Company pursuant thereto (the “Debt Securities”), and the purchase and offering thereof by such Underwriters. The Debt Securities and the Guarantee are referred to herein collectively as the “Securities.” The Terms Agreement shall be substantially in the form of Exhibit A hereto with such additional terms as may be agreed among the Company, the Guarantor and the Underwriters and shall incorporate by reference the basic provisions set forth herein.
The following terms are used herein as defined below:
“Act” shall mean the U.S. Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus relating to the Securities contained in the Registration Statement at the Execution Time.
“Closing Date” shall have the meaning set forth in Section 3 hereof.
“Commission” shall mean the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument the United States Securities and Exchange Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule II to the Terms Agreement, including any final term sheet prepared and filed pursuant to Section 4(d) hereto, and (iv) any other Free Writing Prospectus that the parties to the Terms Agreement shall expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, or any post-effective amendment or amendments thereto, became or become effective.
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the time specified in the Terms Agreement.
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“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Final Term Sheet” shall mean the final term sheet attached as Schedule III to the Terms Agreement.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405 under the Act.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433 under the Act.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus, which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in the first sentence of Section 1(a), including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B under the Act, on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall mean the registration statement so amended.
“Subsidiary” shall mean with respect to any person, any corporation, limited liability company, partnership, association or other business entity of which more than 50.0% of the outstanding voting shares is owned, directly or indirectly, by such person and one or more Subsidiaries of such person (or a combination thereof).
“Transaction Documents” means the Agreement (as defined below), the Indenture and any other agreements specified in the related Terms Agreement.
“Trust Indenture Act” or “TIA” means the U.S. Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed (except as provided in Section 9.05); provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended.
“Underwriter Information” shall mean, with respect to any document, statements in or omissions from such document based upon information furnished to the Company or the Guarantor in writing by or on behalf of any Underwriter through the Representatives specifically for use in such document.
Unless the context otherwise requires, as used herein, (a) the term “Agreement” shall refer to the Terms Agreement duly executed by the parties thereto applicable to a specific offering and incorporating the basic provisions set forth herein; (b) the term “Underwriter” or “Underwriters” shall refer to the one or more investment banking firms which are parties to the Agreement; and (c) “you” or “your” or the “Representatives” shall refer to any manager or managers of an underwriting syndicate specified in the Terms Agreement, or, if none is or are so named, to the Underwriter or Underwriters. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein which were filed with or furnished to the Commission under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing or furnishing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus that is incorporated therein by reference.
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Section 1 Representations and Warranties. Each of the Company and the Guarantor, jointly and severally, represents and warrants to each Underwriter, as of the date of the Agreement, as follows:
(a) Shelf Registration Statement. The Company and the Guarantor have prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405 under the Act (the file number of which is set forth in the Terms Agreement) on Form F-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission. The Company and the Guarantor may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company and the Guarantor will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b).
(b) Substance of Registration Statement. On the applicable Effective Date, the Registration Statement complied, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will comply, in all material respects with the applicable requirements of the Act and the Trust Indenture Act. On the applicable Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. On the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. On the date of any filing pursuant to Rule 424(b), each Preliminary Prospectus did not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. On the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, neither the Company nor the Guarantor makes any representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) any Underwriter Information.
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(c) Compliance with Act and Exchange Act. The documents incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and any further documents deemed to be or, in the case of a Report on Form 6-K, designated as being incorporated by reference in the Registration Statement or the Disclosure Package after the date of the Agreement, when such documents are filed with or furnished to the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and when read together with the other information included or incorporated in the Registration Statement, the Disclosure Package or the Final Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Disclosure Package. At the Execution Time, the Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that neither the Company nor the Guarantor makes any representation and warranty with respect to Underwriter Information.
(e) Issuer. Each of the Company and the Guarantor meets the requirements for use of Form F-3 under the Act. Each of the Company and the Guarantor was (i) at the time of initial filing of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or the Guarantor or any person acting on its or their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption of Rule 163, and is a “well-known seasoned issuer” and was not, and is not, an “ineligible issuer” (in each case as defined in Rule 405 under the Act) at any “determination date” under Rule 164 under the Act or Rule 405 under the Act that is relevant to the offering of the Securities.
(f) No Objection. Neither the Company nor the Guarantor has received from the Commission any notice pursuant to Rule 401(g)(2) objecting to its use of the automatic shelf registration statement form.
(g) No Conflicts. No Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; provided that neither the Company nor the Guarantor makes any representation or warranty with respect to Underwriter Information.
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(h) Organization and Good Standing. Each of the Company, the Guarantor and their respective Subsidiaries has been duly organized and/or incorporated, is validly existing and is in good standing (to the extent the concept of good standing is recognized in the respective jurisdiction) as a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of Austria, in the case of the Company, and as a corporation (sociedade por ações) under the laws of Brazil, in the case of the Guarantor, and under the laws of the jurisdiction of its incorporation or organization in the case of the Guarantor’s Subsidiaries. Each of the Company and the Guarantor and their respective Subsidiaries is duly qualified to do business and is in good standing (to the extent the concept of good standing is recognized in the respective jurisdiction) in each jurisdiction in which its respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and has all power and authority necessary to own or hold its respective properties and to conduct the businesses in which it is engaged, except where the failure to be so qualified, in good standing (to the extent the concept of good standing is recognized in the respective jurisdiction) or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, financial position, results of operations or prospects of the Company or the Guarantor and their respective Subsidiaries taken as a whole or on the performance by the Company, the Guarantor and their respective Subsidiaries of their respective obligations under this Agreement, the Securities, the Indentures and the Guarantees (a “Material Adverse Effect”).
(i) Due Authorization. The Company and the Guarantor have full right, power and authority to execute and deliver the Agreement, the Securities, the Indenture and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(j) The Indentures. The Indenture (including the respective Guarantee set forth therein) has been duly authorized, executed and delivered, by each of the Company and the Guarantor and, assuming due authorization, execution and delivery by the Trustee, constitutes a legal, valid and binding instrument of each of the Company and the Guarantor enforceable against each of the Company and the Guarantor in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law, or, in particular between the United States and Austria, by the absence of treaties providing for reciprocal recognition and enforcement of judgments in civil and commercial matters (collectively referred to as the “Enforceability Exceptions”)); the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Agreement, will constitute legal, valid and binding obligations of the Company and the Guarantor, as applicable, entitled to the benefits of the Indenture, subject to the Enforceability Exceptions; and the Indenture has been duly qualified under the Trust Indenture Act.
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(k) The Securities and the Guarantees. The Securities have been duly authorized by the Company and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantee has been duly authorized by the Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be a valid and legally binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(l) Description of the Indenture and Securities. The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(m) No Violation or Default. Neither the Company, the Guarantor nor any of their respective Subsidiaries is (i) in violation of their memorandum, articles of association, charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in the Indenture or any other indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of their respective Subsidiaries is a party or by which the Company, the Guarantor or any of their respective Subsidiaries is bound or to which any property or asset of the Company, the Guarantor or any of their respective Subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(n) No Conflicts. The execution, delivery and performance by the Company and the Guarantor of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and the use of proceeds thereof, and the issuance of the Guarantees and compliance by the Company and the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the Company, the Guarantor or any of their respective Subsidiaries pursuant to, the Indenture or any mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of their respective Subsidiaries is a party or by which the Company, the Guarantor or any of their respective Subsidiaries is bound or to which any of the property, right or asset of the Company, the Guarantor or any of their respective Subsidiaries is subject, (ii) result in any violation of the provisions of the memorandum, articles of association, charter or bylaws or similar organizational documents of the Company, the Guarantor or any of their respective Subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, and without limiting the generality of the foregoing, Austrian capital maintenance rules (Kapitalerhaltungsvorschriften) pursuant to Austrian corporate law, in particular Section 82 of the Austrian Act on Limited Liability Companies (Gesetz über Gesellschaften mit beschränkter Haftung), except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, have a Material Adverse Effect.
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(o) No Consents Required. No consent, approval, authorization, filing, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority or agency or body is required in connection with the execution, delivery and performance by the Company and the Guarantor of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and the issuance of the Guarantees and compliance by the Company and the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for such except for consents, approvals, authorizations, orders and registrations or qualifications as have been obtained under the Act and the Trust Indenture Act, such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Final Prospectus and such as may be set forth in the Terms Agreement, including, in particular, the requirement to submit a filing for statistical purposes with the new issue calendar (Emissionskalender) maintained by Oesterreichische Kontrollbank AG (OeKB) in Austria in case of an offer of securities in Austria and the publication of such minutes in the applicable Official Gazette (Diário Oficial), as applicable, and in the applicable local newspaper shall be filed with the applicable board of trade (Junta Comercial).
(p) Consolidated Financial Statements. The consolidated financial statements of the Guarantor included in the Base Prospectus, Preliminary Prospectus, Disclosure Package, Final Prospectus and the Registration Statement present fairly, in all material respects, the consolidated financial condition of the Guarantor as of the dates indicated and its consolidated financial performance and its cash flows for the periods specified. The consolidated financial statements of the Guarantor were prepared in accordance with accounting practices adopted in Brazil, including the pronouncements issued by the Brazilian Accounting Pronouncements Committee, and International Financial Reporting Standards (“IFRS”) issued by the International Accounting Standards Board (“IASB”), applied on a consistent basis throughout the periods covered thereby.
(q) Accounting Controls. The Guarantor maintains a system of internal controls, which are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
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(r) Disclosure Controls. The Guarantor and its Subsidiaries have established and maintain disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under the Exchange Act) and has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act. Such disclosure controls and procedures are effective to provide reasonable assurance that information required to be disclosed by the Guarantor in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the applicable rules and forms, and that it is accumulated and communicated to the Guarantor’s management as appropriate to allow timely decisions regarding required disclosure.
(s) Underwriting Agreement. The Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(t) Absence of Taxes in Brazil. Except as described in the Disclosure Package and the Final Prospectus, payments made by the Company to holders under the Securities and the Indenture and by the Company to the Underwriters under the Agreement will not be subject under the current laws of Brazil or any of its political subdivisions to any withholding or similar charges for or on account of taxation.
(u) Absence of Taxes in the Republic of Austria. Except as described in the Disclosure Package and the Final Prospectus, payments of principal and interest made to holders under the Securities and the Indenture and any payment made thereunder by a third party in addition to, or instead of, such payments on behalf of the Company, will not be subject under the laws of the Republic of Austria to any withholding or similar charges for or on account of taxation if such payments are made by a non-Austrian paying agent from a place outside of Austria.
(v) Independent Accountant (PwC). PricewaterhouseCoopers Auditores Independentes Ltda. (or any successor accounting firm selected by the Company or Guarantor), which certified the financial statements and supporting schedules included in the Disclosure Package and the Final Prospectus, are an independent registered public accounting firm with respect to the Guarantor and its Subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) (“PCAOB”) and as required by the Act.
(w) No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Final Prospectus, (a) there has not been (1) any change in the capital stock or long-term debt of the Company, the Guarantor or any of their respective Subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company or the Guarantor, or any of their respective Subsidiaries on any class of capital stock, or (2) any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, results of operations or prospects of the Company, the Guarantor or any of their respective Subsidiaries, taken as a whole; (b) neither the Company, the Guarantor nor any of the Guarantor’s Subsidiaries has entered into any transaction or agreement that is material to the Company, the Guarantor or any of their respective Subsidiaries, taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company, the Guarantor or any of their respective Subsidiaries, taken as a whole, except for, in case of the Company, the issue of the Securities as provided for in this Agreement; and (c) neither the Company, the Guarantor nor any of their respective Subsidiaries has sustained any material loss or interference with its business (1) from fire, explosion, flood or other calamity, whether or not covered by insurance or (2) from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority material to the Guarantor and its Subsidiaries taken as a whole, except in each case as otherwise disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus.
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(x) No Labor Disputes. Other than as set forth or contemplated in the Disclosure Package and the Final Prospectus, there are no labor disturbances by or disputes with employees of the Company, the Guarantor or any of their respective Subsidiaries exists or, to the knowledge of the Company or the Guarantor or any of their respective Subsidiaries, is contemplated or threatened, and neither the Company or the Guarantor is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of the principal suppliers, contractors or customers of the Company, the Guarantor or any of their respective Subsidiaries, except as would not reasonably be expected to have a Material Adverse Effect.
(y) Licenses and Permits. Except as described in the Disclosure Package and the Final Prospectus, the Company, the Guarantor and their respective Subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Disclosure Package and the Final Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in the Disclosure Package and the Final Prospectus, neither the Company, the Guarantor nor any of their respective Subsidiaries has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, sub-license, certificate, permit or authorization will not be renewed in the ordinary course, which such revocations, modifications or non-renewals would reasonably be expected to have a Material Adverse Effect.
(z) Title to Real and Personal Property. The Company, the Guarantor and each of their respective Subsidiaries have good and marketable title in fee simple, or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses of the Company, the Guarantor and each of their respective Subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (a) do not materially interfere with the use made and proposed to be made of such property by the Company, the Guarantor or any of their respective Subsidiaries or (b) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
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(aa) Intellectual Property. (i) The Company, the Guarantor and each of their respective Subsidiaries own or have the right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights and copyrightable works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other worldwide intellectual property, industrial property and proprietary rights (collectively, “Intellectual Property”) used in the conduct of their respective businesses, except for failures that could not reasonably be expected to have a Material Adverse Effect; (ii) to the knowledge of the Company and the Guarantor, the Company, the Guarantor and each of their respective Subsidiaries’ conduct of their respective businesses does not infringe, misappropriate or otherwise violate any Intellectual Property of any person; (iii) the Company, the Guarantor and each of their respective Subsidiaries have not received any notice of any claim of infringement of or conflict with any such rights of others, which infringement would be expected to have a Material Adverse Effect relating to Intellectual Property; and (iv) to the knowledge of the Company and the Guarantor, the Intellectual Property of the Company, the Guarantor and each of their respective Subsidiaries is not being infringed, misappropriated or otherwise violated by any person.
(bb) Certain Environmental Matters. Except as described in the Disclosure Package and the Final Prospectus, (i) the Company, the Guarantor and each of their respective Subsidiaries (a) are in compliance with all, and have not violated any, applicable federal, state, local and foreign laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements relating to pollution or the protection of human health or safety, the environment, natural resources, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (b) have received and are in compliance with all, and have not violated any permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (c) have not received notice of any actual or potential liability or obligation under or relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice; and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company, the Guarantor or any of their respective Subsidiaries; and (iii) to the knowledge of the Company and the Guarantor, (x) there is no proceeding that is pending, or that is known to be contemplated, against the Company, the Guarantor or any of their respective Subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding, (y) neither the Company, the Guarantor nor any of their respective Subsidiaries are aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a Material Adverse Effect on the capital expenditures, earnings or competitive position of the Company, the Guarantor or any of their respective Subsidiaries, and (z) none of the Company, the Guarantor or any of their respective Subsidiaries anticipates material capital expenditures relating to any Environmental Laws except in the case of each of (i), (ii) and (iii) above, for any such matters as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(cc) Sarbanes-Oxley Act. There is and has been no material failure on the part of the Company or the Guarantor or any of the Company’s or the Guarantor’s directors or officers, in their capacities as such, to comply with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(dd) No Unlawful Payments. Neither the Company, the Guarantor nor any of their respective Subsidiaries, nor any director or officer of the Company, the Guarantor or any of their respective Subsidiaries nor, to the knowledge of the Company or the Guarantor, any employee, agent, affiliate or other person associated with or acting on behalf of the Company, the Guarantor or their respective Subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws (including, without limitation, the Brazilian Penal Code, the Brazilian Law No. 12,846/2013 and the Brazilian Decree No. 8,420/2015), each as amended from time to time; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and the Guarantor have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws, and these policies and procedures are also applicable to the Company and the Guarantor’s Subsidiaries.
(ee) Compliance with Anti-Money Laundering Laws. The operations of the Company, the Guarantor and their Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable anti-money laundering statutes of all jurisdictions where the Company, the Guarantor or any of their respective Subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), and, to the knowledge of the Company or the Guarantor, no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company, the Guarantor or any of their Subsidiaries with respect to the Money Laundering Laws is pending or threatened.
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(ff) No Conflicts with Sanctions Laws. Neither the Company, the Guarantor nor any of their respective Subsidiaries, directors, officers or employees, nor, to the knowledge of the Company or the Guarantor, any agent or other person acting on behalf of the Company, the Guarantor or any of their respective Subsidiaries is currently a person with whom or which transactions or dealings are prohibited under any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (UNSC), the European Union, or Her Majesty’s Treasury (HMT) (collectively, “Sanctions”), nor is the Company, the Guarantor or any of their respective Subsidiaries located, organized or resident in a country, region or territory that is the subject or the target of Sanctions (currently Crimea, Cuba, Iran, North Korea, Syria and the territories of Donetsk, Luhansk, Zaporhizhia and Kherson (each, a “Sanctioned Country”)); and neither the Company, the Guarantor nor any of their respective Subsidiaries will directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is a Sanctioned Party, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner, in each such case that will result in a violation by any person participating in the transaction, whether as underwriter, advisor, investor or otherwise of Sanctions.
(gg) Solvency. On and immediately after the Closing Date, the Company, the Guarantor and each of their Subsidiaries (after giving effect to the issuance and sale of the Securities, the issuance of the Guarantee and the other transactions related thereto as described in each of the Disclosure Package and the Final Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date and entity, that on such date (i) the fair value (and present fair saleable value) of the assets of such entity is not less than the total amount required to pay the probable liability of such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities and the issuance of the Guarantees as contemplated by the Agreement, the Disclosure Package and the Final Prospectus, such entity does not have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital; and (v) such entity is not a defendant in any civil action that would result in a judgment that such entity is or would become unable to satisfy.
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Any certificate signed by any officer of the Company or the Guarantor, as the case may be, and delivered to you or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company or Guarantor, as applicable, to each Underwriter as to the matters covered thereby as of the date of such certificate.
Section 2 Representations and Warranties of the Underwriters. Each Underwriter hereby represents and agrees, as of the date of the Agreement, that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus other than (i) a Free Writing Prospectus that is not required under the Act to be filed, (ii) any Issuer Free Writing Prospectus listed on Schedule II to the Terms Agreement or prepared pursuant to Section 4(d) hereto, or (iii) any Free Writing Prospectus prepared by such Underwriter and approved by the Company and the Guarantor in advance in writing.
(b) Unless otherwise specified in the Terms Agreement, it has not and will not, without the prior written consent of the Company and the Guarantor, use any Free Writing Prospectus that contains the final terms of the Securities unless such terms have previously been included in a Free Writing Prospectus filed with the Commission, provided that the Underwriter may use a term sheet substantially in the form set forth in Schedule III to the Terms Agreement without the consent of the Company and the Guarantor; provided further that the Underwriter using such term sheet shall notify the Company and the Guarantor and provide a copy of such term sheet to the Company and the Guarantor, prior to, or substantially concurrently with, the first use of such term sheet.
(c) It will, pursuant to reasonable procedures developed in good faith, retain copies of each Free Writing Prospectus used or referred to by it, in accordance with Rule 433 under the Act.
(d) It is not subject to any pending proceeding under Section 8A of the Act with respect to the offering (and will promptly notify the Company and the Guarantor if any such proceeding against it is initiated during the period in which a prospectus relating to the Securities is required to be delivered under the Act).
(e) Unless otherwise specified in the Terms Agreement, in relation to each Member State of the European Economic Area (each, a “Member State”), each Underwriter represents and agrees that it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by this Agreement to the public in that Member State , except that it may make an offer of the Securities to the public in that Member State at any time:
(i) to any legal entity which is a qualified investor as defined in the Prospectus Regulation;
(ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Regulation), subject to obtaining the prior consent of the relevant dealer or dealers nominated by the issuer for any such offer; or
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(iii) in any other circumstances falling within Article 1(4) of the Prospectus Regulation.
provided that no such offer of Securities shall require the issuer or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the Prospectus Regulation.
For the purposes of this Section 2, the expression an “offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities and the expression “Prospectus Regulation” means Regulation (EU) 2017/1129, as amended.
(f) Unless otherwise specified in the Terms Agreement, in relation to the United Kingdom, each Underwriter represents and agrees that it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by this Agreement to the public in the United Kingdom other than:
(i) to any legal entity which is a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union Withdrawal Act 2018 (“EUWA”);
(ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA) in the United Kingdom, subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the issuer for any such offer; or
(iii) in any other circumstances falling within section 86 of the Financial Services and Markets Act 2000 (“FSMA”), provided that no such offer of Securities shall require the Issuer or any Manager to publish a prospectus pursuant to section 85 of the FSMA or supplement a prospectus pursuant to Article 23 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA.
For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities and the expression “UK Prospectus Regulation” means Regulation (EU) 2017/1129, as it forms part of domestic law by virtue of the EUWA.
(g) Unless otherwise specified in the Terms Agreement, each Underwriter represents, warrants and agrees that it has not offered or sold and will not offer or sell the Securities publicly (as defined for purposes of the securities laws of Brazil or the Republic of Austria, as the case may be) in Brazil or the Republic of Austria.
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Section 3 Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in the Terms Agreement the principal amount of the Securities set forth opposite such Underwriter’s name in the Terms Agreement.
Delivery of and payment for the Securities shall be made on the date and at the time specified in the Terms Agreement or at such time on such later date not more than three business days after the foregoing date as you shall designate, which date and time may be postponed by agreement among the Representatives, the Company and the Guarantor or as provided in Section 10 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to you for the respective accounts of the several Underwriters against payment by the several Underwriters through you of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless you shall otherwise instruct.
Section 4 Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
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(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
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(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s EDGAR website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
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(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Section 5 Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers Auditores Independentes Ltda., independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Auditing Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
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(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its Subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
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(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Section 6 Payment of Expenses. All expenses incident to the performance of each party’s obligations under the Agreement shall be paid in the following manner, unless otherwise specified in the relevant Terms Agreement: the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this Agreement, the Indenture and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s and the Guarantor’s counsel, accountants and other advisors, (v) any fees and expenses incurred by the Underwriters in connection with the marketing and offering of the Securities, excluding the fees and disbursements of counsel for the Underwriters in connection therewith, (vi) the qualification of the Securities under securities laws in accordance with the provisions of Section 4(i) of the Underwriting Agreement Basic Provisions, including filing fees and the reasonable and documented fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of any blue sky survey and any supplement thereto, (vii) the printing and delivery to the Underwriters of copies of the Preliminary Prospectus, any Issuer Free Writing Prospectus and the Final Prospectus and any amendments or supplements thereto, (viii) the preparation, printing and delivery to the Underwriters of copies of any blue sky survey and any supplements thereto, (ix) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (x) the costs and expenses of the Company and the Guarantor relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, and the travel and lodging expenses of the representatives and officers of the Company, the Guarantor and any such consultants, (xi) any fees payable in connection with the rating of the Securities and (xii) the fees and expenses incurred in connection with the listing of the Securities, as applicable.
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Section 7 Indemnification and Contribution. (a) The Company and the Guarantor, jointly and severally, agree to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls each Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) incurred by such person, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other existing Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus, the Disclosure Package, the Final Prospectus, or any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other documented expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company and the Guarantor will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon (i) any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with Underwriter Information furnished to the Company or the Guarantor by or on behalf of any Underwriter expressly for inclusion therein; and/or (ii) gross negligence or willful misconduct on the part of such indemnified party. This indemnity agreement is in addition to any liability that the Company and the Guarantor may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company and the Guarantor, each of their respective directors, each of their respective officers who signs the Registration Statement, and each person who controls the Company or the Guarantor within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company and the Guarantor to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company or the Guarantor by or on behalf of such Underwriter through the Representatives expressly for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement is in addition to any liability that any Underwriter may otherwise have. The Company and the Guarantor acknowledge that the statements identified in the Terms Agreement as “Underwriter Information” constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
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(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the indemnifying party and the indemnified party shall have mutually agreed to the contrary; (ii) the indemnifying person has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnifying person and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood, however, that the indemnifying party shall, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested that an indemnifying party reimburse the indemnified party for fees and expenses of counsel as contemplated by this paragraph, the indemnifying person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the indemnifying person of such request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (x) includes an unconditional release of such indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
23
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company, the Guarantor and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other documented expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company and the Guarantor and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Guarantor and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantor on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other shall be deemed to be equal to the total net proceeds from the offering (before deducting taxes and expenses) received by the Company from the sale of Securities and the total underwriting discounts and commissions (before deducting taxes and expenses) received by the Underwriters, in each case as set forth on the cover page of the Prospectus. The relative fault of the Company and the Guarantor, on the one hand, and the Underwriters, on the other, shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company or the Guarantor on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.
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Section 8 Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements, including the agreement of the Company and the Guarantor in Section 7 hereof with respect to indemnity and contribution, contained herein or contained in certificates issued by the Company and the Guarantor, as the case may be, submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any termination of the Agreement, or any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company or the Guarantor, and shall survive delivery of any Securities to the Underwriters, provided, however, that no such representations and warranties or agreements shall be deemed to have been given as to any point in time other than the date hereof or as otherwise expressly provided herein. The provisions in Sections 6 and 7 shall survive the termination or cancellation of the Agreement.
Section 9 Termination. The Agreement shall be subject to termination in your absolute discretion, by notice given to the Company and the Guarantor prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) the Company or the Guarantor shall have failed, refused or been unable to perform any agreement on its part to be performed under the Agreement when and as required, (ii) trading in the Guarantor’s American Depositary Receipts shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on the New York Stock Exchange, (iii) a banking moratorium shall have been declared either by Federal or New York State authorities, (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis (economic, political, financial or otherwise) the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), (v) a downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company, the Guarantor or any of their respective Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined under Section 3(a)(62) under the Exchange Act; and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company, the Guarantor or any of their respective Subsidiaries (other than an announcement with positive implications of a possible upgrading) or (vi) there shall have been, since the time of the execution of the Agreement or since the respective dates as of which information is given in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), any Material Adverse Effect, in respect of the Company or the Guarantor, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
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Section 10 Default by an Underwriter. (a) If one or more of the Underwriters shall fail at the Closing Date to purchase the Securities which it or they are obligated to purchase under the Agreement (the “Defaulted Securities”), then you (as a non-defaulting Underwriter) shall have the right, within 36 hours thereafter, to make arrangements to purchase the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth. If, however, by the end of such 36 hours you shall not have completed such arrangements for the purchase of all the Defaulted Securities then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriter for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then the Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company or the Guarantor, except that the Company and the Guarantor will continue to be liable for the payment of expenses as set forth in Section 6 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
If other persons become obligated or agree to purchase the Securities a defaulting Underwriter, either the non-defaulting Underwriter or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Disclosure Package and the Final Prospectus or in any other document or arrangement, and the Company and the Guarantor agree to promptly prepare any amendment or supplement to the Disclosure Package and the Final Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of the Agreement unless the context otherwise requires, any person not listed in Terms Agreement supplemental hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under the Agreement.
26
Section 11 Reimbursement of Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of each Underwriter set forth in Section 5 hereof is not satisfied, because of any termination pursuant to Section 9 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any Underwriter, the Company will reimburse the Underwriters on demand for all properly documented out-of-pocket expenses (including the documented fees and disbursements of counsel) that shall have been reasonably incurred by them in connection with the proposed purchase and sale of the Securities; provided, however that if any Underwriter resigns without having good commercial reasons for resigning (having regard to good international capital markets practice), then the Company shall be under no obligation to reimburse such expenses.
Section 12 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to you at the address indicated in the Terms Agreement; notices to the Company or the Guarantor shall be directed to each of them at Suzanos’s Investor Relations Department located at Avenida Brigadeiro Faria Lima, 1,355, 7th floor, São Paulo, SP, 01452-919, Brazil (telephone: +55 (11) 3503-9330), e-mail: ir@suzano.com.br), Attention: Marcos Moreno Chagas Assumpção.
Section 13 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. The Agreement, any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York. Each of the Company and the Guarantor submits to the non-exclusive jurisdiction of any Federal or State court in the City, County and State of New York, United States of America, in any legal suit, action or proceeding based on or arising under the Agreement and agrees that all claims in respect of such suit or proceeding may be determined in any such court. Each of the Company and the Guarantor waives, to the extent permitted by law, the defense of an inconvenient forum or objections to personal jurisdiction with respect to the maintenance of such legal suit, action or proceeding. Each of the Company and the Guarantor hereby designates and appoints Cogency Global Inc. (the “Process Agent”), as its authorized agent, upon whom process may be served in any such legal suit, action or proceeding, it being understood that the designation and appointment of the Process Agent as such authorized agent shall become effective immediately without any further action on the part of either the Company or the Guarantor. Such appointment shall be irrevocable to the extent permitted by applicable law and subject to the appointment of a successor agent in the United States on terms substantially similar to those contained in this Section 13 and reasonably satisfactory to you. If the Process Agent shall cease to act as agent for services of process for either the Company or the Guarantor, the Company or the Guarantor, as the case may be, shall appoint, without unreasonable delay, another such agent, and notify you of such appointment. Each of the Company and the Guarantor represents to the Underwriters that it has notified the Process Agent of such designation and appointment and that the Process Agent has accepted the same in writing. Each of the Company and the Guarantor hereby authorizes and directs the Process Agent to accept such service. Each of the Company and the Guarantor further agrees that service of process upon the Process Agent and written notice of said service to such party shall be deemed in every respect effective service of process upon the Company or the Guarantor, as the case may be, in any such legal suit, action or proceeding. Nothing herein shall affect the right of any Underwriter or any person controlling any Underwriter to serve process in any other manner permitted by law. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
27
Section 14 Parties. The Agreement shall inure to the benefit of and be binding upon you, the Company and the Guarantor, and their respective successors. Nothing expressed or mentioned herein is intended or shall be construed as given to any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers and directors referred to in Section 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of the Agreement or any provision herein contained. The Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties and their respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 15 No Fiduciary Duty. The Company and the Guarantor acknowledge and agree that: (i) nothing herein shall create a fiduciary or agency relationship between the Company or the Guarantor, on the one hand, and the Underwriters, on the other; (ii) the Underwriters are not acting as advisors, expert or otherwise, to the Company or the Guarantor in connection with this offering, sale of the Securities or any other services the Underwriters may be deemed to be providing hereunder, including, without limitation, with respect to the public offering price of the Securities and the Company and the Guarantor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby and the Underwriter shall have no responsibility or liability to the Company or the Guarantor with respect to such investigation or appraisal, (iii) the relationship between the Company and the Guarantor, on the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (iv) any duties and obligations that the Underwriters may have to the Company or the Guarantor shall be limited to those duties and obligations specifically stated herein; and (v) the Underwriters and their respective affiliates may have interests that differ from those of the Company and the Guarantor.
Section 16 Judgment Currency. The Company agrees to indemnify each Underwriter against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Underwriter is able to purchase United States dollars with the amount of the Judgment Currency actually received by the Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
Section 17 Waiver of Immunities. To the extent that the Company or the Guarantor or any of their respective properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to their obligations, liabilities or any other matter under or arising out of or in connection with the Agreement or any additional agreement, the Company and the Guarantor hereby irrevocably and unconditionally, to the extent permitted by applicable law, waive and agree not to plead or claim any such immunity and consent to such relief and enforcement.
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Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
SUZANO AUSTRIA GMBH
TERMS AGREEMENT
Debt Securities
Guaranteed by Suzano S.A.
[DATE]
To: The Underwriters identified herein Ladies and Gentlemen:
Suzano Austria GmbH (the “Company”) agrees to sell to the several Underwriters named in Schedule I hereto for their respective accounts, on and subject to the terms and conditions of the Underwriting Agreement Basic Provisions attached hereto as Exhibit I, the following securities (the “Securities”) on the following terms:
Title:
Principal Amount:
Interest:
Interest Payment Dates:
Maturity:
Optional Redemption:
Listing:
Purchase Price: ___% of the principal amount, plus accrued interest, if any, from ________, 20__.
Registration Statement Nos.:
Execution Time:
Closing: 9:30 a.m. on _____________, at the offices of Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York, in Federal (same day) funds.
Payment of Expenses:
Representatives:
Lock-Up:
Indenture:
A-1
Exhibit B to the Underwriting Agreement Basic Provisions – Form of Final Term Sheet
Qualifications to Any Covenants or Representations Made by the Company or the Guarantor:
Transaction Documents:
Opinions: The opinions to be delivered on the Closing Date for purposes of Section 5(a) of the Underwriting Agreement Basic Provisions shall be substantially in the forms [attached as Exhibits [_____] hereto] [separately provided to you], each of which is in form and substance satisfactory to you for purposes of such Section.
Underwriter Information (see definition under the Underwriting Agreement Basic Provisions):
Notices to Underwriters: Notices to the Underwriters shall be directed to:
The respective principal amounts of the Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule I hereto.
To the extent not superseded or amended by the terms hereof, the provisions of the Underwriting Agreement Basic Provisions are incorporated herein by reference. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Underwriting Agreement Basic Provisions.
This Terms Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company and the Guarantor one of the counterparts hereof, whereupon it will become a binding agreement among the Company, the Guarantor and the several Underwriters in accordance with its terms.
| Very truly yours, | ||
| SUZANO AUSTRIA GMBH | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
A-2
Exhibit B to the Underwriting Agreement Basic Provisions – Form of Final Term Sheet
| SUZANO S.A. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
| The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above written. | ||
| [ ] | ||
| acting on behalf of itself and as representative of the several Underwriters | ||
| By: | ||
| Name: | ||
| Title: | ||
A-3
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
Schedule I
|
Underwriter |
Principal Amount of Securities |
A-4
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
Schedule II
Schedule of Free Writing Prospectuses included in the Disclosure Package
A-5
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
Schedule III
Final Term Sheet
A-6
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
Exhibit I
[Underwriting Agreement Basic Provisions to be attached]
A-7
Exhibit B to the Underwriting Agreement Basic Provisions – Form of Final Term Sheet
Final Term Sheet
Issuer: Suzano Austria GmbH
Guarantor: Suzano S.A.
Title of Securities: _________________
Aggregate Principal Amount: ________________________
Price To Public: ________% of principal amount, plus accrued interest, if any, from __________________________
Maturity:______________
Interest Rate/Coupon: _______[%]
Interest Payment Dates:______________and______________ of each year, commencing on______________
Interest Payment Record Dates: ______________and______________of each year Redemption Provisions/Call Options:______________
[Sinking Fund Provisions:______________]
Yield to Maturity:______________
Benchmark:______________
Spread to Treasury:______________
Other Provisions:______________
Settlement Date:______________________
Minimum Denomination:________________
Book-Running Manager[s]:______________
Co-Managers:______________
Ratings: ______________/______________
CUSIP:______________
ISIN:______________
[Common Code: ______________]
B-1
Exhibit B to the Underwriting Agreement Basic Provisions – Form of Final Term Sheet
[Listing:________________]
The offer and sale of the Securities to which this final term sheet relates have been registered by Suzano Austria GmbH and Suzano S.A. by means of a registration statement on Form F-3 (Registration No. 333-[ ]).
The issuer and the guarantor have filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer and the guarantor have filed with the SEC for more complete information about the issuer, the guarantor and this offering. You may get these documents for free by visiting the SEC Web site at www.sec.gov. Alternatively, the issuer, the guarantor, any underwriter or any dealer participating in this offering will arrange to send you the prospectus if you request it by calling toll-free 1-[ ].
B-2
Exhibit 1.2
suzano netherlands b.v.
Debt Securities
Guaranteed by Suzano S.A.
UNDERWRITING AGREEMENT
BASIC PROVISIONS
[DATE]
To the Underwriters named in the
Terms Agreement supplemental hereto
Ladies and Gentlemen:
Suzano Netherlands B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, with its corporate seat (statutaire zetel) in Amsterdam, the Netherlands, having its registered office at Spaces Zuidas I, Office 4.10, Barbara Strozzilaan 201, 1083 HN Amsterdam, the Netherlands, and registered with the trade register of the Dutch chamber of commerce under number 92243207 (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time certain of its debt securities specified in the Terms Agreement described below. The debt securities will be irrevocably and unconditionally guaranteed (the “Guarantee”) as to payment of principal, premium (if any) and interest by Suzano S.A., a company organized under the laws of Brazil, as guarantor (the “Guarantor”). Unless otherwise specified in the Terms Agreement, such debt securities will be issued under an amended and restated indenture, dated as of [•], 2025 (the “Indenture”) entered into by and among the Company, the Guarantor and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”). Such debt securities may have varying designations, denominations, currencies, interest rates and payment dates, maturities, redemption provisions and selling prices.
Whenever the Company and the Guarantor determine to make an offering of debt securities through one or more investment banking firms, they will enter into a terms agreement (the “Terms Agreement”) with such firm or firms named therein providing for the sale of the specific series of debt securities to be issued and sold by the Company pursuant thereto (the “Debt Securities”), and the purchase and offering thereof by such Underwriters. The Debt Securities and the Guarantee are referred to herein collectively as the “Securities.” The Terms Agreement shall be substantially in the form of Exhibit A hereto with such additional terms as may be agreed among the Company, the Guarantor and the Underwriters and shall incorporate by reference the basic provisions set forth herein.
The following terms are used herein as defined below:
“Act” shall mean the U.S. Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus relating to the Securities contained in the Registration Statement at the Execution Time.
“Closing Date” shall have the meaning set forth in Section 3 hereof.
“Commission” shall mean the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument the United States Securities and Exchange Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule II to the Terms Agreement, including any final term sheet prepared and filed pursuant to Section 4(d) hereto, and (iv) any other Free Writing Prospectus that the parties to the Terms Agreement shall expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, or any post-effective amendment or amendments thereto, became or become effective.
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the time specified in the Terms Agreement.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Final Term Sheet” shall mean the final term sheet attached as Schedule III to the Terms Agreement.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405 under the Act.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433 under the Act.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus, which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in the first sentence of Section 1(a), including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B under the Act, on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall mean the registration statement so amended.
2
“Subsidiary” shall mean with respect to any person, any corporation, limited liability company, partnership, association or other business entity of which more than 50.0% of the outstanding voting shares is owned, directly or indirectly, by such person and one or more Subsidiaries of such person (or a combination thereof).
“Transaction Documents” means the Agreement (as defined below), the Indenture and any other agreements specified in the related Terms Agreement.
“Trust Indenture Act” or “TIA” means the U.S. Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed (except as provided in Section 9.05); provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended.
“Underwriter Information” shall mean, with respect to any document, statements in or omissions from such document based upon information furnished to the Company or the Guarantor in writing by or on behalf of any Underwriter through the Representatives specifically for use in such document.
Unless the context otherwise requires, as used herein, (a) the term “Agreement” shall refer to the Terms Agreement duly executed by the parties thereto applicable to a specific offering and incorporating the basic provisions set forth herein; (b) the term “Underwriter” or “Underwriters” shall refer to the one or more investment banking firms which are parties to the Agreement; and (c) “you” or “your” or the “Representatives” shall refer to any manager or managers of an underwriting syndicate specified in the Terms Agreement, or, if none is or are so named, to the Underwriter or Underwriters. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein which were filed with or furnished to the Commission under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing or furnishing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus that is incorporated therein by reference.
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Section 1 Representations and Warranties. Each of the Company and the Guarantor, jointly and severally, represents and warrants to each Underwriter, as of the date of the Agreement, as follows:
(a) Shelf Registration Statement. The Company and the Guarantor have prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405 under the Act (the file number of which is set forth in the Terms Agreement) on Form F-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission. The Company and the Guarantor may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company and the Guarantor will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b).
(b) Substance of Registration Statement. On the applicable Effective Date, the Registration Statement complied, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will comply, in all material respects with the applicable requirements of the Act and the Trust Indenture Act. On the applicable Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. On the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. On the date of any filing pursuant to Rule 424(b), each Preliminary Prospectus did not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. On the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, neither the Company nor the Guarantor makes any representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) any Underwriter Information.
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(c) Compliance with Act and Exchange Act. The documents incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and any further documents deemed to be or, in the case of a Report on Form 6-K, designated as being incorporated by reference in the Registration Statement or the Disclosure Package after the date of the Agreement, when such documents are filed with or furnished to the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and when read together with the other information included or incorporated in the Registration Statement, the Disclosure Package or the Final Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Disclosure Package. At the Execution Time, the Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that neither the Company nor the Guarantor makes any representation and warranty with respect to Underwriter Information.
(e) Issuer. Each of the Company and the Guarantor meets the requirements for use of Form F-3 under the Act. Each of the Company and the Guarantor was (i) at the time of initial filing of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or the Guarantor or any person acting on its or their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption of Rule 163, and is a “well-known seasoned issuer” and was not, and is not, an “ineligible issuer” (in each case as defined in Rule 405 under the Act) at any “determination date” under Rule 164 under the Act or Rule 405 under the Act that is relevant to the offering of the Securities.
(f) No Objection. Neither the Company nor the Guarantor has received from the Commission any notice pursuant to Rule 401(g)(2) objecting to its use of the automatic shelf registration statement form.
(g) No Conflicts. No Issuer Free Writing Prospectus includes any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; provided that neither the Company nor the Guarantor makes any representation or warranty with respect to Underwriter Information.
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(h) Organization and Good Standing. Each of the Company, the Guarantor and their respective Subsidiaries has been duly organized and/or incorporated, is validly existing and is in good standing (to the extent the concept of good standing is recognized in the respective jurisdiction) as a private company with limited liability incorporated under the laws of the Netherlands, in the case of the Company, and as a corporation (sociedade por ações) under the laws of Brazil, in the case of the Guarantor, and under the laws of the jurisdiction of its incorporation or organization in the case of the Guarantor’s Subsidiaries. Each of the Company and the Guarantor and their respective Subsidiaries is duly qualified to do business and is in good standing (to the extent the concept of good standing is recognized in the respective jurisdiction) in each jurisdiction in which its respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and has all power and authority necessary to own or hold its respective properties and to conduct the businesses in which it is engaged, except where the failure to be so qualified, in good standing (to the extent the concept of good standing is recognized in the respective jurisdiction) or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, financial position, results of operations or prospects of the Company or the Guarantor and their respective Subsidiaries taken as a whole or on the performance by the Company, the Guarantor and their respective Subsidiaries of their respective obligations under this Agreement, the Securities and the Indentures (a “Material Adverse Effect”).
(i) Due Authorization. The Company and the Guarantor have full right, power and authority to execute and deliver the Agreement, the Securities, the Indenture and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(j) The Indentures. The Indenture (including the respective Guarantee set forth therein) has been duly authorized, executed and delivered, by each of the Company and the Guarantor and, assuming due authorization, execution and delivery by the Trustee, constitutes a legal, valid and binding instrument of each of the Company and the Guarantor enforceable against each of the Company and the Guarantor in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law, or, in particular between the United States and the Netherlands, by the absence of treaties providing for reciprocal recognition and enforcement of judgments (other in arbitration awards) in civil and commercial matters (collectively referred to as the “Enforceability Exceptions”)); the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Agreement, will constitute legal, valid and binding obligations of the Company and the Guarantor, as applicable, entitled to the benefits of the Indenture, subject to the Enforceability Exceptions; and the Indenture has been duly qualified under the Trust Indenture Act.
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(k) The Securities and the Guarantees. The Securities have been duly authorized by the Company and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantee has been duly authorized by the Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be a valid and legally binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(l) Description of the Indenture and Securities. The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(m) No Violation or Default. Neither the Company, the Guarantor nor any of their respective Subsidiaries is (i) in violation of their memorandum and/or articles of association (as applicable), charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in the Indenture or any other indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of their respective Subsidiaries is a party or by which the Company, the Guarantor or any of their respective Subsidiaries is bound or to which any property or asset of the Company, the Guarantor or any of their respective Subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(n) No Conflicts. The execution, delivery and performance by the Company and the Guarantor of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and the use of proceeds thereof, and the issuance of the Guarantees and compliance by the Company and the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the Company, the Guarantor or any of their respective Subsidiaries pursuant to, the Indenture or any mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of their respective Subsidiaries is a party or by which the Company, the Guarantor or any of their respective Subsidiaries is bound or to which any of the property, right or asset of the Company, the Guarantor or any of their respective Subsidiaries is subject, (ii) result in any violation of the provisions of the memorandum and articles of association (as applicable), charter or bylaws or similar organizational documents of the Company, the Guarantor or any of their respective Subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, and without limiting the generality of the foregoing, in the Netherlands, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, have a Material Adverse Effect.
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(o) No Consents Required. No consent, approval, authorization, filing, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority or agency or body is required in connection with the execution, delivery and performance by the Company and the Guarantor of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and the issuance of the Guarantees and compliance by the Company and the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for such except for consents, approvals, authorizations, orders and registrations or qualifications as have been obtained under the Act and the Trust Indenture Act, such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Final Prospectus and such as may be set forth in the Terms Agreement, including, in particular, as applicable, the publication of such minutes in the applicable Official Gazette (Diário Oficial), and in the applicable local newspaper shall be filed with the applicable board of trade (Junta Comercial).
(p) Consolidated Financial Statements. The consolidated financial statements of the Guarantor included in the Base Prospectus, Preliminary Prospectus, Disclosure Package, Final Prospectus and the Registration Statement present fairly, in all material respects, the consolidated financial condition of the Guarantor as of the dates indicated and its consolidated financial performance and its cash flows for the periods specified. The consolidated financial statements of the Guarantor were prepared in accordance with accounting practices adopted in Brazil, including the pronouncements issued by the Brazilian Accounting Pronouncements Committee, and Generally Acceptable Accounting Principles (“GAAP”) issued by the International Accounting Standards Board (“IASB”), applied on a consistent basis throughout the periods covered thereby.
(q) Accounting Controls. The Guarantor maintains a system of internal controls, which are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(r) Disclosure Controls. The Guarantor and its Subsidiaries have established and maintain disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under the Exchange Act) and has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act. Such disclosure controls and procedures are effective to provide reasonable assurance that information required to be disclosed by the Guarantor in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the applicable rules and forms, and that it is accumulated and communicated to the Guarantor’s management as appropriate to allow timely decisions regarding required disclosure.
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(s) Underwriting Agreement. The Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor.
(t) Absence of Taxes. Except as described in the Disclosure Package and the Final Prospectus, payments made by the Company to holders under the Securities and the Indenture and by the Company to the Underwriters under the Agreement will not be subject under the current laws of Brazil or the Netherlands or any political subdivision of any such jurisdiction to any withholding or similar charges for or on account of taxation with the exception of any withholding taxes that may be due as a result of the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021).
(u) Independent Accountant (PwC). PricewaterhouseCoopers (or any successor accounting firm selected by the Company or Guarantor), which certified the financial statements and supporting schedules included in the Disclosure Package and the Final Prospectus, are an independent registered public accounting firm with respect to the Guarantor and its Subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) (“PCAOB”) and as required by the Act.
(v) No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Final Prospectus, (a) there has not been (1) any change in the capital stock or long-term debt of the Company, the Guarantor or any of their respective Subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company or the Guarantor, or any of their respective Subsidiaries on any class of capital stock, or (2) any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, results of operations or prospects of the Company, the Guarantor or any of their respective Subsidiaries, taken as a whole; (b) neither the Company, the Guarantor nor any of the Guarantor’s Subsidiaries has entered into any transaction or agreement that is material to the Company, the Guarantor or any of their respective Subsidiaries, taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company, the Guarantor or any of their respective Subsidiaries, taken as a whole, except for, in case of the Company, the issue of the Securities as provided for in this Agreement; and (c) neither the Company, the Guarantor nor any of their respective Subsidiaries has sustained any material loss or interference with its business (1) from fire, explosion, flood or other calamity, whether or not covered by insurance or (2) from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority material to the Guarantor and its Subsidiaries taken as a whole, except in each case as otherwise disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus.
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(w) No Labor Disputes. Other than as set forth or contemplated in the Disclosure Package and the Final Prospectus, there are no labor disturbances by or disputes with employees of the Company, the Guarantor or any of their respective Subsidiaries exists or, to the knowledge of the Company or the Guarantor or any of their respective Subsidiaries, is contemplated or threatened, and neither the Company or the Guarantor is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of the principal suppliers, contractors or customers of the Company, the Guarantor or any of their respective Subsidiaries, except as would not reasonably be expected to have a Material Adverse Effect.
(x) Licenses and Permits. Except as described in the Disclosure Package and the Final Prospectus, the Company, the Guarantor and their respective Subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Disclosure Package and the Final Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in the Disclosure Package and the Final Prospectus, neither the Company, the Guarantor nor any of their respective Subsidiaries has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, sub-license, certificate, permit or authorization will not be renewed in the ordinary course, which such revocations, modifications or non-renewals would reasonably be expected to have a Material Adverse Effect.
(y) Title to Real and Personal Property. The Company, the Guarantor and each of their respective Subsidiaries have good and marketable title in fee simple, or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses of the Company, the Guarantor and each of their respective Subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (a) do not materially interfere with the use made and proposed to be made of such property by the Company, the Guarantor or any of their respective Subsidiaries or (b) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(z) Intellectual Property. (i) The Company, the Guarantor and each of their respective Subsidiaries own or have the right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights and copyrightable works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other worldwide intellectual property, industrial property and proprietary rights (collectively, “Intellectual Property”) used in the conduct of their respective businesses, except for failures that could not reasonably be expected to have a Material Adverse Effect; (ii) to the knowledge of the Company and the Guarantor, the Company, the Guarantor and each of their respective Subsidiaries’ conduct of their respective businesses does not infringe, misappropriate or otherwise violate any Intellectual Property of any person; (iii) the Company, the Guarantor and each of their respective Subsidiaries have not received any notice of any claim of infringement of or conflict with any such rights of others, which infringement would be expected to have a Material Adverse Effect relating to Intellectual Property; and (iv) to the knowledge of the Company and the Guarantor, the Intellectual Property of the Company, the Guarantor and each of their respective Subsidiaries is not being infringed, misappropriated or otherwise violated by any person.
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(aa) Certain Environmental Matters. Except as described in the Disclosure Package and the Final Prospectus, (i) the Company, the Guarantor and each of their respective Subsidiaries (a) are in compliance with all, and have not violated any, applicable federal, state, local and foreign laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements relating to pollution or the protection of human health or safety, the environment, natural resources, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (b) have received and are in compliance with all, and have not violated any permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (c) have not received notice of any actual or potential liability or obligation under or relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice; and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company, the Guarantor or any of their respective Subsidiaries,; and (iii) to the knowledge of the Company and the Guarantor, (x) there is no proceeding that is pending, or that is known to be contemplated, against the Company, the Guarantor or any of their respective Subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding, (y) neither the Company, the Guarantor nor any of their respective Subsidiaries are aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a Material Adverse Effect on the capital expenditures, earnings or competitive position of the Company, the Guarantor or any of their respective Subsidiaries, and (z) none of the Company, the Guarantor or any of their respective Subsidiaries anticipates material capital expenditures relating to any Environmental Laws except in the case of each of (i), (ii) and (iii) above, for any such matters as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(bb) Sarbanes-Oxley Act. There is and has been no material failure on the part of the Company or the Guarantor or any of the Company’s or the Guarantor’s directors or officers, in their capacities as such, to comply with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
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(cc) No Unlawful Payments. Neither the Company, the Guarantor nor any of their respective Subsidiaries, nor any director or officer of the Company, the Guarantor or any of their respective Subsidiaries nor, to the knowledge of the Company or the Guarantor, any employee, agent, affiliate or other person associated with or acting on behalf of the Company, the Guarantor or their respective Subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws (including, without limitation, the Brazilian Penal Code, the Brazilian Law No. 12,846/2013 and the Brazilian Decree No. 8,420/2015), each as amended from time to time; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and the Guarantor have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws, and these policies and procedures are also applicable to the Company and the Guarantor’s Subsidiaries.
(dd) Compliance with Anti-Money Laundering Laws. The operations of the Company, the Guarantor and their Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable anti-money laundering statutes of all jurisdictions where the Company, the Guarantor or any of their respective Subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), and, to the knowledge of the Company or the Guarantor, no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company, the Guarantor or any of their Subsidiaries with respect to the Money Laundering Laws is pending or threatened.
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(ee) No Conflicts with Sanctions Laws. Neither the Company, the Guarantor nor any of their respective Subsidiaries, directors, officers or employees, nor, to the knowledge of the Company or the Guarantor, any agent or other person acting on behalf of the Company, the Guarantor or any of their respective Subsidiaries is currently a person with whom or which transactions or dealings are prohibited under any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (UNSC), the European Union, or His Majesty’s Treasury (HMT) (collectively, “Sanctions”), nor is the Company, the Guarantor or any of their respective Subsidiaries located, organized or resident in a country, region or territory that is the subject or the target of Sanctions (currently Crimea, Cuba, Iran, North Korea, Syria and the territories of Donetsk, Luhansk, Zaporhizhia and Kherson (each, a “Sanctioned Country”)); and neither the Company, the Guarantor nor any of their respective Subsidiaries will directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the a Sanctioned Party, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner, in each such case that will result in a violation by any person participating in the transaction, whether as underwriter, advisor, investor or otherwise of Sanctions. The undertaking made in the second part of the preceding sentence of this Section 1(ff) shall not apply if and to the extent that the expression of, or compliance with, or receipt or acceptance of, such undertaking would breach any provision of Council Regulation EC No. 2271/96, as amended from time to time, or any applicable implementing legislation in any member state of the European Union (as amended, supplemented or substituted from time to time).
(ff) Solvency. On and immediately after the Closing Date, the Company, the Guarantor and each of their Subsidiaries (after giving effect to the issuance and sale of the Securities, the issuance of the Guarantee and the other transactions related thereto as described in each of the Disclosure Package and the Final Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date and entity, that on such date (i) the fair value (and present fair saleable value) of the assets of such entity is not less than the total amount required to pay the probable liability of such entity on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance and sale of the Securities and the issuance of the Guarantees as contemplated by the Agreement, the Disclosure Package and the Final Prospectus, such entity does not have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital; and (v) such entity is not a defendant in any civil action that would result in a judgment that such entity is or would become unable to satisfy.
Any certificate signed by any officer of the Company or the Guarantor, as the case may be, and delivered to you or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company or Guarantor, as applicable, to each Underwriter as to the matters covered thereby as of the date of such certificate.
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Section 2 Representations and Warranties of the Underwriters. Each Underwriter hereby severally represents and agrees, as of the date of the Agreement, that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus other than (i) a Free Writing Prospectus that is not required under the Act to be filed, (ii) any Issuer Free Writing Prospectus listed on Schedule II to the Terms Agreement or prepared pursuant to Section 4(d) hereto, or (iii) any Free Writing Prospectus prepared by such Underwriter and approved by the Company and the Guarantor in advance in writing.
(b) Unless otherwise specified in the Terms Agreement, it has not and will not, without the prior written consent of the Company and the Guarantor, use any Free Writing Prospectus that contains the final terms of the Securities unless such terms have previously been included in a Free Writing Prospectus filed with the Commission, provided that the Underwriter may use a term sheet substantially in the form set forth in Schedule III to the Terms Agreement without the consent of the Company and the Guarantor; provided further that the Underwriter using such term sheet shall notify the Company and the Guarantor and provide a copy of such term sheet to the Company and the Guarantor, prior to, or substantially concurrently with, the first use of such term sheet.
(c) It will, pursuant to reasonable procedures developed in good faith, retain copies of each Free Writing Prospectus used or referred to by it, in accordance with Rule 433 under the Act.
(d) It is not subject to any pending proceeding under Section 8A of the Act with respect to the offering (and will promptly notify the Company and the Guarantor if any such proceeding against it is initiated during the period in which a prospectus relating to the Securities is required to be delivered under the Act).
(e) Unless otherwise specified in the Terms Agreement, in relation to each Member State of the European Economic Area (each, a “Member State”), each Underwriter represents and agrees that it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by this Agreement to the public in that Member State , except that it may make an offer of the Securities to the public in that Member State at any time:
(i) to any legal entity which is a qualified investor as defined in the Prospectus Regulation;
(ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Regulation), subject to obtaining the prior consent of the relevant dealer or dealers nominated by the issuer for any such offer; or
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(iii) in any other circumstances falling within Article 1(4) of the Prospectus Regulation.
provided that no such offer of Securities shall require the issuer or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the Prospectus Regulation.
For the purposes of this Section 2, the expression an “offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities and the expression “Prospectus Regulation” means Regulation (EU) 2017/1129, as amended.
(f) Unless otherwise specified in the Terms Agreement, in relation to the United Kingdom, each Underwriter represents and agrees that it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by this Agreement to the public in the United Kingdom other than:
(i) to any legal entity which is a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union Withdrawal Act 2018 (“EUWA”);
(ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA) in the United Kingdom, subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the issuer for any such offer; or
(iii) in any other circumstances falling within section 86 of the Financial Services and Markets Act 2000 (“FSMA”), provided that no such offer of Securities shall require the Issuer or any Manager to publish a prospectus pursuant to section 85 of the FSMA or supplement a prospectus pursuant to Article 23 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA.
For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities and the expression “UK Prospectus Regulation” means Regulation (EU) 2017/1129, as it forms part of domestic law by virtue of the EUWA
(g) Unless otherwise specified in the Terms Agreement, each Underwriter represents, warrants and agrees that it has not offered or sold and will not offer or sell the Securities publicly (as defined for purposes of the securities laws of Brazil or any member state of the European Economic Area, as the case may be) in Brazil or within any member state of the European Economic Area.
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Section 3 Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in the Terms Agreement the principal amount of the Securities set forth opposite such Underwriter’s name in the Terms Agreement.
Delivery of and payment for the Securities shall be made on the date and at the time specified in the Terms Agreement or at such time on such later date not more than three business days after the foregoing date as you shall designate, which date and time may be postponed by agreement among the Representatives, the Company and the Guarantor or as provided in Section 10 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to you for the respective accounts of the several Underwriters against payment by the several Underwriters through you of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless you shall otherwise instruct.
Section 4 Agreements of the Company and the Guarantor. Each of the Company and the Guarantor agrees with each Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement, the Company and the Guarantor will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the principal amount of Securities which each severally has agreed to purchase, the names of the Underwriters acting as managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you, the Company and the Guarantor deem appropriate in connection with the offering of the Securities. The Company and the Guarantor will within the time periods specified by Rule 424(b) transmit copies of the Final Prospectus to the Commission for filing pursuant to Rule 424(b) of the Act and will furnish to the Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will file any amendment to the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and neither the Company nor the Guarantor will file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantor will promptly advise you (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act, (5) of the receipt by the Company or the Guarantor, as the case may be, of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company or the Guarantor, as the case may be, of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantor will use their commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
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(c) The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Unless otherwise specified in the Terms Agreement, the Company and the Guarantor will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company and the Guarantor promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(f) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act, the Company and the Guarantor promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Guarantor and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
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(h) Upon request, the Company and the Guarantor will furnish to the Representatives and to counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(i) The Company and the Guarantor will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall either the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject either of them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where either of them is not now so subject.
(j) Each of the Company and the Guarantor agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company and the Guarantor with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company and the Guarantor will furnish, upon request of an Underwriter, for a period of two years from the date of the Agreement (unless otherwise publicly available on the Commission’s EDGAR website or the Company’s or the Guarantor’s website) (i) copies of any reports or other communications which the Guarantor shall send to its shareholders or which the Company or the Guarantor shall from time to time publish or publicly disseminate; (ii) copies of all annual and other reports filed with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, in each case, as soon as such reports, communications or documents become available.
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(l) The Company and the Guarantor will apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement.
Section 5 Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers Auditores Independentes Ltda., independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Auditing Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
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(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its Subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
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(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Section 6 Payment of Expenses. All expenses incident to the performance of each party’s obligations under the Agreement shall be paid in the following manner, unless otherwise specified in the relevant Terms Agreement: the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this Agreement, the Indenture and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s and the Guarantor’s counsel, accountants and other advisors, (v) any fees and expenses incurred by the Underwriters in connection with the marketing and offering of the Securities, excluding the fees and disbursements of counsel for the Underwriters in connection therewith, (vi) the qualification of the Securities under securities laws in accordance with the provisions of Section 4(i) of the Underwriting Agreement Basic Provisions, including filing fees and the reasonable and documented fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of any blue sky survey and any supplement thereto, (vii) the printing and delivery to the Underwriters of copies of the Preliminary Prospectus, any Issuer Free Writing Prospectus and the Final Prospectus and any amendments or supplements thereto, (viii) the preparation, printing and delivery to the Underwriters of copies of any blue sky survey and any supplements thereto, (ix) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (x) the costs and expenses of the Company and the Guarantor relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, and the travel and lodging expenses of the representatives and officers of the Company, the Guarantor and any such consultants, (xi) any fees payable in connection with the rating of the Securities and (xii) the fees and expenses incurred in connection with the listing of the Securities, as applicable.
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Section 7 Indemnification and Contribution. (a) The Company and the Guarantor, jointly and severally, agree to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls each Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) incurred by such person, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other existing Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus, the Disclosure Package, the Final Prospectus, or any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other documented expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company and the Guarantor will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon (i) any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with Underwriter Information furnished to the Company or the Guarantor by or on behalf of any Underwriter expressly for inclusion therein; and/or (ii) gross negligence or willful misconduct on the part of such indemnified party. This indemnity agreement is in addition to any liability that the Company and the Guarantor may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company and the Guarantor, each of their respective directors, each of their respective officers who signs the Registration Statement, and each person who controls the Company or the Guarantor within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company and the Guarantor to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company or the Guarantor by or on behalf of such Underwriter through the Representatives expressly for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement is in addition to any liability that any Underwriter may otherwise have. The Company and the Guarantor acknowledge that the statements identified in the Terms Agreement as “Underwriter Information” constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
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(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the indemnifying party and the indemnified party shall have mutually agreed to the contrary; (ii) the indemnifying person has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnifying person and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood, however, that the indemnifying party shall, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested that an indemnifying party reimburse the indemnified party for fees and expenses of counsel as contemplated by this paragraph, the indemnifying person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the indemnifying person of such request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (x) includes an unconditional release of such indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
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(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company, the Guarantor and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other documented expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company and the Guarantor and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Guarantor and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantor on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other shall be deemed to be equal to the total net proceeds from the offering (before deducting taxes and expenses) received by the Company from the sale of Securities and the total underwriting discounts and commissions (before deducting taxes and expenses) received by the Underwriters, in each case as set forth on the cover page of the Prospectus. The relative fault of the Company and the Guarantor, on the one hand, and the Underwriters, on the other, shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company or the Guarantor on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.
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Section 8 Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements, including the agreement of the Company and the Guarantor in Section 7 hereof with respect to indemnity and contribution, contained herein or contained in certificates issued by the Company and the Guarantor, as the case may be, submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any termination of the Agreement, or any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company or the Guarantor, and shall survive delivery of any Securities to the Underwriters, provided, however, that no such representations and warranties or agreements shall be deemed to have been given as to any point in time other than the date hereof or as otherwise expressly provided herein. The provisions in Sections 6 and 7 shall survive the termination or cancellation of the Agreement.
Section 9 Termination. The Agreement shall be subject to termination in your absolute discretion, by notice given to the Company and the Guarantor prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) the Company or the Guarantor shall have failed, refused or been unable to perform any agreement on its part to be performed under the Agreement when and as required, (ii) trading in the Guarantor’s American Depositary Receipts shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on the New York Stock Exchange, (iii) a banking moratorium shall have been declared either by Federal or New York State authorities, (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis (economic, political, financial or otherwise) the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), (v) a downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company, the Guarantor or any of their respective Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined under Section 3(a)(62) under the Exchange Act; and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company, the Guarantor or any of their respective Subsidiaries (other than an announcement with positive implications of a possible upgrading) or (vi) there shall have been, since the time of the execution of the Agreement or since the respective dates as of which information is given in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), any Material Adverse Effect, in respect of the Company or the Guarantor, , except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), the effect of which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
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Section 10 Default by an Underwriter. (a) If one or more of the Underwriters shall fail at the Closing Date to purchase the Securities which it or they are obligated to purchase under the Agreement (the “Defaulted Securities”), then you (as a non-defaulting Underwriter) shall have the right, within 36 hours thereafter, to make arrangements to purchase the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth. If, however, by the end of such 36 hours you shall not have completed such arrangements for the purchase of all the Defaulted Securities then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriter for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then the Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company or the Guarantor, except that the Company and the Guarantor will continue to be liable for the payment of expenses as set forth in Section 6 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
If other persons become obligated or agree to purchase the Securities a defaulting Underwriter, either the non-defaulting Underwriter or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Disclosure Package and the Final Prospectus or in any other document or arrangement, and the Company and the Guarantor agree to promptly prepare any amendment or supplement to the Disclosure Package and the Final Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of the Agreement unless the context otherwise requires, any person not listed in Terms Agreement supplemental hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under the Agreement.
Section 11 Reimbursement of Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of each Underwriter set forth in Section 5 hereof is not satisfied, because of any termination pursuant to Section 9 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any Underwriter, the Company will reimburse the Underwriters on demand for all properly documented out-of-pocket expenses (including the documented fees and disbursements of counsel) that shall have been reasonably incurred by them in connection with the proposed purchase and sale of the Securities; provided, however that if any Underwriter resigns without having good commercial reasons for resigning (having regard to good international capital markets practice), then the Company shall be under no obligation to reimburse such expenses.
26
Section 12 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to you at the address indicated in the Terms Agreement; notices to the Company or the Guarantor shall be directed to each of them at Suzanos’s Investor Relations Department located at Avenida Brigadeiro Faria Lima, 1,355, 7th floor, São Paulo, SP, 01452-919, Brazil (telephone: +55 (11) 3503-9330), e-mail: ir@suzano.com.br), Attention: Marcos Moreno Chagas Assumpção.
Section 13 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. The Agreement, any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York. Each of the Company and the Guarantor submits to the non-exclusive jurisdiction of any Federal or State court in the City, County and State of New York, United States of America, in any legal suit, action or proceeding based on or arising under the Agreement and agrees that all claims in respect of such suit or proceeding may be determined in any such court. Each of the Company and the Guarantor waives, to the extent permitted by law, the defense of an inconvenient forum or objections to personal jurisdiction with respect to the maintenance of such legal suit, action or proceeding. Each of the Company and the Guarantor hereby designates and appoints Cogency Global Inc. (the “Process Agent”), as its authorized agent, upon whom process may be served in any such legal suit, action or proceeding before any such court in the Borough of Manhattan, The City of New York, State of New York, it being understood that the designation and appointment of the Process Agent as such authorized agent shall become effective immediately without any further action on the part of either the Company or the Guarantor. Such appointment shall be irrevocable to the extent permitted by applicable law and subject to the appointment of a successor agent in the United States on terms substantially similar to those contained in this Section 13 and reasonably satisfactory to you. If the Process Agent shall cease to act as agent for services of process for either the Company or the Guarantor, the Company or the Guarantor, as the case may be, shall appoint, without unreasonable delay, another such agent, and notify you of such appointment. Each of the Company and the Guarantor represents to the Underwriters that it has notified the Process Agent of such designation and appointment and that the Process Agent has accepted the same in writing. Each of the Company and the Guarantor hereby authorizes and directs the Process Agent to accept such service. Each of the Company and the Guarantor further agrees that service of process upon the Process Agent and written notice of said service to such party shall be deemed in every respect effective service of process upon the Company or the Guarantor, as the case may be, in any such legal suit, action or proceeding. Nothing herein shall affect the right of any Underwriter or any person controlling any Underwriter to serve process in any other manner permitted by law. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
27
Section 14 Power of Attorney. If the Company is represented by an attorney or attorneys in connection with the signing and/or execution and/or delivery of this Agreement or any agreement or document referred to herein or made pursuant hereto and the relevant power or powers of attorney is or are expressed to be governed by the laws of a particular jurisdiction, it is hereby expressly acknowledged and accepted by the other parties to this Agreement that such laws shall govern the existence and extent of such attorney's or attorneys’ authority and the effects of the exercise thereof.
Section 15 Parties. The Agreement shall inure to the benefit of and be binding upon you, the Company and the Guarantor, and their respective successors. Nothing expressed or mentioned herein is intended or shall be construed as given to any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers and directors referred to in Section 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of the Agreement or any provision herein contained. The Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties and their respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 16 No Fiduciary Duty. The Company and the Guarantor acknowledge and agree that: (i) nothing herein shall create a fiduciary or agency relationship between the Company or the Guarantor, on the one hand, and the Underwriters, on the other; (ii) the Underwriters are not acting as advisors, expert or otherwise, to the Company or the Guarantor in connection with this offering, sale of the Securities or any other services the Underwriters may be deemed to be providing hereunder, including, without limitation, with respect to the public offering price of the Securities and the Company and the Guarantor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby and the Underwriter shall have no responsibility or liability to the Company or the Guarantor with respect to such investigation or appraisal, (iii) the relationship between the Company and the Guarantor, on the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (iv) any duties and obligations that the Underwriters may have to the Company or the Guarantor shall be limited to those duties and obligations specifically stated herein; and (v) the Underwriters and their respective affiliates may have interests that differ from those of the Company and the Guarantor.
Section 17 Judgment Currency. The Company agrees to indemnify each Underwriter against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Underwriter is able to purchase United States dollars with the amount of the Judgment Currency actually received by the Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
28
SECTION 18 Waiver of Immunities. To the extent that the Company or the Guarantor or any of their respective properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to their obligations, liabilities or any other matter under or arising out of or in connection with the Agreement or any additional agreement, the Company and the Guarantor hereby irrevocably and unconditionally, to the extent permitted by applicable law, waive and agree not to plead or claim any such immunity and consent to such relief and enforcement.
29
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
SUZANO NETHERLANDS B.V.
TERMS AGREEMENT
Debt Securities
Guaranteed by Suzano S.A.
[DATE]
To: The Underwriters identified herein Ladies and Gentlemen:
Suzano Netherlands B.V. (with its corporate seat in Amsterdam, the Netherlands) (the “Company”) agrees to sell to the several Underwriters named in Schedule I hereto for their respective accounts, on and subject to the terms and conditions of the Underwriting Agreement Basic Provisions attached hereto as Exhibit I, the following securities (the “Securities”) on the following terms:
Title:
Principal Amount:
Interest:
Interest Payment Dates:
Maturity:
Optional Redemption:
Listing:
Purchase Price: ___% of the principal amount, plus accrued interest, if any, from ________, 20__.
Registration Statement Nos.:
Execution Time:
Closing: 9:30 a.m. on _____________, at the offices of Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York, in Federal (same day) funds.
Payment of Expenses:
Representatives:
Lock-Up:
Indenture:
A-1
Exhibit B to the Underwriting Agreement Basic Provisions – Form of Final Term Sheet
Qualifications to Any Covenants or Representations Made by the Company or the Guarantor:
Transaction Documents:
Opinions: The opinions to be delivered on the Closing Date for purposes of Section 5(a) of the Underwriting Agreement Basic Provisions shall be substantially in the forms [attached as Exhibits [_____] hereto] [separately provided to you], each of which is in form and substance satisfactory to you for purposes of such Section.
Underwriter Information (see definition under the Underwriting Agreement Basic Provisions):
Notices to Underwriters: Notices to the Underwriters shall be directed to:
The respective principal amounts of the Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule I hereto.
To the extent not superseded or amended by the terms hereof, the provisions of the Underwriting Agreement Basic Provisions are incorporated herein by reference. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Underwriting Agreement Basic Provisions.
This Terms Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company and the Guarantor one of the counterparts hereof, whereupon it will become a binding agreement among the Company, the Guarantor and the several Underwriters in accordance with its terms.
| Very truly yours, | ||
| SUZANO NETHERLANDS B.V. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
A-2
Exhibit B to the Underwriting Agreement Basic Provisions – Form of Final Term Sheet
| SUZANO S.A. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
| The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above written. | ||
| [ ] | ||
| acting on behalf of itself and as representative of the several Underwriters | ||
| By: | ||
| Name: | ||
| Title: | ||
A-3
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
Schedule I
|
Underwriter |
Principal Amount of Securities |
A-4
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
Schedule II
Schedule of Free Writing Prospectuses included in the Disclosure Package
A-5
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
Schedule III
Final Term Sheet
A-6
Exhibit A to the Underwriting Agreement Basic Provisions – Form of Terms Agreement
Exhibit I
[Underwriting Agreement Basic Provisions to be attached]
A-7
Exhibit B to the Underwriting Agreement Basic Provisions – Form of Final Term Sheet
Final Term Sheet
Issuer: Suzano Netherlands B.V.
Guarantor: Suzano S.A.
Title of Securities: _________________
Aggregate Principal Amount: ________________________
Price To Public: ________% of principal amount, plus accrued interest, if any, from __________________________
Maturity:______________
Interest Rate/Coupon: _______[%]
Interest Payment Dates:______________and______________ of each year, commencing on______________
Interest Payment Record Dates: ______________and______________of each year Redemption Provisions/Call Options:______________
[Sinking Fund Provisions:______________]
Yield to Maturity:______________
Benchmark:______________
Spread to Treasury:______________
Other Provisions:______________
Settlement Date:______________________
Minimum Denomination:________________
Book-Running Manager[s]:______________
Co-Managers:______________
Ratings: ______________/______________
CUSIP:______________
ISIN:______________
[Common Code: ______________]
B-1
Exhibit B to the Underwriting Agreement Basic Provisions – Form of Final Term Sheet
[Listing:________________]
The offer and sale of the Securities to which this final term sheet relates have been registered by Suzano Netherlands B.V. and Suzano S.A. by means of a registration statement on Form F-3 (Registration No. 333-[ ]).
The issuer and the guarantor have filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer and the guarantor have filed with the SEC for more complete information about the issuer, the guarantor and this offering. You may get these documents for free by visiting the SEC Web site at www.sec.gov. Alternatively, the issuer, the guarantor, any underwriter or any dealer participating in this offering will arrange to send you the prospectus if you request it by calling toll-free 1-[ ].
B-2
Exhibit 4.1
SUZANO AUSTRIA GMBH
Company
SUZANO S.A.
Guarantor
AND
THE BANK OF NEW YORK MELLON
Trustee
INDENTURE
Dated as of [•], 2025
Debt Securities
WARNING
The taking of this document or any certified copy thereof or any document which confirms or refers to this document or any document constituting substitute documentation thereof (each a “Stamp Duty Sensitive Document”) into the Republic of Austria as well as printing out any e-mail communication which confirms or refers to any Stamp Duty Sensitive Document or to which a copy, a pdf-scan or any other scan of any Stamp Duty Sensitive Document is attached in the Republic of Austria and sending any e-mail communication carrying a signature (whether digitally, manuscript or otherwise technically reproduced) which confirms or refers to any Stamp Duty Sensitive Document or to which a copy, a pdf-scan or any other scan of any Stamp Duty Sensitive Document is attached to or from an Austrian addressee may cause the imposition of Austrian stamp duty. Accordingly, keep the original document as well as all certified copies thereof and written and signed confirmations thereof or references thereto and any document constituting substitute documentation thereof outside of the Republic of Austria and do not (i) print out any e-mail communication which confirms or refers to any Stamp Duty Sensitive Document or to which a copy, a pdf-scan or any other scan of any Stamp Duty Sensitive Document is attached in the Republic of Austria and (ii) send any e-mail communication carrying a signature (whether digitally, manuscript or otherwise technically reproduced) which confirms or refers to any Stamp Duty Sensitive Document or to which a copy, a pdf-scan or any other scan of any Stamp Duty Sensitive Document is attached to or from an Austrian addressee.
Suzano Austria GmbH
Suzano S.A.
Certain Sections of this Indenture relating
to Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939:
| Trust Indenture Act Section | Indenture Section | |
| (S)3.10(a)(1) | 6.09 | |
| (a)(2) | 6.09 | |
| (a)(3) | Not Applicable | |
| (a)(4) | Not Applicable | |
| (b) | 6.08 | |
| 6.10 | ||
| (S)3.11(a) | 6.13 | |
| (b) | 6.13 | |
| (S)3.12(a) | 7.01 | |
| 7.02 | ||
| (b) | 7.02 | |
| (c) | 7.02 | |
| (S)3.13(a) | 7.03 | |
| (b) | 7.03 | |
| (c) | 7.03 | |
| (d) | 7.03 | |
| (S)3.14(a) | 7.04 | |
| (a)(4) | 1.01 | |
| 10.02 | ||
| (b) | Not Applicable | |
| (c)(l) | 1.02 | |
| (c)(2) | 1.02 | |
| (c)(3) | Not Applicable | |
| (d) | Not Applicable | |
| (e) | 1.02 | |
| (S)3.15(a) | 6.01 | |
| (b) | 6.02 | |
| (c) | 6.01 | |
| (d) | 6.01 | |
| (e) | 5.14 | |
| (S)3.16(a) | 1.01 | |
| (a)(1)(A) | 5.02 | |
| 5.12 | ||
| (a)(1)(B) | 5.13 | |
| (a)(2) | Not Applicable | |
| 5.08 | ||
| (c) | 1.04 | |
| (S)3.17(a)(l) | 5.03 | |
| (a)(2) | 5.04 | |
| (S)3.18(a) | 1.07 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of this Indenture.
Table of contents
| ARTICLE ONE | ||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||
| Section 1.01. | Definitions | 1 |
| Section 1.02. | Compliance Certificates and Opinions | 18 |
| Section 1.03. | Form of Documents Delivered to Trustee | 20 |
| Section 1.04. | Acts of Holders of Securities; Record Dates | 20 |
| Section 1.05. | Notices, Etc., to Trustee and the Company | 22 |
| Section 1.06. | Notice to Holders of Securities; Waiver | 23 |
| Section 1.07. | Language of Notices, Etc. | 27 |
| Section 1.08. | Conflict with Trust Indenture Act | 27 |
| Section 1.09. | Effect of Headings and Table of Contents | 27 |
| Section 1.10. | Successors and Assigns | 27 |
| Section 1.11. | Separability Clause | 28 |
| Section 1.12. | Benefits of Indenture | 28 |
| Section 1.13. | Governing Law | 28 |
| Section 1.14. | Saturday, Sundays and Legal Holidays | 28 |
| Section 1.15. | Appointment of Agent for Service; Submission to Jurisdiction; Waiver of Immunity | 28 |
| Section 1.16. | Waiver of Jury Trial | 29 |
Section 1.17. |
Trustee Compliance with FATCA | 29 |
Section 1.18. |
No Sanctions | 30 |
| ARTICLE TWO | ||
| SECURITY FORMS | ||
| Section 2.01. | Forms Generally | 30 |
| Section 2.02. | Form of Global Security | 31 |
| Section 2.03. | Form of Legend for Global Securities | 42 |
| Section 2.04. | Form of Trustee’s Certificate of Authentication | 43 |
| ARTICLE THREE | ||
| THE SECURITIES | ||
| Section 3.01. | Amount Unlimited: Issuable in Series | 43 |
| Section 3.02. | Denominations | 46 |
| Section 3.03. | Execution, Authentication, Delivery and Dating | 46 |
| Section 3.04. | Outstanding Securities | 48 |
| Section 3.05. | Temporary Securities | 48 |
| Section 3.06. | Registration, Registration of Transfer and Exchange | 50 |
| Section 3.07. | Paying Agent to Hold Money in Trust | 55 |
| Section 3.08. | Mutilated, Destroyed, Lost and Stolen Securities | 55 |
| Section 3.09. | Payment of Interest; Interest Rights Preserved | 56 |
| Section 3.10. | Persons Deemed Owners | 57 |
| Section 3.11. | Cancellation | 57 |
| Section 3.12. | Computation of Interest | 58 |
| Section 3.13. | CUSIP or ISIN Numbers | 58 |
| Section 3.14. | Open Market Purchases | 58 |
| Section 3.15. | Add On Notes | 58 |
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of this Indenture.
i
TABLE OF CONTENTS
(continued)
| Section 3.16. | Forms of Certification | 59 |
| ARTICLE FOUR | ||
| SATISFACTION AND DISCHARGE | ||
| Section 4.01. | Satisfaction and Discharge of Indenture | 62 |
| Section 4.02. | Application of Trust Money | 63 |
| Section 4.03. | Repayment to Company | 63 |
| ARTICLE FIVE | ||
| REMEDIES | ||
| Section 5.01. | Events of Default | 63 |
| Section 5.02. | Acceleration of Maturity; Rescission and Annulment | 65 |
| Section 5.03. | Collection of Debt and Suits for Enforcement by Trustee | 66 |
| Section 5.04. | Trustee May File Proofs of Claim | 67 |
| Section 5.05. | Trustee May Enforce Claims Without Possession of Securities | 67 |
| Section 5.06. | Application of Money Collected | 67 |
| Section 5.07. | Limitation on Suits | 68 |
| Section 5.08. | Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert | 68 |
| Section 5.09. | Restoration of Rights and Remedies | 69 |
| Section 5.10. | Rights and Remedies Cumulative | 69 |
| Section 5.11. | Delay or Omission Not Waiver | 69 |
| Section 5.12. | Control by Holders of Securities | 69 |
| Section 5.13. | Waiver of Past Defaults | 70 |
| Section 5.14. | Undertaking for Costs | 70 |
| Section 5.15. | Waiver of Stay, Extension or Usury Laws | 70 |
| ARTICLE SIX | ||
| THE TRUSTEE | ||
| Section 6.01. | Certain Duties and Responsibilities | 71 |
| Section 6.02. | Notice of Defaults | 72 |
| Section 6.03. | Certain Rights of Trustee | 72 |
| Section 6.04. | Not Responsible for Recitals or Issuance of Securities | 75 |
| Section 6.05. | May Hold Securities | 75 |
| Section 6.06. | Money Held in Trust | 75 |
| Section 6.07. | Compensation and Reimbursement | 75 |
| Section 6.08. | Conflicting Interests | 76 |
| Section 6.09. | Corporate Trustee Required; Eligibility | 76 |
| Section 6.10. | Resignation and Removal; Appointment of Successor | 76 |
| Section 6.11. | Acceptance of Appointment by Successor | 78 |
| Section 6.12. | Merger, Conversion, Consolidation or Succession to Business | 79 |
| Section 6.13. | Preferential Collection of Claims Against Company | 79 |
| Section 6.14. | Appointment of Authenticating Agent | 79 |
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of this Indenture.
ii
TABLE OF CONTENTS
(continued)
| ARTICLE SEVEN | ||
| HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY | ||
| Section 7.01. | Company to Furnish Trustee Names and Addresses of Holders | 81 |
| Section 7.02. | Preservation of Information; Communications to Holders | 81 |
| Section 7.03. | Reports by Trustee | 82 |
| Section 7.04. | Reports by Company | 82 |
| Section 7.05. | Calculation of Original Issue Discount | 83 |
| ARTICLE EIGHT | ||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | ||
| Section 8.01. | Limitation on Consolidation, Merger, Sale or Conveyance | 83 |
| Section 8.02. | Successor Substituted | 84 |
| ARTICLE NINE | ||
| SUPPLEMENTAL INDENTURES | ||
| Section 9.01. | Supplemental Indentures Without Consent of Holders | 84 |
| Section 9.02. | Supplemental Indentures with Consent of Holders | 85 |
| Section 9.03. | Execution of Supplemental Indentures | 87 |
| Section 9.04. | Effect of Supplemental Indentures | 87 |
| Section 9.05. | Conformity with Trust Indenture Act | 87 |
| Section 9.06. | Reference in Securities to Supplemental Indentures | 87 |
| Section 9.07. | Substitution of the Company | 87 |
| ARTICLE TEN | ||
| COVENANTS | ||
| Section 10.01. | Payment of Principal and Interest | 88 |
| Section 10.02. | Maintenance of Office or Agency | 88 |
| Section 10.03. | Maintenance of Corporate Existence | 89 |
| Section 10.04. | Ranking | 89 |
| Section 10.05. | Statement by Managing Directors as to Default | 89 |
| Section 10.06. | Provision of Financial Statements and Reports | 90 |
| Section 10.07. | Appointment to Fill a Vacancy in Office of Trustee | 90 |
| Section 10.08. | Payments and Paying Agents | 90 |
| Section 10.09. | Waiver of Certain Covenants | 92 |
| Section 10.10. | Additional Amounts | 92 |
| Section 10.11. | Limitation on Liens | 95 |
| Section 10.12. | Limitation on Transaction with Affiliates | 95 |
| Section 10.13. | Repurchase at the Option of the Holders Upon Change of Control | 95 |
| Section 10.14. | Limitation on Sale and Leaseback Transactions | 97 |
| Section 10.15. | Currency Rate Indemnity | 97 |
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of this Indenture.
iii
TABLE OF CONTENTS
(continued)
| ARTICLE ELEVEN | ||
| REDEMPTION OF SECURITIES | ||
| Section 11.01. | Applicability of Article | 98 |
| Section 11.02. | Election to Redeem; Notice to Trustee | 98 |
| Section 11.03. | Selection by Trustee of Securities to Be Redeemed | 98 |
| Section 11.04. | Notice of Redemption | 99 |
| Section 11.05. | Deposit of Redemption Price | 100 |
| Section 11.06. | Securities Payable on Redemption Date | 100 |
| Section 11.07. | Securities Redeemed in Part | 100 |
| Section 11.08. | Optional Redemption Due to Changes in Tax Treatment | 101 |
| Section 11.09. | Mandatory Redemption and Sinking Fund Payments | 101 |
| ARTICLE TWELVE | ||
| GUARANTEE | ||
| Section 12.01. | Unconditional Guarantee | 101 |
| Section 12.02. | Release of Suzano | 103 |
| Section 12.03. | Subrogation and Contribution | 103 |
| ARTICLE FOURTEEN | ||
| DEFEASANCE AND COVENANT DEFEASANCE | ||
| Section 14.01. | Company’s Option to Effect Defeasance or Covenant Defeasance | 103 |
| Section 14.02. | Defeasance and Discharge | 103 |
| Section 14.03. | Covenant Defeasance | 103 |
| Section 14.04. | Conditions to Defeasance or Covenant Defeasance | 108 |
| Section 14.05. | Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions | 109 |
| Section 14.06. | Reinstatement | 110 |
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
NOTE: This table of contents shall not, for any purpose, be deemed to be a part of this Indenture.
iv
INDENTURE, dated as of [•], 2025, between SUZANO AUSTRIA GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of the Republic of Austria (the “Company”), having its corporate seat at Vienna, Austria and its principal office at Jakov-Lind-Straße 13/5, 1020 Vienna, Austria, , registered with the Austrian companies' register (Firmenbuch) under FN 62444 f, SUZANO S.A., a corporation (sociedade por ações) organized under the laws of the Federative Republic of Brazil (“Suzano” or “Guarantor”), as guarantor, and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee (herein called the “Trustee”), registrar, paying agent and transfer agent.
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its secured or unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.
The Company is a wholly-owned indirect subsidiary of Suzano, a publicly held company with authorized capital organized and existing under the laws of the Federative Republic of Brazil (“Brazil”). Suzano has agreed to guarantee the Securities, and to provide therefor Suzano has duly authorized the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the Company and Suzano, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of Securities or any series thereof, as follows:
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with Generally Acceptable Accounting Principles (“GAAP”) issued by the International Accounting Standards Board (“IASB”), and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are consistent with Reporting GAAP at the date of such computation;
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(4) Unless the context otherwise requires, any reference to an “Article,” a “Section” or an “Annex” refers to an Article, a Section or an Annex, as the case may be, of this Indenture; and
(5) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Act”, when used with respect to any Holder, has the meaning set forth in Section 1.04(1).
“Additional Amounts” has the meaning set forth in Section 10.10.
“Add On Notes” has the meaning set forth in Section 3.15.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling” and “controlled by” and “under common control with”) with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent Members” has the meaning set forth in Section 3.06(1)(e).
“Austria” means the Republic of Austria.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorization”, with respect to any creation or issuance of a series of Securities by the Company and any actions taken by the Company in connection with such issuance, means the authorization of such issuance and actions by the Board of Directors or any other corporate body of the Company required pursuant to the Company’s organizational documents and Austrian law to authorize such issuance and actions.
“Authorized Representative” means a managing director (Geschäftsführer) of the Company, acting jointly, any person duly authorized by the Company to represent the Company in accordance with the articles of association (Gesellschaftsvertrag) of the Company and any other person duly authorized by the Company pursuant to a power of attorney with specific powers to perform such act on behalf of the Company provided, however, that such power of attorney is granted in a legal and valid manner, and provided further that the Company may only appoint attorneys-in-fact who, in the judgment of the Company, have positions and responsibilities compatible with the powers granted.
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“Board of Directors”, when used with reference to the Company, means the board of directors of the Company or any committee of that board duly authorized to act for such board hereunder.
“Board Resolution” means, when used with reference to the Company, a copy of a resolution certified by any managing director of the Company, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and in each case delivered to the Trustee.
“Brazil” has the meaning set forth in the first recital of this Indenture.
“Business Day” means, with respect to any series of Securities, unless otherwise specified with respect to such series of Securities as contemplated by Section 3.01, a day, other than a Saturday or Sunday, that (a) in the Place of Payment (or in any of the Places of Payment, if more than one) in which amounts are payable, as specified in the form of such series of Securities and (b) in the city in which the Corporate Trust Office is located, is not a day on which banking institutions are authorized or required by law or regulation to close (and for purposes of the sending of notices only, is not a day on which banking institutions in Austria are authorized or required by law or regulation to close).
“Capital Lease Obligations” means, with respect to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property, which obligations are required to be classified and accounted for as a capital lease or liability set forth on a balance sheet of such Person under Reporting GAAP. The stated maturity of such obligations shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of such obligations shall be the capitalized amount that would appear on the balance sheet of such Person in accordance with Reporting GAAP. Notwithstanding the foregoing, whether or not the lease will be accounted for as a capital lease and the amount of any capital leases shall be determined without giving effect to IFRS 16.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations, quotas or other equivalents (however designated) of capital stock of a corporation, any and all ownership interests in a Person other than a corporation and any and all warrants or options to purchase any of the foregoing which would be shown as capital stock on the consolidated balance sheet of such Person and its consolidated Subsidiaries prepared in accordance with Reporting GAAP but excluding any debt securities convertible into such equity.
“Cash Equivalents” means any investments that are classified as cash equivalents under Reporting GAAP.
“Certificated Securities” has the meaning set forth in Section 3.06(1)(d).
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“Certification Date” means, with respect to Securities of any series, (i) if Securities of such series are not to be initially represented by a Temporary Regulation S Security, the date of delivery of the definitive Regulation S Security and (ii) if Securities of such series are initially represented by a Temporary Regulation S Security, the earlier of (A) the Exchange Date with respect to Securities of such series and (B) if the first Interest Payment Date with respect to Securities of such series is prior to such Exchange Date, such Interest Payment Date.
“Change of Control” means the consummation of any transaction by which (i) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a person or group that includes any one or more of the Permitted Holders, becomes after the date hereof the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50.0% of the total voting power of the outstanding Voting Stock of Suzano, or (ii) (x) the Permitted Holders cease to “beneficially own” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, collectively, at least 50.0% of the total voting power of the outstanding Voting Stock of Suzano, (y) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a person or group that includes any one or more of the Permitted Holders, becomes after the date hereof the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of a greater percentage of the total voting power of the outstanding Voting Stock of Suzano than the percentage beneficially owned collectively by the Permitted Holders, and (z) the Permitted Holders cease to have, directly or indirectly, the power to direct or cause the direction of the management and policies of Suzano, or (iii) Suzano shall cease to own, directly or indirectly, at least a majority of the issued and outstanding shares of Voting Stock of the Company or shall cease to have the power, directly or indirectly, to direct or cause the direction of the management and policies of the Company.
“Change of Control Offer” means an offer made by the Company or Suzano, following the occurrence of a Change of Control that results in a Rating Decline, to each Holder to repurchase all or any part of such Holder’s Securities pursuant to Section 10.12.
“Change of Control Payment” means, in connection with the repurchase of a Holder’s Securities pursuant to a Change of Control Offer, the payment by the Company or Suzano of (i) 101.0% of the aggregate principal amount of such Holder’s Securities repurchased plus accrued and unpaid interest and Additional Amounts, if any, on such Securities, to, but excluding, the date of purchase (subject to the right of the Holders of record on the relevant record date to receive interest and Additional Amounts, if any, on the relevant interest payment date).
“Change of Control Payment Date” means, in relation to a Change of Control Offer, the purchase date for the Securities properly tendered as specified in the notice given by the Company or Suzano pursuant to Section 10.12 in relation to such Change of Control Offer, which date is not more than five Business Days after the Expiration Date.
“Clearstream, Luxembourg” means Clearstream Banking, S.A., Luxembourg, and its successors.
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“Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument the United States Securities and Exchange Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Depositary” means the common depositary, if any, for Clearstream, Luxembourg and Euroclear Operator.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture and thereafter “Company” shall mean such successor Person, as described further in Section 9.01(1).
Company shall also mean any new issuer of future issuances of Securities under this Indenture as contemplated by Section 9.01(1).
“Consolidated Net Tangible Assets” means, on a consolidated basis, Suzano’s total assets, less current liabilities, less depreciation, amortization and depletion, less goodwill, trade names, trademarks, patents and other intangibles, as such line items appear on the most recent balance sheet, after giving pro forma effect to any acquisition or disposition of companies, divisions, lines of businesses, operations or assets by Suzano and its Subsidiaries subsequent to such date.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, Floor 7 East, New York, New York 10286, or such other address as the Trustee may designate from time to time by written notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company).
“Covenant Defeasance” has the meaning set forth in Section 13.03.
“Debt” means, with respect to any Person, determined without duplication:
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person for the deferred purchase price of Property or services, excluding trade payables arising in the ordinary course of such Person’s business, but only if and for so long as such trade payables remain payable on customary trade terms;
(3) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(4) all obligations, contingent or otherwise, of such Person in connection with any securitization of any receivables of such Person;
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(5) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the borrower or the lender under such agreement in an event of default are limited to repossession or sale of such Property);
(6) all Capital Lease Obligations and all obligations under “synthetic leases” of such Person;
(7) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit, financial guaranty insurance policies or other similar instruments, excluding obligations in respect of trade letters of credit or bankers’ acceptances issued in respect of trade accounts payables to the extent not drawn upon or presented, or, if drawn upon or presented, to the extent the resulting obligation of the Person is paid within 10 Business Days;
(8) all obligations of such Person to redeem, retire, defease or otherwise make any payment in respect of any Capital Stock of such Person;
(9) all net obligations of such Person in respect of any Hedging Agreements (but without regard to any notional principal amount relating thereto);
(10) all Debt of other Persons referred to in clauses (1) through (10) above or clause (-) below that is guaranteed by such Person to the extent so guaranteed; and
(11) all Debt of other Persons referred to in clauses (1) through (11) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) a Lien on Property of such Person even though such Person has not assumed such Debt.
The amount of Debt of any Person will be deemed to be:
(A) with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation;
(B) with respect to Debt secured by a Lien on an asset of such Person but not otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the fair market value of such asset on the date the Lien attached and (y) the amount of such Debt;
(C) with respect to any Debt issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt;
(D) with respect to any Hedging Agreement, the net amount payable if such Hedging Agreement terminated at that time due to default by such Person; and
(E) otherwise, the outstanding principal amount thereof.
“Default” means an event or condition with respect to a series of Securities that, with the giving of notice, lapse of time or failure to satisfy certain specified conditions, or any combination thereof, would become an Event of Default with respect to the Securities of such series if not cured or remedied.
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“Defaulted Interest” has the meaning set forth in Section 3.09.
“Defeasance” has the meaning set forth in Section 13.02.
“Depositary” means, with respect to Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“DTC” means The Depository Trust Company or its nominee, and its successors.
“Euroclear Operator” means Euroclear Bank S.A./N.V., a bank organized under the laws of the Kingdom of Belgium, as operator of the Euroclear system (or any successor securities clearing system).
“Event of Default” has the meaning set forth in Section 5.01.
“Exchange Act” means the United States Securities Exchange Act of 1934 (or any statute successor thereto), as it may be amended from time to time.
“Exchange Date” has the meaning set forth in Section 3.05.
“Expiration Date” has the meaning set forth in Section 1.04.
“Exchange Offer” has the meaning set forth in the form of the face of the Global Security set forth in Section 2.02.
“Exchange Security” means any Security issued by the Company (i) pursuant to the Exchange Offer, (ii) upon the registration of transfer of a Security registered for resale on a Resale Registration Statement or (iii) upon the transfer of, or in exchange for, Securities that are Exchange Securities.
“Fitch” means Fitch Ratings Inc. or any successors thereto.
“Global Security” means any Security or series of Security issued in the form set forth in Section 2.02 or established pursuant to Section 2.01 which is registered in the Security Register in the name of a Depositary and bears the legend set forth in Section 2.03 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
“Governmental Authority” means any regulatory, administrative or other legal body, any court, tribunal or authority or any public legal entity or public agency of Austria, Brazil or the United States or any other jurisdiction whether created by federal, provincial or local government, or any other legal entity now existing or hereafter created, or now or hereafter controlled, directly or indirectly, by any public legal entity or public agency of any of the foregoing.
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“guarantee” means an obligation of any Person to pay the Debt of another person including, without limitation: (i) an obligation to pay or purchase such Debt, (ii) an obligation to lend money or to purchase or subscribe for shares or other securities or to purchase assets or services in order to provide funds for the payment of such Debt, (iii), an indemnity against the consequences of a default in the payment of such Debt; or (iv) any other agreement to be responsible for such Debt.
“Guarantee” has the meaning specified in Section 12.01.
“Guarantor” means Suzano until a successor Person shall have become such pursuant to the applicable provisions of this Indenture and the Guarantee, and thereafter “Guarantor” shall mean such Person.
“Hedging Agreement” means, with respect to any Person, any interest rate protection agreement, any currency or commodity swap, cap or collar agreement, any equity swap, any weather-related derivative or any arrangement similar to any of the foregoing entered into by such Person providing for the transfer or mitigation of interest rate, currency, commodity price, equity risks, weather-related risks or other risks either generally or under specific contingencies.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“IFRS” means International Financial Reporting Standards as adopted by the International Accounting Standards Board.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01.
“Initial Regulation S Securities” means any Securities sold by the purchasers thereof in an initial offering contemplated by a Purchase Agreement in reliance on Regulation S and which are Temporary Regulation S Securities.
“Interest,” when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Investment Company Act” means the United States Investment Company Act of 1940 (or any statute successor thereto), as it may be amended from time to time.
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“Investment Grade Rating” means “BBB-” or higher by S&P, “Baa3” or higher by Moody’s or “BBB-” or higher by Fitch, or the equivalent of such global ratings by S&P, Moody’s or Fitch.
“Law” means any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, enforceable at law or in equity, along with the interpretation and administration thereof by any Governmental Authority charged with the interpretation or administration thereof.
“Lien” means any mortgage, lien, pledge, usufruct, fiduciary transfer (alienação fiduciária), charge, encumbrance or other security interest or any preferential arrangement (including a securitization) that has the practical effect of creating a security interest.
“Material Adverse Effect” means a material adverse effect on (i) the business, operations, assets, property, condition (financial or otherwise) of the Company or its Subsidiaries, taken as a whole, (ii) the validity or enforceability of this Indenture, or (iii) the ability of the Company to perform its obligations under this Indenture, or the material rights of or benefits available to the Holders or the Trustee, as representative of the Holders under this Indenture.
“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 15% of such Person’s total consolidated assets, as such total assets are set forth on the most recent consolidated financial statements of such Person prepared in accordance with Reporting GAAP.
“Maturity,” when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind set forth in Section 5.01(3).
“Officer” means (i) with respect to the Company, any director or authorized representative of the Company and (ii) with respect to Suzano or any Subsidiary, any authorized representative of Suzano or any Subsidiary including any of the president, vice president, executive officer, financial officer or general counsel of Suzano or any Subsidiary, as the case may be.
“Officers’ Certificate” means a certificate signed in the name of the Company or Suzano by any two managing directors (Geschäftsführer), executive officers or Authorized Representatives in accordance with its articles of association, or in the name of the Guarantor by any two officers or authorized representatives in accordance with its bylaws; provided however, that an Officers’ Certificate pursuant to Section 10.05 shall be signed by any two of the Company’s or the Guarantor’s, as applicable, principal executive, financial or accounting officers two managing directors pursuant to the requirements of Section 314(a)(4) of the Trust Indenture Act.
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“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company, as applicable (except as otherwise provided in this Indenture), and as reasonably acceptable to the Trustee.
“Order” means a written request or order signed in the name of the Company by an Authorized Representative, in each case delivered to the Trustee.
“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Original Securities” means Securities of any series that are not Exchange Securities.
“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation or surrendered for transfer or exchange;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefore satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 13.02; and
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 5.02, (ii) the principal amount of a Security denominated in one or more foreign currencies or currency units shall be the U.S. dollar equivalent, determined in the manner provided as contemplated by Section 3.01 on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security, (iii) if the principal amount payable at Stated Maturity of any Security is not determinable upon original issuance, the principal amount of such Security that shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, and (iv) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
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“Outstanding Securities” has the meaning set forth under Section 3.04.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on its behalf, which at the date of this Indenture includes the Trustee.
“Permanent Regulation S Security” has the meaning set forth in Section 3.05.
“Permitted Holders” means (a) David Feffer, Daniel Feffer, Jorge Feffer and Ruben Feffer, as well as any of their respective heirs, or (b) an entity that is directly or indirectly controlled by one or more of the Persons listed in clause (a) above.
“Permitted Lien” means, with respect to any Securities of a series issued for which Section 10.11 applies, any:
| (i) | any Lien existing on the date of this Indenture; |
| (ii) | any Lien on any Property or assets (including Capital Stock of any person) securing Debt incurred solely for purposes of financing the acquisition, construction or improvement of such Property or assets after the date of this Indenture; provided that (a) the aggregate principal amount of Debt secured by the Liens will not exceed (but may be less than) 130% of the cost (i.e., purchase price) of the Property or assets so acquired, constructed or improved and (b) the Lien is incurred before, or within 365 days after the completion of, such acquisition, construction or improvement and does not encumber any other Property or assets of Suzano or any of its Subsidiaries; and provided, further, that to the extent that the Property or asset acquired is Capital Stock, the Lien also may encumber other Property or assets of the person so acquired; |
| (iii) | any Lien securing Debt incurred for the purpose of financing all or part of the cost of the acquisition, construction or development of a project; provided that the lenders of such Debt expressly agree to limit their recourse in respect of such Debt to assets (including Capital Stock of the project entity) and/or revenues of such project with an aggregate value of not more than the amount of such Debt; and provided, further, that the Lien is incurred before, or within 365 days after the completion of, that acquisition, construction or development and does not apply to any other property or assets of Suzano or any Subsidiary; |
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| (iv) | any Lien extending, renewing or replacing (or successive extensions, renewals or replacements of), in whole or in part, any Lien referred to in items (i), (ii), (iii) above, and (vi) and (vii) below; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, except for any increase reflecting premiums, fees and expenses in connection with such extension, renewal or replacement; |
| (v) | any Lien existing on any Property or assets of any Person before that Person’s acquisition (in whole or in part) by merger into, or consolidation with, Suzano or any of its Subsidiaries after the date of this Indenture; provided that the Lien is not created in contemplation of or in connection with such acquisition, merger or consolidation; |
| (vi) | any Lien in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of the Company or any of its Subsidiaries in the ordinary course of business; |
| (vii) | any Liens granted to secure borrowings from, directly or indirectly, (a) Banco Nacional de Desenvolvimento Econômico e Social – BNDES, or any other Brazilian governmental development bank or credit agency (including borrowings from any Brazilian governmental bank with funds provided by Brazilian regional funds including Financiadora de Estudos e Projetos – FINEP, Fundo de Desenvolvimento do Nordeste – FDNE, Banco do Nordeste do Brasil and Fundo de Desenvolvimento do Centro Oeste – FCO), or (b) any international or multilateral development bank, government-sponsored agency, export-import bank or official export-import credit insurer; |
| (viii) | any pledge or deposit made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other similar social security legislation; |
| (ix) | any deposit to secure appeal bonds, judicial deposits or other similar guarantees in proceedings being contested in good faith to which Suzano or any Subsidiary is a party, good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which Suzano or any its Subsidiaries is a party or deposits for the payment of rent, in each case made in the ordinary course of business and for which adequate reserves have been made as required in accordance with Reporting GAAP; |
| (x) | any Lien imposed by applicable law incurred in the ordinary course of business, including, without limitation, carriers’, warehousemen’s and mechanics’ liens, statutory landlord’s liens, customary reservations or retentions of title easements, rights-of-way, defects, zoning restrictions and other similar charges or encumbrances arising in the ordinary course of business, in each case for sums not yet due or being contested in good faith by appropriate proceedings and for which adequate reserves have been made as required in accordance with Reporting GAAP; |
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| (xi) | any Lien or rights of set-off of any Person with respect to any Cash Equivalents on deposit account or securities account of Suzano or any of its Subsidiaries arising in the ordinary course of business in favor of the bank(s) or security intermediary(ies) with which such accounts are maintained, securing only amounts owing to such bank(s) with respect to cash management and operating account arrangements; |
| (xii) | any Lien on (i) cash or cash equivalents or other securities securing Hedging Agreements or other similar transactions permitted in accordance with this Indenture or (ii) any right, title, interest and claim in, to and under, Hedging Agreements or other similar transactions permitted in accordance with this Indenture, or any proceeds thereof, to secure a given Debt, to the extent that the purpose of such Hedging Agreement is to mitigate risks related to such Debt; |
| (xiii) | any Lien securing taxes, assessments and other governmental charges or levies, in each case the payment of which is not yet due or is being contested in good faith by appropriate proceedings diligently conducted and for which such reserves or other appropriate provisions, if any, as shall be required by Reporting GAAP shall have been made; |
| (xiv) | any Liens on the receivables of Suzano or any of its Subsidiaries securing the obligations of such Person under any line of credit or working capital facility or other credit facility; provided that the aggregate amount of receivables securing Debt shall not exceed 80.0% of the Suzano’s and its Subsidiaries’ aggregate outstanding receivables from time to time; |
| (xv) | any encumbrance, security deposit or reserve maintained in the ordinary course of business and required by Applicable Law; |
| (xvi) | any Lien which arises pursuant to a final judgment(s) that do not constitute an Event of Default under Section 5.01; |
| (xvii) | any Lien securing Debt or other obligations of a Subsidiary of Suzano or the Company owing to Suzano or the Company or a Subsidiary thereof; |
| (xviii) | any Lien on Property or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary; provided that, such Liens may not (i) extend to any Property owned by such Person other than the Property so acquired, or (ii) have been incurred in connection with or in anticipation of such acquisition; and |
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| (xix) | any Lien not otherwise described in items (i) through (xviii) above, provided that the aggregate principal amount of Debt at any time outstanding secured by such Lien does not exceed in aggregate principal amount, at any time of determination, 20% of the Consolidated Net Tangible Assets. |
“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, other entity or any government or any agency or political subdivision thereof.
“Place of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.01.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Preferred Stock” means, with respect to any Person, any Capital Stock of such Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Property” of any Person means any property, rights or revenues, or interest therein, of such Person.
“Purchase Agreement” means any purchase agreement entered into to issue Securities under this Indenture.
“Rating Agency” means S&P, Fitch or Moody’s; or if S&P, Fitch or Moody’s are not making rating of the Securities publicly available, an internationally recognized U.S. rating agency or agencies, as the case may be, selected by the Company, which will be substituted for S&P, Fitch or Moody’s, as the case may be.
“Rating Decline” means that at any time within 90 days (which period shall be extended so long as the rating of the debt securities is under publicly announced consideration for possible down grade by either Rating Agency) after the earlier of the date of public notice of a Change of Control and of the issuer’s intention or that of any Person to effect a Change of Control, (i) in the event the debt securities are assigned an Investment Grade Rating by at least two of the Rating Agencies prior to such public notice, the rating of such debt securities by at least two of the Rating Agencies shall be below an Investment Grade Rating; or (ii) in the event such debt Securities are not assigned an Investment Grade Rating by at least two of the Rating Agencies prior to such public notice, the rating of such debt securities by at least two of the Rating Agencies shall be decreased by one or more categories; provided that there shall be no Rating Decline to the extent such debt securities continue to have an Investment Grade Rating by at least one of the Ratings Agencies; provided that any such Rating Decline is expressly stated by the applicable Rating Agencies to have been the result of the Change of Control.
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“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security,” means any Security issued in registered form that is registered in the Security Register. Registered Securities shall include Global Securities and Certificated Securities.
“Registration Default” has the meaning set forth in the form of face of Global Security in Section 2.02.
“Registration Default Period” has the meaning set forth in the form of face of the Global Security in Section 2.02.
“Registration Rights Agreement” means an agreement entered into by the Company contemplating the registration under the Securities Act of a series of Securities issued under this Indenture subsequent to the initial date of issuance of such series of Securities.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
“Regulation S” means Regulation S under the Securities Act (or any successor provision), as it may be amended from time to time.
“Regulation S Certificate” means a certificate substantially in the form set forth in Annex A.
“Regulation S Global Security” has the meaning set forth in Section 2.01.
“Regulation S Legend” means a legend substantially in the form of the legend required in the forms of face of Security set forth in Section 2.02 to be placed upon a Regulation S Global Security.
“Regulation S Securities” means all Securities required pursuant to Section 3.06(3) to bear a Regulation S Legend. Such term includes a Regulation S Global Security.
“Reporting GAAP” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board or any other accounting standard that the Company may adopt as its primary reporting accounting standard in its reports filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
“Resale Registration Statement” shall mean a registration statement under the Securities Act registering the Securities for resale pursuant to the terms of the Registration Rights Agreement.
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“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department (or similar group) of the Trustee, with direct responsibility for the administration of the Indenture, and any officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Restricted Global Security” means any Global Security required pursuant to Section 3.06(3) to bear a Restricted Securities Legend.
“Restricted Period” means, with respect to any series of Regulation S Securities, the period of 41 consecutive days beginning on and including the later of (i) the day on which Securities of such series are first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S and (ii) the day on which the closing of the offering of Securities of such series pursuant to a Purchase Agreement occurs.
“Restricted Security” means all Securities required pursuant to Section 3.06(3) to bear a Restricted Securities Legend. Such term includes a Restricted Global Security.
“Restricted Securities Certificate” means a certificate substantially in the form set forth in Annex B.
“Restricted Securities Legend” means a legend substantially in the form of the legend required in the form of face of Securities set forth in Section 2.02 to be placed upon a Restricted Security.
“Rule l44A” means Rule l44A under the Securities Act (or any successor provision), as it may be amended from time to time.
“Rule 144A Securities” means all Securities initially distributed in connection with the offering of the Securities by the purchasers in reliance upon Rule 144A.
“S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc. and its successors.
“SEC” means the U.S. Securities and Exchange Commission.
“SEC Registered Securities” means the Exchange Securities and all other Securities sold or otherwise disposed of pursuant to an effective registration statement under the Securities Act, together with their respective Successor Securities.
“Securities” has the meaning set forth in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the United States Securities Act of 1933 (or any statute successor thereto), as it may be amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings set forth in Section 3.06.
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“Special Interest” has the meaning set forth in the form of face of the Global Security in Section 2.02. Unless the context otherwise requires, references herein to “interest” on the Securities shall include Special Interest.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity” means (i) with respect to any Debt, the date specified as the fixed date on which the final installment of principal of such Debt is due and payable or (ii) with respect to any scheduled installment of principal of or interest on any Debt, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing such Debt, not including any contingent obligation to repay, redeem or repurchase prior to the regularly scheduled date for payment.
“Step-Down Date” has the meaning set forth in the form of face of the Global Security in Section 2.02.
“Step-Up” has the meaning set forth in the form of face of the Global Security in Section 2.02.
“Subsidiary” means with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which more than 50.0% of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more Subsidiaries of such Person (or a combination thereof).
“Successor Company” has the meaning set forth in Section 9.07.
“Successor Jurisdiction” means the jurisdiction, other than Brazil or Austria, in which a Successor Person is incorporated or considered to be resident.
“Successor Person” has the meaning set forth in Section 8.01.
“Successor Security” of any particular Security means every Security issued after, and evidencing all or a portion of the same debt (subject to provisions, if any, in the Predecessor Security regarding payment of Special Interest) as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Suzano” has the meaning set forth in the first paragraph of this Indenture.
“Taxing Jurisdiction” shall mean Brazil, the jurisdiction of the Company’s incorporation (Austria) or any other jurisdiction in which the Company appoints a paying agent hereunder or any political subdivision or any taxing authority thereof or therein.
“Temporary Regulation S Security” means a temporary Security issued in global registered form.
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“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture Act” or “TIA” means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed (except as provided in Section 9.05); provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended.
“United States” or “U.S.” means the United States of America (including the States and the District of Columbia) and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).
“Unrestricted Securities Certificate” means a certificate substantially in the form set forth in Annex C.
“U.S. Person” shall have the meaning ascribed to such term in Rule 902 of Regulation S.
“U.S. Government Obligations” has the meaning set forth in Section 13.04(1).
“Voting Stock” of a Person means Capital Stock in such Person having power to vote for the election of directors or similar officials of such Person or otherwise voting with respect to actions of such Person (other than such Capital Stock having such power only by reason of the happening of a contingency).
“Wholly-Owned Subsidiary” means, with respect to any corporate entity, any person of which 95 % of the outstanding capital stock (other than qualifying shares, if any) having by the terms thereof ordinary voting power (not dependent on the happening of a contingency) to elect the Board of Directors (or equivalent controlling governing body) of such person is at the time owned or controlled directly or indirectly by such corporate entity, by one or more wholly-owned subsidiaries of such corporate entity or by such corporate entity and one or more wholly-owned subsidiaries thereof.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act with respect to compliance with conditions precedent provided for in this Indenture. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an Authorized Representative, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture, except that in the event of any such application or request as to which the furnishing of such documents is specifically required by any provisions of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
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Every certificate or opinion, whether required to be provided pursuant to this Section 1.02 or elsewhere, with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Representative may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Persons know, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Authorized Representative stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders of Securities; Record Dates.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders of Securities signing such instrument or instruments or so voting at such meeting. Proof of execution of any such instrument or of a writing appointing any such agent or proxy, or of the holding by any Person of a Security shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 13.06.
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(2) The fact and date of the execution by any Person of any instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(3) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, or their duly designated proxies, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders, or duly designated proxies, of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(2) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, or their duly designated proxies, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the expense of the Company, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
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With respect to any record date set pursuant to this Section, the party hereto that sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party or parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date and, if an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party or parties hereto which set such record date shall be deemed to have designated the 180th day after such record date as the Expiration Date with respect thereto.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents or proxies each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
(4) The principal amount and serial numbers of Global Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(5) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(6) The provisions of this Section 1.04 are subject to the provisions of Section 13.05.
Section 1.05. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders of Securities or other document provided for or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of Securities or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (or sent by facsimile and confirmed in writing) to or with the Trustee at its Corporate Trust Office, Attention: Institutional Trust Services, or
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(2) the Company by the Trustee or by any Holder of Securities shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed (or sent by facsimile and confirmed in writing) international air mail postage prepaid and addressed to its principal office specified in the first paragraph of this instrument to the attention of its Board of Directors, or at any other address previously furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders of Securities; Waiver.
Unless otherwise herein expressly provided, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given to Holders of Securities if in writing and mailed, first-class postage prepaid, or delivered by hand or overnight courier to each Holder of a Security affected by such event, at its address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Securities by mail, then such notification as shall be given with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security shall affect the sufficiency of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing.
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If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling.
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The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer.
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The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company.
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The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
Section 1.07. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language.
Section 1.08. Conflict with Trust Indenture Act.
The Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required to be part of and govern indentures qualified under the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the provision of such Act shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision of such Act shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
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Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 1.14. Saturday, Sundays and Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security or the last day on which Holders have the right to convert or exchange their Securities shall not be a Business Day at any Place of Payment or place of conversion or exchange, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) or conversion or exchange need not be made at such Place of Payment or place of conversion or exchange on such date, but may be made on the next succeeding Business Day at such Place of Payment or place of conversion or exchange with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity or on such last day for conversion or exchange.
Section 1.15. Appointment of Agent for Service; Submission to Jurisdiction; Waiver of Immunity.
By the execution and delivery of this Indenture, the Company hereby appoints Cogency Global Inc. with offices on the date hereof at 122 East 42nd Street, 18th Floor, New York, NY 10168, United States, as its authorized agent as its agent upon which process may be served in any legal action or proceeding which may be instituted in any state or Federal court in the Borough of Manhattan, The City of New York, State of New York, arising out of or relating to the Securities or this Indenture, but for that purpose only. Service of process upon such agent at the office of the Company at 122 East 42nd Street, 18th Floor, New York, NY 10168, United States, and written notice of said service to the Company by the Person servicing the same addressed as provided by Section 1.05, shall be deemed in every respect effective service of process upon the Company in any such legal action or proceeding. The Company will take any and all action necessary to continue such designation in full force and effect and to advise the Trustee of any change of address of such agent; should such agent become unavailable for this purpose for any reason, the Company will promptly and irrevocably designate a new agent in the Borough of Manhattan, The City of New York, State of New York, which will agree to act as such for powers and for the purposes set forth in this Section 1.15. The Company hereby (i) irrevocably submits to the nonexclusive jurisdiction of any state or Federal court in the Borough of Manhattan, The City of New York, State of New York in any legal action or proceeding arising out of or relating to the Securities or this Indenture, (ii) to the extent it may effectively do so, irrevocably and unconditionally waives any objection that it may have now or hereafter to the laying of the venue of any such legal action or proceeding and (iii) to the extent the Company has or hereafter may acquire any immunity from jurisdiction of any such court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities to the fullest extent permitted by law. Such appointment shall be irrevocable so long as the Holders of Securities shall have any rights pursuant to the terms thereof or of this Indenture until the appointment of a successor by the Company with written notice thereof to the Trustee and such successor’s acceptance of such appointment. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of such agent or successor.
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Section 1.16. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES, OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 1.17. Trustee Compliance with FATCA
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time that a foreign financial institution, issuer, paying agent, Holder or other institution is or has agreed to be subject to related to this Indenture, the Company and the Guarantors agree (i) to use commercially reasonable efforts to provide to the Trustee sufficient information about Holders or other applicable parties and/or transactions (including any modification to the terms of such transactions), to the extent the Company or any Guarantor has access to such information, so the Trustee can determine whether it has tax related obligations under applicable law, (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with applicable law for which the Trustee shall not have any liability except as may result from its own gross negligence or willful misconduct and (iii) to hold harmless the Trustee for any losses it may suffer due to the actions it takes to comply with such applicable law except as may result from its own gross negligence or willful misconduct. The terms of this section shall survive the termination of this Indenture.
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Section 1.18. No Sanctions
The Company and the Guarantors covenant and represent that neither they nor any of their Affiliates or Subsidiaries, their respective directors or officers are the target or subject of any sanctions enforced by the Unites States Government (including the Office of Foreign Assess Control of the United States Department of Treasury), the United Nations Security Council, the European Union, the HM Treasury or other relevant sanctions authority (collectively “Sanctions”). The Company and the Guarantors covenant and represent that neither they nor any of their Affiliates or Subsidiaries, their respective, directors or officers will use any funds raised pursuant to the issuance of the Notes (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any Person.
Article Two
SECURITY FORMS
Section 2.01. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form (including temporary or permanent global form) as shall be established by or pursuant to an Authorization of the Company or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary or as may, consistently herewith, be determined by an Authorized Representative executing such Securities pursuant to this Indenture, as evidenced by its execution thereof. If the forms of Securities of any series are established by action taken pursuant to an Authorization, a copy of an appropriate record of such action shall be certified by any Authorized Representative and delivered to the Trustee at or prior to the delivery of the Order contemplated by Section 3.03 for the authentication and delivery of such Securities. Any such Board Resolution or other document evidencing an Authorization shall have addressed thereto a true and correct copy of the form of Security referred to therein approved by or pursuant to such Authorization.
The definitive Securities may be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Authorized Representative executing such Securities, as evidenced by its execution of such Securities.
Upon their original issuance, any Rule 144A Securities and any Initial Regulation S Securities of any series shall be issued in the form of separate Global Securities. The Global Securities representing Rule 144A Securities, together with their Successor Securities which are Global Securities other than Regulation S Global Securities and SEC Registered Securities, are collectively herein called the “Restricted Global Securities”. The Global Securities representing Initial Regulation S Securities, together with their Successor Securities which are Global Securities other than Restricted Global Securities and SEC Registered Securities, are collectively herein called the “Regulation S Global Securities.”
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Section 2.02. Form of Global Security.
[Form of Face of Global Security] [Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
SUZANO AUSTRIA GMBH
[Title of Security]
Date: ___________
No.________ CUSIP NO._____________
ISIN NO.______________
[Legend if the Security is a Restricted Security:
“THE GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR ANY OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, AGREES THAT THIS GLOBAL NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO SUZANO AUSTRIA GMBH, (2) SO LONG AS THIS GLOBAL NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, REPRESENTS AND AGREES THAT IT WILL NOTIFY ANY PURCHASER OF THIS GLOBAL NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”]
[Legend if the Security is a Regulation S Security:
THIS GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, AGREES THAT NEITHER THIS GLOBAL NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
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THE FOREGOING LEGEND MAY BE REMOVED FROM THIS GLOBAL NOTE AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (I) THE DATE ON WHICH THE NOTES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (II) THE ORIGINAL ISSUE DATE OF THIS GLOBAL NOTE.]
[Legend if the Security is a Temporary Regulation S Security:
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”).
NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED ABOVE.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL HEREOF OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.]
[Legend if the Security benefits from a Registration Rights Agreement:
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF [date of agreement], AMONG SUZANO AUSTRIA GMBH, SUZANO S.A. AND THE OTHER PARTIES REFERRED TO THEREIN.]
This Security is one of a duly authorized issue of securities of SUZANO AUSTRIA GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Austria, having its register seat in Vienna, Austria (the “Issuer”), designated as its __________ (the “Securities”), issued in an initial aggregate principal amount of ________________ as revised by the Schedule of Increases and Decreased attached hereto, [If applicable, insert - - under the ___________ Supplemental Indenture (the “__________ Supplemental Indenture”), effective as of ___________, by and among the Issuer [If applicable, insert - - , Suzano S.A., a corporation (sociedade por ações) organized under the laws of Brazil (“Suzano”),] and The Bank of New York Mellon, a New York banking corporation, as Trustee (the “Trustee”), to the Indenture, dated as of [•], 2025 (the “Original Indenture”, and as supplemented by the ____________ Supplemental Indenture and any further supplements thereto with respect to the Securities, the “Indenture”), by and among the Issuer and the Trustee. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Securities are, and are to be, authenticated and delivered. All capitalized terms used in this Securities which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
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The Issuer, for value received, hereby promises to pay to ______________, or its registered assigns [If applicable, insert - - as nominee of __________________], and as the Holder of record of this Security, the principal amount specified above in _________ on __________ (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.
[If the Security is to bear interest prior to Maturity, insert --, As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from ____________, [semi-annually in arrears on ______________ and ______________ of each year] [annually in arrears on __________ in each year] (each such date, an “Interest Payment Date”), commencing _____________ at a rate equal to _____% per annum, and will initially accrue from the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. Interest payable, and punctually paid or duly provided for, on this Security on any Interest Payment Date will, as provided in the Indenture, be paid in ___________ to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on the Business Day preceding such interest payment.
Payment of the principal of and interest on this Security will be payable by wire transfer to a _______ account maintained by the Holder of this Security as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Security is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. [if the Security is to bear interest prior to Maturity, insert --, Interest shall accrue on the Securities at the rate of _____% per annum until all required amounts due in respect of the Securities have been paid. Interest accrued with respect to this Security shall be calculated based on ____________.]
[If applicable, insert - - However, if (i) a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), registering a security substantially identical to this Security (except that such Security will not contain terms with respect to the Special Interest payments described below or legends reflecting transfer restrictions) pursuant to an exchange offer (the “Exchange Offer”) (the “Exchange Registration Statement”) (or, if applicable, a registration statement registering this Security for resale (a “Shelf Registration Statement”)) has not become or been declared effective on or before the date on which such registration statement is required to become or be declared effective pursuant to the Exchange and Registration Rights Agreement, dated as of [date of agreement] (the “Registration Rights Agreement”), among the Issuer and the other parties referred to therein, or (ii) the Exchange Offer has not been completed within the number of days specified by the Registration Rights Agreement after the initial effective date of the Exchange Registration Statement (if the Exchange Offer is then required to be made) or a Shelf Registration Statement has not become or been declared effective on or before the date on which it is required to become or be declared effective pursuant to the Exchange and Registration Rights Agreement, or (iii) any Exchange Registration Statement or, if applicable, the Shelf Registration Statement is filed and declared effective but shall thereafter cease to be effective (except as specifically permitted pursuant to the Registration Rights Agreement) without being succeeded immediately (except as specifically permitted pursuant to the Registration Rights Agreement) by an additional registration statement filed and declared effective, in each case in Clauses (i) through (iii) upon the terms and conditions set forth in the Registration Rights Agreement (each such event referred to in Clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then interest will accrue (in addition to any stated interest on the Securities) (the “Step-Up”) at a per annum rate of _____% for such Registration Default Period from and including the date on which a Registration Default first occurs to but excluding the first date (the “Step-Down Date”) that no Registration Default is in effect. Interest accruing as a result of the Step-Up is referred to herein as “Special Interest.” Accrued Special Interest, if any, shall be paid semi-annually on ______ and ______ in each year; and the amount of accrued Special Interest shall be determined on the basis of the number of days during which such Registration Default is in effect.
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The Issuer shall provide the Trustee with written notice of the date of any Registration Default and the Step-Down Date. Any accrued and unpaid interest (including Special Interest) on this Security upon the issuance of an Exchange Security (as defined in the Indenture) in exchange for this Security shall cease to be payable to the Holder hereof but such accrued and unpaid interest (including Special interest) shall be payable on the next Interest Payment Date for such Exchange Security.]
[If the Security is not to bear interest prior to Maturity, insert -- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal and any overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest shall be legally enforceable), from the date such amounts are due until they are paid or made available for payment. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal or premium which is not so paid on demand shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on overdue interest shall be payable on demand.)
[If the Securities are subject to redemption, insert - - The Securities are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.]
This Security does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.
If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Securities may become or may be declared due and payable in the manner and with the effect provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the Trustee only to the extent and in the circumstances permitted by the Indenture.
[If applicable, insert - - The Securities shall be issued only in fully registered form, without coupons. Securities shall be issued in the form of beneficial interests in one or more global securities in denominations of _________and integral multiples of _________ in excess thereof.
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Prior to and at the time of due presentment of this Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.
IN WITNESS WHEREOF, the Issuer has caused this Security to be duly executed.
Dated:
SUZANO AUSTRIA GMBH
| By: | |||
| Name: | |||
| Title: |
[Form of Reverse of Global Security]
This Security is one of a duly authorized issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of [•], 2025 (herein called the “Indenture” which term shall have the meaning assigned to it in such instrument), between the Issuer and The Bank of New York Mellon, as Trustee (herein called the “Trustee,” which term includes any other successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert, limited in aggregate principal amount to U.S.$__________].
[If applicable, insert-- The Securities of this series are subject to redemption upon not less than 15 days’ notice by mail, [if applicable, insert -- at any time [if applicable, insert -- on or after ________, _____], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert -- on or before ____________, ____%, and if redeemed] during the 12-month period beginning _________ of the years indicated,
| Redemption | Redemption | ||
| Year | Price | Year | Price |
and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of any such redemption with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
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[If applicable, insert -- The Securities of this series are subject to redemption upon not less than 15 days’ notice by mail, at any time [if applicable, insert -- on or after_______, ___________], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption (expressed as percentages of the principal amount, with the amount in excess of 100% of the principal amount being additional interest) set forth in the table below: If redeemed during the 12-month period beginning_____________ of the years indicated,
| Year | Redemption Price For Redemption |
and thereafter at a Redemption Price equal to ____% of the principal amount, together in the case of any such redemption with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may not, prior to __________, redeem any Securities of this series as contemplated by [If applicable, insert -- Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than ____% per annum.]
[if applicable, insert -- The Securities of this series may be redeemed at the option of the Company, in whole but not in part, upon not less than 15 nor more than 60 days’ notice given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued and unpaid interest to the date fixed for redemption if as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Company is incorporated (or in the case of a successor Person to the Company, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after ____________ (or, in the case of a successor Person to the Company, the date on which such successor Person became such pursuant to the applicable provision of the Indenture).]
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[If applicable, insert -- The Securities may also be redeemed in whole but not in part upon not less than 15 nor more than 60 days’ notice given as provided in the Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if the Person formed by a consolidation of the Company or into which the Company is merged or to which the Company conveys, transfers or leases its properties and assets substantially as an entirety is required to pay a Holder Additional Amounts in respect of any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease.]
[If applicable, insert -- the Redemption Price of the Securities of this series shall be equal to the applicable percentage of the principal amount at Stated Maturity set forth below:
| If Redemption During the 12-Month Period Commencing |
Redemption Price |
together with, in each case (except if the Redemption Date shall be a __________), an amount equal to the applicable Redemption Price multiplied by a fraction the numerator of which is the number of days from but not including the preceding _______________ to and including the Redemption Date multiplied by the difference between the Redemption Price applicable during the 12 months beginning on the _________________ following the Redemption Date (or, in the case of a Redemption Date after ___________, 100%) and the Redemption Price applicable on the Redemption Date and the denominator of which is the total number of days from but not including the _________________ preceding the Redemption Date to and including the next succeeding ____________. The Company will also pay to each eligible Holder, or make available for payment to each such Holder, on the Redemption Date any additional interest (as set forth on the face hereof) resulting from the payment of such Redemption Price.]
[If applicable insert -- The Redemption Price of the Securities of this series either in the event of certain changes in the tax treatment or in an event of default would include, in addition to the face amount of the Security, an amount equal to the Original Issue Discount accrued since the issue date. Original Issue Discount (the difference between the Issue Price and the Principal Amount at Maturity of the Security), in the period during which a Security of this series remains outstanding, shall accrue at __% per annum, on a semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day months, commencing on the issue date of this Security.]
[If applicable, insert -- Notice of redemption will be given by mail to Holders of Securities of this series, not less than 15 days nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture. Such notice may at the Company’s option be subject to the satisfaction of one or more conditions precedent, and it may be rescinded or the applicable redemption date delayed in the event that any or all such conditions shall not have been satisfied by the applicable redemption date. Any conditions precedent shall be described in such notice.]
[If the Security is subject to redemption of any kind, insert -- In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
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[If applicable insert: The Securities are the Company’s unsecured obligations [and will be subordinated in right of payment to all of the Company’s existing and future senior indebtedness (as such term is defined in the [supplemental indenture] [Board Resolution or other document evidencing an Authorization] authorizing this series of Securities)] and effectively subordinated to all existing and future Debt and other liabilities of its subsidiaries.]
[If applicable, insert -- The Indenture contains provisions for defeasance at any time of [the entire indebtedness on this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case,] upon compliance with certain conditions set forth in the Indenture.)
[If applicable, insert -- Subject to and upon compliance with the provisions of the Indenture, the Holder of this Security is entitled, at his option, at any time after ________________, to [convert] [exchange] this Security into [Describe Securities and conversion mechanics].]
[If applicable, insert -- In the event of conversion of this Security in part only, a new Security or Securities of this series and of like tenor for the unconverted portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the applicable issuer’s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
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[If applicable, insert - - If any deduction or withholding for any present or future taxes, assessments or other governmental charges of Brazil or Austria (or any political subdivision or taxing authority thereof or therein) (each a “Taxing Jurisdiction”) shall at any time be required by such Taxing Jurisdiction in respect of any amounts to be paid by the Company under the Securities, the Company will pay to the Holder of this Security such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled (“Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:
(1) any taxes, levies, assessments or other governmental charges that would not have been so withheld or deducted but for the existence of any present or former connection between the Holder or beneficial owner of such Security (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a partnership, a limited liability company or a corporation) and the Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Security or enforcement of rights and the receipt of payments with respect to the Security;
(2) any taxes, levies, assessments or other governmental charges imposed on, or measured by, net income;
(3) any taxes, levies, assessments or other governmental charges that would not have been so withheld or deducted but for the failure by such Holder or the beneficial owner of such Security, or, in the case of amounts payable to the Trustee, the Trustee (i) to make a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled, or (ii) to comply with any certification, identification or other reporting requirements concerning its nationality, residence, identity or connection with the Taxing Jurisdiction, if such compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the tax, levy, deduction or other governmental charge; provided that, in no event shall such Holder’s, beneficial owner’s, or Trustee’s requirement to make a valid and legal claim for exemption from or reduction of such taxes require such Holder, beneficial owner or the Trustee to provide materially more onerous information, documents or other evidence than comparable reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as U.S. IRS Forms W-8 or W-9 or any comparable successor forms);
(4) Security presented for payment more than 30 calendar days after the Company has made available to such Holder a payment under the Securities and this Indenture, except to the extent the Holder would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30 calendar day period;
(5) any estate, inheritance, gift, value added, Financial Transactions Tax, use or sales taxes or any similar taxes, assessments or other governmental charges;
(6) any withholding or deduction that the Holder or beneficial owner of the Security would have been able to avoid by taking reasonable measures available to such Holder or beneficial owner, such as presenting the Security for payment to another Paying Agent;
(7) any taxes, levies, assessments or other governmental charges that are payable other than by deduction or withholding;
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(8) any taxes, levies, assessments or other governmental charges payable pursuant to FATCA;
(9) any combination of the above.
nor shall Additional Amounts be paid with respect to any payment in respect of any Security to any Holder or beneficial owner who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of Brazil or Austria (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the Holder or beneficial owner, as the case may be, of such Security.
Unless the context otherwise requires, the Original Securities (as defined in the Indenture) of this series and the Exchange Securities (as defined in the Indenture) of this series shall constitute one series for all purposes (other than, unless specified otherwise, U.S. federal income tax purposes) under the Indenture, including without limitation, amendments, waivers and redemptions.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered indemnity or security satisfactory to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal [(and premium, if any)], interest or any Additional Amount on this Security on or after the respective due dates expressed herein [If applicable insert -- or to a suit instituted by the Holder hereof for the enforcement of the right to convert this Security or receive Securities upon conversion or exchange in accordance with the Indenture].
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No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed or to convert or exchange this Security as provided in the Indenture.
The Securities of this series are issuable only in registered form without coupons in denominations of _________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company or the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
[If applicable, insert - -
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SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be U.S.$ _____________. The following decreases/increases in the principal amount of this Security have been made:
| Date
of Decrease/Increase |
Decrease
in Principal Amount |
Increase
in Principal Amount |
Total
Principal Amount Following Such Decrease/Increase |
Notation
Made by or on Behalf of Trustee | ||||
Section 2.03. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS CERTIFICATE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. [If applicable, insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF [name of registered holder ], OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [name of registered holder], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),] ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, [name of registered holder], HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.
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Section 2.04. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
Dated:
| The Bank of New York Mellon As Trustee |
||
| By: | ||
| Authorized Officer | ||
Article Three
THE SECURITIES
Section 3.01. Amount Unlimited: Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution or other document evidencing an Authorization of the Company and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, the terms of the Securities of such series, including (as applicable) and without limitation:
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.06 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder) (including any provision for the offering of additional Securities of the series beyond any such limit upon the aggregate principal amount of Securities of such series);
(3) whether the Securities of the series will be issued at par, at a premium or at discount or as an Original Issue Discount Security;
(4) whether the Securities will constitute subordinated obligations of the Company and, if so, the terms of such subordination;
(5) whether the Securities will be secured obligations of the Company;
(6) whether Securities of the series in a form other than as Global Securities, whether any Securities of the series are to be issuable initially as Temporary Regulation S Securities and whether any Securities of the series are to be issuable as Permanent Regulation S Securities and, if so, whether beneficial owners of interests in any such Permanent Regulation S Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 3.05;
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(7) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest the manner in which, any interest on any Security of the series shall be payable, if other than by wire transfer in same-day funds to the Holder;
(8) the date or dates on which the principal of the Securities of the series is payable;
(9) the rate or rates at which the Securities of the series shall bear interest or the method by which such rate shall be determined, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest payable on any Global Securities on any Interest Payment Date;
(10) the place or places where, subject to the provisions of Section 1.01, the principal of and any premium and interest on Securities of the series shall be payable, any Global Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange or conversion and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(11) other than with respect to any redemption of Securities pursuant to Section 11.08, the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company (including the period following the date referred to in Section 11.08) and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(12) other than with respect to any redemption of Securities pursuant to Section 11.08, the obligation, if any, of the Company to redeem or purchase any Securities of the series, if applicable, at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(13) the terms and conditions for conversion or exchange of Securities into equity securities of the Company (including, if applicable, the rights, preferences and privileges of such equity securities), and the terms of any additional redemption rights of the Company relating to such terms and conditions for conversion or exchange, whether any such equity securities may be evidenced by American Depositary Receipts and whether such security is convertible or exchangeable into another security;
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(14) the denominations in which any Securities of the series shall be issuable if other than denominations of U.S.$1,000 and any integral multiple thereof;
(15) the applicable rate on Defaulted Interest;
(16) the currency, currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in Section 1.01;
(17) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(18) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities of such series are stated to be payable, the currency, currencies or currency units in which the principal of and any premium and interest on Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(19) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(20) the application, if any, of Sections 13.01, 13.02 or 13.03 or both such Sections to the Securities of the series and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(21) if Additional Amounts pursuant to Section 10.10 will not be payable by the Company;
(22) if the principal amount payable at the Stated Maturity of any Securities of the series is not determinable as of one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any other purpose hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date (or, in any such case, the manner in which such principal amount shall be determined);
(23) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.03 and, if different from those set forth in Clause (2) of the last paragraph of Section 3.05, any circumstances in which Securities issued upon any exchange may be registered in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
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(24) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(25) any addition to, removal of or change in the covenants set forth in Article Ten which applies to Securities of the series;
(26) whether the Securities of the series may be exchanged for Exchange Securities pursuant to an Exchange Offer or otherwise in authorized denominations in exchange for a like principal amount of Original Securities of the same series, all in accordance with the terms of this Indenture and the terms of such security;
(27) whether the Securities are Restricted Securities and Regulation S Securities, or SEC Registered Securities;
(28) whether Add On Notes will be permitted; and
(29) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(5)).
Unless the context otherwise requires, any Original Securities of a series and any Exchange Securities of such series shall constitute one series for all purposes (other than, unless specified otherwise, U.S. federal income tax purposes) under this Indenture, including without limitation, amendments, waivers or redemptions.
If any of the terms of the Securities of a series are established by action taken pursuant to an Authorization of the Company, a copy of an appropriate record of such action shall be certified by any Authorized Representative, as the case may be, each delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.
Section 3.02. Denominations.
Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, any Securities of a series shall be issuable in minimum denominations of U.S.$1,000 and any integral multiple thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any Authorized Representative. The signature of any such Authorized Representative may be manual or facsimile. Securities bearing the manual or facsimile signatures of individuals who were at any time a proper Authorized Representative shall bind the Company notwithstanding that such individuals or any of them have ceased to hold such positions prior to the authentication and delivery of such Securities or did not hold such positions at the date of such Securities.
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At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company to the Trustee for authentication, together with an Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Order shall authenticate and deliver such Securities.
If the forms or terms of the Securities of the series have been established in or pursuant to one or more Authorizations as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating,
(1) that such forms or terms have been established in conformity with the provisions of this Indenture;
(2) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(3) that all conditions precedent to the authentication and delivery of the Notes have been complied with.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised in writing by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability based upon the written advice of counsel.
The Trustee shall not be required to authenticate the Securities of any series if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual or electronic signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04. Outstanding Securities.
(a) Securities outstanding at any time (“Outstanding Securities”) are all Securities authenticated by the Trustee except for those cancelled by it pursuant to Section 3.09 hereof, those delivered to the Trustee for cancellation or surrendered for transfer or exchange, those reductions in the interest in a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section 3.04 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
(b) If a Security is replaced pursuant to Section 3.05, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser.
(c) If any Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date money sufficient to pay all principal, premium, interest and Additional Amounts (if any) payable on that date with respect to the Securities (or portions thereof) to be redeemed or maturing, as the case may be, then on and after that date, such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
Section 3.05. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the managing directors executing such Securities may determine, as evidenced by their execution of such Securities. A Temporary Regulation S Security shall be delivered only in compliance with the conditions set forth in Section 3.03 and this Section 3.04.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
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If Temporary Regulation S Securities of any series are issued, any such Temporary Regulation S Security shall, unless otherwise provided therein, be delivered to DTC or its nominee or the Common Depositary, in each case, for the benefit of the Euroclear Operator and Clearstream, Luxembourg, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such Temporary Regulation S Security of a series (the “Exchange Date”), the Company shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of such Temporary Regulation S Security executed by the Company. On or after the Exchange Date, such Temporary Regulation S Security shall be surrendered by DTC or its nominee or the Common Depositary, as the case may be, to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities of that series without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such Temporary Regulation S Security a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such Temporary Regulation S Security to be exchanged; provided however, that upon such presentation by DTC or its nominee or the Common Depositary, such Temporary Regulation S Security must be accompanied by a certificate dated the Exchange Date or a subsequent date and signed by the Euroclear Operator as to the portion of such Temporary Regulation S Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream, Luxembourg as to the portion of such Temporary Regulation S Security held for its account then to be exchanged, each in the form set forth in Section 3.15(2). The definitive Securities to be delivered in exchange for any such Temporary Regulation S Security shall, unless otherwise specified in the Temporary Regulation S Security, be in or in the form of Permanent Regulation S Securities.
Unless otherwise specified in the Temporary Regulation S Security, the interest of a beneficial owner of Securities of a series in a Temporary Regulation S Security shall be exchanged on the Exchange Date for interest in a permanent global registered Security (a “Permanent Regulation S Security”) of the same series and of like tenor unless, on or prior to the Exchange Date, such beneficial owner has not delivered to the Euroclear Operator or Clearstream, Luxembourg, as the case may be, a certificate in the form set forth in Section 3.15(1) dated no earlier than the Certification Date, copies of which certificate shall be available from the office of the Euroclear Operator and Clearstream, Luxembourg, the Trustee, and any Authenticating Agent appointed for such series of Securities and each Paying Agent and after the Exchange Date, the interest of a beneficial owner of Securities of a series in a Temporary Regulation S Security shall be exchanged for an interest in a Permanent Regulation S Security of the same series and of like tenor following such beneficial owner’s delivery to the Euroclear Operator or Clearstream, Luxembourg, as the case may be, of a certificate in the form set forth in Section 3.15(1)dated no earlier than the Certification Date. Unless otherwise specified in such Temporary Regulation S Security, any such exchange shall be made free of charge to the beneficial owners of such Temporary Regulation S Security.
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Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, interest payable on a Temporary Regulation S Security on an Interest Payment Date for Securities of such series shall be payable to the Euroclear Operator and Clearstream, Luxembourg on such Interest Payment Date only upon delivery by the Euroclear Operator or Clearstream, Luxembourg to the Trustee of a certificate or certificates in the form set forth in Section 3.15(2), for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such Temporary Regulation S Security on such Interest Payment Date and who have each delivered to the Euroclear Operator or Clearstream, Luxembourg, as the case may be, a certificate in the form set forth in Section 3.15(1). Any interest so received by the Euroclear Operator and Clearstream, Luxembourg and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 10.08.
Section 3.06. Registration, Registration of Transfer and Exchange.
(1) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. Such Security Register shall distinguish between Original Securities and Exchange Securities.
Except as otherwise provided in this Section 3.06(1), upon surrender for registration of transfer of a Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
Subject to Section 3.06(2), at the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like tenor and aggregate principal amount upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company evidencing the same debt (subject to the provisions, if any, in the Original Securities regarding payment of Special Interest) and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
In the event that the Company delivers to the Trustee a copy of an Officers’ Certificate certifying that a registration statement under the Securities Act with respect to an Exchange Offer relating to a particular series of Securities, if any such Exchange Offer is contemplated for such series, has been declared effective by the Commission and that the Company has offered Exchange Securities of such series to the Holders in accordance with the Exchange Offer, the Trustee shall exchange, upon request of any Holder, such Holder’s Securities for Exchange Securities upon the terms set forth in the Exchange Offer.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 3.04, 9.06 or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Registered Securities of any series during a period beginning at the opening of business 15 days before any selection of Securities of that series to be redeemed and ending at the close of business on the day of the mailing of the relevant notice of redemption or (ii) to register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only to registered Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Subject to Clause (d) below, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(c) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Sections 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
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(d) Except as provided below, owners of beneficial interests in Global Securities will not be entitled to receive Registered Securities in their names (“Certificated Securities”). Certificated Securities shall be issued to all owners of beneficial interests in a Global Note in exchange for such interests if:
(i) The Depositary notifies the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary ceases to be a clearing agency registered under the Exchange Act, at a time when such Depositary is required to be so registered in order to act as depositary, and in each case, and a successor depositary is not appointed by the Company within 90 days of such notice,
(ii) The Depositary executes and delivers to the Trustee and the Security Registrar a written notice stating that such Global Note shall be so exchangeable, or
(iii) an Event of Default has occurred and is continuing and the Security Registrar has received a request from the Depositary or the Security Registrar and the Company have received a request from the Trustee.
In connection with the exchange of an entire Global Security for Certificated Securities pursuant to this Clause (d), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon receipt of an Order the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Certificated Securities of authorized denominations.
(e) Members of, or participants in, DTC or Euroclear Operator and Clearstream, Luxembourg, as the case may be (“Agent Members”), shall have no rights under this Indenture with respect to any Global Security held on their behalf by DTC or by the Common Depositary under such Global Security, and DTC or the Common Depositary, as the case may be, may be treated by the Company, the Trustee, the Paying Agent and the Security Registrar and any of their agents as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Security Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished by DTC or the Common Depositary or impair, as between DTC or Euroclear Operator and Clearstream, Luxembourg and their respective Agent Members, the operation of customary practices governing the exercise of the rights of an owner of a beneficial interest in any Global Security. The registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.
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(f) None of the Company, the Trustee or any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
(2) Certain Transfers and Exchanges.
(a) The following provisions shall apply with respect to any proposed transfer of an interest in a Restricted Global Security: If (i) the owner of a beneficial interest in a Restricted Global Security wishes to transfer such interest (or portion thereof) to a Non-U.S. Person pursuant to Regulation S and (ii) such Non-U.S. Person wishes to hold its interest in the Security through a beneficial interest in the Regulation S Global Security, (x) upon receipt by the Depositary and Security Registrar of:
(i) instructions from the Holder of the Restricted Global Note directing the Depositary and Security Registrar to credit or cause to be credited a beneficial interest in the Regulation S Global Security equal to the principal amount of the beneficial interest in the Restricted Global Security to be transferred, and
(ii) a Restricted Securities Certificate in the form of Annex B from the transferor,
and (y) subject to the rules and procedures of the Depositary, the Depositary and Security Registrar shall increase the Regulation S Global Security and decrease the Restricted Global Security by such amount in accordance with the foregoing.
(b) If the owner of an interest in a Regulation S Global Security wishes to transfer such interest (or any portion thereof) to a “qualified institutional buyer” as defined by and pursuant to Rule 144A prior to the expiration of the Restricted Period therefor, (x) upon receipt by the Depositary and Security Registrar of:
(i) instructions from the Holder of the Regulation S Global Security directing the Depositary and Security Registrar to credit or cause to be credited a beneficial interest in the Restricted Global Note equal to the principal amount of the beneficial interest in the Regulation S Global Security to be transferred, and
(ii) a Restricted Securities Certificate in the form of Annex B duly executed by the transferor,
and (y) in accordance with the rules and procedures of the Depositary, the Depositary and Security Registrar shall increase the Restricted Global Security and decrease the Regulation S Global Security by such amount in accordance with the foregoing.
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(c) Other Transfers. Any transfer of Restricted Securities or Regulation S Securities not described above (other than a transfer of a beneficial interest in a Global Security that does not involve an exchange of such interest for a Certificated Security or a beneficial interest in another Global Security, which must be effected in accordance with applicable law and the rules and procedures of the Depositary, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Security Registrar of such opinions of counsel, certificates and/or other information reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with paragraph (3) of this Section 3.06.
(3) Securities Act Legends. Rule 144A Securities and their Successor Securities shall bear a Restricted Securities Legend, and Initial Regulation S Securities and their Successor Securities shall bear a Regulation S Legend, subject to the following:
(a) subject to the following Clauses of this Section 3.06(3), a Security or any portion thereof which is exchanged, upon registration of transfer or otherwise, for a Registered Global Security or any portion thereof shall bear the Securities Act legend borne by such Registered Global Security while represented thereby;
(b) subject to the following Clauses of this Section 3.06(3), a new Registered Security which is issued in exchange for another Security or any portion thereof, upon registration of transfer or otherwise, shall bear the Securities Act legend borne by such other Security, provided that, if such new Registered Security is required to be issued in the form of a Restricted Security, it shall bear a Restricted Securities Legend and, if such new Registered Security is so required to be issued in the form of a Regulation S Security, it shall bear a Regulation S Legend;
(c) any SEC Registered Securities shall not bear a Securities Act legend;
(d) after the applicable restricted period prescribed by Rule 144(d) under the Securities Act, a new Registered Security which does not bear a Securities Act legend may be issued in exchange for or in lieu of a Registered Security or any portion thereof which bears such a legend if the Trustee has received an Unrestricted Securities Certificate, satisfactory to the Trustee and duly executed by the Holder of such legended Security or his attorney duly authorized in writing, and after such date and receipt of such certificate, the Trustee shall authenticate and deliver such a new Registered Security in exchange for or in lieu of such other Registered Security as provided in this Article Three;
(e) a new Registered Security which does not bear a Securities Act legend may be issued in exchange for or in lieu of a Registered Security or any portion thereof which bears such a legend if, in the Company’s judgment, placing such a legend upon such new Security is not necessary to ensure compliance with the registration requirements of the Securities Act, and the Trustee, at the direction of the Company, shall authenticate and deliver such a new Security as provided in this Article Three; and
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(f) notwithstanding the foregoing provisions of this Section 3.06(3), a Successor Security of a Security that does not bear a particular form of Securities Act legend shall not bear such form of legend unless the Company has reasonable cause to believe that such Successor Security is a “restricted security” within the meaning of Rule 144 under the Securities Act, in which case the Trustee, at the direction of the Company, shall authenticate and deliver a new Security bearing a Restricted Securities Legend in exchange for such Successor Security as provided in this Article Three.
Section 3.07. Paying Agent to Hold Money in Trust.
(a) The Company hereby acknowledges and confirms that it is and at all times shall remain absolutely and unconditionally obligated to pay all amounts due and owing hereunder, as the same shall become due and owing. All payments of principal, premium and interest required to be made by the Company hereunder (including any Additional Amounts) shall be made in U.S. dollars, pursuant to the terms hereof, by the Company to the Paying Agent to the extent appointed hereunder or to the Trustee by 3:00 p.m. (New York City time) on each the Business Day prior to each Interest Payment Date, Redemption Date, purchase date, Change of Control Payment Date or maturity date on any Securities, unless otherwise provided for in this Indenture. The Paying Agent shall hold in trust, for the benefit of the Holders or the Trustee, all money held by such Paying Agent for the payment of principal, premium or interest on the Securities. The Company at any time may require the Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by it. Upon complying with this Section 3.07, the Paying Agent shall have no further liability for the money delivered to the Trustee.
(b) The receipt by the Paying Agent or the Trustee from the Company of each payment of principal, interest and/or other amounts due in respect of the Securities in the manner specified herein and on the date on which such amount of principal, interest and/or other amounts are then due, shall be valid and effective to satisfy and discharge all the obligations of the Company herein and under the Securities to make such payment to the Holders on the due date thereof.
Section 3.08. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount bearing a number not contemporaneously outstanding, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee connected therewith).
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.09. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid, in the case of definitive Registered Securities, to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest and, at the option of the Company, may be paid by check mailed to the address of the Person as it appears in the Security Register or, in the case of Global Securities, by wire transfer of same-day funds to the Holder.
Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than 15 days and not less than ten days prior to the date of the proposed payment and not less than ten days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than ten days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
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(2) The Company may make payment of any Defaulted interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such predecessor Security.
Section 3.10. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Sections 3.04, 3.05 and 3.07) any interest on such Security, and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.11. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures unless otherwise directed by an Order.
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Section 3.12. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.13. CUSIP or ISIN Numbers.
The Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change in the CUSIP or ISIN numbers.
Section 3.14. Open Market Purchases. .
The Company or any of its Affiliates may at any time purchase Securities in the open market or otherwise at any price.
Section 3.15. Add On Notes.
Unless otherwise provided pursuant to Section 3.01, the Company may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional notes (“Add On Notes”) having terms and conditions identical to those of any other series of Outstanding Securities issued under this Indenture, except that Add On Notes:
(1) may have a different issue date from such other series of Outstanding Securities;
(2) may have a different amount of interest payable on the first Interest Payment Date after issuance than is payable on such other series of Outstanding Securities;
(3) may have terms specified pursuant to the Board Resolution or other document evidencing an Authorization or in a supplemental indenture for such Add On Notes making appropriate adjustments to the terms of this Indenture applicable to such Add On Notes in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any Registration Rights Agreement applicable to such Add On Notes, which are not adverse in any material respect to the Holder of any such series of Outstanding Securities (other than such Add On Notes); and
(4) may be entitled to Step-Up interest not applicable to such other series of Outstanding Securities and may not be entitled to such Step-Up interest applicable to such other series of Outstanding Securities.
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Section 3.16. Forms of Certification.
(1) Whenever any provision of this Indenture contemplates that certification be given by a beneficial owner of a portion of the Temporary Regulation S Security, such certification shall be provided substantially in the form of the following certificate, with only such changes as shall be approved by the Company:
CERTIFICATE
SUZANO AUSTRIA GMBH
Company
[Title of Securities]
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States person(s)”), (ii) are owned by United States person(s) that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-l2(c)(l)(v)) (“financial institutions”) purchasing for their own account or for resale, or (b) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise the Company or its agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, if the owner of the Securities is a United States or foreign financial institution described in Clause (iii) above (whether or not also described in Clause (i) or (ii)) this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, “United States” means the United States of America (including the States and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you by tested telex if the above statement is not correct on the date on which you intend to submit your certificate relating to such Securities to the Trustee, and in the absence of any such notification it may be assumed that this certificate applies as of such date.
This certificate excepts and does not relate to U.S.$ ___of which interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities cannot be made until we do so certify.
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We understand that this certificate is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceedings.
Dated:
By: ________________
As, or as agent for,
the beneficial owner(s) of
the Securities to which this
certificate relates”;
(2) Whenever any provision of this Indenture contemplates that certification be given by DTC (or its nominee), the Euroclear Operator or Clearstream, Luxembourg in connection with the exchange of a Temporary Regulation S Security for a Permanent Regulation S Security, such certification shall be provided substantially in the form of the following certificate, with only such changes as shall be approved by the Company:
CERTIFICATION
SUZANO AUSTRIA GMBH
Company
[Title of Securities]
(the “Securities”)
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially to the effect set forth in the Indenture dated as of [•], 2025, ______ principal amount of the above-captioned Securities (i) is owned by Persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States persons”), (ii) is owned by United States persons that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section l.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Company or its agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7))), and to the further effect that United States or foreign financial institutions described in Clause (iii) above (whether or not also described in Clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a Person within the United States or its possessions.
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As used herein, “United States” means the United States of America (including the States and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the Temporary Regulation S Security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any Interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws in the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated:__________
| Yours faithfully, | ||
| THE DEPOSITARY TRUST COMPANY | ||
| or | ||
| EUROCLEAR BANK S.A./N.V., as operator of the Euroclear System | ||
| or | ||
| Clearstream Banking, société anonyme, Luxembourg | ||
| By: | ||
| Name: | ||
| Title: | ||
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Article Four
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture and the Securities of any series shall upon Order of the Company cease to be of further effect (except as to any surviving rights of registration of transfer or exchange or conversion of such Securities herein expressly provided for, and any right to receive Additional Amounts as provided in Section 10.05) with respect to any series of Securities, and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such series of Securities and the Securities of such series, when
(1) either
(a) all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.08) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Company to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to Subclause (B) of Clause (l) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.08 shall survive.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.08, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust (without liability to the Holders for interest or investment) and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with or received by the Trustee.
Section 4.03. Repayment to Company.
(a) The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money or Securities held by them at any time.
(b) Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest and Additional Amounts, if any, that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look only to the Company and not to the Trustee or the Paying Agent for payment as general creditors.
Article Five
REMEDIES
Section 5.01. Events of Default.
“Event of Default,” wherever used herein with respect to the Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
1. The Company shall fail to make any payment in respect of principal on any of the Securities of the series whether on the Stated Maturity (as the same may be extended as permitted hereunder), upon redemption or prior to the Maturity or otherwise in accordance with the terms of the Securities of the series and this Indenture, non-payment of which shall continue for a period of three calendar days and the Trustee shall not have otherwise received such amounts from amounts on deposit, from Suzano under Section 12.01 or otherwise by the end of such three calendar day period;
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2. The Company shall fail to make any payment in respect of any interest or other amounts due on or with respect to the Securities of the series (including Additional Amounts, if any) in accordance with the terms of the Securities of such series and this Indenture, non-payment of which shall continue for a period of 30 calendar days and the Trustee shall not have otherwise received such amounts from amounts on deposit, from Suzano under Section 12.01 or otherwise by the end of such 30 calendar day period;
3. The Company, or Suzano in case of a series of Securities guaranteed by Suzano, shall fail to perform, or breach, any term, covenant, agreement or obligation in respect of the Securities of the series issued under this Indenture or in a Supplemental Indenture , and such failure (other than any failure to make any payment under Section 12.01, for which there is no cure) is either incapable of remedy or continues for a period of 60 calendar days after there has been received by the Company or Suzano from the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
4. The maturity of any Debt of the Company or Suzano or any Material Subsidiary thereof in a total aggregate principal amount of U.S.$125,000,000 or more is accelerated in accordance with the terms of that Debt, it being understood that prepayment or redemption by the Company or Suzano or any Material Subsidiary thereof of any Debt is not acceleration for this purpose;
5. One or more final and non-appealable judgments or orders for the payment of money are rendered against the Company, Suzano or any of its Material Subsidiaries and are not paid or discharged, and there is a period of 60 consecutive days following entry of the final and non-appealable judgment or order that causes the aggregate amount for all such final and non-appealable judgments or orders outstanding and not paid or discharged against all such Persons to exceed U.S.$125,000,000 or the equivalent thereof at the time of determination (in excess of amounts which any insurance carriers have agreed to pay under applicable policies) during which a stay of enforcement, by reason of a pending appeal or otherwise, is not in effect;
6. Proceedings are initiated against the Company or Suzano or any Material Subsidiary thereof under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, and any such proceeding is not dismissed or stayed within 60 days after the entering of such proceeding, or an administrator, receiver, administrador judicial, liquidator, custodian, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) is appointed to take possession or control of, or a distress, execution, attachment or sequestration or other process is levied, enforced upon, sued out or put in force against, all or any material part of the undertaking, property, assets or revenues of the Company or Suzano or any Material Subsidiary thereof and is not dismissed or stayed within 60 days;
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7. The Company or Suzano or any Material Subsidiary thereof commences voluntarily or consents to judicial, administrative or other proceedings relating to it under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, or makes or enters into any composition, recuperação judicial or extrajudicial or other similar arrangement with its creditors, or appoints or applies for the appointment of an administrator, receiver, administrador judicial, liquidator, custodian, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) to take possession or control of the whole or any material part of its undertaking, property, assets or revenues, or takes any judicial, administrative or other similar proceeding under any law for a readjustment or deferment of its Debt or any part of it;
8. the Guarantee ceases to be in full force and effect, other than in accordance with the terms of this Indenture, or Suzano denies or disaffirms its obligations under the Guarantee; or
9. Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as any of the events referred to in any of paragraphs (5), (6)or (7) of this Section 5.01;
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 5.01(6) or 5.01(7) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of such series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 5.01(6) or 5.01(7) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
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(a) all overdue interest on all Securities of that series,
(b) the principal of (and premium and Additional Amounts, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(c) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all other amounts due to the Trustee under Section 6.07; and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03. Collection of Debt and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest or payment of any additional interest or Additional Amounts on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of 7 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable, including Additional Amounts, on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all amounts due the Trustee under Section 6.07.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
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Section 5.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders of that series of Securities and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of that series of Securities to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of that series of Securities, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding provided, however, that the Trustee may, on behalf of the Holders of Securities, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 6.07, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest and any Additional Amounts on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
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THIRD: To the payment of the balance, if any, to the Company.
Section 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Sections 3.04, 3.05 and 3.07) interest and any Additional Amounts on such Security on the respective Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and, if such Security is convertible or exchangeable, to convert or exchange such Security in accordance with this Indenture and to institute suit for the enforcement of such right to convert or to receive Securities upon conversion and such rights shall not be impaired without the consent of such Holder.
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Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.
Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed necessary by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not follow any such direction if doing so would in its reasonable discretion either involve it in personal liability or be unduly prejudicial to Holders of Securities not joining in such direction.
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Section 5.13. Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series of the Company and its consequences, except a default
(1) in the payment of the principal of or any premium, interest or Additional Amounts on any Security of such series of the Company, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected, or
(3) in the conversion or exchange of any Security of such series of such Company and the delivery of Securities upon conversion.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess reasonable costs, including reasonable attorney’s fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company, in any suit instituted by the Trustee, in any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or in any suit instituted by any Holder of any Security for the enforcement of the payment of the principal of or any premium or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date) or for the enforcement of any right to convert such Security pursuant to this Indenture.
Section 5.15. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Company hereby expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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Article Six
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
The duties, responsibilities, rights, benefits and protections of the Trustee shall be as specifically set forth in this Indenture and the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee, except as otherwise required by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of gross negligence on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. Notwithstanding the foregoing, the Trustee shall examine such certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture (but need not, and is under no obligation to, confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) Following the occurrence and continuance of an Event of Default, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(i) This Section 6.01(c) does not limit the effect of Section 6.01(a);
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(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.12.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to Section 6.01(a), (b) and (c).
(e) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company or Suzano.
(f) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity and/or security against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.01.
Section 6.02. Notice of Defaults.
If a Trust Officer of the Trustee has actual written notice of an Event of Default with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such Event of Default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 5.01(3) with respect to Securities of such series, no such notice to such Holders shall be given until at least 90 days after the occurrence thereof.
Section 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) Subject to Section 6.01 hereof, the Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document but may, in its discretion, make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company and Suzano, personally or by agent or attorney at the sole cost of and upon a ten-day prior written notice to the Company or Suzano, as the case may be, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
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(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or gross negligence.
(e) The Trustee may consult with counsel appointed with due care and the advice or Opinion of Counsel of such counsel with respect to legal matters relating to this Indenture and the Securities shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or such opinion of such counsel.
(f) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default (other than a payment default under Section 5.01(1) or Section 5.01(2) unless a Trust Officer of the Trustee has received written notice of any event which is in fact such a default at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(i) The Trustee may request that Suzano and the Company deliver an Officers’ Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(j) The obligations of each agent, custodian and other Person employed to act hereunder are several and not joint. In acting hereunder and in connection with the Securities, such agent, custodian or Person shall act solely as an agent of the Company and will not assume any obligations towards, or relationship of agency or trust for, any of the Securityholders.
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(k) The Trustee may conclusively rely and shall be fully protected in acting or refraining to act based upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(l) The Trustee shall not be bound to make any investigation into the facts or matters stated in any Officer’s Certificate, Opinion of Counsel, or any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, appraisal, bond, debenture, note, coupon, security other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company.
(m) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than the requisite majority in aggregate principal amount of the Securities then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole discretion, may determine what action, if any, shall be taken and shall be held harmless and shall not incur any liability for its failure to act until such inconsistency or conflict is, in its opinion, resolved, and absent willful misconduct or gross negligence, none of the Trustee, Security Registrar or Paying Agent shall be liable for acting in good faith on instructions believed by them to be genuine and from the proper party.
(n) The Trustee shall have no duty to inquire as to the performance of the covenants contained herein and shall be entitled to assume that the Company, Suzano and any Subsidiaries are in compliance with the terms of this Indenture.
(o) The Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of minimum denominations imposed under this Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption, purchase or repurchase, as applicable, of any interest in any Securities, but may at its sole discretion, choose to do so.
(p) The permissive rights of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so.
(q) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any Holders, unless such Holders shall have provided to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(r) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, strikes, work stoppages, accidents, pandemics, civil unrest, local or national disturbance or disaster, any act of terrorism, loss or malfunction of utilities, communications or computer (software and hardware) services or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
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Section 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.
Section 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on or investment of any money received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall be agreed in writing from time to time for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its written request for all reasonable fees, costs, indemnities, expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except to the extent that any such fees, costs, indemnities, expenses, disbursements or advances may be attributable to its gross negligence or willful misconduct; and
(3) to fully indemnify the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any and all loss, liability, damages, claims or expense arising out of or in connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder except to the extent that any such loss, liability or expense may be attributable to its gross negligence or willful misconduct.
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The Trustee shall have a Lien prior to the Holders of Securities to payment of amounts due it under this Section 6.07 from funds held by the Trustee hereunder. “Trustee” for purposes hereof includes any predecessor trustee, but the gross negligence of any trustee shall not affect the rights of any other trustee hereunder.
If the Trustee incurs expenses or renders services after the occurrence of an Event of Default specified in Sections 5.01(6), 5.01(7), 5.01(8) or 5.01(9), the reasonable expenses and the compensation for the services will be intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any other applicable law.
The provisions of this Section shall survive the resignation or removal of the Trustee, the repayment of the Securities and the termination of this Indenture.
Section 6.08. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
For this purpose, the Trustee shall not be deemed to have a conflicting interest by reason of being Trustee for the Securities of any series and Trustee for the Securities of any other series.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be one and only one Trustee hereunder with respect to the Securities of each series which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least U.S.$50,000,000 and its Corporate Trust Office in the Borough of Manhattan, The City of New York, New York. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
(2) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
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(3) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. The Trustee so removed may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee if no successor Trustee has been appointed within 30 days of such removal.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove by Board Resolution the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities of such series and accepted appointment in the manner required by Section 6.11, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
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(6) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to each of the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series of the Company, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series of the Company shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
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(3) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) and (2) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial conversion, exchange or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee and a copy of which shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than U.S.$50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| The Bank of New York Mellon As Trustee | ||
| If all of the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series | ||
| By | ||
| As Authenticating Agent | ||
authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having an office in the Place of Payment designated by the Company with respect of such series of Securities.
Article Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, if interest is paid semi-annually, or quarterly, if interest is paid quarterly, not later than 15 days after each Regular Record Date in each year or, if interest is paid annually, not later than 15 days after each Regular Record Date and the date six months subsequent to such Regular Record Date, a list, in such form as the Trustee may reasonably require, as to the names and addresses of the Holders of Securities as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, that, for so long as the Trustee shall be Security Registrar, no such list shall be required to be furnished.
Section 7.02. Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders of Securities received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
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(2) The rights of the Holders of Securities to communicate with other Holders of Securities with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of any of them shall be held accountable solely by reason of any disclosure of information as to names and addresses of Holders of Securities made pursuant to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
(1) On or about each July 15 following the date hereof, the Trustee shall transmit to Holders of Securities such reports, if any, dated as of the preceding May 15 is concerning the Trustee and its actions under this Indenture as may be required pursuant to Section 3.13(a) of the Trust Indenture Act in the manner provided pursuant to Section 3.13(c) thereof. The Trustee shall also transmit to Holders of Securities such reports, if any, as may be required pursuant to Section 3.13(b) of the Trust Indenture Act at the times and in the manner provided pursuant thereto and to Section 3.13(c) thereof.
(2) A copy of each such report shall, at the time of such transmission to Holders of Securities, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders of Securities, such information, documents and other reports, including financial information and statements and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. For purposes of this Section 7.04, as long as the financial statements or reports are publicly available and accessible electronically by the Trustee, the filing or electronic publication of such financial statements or reports shall comply with the Company's obligation to deliver such statements and reports to the Trustee hereunder. The Company shall provide the Trustee with prompt written notification at such time that the Company becomes or ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Company’s financial statements or reports are publicly available and accessible electronically.
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Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice (other than with respect to notice of an Event of Default pursuant to Section 10.02 hereof) of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 7.05. Calculation of Original Issue Discount.
With respect to each series treated for U.S. federal income tax purposes as issued with original issue discount, the Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities of such series as of the end of such year and (ii) such other reasonably requested information, if any, relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time. The Trustee shall not be obligated to recalculate, recompute or reconfirm such calculation.
Article Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Limitation on Consolidation, Merger, Sale or Conveyance.
Neither the Company nor the Guarantor shall, without the consent of the Holders of a majority in aggregate principal amount of the Securities in accordance with this Indenture, consolidate with or merge into any other corporation or convey or transfer all or substantially all of its properties and assets to any other Person, unless:
(1) the Person (formed by such consolidation or into which the Company or Guarantor is merged or the Person which acquires by conveyance, transfers or leases all or substantially all of the properties and assets of the Company or the Guarantor (the “Successor Person”) shall expressly assume,, by a supplemental indenture pursuant to this Indenture, the due and punctual repayment of the principal and interest on all the Securities and all other obligations of the Company or the Guarantor, as applicable, under the Indenture and the Securities;
(2) immediately after giving effect to such transaction, no Event of Default with respect to any Security shall have occurred and be continuing;
(3) the Company and the Guarantor have delivered to the Trustee (a) a certificate signed by an executive officer of the Company and an executive officer of the Guarantor stating that such consolidation, merger, conveyance or transfer and such supplemental indenture, if any, comply with this Article and that all conditions precedent herein provided, which relate to such transaction, have been complied with and (b) an Opinion of Counsel stating that such consolidation, merger, conveyance or transfer and such supplemental indenture, if any, comply with this Article and that all conditions herein provided, which relate to such transaction, have been complied with;
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(4) the Successor Person shall expressly agree to withhold against any tax, duty, assessment or other governmental charge thereafter imposed or levied by Brazil, the Austria, a Successor Jurisdiction or any political subdivision or authority thereof or therein having power to tax as a consequence of such consolidation, merger, conveyance or transfer; and
(5) the Successor Person’s assumption of obligations includes the obligation to pay the Additional Amounts described in Section 10.10 “Additional Amounts”; provided that the definition of “Taxing Jurisdiction” shall be amended, if applicable, to include the applicable Successor Jurisdiction.
Section 8.02. Successor Substituted.
Upon any consolidation, merger, conveyance, or transfer in accordance with Section 8.01, the Successor Person shall succeed to, and be substituted for, and may exercise every right and power of the Company or the Guarantor, as applicable, under the Securities with the same effect as if the Successor Person had been named as the issuer or guarantor of the Securities herein, and, in the case of an asset, transfer or other disposition, the predecessor Company or Guarantor, as applicable, shall be released from all obligations under this Indenture, the Securities and, in the case of a Guarantor, the guarantee.
Article Nine
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities, to evidence the full and unconditional guarantee by another Person, as provided in Section 8.01 hereof, or to add another Company to this Indenture for future issuances; or
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
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(4) to add to or to change any of the provisions of this Indenture to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action shall not adversely affect the Interest of the Holders of Securities of any series in any material respect; or
(5) to provide for any guarantee of any series of Securities, to secure any of the series of Securities or to confirm and evidence the release, termination or discharge of any guarantee of or Lien securing the Securities when such release, termination or discharge is permitted by this Indenture; or
(6) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or
(7) to establish the form or terms of Securities of any series, each as permitted by Section 2.01 and Section 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(2); or
(9) to reduce the conversion price of the Securities of any series other than pursuant to this Indenture; or
(10) to cure any ambiguity, defect or inconsistency; or
(11) to provide for or confirm the issuance of additional Securities; or
(12) to make any change to conform the provisions contained herein, in any supplemental indenture or in the Securities of any series or the related Guarantee, to the description of the notes and the guarantee contained in the related prospectus, prospectus supplement or similar offering document; or
(13) to make any change that does not adversely affect the rights of the Holders of Securities of any series in any material respect.
Section 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
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(1) change the Stated Maturity of the principal of or any installment of principal of or interest or premium on any Security or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional Amounts pursuant to Section 10.10 (except as contemplated by Section 8.01(1) and permitted by Section 9.01(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or the coin or currency in which, any Security or any premium or interest thereon is payable, or modify or affect in any manner adverse to the interests of the Holders of Securities of any series the conversion or exchange rights of such Securities, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date) or of any such right of conversion or exchange, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this Clause shall not be deemed to require the consent of any Holder of a Security with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 10.09, or the deletion of this proviso, in accordance with the requirements of Section 6.11(2) and Section 9.01(7).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the right under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
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Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel each stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent herein and in the Securities to such execution have been satisfied. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby, except as otherwise expressed therein.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities at any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and such securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 9.07. Substitution of the Company.
The Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as issuer and principal obligor in respect of any series of Securities by the Guarantor (including any successor Guarantor pursuant to Section 8.02) or any wholly owned Subsidiary of the Guarantor (the “Successor Company”), provided that:
(1) the Successor Company shall expressly assume, by an indenture supplemental hereto executed and delivered to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on the Securities of such series and the performance of every covenant of this Indenture on the part of the Company to be performed or observed, and, unless the Successor Company is the Guarantor, the Guarantor shall unconditionally guarantee all of the obligations of such Successor Company under the Securities of such series and the Indenture as so supplemented;
(2) the Successor Company’s assumption of obligations includes the obligation to pay the Additional Amounts described in Section 10.10 “Additional Amounts”; provided that the definition of “Taxing Jurisdiction” shall be amended, if applicable, to include the jurisdiction in which such Successor Company is resident for tax purposes;
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(3) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Successor Company as a result of such transaction as having been incurred by the Successor Company at the time of such transaction, no Event of Default with respect to the Securities of such series, and no event which, after notice or lapse of time or both, would become an Event of Default with respect to the Securities of such series, shall have occurred and be continuing; and
(4) the Successor Company has delivered to the Trustee (x) a certificate signed by two executive officers of the Successor Company and (y) an Opinion of Counsel of recognized standing, each stating that the assumption and supplemental indenture comply with this Section 8.4.
Upon any substitution in accordance with Section 9.07, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if the Successor Company had been named as the issuer of the Securities herein, and the Company (including any successor Company pursuant to Section 8.2) shall be released from all obligations under this Indenture and the Securities.
No vote by Holders of the Securities approving any of the actions set forth in this Section 9.07 is required, unless as part of the transaction the Company or the Guarantor make other changes to the applicable indenture requiring approval of Holders of the Securities as set forth in Section 9.02 herein.
Article Ten
COVENANTS
Section 10.01. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of Holders of each series of Securities that it will duly and punctually pay the principal of and any premium and interest and other amounts (including any Additional Amounts) on the Securities of that series in accordance with the terms of the Securities of that series and this Indenture. The Guarantor shall duly and punctually pay any amounts owed by it under its Guarantee in accordance with the terms of the Securities and this Indenture.
Section 10.02. Maintenance of Office or Agency.
So long as the Securities of any series are Outstanding, the Company and the Guarantor will maintain in the Borough of Manhattan in The City of New York, an office or agency where Securities may be presented or surrendered for payment, where notices to and demands upon the Company or the Guarantor in respect of this Indenture and the Securities of that series may be served. The Company or the Guarantor shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. The Corporate Trust Office of the Trustee shall be such office or agency of the Company, unless the Company shall designate and maintain some other office or agency for one or more of such purposes. If at any time the Company shall fail to maintain any required office or agency or shall fail to furnish the Trustee with the address thereof, all presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
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The Company and the Guarantor may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve either the Company or the Guarantor of its obligation to maintain an office or agency in the State of New York for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 10.03. Maintenance of Corporate Existence .
The Company and the Guarantor will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Article Eight and (ii) take all reasonable actions to maintain all rights, privileges, titles to property, franchises, concessions and the like necessary or desirable in the normal conduct of its business, activities or operations; provided, however, that this Section 10.03 shall not require the Company or the Guarantor to maintain any such right, privilege, title to property or franchise, if the Company’s or the Guarantor’s Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or the Guarantor, and that the loss thereof is not disadvantageous in any material respect to the Holders; provided further that this Section 10.03 does not prohibit any transaction otherwise permitted by Section 8.01.
Section 10.04. Ranking.
Each of the Company and the Guarantor will ensure that the Securities of each series will at all times constitute general senior, unsecured and unsubordinated obligations of the Company and the Guarantor, as applicable, and will rank pari passu, without any preferences among themselves, with all of its other present and future unsecured and unsubordinated obligations (other than obligations preferred by statute or by operation of law).
Section 10.05. Statement by Managing Directors as to Default.
The Company (and each other obligor on the Securities of any series) will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof (which, unless the Trustee is notified otherwise, shall be December 31), an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof there is an Event of Default in connection with the performance and observance of any of the terms, provisions and conditions of this Indenture and, if there is such an Event of Default by the Company (or any such obligor), specifying all such Events of Default and the nature and status thereof of which they may have knowledge.
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Section 10.06. Provision of Financial Statements and Reports.
In the event that the Company files any financial statements or reports with the SEC or publishes or otherwise makes such statements or reports publicly available in Austria, the United States or elsewhere, the Company will furnish a copy of the statements or reports to the Trustee within 15 calendar days of the date of filing or the date the information is published or otherwise made publicly available. For purposes of this Section 10.06, as long as the financial statements or reports are publicly available and accessible electronically by the Trustee, the filing or electronic publication of such financial statements or reports shall comply with the Company's obligation to deliver such statements and reports to the Trustee hereunder. The Company shall provide the Trustee with prompt written notification at such time that the Company becomes or ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Company’s financial statements or reports are publicly available and accessible electronically.
The Company will provide, together with each of the financial statements delivered pursuant to this Section, an Officers’ Certificate stating (A) that a review of the Company’s activities has been made during the period covered by such financial statements with a view to determining whether the Company has kept, observed, performed and fulfilled its covenants and agreements under this Indenture and (B) that no Event of Default has occurred during such period or, if one or more have actually occurred, specifying all such events and what actions have been taken and will be taken with respect to such Event of Default.
Delivery of these reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of any of those will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 10.07. Appointment to Fill a Vacancy in Office of Trustee.
The Company or the Guarantor, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint in the manner provided in Section 6.10, a successor Trustee, so that there shall at all times be a Trustee with respect to the Securities.
Section 10.08. Payments and Paying Agents.
The Company will, prior to 3:00 p.m., New York City time, on the Business Day preceding any payment date of the principal of or interest on any series of Securities or other amounts (including Additional Amounts), deposit with the Trustee a sum sufficient to pay such principal, interest or other amounts (including Additional Amounts) so becoming due.
All payments will be subject in all cases to any applicable tax, fiscal or other laws and regulations in any jurisdictions, but without prejudice to the provisions of Section 10.10. For the purposes of the preceding sentence, the phrase “applicable tax, fiscal or other laws and regulations” will include any obligation on the Company to withhold or deduct from a payment pursuant to Section 1471(b) of the Internal Revenue Code of 1986, as amended, or otherwise imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, any regulations thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto (collectively, “FATCA”).
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Whenever the Company shall appoint a Paying Agent other than the Trustee with respect to any series of Securities, it will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums received by it as such agent for the payment of the principal of or interest on any Securities (whether such sums have been paid to it by or on behalf of the Company or by any other obligor on the Securities) in trust for the benefit of the Holders or of the Trustee;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities) to make any payment of the principal of or interest on any series of Securities (including Additional Amounts) and any other payments to be made by or on behalf of the Company under this Indenture or the Securities when the same shall be due and payable; and
(3) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure referred to in Clause (2) above.
The Trustee shall arrange with all such Paying Agents for the payment, from funds furnished by the Company to the Trustee pursuant to this Indenture, of the principal of and interest and other amounts due on the Securities (including Additional Amounts).
If the Company shall act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or interest on such series of Securities, set aside, segregate and hold in trust for the benefit of the Holders of such series of Securities a sum sufficient to pay such principal or interest (including Additional Amounts) so becoming due. The Company will promptly notify the Trustee of any failure to take action.
Anything in this Section 10.08 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a satisfaction and discharge with respect to any series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for such series of Securities by the Company or any Paying Agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section 10.08, to the contrary notwithstanding, the agreements to hold sums in trust as provided in this Section are subject to the provisions of Section 4.02.
The Company agrees to indemnify the Holders against any failure on the part of any Paying Agent to pay, in accordance with the terms hereof, any sum due in respect of any series of Securities on the applicable payment date.
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Section 10.09. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company and the Guarantor may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(23), 9.02(2) or 9.01(6) for the benefit of the Holders of Securities of such series or any term, provision or condition set forth in an indenture supplemental hereto, if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the Guarantor and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. The Company or the Guarantor shall provide the Trustee with written notification upon the waiver of any covenant.
Section 10.10. Additional Amounts.
Unless otherwise specified in any Board Resolution of the Company or indenture supplemental hereto establishing the terms of Securities of a series in accordance with Section 3.01, if any deduction or withholding for any present or future taxes, levies, assessments or other governmental charges of the Taxing Jurisdiction shall at any time be required by the Taxing Jurisdiction in respect of any amounts to be paid by the Company of principal of or interest on a Security of any series, the Company will pay to the Holder of a Security of such series such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled (“Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional on account of:
(1) any taxes, levies, assessments or other governmental charges that would not have been so withheld or deducted but for the existence of any present or former connection between the Holder or beneficial owner of such Security (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a partnership, a limited liability company or a corporation) and the Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Security or enforcement of rights and the receipt of payments with respect to the Security;
(2) any taxes, levies, assessments or other governmental charges imposed on, or measured by, net income;
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(3) any taxes, levies, assessments or other governmental charges that would not have been so withheld or deducted but for the failure by such Holder or the beneficial owner of such Security, or, in the case of amounts payable to the Trustee, the Trustee (i) to make a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled, or (ii) to comply with any certification, identification or other reporting requirements concerning its nationality, residence, identity or connection with the Taxing Jurisdiction, if such compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the tax, levy, deduction or other governmental charge; provided that, in no event shall such Holder’s, beneficial owner’s, or Trustee’s requirement to make a valid and legal claim for exemption from or reduction of such taxes require such Holder, beneficial owner or the Trustee to provide materially more onerous information, documents or other evidence than comparable reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as U.S. IRS Forms W-8 or W-9 or any comparable successor forms);
(4) Security presented for payment more than 30 calendar days after the Company has made available to such Holder a payment under the Securities and this Indenture, except to the extent the Holder would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30 calendar day period;
(5) any estate, inheritance, gift, value added, Financial Transactions Tax, use or sales taxes or any similar taxes, assessments or other governmental charges;
(6) any withholding or deduction that the Holder or beneficial owner of the Security would have been able to avoid by taking reasonable measures available to such Holder or beneficial owner, such as presenting the Security for payment to another Paying Agent;
(7) any taxes, levies, assessments or other governmental charges that are payable other than by deduction or withholding;
(8) any taxes, levies, assessments or other governmental charges payable pursuant to FATCA;
(9) any combination of the above.
Subject to the foregoing provisions, whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
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If the terms of the Securities of a series established as contemplated by Section 3.01 do not specify that Additional Amounts pursuant to the Section will not be payable by the Company, at least ten days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest on or prior to Maturity, the first day on which a payment of principal and any premium is made), and at least ten days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify the amount, if any, required to be withheld on such payments to such Holders of Securities and the Company will pay to the Trustee or such Paying Agent or Paying Agents the Additional Amounts required by this Section. The Company covenants to indemnify each of the Trustee and any Paying Agent for, and to hold each of them harmless against, any reasonable loss, liability or expense arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section, except to the extent that any such loss, liability or expense is due to its own gross negligence or willful misconduct.
The Company shall promptly pay when due any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that are imposed by a Taxing Jurisdiction that arise from any payment under the Securities or under any other document or instrument referred herein or therein or from the execution, delivery, enforcement or registration of each Security or any other document or instrument referred to herein or therein. The Company shall indemnify and make whole the Holders of the Securities for any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies payable by the Company as provided in this paragraph paid by such Holder of the Securities.
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Section 10.11. Limitation on Liens
Unless otherwise specified in any Board Resolution of the Guarantor or indenture supplemental hereto establishing the terms of Securities of a series in accordance with Section 3.01, so long as any relevant Security of a series remains Outstanding, the Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, incur or permit to exist any Lien securing the payment of Debt on any of its properties or assets, whether owned at the Issue Date or thereafter acquired, other than Permitted Liens, without effectively providing that the Securities or the Guarantee, as applicable, are secured equally and ratably with (or, if the obligation to be secured by the Lien is subordinated in right of payment to the Securities or any Guarantee, prior to) the obligations so secured for so long as such obligations are so secured.
Section 10.12. [Reserved]
Section 10.13. Repurchase at the Option of the Holders Upon Change of Control.
(a) Upon the occurrence of a Change of Control that results in a Rating Decline, each Holder shall have the right to require the Company to repurchase all or any part (equal to U.S.$1,000 and any integral multiples in excess thereof) of that Holder’s Securities pursuant to a Change of Control Offer. No such purchase in part shall reduce the outstanding principal amount of the Securities held by any Holder to below U.S.$1,000. In the Change of Control Offer, the Company or Suzano shall offer a Change of Control Payment.
(b) Within 30 days following any Change of Control that results in a Rating Decline, the Company or Suzano shall make a Change of Control Offer by notice to each Holder in accordance with the provisions of Section 1.06, stating:
(i) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Securities in exchange for its respective portion of the Change of Control Payment;
(ii) an expiration date (the “Expiration Date”) not less than 30 days or more than 60 days after the date of the Change of Control Offer;
(iii) the Change of Control Payment and the Change of Control Payment Date;
(iv) information concerning the business of Suzano and its Subsidiaries, including the relevant facts regarding such Change of Control, which the Company in good faith believes shall enable the Holders to make an informed decision with respect to the Change of Control Offer; and
(v) the instructions, as determined by the Company, consistent with this Section 10.13, that a Holder must follow in order to have its Securities repurchased.
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(c) Holders electing to have a Security repurchased shall be required to surrender the Security, with an appropriate form duly completed, to the exchange agent at the address specified in the notice at least three Business Days prior to the Change of Control Payment Date. Holders shall be entitled to withdraw their election if each of the Trustee and the Company receives not later than one Business Day prior to the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for repurchase by the Holder and a statement that such Holder is withdrawing his election to have such Security repurchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(d) On the Change of Control Payment Date, the Company or Suzano shall, to the extent lawful:
(i) accept for payment all Securities or portions of Securities properly tendered and not validly withdrawn pursuant to the Change of Control Offer;
(ii) deposit with the Trustee or Paying Agent an amount equal to the Change of Control Payment in respect of all Securities or portions of Securities properly tendered and not validly withdrawn; and
(iii) deliver or cause to be delivered, if applicable, to the Trustee for cancellation the Securities properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Securities or portions of Securities being purchased by the Company or Suzano.
(e) The Trustee or any Paying Agent shall promptly deliver to each Holder of Securities properly tendered the Change of Control Payment for such Securities, and the Trustee shall promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each new Security shall be in a principal amount of U.S.$1,000 or any integral multiple in excess thereof. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder. The Company or Suzano shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(f) Notwithstanding the foregoing, neither the Company nor Suzano shall be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements, set forth in this Indenture, that are applicable to a Change of Control Offer made by the Company or Suzano, and such third party purchases all Securities properly tendered and not withdrawn under the Change of Control Offer or (ii) notice of redemption for all Outstanding Securities has been given pursuant to Section 1.06, unless and until there is a default in payment of the applicable redemption price.
(g) The Company and Suzano shall comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 10.13. To the extent that the provisions of any applicable securities laws or regulations conflict with provisions of this Section 10.13, each of the Company and Suzano shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 10.13by virtue of its compliance with such securities laws or regulations.
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(h) Notwithstanding anything to the contrary contained in this Section 10.13, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
Section 10.14. [Reserved]
Section 10.15. Currency Rate Indemnity.
(a) Unless otherwise specified in any Board Resolution of the Company or indenture supplemental hereto establishing the terms of Securities of a series in accordance with Section 3.01, the Company shall (to the extent lawful) indemnify the Trustee and the Holders of such Securities and keep them indemnified against:
(i) in the case of nonpayment by the Company of any amount due to the Trustee, on behalf of the Holders of such Securities, under the Indenture any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Company; and
(ii) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under the Indenture or in respect of such Securities is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Company, and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.
(b) The Company agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “Judgment Currency”) other than the currency in which any Security or any premium or interest thereon is payable (the “Denomination Currency”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and independent obligations of the Company from its obligations under the Indenture, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Company for a liquidated sum or sums in respect of amounts due under the Indenture or the Securities of a series.
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Article Eleven
REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
Section 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series or issuance shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of all or less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 10 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be reasonably satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (ii) pursuant to an election of the Company which is subject to a condition specified in the terms of the Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 11.03. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected less than 61 days prior to the Redemption Date, from the Outstanding Securities of such series not previously called for redemption, in accordance with the then current rules and procedures of the applicable Depositary, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination which shall not be less than the minimum authorized denomination for such Security. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amounts thereof to be redeemed.
The provisions of the preceding paragraph shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
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For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.06 to each Holder of Securities to be redeemed (with a copy to the Trustee) not less than 15 nor more than 60 days prior to the Redemption Date. Such notice may at the Company’s option be subject to the satisfaction of one or more conditions precedent, and such notice may be rescinded or the applicable Redemption Date delayed in the event that any or all such conditions shall not have been satisfied by the applicable Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest and Additional Amounts, if any,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed and if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price, plus accrued interest, if any, will become due and payable upon each Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each Security to be redeemed is to be surrendered for payment of the Redemption Price, plus accrued interest and Additional Amounts, if any,
(6) the current conversion price and the date on which the right to convert such Securities or portions thereof will expire,
(7) the conditions precedent, if any, to which such notice is subject; and
(8) the CUSIP or ISIN number or numbers, if any, with respect to each Security to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need not identify particular Global Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company, and shall be irrevocable.
Section 11.05. Deposit of Redemption Price.
Prior to 3:00 p.m., New York City time, on the Business Day preceding any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.08) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed (other than those theretofore surrendered for conversion) on that date.
Section 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, subject to the satisfaction of any conditions precedent, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided however, that unless otherwise specified as contemplated by Section 3.01, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, only in the case of Registered Securities, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transference satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
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Section 11.08. Optional Redemption Due to Changes in Tax Treatment.
Unless otherwise specified in a Board Resolution or an indenture supplemental hereto, each series of Securities contained in one or more particular issues may be redeemed at the option of the Company, in whole but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date) at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities) if as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Company is incorporated (or, in the case of a successor Person to the Company, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party the Company or their successor incurs in any Additional Amounts, which change, execution or amendment becomes effective on or after the date specified for such series pursuant to the terms of the Security or Section 3.01(10) (or in the case of a successor Person to the Company, the date on which such successor Person became such pursuant to Sections 8.01 and 8.02).
Section 11.09. Mandatory Redemption and Sinking Fund Payments.
The Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.
Article Twelve
GUARANTEE
Section 12.01. Unconditional Guarantee.
Suzano hereby unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, the full and punctual payment of the principal of (and premium, if any, on) and interest on such Security when and as the same shall become due and payable, whether at Maturity, upon declaration of acceleration, redemption or otherwise, in accordance with the terms of such Security and of this Indenture and all other amounts payable by the Company under this Indenture (the “Guarantee”). In case of the failure of the Company punctually to make any such payment, Suzano hereby agrees to pay or cause such payment to be made punctually when and as the same shall become due and payable, whether at Maturity, upon declaration of acceleration or redemption or otherwise, and as if such payment were made by the Company.
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Suzano agrees that its obligations hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Company under this Indenture or any Security, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Indenture (other than this Article Twelve) or any Security;
(c) any change in the corporate existence, structure or ownership of the Company, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any obligation of the Company contained in this Indenture or any Security;
(d) the existence of any claim, set-off or other rights which Suzano may have at any time against the Company, the Trustee or any other Person, whether in connection with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(e) any invalidity or unenforceability relating to or against the Company for any reason of this Indenture or any Security, or any provision of applicable law or regulation purporting to prohibit the payment by the Issuer of the principal of or interest on any Security or any other amount payable by the Company under this Indenture;
(f) any other act or omission to act or delay of any kind by the Company, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to Suzano’s obligations hereunder; or
(g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Indenture.
Suzano hereby waives any benefits to which it is entitled under Articles 366, 827, 830, 834, 835, 837, 838, I and III, and 839 of the Brazilian Civil Code, and Article 794 of the Brazilian Code of Civil Procedure.
The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by an obligee on the Securities whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment or performance has not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, restored or returned.
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Rights of Holders to payment in full under the Securities pursuant to the Guarantee shall be equal in right of payment with all other existing and future senior unsecured obligations of Suzano, subject to certain statutory preferences under applicable law, and senior in right of payment to Suzano’s subordinated debt.
Section 12.02. Release of Suzano.
(a) Concurrently with any consolidation or merger of Suzano or conveyance, transfer or lease of all or substantially all of the assets of Suzano as permitted by Section 8.01, and upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such consolidation, merger, sale, conveyance or lease was made in accordance with Section 8.01, the Trustee shall execute any documents reasonably required in order to evidence the release of Suzano from its obligations under the Guarantee and under this Article Twelve.
(b) Concurrently with the legal defeasance or the covenant defeasance of the Securities under Section 13.01, Suzano shall be released from all of its obligations under the Guarantee and under this Article Twelve.
Section 12.03. Subrogation and Contribution.
Upon making any payment with respect to any obligation of the Company under this Article Twelve, Suzano making such payment will be subrogated to the rights of the payee against the Company with respect to such obligation; provided, however, that Suzano shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of (and premium, if any, on) and interest on all Securities of the applicable series shall have been paid in full.
Article Thirteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of Securities designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or Section 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
Section 13.02. Defeasance and Discharge.
Upon the Company’s exercise of its option to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities or series of Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (ii) the Company’s obligations with respect to such Securities under Sections 3.04, 3.05, 3.06 and 1.01, (iii) the rights, powers, trusts, duties, protections, indemnities and immunities of the Trustee hereunder and (iv) this Article Thirteen. Subject to compliance with this Article, the Company may exercise its option to have this Section 13.02 applied to any Securities of a series notwithstanding the prior exercise of its option to have Section 13.03 applied to such Securities.
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Section 13.03. Covenant Defeasance.
Upon the Company’s exercise of its option to have this Section applied to any Securities or any series of Securities, as the case maybe, (i) the Company shall be released from any covenants provided pursuant to Section 3.01(23), 9.01(2) or 9.01(7) for the benefit of the Holders of such Securities, and (ii) the occurrence of any event specified in Section 5.01(3) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(3)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefit of the Holders of such Securities, (i) money in an amount, or (ii) non-callable U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, without reinvestment, not later than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case sufficient, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without reinvestment and which shall be applied by the Trustee to pay and discharge, the principal of and any premium, interest and Additional Amounts on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (A) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (B) an obligation of a Person controlled or supervised by and acting as any agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (A) or (B), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principle or interest evidenced by such depositary receipt.
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(2) In the event of any election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable U.S. Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to the effected with respect to such Security and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) No event which is, or after notice or lapse of time both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.01(6), 5.01(7), 5.01(8) and 5.01(9), at any time on or prior to the day which is 90 days after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such day which is 90 days after the date of such deposit).
105
(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 13.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.08, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04, or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Order any money or U.S. Government Obligations held by it as provided in Section 13.04 with respect to any Securities of any series that, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 13.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities of any series by reason of any order of judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 13.02 or Section 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
106
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 13.07. Patriot Act
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agree to provide to the Trustee, upon their request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Law.
107
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed on their respective behalves, all as of the day and year first above written.
| SUZANO AUSTRIA GMBH, | ||
| as the Company | ||
| By: | ||
| Name: [•] | ||
| Title: [Director] | ||
| By: | ||
| Name: [•] | ||
| Title: [Director] | ||
108
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed on their respective behalves, all as of the day and year first above written.
| SUZANO S.A., | ||
| as Guarantor | ||
| By: | ||
| Name: [•] | ||
| Title: [Director] | ||
| By: | ||
| Name: [•] | ||
| Title: [Director] | ||
109
The Bank of New York Mellon, not in its individual capacity, but solely as Trustee
| By: | ||
| Name: [•] | ||
| Title: [•] | ||
| By: | ||
| Name: [•] | ||
| Title: [•] | ||
110
Annex
A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to (S) 3.05(c)(i) and
(iii)
of this Indenture)
The
Bank of new York MELLON
240 Greenwich Street, Floor 7 East,
New York, New York 10286
| Re: | [%] Notes due of Suzano Austria GmbH (the “Securities”) |
Reference is made to the Indenture, dated as of [•], 2025 (the “Indenture”), between Suzano Austria GmbH (the “Company”) and The Bank of New York Mellon, as Trustee. Terms used herein and defined in the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined. This certificate relates to [U.S.$____________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s)._________________________________________]
[COMMON CODE No(s).___________________________________]
ISIN No(s).___________________________________________
CERTIFICATE No(s).____________________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the “Transferee”) who will take delivery in the form of a Regulation S Security. In connection with such transfer, the Owner hereby certifies or has certified that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, it is being effected in accordance with Rule 904 of Regulation S or Rule 144 under the Securities Act and with all applicable securities laws of the states of the United States and other jurisdictions. Accordingly, the Owner hereby further certifies or has certified as follows:
(1) Rule 904 Transfers. If the transfer is being effected in accordance with Rule 904 of Regulation S:
A-1
(A) the Owner is not a distributor of the Securities, an affiliate of the Company or any such distributor or a person acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a person in the United States or for the account or benefit of a U.S. Person;
(C) either
(i) at the time the buy order was originated, the Transferee was outside the United States or the Owner and any person acting on its behalf reasonably believed that the Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through the facilities of the Eurobond market, as regulated by the International Securities Market Association or another designated offshore securities market and neither the Owner nor any person acting on its behalf knows that the transaction has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a selling concession, fee or other remuneration in respect of the Specified Securities, and the transfer is to occur during the Restricted Period, then the requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after [insert date six months from date of issuance] and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after [insert date one year from date of issuance] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company.
A-2
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the purchasers.
Dated:__________________________________
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
| By: | ||
| Name: | ||
| Title: |
(if the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
A-3
Annex
B -- Form of
Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to (S) 3.05(c)(ii), (iii), (iv) and (v) of this Indenture)
The Bank of new York
240 Greenwich Street, Floor 7 East,
New York, New York 10286
| Re: | [%] Notes due [ ] of Suzano Austria GmbH (the “Securities”) |
Reference is made to the Indenture, dated as of [•], 2025 (the “Indenture”), between Suzano Austria GmbH (the “Company”) and The Bank of New York, as Trustee. Terms used herein and defined in the Indenture or in Relation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to [U.S.$_____________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s)._________________________________________]
[COMMON CODE No(s).___________________________________]
ISIN No(s).___________________________________________
CERTIFICATE No(s).____________________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the “Transferee”) who will take delivery in the form of a Restricted Security. In connection with such transfer, the Owner hereby certifies or has certified that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, it is being effected in accordance with Rule l44A or Rule 144 under the Securities Act and all applicable securities laws of the states of the United States and other jurisdictions. Accordingly, the Owner hereby further certifies or has certified that:
| (1) | Rule 144A Transfers. If the transfer is being effected in accordance with Rule 144A: |
(A) the Specified Securities are being transferred to a person that the Owner and any person acting on its behalf reasonably believe is a “qualified institutional buyer” within the meaning of Rule 144A, acquiring for its own account or for the account of a qualified institutional buyer; and
B-1
(B) the Owner and any person acting on its behalf have taken reasonable steps to ensure that the Transferee is aware that the Owner may be relying on Rule l44A in connection with the transfer.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after [insert date six months after initial date of issuance] and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144
(B) the transfer is occurring after [insert date one year after initial date of issuance] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company. This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the purchasers.
Dated: _________________________
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
| By: | ||
| Name: | ||
| Title: |
(If the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
B-2
Annex
C -- Form of
Unrestricted Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act legends pursuant to (S) 3.05(d))
The Bank of new York mELLON
240 Greenwich Street, Floor 7 East,
New York, New York 10286
Re: [%] Notes due of Suzano Austria GmbH (the “Securities”) Reference is made to the Indenture, dated as of [•], 2025 (the “Indenture”), between Suzano Austria GmbH (the “Company”) and The Bank of New York Mellon, as Trustee. Terms used herein and defined in the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to [U.S.$____________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s). __________________________________]
[COMMON CODE No(s). ____________________________]
ISIN No(s)._____________________________________
CERTIFICATE No(s).______________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for Securities bearing no Securities Act legend pursuant to Section 3.06(d) of the Indenture. In connection with such exchange, the Owner hereby certifies or has certified that the exchange is occurring after [insert applicable date] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company. The Owner also acknowledges or has acknowledged that any future transfers of the Specified Securities must comply with all applicable securities laws of the states of the United States and other jurisdictions.
C-1
This certificate and the statements contained herein we made for your benefit and the benefit of the Company and the purchasers.
Dated: ___________________________
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
| By: | ||
| Name: | ||
| Title: |
(If the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
C-2
Exhibit 4.2
SUZANO NETHERLANDS B.V.
Company
SUZANO S.A.
Guarantor
AND
THE BANK OF NEW YORK MELLON
Trustee
INDENTURE
Dated as of [•], 2025
Debt Securities
Suzano Netherlands B.V.
Suzano S.A.
Certain Sections of this Indenture relating
to Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939:
|
Trust Indenture Act Section |
Indenture |
| (S)3.10(a)(1) | 6.09 |
| (a)(2) | 6.09 |
| (a)(3) | Not Applicable |
| (a)(4) | Not Applicable |
| (b) | 6.08 |
| 6.10 | |
| (S)3.11(a) | 6.13 |
| (b) | 6.13 |
| (S)3.12(a) | 7.01 |
| 7.02 | |
| (b) | 7.02 |
| (c) | 7.02 |
| (S)3.13(a) | 7.03 |
| (b) | 7.03 |
| (c) | 7.03 |
| (d) | 7.03 |
| (S)3.14(a) | 7.04 |
| (a)(4) | 1.01 |
| 10.02 | |
| (b) | Not Applicable |
| (c)(l) | 1.02 |
| (c)(2) | 1.02 |
| (c)(3) | Not Applicable |
| (d) | Not Applicable |
| (e) | 1.02 |
| (S)3.15(a) | 6.01 |
| (b) | 6.02 |
| (c) | 6.01 |
| (d) | 6.01 |
| (e) | 5.14 |
| (S)3.16(a) | 1.01 |
| (a)(1)(A) | 5.02 |
| 5.12 | |
| (a)(1)(B) | 5.13 |
| (a)(2) | Not Applicable |
| 5.08 | |
| (c) | 1.04 |
| (S)3.17(a)(l) | 5.03 |
| (a)(2) | 5.04 |
| (S)3.18(a) | 1.07 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of this Indenture.
Table of contents
| ARTICLE ONE | ||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||
| Section 1.01. | Definitions | 1 |
| Section 1.02. | Compliance Certificates and Opinions | 18 |
| Section 1.03. | Form of Documents Delivered to Trustee | 20 |
| Section 1.04. | Acts of Holders of Securities; Record Dates | 20 |
| Section 1.05. | Notices, Etc., to Trustee and the Company | 22 |
| Section 1.06. | Notice to Holders of Securities; Waiver | 23 |
| Section 1.07. | Language of Notices, Etc. | 24 |
| Section 1.08. | Conflict with Trust Indenture Act | 24 |
| Section 1.09. | Effect of Headings and Table of Contents | 24 |
| Section 1.10. | Successors and Assigns | 24 |
| Section 1.11. | Separability Clause | 25 |
| Section 1.12. | Benefits of Indenture | 25 |
| Section 1.13. | Governing Law | 25 |
| Section 1.14. | Saturday, Sundays and Legal Holidays | 25 |
| Section 1.15. | Appointment of Agent for Service; Submission to Jurisdiction; Waiver of Immunity | 25 |
| Section 1.16. | Waiver of Jury Trial | 26 |
| ARTICLE TWO | ||
| SECURITY FORMS | ||
| Section 2.01. | Forms Generally | 27 |
| Section 2.02. | Form of Global Security | 28 |
| Section 2.03. | Form of Legend for Global Securities | 39 |
| Section 2.04. | Form of Trustee’s Certificate of Authentication | 40 |
| ARTICLE THREE | ||
| THE SECURITIES | ||
| Section 3.01. | Amount Unlimited: Issuable in Series | 40 |
| Section 3.02. | Denominations | 44 |
| Section 3.03. | Execution, Authentication, Delivery and Dating | 44 |
| Section 3.04. | Outstanding Securities | 45 |
| Section 3.05. | Temporary Securities | 46 |
| Section 3.06. | Registration, Registration of Transfer and Exchange | 47 |
| Section 3.07. | Paying Agent to Hold Money in Trust | 52 |
| Section 3.08. | Mutilated, Destroyed, Lost and Stolen Securities | 52 |
| Section 3.09. | Payment of Interest; Interest Rights Preserved | 53 |
| Section 3.10. | Persons Deemed Owners | 54 |
| Section 3.11. | Cancellation | 54 |
| Section 3.12. | Computation of Interest | 55 |
| Section 3.13. | CUSIP or ISIN Numbers | 55 |
| Section 3.14. | Open Market Purchases | 55 |
| Section 3.15. | Add On Notes | 55 |
| Section 3.16. | Forms of Certification | 56 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of this Indenture.
i
Table of contents
(continued)
| ARTICLE FOUR | ||
| SATISFACTION AND DISCHARGE | ||
| Section 4.01. | Satisfaction and Discharge of Indenture | 59 |
| Section 4.02. | Application of Trust Money | 60 |
| Section 4.03. | Repayment to Company | 60 |
| ARTICLE FIVE | ||
| REMEDIES | ||
| Section 5.01. | Events of Default | 61 |
| Section 5.02. | Acceleration of Maturity; Rescission and Annulment | 62 |
| Section 5.03. | Collection of Debt and Suits for Enforcement by Trustee | 63 |
| Section 5.04. | Trustee May File Proofs of Claim | 64 |
| Section 5.05. | Trustee May Enforce Claims Without Possession of Securities | 64 |
| Section 5.06. | Application of Money Collected | 65 |
| Section 5.07. | Limitation on Suits | 65 |
| Section 5.08. | Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert | 66 |
| Section 5.09. | Restoration of Rights and Remedies | 66 |
| Section 5.10. | Rights and Remedies Cumulative | 66 |
| Section 5.11. | Delay or Omission Not Waiver | 66 |
| Section 5.12. | Control by Holders of Securities | 67 |
| Section 5.13. | Waiver of Past Defaults | 67 |
| Section 5.14. | Undertaking for Costs | 67 |
| Section 5.15. | Waiver of Stay, Extension or Usury Laws | 68 |
| ARTICLE SIX | ||
| THE TRUSTEE | ||
| Section 6.01. | Certain Duties and Responsibilities | 68 |
| Section 6.02. | Notice of Defaults | 69 |
| Section 6.03. | Certain Rights of Trustee | 70 |
| Section 6.04. | Not Responsible for Recitals or Issuance of Securities | 72 |
| Section 6.05. | May Hold Securities | 72 |
| Section 6.06. | Money Held in Trust | 72 |
| Section 6.07. | Compensation and Reimbursement | 72 |
| Section 6.08. | Conflicting Interests | 73 |
| Section 6.09. | Corporate Trustee Required; Eligibility | 73 |
| Section 6.10. | Resignation and Removal; Appointment of Successor | 74 |
| Section 6.11. | Acceptance of Appointment by Successor | 75 |
| Section 6.12. | Merger, Conversion, Consolidation or Succession to Business | 76 |
| Section 6.13. | Preferential Collection of Claims Against Company | 77 |
| Section 6.14. | Appointment of Authenticating Agent | 77 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of this Indenture.
ii
Table of contents
(continued)
| ARTICLE SEVEN | ||
| HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY | ||
| Section 7.01. | Company to Furnish Trustee Names and Addresses of Holders | 78 |
| Section 7.02. | Preservation of Information; Communications to Holders | 79 |
| Section 7.03. | Reports by Trustee | 79 |
| Section 7.04. | Reports by Company | 80 |
| Section 7.05. | Calculation of Original Issue Discount | 80 |
| ARTICLE EIGHT | ||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | ||
| Section 8.01. | Limitation on Consolidation, Merger, Sale or Conveyance | 80 |
| Section 8.02. | Successor Substituted | 81 |
| ARTICLE NINE | ||
| SUPPLEMENTAL INDENTURES | ||
| Section 9.01. | Supplemental Indentures Without Consent of Holders | 81 |
| Section 9.02. | Supplemental Indentures with Consent of Holders | 83 |
| Section 9.03. | Execution of Supplemental Indentures | 84 |
| Section 9.04. | Effect of Supplemental Indentures | 84 |
| Section 9.05. | Conformity with Trust Indenture Act | 84 |
| Section 9.06. | Reference in Securities to Supplemental Indentures | 84 |
| Section 9.07. | Substitution of the Company | 85 |
| ARTICLE TEN | ||
| COVENANTS | ||
| Section 10.01. | Payment of Principal and Interest | 86 |
| Section 10.02. | Maintenance of Office or Agency | 86 |
| Section 10.03. | Maintenance of Corporate Existence | 86 |
| Section 10.04. | Ranking | 87 |
| Section 10.05. | Statement by Directors as to Default | 87 |
| Section 10.06. | Provision of Financial Statements and Reports | 87 |
| Section 10.07. | Appointment to Fill a Vacancy in Office of Trustee | 88 |
| Section 10.08. | Payments and Paying Agents | 88 |
| Section 10.09. | Waiver of Certain Covenants | 89 |
| Section 10.10. | Additional Amounts | 89 |
| Section 10.11. | Limitation on Liens | 92 |
| Section 10.12. | Limitation on Transaction with Affiliates | 92 |
| Section 10.13. | Repurchase at the Option of the Holders Upon Change of Control | 92 |
| Section 10.14. | Limitation on Sale and Leaseback Transactions | 94 |
| Section 10.15. | Currency Rate Indemnity | 94 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of this Indenture.
iii
Table of contents
(continued)
| ARTICLE ELEVEN | ||
| REDEMPTION OF SECURITIES | ||
| Section 11.01. | Applicability of Article | 95 |
| Section 11.02. | Election to Redeem; Notice to Trustee | 95 |
| Section 11.03. | Selection by Trustee of Securities to Be Redeemed | 95 |
| Section 11.04. | Notice of Redemption | 96 |
| Section 11.05. | Deposit of Redemption Price | 97 |
| Section 11.06. | Securities Payable on Redemption Date | 97 |
| Section 11.07. | Securities Redeemed in Part | 97 |
| Section 11.08. | Optional Redemption Due to Changes in Tax Treatment | 98 |
| Section 11.09. | Mandatory Redemption and Sinking Fund Payments | 98 |
| ARTICLE TWELVE | ||
| GUARANTEE | ||
| Section 12.01. | Section Unconditional Guarantee | 98 |
| Section 12.02. | Release of Suzano | 100 |
| Section 12.03. | Subrogation and Contribution | 100 |
| ARTICLE FOURTEEN | ||
| DEFEASANCE AND COVENANT DEFEASANCE | ||
| Section 14.01. | Company’s Option to Effect Defeasance or Covenant Defeasance | 100 |
| Section 14.02. | Defeasance and Discharge | 101 |
| Section 14.03. | Covenant Defeasance | 101 |
| Section 14.04. | Conditions to Defeasance or Covenant Defeasance | 102 |
| Section 14.05. | Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions | 103 |
| Section 14.06. | Reinstatement | 104 |
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of this Indenture.
iv
INDENTURE, dated as of [•], 2025, between SUZANO NETHERLANDS B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, with its corporate seat (statutaire zetel) in Amsterdam, the Netherlands, and registered with the trade register of the Dutch chamber of commerce under number 92243207 (the “Company”), SUZANO S.A., a corporation (sociedade por ações) organized under the laws of the Federative Republic of Brazil (“Suzano” or “Guarantor”), as guarantor, and The Bank of new York MELLON, a New York banking corporation, as trustee (herein called the “Trustee”), registrar, paying agent and transfer agent.
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its secured or unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.
The Company is a wholly owned finance subsidiary of Suzano, a publicly held company with authorized capital organized and existing under the laws of the Federative Republic of Brazil (“Brazil”). Suzano has agreed to guarantee the Securities, and to provide therefor Suzano has duly authorized the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the Company and Suzano, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of Securities or any series thereof, as follows:
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with Generally Acceptable Accounting Principles (“GAAP”) issued by the International Accounting Standards Board (“IASB”), and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are consistent with Reporting GAAP at the date of such computation;
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(4) Unless the context otherwise requires, any reference to an “Article,” a “Section” or an “Annex” refers to an Article, a Section or an Annex, as the case may be, of this Indenture; and
(5) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Act”, when used with respect to any Holder, has the meaning set forth in Section 1.04(1).
“Additional Amounts” has the meaning set forth in Section 10.10.
“Add On Notes” has the meaning set forth in Section 3.15.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling” and “controlled by” and “under common control with”) with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent Members” has the meaning set forth in Section 3.06(1)(e).
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorization”, with respect to any creation or issuance of a series of Securities by the Company and any actions taken by the Company in connection with such issuance, means the authorization of such issuance and actions by the Board of Directors or any other corporate body of the Company required pursuant to the Company’s organizational documents and Dutch law to authorize such issuance and actions.
“Authorized Representative” means a managing director A and a managing director B of the Company, acting jointly, any other person duly authorized by the Company to represent the Company in accordance with the articles of association (statuten) of the Company and any other person duly authorized by the Company pursuant to a power of attorney with specific powers to perform such act on behalf of the Company provided, however, that such power of attorney is granted in a legal and valid manner, and provided further that the Company may only appoint attorneys-in-fact who, in the judgment of the Company, have positions and responsibilities compatible with the powers granted.
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“Board of Directors”, when used with reference to the Company, means the board of directors (bestuur) of the Company.
“Board Resolution” means, when used with reference to the Company, a copy of a resolution certified by any director or officer of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and in each case delivered to the Trustee.
“Brazil” has the meaning set forth in the first recital of this Indenture.
“Business Day” means, with respect to any series of Securities, unless otherwise specified with respect to such series of Securities as contemplated by Section 3.01, a day, other than a Saturday or Sunday, that (a) in the Place of Payment (or in any of the Places of Payment, if more than one) in which amounts are payable, as specified in the form of such series of Securities and (b) in the city in which the Corporate Trust Office is located, is not a day on which banking institutions are authorized or required by law or regulation to close (and for purposes of the sending of notices only, is not a day on which banking institutions in the Netherlands are authorized or required by law or regulation to close).
“Capital Lease Obligations” means, with respect to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property, which obligations are required to be classified and accounted for as a capital lease or liability set forth on a balance sheet of such Person under Reporting GAAP. The stated maturity of such obligations shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of such obligations shall be the capitalized amount that would appear on the balance sheet of such Person in accordance with Reporting GAAP. Notwithstanding the foregoing, whether or not the lease will be accounted for as a capital lease and the amount of any capital leases shall be determined without giving effect to IFRS 16.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations, quotas or other equivalents (however designated) of capital stock of a corporation, any and all ownership interests in a Person other than a corporation and any and all warrants or options to purchase any of the foregoing which would be shown as capital stock on the consolidated balance sheet of such Person and its consolidated Subsidiaries prepared in accordance with Reporting GAAP but excluding any debt securities convertible into such equity.
“Cash Equivalents” means any investments that are classified as cash equivalents under Reporting GAAP.
“Certificated Securities” has the meaning set forth in Section 3.06(1)(d).
“Certification Date” means, with respect to Securities of any series, (i) if Securities of such series are not to be initially represented by a Temporary Regulation S Security, the date of delivery of the definitive Regulation S Security and (ii) if Securities of such series are initially represented by a Temporary Regulation S Security, the earlier of (A) the Exchange Date with respect to Securities of such series and (B) if the first Interest Payment Date with respect to Securities of such series is prior to such Exchange Date, such Interest Payment Date.
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“Change of Control” means the consummation of any transaction by which (i) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a person or group that includes any one or more of the Permitted Holders, becomes after the date hereof the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the outstanding Voting Stock of Suzano or (ii) (x) the Permitted Holders cease to “beneficially own” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, collectively, at least 50% of the total voting power of the outstanding Voting Stock of Suzano, (y) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act), other than a person or group that includes any one or more of the Permitted Holders, becomes after the date hereof the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of a greater percentage of the total voting power of the outstanding Voting Stock of Suzano than the percentage beneficially owned collectively by the Permitted Holders and (z) the Permitted Holders cease to have, directly or indirectly, the power to direct or cause the direction of the management and policies of Suzano or (iii) Suzano shall cease to own, directly or indirectly, at least a majority of the issued and outstanding shares of Voting Stock of the Company or shall cease to have the power, directly or indirectly, to direct or cause the direction of the management and policies of the Company.
“Change of Control Offer” means an offer made by the Company or Suzano, following the occurrence of a Change of Control that results in a Rating Decline, to each Holder to repurchase all or any part of such Holder’s Securities pursuant to Section 10.12.
“Change of Control Payment” means, in connection with the repurchase of a Holder’s Securities pursuant to a Change of Control Offer, the payment by the Company or Suzano of (i) 101.0% of the aggregate principal amount of such Holder’s Securities repurchased plus accrued and unpaid interest and Additional Amounts, if any, on such Securities, to, but excluding, the date of purchase (subject to the right of the Holders of record on the relevant record date to receive interest and Additional Amounts, if any, on the relevant interest payment date).
“Change of Control Payment Date” means, in relation to a Change of Control Offer, the purchase date for the Securities properly tendered as specified in the notice given by the Company or Suzano pursuant to Section 10.12 in relation to such Change of Control Offer, which date is not more than five Business Days after the Expiration Date.
“Clearstream, Luxembourg” means Clearstream Banking S.A., Luxembourg, and its successors.
“Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument the United States Securities and Exchange Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
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“Common Depositary” means the common depositary, if any, for Clearstream, Luxembourg and Euroclear Operator.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture and thereafter “Company” shall mean such successor Person, as described further in Section 9.01(1).
Company shall also mean any new issuer of future issuances of Securities under this Indenture as contemplated by Section 9.01(1).
“Consolidated Net Tangible Assets” means, on a consolidated basis, Suzano’s total assets, less current liabilities, less depreciation, amortization and depletion, less goodwill, trade names, trademarks, patents and other intangibles, as such line items appear on the most recent balance sheet, after giving pro forma effect to any acquisition or disposition of companies, divisions, lines of businesses, operations or assets by Suzano and its Subsidiaries subsequent to such date.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, Floor 7 East, New York, New York 10286, or such other address as the Trustee may designate from time to time by written notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company).
“Covenant Defeasance” has the meaning set forth in Section 13.03.
“Debt” means, with respect to any Person, determined without duplication:
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person for the deferred purchase price of Property or services, excluding trade payables arising in the ordinary course of such Person’s business, but only if and for so long as such trade payables remain payable on customary trade terms;
(3) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(4) all obligations, contingent or otherwise, of such Person in connection with any securitization of any receivables of such Person;
(5) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the borrower or the lender under such agreement in an event of default are limited to repossession or sale of such Property);
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(6) all Capital Lease Obligations and all obligations under “synthetic leases” of such Person;
(7) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit, financial guaranty insurance policies or other similar instruments, excluding obligations in respect of trade letters of credit or bankers’ acceptances issued in respect of trade accounts payables to the extent not drawn upon or presented, or, if drawn upon or presented, to the extent the resulting obligation of the Person is paid within 10 Business Days;
(8) all obligations of such Person to redeem, retire, defease or otherwise make any payment in respect of any Capital Stock of such Person;
(9) all net obligations of such Person in respect of any Hedging Agreements (but without regard to any notional principal amount relating thereto);
(10) all Debt of other Persons referred to in clauses (1) through (10) above or clause (-) below that is guaranteed by such Person to the extent so guaranteed; and
(11) all Debt of other Persons referred to in clauses (1) through (11) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) a Lien on Property of such Person even though such Person has not assumed such Debt.
The amount of Debt of any Person will be deemed to be:
(A) with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation;
(B) with respect to Debt secured by a Lien on an asset of such Person but not otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the fair market value of such asset on the date the Lien attached and (y) the amount of such Debt;
(C) with respect to any Debt issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt;
(D) with respect to any Hedging Agreement, the net amount payable if such Hedging Agreement terminated at that time due to default by such Person; and
(E) otherwise, the outstanding principal amount thereof.
“Default” means an event or condition with respect to a series of Securities that, with the giving of notice, lapse of time or failure to satisfy certain specified conditions, or any combination thereof, would become an Event of Default with respect to the Securities of such series if not cured or remedied.
“Defaulted Interest” has the meaning set forth in Section 3.09.
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“Defeasance” has the meaning set forth in Section 13.02.
“Depositary” means, with respect to Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“DTC” means The Depository Trust Company or its nominee, and its successors.
“Euroclear Operator” means Euroclear Bank SA/NV, a bank organized under the laws of the Kingdom of Belgium, as operator of the Euroclear system (or any successor securities clearing system).
“Event of Default” has the meaning set forth in Section 5.01.
“Exchange Act” means the United States Securities Exchange Act of 1934 (or any statute successor thereto), as it may be amended from time to time.
“Exchange Date” has the meaning set forth in Section 3.05.
“Expiration Date” has the meaning set forth in Section 1.04.
“Exchange Offer” has the meaning set forth in the form of the face of the Global Security set forth in Section 2.02.
“Exchange Security” means any Security issued by the Company (i) pursuant to the Exchange Offer, (ii) upon the registration of transfer of a Security registered for resale on a Resale Registration Statement or (iii) upon the transfer of, or in exchange for, Securities that are Exchange Securities.
“Fitch” means Fitch Ratings Inc. or any successors thereto.
“Global Security” means any Security or series of Security issued in the form set forth in Section 2.02 or established pursuant to Section 2.01 which is registered in the Security Register in the name of a Depositary and bears the legend set forth in Section 2.03 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
“Governmental Authority” means any regulatory, administrative or other legal body, any court, tribunal or authority or any public legal entity or public agency of the Netherlands, Brazil or the United States or any other jurisdiction whether created by federal, provincial or local government, or any other legal entity now existing or hereafter created, or now or hereafter controlled, directly or indirectly, by any public legal entity or public agency of any of the foregoing.
“guarantee” means an obligation of any Person to pay the Debt of another person including, without limitation: (i) an obligation to pay or purchase such Debt, (ii) an obligation to lend money or to purchase or subscribe for shares or other securities or to purchase assets or services in order to provide funds for the payment of such Debt, (iii), an indemnity against the consequences of a default in the payment of such Debt; or (iv) any other agreement to be responsible for such Debt.
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“Guarantee” has the meaning specified in Section 12.01.
“Guarantor” means Suzano until a successor Person shall have become such pursuant to the applicable provisions of this Indenture and the Guarantee, and thereafter “Guarantor” shall mean such Person.
“Hedging Agreement” means, with respect to any Person, any interest rate protection agreement, any currency or commodity swap, cap or collar agreement, any equity swap, any weather-related derivative or any arrangement similar to any of the foregoing entered into by such Person providing for the transfer or mitigation of interest rate, currency, commodity price, equity risks, weather-related risks or other risks either generally or under specific contingencies.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“IFRS” means International Financial Reporting Standards as adopted by the International Accounting Standards Board.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01.
“Initial Regulation S Securities” means any Securities sold by the purchasers thereof in an initial offering contemplated by a Purchase Agreement in reliance on Regulation S and which are Temporary Regulation S Securities.
“Interest,” when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Investment Company Act” means the United States Investment Company Act of 1940 (or any statute successor thereto), as it may be amended from time to time.
“Investment Grade Rating” means “BBB-” or higher by S&P, “Baa3” or higher by Moody’s or “BBB-” or higher by Fitch, or the equivalent of such global ratings by S&P, Moody’s or Fitch.
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“Law” means any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, enforceable at law or in equity, along with the interpretation and administration thereof by any Governmental Authority charged with the interpretation or administration thereof.
“Lien” means any mortgage, lien, pledge, usufruct, fiduciary transfer (alienação fiduciária), charge, encumbrance or other security interest or any preferential arrangement (including a securitization) that has the practical effect of creating a security interest.
“Material Adverse Effect” means a material adverse effect on (i) the business, operations, assets, property, condition (financial or otherwise) of the Company or its Subsidiaries, taken as a whole, (ii) the validity or enforceability of this Indenture, or (iii) the ability of the Company to perform its obligations under this Indenture, or the material rights of or benefits available to the Holders or the Trustee, as representative of the Holders under this Indenture.
“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 15% of such Person’s total consolidated assets, as such total assets are set forth on the most recent consolidated financial statements of such Person prepared in accordance with Reporting GAAP.
“Maturity,” when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind set forth in Section 5.01(3).
“Officer” means (i) with respect to the Company, any director or authorized representative of the Company and (ii) with respect to Suzano or any Subsidiary, any authorized representative of Suzano or any Subsidiary including any of the president, vice president, executive officer, financial officer or general counsel of Suzano or any Subsidiary, as the case may be.
“Officers’ Certificate” means a certificate signed in the name of the Company by any director or Authorized Representatives in accordance with its articles of association, or in the name of the Guarantor by any two officers or authorized representatives in accordance with its bylaws; provided however, that an Officers’ Certificate pursuant to Section 10.05 shall be signed by any two of the Company’s directors or any two of the Guarantor’s principal executive, financial or accounting officers, as applicable, pursuant to the requirements of Section 314(a)(4) of the Trust Indenture Act.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company, as applicable (except as otherwise provided in this Indenture), and as reasonably acceptable to the Trustee.
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“Order” means a written request or order signed in the name of the Company by an Authorized Representative, in each case delivered to the Trustee.
“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Original Securities” means Securities of any series that are not Exchange Securities.
“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation or surrendered for transfer or exchange;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefore satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 13.02; and
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 5.02, (ii) the principal amount of a Security denominated in one or more foreign currencies or currency units shall be the U.S. dollar equivalent, determined in the manner provided as contemplated by Section 3.01 on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security, (iii) if the principal amount payable at Stated Maturity of any Security is not determinable upon original issuance, the principal amount of such Security that shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, and (iv) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
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“Outstanding Securities” has the meaning set forth under Section 3.04.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on its behalf, which at the date of this Indenture includes the Trustee.
“Permanent Regulation S Security” has the meaning set forth in Section 3.05.
“Permitted Holders” means (a) David Feffer, Daniel Feffer, Jorge Feffer and Ruben Feffer, as well as any of their respective heirs, or (b) an entity that is directly or indirectly controlled by one or more of the Persons listed in clause (a) above.
“Permitted Lien” means, with respect to any Securities of a series issued for which Section 10.11 applies, any:
| (i) | any Lien existing on the date of this Indenture; |
| (ii) | any Lien on any Property or assets (including Capital Stock of any person) securing Debt incurred solely for purposes of financing the acquisition, construction or improvement of such Property or assets after the date of this Indenture; provided that (a) the aggregate principal amount of Debt secured by the Liens will not exceed (but may be less than) 130% of the cost (i.e., purchase price) of the Property or assets so acquired, constructed or improved and (b) the Lien is incurred before, or within 365 days after the completion of, such acquisition, construction or improvement and does not encumber any other Property or assets of Suzano or any of its Subsidiaries; and provided, further, that to the extent that the Property or asset acquired is Capital Stock, the Lien also may encumber other Property or assets of the person so acquired; |
| (iii) | any Lien securing Debt incurred for the purpose of financing all or part of the cost of the acquisition, construction or development of a project; provided that the lenders of such Debt expressly agree to limit their recourse in respect of such Debt to assets (including Capital Stock of the project entity) and/or revenues of such project with an aggregate value of not more than the amount of such Debt; and provided, further, that the Lien is incurred before, or within 365 days after the completion of, that acquisition, construction or development and does not apply to any other property or assets of Suzano or any Subsidiary; |
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| (iv) | any Lien extending, renewing or replacing (or successive extensions, renewals or replacements of), in whole or in part, any Lien referred to in items (i), (ii), (iii) above, and (vi) and (vii) below; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, except for any increase reflecting premiums, fees and expenses in connection with such extension, renewal or replacement; |
| (v) | any Lien existing on any Property or assets of any Person before that Person’s acquisition (in whole or in part) by merger into, or consolidation with, Suzano or any of its Subsidiaries after the date of this Indenture; provided that the Lien is not created in contemplation of or in connection with such acquisition, merger or consolidation; |
| (vi) | any Lien in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of the Company or any of its Subsidiaries in the ordinary course of business; |
| (vii) | any Liens granted to secure borrowings from, directly or indirectly, (a) Banco Nacional de Desenvolvimento Econômico e Social – BNDES, or any other Brazilian governmental development bank or credit agency (including borrowings from any Brazilian governmental bank with funds provided by Brazilian regional funds including Financiadora de Estudos e Projetos – FINEP, Fundo de Desenvolvimento do Nordeste – FDNE, Banco do Nordeste do Brasil and Fundo de Desenvolvimento do Centro Oeste – FCO), or (b) any international or multilateral development bank, government-sponsored agency, export-import bank or official export-import credit insurer; |
| (viii) | any pledge or deposit made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other similar social security legislation; |
| (ix) | any deposit to secure appeal bonds, judicial deposits or other similar guarantees in proceedings being contested in good faith to which Suzano or any Subsidiary is a party, good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which Suzano or any its Subsidiaries is a party or deposits for the payment of rent, in each case made in the ordinary course of business and for which adequate reserves have been made as required in accordance with Reporting GAAP; |
| (x) | any Lien imposed by applicable law incurred in the ordinary course of business, including, without limitation, carriers’, warehousemen’s and mechanics’ liens, statutory landlord’s liens, customary reservations or retentions of title easements, rights-of-way, defects, zoning restrictions and other similar charges or encumbrances arising in the ordinary course of business, in each case for sums not yet due or being contested in good faith by appropriate proceedings and for which adequate reserves have been made as required in accordance with Reporting GAAP; |
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| (xi) | any Lien or rights of set-off of any Person with respect to any Cash Equivalents on deposit account or securities account of Suzano or any of its Subsidiaries arising in the ordinary course of business in favor of the bank(s) or security intermediary(ies) with which such accounts are maintained, securing only amounts owing to such bank(s) with respect to cash management and operating account arrangements; provided that any Lien or rights of netting or set-off which arise from general banking conditions (algemene bankvoorwaarden) applicable to Suzano Netherlands shall at all times be permitted; |
| (xii) | any Lien on (i) cash or cash equivalents or other securities securing Hedging Agreements or other similar transactions permitted in accordance with this Indenture or (ii) any right, title, interest and claim in, to and under, Hedging Agreements or other similar transactions permitted in accordance with this Indenture, or any proceeds thereof, to secure a given Debt, to the extent that the purpose of such Hedging Agreement is to mitigate risks related to such Debt; |
| (xiii) | any Lien securing taxes, assessments and other governmental charges or levies, in each case the payment of which is not yet due or is being contested in good faith by appropriate proceedings diligently conducted and for which such reserves or other appropriate provisions, if any, as shall be required by Reporting GAAP shall have been made; |
| (xiv) | any Liens on the receivables of Suzano or any of its Subsidiaries securing the obligations of such Person under any line of credit or working capital facility or other credit facility; provided that the aggregate amount of receivables securing Debt shall not exceed 80.0% of the Suzano’s and its Subsidiaries’ aggregate outstanding receivables from time to time; |
| (xv) | any encumbrance, security deposit or reserve maintained in the ordinary course of business and required by Applicable Law; |
| (xvi) | any Lien which arises pursuant to a final judgment(s) that do not constitute an Event of Default under Section 5.01; |
| (xvii) | any Lien securing Debt or other obligations of a Subsidiary of Suzano or the Company owing to Suzano or the Company or a Subsidiary thereof; |
| (xviii) | any Lien on Property or shares of Capital Stock of another Person at the time such other Person becomes a Subsidiary; provided that, such Liens may not (i) extend to any Property owned by such Person other than the Property so acquired, or (ii) have been incurred in connection with or in anticipation of such acquisition; |
| (xix) | incurring a joint and several liability (including any netting or rights of set-off) as a result of a fiscal unity (fiscale eenheid) for Dutch tax purposes; and |
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| (xx) | any Lien not otherwise described in items (i) through (xix) above, provided that the aggregate principal amount of Debt at any time outstanding secured by such Lien does not exceed in aggregate principal amount, at any time of determination, 20% of the Consolidated Net Tangible Assets. |
“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, other entity or any government or any agency or political subdivision thereof.
“Place of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.01.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Preferred Stock” means, with respect to any Person, any Capital Stock of such Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Property” of any Person means any property, rights or revenues, or interest therein, of such Person.
“Purchase Agreement” means any purchase agreement entered into to issue Securities under this Indenture.
“Rating Agency” means S&P, Fitch or Moody’s; or if S&P, Fitch or Moody’s are not making rating of the Securities publicly available, an internationally recognized U.S. rating agency or agencies, as the case may be, selected by the Company, which will be substituted for S&P, Fitch or Moody’s, as the case may be.
“Rating Decline” means that at any time within 90 days (which period shall be extended so long as the rating of the debt securities is under publicly announced consideration for possible down grade by either Rating Agency) after the earlier of the date of public notice of a Change of Control and of the issuer’s intention or that of any Person to effect a Change of Control, (i) in the event the debt securities are assigned an Investment Grade Rating by at least two of the Rating Agencies prior to such public notice, the rating of such debt securities by at least two of the Rating Agencies shall be below an Investment Grade Rating; or (ii) in the event such debt securities are not assigned an Investment Grade Rating by at least two of the Rating Agencies prior to such public notice, the rating of such debt securities by at least two of the Rating Agencies shall be decreased by one or more categories, provided that there shall be no Rating Decline to the extent such debt securities continue to have an Investment Grade Rating by at least one of the Ratings Agencies; provided that any such Rating Decline is expressly stated by the applicable Rating Agencies to have been the result of the Change of Control.
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“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security,” means any Security issued in registered form that is registered in the Security Register. Registered Securities shall include Global Securities and Certificated Securities.
“Registration Default” has the meaning set forth in the form of face of Global Security in Section 2.02.
“Registration Default Period” has the meaning set forth in the form of face of the Global Security in Section 2.02.
“Registration Rights Agreement” means an agreement entered into by the Company contemplating the registration under the Securities Act of a series of Securities issued under this Indenture subsequent to the initial date of issuance of such series of Securities.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
“Regulation S” means Regulation S under the Securities Act (or any successor provision), as it may be amended from time to time.
“Regulation S Certificate” means a certificate substantially in the form set forth in Annex A.
“Regulation S Global Security” has the meaning set forth in Section 2.01.
“Regulation S Legend” means a legend substantially in the form of the legend required in the forms of face of Security set forth in Section 2.02 to be placed upon a Regulation S Global Security.
“Regulation S Securities” means all Securities required pursuant to Section 3.06(3) to bear a Regulation S Legend. Such term includes a Regulation S Global Security.
“Reporting GAAP” means the International Financial Reporting Standards as adopted by the International Accounting Standards Board or any other accounting standard that the Company may adopt as its primary reporting accounting standard in its reports filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
“Resale Registration Statement” shall mean a registration statement under the Securities Act registering the Securities for resale pursuant to the terms of the Registration Rights Agreement.
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“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department (or similar group) of the Trustee, with direct responsibility for the administration of the Indenture, and any officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Restricted Global Security” means any Global Security required pursuant to Section 3.06(3) to bear a Restricted Securities Legend.
“Restricted Period” means, with respect to any series of Regulation S Securities, the period of 41 consecutive days beginning on and including the later of (i) the day on which Securities of such series are first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S and (ii) the day on which the closing of the offering of Securities of such series pursuant to a Purchase Agreement occurs.
“Restricted Security” means all Securities required pursuant to Section 3.06(3) to bear a Restricted Securities Legend. Such term includes a Restricted Global Security.
“Restricted Securities Certificate” means a certificate substantially in the form set forth in Annex B.
“Restricted Securities Legend” means a legend substantially in the form of the legend required in the form of face of Securities set forth in Section 2.02 to be placed upon a Restricted Security.
“Rule l44A” means Rule l44A under the Securities Act (or any successor provision), as it may be amended from time to time.
“Rule 144A Securities” means all Securities initially distributed in connection with the offering of the Securities by the purchasers in reliance upon Rule 144A.
“S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc. and its successors.
“SEC” means the U.S. Securities and Exchange Commission.
“SEC Registered Securities” means the Exchange Securities and all other Securities sold or otherwise disposed of pursuant to an effective registration statement under the Securities Act, together with their respective Successor Securities.
“Securities” has the meaning set forth in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the United States Securities Act of 1933 (or any statute successor thereto), as it may be amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings set forth in Section 3.06.
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“Special Interest” has the meaning set forth in the form of face of the Global Security in Section 2.02. Unless the context otherwise requires, references herein to “interest” on the Securities shall include Special Interest.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity” means (i) with respect to any Debt, the date specified as the fixed date on which the final installment of principal of such Debt is due and payable or (ii) with respect to any scheduled installment of principal of or interest on any Debt, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing such Debt, not including any contingent obligation to repay, redeem or repurchase prior to the regularly scheduled date for payment.
“Step-Down Date” has the meaning set forth in the form of face of the Global Security in Section 2.02.
“Step-Up” has the meaning set forth in the form of face of the Global Security in Section 2.02.
“Subsidiary” means with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which more than 50.0% of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more Subsidiaries of such Person (or a combination thereof).
“Successor Company” has the meaning set forth in Section 9.07.
“Successor Jurisdiction” means the jurisdiction, other than Brazil or the Netherlands, in which a Successor Person is incorporated or considered to be resident.
“Successor Person” has the meaning set forth in Section 8.01.
“Successor Security” of any particular Security means every Security issued after, and evidencing all or a portion of the same debt (subject to provisions, if any, in the Predecessor Security regarding payment of Special Interest) as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Suzano” means the Person named as “Suzano” in the first paragraph.
“Taxing Jurisdiction” shall mean Brazil, the jurisdiction of the Company’s incorporation (the Netherlands) or any other jurisdiction in which the Company appoints a paying agent hereunder or any political subdivision or any taxing authority thereof or therein.
“Temporary Regulation S Security” means a temporary Security issued in global registered form.
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“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture Act” or “TIA” means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed (except as provided in Section 9.05); provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended.
“United States” or “U.S.” means the United States of America (including the States and the District of Columbia) and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).
“Unrestricted Securities Certificate” means a certificate substantially in the form set forth in Annex C.
“U.S. Person” shall have the meaning ascribed to such term in Rule 902 of Regulation S.
“U.S. Government Obligations” has the meaning set forth in Section 13.04(1).
“Voting Stock” of a Person means Capital Stock in such Person having power to vote for the election of directors or similar officials that get appointed by virtue of exercising the Voting Stock of such Person or otherwise voting with respect to actions of such Person (other than such Capital Stock having such power only by reason of the happening of a contingency).
“Wholly-Owned Subsidiary” means, with respect to any corporate entity, any person of which 95 % of the outstanding capital stock (other than qualifying shares, if any) having by the terms thereof ordinary voting power (not dependent on the happening of a contingency) to elect the board of directors (or equivalent controlling governing body) of such person is at the time owned or controlled directly or indirectly by such corporate entity, by one or more wholly-owned subsidiaries of such corporate entity or by such corporate entity and one or more wholly-owned subsidiaries thereof.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act with respect to compliance with conditions precedent provided for in this Indenture. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an Authorized Representative, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture, except that in the event of any such application or request as to which the furnishing of such documents is specifically required by any provisions of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
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Every certificate or opinion, whether required to be provided pursuant to this Section 1.02 or elsewhere, with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Representative may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Persons know, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Authorized Representative stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders of Securities; Record Dates.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders of Securities signing such instrument or instruments or so voting at such meeting. Proof of execution of any such instrument or of a writing appointing any such agent or proxy, or of the holding by any Person of a Security shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 13.06.
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(2) The fact and date of the execution by any Person of any instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(3) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, or their duly designated proxies, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders, or duly designated proxies, of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(2) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, or their duly designated proxies, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the expense of the Company, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
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With respect to any record date set pursuant to this Section, the party hereto that sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party or parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date and, if an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party or parties hereto which set such record date shall be deemed to have designated the 180th day after such record date as the Expiration Date with respect thereto.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents or proxies each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
(4) The principal amount and serial numbers of Global Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(5) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(6) The provisions of this Section 1.04 are subject to the provisions of Section 13.05.
Section 1.05. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders of Securities or other document provided for or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of Securities or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (or sent by facsimile and confirmed in writing) to or with the Trustee at its Corporate Trust Office, Attention: Institutional Trust Services, or
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(2) the Company by the Trustee or by any Holder of Securities shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed (or sent by facsimile and confirmed in writing) international air mail postage prepaid and addressed to its principal office specified in the first paragraph of this instrument to the attention of its Board of Directors, or at any other address previously furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders of Securities; Waiver.
Unless otherwise herein expressly provided, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given to Holders of Securities if in writing and mailed, first-class postage prepaid, or delivered by hand or overnight courier to each Holder of a Security affected by such event, at its address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Securities by mail, then such notification as shall be given with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security shall affect the sufficiency of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
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“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
Section 1.07. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language.
Section 1.08. Conflict with Trust Indenture Act.
The Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required to be part of and govern indentures qualified under the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the provision of such Act shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision of such Act shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
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Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 1.14. Saturday, Sundays and Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security or the last day on which Holders have the right to convert or exchange their Securities shall not be a Business Day at any Place of Payment or place of conversion or exchange, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) or conversion or exchange need not be made at such Place of Payment or place of conversion or exchange on such date, but may be made on the next succeeding Business Day at such Place of Payment or place of conversion or exchange with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity or on such last day for conversion or exchange.
Section 1.15. Appointment of Agent for Service; Submission to Jurisdiction; Waiver of Immunity.
By the execution and delivery of this Indenture, the Company hereby appoints Cogency Global Inc. with offices on the date hereof at 122 East 42nd Street, 18th Floor, New York, NY 10168, United States, as its authorized agent as its agent upon which process may be served in any legal action or proceeding which may be instituted in any state or Federal court in the Borough of Manhattan, The City of New York, State of New York, arising out of or relating to the Securities or this Indenture, but for that purpose only. Service of process upon such agent at the office of the Company at 122 East 42nd Street, 18th Floor, New York, NY 10168, United States, and written notice of said service to the Company by the Person servicing the same addressed as provided by Section 1.05, shall be deemed in every respect effective service of process upon the Company in any such legal action or proceeding before any such court in the Borough of Manhattan, The City of New York, State of New York. The Company will take any and all action necessary to continue such designation in full force and effect and to advise the Trustee of any change of address of such agent; should such agent become unavailable for this purpose for any reason, the Company will promptly and irrevocably designate a new agent in the Borough of Manhattan, The City of New York, State of New York, which will agree to act as such for powers and for the purposes set forth in this Section 1.15. The Company hereby (i) irrevocably submits to the nonexclusive jurisdiction of any state or Federal court in the Borough of Manhattan, The City of New York, State of New York in any legal action or proceeding arising out of or relating to the Securities or this Indenture, (ii) to the extent it may effectively do so, irrevocably and unconditionally waives any objection that it may have now or hereafter to the laying of the venue of any such legal action or proceeding and (iii) to the extent the Company has or hereafter may acquire any immunity from jurisdiction of any such court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities to the fullest extent permitted by law. Such appointment shall be irrevocable so long as the Holders of Securities shall have any rights pursuant to the terms thereof or of this Indenture until the appointment of a successor by the Company with written notice thereof to the Trustee and such successor’s acceptance of such appointment. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of such agent or successor.
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Section 1.16. Power of Attorney.
If the Company is represented by an attorney or attorneys in connection with the signing and/or execution and/or delivery of this Indenture or any agreement or document referred to herein or made pursuant hereto and the relevant power or powers of attorney is or are expressed to be governed by the laws of a particular jurisdiction, it is hereby expressly acknowledged and accepted by the other parties to this Indenture that such laws shall govern the existence and extent of such attorney's or attorneys’ authority and the effects of the exercise thereof.
Section 1.17. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES, OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 1.18. Trustee Compliance with FATCA
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time that a foreign financial institution, issuer, paying agent, Holder or other institution is or has agreed to be subject to related to this Indenture, the Company and the Guarantors agree (i) to use commercially reasonable efforts to provide to the Trustee sufficient information about Holders or other applicable parties and/or transactions (including any modification to the terms of such transactions), to the extent the Issuer or any Guarantor has access to such information, so the Trustee can determine whether it has tax related obligations under applicable law, (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with applicable law for which the Trustee shall not have any liability except as may result from its own gross negligence or willful misconduct and (iii) to hold harmless the Trustee for any losses it may suffer due to the actions it takes to comply with such applicable law except as may result from its own gross negligence or willful misconduct. The terms of this section shall survive the termination of this Indenture.
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Section 1.19. No Sanctions
The Company and the Guarantors covenant and represent that neither they nor any of their Affiliates or Subsidiaries, their respective directors or officers are the target or subject of any sanctions enforced by the Unites States Government (including the Office of Foreign Assess Control of the United States Department of Treasury), the United Nations Security Council, the European Union, the HM Treasury or other relevant sanctions authority (collectively “Sanctions”). The Company and the Guarantors covenant and represent that neither they nor any of their Affiliates or Subsidiaries, their respective, directors or officers will use any funds raised pursuant to the issuance of the Notes (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any Person.
Article Two
SECURITY FORMS
Section 2.01. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form (including temporary or permanent global form) as shall be established by or pursuant to an Authorization of the Company or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary or as may, consistently herewith, be determined by an Authorized Representative executing such Securities pursuant to this Indenture, as evidenced by its execution thereof. If the forms of Securities of any series are established by action taken pursuant to an Authorization, a copy of an appropriate record of such action shall be certified by any Authorized Representative and delivered to the Trustee at or prior to the delivery of the Order contemplated by Section 3.03 for the authentication and delivery of such Securities. Any such Board Resolution or other document evidencing an Authorization shall have addressed thereto a true and correct copy of the form of Security referred to therein approved by or pursuant to such Authorization.
The definitive Securities may be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Authorized Representative executing such Securities, as evidenced by its execution of such Securities.
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Upon their original issuance, any Rule 144A Securities and any Initial Regulation S Securities of any series shall be issued in the form of separate Global Securities. The Global Securities representing Rule 144A Securities, together with their Successor Securities which are Global Securities other than Regulation S Global Securities and SEC Registered Securities, are collectively herein called the “Restricted Global Securities”. The Global Securities representing Initial Regulation S Securities, together with their Successor Securities which are Global Securities other than Restricted Global Securities and SEC Registered Securities, are collectively herein called the “Regulation S Global Securities.”
Section 2.02. Form of Global Security.
[Form of Face of Global Security] [Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
SUZANO NETHERLANDS B.V. (with its corporate seat in Amsterdam, the Netherlands)
[Title of Security]
Date: ___________
No.________ CUSIP NO._____________
ISIN NO.______________
[Legend if the Security is a Restricted Security:
“THE GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR ANY OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, AGREES THAT THIS GLOBAL NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO SUZANO NETHERLANDS B.V., (2) SO LONG AS THIS GLOBAL NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, REPRESENTS AND AGREES THAT IT WILL NOTIFY ANY PURCHASER OF THIS GLOBAL NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”]
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[Legend if the Security is a Regulation S Security:
THIS GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, AGREES THAT NEITHER THIS GLOBAL NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS GLOBAL NOTE AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (I) THE DATE ON WHICH THE NOTES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (II) THE ORIGINAL ISSUE DATE OF THIS GLOBAL NOTE.]
[Legend if the Security is a Temporary Regulation S Security:
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”).
NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED ABOVE.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL HEREOF OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.]
[Legend if the Security benefits from a Registration Rights Agreement:
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF [date of agreement], AMONG SUZANO NETHERLANDS B.V., SUZANO S.A. AND THE OTHER PARTIES REFERRED TO THEREIN.]
This Security is one of a duly authorized issue of securities of SUZANO NETHERLANDS B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands and with its corporate seat in Amsterdam, the Netherlands (the “Issuer”), designated as its __________ (the “Securities”), issued in an initial aggregate principal amount of ________________ as revised by the Schedule of Increases and Decreased attached hereto, [If applicable, insert - - under the ___________ Supplemental Indenture (the “__________ Supplemental Indenture”), effective as of ___________, by and among the Issuer [If applicable, insert - - , Suzano S.A., a corporation (sociedade por ações) organized under the laws of Brazil (“Suzano”),] and The Bank of New York Mellon, a New York banking corporation, as Trustee (the “Trustee”), to the Indenture, dated as of [•], 2025
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(the “Original Indenture”, and as supplemented by the ____________ Supplemental Indenture and any further supplements thereto with respect to the Securities, the “Indenture”), by and among the Issuer and the Trustee. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Securities are, and are to be, authenticated and delivered. All capitalized terms used in this Securities which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
The Issuer, for value received, hereby promises to pay to ______________, or its registered assigns [If applicable, insert - - as nominee of __________________], and as the Holder of record of this Security, the principal amount specified above in _________ on __________ (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.
[If the Security is to bear interest prior to Maturity, insert --, As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from ____________, [semi-annually in arrears on ______________ and ______________ of each year] [annually in arrears on __________ in each year] (each such date, an “Interest Payment Date”), commencing _____________ at a rate equal to _____% per annum, and will initially accrue from the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. Interest payable, and punctually paid or duly provided for, on this Security on any Interest Payment Date will, as provided in the Indenture, be paid in ___________ to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on the Business Day preceding such interest payment.
Payment of the principal of and interest on this Security will be payable by wire transfer to a _______ account maintained by the Holder of this Security as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Security is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. [if the Security is to bear interest prior to Maturity, insert --, Interest shall accrue on the Securities at the rate of _____% per annum until all required amounts due in respect of the Securities have been paid. Interest accrued with respect to this Security shall be calculated based on ____________.]
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[If applicable, insert - - However, if (i) a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), registering a security substantially identical to this Security (except that such Security will not contain terms with respect to the Special Interest payments described below or legends reflecting transfer restrictions) pursuant to an exchange offer (the “Exchange Offer”) (the “Exchange Registration Statement”) (or, if applicable, a registration statement registering this Security for resale (a “Shelf Registration Statement”)) has not become or been declared effective on or before the date on which such registration statement is required to become or be declared effective pursuant to the Exchange and Registration Rights Agreement, dated as of [date of agreement] (the “Registration Rights Agreement”), among the Issuer and the other parties referred to therein, or (ii) the Exchange Offer has not been completed within the number of days specified by the Registration Rights Agreement after the initial effective date of the Exchange Registration Statement (if the Exchange Offer is then required to be made) or a Shelf Registration Statement has not become or been declared effective on or before the date on which it is required to become or be declared effective pursuant to the Exchange and Registration Rights Agreement, or (iii) any Exchange Registration Statement or, if applicable, the Shelf Registration Statement is filed and declared effective but shall thereafter cease to be effective (except as specifically permitted pursuant to the Registration Rights Agreement) without being succeeded immediately (except as specifically permitted pursuant to the Registration Rights Agreement) by an additional registration statement filed and declared effective, in each case in Clauses (i) through (iii) upon the terms and conditions set forth in the Registration Rights Agreement (each such event referred to in Clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then interest will accrue (in addition to any stated interest on the Securities) (the “Step-Up”) at a per annum rate of _____% for such Registration Default Period from and including the date on which a Registration Default first occurs to but excluding the first date (the “Step-Down Date”) that no Registration Default is in effect. Interest accruing as a result of the Step-Up is referred to herein as “Special Interest.” Accrued Special Interest, if any, shall be paid semi-annually on ______ and ______ in each year; and the amount of accrued Special Interest shall be determined on the basis of the number of days during which such Registration Default is in effect.
The Issuer shall provide the Trustee with written notice of the date of any Registration Default and the Step-Down Date. Any accrued and unpaid interest (including Special Interest) on this Security upon the issuance of an Exchange Security (as defined in the Indenture) in exchange for this Security shall cease to be payable to the Holder hereof but such accrued and unpaid interest (including Special interest) shall be payable on the next Interest Payment Date for such Exchange Security.]
[If the Security is not to bear interest prior to Maturity, insert -- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal and any overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest shall be legally enforceable), from the date such amounts are due until they are paid or made available for payment. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal or premium which is not so paid on demand shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on overdue interest shall be payable on demand.)
[If the Securities are subject to redemption, insert - - The Securities are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.]
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This Security does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.
If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Securities may become or may be declared due and payable in the manner and with the effect provided in the Indenture.
Modifications of the Indenture may be made by the Issuer and the Trustee only to the extent and in the circumstances permitted by the Indenture.
[If applicable, insert - - The Securities shall be issued only in fully registered form, without coupons. Securities shall be issued in the form of beneficial interests in one or more global securities in denominations of _________and integral multiples of _________ in excess thereof.
Prior to and at the time of due presentment of this Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.
IN WITNESS WHEREOF, the Issuer has caused this Security to be duly executed.
| Dated: | |||
| SUZANO NETHERLANDS B.V. | |||
| By: | |||
| Name: | |||
| Title: | |||
[Form of Reverse of Global Security]
This Security is one of a duly authorized issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of [•], 2025 (herein called the “Indenture” which term shall have the meaning assigned to it in such instrument), between the Issuer and The Bank of New York Mellon, as Trustee (herein called the “Trustee,” which term includes any other successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert, limited in aggregate principal amount to U.S.$__________].
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[If applicable, insert-- The Securities of this series are subject to redemption upon not less than 15 days’ notice by mail, [if applicable, insert -- at any time [if applicable, insert -- on or after ________, _____], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert -- on or before ____________, ____%, and if redeemed] during the 12-month period beginning _________ of the years indicated,
| Redemption | Redemption | ||
| Year | Price | Year | Price |
and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of any such redemption with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to redemption upon not less than 15 days’ notice by mail, at any time [if applicable, insert -- on or after_______, ___________], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption (expressed as percentages of the principal amount, with the amount in excess of 100% of the principal amount being additional interest) set forth in the table below: If redeemed during the 12-month period beginning_____________ of the years indicated,
| Year | Redemption Price For Redemption |
and thereafter at a Redemption Price equal to ____% of the principal amount, together in the case of any such redemption with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may not, prior to __________, redeem any Securities of this series as contemplated by [If applicable, insert -- Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than ____% per annum.]
[if applicable, insert -- The Securities of this series may be redeemed at the option of the Company, in whole but not in part, upon not less than 15 nor more than 60 days’ notice given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued and unpaid interest to the date fixed for redemption if as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Company is incorporated (or in the case of a successor Person to the Company, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after ____________ (or, in the case of a successor Person to the Company, the date on which such successor Person became such pursuant to the applicable provision of the Indenture).]
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[If applicable, insert -- The Securities may also be redeemed in whole but not in part upon not less than 15 nor more than 60 days’ notice given as provided in the Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if the Person formed by a consolidation of the Company or into which the Company is merged or to which the Company conveys, transfers or leases its properties and assets substantially as an entirety is required to pay a Holder Additional Amounts in respect of any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease.]
[If applicable, insert -- the Redemption Price of the Securities of this series shall be equal to the applicable percentage of the principal amount at Stated Maturity set forth below:
| If Redemption During the 12-Month Period Commencing |
Redemption Price |
together with, in each case (except if the Redemption Date shall be a __________), an amount equal to the applicable Redemption Price multiplied by a fraction the numerator of which is the number of days from but not including the preceding _______________ to and including the Redemption Date multiplied by the difference between the Redemption Price applicable during the 12 months beginning on the _________________ following the Redemption Date (or, in the case of a Redemption Date after ___________, 100%) and the Redemption Price applicable on the Redemption Date and the denominator of which is the total number of days from but not including the _________________ preceding the Redemption Date to and including the next succeeding ____________. The Company will also pay to each eligible Holder, or make available for payment to each such Holder, on the Redemption Date any additional interest (as set forth on the face hereof) resulting from the payment of such Redemption Price.]
[If applicable insert -- The Redemption Price of the Securities of this series either in the event of certain changes in the tax treatment or in an event of default would include, in addition to the face amount of the Security, an amount equal to the Original Issue Discount accrued since the issue date. Original Issue Discount (the difference between the Issue Price and the Principal Amount at Maturity of the Security), in the period during which a Security of this series remains outstanding, shall accrue at __% per annum, on a semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day months, commencing on the issue date of this Security.]
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[If applicable, insert -- Notice of redemption will be given by mail to Holders of Securities of this series, not less than 15 days nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture. Such notice may at the Company’s option be subject to the satisfaction of one or more conditions precedent, and it may be rescinded or the applicable redemption date delayed in the event that any or all such conditions shall not have been satisfied by the applicable redemption date. Any conditions precedent shall be described in such notice.]
[If the Security is subject to redemption of any kind, insert -- In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable insert: The Securities are the Company’s unsecured obligations [and will be subordinated in right of payment to all of the Company’s existing and future senior indebtedness (as such term is defined in the [supplemental indenture] [Board Resolution or other document evidencing an Authorization] authorizing this series of Securities)] and effectively subordinated to all existing and future Debt and other liabilities of its subsidiaries.]
[If applicable, insert -- The Indenture contains provisions for defeasance at any time of [the entire indebtedness on this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case,] upon compliance with certain conditions set forth in the Indenture.)
[If applicable, insert -- Subject to and upon compliance with the provisions of the Indenture, the Holder of this Security is entitled, at his option, at any time after ________________, to [convert] [exchange] this Security into [Describe Securities and conversion mechanics].]
[If applicable, insert -- In the event of conversion of this Security in part only, a new Security or Securities of this series and of like tenor for the unconverted portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to -- insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the applicable issuer’s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
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[If applicable, insert - - If any deduction or withholding for any present or future taxes, assessments or other governmental charges of Brazil or the Netherlands (or any political subdivision or taxing authority thereof or therein) (each a “Taxing Jurisdiction”) shall at any time be required by such Taxing Jurisdiction in respect of any amounts to be paid by the Company under the Securities, the Company will pay to the Holder of this Security such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled (“Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:
(1) any taxes, levies, assessments or other governmental charges that would not have been so withheld or deducted but for the existence of any present or former connection between the Holder or beneficial owner of such Security (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a partnership, a limited liability company or a corporation) and the Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Security or enforcement of rights and the receipt of payments with respect to the Security;
(2) any taxes, levies, assessments or other governmental charges imposed on, or measured by, net income;
(3) any taxes, levies, assessments or other governmental charges that would not have been so withheld or deducted but for the failure by such Holder or the beneficial owner of such Security, or, in the case of amounts payable to the Trustee, the Trustee (i) to make a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled, or (ii) to comply with any certification, identification or other reporting requirements concerning its nationality, residence, identity or connection with the Taxing Jurisdiction, if such compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the tax, levy, deduction or other governmental charge; provided that, in no event shall such Holder’s, beneficial owner’s, or Trustee’s requirement to make a valid and legal claim for exemption from or reduction of such taxes require such Holder, beneficial owner or the Trustee to provide materially more onerous information, documents or other evidence than comparable reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as U.S. IRS Forms W-8 or W-9 or any comparable successor forms);
(4) Security presented for payment more than 30 calendar days after the Company has made available to such Holder a payment under the Securities and this Indenture, except to the extent the Holder would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30 calendar day period;
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(5) any estate, inheritance, gift, value added, Financial Transactions Tax, use or sales taxes or any similar taxes, assessments or other governmental charges;
(6) any withholding or deduction that the Holder or beneficial owner of the Security would have been able to avoid by taking reasonable measures available to such Holder or beneficial owner;
(7) any taxes, levies, assessments or other governmental charges that are payable other than by deduction or withholding;
(8) any taxes, levies, assessments or other governmental charges payable pursuant to FATCA;
(9) where the Company is required to make such withholding pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021); or
(10) any combination of the items above.
nor shall Additional Amounts be paid with respect to any payment in respect of any Security to any Holder or beneficial owner who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of Brazil or the Netherlands (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the Holder or beneficial owner, as the case may be, of such Security.
Unless the context otherwise requires, the Original Securities (as defined in the Indenture) of this series and the Exchange Securities (as defined in the Indenture) of this series shall constitute one series for all purposes (other than, unless specified otherwise, U.S. federal income tax purposes) under the Indenture, including without limitation, amendments, waivers and redemptions.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
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As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered indemnity or security satisfactory to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal [(and premium, if any)], interest or any Additional Amount on this Security on or after the respective due dates expressed herein [If applicable insert -- or to a suit instituted by the Holder hereof for the enforcement of the right to convert this Security or receive Securities upon conversion or exchange in accordance with the Indenture].
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed or to convert or exchange this Security as provided in the Indenture.
The Securities of this series are issuable only in registered form without coupons in denominations of _________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company or the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
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All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
[If applicable, insert - -
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be U.S.$ _____________. The following decreases/increases in the principal amount of this Security have been made:
| Date of Decrease/Increase | Decrease in Principal Amount | Increase in Principal Amount | Total Principal Amount Following Such Decrease/Increase | Notation Made by or on Behalf of Trustee | ||||
Section 2.03. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS CERTIFICATE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. [If applicable, insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF [name of registered holder ], OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [name of registered holder], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),] ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, [name of registered holder], HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.
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Section 2.04. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
Dated:
| The Bank of New York Mellon As Trustee |
||
| By: | ||
| Authorized Officer | ||
Article Three
THE SECURITIES
Section 3.01. Amount Unlimited: Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution or other document evidencing an Authorization of the Company and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, the terms of the Securities of such series, including (as applicable) and without limitation:
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.06 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder) (including any provision for the offering of additional Securities of the series beyond any such limit upon the aggregate principal amount of Securities of such series);
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(3) whether the Securities of the series will be issued at par, at a premium or at discount or as an Original Issue Discount Security;
(4) whether the Securities will constitute subordinated obligations of the Company and, if so, the terms of such subordination;
(5) whether the Securities will be secured obligations of the Company;
(6) whether Securities of the series in a form other than as Global Securities, whether any Securities of the series are to be issuable initially as Temporary Regulation S Securities and whether any Securities of the series are to be issuable as Permanent Regulation S Securities and, if so, whether beneficial owners of interests in any such Permanent Regulation S Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 3.05;
(7) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest the manner in which, any interest on any Security of the series shall be payable, if other than by wire transfer in same-day funds to the Holder;
(8) the date or dates on which the principal of the Securities of the series is payable;
(9) the rate or rates at which the Securities of the series shall bear interest or the method by which such rate shall be determined, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any interest payable on any Global Securities on any Interest Payment Date;
(10) the place or places where, subject to the provisions of Section 1.01, the principal of and any premium and interest on Securities of the series shall be payable, any Global Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange or conversion and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(11) other than with respect to any redemption of Securities pursuant to Section 11.08, the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company (including the period following the date referred to in Section 11.08) and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(12) other than with respect to any redemption of Securities pursuant to Section 11.08, the obligation, if any, of the Company to redeem or purchase any Securities of the series, if applicable, at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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(13) the terms and conditions for conversion or exchange of Securities into equity securities of the Company (including, if applicable, the rights, preferences and privileges of such equity securities), and the terms of any additional redemption rights of the Company relating to such terms and conditions for conversion or exchange, whether any such equity securities may be evidenced by American Depositary Receipts and whether such security is convertible or exchangeable into another security;
(14) the denominations in which any Securities of the series shall be issuable if other than denominations of U.S.$1,000 and any integral multiple thereof;
(15) the applicable rate on Defaulted Interest;
(16) the currency, currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in Section 1.01;
(17) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(18) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities of such series are stated to be payable, the currency, currencies or currency units in which the principal of and any premium and interest on Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(19) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(20) the application, if any, of Sections 13.01, 13.02 or 13.03 or both such Sections to the Securities of the series and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(21) if Additional Amounts pursuant to Section 10.10 will not be payable by the Company;
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(22) if the principal amount payable at the Stated Maturity of any Securities of the series is not determinable as of one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any other purpose hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date (or, in any such case, the manner in which such principal amount shall be determined);
(23) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.03 and, if different from those set forth in Clause (2) of the last paragraph of Section 3.05, any circumstances in which Securities issued upon any exchange may be registered in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(24) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(25) any addition to, removal of or change in the covenants set forth in Article Ten which applies to Securities of the series;
(26) whether the Securities of the series may be exchanged for Exchange Securities pursuant to an Exchange Offer or otherwise in authorized denominations in exchange for a like principal amount of Original Securities of the same series, all in accordance with the terms of this Indenture and the terms of such security;
(27) whether the Securities are Restricted Securities and Regulation S Securities, or SEC Registered Securities;
(28) whether Add On Notes will be permitted; and
(29) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(5)).
Unless the context otherwise requires, any Original Securities of a series and any Exchange Securities of such series shall constitute one series for all purposes (other than, unless specified otherwise, U.S. federal income tax purposes) under this Indenture, including without limitation, amendments, waivers or redemptions.
If any of the terms of the Securities of a series are established by action taken pursuant to an Authorization of the Company, a copy of an appropriate record of such action shall be certified by any Authorized Representative, as the case may be, each delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.
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Section 3.02. Denominations.
Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, any Securities of a series shall be issuable in minimum denominations of U.S.$1,000 and any integral multiple thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any Authorized Representative. The signature of any such Authorized Representative may be manual or facsimile. Securities bearing the manual or facsimile signatures of individuals who were at any time a proper Authorized Representative shall bind the Company notwithstanding that such individuals or any of them have ceased to hold such positions prior to the authentication and delivery of such Securities or did not hold such positions at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company to the Trustee for authentication, together with an Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Order shall authenticate and deliver such Securities.
If the forms or terms of the Securities of the series have been established in or pursuant to one or more Authorizations as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating,
(1) that such forms or terms have been established in conformity with the provisions of this Indenture;
(2) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(3) that all conditions precedent to the authentication and delivery of the Notes have been complied with.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised in writing by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability based upon the written advice of counsel.
The Trustee shall not be required to authenticate the Securities of any series if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
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Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual or electronic signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04. Outstanding Securities.
(a) Securities outstanding at any time (“Outstanding Securities”) are all Securities authenticated by the Trustee except for those cancelled by it pursuant to Section 3.09 hereof, those delivered to the Trustee for cancellation or surrendered for transfer or exchange, those reductions in the interest in a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section 3.04 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
(b) If a Security is replaced pursuant to Section 3.05, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser.
(c) If any Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date money sufficient to pay all principal, premium, interest and Additional Amounts (if any) payable on that date with respect to the Securities (or portions thereof) to be redeemed or maturing, as the case may be, then on and after that date, such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
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Section 3.05. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the directors executing such Securities may determine, as evidenced by their execution of such Securities. A Temporary Regulation S Security shall be delivered only in compliance with the conditions set forth in Section 3.03 and this Section 3.04.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
If Temporary Regulation S Securities of any series are issued, any such Temporary Regulation S Security shall, unless otherwise provided therein, be delivered to DTC or its nominee or the Common Depositary, in each case, for the benefit of the Euroclear Operator and Clearstream, Luxembourg, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such Temporary Regulation S Security of a series (the “Exchange Date”), the Company shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of such Temporary Regulation S Security executed by the Company. On or after the Exchange Date, such Temporary Regulation S Security shall be surrendered by DTC or its nominee or the Common Depositary, as the case may be, to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities of that series without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such Temporary Regulation S Security a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such Temporary Regulation S Security to be exchanged; provided however, that upon such presentation by DTC or its nominee or the Common Depositary, such Temporary Regulation S Security must be accompanied by a certificate dated the Exchange Date or a subsequent date and signed by the Euroclear Operator as to the portion of such Temporary Regulation S Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream, Luxembourg as to the portion of such Temporary Regulation S Security held for its account then to be exchanged, each in the form set forth in Section 3.15(2). The definitive Securities to be delivered in exchange for any such Temporary Regulation S Security shall, unless otherwise specified in the Temporary Regulation S Security, be in or in the form of Permanent Regulation S Securities.
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Unless otherwise specified in the Temporary Regulation S Security, the interest of a beneficial owner of Securities of a series in a Temporary Regulation S Security shall be exchanged on the Exchange Date for interest in a permanent global registered Security (a “Permanent Regulation S Security”) of the same series and of like tenor unless, on or prior to the Exchange Date, such beneficial owner has not delivered to the Euroclear Operator or Clearstream, Luxembourg, as the case may be, a certificate in the form set forth in Section 3.15(1) dated no earlier than the Certification Date, copies of which certificate shall be available from the office of the Euroclear Operator and Clearstream, Luxembourg, the Trustee, and any Authenticating Agent appointed for such series of Securities and each Paying Agent and after the Exchange Date, the interest of a beneficial owner of Securities of a series in a Temporary Regulation S Security shall be exchanged for an interest in a Permanent Regulation S Security of the same series and of like tenor following such beneficial owner’s delivery to the Euroclear Operator or Clearstream, Luxembourg, as the case may be, of a certificate in the form set forth in Section 3.15(1)dated no earlier than the Certification Date. Unless otherwise specified in such Temporary Regulation S Security, any such exchange shall be made free of charge to the beneficial owners of such Temporary Regulation S Security.
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, interest payable on a Temporary Regulation S Security on an Interest Payment Date for Securities of such series shall be payable to the Euroclear Operator and Clearstream, Luxembourg on such Interest Payment Date only upon delivery by the Euroclear Operator or Clearstream, Luxembourg to the Trustee of a certificate or certificates in the form set forth in Section 3.15(2), for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such Temporary Regulation S Security on such Interest Payment Date and who have each delivered to the Euroclear Operator or Clearstream, Luxembourg, as the case may be, a certificate in the form set forth in Section 3.15(1). Any interest so received by the Euroclear Operator and Clearstream, Luxembourg and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 10.08.
Section 3.06. Registration, Registration of Transfer and Exchange.
(1) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. Such Security Register shall distinguish between Original Securities and Exchange Securities.
Except as otherwise provided in this Section 3.06(1), upon surrender for registration of transfer of a Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
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Subject to Section 3.06(2), at the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like tenor and aggregate principal amount upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company evidencing the same debt (subject to the provisions, if any, in the Original Securities regarding payment of Special Interest) and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
In the event that the Company delivers to the Trustee a copy of an Officers’ Certificate certifying that a registration statement under the Securities Act with respect to an Exchange Offer relating to a particular series of Securities, if any such Exchange Offer is contemplated for such series, has been declared effective by the Commission and that the Company has offered Exchange Securities of such series to the Holders in accordance with the Exchange Offer, the Trustee shall exchange, upon request of any Holder, such Holder’s Securities for Exchange Securities upon the terms set forth in the Exchange Offer.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 3.04, 9.06 or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Registered Securities of any series during a period beginning at the opening of business 15 days before any selection of Securities of that series to be redeemed and ending at the close of business on the day of the mailing of the relevant notice of redemption or (ii) to register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part.
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The provisions of Clauses (a), (b), (c) and (d) below shall apply only to registered Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Subject to Clause (d) below, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(c) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Sections 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
(d) Except as provided below, owners of beneficial interests in Global Securities will not be entitled to receive Registered Securities in their names (“Certificated Securities”). Certificated Securities shall be issued to all owners of beneficial interests in a Global Note in exchange for such interests if:
(i) The Depositary notifies the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary ceases to be a clearing agency registered under the Exchange Act, at a time when such Depositary is required to be so registered in order to act as depositary, and in each case, and a successor depositary is not appointed by the Company within 90 days of such notice,
(ii) The Depositary executes and delivers to the Trustee and the Security Registrar a written notice stating that such Global Note shall be so exchangeable, or
(iii) an Event of Default has occurred and is continuing and the Security Registrar has received a request from the Depositary or the Security Registrar and the Company have received a request from the Trustee.
In connection with the exchange of an entire Global Security for Certificated Securities pursuant to this Clause (d), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon receipt of an Order the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Certificated Securities of authorized denominations.
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(e) Members of, or participants in, DTC or Euroclear Operator and Clearstream, Luxembourg, as the case may be (“Agent Members”), shall have no rights under this Indenture with respect to any Global Security held on their behalf by DTC or by the Common Depositary under such Global Security, and DTC or the Common Depositary, as the case may be, may be treated by the Company, the Trustee, the Paying Agent and the Security Registrar and any of their agents as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Security Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished by DTC or the Common Depositary or impair, as between DTC or Euroclear Operator and Clearstream, Luxembourg and their respective Agent Members, the operation of customary practices governing the exercise of the rights of an owner of a beneficial interest in any Global Security. The registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.
(f) None of the Company, the Trustee or any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
(2) Certain Transfers and Exchanges.
(a) The following provisions shall apply with respect to any proposed transfer of an interest in a Restricted Global Security: If (i) the owner of a beneficial interest in a Restricted Global Security wishes to transfer such interest (or portion thereof) to a Non-U.S. Person pursuant to Regulation S and (ii) such Non-U.S. Person wishes to hold its interest in the Security through a beneficial interest in the Regulation S Global Security, (x) upon receipt by the Depositary and Security Registrar of:
(i) instructions from the Holder of the Restricted Global Note directing the Depositary and Security Registrar to credit or cause to be credited a beneficial interest in the Regulation S Global Security equal to the principal amount of the beneficial interest in the Restricted Global Security to be transferred, and
(ii) a Restricted Securities Certificate in the form of Annex B from the transferor,
and (y) subject to the rules and procedures of the Depositary, the Depositary and Security Registrar shall increase the Regulation S Global Security and decrease the Restricted Global Security by such amount in accordance with the foregoing.
(b) If the owner of an interest in a Regulation S Global Security wishes to transfer such interest (or any portion thereof) to a “qualified institutional buyer” as defined by and pursuant to Rule 144A prior to the expiration of the Restricted Period therefor, (x) upon receipt by the Depositary and Security Registrar of:
(i) instructions from the Holder of the Regulation S Global Security directing the Depositary and Security Registrar to credit or cause to be credited a beneficial interest in the Restricted Global Note equal to the principal amount of the beneficial interest in the Regulation S Global Security to be transferred, and
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(ii) a Restricted Securities Certificate in the form of Annex B duly executed by the transferor,
and (y) in accordance with the rules and procedures of the Depositary, the Depositary and Security Registrar shall increase the Restricted Global Security and decrease the Regulation S Global Security by such amount in accordance with the foregoing.
(c) Other Transfers. Any transfer of Restricted Securities or Regulation S Securities not described above (other than a transfer of a beneficial interest in a Global Security that does not involve an exchange of such interest for a Certificated Security or a beneficial interest in another Global Security, which must be effected in accordance with applicable law and the rules and procedures of the Depositary, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Security Registrar of such opinions of counsel, certificates and/or other information reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with paragraph (3) of this Section 3.06.
(3) Securities Act Legends. Rule 144A Securities and their Successor Securities shall bear a Restricted Securities Legend, and Initial Regulation S Securities and their Successor Securities shall bear a Regulation S Legend, subject to the following:
(a) subject to the following Clauses of this Section 3.06(3), a Security or any portion thereof which is exchanged, upon registration of transfer or otherwise, for a Registered Global Security or any portion thereof shall bear the Securities Act legend borne by such Registered Global Security while represented thereby;
(b) subject to the following Clauses of this Section 3.06(3), a new Registered Security which is issued in exchange for another Security or any portion thereof, upon registration of transfer or otherwise, shall bear the Securities Act legend borne by such other Security, provided that, if such new Registered Security is required to be issued in the form of a Restricted Security, it shall bear a Restricted Securities Legend and, if such new Registered Security is so required to be issued in the form of a Regulation S Security, it shall bear a Regulation S Legend;
(c) any SEC Registered Securities shall not bear a Securities Act legend;
(d) after the applicable restricted period prescribed by Rule 144(d) under the Securities Act, a new Registered Security which does not bear a Securities Act legend may be issued in exchange for or in lieu of a Registered Security or any portion thereof which bears such a legend if the Trustee has received an Unrestricted Securities Certificate, satisfactory to the Trustee and duly executed by the Holder of such legended Security or his attorney duly authorized in writing, and after such date and receipt of such certificate, the Trustee shall authenticate and deliver such a new Registered Security in exchange for or in lieu of such other Registered Security as provided in this Article Three;
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(e) a new Registered Security which does not bear a Securities Act legend may be issued in exchange for or in lieu of a Registered Security or any portion thereof which bears such a legend if, in the Company’s judgment, placing such a legend upon such new Security is not necessary to ensure compliance with the registration requirements of the Securities Act, and the Trustee, at the direction of the Company, shall authenticate and deliver such a new Security as provided in this Article Three; and
(f) notwithstanding the foregoing provisions of this Section 3.06(3), a Successor Security of a Security that does not bear a particular form of Securities Act legend shall not bear such form of legend unless the Company has reasonable cause to believe that such Successor Security is a “restricted security” within the meaning of Rule 144 under the Securities Act, in which case the Trustee, at the direction of the Company, shall authenticate and deliver a new Security bearing a Restricted Securities Legend in exchange for such Successor Security as provided in this Article Three.
Section 3.07. Paying Agent to Hold Money in Trust.
(a) The Company hereby acknowledges and confirms that it is and at all times shall remain absolutely and unconditionally obligated to pay all amounts due and owing hereunder, as the same shall become due and owing. All payments of principal, premium and interest required to be made by the Company hereunder (including any Additional Amounts) shall be made in U.S. dollars, pursuant to the terms hereof, by the Company to the Paying Agent to the extent appointed hereunder or to the Trustee by 3:00 p.m. (New York City time) on each the Business Day prior to each Interest Payment Date, Redemption Date, purchase date, Change of Control Payment Date or maturity date on any Securities, unless otherwise provided for in this Indenture. The Paying Agent shall hold in trust, for the benefit of the Holders or the Trustee, all money held by such Paying Agent for the payment of principal, premium or interest on the Securities. The Company at any time may require the Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by it. Upon complying with this Section 3.07, the Paying Agent shall have no further liability for the money delivered to the Trustee.
(b) The receipt by the Paying Agent or the Trustee from the Company of each payment of principal, interest and/or other amounts due in respect of the Securities in the manner specified herein and on the date on which such amount of principal, interest and/or other amounts are then due, shall be valid and effective to satisfy and discharge all the obligations of the Company herein and under the Securities to make such payment to the Holders on the due date thereof.
Section 3.08. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount bearing a number not contemporaneously outstanding, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount bearing a number not contemporaneously outstanding.
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Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee connected therewith).
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.09. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid, in the case of definitive Registered Securities, to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest and, at the option of the Company, may be paid by check mailed to the address of the Person as it appears in the Security Register or, in the case of Global Securities, by wire transfer of same-day funds to the Holder.
Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than 15 days and not less than ten days prior to the date of the proposed payment and not less than ten days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than ten days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
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(2) The Company may make payment of any Defaulted interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such predecessor Security.
Section 3.10. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Sections 3.04, 3.05 and 3.07) any interest on such Security, and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.11. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures unless otherwise directed by an Order.
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Section 3.12. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.13. CUSIP or ISIN Numbers.
The Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change in the CUSIP or ISIN numbers.
Section 3.14. Open Market Purchases .
The Company or any of its Affiliates may at any time purchase Securities in the open market or otherwise at any price.
Section 3.15. Add On Notes.
Unless otherwise provided pursuant to Section 3.01, the Company may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional notes (“Add On Notes”) having terms and conditions identical to those of any other series of Outstanding Securities issued under this Indenture, except that Add On Notes:
(1) may have a different issue date from such other series of Outstanding Securities;
(2) may have a different amount of interest payable on the first Interest Payment Date after issuance than is payable on such other series of Outstanding Securities;
(3) may have terms specified pursuant to the Board Resolution or other document evidencing an Authorization or in a supplemental indenture for such Add On Notes making appropriate adjustments to the terms of this Indenture applicable to such Add On Notes in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any Registration Rights Agreement applicable to such Add On Notes, which are not adverse in any material respect to the Holder of any such series of Outstanding Securities (other than such Add On Notes); and
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(4) may be entitled to Step-Up interest not applicable to such other series of Outstanding Securities and may not be entitled to such Step-Up interest applicable to such other series of Outstanding Securities.
Section 3.16. Forms of Certification .
(1) Whenever any provision of this Indenture contemplates that certification be given by a beneficial owner of a portion of the Temporary Regulation S Security, such certification shall be provided substantially in the form of the following certificate, with only such changes as shall be approved by the Company:
CERTIFICATE
SUZANO NETHERLANDS B.V.
Company
[Title of Securities]
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States person(s)”), (ii) are owned by United States person(s) that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-l2(c)(l)(v)) (“financial institutions”) purchasing for their own account or for resale, or (b) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise the Company or its agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, if the owner of the Securities is a United States or foreign financial institution described in Clause (iii) above (whether or not also described in Clause (i) or (ii)) this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, “United States” means the United States of America (including the States and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
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We undertake to advise you by tested telex if the above statement is not correct on the date on which you intend to submit your certificate relating to such Securities to the Trustee, and in the absence of any such notification it may be assumed that this certificate applies as of such date.
This certificate excepts and does not relate to U.S.$ ___of which interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities cannot be made until we do so certify.
We understand that this certificate is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceedings.
Dated:
By: ________________
As, or as agent for,
the beneficial owner(s) of
the Securities to which this
certificate relates”;
(2) Whenever any provision of this Indenture contemplates that certification be given by DTC (or its nominee), the Euroclear Operator or Clearstream, Luxembourg in connection with the exchange of a Temporary Regulation S Security for a Permanent Regulation S Security, such certification shall be provided substantially in the form of the following certificate, with only such changes as shall be approved by the Company:
CERTIFICATION
SUZANO NETHERLANDS B.V.
Company
[Title of Securities]
(the “Securities”)
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially to the effect set forth in the Indenture dated as of [•], 2025, ______ principal amount of the above-captioned Securities (i) is owned by Persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States persons”), (ii) is owned by United States persons that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section l.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Company or its agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7))), and to the further effect that United States or foreign financial institutions described in Clause (iii) above (whether or not also described in Clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a Person within the United States or its possessions.
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As used herein, “United States” means the United States of America (including the States and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the Temporary Regulation S Security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any Interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws in the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated:__________
| Yours faithfully, | ||
| THE DEPOSITARY TRUST COMPANY | ||
| or | ||
| EUROCLEAR BANK S.A./N.V., as operator of the Euroclear System | ||
| or | ||
| Clearstream Banking, S.A., Luxembourg | ||
| By: | ||
| Name: | ||
| Title: | ||
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Article Four
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture and the Securities of any series shall upon Order of the Company cease to be of further effect (except as to any surviving rights of registration of transfer or exchange or conversion of such Securities herein expressly provided for, and any right to receive Additional Amounts as provided in Section 10.05) with respect to any series of Securities, and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such series of Securities and the Securities of such series, when
(1) either
(a) all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.08) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
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(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Company to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to Subclause (B) of Clause (l) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.08 shall survive.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.08, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust (without liability to the Holders for interest or investment) and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with or received by the Trustee.
Section 4.03. Repayment to Company.
(a) The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money or Securities held by them at any time.
(b) Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest and Additional Amounts, if any, that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look only to the Company and not to the Trustee or the Paying Agent for payment as general creditors.
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Article Five
REMEDIES
Section 5.01. Events of Default.
“Event of Default,” wherever used herein with respect to the Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
1. The Company shall fail to make any payment in respect of principal on any of the Securities of the series whether on the Stated Maturity (as the same may be extended as permitted hereunder), upon redemption or prior to the Maturity or otherwise in accordance with the terms of the Securities of the series and this Indenture, non-payment of which shall continue for a period of three calendar days and the Trustee shall not have otherwise received such amounts from amounts on deposit, from Suzano under Section 12.01 or otherwise by the end of such three calendar day period;
2. The Company shall fail to make any payment in respect of any interest or other amounts due on or with respect to the Securities of the series (including Additional Amounts, if any) in accordance with the terms of the Securities of such series and this Indenture, non-payment of which shall continue for a period of 30 calendar days and the Trustee shall not have otherwise received such amounts from amounts on deposit, from Suzano under Section 12.01 or otherwise by the end of such 30 calendar day period;
3. The Company, or Suzano in case of a series of Securities guaranteed by Suzano, shall fail to perform, or breach, any term, covenant, agreement or obligation in respect of the Securities of the series issued under this Indenture or in a Supplemental Indenture , and such failure (other than any failure to make any payment under Section 12.01, for which there is no cure) is either incapable of remedy or continues for a period of 60 calendar days after there has been received by the Company or Suzano from the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
4. The maturity of any Debt of the Company or Suzano or any Material Subsidiary thereof in a total aggregate principal amount of U.S.$125,000,000 or more is accelerated in accordance with the terms of that Debt, it being understood that prepayment or redemption by the Company or Suzano or any Material Subsidiary thereof of any Debt is not acceleration for this purpose;
5. One or more final and non-appealable judgments or orders for the payment of money are rendered against the Company, Suzano or any of its Material Subsidiaries and are not paid or discharged, and there is a period of 60 consecutive days following entry of the final and non-appealable judgment or order that causes the aggregate amount for all such final and non-appealable judgments or orders outstanding and not paid or discharged against all such Persons to exceed U.S.$125,000,000 or the equivalent thereof at the time of determination (in excess of amounts which any insurance carriers have agreed to pay under applicable policies) during which a stay of enforcement, by reason of a pending appeal or otherwise, is not in effect;
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6. Proceedings are initiated against the Company or Suzano or any Material Subsidiary thereof under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, and any such proceeding is not dismissed or stayed within 60 days after the entering of such proceeding, or an administrator, receiver, administrador judicial, liquidator, custodian, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official), excluding in any event a restructuring expert (herstructureringsdeskundige) or an observer (observator), is appointed to take possession or control of, or a distress, execution, attachment or sequestration or other process is levied, enforced upon, sued out or put in force against, all or any material part of the undertaking, property, assets or revenues of the Company or Suzano or any Material Subsidiary thereof and is not dismissed or stayed within 60 days;
7. The Company or Suzano or any Material Subsidiary thereof commences voluntarily or consents to judicial, administrative or other proceedings relating to it under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, or makes or enters into any composition, recuperação judicial or extrajudicial or other similar arrangement with its creditors, or appoints or applies for the appointment of an administrator, receiver, administrador judicial, liquidator, custodian, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official), excluding in any event a restructuring expert (herstructureringsdeskundige) or an observer (observator), to take possession or control of the whole or any material part of its undertaking, property, assets or revenues, or takes any judicial, administrative or other similar proceeding under any law for a readjustment or deferment of its Debt or any part of it;
8. the Guarantee ceases to be in full force and effect, other than in accordance with the terms of this Indenture, or Suzano denies or disaffirms its obligations under the Guarantee; or
9. Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as any of the events referred to in any of paragraphs (5), (6)or (7) of this Section 5.01.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 5.01(6) or 5.01(7) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of such series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 5.01(6) or 5.01(7) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
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At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(a) all overdue interest on all Securities of that series,
(b) the principal of (and premium and Additional Amounts, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(c) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all other amounts due to the Trustee under Section 6.07; and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03. Collection of Debt and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest or payment of any additional interest or Additional Amounts on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of 7 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable, including Additional Amounts, on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all amounts due the Trustee under Section 6.07.
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If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders of that series of Securities and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of that series of Securities to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of that series of Securities, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding provided, however, that the Trustee may, on behalf of the Holders of Securities, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 6.07, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
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Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest and any Additional Amounts on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Company.
Section 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
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Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Sections 3.04, 3.05 and 3.07) interest and any Additional Amounts on such Security on the respective Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and, if such Security is convertible or exchangeable, to convert or exchange such Security in accordance with this Indenture and to institute suit for the enforcement of such right to convert or to receive Securities upon conversion and such rights shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.
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Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed necessary by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not follow any such direction if doing so would in its reasonable discretion either involve it in personal liability or be unduly prejudicial to Holders of Securities not joining in such direction.
Section 5.13. Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series of the Company and its consequences, except a default
(1) in the payment of the principal of or any premium, interest or Additional Amounts on any Security of such series of the Company, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected, or
(3) in the conversion or exchange of any Security of such series of such Company and the delivery of Securities upon conversion.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess reasonable costs, including reasonable attorney’s fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company, in any suit instituted by the Trustee, in any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or in any suit instituted by any Holder of any Security for the enforcement of the payment of the principal of or any premium or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date) or for the enforcement of any right to convert such Security pursuant to this Indenture.
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Section 5.15. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Company hereby expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Article Six
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
The duties, responsibilities, rights, benefits and protections of the Trustee shall be as specifically set forth in this Indenture and the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee, except as otherwise required by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of gross negligence on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. Notwithstanding the foregoing, the Trustee shall examine such certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture (but need not, and is under no obligation to, confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
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(b) Following the occurrence and continuance of an Event of Default, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(i) This Section 6.01(c) does not limit the effect of Section 6.01(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.12.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to Section 6.01(a), (b) and (c).
(e) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company or Suzano.
(f) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity and/or security against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.01.
Section 6.02. Notice of Defaults.
If a Trust Officer of the Trustee has actual written notice of an Event of Default with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such Event of Default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 5.01(3) with respect to Securities of such series, no such notice to such Holders shall be given until at least 90 days after the occurrence thereof.
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Section 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) Subject to Section 6.01 hereof, the Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document but may, in its discretion, make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company and Suzano, personally or by agent or attorney at the sole cost of and upon a ten-day prior written notice to the Company or Suzano, as the case may be, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or gross negligence.
(e) The Trustee may consult with counsel appointed with due care and the advice or Opinion of Counsel of such counsel with respect to legal matters relating to this Indenture and the Securities shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or such opinion of such counsel.
(f) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default (other than a payment default under Section 5.01(1) or Section 5.01(2) unless a Trust Officer of the Trustee has received written notice of any event which is in fact such a default at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
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(i) The Trustee may request that Suzano and the Company deliver an Officers’ Certificate setting forth the names of the individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(j) The obligations of each agent, custodian and other Person employed to act hereunder are several and not joint. In acting hereunder and in connection with the Securities, such agent, custodian or Person shall act solely as an agent of the Company and will not assume any obligations towards, or relationship of agency or trust for, any of the Securityholders.
(k) The Trustee may conclusively rely and shall be fully protected in acting or refraining to act based upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(l) The Trustee shall not be bound to make any investigation into the facts or matters stated in any Officer’s Certificate, Opinion of Counsel, or any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, appraisal, bond, debenture, note, coupon, security other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company.
(m) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than the requisite majority in aggregate principal amount of the Securities then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole discretion, may determine what action, if any, shall be taken and shall be held harmless and shall not incur any liability for its failure to act until such inconsistency or conflict is, in its opinion, resolved, and absent willful misconduct or gross negligence, none of the Trustee, Security Registrar or Paying Agent shall be liable for acting in good faith on instructions believed by them to be genuine and from the proper party.
(n) The Trustee shall have no duty to inquire as to the performance of the covenants contained herein and shall be entitled to assume that the Company, Suzano and any Subsidiaries are in compliance with the terms of this Indenture.
(o) The Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of minimum denominations imposed under this Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption, purchase or repurchase, as applicable, of any interest in any Securities, but may at its sole discretion, choose to do so.
(p) The permissive rights of the Trustee to take the actions permitted by this Indenture will not be construed as an obligation or duty to do so.
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(q) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any Holders, unless such Holders shall have provided to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(r) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, strikes, work stoppages, accidents, pandemics, civil unrest, local or national disturbance or disaster, any act of terrorism, loss or malfunction of utilities, communications or computer (software and hardware) services or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
Section 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.
Section 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on or investment of any money received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall be agreed in writing from time to time for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its written request for all reasonable fees, costs, indemnities, expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except to the extent that any such fees, costs, indemnities, expenses, disbursements or advances may be attributable to its gross negligence or willful misconduct; and
(3) to fully indemnify the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any and all loss, liability, damage, claim or expense arising out of or in connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder except to the extent that any such loss, liability or expense may be attributable to its gross negligence or willful misconduct.
The Trustee shall have a Lien prior to the Holders of Securities to payment of amounts due it under this Section 6.07 from funds held by the Trustee hereunder. “Trustee” for purposes hereof includes any predecessor trustee, but the gross negligence of any trustee shall not affect the rights of any other trustee hereunder.
If the Trustee incurs expenses or renders services after the occurrence of an Event of Default specified in Sections 5.01(6), 5.01(7), 5.01(8) or 5.01(9), the reasonable expenses and the compensation for the services will be intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any other applicable law.
The provisions of this Section shall survive the resignation or removal of the Trustee, the repayment of the Securities and the termination of this Indenture.
Section 6.08. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
For this purpose, the Trustee shall not be deemed to have a conflicting interest by reason of being Trustee for the Securities of any series and Trustee for the Securities of any other series.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be one and only one Trustee hereunder with respect to the Securities of each series which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least U.S.$50,000,000 and its Corporate Trust Office in the Borough of Manhattan, The City of New York, New York. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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Section 6.10. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
(2) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(3) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. The Trustee so removed may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee if no successor Trustee has been appointed within 30 days of such removal.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove by Board Resolution the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
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(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities of such series and accepted appointment in the manner required by Section 6.11, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to each of the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
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(2) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series of the Company, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series of the Company shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(3) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) and (2) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
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Section 6.13. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial conversion, exchange or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee and a copy of which shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than U.S.$50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| The Bank of New York Mellon As Trustee |
||
| If all of the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series | ||
| By | ||
| As Authenticating Agent | ||
authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having an office in the Place of Payment designated by the Company with respect of such series of Securities.
Article Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, if interest is paid semi-annually, or quarterly, if interest is paid quarterly, not later than 15 days after each Regular Record Date in each year or, if interest is paid annually, not later than 15 days after each Regular Record Date and the date six months subsequent to such Regular Record Date, a list, in such form as the Trustee may reasonably require, as to the names and addresses of the Holders of Securities as of such Regular Record Date, and
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(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, that, for so long as the Trustee shall be Security Registrar, no such list shall be required to be furnished.
Section 7.02. Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders of Securities received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
(2) The rights of the Holders of Securities to communicate with other Holders of Securities with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of any of them shall be held accountable solely by reason of any disclosure of information as to names and addresses of Holders of Securities made pursuant to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
(1) On or about each July 15 following the date hereof, the Trustee shall transmit to Holders of Securities such reports, if any, dated as of the preceding May 15 is concerning the Trustee and its actions under this Indenture as may be required pursuant to Section 3.13(a) of the Trust Indenture Act in the manner provided pursuant to Section 3.13(c) thereof. The Trustee shall also transmit to Holders of Securities such reports, if any, as may be required pursuant to Section 3.13(b) of the Trust Indenture Act at the times and in the manner provided pursuant thereto and to Section 3.13(c) thereof.
(2) A copy of each such report shall, at the time of such transmission to Holders of Securities, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
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Section 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders of Securities, such information, documents and other reports, including financial information and statements and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. For purposes of this Section 7.04, as long as the financial statements or reports are publicly available and accessible electronically by the Trustee, the filing or electronic publication of such financial statements or reports shall comply with the Company's obligation to deliver such statements and reports to the Trustee hereunder. The Company shall provide the Trustee with prompt written notification at such time that the Company becomes or ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Company’s financial statements or reports are publicly available and accessible electronically.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice (other than with respect to notice of an Event of Default pursuant to Section 10.02 hereof) of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 7.05. Calculation of Original Issue Discount.
With respect to each series treated for U.S. federal income tax purposes as issued with original issue discount, the Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities of such series as of the end of such year and (ii) such other reasonably requested information, if any, relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time. The Trustee shall not be obligated to recalculate, recompute or reconfirm such calculation.
Article Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Limitation on Consolidation, Merger, Sale or Conveyance.
Neither the Company nor the Guarantor shall, without the consent of the Holders of a majority in aggregate principal amount of the Securities in accordance with this Indenture, consolidate with or merge into any other corporation or convey or transfer all or substantially all of its properties and assets to any other Person, unless:
(1) the Person formed by such consolidation or into which the Company or Guarantor is merged or the Person which acquires by conveyance, transfers or leases all or substantially all of the properties and assets of the Company or the Guarantor (the “Successor Person”) shall expressly assume, by a supplemental indenture pursuant to this Indenture, the due and punctual repayment of the principal and interest on all the Securities and all other obligations of the Company or the Guarantor, as applicable, under the Indenture and the Securities;
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(2) immediately after giving effect to such transaction, no Event of Default with respect to any Security shall have occurred and be continuing;
(3) the Company and the Guarantor have delivered to the Trustee (a) a certificate signed by an executive officer of the Company and an executive officer of the Guarantor stating that such consolidation, merger, conveyance or transfer and such supplemental indenture, if any, comply with this Article and that all conditions precedent herein provided, which relate to such transaction, have been complied with and (b) an Opinion of Counsel stating that such consolidation, merger, conveyance or transfer and such supplemental indenture, if any, comply with this Article and that all conditions herein provided, which relate to such transaction, have been complied with;
(4) the Successor Person shall expressly agree to withhold against any tax, duty, assessment or other governmental charge thereafter imposed or levied by Brazil, the Netherlands, a Successor Jurisdiction or any political subdivision or authority thereof or therein having power to tax as a consequence of such consolidation, merger, conveyance or transfer; and
(5) the Successor Person’s assumption of obligations includes the obligation to pay the Additional Amounts described in Section 10.10 “Additional Amounts”; provided that the definition of “Taxing Jurisdiction” shall be amended, if applicable, to include the applicable Successor Jurisdiction.
Section 8.02. Successor Substituted.
Upon any consolidation, merger, conveyance, or transfer in accordance with Section 8.01, the Successor Person shall succeed to, and be substituted for, and may exercise every right and power of the Company or the Guarantor, as applicable, under the Securities with the same effect as if the Successor Person had been named as the issuer or guarantor of the Securities herein, and, in the case of an asset, transfer or other disposition, the predecessor Company or Guarantor, as applicable, shall be released from all obligations under this Indenture, the Securities and, in the case of a Guarantor, the guarantee.
Article Nine
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities, to evidence the full and unconditional guarantee by another Person, as provided in Section 8.01 hereof, or to add another Company to this Indenture for future issuances; or
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(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(4) to add to or to change any of the provisions of this Indenture to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action shall not adversely affect the Interest of the Holders of Securities of any series in any material respect; or
(5) to provide for any guarantee of any series of Securities, to secure any of the series of Securities or to confirm and evidence the release, termination or discharge of any guarantee of or Lien securing the Securities when such release, termination or discharge is permitted by this Indenture; or
(6) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or
(7) to establish the form or terms of Securities of any series, each as permitted by Section 2.01 and Section 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(2); or
(9) to reduce the conversion price of the Securities of any series other than pursuant to this Indenture; or
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(10) to cure any ambiguity, defect or inconsistency; or
(11) to provide for or confirm the issuance of additional Securities; or
(12) to make any change to conform the provisions contained herein, in any supplemental indenture or in the Securities of any series or the related Guarantee, to the description of the notes and the guarantee contained in the related prospectus, prospectus supplement or similar offering document; or
(13) to make any change that does not adversely affect the rights of the Holders of Securities of any series in any material respect.
Section 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of or any installment of principal of or interest or premium on any Security or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional Amounts pursuant to Section 10.10 (except as contemplated by Section 8.01(1) and permitted by Section 9.01(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or the coin or currency in which, any Security or any premium or interest thereon is payable, or modify or affect in any manner adverse to the interests of the Holders of Securities of any series the conversion or exchange rights of such Securities, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date) or of any such right of conversion or exchange, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this Clause shall not be deemed to require the consent of any Holder of a Security with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 10.09, or the deletion of this proviso, in accordance with the requirements of Section 6.11(2) and Section 9.01(7).
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A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the right under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel each stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent herein and in the Securities to such execution have been satisfied. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby, except as otherwise expressed therein.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities at any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and such securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
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Section 9.07. Substitution of the Company.
The Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as issuer and principal obligor in respect of any series of Securities by the Guarantor (including any successor Guarantor pursuant to Section 8.02) or any wholly owned Subsidiary of the Guarantor (the “Successor Company”), provided that:
(1) the Successor Company shall expressly assume, by an indenture supplemental hereto executed and delivered to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on the Securities of such series and the performance of every covenant of this Indenture on the part of the Company to be performed or observed, and, unless the Successor Company is the Guarantor, the Guarantor shall unconditionally guarantee all of the obligations of such Successor Company under the Securities of such series and the Indenture as so supplemented;
(2) the Successor Company’s assumption of obligations includes the obligation to pay the Additional Amounts described in Section 10.10 “Additional Amounts”; provided that the definition of “Taxing Jurisdiction” shall be amended, if applicable, to include the jurisdiction in which such Successor Company is resident for tax purposes;
(3) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Successor Company as a result of such transaction as having been incurred by the Successor Company at the time of such transaction, no Event of Default with respect to the Securities of such series, and no event which, after notice or lapse of time or both, would become an Event of Default with respect to the Securities of such series, shall have occurred and be continuing; and
(4) the Successor Company has delivered to the Trustee (x) a certificate signed by two executive officers of the Successor Company and (y) an Opinion of Counsel of recognized standing, each stating that the assumption and supplemental indenture comply with this Section 8.4.
Upon any substitution in accordance with Section 9.07, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if the Successor Company had been named as the issuer of the Securities herein, and the Company (including any successor Company pursuant to Section 8.2) shall be released from all obligations under this Indenture and the Securities.
No vote by Holders of the Securities approving any of the actions set forth in this Section 9.07 is required, unless as part of the transaction the Company or the Guarantor make other changes to the applicable indenture requiring approval of Holders of the Securities as set forth in Section 9.02 herein.
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Article Ten
COVENANTS
Section 10.01. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of Holders of each series of Securities that it will duly and punctually pay the principal of and any premium and interest and other amounts (including any Additional Amounts) on the Securities of that series in accordance with the terms of the Securities of that series and this Indenture. The Guarantor shall duly and punctually pay any amounts owed by it under its Guarantee in accordance with the terms of the Securities and this Indenture.
Section 10.02. Maintenance of Office or Agency.
So long as the Securities of any series are Outstanding, the Company and the Guarantor will maintain in the Borough of Manhattan in The City of New York, an office or agency where Securities may be presented or surrendered for payment, where notices to and demands upon the Company or the Guarantor in respect of this Indenture and the Securities of that series may be served. The Company or the Guarantor shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. The Corporate Trust Office of the Trustee shall be such office or agency of the Company, unless the Company shall designate and maintain some other office or agency for one or more of such purposes. If at any time the Company shall fail to maintain any required office or agency or shall fail to furnish the Trustee with the address thereof, all presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company and the Guarantor may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve either the Company or the Guarantor of its obligation to maintain an office or agency in the State of New York for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 10.03. Maintenance of Corporate Existence .
The Company and the Guarantor will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Article Eight and (ii) take all reasonable actions to maintain all rights, privileges, titles to property, franchises, concessions and the like necessary or desirable in the normal conduct of its business, activities or operations; provided, however, that this Section 10.03 shall not require the Company or the Guarantor to maintain any such right, privilege, title to property or franchise, if the Company’s Board of Directors or the Guarantor’s board of directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or the Guarantor, and that the loss thereof is not disadvantageous in any material respect to the Holders; provided further that this Section 10.03 does not prohibit any transaction otherwise permitted by Section 8.01.
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Section 10.04. Ranking.
Each of the Company and the Guarantor will ensure that the Securities of each series will at all times constitute general senior, unsecured and unsubordinated obligations of the Company and the Guarantor, as applicable, and will rank pari passu, without any preferences among themselves, with all of its other present and future unsecured and unsubordinated obligations (other than obligations preferred by statute or by operation of law).
Section 10.05. Statement by Directors as to Default.
The Company (and each other obligor on the Securities of any series) will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof (which, unless the Trustee is notified otherwise, shall be December 31), an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof there is an Event of Default in connection with the performance and observance of any of the terms, provisions and conditions of this Indenture and, if there is such an Event of Default by the Company (or any such obligor), specifying all such Events of Default and the nature and status thereof of which they may have knowledge.
Section 10.06. Provision of Financial Statements and Reports.
In the event that the Company files any financial statements or reports with the SEC or publishes or otherwise makes such statements or reports publicly available in the Netherlands, the United States or elsewhere, the Company will furnish a copy of the statements or reports to the Trustee within 15 calendar days of the date of filing or the date the information is published or otherwise made publicly available. For purposes of this Section 10.06, as long as the financial statements or reports are publicly available and accessible electronically by the Trustee, the filing or electronic publication of such financial statements or reports shall comply with the Company's obligation to deliver such statements and reports to the Trustee hereunder. The Company shall provide the Trustee with prompt written notification at such time that the Company becomes or ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Company’s financial statements or reports are publicly available and accessible electronically.
The Company will provide, together with each of the financial statements delivered pursuant to this Section, an Officers’ Certificate stating (A) that a review of the Company’s activities has been made during the period covered by such financial statements with a view to determining whether the Company has kept, observed, performed and fulfilled its covenants and agreements under this Indenture and (B) that no Event of Default has occurred during such period or, if one or more have actually occurred, specifying all such events and what actions have been taken and will be taken with respect to such Event of Default.
Delivery of these reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of any of those will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
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Section 10.07. Appointment to Fill a Vacancy in Office of Trustee.
The Company or the Guarantor, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint in the manner provided in Section 6.10, a successor Trustee, so that there shall at all times be a Trustee with respect to the Securities.
Section 10.08. Payments and Paying Agents.
The Company will, prior to 3:00 p.m., New York City time, on the Business Day preceding any payment date of the principal of or interest on any series of Securities or other amounts (including Additional Amounts), deposit with the Trustee a sum sufficient to pay such principal, interest or other amounts (including Additional Amounts) so becoming due.
All payments will be subject in all cases to any applicable tax, fiscal or other laws and regulations in any jurisdictions, but without prejudice to the provisions of Section 10.10. For the purposes of the preceding sentence, the phrase “applicable tax, fiscal or other laws and regulations” will include any obligation on the Company to withhold or deduct from a payment pursuant to Section 1471(b) of the Internal Revenue Code of 1986, as amended, or otherwise imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, any regulations thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto (collectively, “FATCA”).
Whenever the Company shall appoint a Paying Agent other than the Trustee with respect to any series of Securities, it will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums received by it as such agent for the payment of the principal of or interest on any Securities (whether such sums have been paid to it by or on behalf of the Company or by any other obligor on the Securities) in trust for the benefit of the Holders or of the Trustee;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities) to make any payment of the principal of or interest on any series of Securities (including Additional Amounts) and any other payments to be made by or on behalf of the Company under this Indenture or the Securities when the same shall be due and payable; and
(3) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure referred to in Clause (2) above.
The Trustee shall arrange with all such Paying Agents for the payment, from funds furnished by the Company to the Trustee pursuant to this Indenture, of the principal of and interest and other amounts due on the Securities (including Additional Amounts).
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If the Company shall act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or interest on such series of Securities, set aside, segregate and hold in trust for the benefit of the Holders of such series of Securities a sum sufficient to pay such principal or interest (including Additional Amounts) so becoming due. The Company will promptly notify the Trustee of any failure to take action.
Anything in this Section 10.08 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a satisfaction and discharge with respect to any series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for such series of Securities by the Company or any Paying Agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section 10.08, to the contrary notwithstanding, the agreements to hold sums in trust as provided in this Section are subject to the provisions of Section 4.02.
The Company agrees to indemnify the Holders against any failure on the part of any Paying Agent to pay, in accordance with the terms hereof, any sum due in respect of any series of Securities on the applicable payment date.
Section 10.09. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company and the Guarantor may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(23), 9.02(2) or 9.01(6) for the benefit of the Holders of Securities of such series or any term, provision or condition set forth in an indenture supplemental hereto, if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the Guarantor and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. The Company or the Guarantor shall provide the Trustee with written notification upon the waiver of any covenant.
Section 10.10. Additional Amounts.
Unless otherwise specified in any Board Resolution of the Company or indenture supplemental hereto establishing the terms of Securities of a series in accordance with Section 3.01, if any deduction or withholding for any present or future taxes, levies, assessments or other governmental charges of the Taxing Jurisdiction shall at any time be required by the Taxing Jurisdiction in respect of any amounts to be paid by the Company of principal of or interest on a Security of any series, the Company will pay to the Holder of a Security of such series such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled (“Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts on account of:
(1) any taxes, levies, assessments or other governmental charges that would not have been so withheld or deducted but for the existence of any present or former connection between the Holder or beneficial owner of such Security (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a partnership, a limited liability company or a corporation) and the Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Security or enforcement of rights and the receipt of payments with respect to the Security;
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(2) any taxes, levies, assessments or other governmental charges imposed on, or measured by, net income;
(3) any taxes, levies, assessments or other governmental charges that would not have been so withheld or deducted but for the failure by such Holder or the beneficial owner of such Security, or, in the case of amounts payable to the Trustee, the Trustee (i) to make a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled, or (ii) to comply with any certification, identification or other reporting requirements concerning its nationality, residence, identity or connection with the Taxing Jurisdiction, if such compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the tax, levy, deduction or other governmental charge; provided that, in no event shall such Holder’s, beneficial owner’s, or Trustee’s requirement to make a valid and legal claim for exemption from or reduction of such taxes require such Holder, beneficial owner or the Trustee to provide materially more onerous information, documents or other evidence than comparable reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as U.S. IRS Forms W-8 or W-9 or any comparable successor forms);
(4) Security presented for payment more than 30 calendar days after the Company has made available to such Holder a payment under the Securities and this Indenture, provided that except to the extent the Holder would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30 calendar day period;
(5) any estate, inheritance, gift, value added, Financial Transactions Tax, use or sales taxes or any similar taxes, assessments or other governmental charges;
(6) any withholding or deduction that the Holder or beneficial owner of the Security would have been able to avoid by taking reasonable measures available to such Holder or beneficial owner, such as presenting the Security for payment to another Paying Agent;
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(7) any taxes, levies, assessments or other governmental charges that are payable other than by deduction or withholding;
(8) any taxes, levies, assessments or other governmental charges payable pursuant to FATCA;
(9) where the Company is required to make such withholding pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021); or
(10) any combination of the above.
Subject to the foregoing provisions, whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
If the terms of the Securities of a series established as contemplated by Section 3.01 do not specify that Additional Amounts pursuant to the Section will not be payable by the Company, at least ten days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest on or prior to Maturity, the first day on which a payment of principal and any premium is made), and at least ten days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify the amount, if any, required to be withheld on such payments to such Holders of Securities and the Company will pay to the Trustee or such Paying Agent or Paying Agents the Additional Amounts required by this Section. The Company covenants to indemnify each of the Trustee and any Paying Agent for, and to hold each of them harmless against, any reasonable loss, liability or expense arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section, except to the extent that any such loss, liability or expense is due to its own gross negligence or willful misconduct.
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The Company shall promptly pay when due any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that are imposed by a Taxing Jurisdiction that arise from any payment under the Securities or under any other document or instrument referred herein or therein or from the execution, delivery, enforcement or registration of each Security or any other document or instrument referred to herein or therein. The Company shall indemnify and make whole the Holders of the Securities for any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies payable by the Company as provided in this paragraph paid by such Holder of the Securities.
Section 10.11. Limitation on Liens
Unless otherwise specified in any Board Resolution of the Guarantor or indenture supplemental hereto establishing the terms of Securities of a series in accordance with Section 3.01, so long as any relevant Security of a series remains Outstanding, the Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, incur or permit to exist any Lien securing the payment of Debt on any of its properties or assets, whether owned at the Issue Date or thereafter acquired, other than Permitted Liens, without effectively providing that the Securities or the Guarantee, as applicable, are secured equally and ratably with (or, if the obligation to be secured by the Lien is subordinated in right of payment to the Securities or any Guarantee, prior to) the obligations so secured for so long as such obligations are so secured.
Section 10.12. [Reserved].
Section 10.13. Repurchase at the Option of the Holders Upon Change of Control
(a) Upon the occurrence of a Change of Control that results in a Rating Decline, each Holder shall have the right to require the Company to repurchase all or any part (equal to U.S.$1,000 and any integral multiples in excess thereof) of that Holder’s Securities pursuant to a Change of Control Offer. No such purchase in part shall reduce the outstanding principal amount of the Securities held by any Holder to below U.S.$1,000. In the Change of Control Offer, the Company or Suzano shall offer a Change of Control Payment.
(b) Within 30 days following any Change of Control that results in a Rating Decline, the Company or Suzano shall make a Change of Control Offer by notice to each Holder in accordance with the provisions of Section 1.06, stating:
(i) that a Change of Control has occurred and that such Holder has the right to require the Company to purchase such Holder’s Securities in exchange for its respective portion of the Change of Control Payment;
(ii) an expiration date (the “Expiration Date”) not less than 30 days or more than 60 days after the date of the Change of Control Offer;
(iii) the Change of Control Payment and the Change of Control Payment Date;
(iv) information concerning the business of Suzano and its Subsidiaries, including the relevant facts regarding such Change of Control, which the Company in good faith believes shall enable the Holders to make an informed decision with respect to the Change of Control Offer; and
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(v) the instructions, as determined by the Company, consistent with this Section 10.13, that a Holder must follow in order to have its Securities repurchased.
(c) Holders electing to have a Security repurchased shall be required to surrender the Security, with an appropriate form duly completed, to the exchange agent at the address specified in the notice at least three Business Days prior to the Change of Control Payment Date. Holders shall be entitled to withdraw their election if each of the Trustee and the Company receives not later than one Business Day prior to the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered for repurchase by the Holder and a statement that such Holder is withdrawing his election to have such Security repurchased. Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered.
(d) On the Change of Control Payment Date, the Company or Suzano shall, to the extent lawful:
(i) accept for payment all Securities or portions of Securities properly tendered and not validly withdrawn pursuant to the Change of Control Offer;
(ii) deposit with the Trustee or Paying Agent an amount equal to the Change of Control Payment in respect of all Securities or portions of Securities properly tendered and not validly withdrawn; and
(iii) deliver or cause to be delivered, if applicable, to the Trustee for cancellation the Securities properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Securities or portions of Securities being purchased by the Company or Suzano.
(e) The Trustee or any Paying Agent shall promptly deliver to each Holder of Securities properly tendered the Change of Control Payment for such Securities, and the Trustee shall promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each new Security shall be in a principal amount of U.S.$1,000 or any integral multiple in excess thereof. A Security shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder. The Company or Suzano shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(f) Notwithstanding the foregoing, neither the Company nor Suzano shall be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements, set forth in this Indenture, that are applicable to a Change of Control Offer made by the Company or Suzano, and such third party purchases all Securities properly tendered and not withdrawn under the Change of Control Offer or (ii) notice of redemption for all Outstanding Securities has been given pursuant to Section 1.06, unless and until there is a default in payment of the applicable redemption price.
(g) The Company and Suzano shall comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase of Securities pursuant to this Section 10.13. To the extent that the provisions of any applicable securities laws or regulations conflict with provisions of this Section 10.13, each of the Company and Suzano shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 10.13 by virtue of its compliance with such securities laws or regulations.
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(h) Notwithstanding anything to the contrary contained in this Section 10.13, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
Section 10.14. [Reserved].
Section 10.15. Currency Rate Indemnity.
(a) Unless otherwise specified in any Board Resolution of the Company or indenture supplemental hereto establishing the terms of Securities of a series in accordance with Section 3.01, the Company shall (to the extent lawful) indemnify the Trustee and the Holders of such Securities and keep them indemnified against:
(i) in the case of nonpayment by the Company of any amount due to the Trustee, on behalf of the Holders of such Securities, under the Indenture any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Company; and
(ii) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under the Indenture or in respect of such Securities is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Company, and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.
(b) The Company agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “Judgment Currency”) other than the currency in which any Security or any premium or interest thereon is payable (the “Denomination Currency”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof.
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(c) The above indemnities shall constitute separate and independent obligations of the Company from its obligations under the Indenture, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Company for a liquidated sum or sums in respect of amounts due under the Indenture or the Securities of a series.
Article Eleven
REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
Section 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series or issuance shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of all or less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 10 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be reasonably satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (ii) pursuant to an election of the Company which is subject to a condition specified in the terms of the Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 11.03. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected less than 61 days prior to the Redemption Date, from the Outstanding Securities of such series not previously called for redemption, in accordance with the then current rules and procedures of the applicable Depositary, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination which shall not be less than the minimum authorized denomination for such Security. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amounts thereof to be redeemed.
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The provisions of the preceding paragraph shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.06 to each Holder of Securities to be redeemed (with a copy to the Trustee) not less than 15 nor more than 60 days prior to the Redemption Date. Such notice may at the Company’s option be subject to the satisfaction of one or more conditions precedent, and such notice may be rescinded or the applicable Redemption Date delayed in the event that any or all such conditions shall not have been satisfied by the applicable Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest and Additional Amounts, if any,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed and if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price, plus accrued interest, if any, will become due and payable upon each Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each Security to be redeemed is to be surrendered for payment of the Redemption Price, plus accrued interest and Additional Amounts, if any,
(6) the current conversion price and the date on which the right to convert such Securities or portions thereof will expire,
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(7) the conditions precedent, if any, to which such notice is subject; and
(8) the CUSIP or ISIN number or numbers, if any, with respect to each Security to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need not identify particular Global Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company, and shall be irrevocable.
Section 11.05. Deposit of Redemption Price.
Prior to 3:00 p.m., New York City time, on the Business Day preceding any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.08) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed (other than those theretofore surrendered for conversion) on that date.
Section 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, subject to the satisfaction of any conditions precedent, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided however, that unless otherwise specified as contemplated by Section 3.01, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, only in the case of Registered Securities, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transference satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
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Section 11.08. Optional Redemption Due to Changes in Tax Treatment.
Unless otherwise specified in a Board Resolution or an indenture supplemental hereto, each series of Securities contained in one or more particular issues may be redeemed at the option of the Company, in whole but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date) at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities) if as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Company is incorporated (or, in the case of a successor Person to the Company, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party the Company or their successor incurs in any Additional Amounts, which change, execution or amendment becomes effective on or after the date specified for such series pursuant to the terms of the Security or Section 3.01(10) (or in the case of a successor Person to the Company, the date on which such successor Person became such pursuant to Sections 8.01 and 8.02).
Section 11.09. Mandatory Redemption and Sinking Fund Payments.
The Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.
Article Twelve
GUARANTEE
Section 12.01. Unconditional Guarantee.
Suzano hereby unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, the full and punctual payment of the principal of (and premium, if any, on) and interest on such Security when and as the same shall become due and payable, whether at Maturity, upon declaration of acceleration, redemption or otherwise, in accordance with the terms of such Security and of this Indenture and all other amounts payable by the Company under this Indenture (the “Guarantee”). In case of the failure of the Company punctually to make any such payment, Suzano hereby agrees to pay or cause such payment to be made punctually when and as the same shall become due and payable, whether at Maturity, upon declaration of acceleration or redemption or otherwise, and as if such payment were made by the Company.
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Suzano agrees that its obligations hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Company under this Indenture or any Security, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Indenture (other than this Article Twelve) or any Security;
(c) any change in the corporate existence, structure or ownership of the Company, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any obligation of the Company contained in this Indenture or any Security;
(d) the existence of any claim, set-off or other rights which Suzano may have at any time against the Company, the Trustee or any other Person, whether in connection with this Indenture or any unrelated transactions; provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;
(e) any invalidity or unenforceability relating to or against the Company for any reason of this Indenture or any Security, or any provision of applicable law or regulation purporting to prohibit the payment by the Issuer of the principal of or interest on any Security or any other amount payable by the Company under this Indenture;
(f) any other act or omission to act or delay of any kind by the Company, the
Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to Suzano’s obligations hereunder; or
(g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of this Indenture.
Suzano hereby waives any benefits to which it is entitled under Articles 366, 827, 830, 834, 835, 837, 838, I and III, and 839 of the Brazilian Civil Code, and Article 794 of the Brazilian Code of Civil Procedure.
The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by an obligee on the Securities whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment or performance has not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, restored or returned.
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Rights of Holders to payment in full under the Securities pursuant to the Guarantee shall be equal in right of payment with all other existing and future senior unsecured obligations of Suzano, subject to certain statutory preferences under applicable law, and senior in right of payment to Suzano’s subordinated debt.
Section 12.02. Release of Suzano.
(a) Concurrently with any consolidation or merger of Suzano or conveyance, transfer or lease of all or substantially all of the assets of Suzano as permitted by Section 8.01, and upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such consolidation, merger, sale, conveyance or lease was made in accordance with Section 8.01, the Trustee shall execute any documents reasonably required in order to evidence the release of Suzano from its obligations under the Guarantee and under this Article Twelve.
(b) Concurrently with the legal defeasance or the covenant defeasance of the Securities under Section 13.01, Suzano shall be released from all of its obligations under the Guarantee and under this Article Twelve.
Section 12.03. Subrogation and Contribution.
Upon making any payment with respect to any obligation of the Company under this Article Twelve, Suzano making such payment will be subrogated to the rights of the payee against the Company with respect to such obligation; provided, however, that Suzano shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of (and premium, if any, on) and interest on all Securities of the applicable series shall have been paid in full.
Article Thirteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of Securities designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or Section 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
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Section 13.02. Defeasance and Discharge.
Upon the Company’s exercise of its option to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities or series of Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (ii) the Company’s obligations with respect to such Securities under Sections 3.04, 3.05, 3.06 and 1.01, (iii) the rights, powers, trusts, duties, protections, indemnities and immunities of the Trustee hereunder and (iv) this Article Thirteen. Subject to compliance with this Article, the Company may exercise its option to have this Section 13.02 applied to any Securities of a series notwithstanding the prior exercise of its option to have Section 13.03 applied to such Securities.
Section 13.03. Covenant Defeasance.
Upon the Company’s exercise of its option to have this Section applied to any Securities or any series of Securities, as the case maybe, (i) the Company shall be released from any covenants provided pursuant to Section 3.01(23), 9.01(2) or 9.01(7) for the benefit of the Holders of such Securities, and (ii) the occurrence of any event specified in Section 5.01(3) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(3)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
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Section 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefit of the Holders of such Securities, (i) money in an amount, or (ii) non-callable U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, without reinvestment, not later than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case sufficient, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without reinvestment and which shall be applied by the Trustee to pay and discharge, the principal of and any premium, interest and Additional Amounts on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (A) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (B) an obligation of a Person controlled or supervised by and acting as any agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (A) or (B), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principle or interest evidenced by such depositary receipt.
(2) In the event of any election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable U.S. Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to the effected with respect to such Security and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
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(4) No event which is, or after notice or lapse of time both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.01(6), 5.01(7), 5.01(8) and 5.01(9), at any time on or prior to the day which is 90 days after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such day which is 90 days after the date of such deposit).
(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 13.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.08, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04, or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Order any money or U.S. Government Obligations held by it as provided in Section 13.04 with respect to any Securities of any series that, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
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Section 13.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities of any series by reason of any order of judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 13.02 or Section 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 13.07. Patriot Act
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agree to provide to the Trustee, upon their request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Law.
___________________________
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed on their respective behalves, all as of the day and year first above written.
| SUZANO NETHERLANDS B.V., | ||
| as the Company | ||
| By: | ||
| Name: [•] | ||
| Title: Director A | ||
| By: | ||
| Name: [•] | ||
| Title: Director B | ||
105
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed on their respective behalves, all as of the day and year first above written.
| SUZANO S.A., | ||
| as Guarantor | ||
| By: | ||
| Name: [•] | ||
| Title: [Director] | ||
| By: | ||
| Name: [•] | ||
| Title: [Director] | ||
106
| The Bank of New York Mellon, not in its individual capacity, but solely as Trustee | ||
| By: | ||
| Name: [•] | ||
| Title: [•] | ||
| By: | ||
| Name: [•] | ||
| Title: [•] | ||
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Annex
A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to (S) 3.05(c)(i) and
(iii)
of this Indenture)
The Bank of new York
240 Greenwich Street, Floor 7 East,
New York, New York 10286
| Re: | [%] Notes due of Suzano Netherlands B.V. (the “Securities”) |
Reference is made to the Indenture, dated as of [•], 2025 (the “Indenture”), between Suzano Netherlands B.V. (the “Company”) and The Bank of New York Mellon, as Trustee. Terms used herein and defined in the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined. This certificate relates to [U.S.$____________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s)._________________________________________]
[COMMON CODE No(s).___________________________________]
ISIN No(s).___________________________________________
CERTIFICATE No(s).____________________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the “Transferee”) who will take delivery in the form of a Regulation S Security. In connection with such transfer, the Owner hereby certifies or has certified that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, it is being effected in accordance with Rule 904 of Regulation S or Rule 144 under the Securities Act and with all applicable securities laws of the states of the United States and other jurisdictions. Accordingly, the Owner hereby further certifies or has certified as follows:
(1) Rule 904 Transfers. If the transfer is being effected in accordance with Rule 904 of Regulation S:
(A) the Owner is not a distributor of the Securities, an affiliate of the Company or any such distributor or a person acting on behalf of any of the foregoing;
A-1
(B) the offer of the Specified Securities was not made to a person in the United States or for the account or benefit of a U.S. Person;
(C) either
(i) at the time the buy order was originated, the Transferee was outside the United States or the Owner and any person acting on its behalf reasonably believed that the Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through the facilities of the Eurobond market, as regulated by the International Securities Market Association or another designated offshore securities market and neither the Owner nor any person acting on its behalf knows that the transaction has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a selling concession, fee or other remuneration in respect of the Specified Securities, and the transfer is to occur during the Restricted Period, then the requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after [insert date six months from date of issuance] and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after [insert date one year from date of issuance] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company.
A-2
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the purchasers.
Dated:__________________________________
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
| By: | ||
| Name: Title: |
(if the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
A-3
Annex
B -- Form of
Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to (S) 3.05(c)(ii), (iii), (iv) and (v) of this Indenture)
The Bank of new York
240 Greenwich Street, Floor 7 East,
New York, New York 10286
| Re: | [%] Notes due [ ] of Suzano Netherlands B.V. (the “Securities”) |
Reference is made to the Indenture, dated as of [•], 2025 (the “Indenture”), between Suzano Netherlands B.V. (the “Company”) and The Bank of New York Mellon, as Trustee. Terms used herein and defined in the Indenture or in Relation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to [U.S.$_____________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s)._________________________________________]
[COMMON CODE No(s).___________________________________]
ISIN No(s).___________________________________________
CERTIFICATE No(s).____________________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the “Transferee”) who will take delivery in the form of a Restricted Security. In connection with such transfer, the Owner hereby certifies or has certified that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, it is being effected in accordance with Rule l44A or Rule 144 under the Securities Act and all applicable securities laws of the states of the United States and other jurisdictions. Accordingly, the Owner hereby further certifies or has certified that:
| (1) | Rule 144A Transfers. If the transfer is being effected in accordance with Rule 144A: |
(A) the Specified Securities are being transferred to a person that the Owner and any person acting on its behalf reasonably believe is a “qualified institutional buyer” within the meaning of Rule 144A, acquiring for its own account or for the account of a qualified institutional buyer; and
B-1
(B) the Owner and any person acting on its behalf have taken reasonable steps to ensure that the Transferee is aware that the Owner may be relying on Rule l44A in connection with the transfer.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after [insert date six months after initial date of issuance] and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144
(B) the transfer is occurring after [insert date one year after initial date of issuance] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company. This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the purchasers.
Dated: _________________________
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
| By: | ||
| Name: Title: |
(If the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
B-2
Annex
C -- Form of
Unrestricted Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act legends pursuant to (S) 3.05(d))
The Bank of new York
240 Greenwich Street, Floor 7 East,
New York, New York 10286
Re: [%] Notes due of Suzano Netherlands B.V. (the “Securities”) Reference is made to the Indenture, dated as of [•], 2025 (the “Indenture”), between Suzano Netherlands B.V. (the “Company”) and The Bank of New York Mellon, as Trustee. Terms used herein and defined in the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to [U.S.$____________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s). __________________________________]
[COMMON CODE No(s). ____________________________]
ISIN No(s)._____________________________________
CERTIFICATE No(s).______________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for Securities bearing no Securities Act legend pursuant to Section 3.06(d) of the Indenture. In connection with such exchange, the Owner hereby certifies or has certified that the exchange is occurring after [insert applicable date] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company. The Owner also acknowledges or has acknowledged that any future transfers of the Specified Securities must comply with all applicable securities laws of the states of the United States and other jurisdictions.
C-1
This certificate and the statements contained herein we made for your benefit and the benefit of the Company and the purchasers.
Dated: ___________________________
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
| By: | ||
| Name: Title: |
(If the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
C-2
Exhibit 5.1
April 29, 2025
Suzano S.A.
Avenida Professor Magalhaes Neto, 1,752
10th Floor, Rooms 1010 and 1011
41810-012 Salvador – BA
Brazil
Suzano Netherlands B.V.
Barbara Strozzilaan 101, 1.01, 1083HN
Amsterdam
The Netherlands
Suzano Austria GmbH
Jakov-Lind-Straße 13
1020 Vienna
Austria
Ladies and Gentlemen:
I am qualified to practice law in the Federative Republic of Brazil (“Brazil”) and am the General Counsel of Suzano S.A. (“Suzano”), a corporation (sociedade por ações) incorporated under the laws of the Brazil. This opinion is being furnished to you in connection with the preparation and filing by Suzano, Suzano Netherlands, a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (“Suzano Netherlands”) and Suzano Austria GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Austria (“Suzano Austria”), of registration statement on Form F-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), with the U.S. Securities and Exchange Commission (the “SEC”) with respect to (i) debt securities of Suzano Netherlands (the “Suzano Netherlands Debt Securities”) to be fully and unconditionally guaranteed by Suzano, and (ii) debt securities of Suzano Austria (the “Suzano Austria Debt Securities” and, together with the Suzano Netherlands Debt Securities, the “Debt Securities”) to be fully and unconditionally guaranteed by Suzano. The Debt Securities, together with the corresponding form of notations relating to the guarantee to be executed by Suzano on each of the Suzano Netherlands Debt Securities (the “Suzano Netherlands Guarantee”) and the Suzano Austria Debt Securities (the “Suzano Austria Guarantee” and, together with the Suzano Netherlands Guarantee, the “Guarantees”), are referred to as the “Securities.” The securities being registered under the Registration Statement will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act, at offering prices to be determined from time to time.
For the purpose of rendering this opinion, I have examined the execution copies or copies certified to my satisfaction of the following documents:
(i) the Registration Statement filed with the SEC as of the date hereof;
(ii) the form of indenture between Suzano Netherlands, as issuer, and the Bank of New York Mellon, as trustee (the “Suzano Netherlands Indenture”), attached as an exhibit to the Registration Statement, and pursuant to which Suzano Netherlands Debt Securities may be issued;
(iii) the form of indenture between Suzano Austria, as issuer, and the Bank of New York Mellon, as trustee (the “Suzano Austria Indenture”), attached as an exhibit to the Registration Statement, and pursuant to which Suzano Austria Debt Securities may be issued;
(iv) Suzano’s bylaws (estatuto social), as in effect on the date hereof;
(v) such other documents, records and matters of law as I have deemed necessary.
In rendering the foregoing opinions, I have assumed the authenticity of all documents represented to me to be originals, the conformity to original documents of all copies of documents submitted to me, the accuracy and completeness of all corporate records made available to me and the genuineness of all signatures that purport to have been made in a corporate, governmental, fiduciary or other capacity, and that the persons who affixed such signatures had authority to do so.
In rendering the opinions expressed below, I have assumed: (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and comply with all applicable laws, (ii) the Registration Statement will be effective and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement, (iii) the terms of all Securities will conform to the forms thereof contained in the applicable indenture and, as applicable, the related Guarantee, will not violate any applicable law, result in a default under or breach of any agreement or instrument binding upon Suzano, Suzano Netherlands or Suzano Austria, as the case may be, or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over Suzano, Suzano Netherlands or Suzano Austria, as applicable, (iv) the Securities and, as applicable, the related Guarantee will be sold and delivered to, and paid for by, the purchasers at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto, (v) Suzano, Suzano Netherlands or Suzano Austria, as applicable, will authorize the offering and issuance of the Securities and, as applicable, the related Guarantee and will authorize, approve and establish the final terms and conditions thereof and will authorize, approve and establish the terms and conditions of any applicable warrant agreement or guaranty, as the case may be, and will take any other appropriate additional corporate action, (vi) certificates, if required, representing the Securities and, as applicable, the related Guarantee, will be duly executed and delivered and, to the extent required by the applicable indenture or warrant agreement, duly authenticated and countersigned; and (vii) any Securities issuable upon conversion, exchange or exercise of any other Security being offered will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise.
Furthermore, I have assumed (i) the due organization and valid existence of all parties to the Suzano Netherlands Indenture and the Suzano Austria Indenture under the laws of the countries of their respective incorporation; (ii) the due authorization, execution and delivery by all parties to the Suzano Netherlands Indenture and the Suzano Austria Indenture; (iii) that the performance thereof is within the capacity and powers of all such parties; and (iv) the validity and enforceability of the Suzano Netherlands Indenture, the Suzano Austria Indenture and the Securities in accordance with their terms under the laws of the State of New York, by which they are expressed to be governed.
Also, I have assumed and have not verified (i) the accuracy as to factual matters of each document I have reviewed (ii) that the Debt Securities and Guarantees will conform to the forms I have reviewed.
I am qualified to practice law solely in Brazil and express no opinion as to any laws other than the laws of Brazil as in effect on the date hereof, and I have assumed that there is nothing in any other law that affects my opinion. In particular, I have made no independent investigation of the laws of the State of New York, the Netherlands or the laws of Austria as a basis for the opinions stated herein, and I do not express or imply any opinion on such laws. The opinions stated below are provided based on Brazilian laws, rules and regulations and on Suzano’s by-laws, in each case as in effect on the date hereof, and I assume that there will be no change in Brazilian laws, rules or regulations (or the interpretation thereof) nor amendments to Suzanos’s by-laws that may affect in any way the opinions stated herein.
Based on the foregoing and subject to the qualifications and limitations hereinafter specified, I am of the opinion that:
| (i) | Suzano is a corporation (sociedade por ações) duly organized and validly existing under the laws of Brazil, duly qualified to do business in Brazil, and has all power and authority necessary to own and hold its properties and to conduct the businesses in which it is engaged and to perform its obligations under the Guarantees. |
| (ii) | Suzano has all power and authority to enter into and perform its obligations under the Guarantees. |
| (iii) | In the event that, in connection with the issuance and terms of the Guarantees and the performance of Suzano’s obligations thereunder, (i) all applicable governmental approvals are obtained and all necessary filings and registrations with any governmental authority, agency or body are effective, (ii) all necessary corporate actions are taken by Suzano, including actions taken by the board of directors, the board of executive officers and the fiscal council of Suzano or a combination of such bodies, (iii) a definitive underwriting, purchase or similar agreement relating to the issuance, offer and sale of the Suzano Netherlands Debt Securities or Suzano Austria Debt Securities to which such Guarantees relate is duly authorized, executed and delivered by all parties thereto, (iv) the Guarantees are duly executed and delivered by Suzano, and (v) such Suzano Netherlands Debt Securities or Suzano Austria Debt Securities are duly authorized, executed and delivered by Suzano Netherlands or Suzano Austria, as applicable, and, to the extent required by the Suzano Netherlands Indenture or Suzano Austria Indenture, as applicable, authenticated and countersigned and are sold and delivered to, and fully paid for by, the underwriting, purchase or similar agreement, then the Guarantees will constitute valid, binding and enforceable obligations of Suzano. |
The opinions set forth above are, however, subject to the following qualifications:
| (a) | enforcement in Brazil may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, or other similar laws relating to or limiting creditor’s rights generally; |
| (b) | in order to ensure the admission and enforceability of the Suzano Netherlands Indenture, the Suzano Austria Indenture or the Securities, as the case may be, before the public agencies and courts in Brazil (i) the signatures of the parties thereto signing outside Brazil must be notarized by a notary public and, where appropriate, the identity of the seal or stamp of such notary public must be apostilled by a competent authority of the state from which the document emanates according to the Hague Convention of October 5, 1961 (“Apostille Convention”), except for documents emanating from a state that is not a signatory to the Apostille Convention, which require notarization and the subsequent legalization (authentication) of the signature of such a notary by a Brazilian consulate official and (ii) the Suzano Netherlands Indenture, the Suzano Austria Indenture or the Securities, as the case may be, must be translated into Portuguese by a sworn translator, and the sworn translation must be registered with the appropriate Registry of Deeds and documents in Brazil; and |
| (c) | any judgment obtained against Suzano in a foreign court with respect to the Suzano Netherlands Indenture, the Suzano Austria Indenture or the Securities, as the case may be, will only be enforceable in the courts of Brazil if previously confirmed (homologado) by the Superior Court of Justice of Brazil (Superior Tribunal de Justiça). Such confirmation will only be given if such foreign judgment: (i) fulfils all formalities required for enforceability under the laws of the country where it was issued; (ii) is not subject to appeal in the jurisdiction in which it was issued, (iii) is accompanied by a sworn translation into Portuguese; and (iv) does not violate national sovereignty, public policy or good morals of Brazil (as provided in Section 17 of the Law of Introduction to the Rules of Brazilian Law), including in particular the rules regarding service of process. |
I express no opinion as to any matter which may be, or which purports to be, governed by the laws of any jurisdiction other than the laws of Brazil.
This opinion is limited to the matters expressly stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
I hereby consent to the use of my name in the prospectus constituting a part of the Registration Statement, and in any amendments and prospectus supplements related thereto, under the heading “Validity of Securities” as counsel for Suzano who has passed on specific opinions based on Brazilian law and relating to the Securities, and to the use of this opinion as an exhibit to the Registration Statement. In giving such consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the SEC thereunder.
This opinion is furnished by me, as Acting General Counsel of Suzano, to you, solely for your benefit and no other person may rely upon this opinion without my prior written consent. I disclaim any obligation to update this opinion letter for events occurring or coming to my attention after the date hereof.
[Signature Page Follows]
| Very truly yours, | |
| /s/ Walner Alves Cunha Jr. | |
| Walner Alves Cunha Jr. | |
| General Counsel of Suzano S.A. |
[Signature Page to Suzano Exhibit 5 Legal Opinion]
Exhibit 5.2
Suzano S.A. Av. Professor Magalhaes Neto, 1,752 10th Floor, Rooms 1010 and 1011 Salvador, Brazil 41 810-012 Brazil
Suzano Austria GmbH Jakov-Lind-Straße 13/5 1020 Vienna Austria |  |
Vienna, 30 April 2025
Suzano Austria GmbH
F-3 Registration Statement dated 30 April 2025
Ladies and Gentlemen,
we are acting as Austrian legal advisors for Suzano Austria GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) established under the laws of the Republic of Austria ("Austria"), registered with the Austrian companies' register (Firmenbuch; "Companies' Register") under registration number FN 62444 f (the "Company"), in connection with the preparation and filing among others by the Company as registrant of a registration statement on Form F-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with the U.S. Securities and Exchange Commission, dated 30 April 2025 and pursuant to which the Company intends to facilitate the issuance of debt securities guaranteed by Suzano S.A. as guarantor (the "Guarantor") from time to time (the "Notes").
We deliver this opinion for its filing as an exhibit to the Registration Statement (Exhibit 5.2).
For the purposes of this opinion, we have examined the following documents:
| (a) | an electronic excerpt from the Companies' Register relating to the Company dated as of the date hereof; |
| (b) | an extract from the electronic Austrian insolvency database (Insolvenzdatei) (the "Insolvency Database") of the Austrian Federal Ministry of Justice (Bundesministerium für Justiz) relating to the Company dated as of the date hereof; |
| (c) | an extract from the electronic European restructuring procedure (Europäisches Restrukturierungsverfahren) database (the "Restructuring Procedure Database") of the Austrian Federal Ministry of Justice (Bundesministerium für Justiz) relating to the Company dated as of the date hereof; and |
| (d) | the articles of association (Gesellschaftsvertrag) of the Company as of 8 March 2018 (the "Articles of Association"); |
| (e) | an executed copy of the resolution of the Company's management board passed on 28 April 2025 (the "Management Board Resolution"); |
| (f) | an executed copy of the resolution of the Company's shareholder passed on 28 April 2025 (the "Shareholder Resolution"); |
| (g) | a copy of the execution version of the Registration Statement; |
| (h) | a copy of the execution version of the indenture by and among the Company, the Guarantor, and The Bank of New York Mellon, as trustee (the "Trustee") pursuant to which (i) the Company shall issue Notes and the (ii) Guarantor shall guarantee (the "Guarantee") such Notes from time to time (the "Indenture"); |
| (i) | the form of the global security representing the Notes to be executed by the Company and authenticated by the Trustee (the "Global Note") and as set out in section 2.02 of the Indenture; and |
| (j) | such further documents as we have considered necessary or appropriate for the preparation of this opinion. |
The Registration Statement and the Indenture are collectively referred to in this opinion as the "Transaction Documents". The Articles of Association, the Management Board Resolution and the Shareholder Resolution are collectively referred to as the "Corporate Documents" (and together with the Transaction Documents, the "Documents").
For the purposes of this opinion we have assumed, without any investigation:
| (i) | the genuineness of each signature or seal on and the completeness and authenticity of each document submitted to us as an original or a copy; |
| (ii) | the conformity to the original of each document submitted to us as a copy, including electronic files and facsimiles; |
| (iii) | that a document examined by us in draft or specimen form has been or will be executed in the form of such draft or specimen; |
| (iv) | the accuracy, completeness and authenticity of each public authority document and the accuracy and completeness of all official public records (including their proper indexing and filing); |
| (v) | that nothing in this opinion is affected by any document other than the Documents; |
| (vi) | that none of the Documents have been revoked, rescinded, repealed, terminated, amended, or supplemented (in each case whether as a whole or in part); |
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| (vii) | that none of the powers of attorney or sub-powers of attorney used for such purpose has been revoked prior to the execution of any Document; |
| (viii) | that the Transaction Documents contain the entirety of the transactions entered into between the parties thereto and contemplated thereby insofar as they relate to the Company and that no other arrangements between any of the parties to the Transaction Documents in respect of the transaction contemplated thereby or other declaration or act which modifies or supersedes any of the terms of a Transaction Document exist; |
| (ix) | that all individuals who will actually sign or have signed the Documents (i) have sufficient legal competency and capacity to act (i.e., are of legal age and without incapacity) and (ii) were in fact the persons whose names appear on the signature pages of the relevant Documents; |
| (x) | that all statements of fact made in the Documents are correct; |
| (xi) | that each of the representations and warranties given by any of the parties to the Transaction Documents (other than representations and warranties as to matters of Austrian law on which we express an opinion herein) is and will be, when made or repeated or when deemed made or repeated, true, accurate and complete and that none of the parties to the Transaction Documents has knowledge that these representations and warranties are inaccurate or impossible to fulfil; |
| (xii) | that the information revealed by the searches in the Insolvency Database, the Restructuring Procedure Database and in the Companies' Register was accurate and complete in all respects as of the date of the searches and that no changes to the facts related therein have occurred between the date the searches were made and the date hereof; |
| (xiii) | that the Documents have been duly authorized and executed by each of the parties thereto other than the Company; |
| (xiv) | that there are no agreements or understandings among the parties, written or oral, and no usage of trade or course of prior dealing among the parties that would (except for the fees and expense letter), in either case, define, supplement or qualify the terms of the Documents; |
| (a) | that the Documents have been entered into bona fide and at arm's length by all parties thereto and that the decision of any party to enter into such agreements has not been influenced by any relevant error or other deficiency of state of mind, |
| (b) | are in the best interests of each party thereto and its shareholder, employees and creditors, and are not a fraud on any of them, and |
| (c) | constitute a proper purpose for the exercise of the powers of each party thereto; |
that any right or remedy arising from the Documents is not exercised in an unconscionable manner (sittenwidrig) or in bad faith (treuwidrig or rechtsmissbräuchlich);
| (xv) | that the terms and provisions of each of the Documents and the execution, delivery, performance and enforcement of any Document by or against any party thereto or any other persons affected thereby (including, without limitation, the obtaining of all necessary consents, licenses, approvals and authorisations, the making of all necessary filings, lodgements, registrations and notifications and the payment of any stamp duties and other documentary taxes) duly comply with all relevant laws (other than those of Austria) as may apply thereto; |
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| (xvi) | that there is no law of any jurisdiction outside Austria which renders the execution, delivery or performance of the Documents illegal or ineffective and that, insofar as any obligation under the Documents is performed in, or is otherwise subject to, any jurisdiction other than Austria, its performance will not be illegal or ineffective by virtue of the law of that jurisdiction; |
| (xvii) | that each of the Notes will be offered, issued and purchased in accordance with their terms and conditions and upon their issuance, will be paid in full; |
| (xviii) | that the Notes are issued in the form of securities represented by the Global Notes transferable by way of records maintained in book-entry form or physical delivery and not by way of an assignment; |
| (xix) | that the potential holders of the Global Notes and the parties to the Transaction Documents (other than the Company) are not resident for tax purposes in Austria; |
| (xx) | that the potential holders of the Global Notes and the parties to the Transaction Documents (other than the Company) have, and will have, neither a branch, nor an office nor any other fixed place of business in Austria through which they wholly or partly conduct their business and to which the Notes or any payments under the Notes or any payments under, or pursuant to, the Transaction Documents are attributable; the potential holders of the Global Notes and the parties to the Transaction Documents (other than the Company) have not appointed and will not appoint a permanent agent in Austria in form of either a dependent agent or an independent agent; |
| (xxi) | that interest payments under the Notes are made neither by the Company directly nor by an Austrian credit institution, Austrian branch of a non-Austrian credit institution or Austrian branch of a securities services firm established in the European Union nor by a third party making payments in addition or instead of the interest payments, each acting as paying agent, but by a non-Austrian paying agent (which does not merely act as an intermediary for bank transfer purposes in the course of the payment of the interest under the Notes) from a place outside of Austria; |
| (xxii) | that payments of realized capital gains in relation to the Notes are made neither (i) by an Austrian credit institution or Austrian branch of a non-Austrian credit institution or Austrian branch of a securities services firm established in the European Union, each acting as Austrian depository, nor (ii) in the absence of an Austrian depository, by an Austrian credit institution or Austrian branch of a non-Austrian credit institution or Austrian branch of a securities services firm established in the European Union, each acting as Austrian paying agent in a scenario where the non-Austrian depository is a non-Austrian branch or group company of such Austrian paying agent and processes the payment in cooperation with the Austrian paying agent; |
| (xxiii) | that under none of the Transaction Documents all contractual parties (other than the Company) have an Austrian residence, place of habitual abode, place of management, seat or permanent establishment; |
| (xxiv) | that any Transaction Document is executed (signed) and all originals and certified copies thereof are and will be kept outside of Austria; and |
| (xxv) | that any written documentation in connection with the Transaction Documents or other documentation which confirms or contains references to the Transaction Documents is not and will not be documented in writing in Austria and that no original or certified copy of such written documentation is or will be sent, or otherwise brought, to or from Austria. |
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On the basis of such assumptions and subject to the limitations and qualifications set out hereinafter, we are of the opinion that under Austrian law currently in effect:
| 1. | The Company is a corporation duly incorporated and validly existing under Austrian law and has full power and authority to own its properties and to conduct its operations. |
| 2. | The Company, as of the date of this opinion, has full power and authority to undertake issuances of Notes. |
| 3. | The execution and delivery of the Transaction Documents and the performance by the Company of the obligations assumed under the terms thereof, have been duly authorized by all necessary action of the Company. |
| 4. | The execution and delivery of the of the Transaction Documents by the Company and the performance of its obligations thereunder do not conflict with or result in a violation of any provision of the Corporate Documents or provisions of Austrian law as specifically applicable to the Transaction Documents. |
| 5. | On the assumption that the (i) Indenture, (ii) the Global Notes and (iii) the Notes in their definitive form are of a binding nature under the laws of law of the State of New York, to which the Indenture, the Global Notes and the Notes are expressed to be subject, the Indenture, the Global Notes and the Notes in definitive form, when duly authorized by the Company and issued in accordance with the form provided in the Indenture and the Registration Statement, including the Guarantee, will constitute legal, valid and binding obligations of the Company. |
This opinion is subject to the following limitations and qualifications:
| (i) | For the purposes of this opinion we have relied upon Companies' Register extracts. Entries in the Companies' Register are made by qualified court clerks upon review of the relevant documents. As long as a fact to be entered in the Companies' Register has not been registered and made public, it cannot be invoked against a third party by the person in respect of whose affairs it ought to have been entered, unless the first had knowledge of such fact. If the fact has been entered and made public, it can be held against a third party. This does not apply to legal acts undertaken within 15 days after publication, if the third party proves that he neither knew nor should have known of the fact entered in the companies’ register. If someone causes an inaccurate entry being made in the Companies' Register or if he has recognized or could have recognized that an entry in the Companies' Register is inaccurate (even if he did not cause the inaccurate entry) and does not have it deleted, the inaccurate entry may be held against him by a third party in business dealings, unless he proves that the third party did not act in reliance on such entry or that the third party knew or gross negligently failed to know of the incorrectness of the entry. |
| (ii) | However, the Companies' Register extracts are, in particular, not capable of revealing conclusively whether or not: |
| (a) | a winding up order has been made or a resolution passed for the winding up of the Company; or |
| (b) | a receiver or liquidator has been appointed; or |
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| (c) | amendments to the Articles of Association have been made; |
as notice of these matters may not be filed with the commercial court immediately and, when filed, may not be entered in the Companies' Register database immediately. Further, entries made by a court clerk are usually not searchable in the Companies' Register database until the day following the entry.
We have not searched the collection of documents (Urkundensammlung) containing physical and electronic documents which were filed for entries (or deletions of entries) in the main book of the Companies' Register regarding the Company or in compliance with certain other legal requirements. Therefore, we have relied on the extract of the main book of the Companies' Register but have not verified those findings by examining whether there are any discrepancies or other deficiencies apparent from the documents contained in the collection of documents.
| (iii) | The search made in the Insolvency Database and the Restructuring Procedure Database only reveals whether or not details of any insolvency proceedings have been included in the Insolvency Database and the Restructuring Procedure Database with respect to the Company. This search is not capable of revealing conclusively whether or not the initiation of any such proceedings has already been court ordered, since details of such order may not be entered in the Insolvency Database and the Restructuring Procedure Database immediately and, when entered, are usually not immediately searchable in the Insolvency Database and the Restructuring Procedure Database. According to a decision of the Court of Appeal in Vienna, bankruptcy proceedings are, however, not regarded as having commenced until the day following the day on which the details of the court order are actually searchable in the Insolvency Database and the Restructuring Procedure Database. We do not opine on whether or not any insolvency, composition, business receivership or similar proceedings have been opened with respect to the Company or its assets by any court or authority outside of Austria. |
| (iv) | The validity, binding effect and enforceability of the Transaction Documents and the obligations to be created thereunder may be limited or otherwise be affected by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, avoidance or similar laws of general application relating to or affecting the enforcement of creditors' rights and remedies (including, without limitation, creditors' termination and set-off rights). Under Austrian insolvency law, depending on the type of insolvency proceedings that are initiated, the insolvency receiver may become entitled to manage the respective company or its insolvent estate exclusively. In this capacity such insolvency receiver has a statutory right to terminate certain types of contracts. Orders made by the debtor become void with the opening of insolvency proceedings. An insolvency receiver is not bound by offers made by the debtor which have not been accepted before the opening of the insolvency proceedings. Unless specifically agreed, a contractual exclusion of set-off does not apply when the other party has become insolvent. Any power of attorney issued by a company will cease to be valid upon the institution of insolvency proceedings against such company. |
| (v) | The choice of the law of the State of New York to govern the Indenture and the Global Notes is subject to (i) certain mandatory rules of Austrian conflicts law and (ii) the provisions of Regulation (EC) No. 593/2008 of 17 June 2008 ("ROME I Regulation"), e.g., Article 9 of the ROME I Regulation which provides that effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful; furthermore an Austrian court may give effect to mandatory rules of the laws of another foreign jurisdiction to which the case is closely connected, in particular foreign exchange control regulations, if and to the extent such rules must be applied regardless of the chosen law. |
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| (vi) | The choice of the law of the State of New York to govern any non-contractual obligations arising out of or in connection with the Indenture and the Global Notes will not prejudice the application of provisions of the law of another country where all the elements relevant to the situation at the time when the event giving rise to the damage occurs are located in a country other than Austria, where that other country has provisions of law which cannot be derogated from by agreement; we believe that the choice of the law of the State of New York to govern non-contractual obligations may not restrict the application of Austrian laws in a situation where the application of those laws are mandatory irrespective of the law otherwise applicable to the non-contractual obligation. |
| (vii) | Despite the choice of foreign law by the parties, Austrian courts may apply Austrian law if they cannot ascertain the content of the foreign law within a reasonable time. What "reasonable time" means depends on the urgency of the matter (e.g., in case of a preliminary injunction it will be relatively short). |
| (viii) | The opinion as to giving effect to the choice of forum clause in the Indenture and the Global Notes is subject to the interpretation of the Austrian court as to the terms of such choice of forum clause. If the court decides that the choice of forum clause is non-exclusive, the court may come to the conclusion that it has jurisdiction if and to the extent it would have jurisdiction under the general Austrian procedural rules. Even if the court decides that the choice of forum clause is exclusive and such court is not the chosen forum, there is a risk that the court would come to the conclusion that it has jurisdiction unless the defendant to such proceedings objects to the court's jurisdiction upon such defendant's first opportunity to bring forward arguments in the subject matter of the proceedings. |
| (ix) | The validity, binding effect and enforceability of the Documents and the obligations to be created thereunder may be limited or otherwise be affected by the general defences available to the Company under Austrian law (to the extent it applies) with respect to the validity and enforceability of contractual obligations such as the Austrian law equivalents of initial legal or factual impossibility of performance (ursprüngliche rechtliche oder faktische Unmöglichkeit der Vertragserfüllung), frustration of purpose (Wegfall der Geschäftsgrundlage), good cause (wichtiger Grund), set-off, estoppel and statute of limitations and (iii) the exception of abuse of law or similar concepts. |
This opinion is limited to Austrian law, as applied by the Austrian courts at the date hereof and is given on a basis that any issues arising hereunder (including, without limitation, issues of interpretation) will be governed by and construed in accordance with Austrian law. Place of performance is Austria. Our opinions expressed herein are given on the basis that they represent a fair view of the legal position (vertretbare Rechtsansicht) under Austrian law but do not purport to reflect all views taken by courts and academic literature in the past with respect to a particular legal issue.
We assume no obligation to update the opinions expressed herein if laws, their interpretation, facts or circumstances change after the date hereof. We have not investigated and do not express or imply an opinion with respect to the laws of any jurisdiction other than Austria. In particular, this opinion does not address matters arising out of a potential or future listing of Notes.
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We have neither examined any documents other than those expressly stated in this opinion, nor have we received or considered any further information with respect to the circumstances in this case.
We have not advised or participated in any way during the negotiation and conclusion of any of the Documents and thus have no knowledge about the course of the negotiations or the aim or intentions of the parties involved. Thus, we have based our legal opinion on the mere wording of the Documents.
Other than the review of the documents noted previously, we have not conducted any due diligence investigation of factual or legal matters for the purposes of this opinion, and our opinion does not purport to express or imply any opinion with regard to such matters, including the adequacy of any of the economic terms of the transactions contemplated in the Transaction Documents.
Nothing herein should be taken as expressing an opinion with respect to the representations and warranties or other factual statements, contained in the Transaction Documents.
This opinion is limited to the matters stated herein and is not to be read as extending by implication to any other matters not specifically referred to herein. It is given solely for the benefit of the addressees of this letter. This opinion is not addressed to any other person and may not be passed on to, or relied upon by, any holder or, save as stated below, any other person for any purpose. You may not give copies of it to others without our prior written permission, except that it may be included in any compilation of closing documents, to be handed out to the Company, the Guarantor, or the Trustee, pertaining to the exchange offer covered by the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement under the heading "Validity of Securities". In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
Yours faithfully,
/s/ Weber Harrer Rechtsanwälte GmbH & Co KG
Weber Harrer Rechtsanwälte GmbH & Co KG
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Exhibit 5.3
| Linklaters LLP | |
| World Trade Centre Amsterdam | |
 |
Zuidplein 180 |
| 1077 XV Amsterdam | |
| Telephone (31 20) 799 6200 | |
| Facsimile (31 20) 799 6300 |
| To: | Suzano Netherlands B.V. |
| Barbara Strozzilaan 201 | |
| 1083 HN Amsterdam | |
| The Netherlands |
| 30 April 2025 |
Suzano Netherlands B.V. (the “Company”) – Form F-3 Registration Statement
| 1 | We have acted as your Dutch legal advisers in connection with the Form F-3 registration statement filed with the United States Securities and Exchange Commission on 30 April 2025 (the “Registration Statement”) relating to the shelf registration (the “Registration”) under the United States Securities Act of 1933 (as amended) (the “Securities Act”) of, inter alia, debt securities of the Company (the “Dutch Securities”) which, if issued, will be fully and unconditionally guaranteed as to payment of principal, premium (if any) and interest by Suzano S.A. (the “Guarantor”), a Brazilian corporation. The Dutch Securities relating thereto may be issued from time to time pursuant to the Indenture (as defined in the Schedule to this opinion). We have taken instructions solely from the Company. |
| 2 | This opinion is limited to Dutch law as applied by the Dutch courts and published in print and in effect on the date of this opinion, excluding tax law, the laws of the European Union (insofar as not implemented or incorporated in Dutch law) and market abuse, competition and procurement laws. This opinion is given on the basis that we undertake no responsibility to notify any addressee of this opinion of any change in Dutch law after the date of this opinion. It is given in accordance with customary Dutch legal practice and on the basis that it and all matters relating to it will be governed by and construed in accordance with Dutch law. In this opinion, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. The Dutch concepts concerned may not be identical to the concepts described by the English terms as they may exist or be interpreted under the laws of jurisdictions other than the Netherlands. |
| 3 | For the purpose of this opinion we have examined the documents listed and, where appropriate, defined (together with certain other terms used herein) in the Schedule to this letter. Our examination has been limited to the text of the documents. In addition, we have obtained the following confirmations given by telephone or otherwise on the date of this opinion: |
| 3.1 | Confirmation from the Chamber of Commerce that the Trade Register Extract is up to date in all respects material for this opinion. |
| 3.2 | Confirmation from the central insolvency register (centraal insolventieregister) that the Company is not registered as having been declared bankrupt (failliet verklaard) or granted suspension of payments (surseance verleend) or preparing a public pre-insolvency scheme (openbare akkoordprocedure). |
| 4 | We have assumed the following: |
| 4.1 | All copy documents conform to the originals and all originals are genuine and complete. |
| 4.2 | Each signature is the genuine signature of the individual concerned and, if an electronic signature (elektronische handtekening), it was placed by the person whose electronic signature it purports to be or upon such person’s instruction. |
| 4.3 | All documents were at their date, and have through the date hereof remained, accurate, complete and in full force and effect without modification, and have been or will have been executed in the same form as examined by us for the purposes of this opinion and, in the case of the Dutch Securities, authenticated, effectuated (where required), issued, accepted and paid for in compliance with the Indenture. All confirmations referred to in paragraph 3 are true. |
| 4.4 | The Company has not (i) had its assets placed under administration (onder bewind gesteld), (ii) been dissolved (ontbonden), merged (gefuseerd) or split up (gesplitst), (iii) been subjected to any prevention, intervention or resolution measure or any recovery or resolution tool, power, action or other measure or proceeding however described under or pursuant to the Dutch Financial Supervision Act (Wet op het financieel toezicht) or applicable European regulation (including without limitation Directive 2014/59/EU of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions (the Bank Recovery and Resolution Directive) or Regulation (EU) No. 806/2014 (the Single Resolution Mechanism Regulation)) (collectively, “Measures”) or (iv) registered itself as preparing for a pre-insolvency scheme (akkoord) or been subjected to any one of the insolvency and winding-up proceedings listed in Annex A to Regulation (EU) 2015/848 on insolvency proceedings (recast) or to the appointment of a restructuring expert (herstructureringsdeskundige) (“Insolvency Proceedings”, including, inter alia, bankruptcy (faillissement)). |
| 4.5 | The entry into and performance of the Indenture and the transactions contemplated thereby, including any issues of Dutch Securities, are conducive to the corporate objects and in the interest of the Company. |
| 4.6 | The resolutions referred to in the Schedule have been validly passed, and any conditions and limitations contained therein have been or will have been complied with. The resolution of the Company’s management board is not subjected to the approval of the Company’s general meeting. Each issue of Dutch Securities will have been validly authorised by the Company. |
| 4.7 | No advice is required from any works council in connection with the Registration, the Company’s entry into and performance of the Indenture and issue and performance of the Dutch Securities. |
| 4.8 | The Indenture has been, and any powers of attorney have been or will have been, signed on behalf of the Company by such member or members of its management board as required under its articles of association or, in the case of the Indenture, by a person or persons duly authorised to do so under a valid power of attorney, if in facsimile with the approval of the signatory. |
| 4.9 | No member of the Company’s management board has a conflict of interest (tegenstrijdig belang) with respect to the Registration, the Dutch Securities or the Indenture (or the transactions contemplated thereby). |
| 4.10 | All documents and their entry into and performance are within the capacity and powers (corporate and otherwise) of, and have been or will have been validly authorised, entered into and duly performed by, each party thereto other than the Company. |
| 4.11 | All documents (including the Dutch Securities), including any governing law provisions contained therein, are valid, binding and enforceable on each party (including the Company) under the law to which they are expressed to be subject where that is not Dutch law, and under any applicable law other than Dutch law. Words and phrases used in those documents have the same meaning and effect as they would if those documents were governed by Dutch law. The Dutch Securities are not in bearer form but in registered form. |
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| 4.12 | Insofar as any obligation of the Company under the Indenture or the Dutch Securities falls to be performed in, or is otherwise affected by the laws of, any jurisdiction other than the Netherlands, its performance would not be illegal or ineffective under the laws of that jurisdiction. |
| 4.13 | There are no provisions of any law, other than Dutch law, which may apply to the Dutch Securities or the Indenture (or the transactions contemplated thereby) or to any power of attorney issued by the Company, which would affect this opinion. |
| 4.14 | No Dutch Securities will be admitted to trading on a regulated market and no Dutch Securities will be offered in the Netherlands. |
| 4.15 | No Dutch Securities will be issued beyond the maximum amount as may be authorised by the management board of the Company and approved by its general meeting if required. |
| 4.16 | The Dutch Securities will be issued with terms and conditions that make the Dutch Securities neither qualify as game or wager (spel en weddenschap) within the meaning of the Dutch Civil Code nor fall within the scope of the Games of Chance Act (Wet op de kansspelen). |
| 4.17 | The Company complies and will continue to comply with the conditions for one of the exemptions contained in the Financial Supervision Act from the requirement to be authorised or licensed as a bank, including, inter alia, that the Company is a subsidiary of the Guarantor. |
| 5 | In our opinion: |
| 5.1 | The Company has been incorporated and is existing as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under Dutch law. |
| 5.2 | The Company has the corporate power to enter into and perform the Indenture and to issue and perform the Dutch Securities. |
| 5.3 | The Company has taken all necessary corporate action to authorise its entry into and performance of the Indenture. |
| 5.4 | The Company has validly signed the Indenture. |
| 5.5 | The entry into and performance of the Indenture and the issue and performance of the Dutch Securities by the Company does not violate Dutch law or its articles of association. |
| 5.6 | Under Dutch law and in accordance with and subject to Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) (the “Rome I Regulation”), the choice of New York law as the governing law of the Indenture and the Dutch Securities is recognised as a valid choice of law and accordingly New York law governs the validity, binding effect and enforceability of the Indenture and the Dutch Securities against the Company. |
| 6 | This opinion is subject to any matters not disclosed to us and to the following qualifications: |
| 6.1 | The term “enforceability” as used above (including the term “binding effect” in relation to proceedings in a Dutch court to enforce a judgment rendered by a New York court or otherwise), or any other reference by whatever term to enforcement, means that the obligations assumed by the relevant party under the relevant document are of a type which the Dutch courts enforce. It does not mean that those obligations (or such judgment) will necessarily be enforced in all circumstances in accordance with their (or its) terms. We do not express any opinion as to whether specific performance or in-junctive relief would be available. |
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| 6.2 | This opinion is limited by, and therefore we do not express any opinion or statement as to the consequences of, any Insolvency Proceeding, Measure, resolution, insolvency, liquidation (ontbinding en vereffening), reorganisation, fraudulent conveyance (Actio Pauliana) and other laws relating to or affecting the rights of creditors, and any sanctions and measures implemented or effective in the Netherlands under the Sanctions Act 1977 (Sanctiewet 1977) or European Union regulations or otherwise by international sanctions. |
| 6.3 | Under Dutch law, a power of attorney does not preclude the principal from performing the legal acts covered by the power of attorney and can be made irrevocable only insofar as it is granted for the purpose of performing a legal act in the interest of the attorney or a third party and subject to any amendments made or limitations imposed by the court on serious grounds (gewichtige redenen). Each power of attorney (volmacht) or mandate (lastgeving), whether or not irrevocable, granted by a company, will terminate by force of law and without notice, upon bankruptcy of the company or the death of or termination by the attorney or the attorney being placed under guardianship or the attorney being disqualified as a director of the company, and will cease to have effect upon the company having been granted a suspension of payments or subjected to Measures. This qualification would also apply to the extent that the appointment of a process agent or other agent were to be deemed to constitute a power of attorney or a mandate. |
| 6.4 | If a facsimile signature is used for the Dutch Securities, each signatory should consent to such use of his signature and evidence of such consent may be required for the enforcement of the Dutch Securities in the Netherlands. If a Dutch Security is signed on behalf of the Company (manually, electronically or in facsimile) by a person who is a duly authorised representative of the Company on signing but no longer on the actual issue date of the Dutch Security, enforcement of the Dutch Security in the Netherlands may require that the holder thereof presents both the Dutch Security and evidence of the agreement of the Company to also be bound in such circumstances and evidence of the consent of the signatory. |
| 6.5 | A provision in an agreement requiring, forbidding or restricting a company to take any action that falls within the powers of its general meeting, or similar corporate body, may not be enforceable. |
| 6.6 | We do not express any opinion as to any “deemed” action or absence thereof. |
| 6.7 | To the extent Dutch law applies, an indemnity will not be enforceable if the damage, loss, cost, liability or expense against which a person or legal entity is indemnified is a result of wilful misconduct or gross negligence of such person or entity or if such person or entity did not act in good faith. |
| 6.8 | Dutch law does not know the concept of trust as this is known under common law, nor the concept of suspense account, and we do not express any opinion in respect thereof. Any provision pursuant to which moneys or goods are to be held in trust by one party for another party or are to be segregated from the other assets of the party concerned (or provisions having a similar intended effect) may not be enforceable in the Netherlands. |
| 6.9 | To the extent Dutch law applies, any provision to the effect that no holder of a Dutch Security shall have any right to institute any action or proceeding, judicial or otherwise, with respect to the Dutch Securities or the Indenture, or for the appointment of a receiver or trustee, or for any remedy thereunder, may not be enforceable in all circumstances. |
Page 4 of 7
| 6.10 | To the extent Dutch law applies, any provision to the effect that in any proceedings initiated by the Trustee, the Trustee shall be held to represent all holders of the Dutch Securities to which such proceedings relate, and that it shall not be necessary to make any holders of Dutch Securities party to such proceedings, may not be enforceable in all circumstances. |
| 6.11 | The enforcement in the Netherlands of the Indenture, the Dutch Securities and foreign judgments will be subject to Dutch rules of civil procedure. A Dutch court may mitigate amounts due in respect of litigation and collection costs. |
| 6.12 | A Dutch court may decline jurisdiction if concurrent proceedings are being brought elsewhere. We express no opinion on competing judgments resulting from any concurrent proceedings. |
| 6.13 | Claims may become barred by limitation periods or may be or become subject to set-off or counterclaim. |
| 6.14 | The admissibility of a choice of jurisdiction (such as for courts in the United States) and the procedural consequences of such choice are determined by the laws of the chosen jurisdiction. |
| 6.15 | In proceedings before a court of the Netherlands the service of process against the Company other than by personal delivery by a bailiff of the courts of the Netherlands (gerechtsdeurwaarder) and in accordance with the applicable treaties will not be considered by the court to constitute valid service of process, notwithstanding any provision to the contrary in the Indenture or the Dutch Securities. |
| 6.16 | To the extent that Dutch law applies to the transfer of title to a Dutch Security, this requires delivery (levering) pursuant to a valid agreement (geldige titel) by a transferor who has power to pass on title to that Dutch Security (beschikkingsbevoegdheid). |
| 6.17 | To the extent that Dutch law is applicable to the Dutch Securities or any transfer thereof, any provision to the effect that the (registered) holder of a Dutch Security may be treated as the absolute owner thereof or solely entitled thereto may not be enforceable in all circumstances. |
| 6.18 | We do not express any opinion as to any co-ownership interest in, or transfer of, any Dutch Security. |
| 6.19 | To the extent that any provisions of the Dutch Securities or the Indenture are general conditions (algemene voorwaarden) within the meaning of Section 6:231 of the Dutch Civil Code, a holder of Securities may nullify (vernietigen) a provision therein if (i) the Company has not offered the holder of Dutch Securities a reasonable opportunity to examine the terms and conditions of the Dutch Security or the Indenture or (ii) the provision, having regard to all relevant circumstances, is unreasonably onerous (onredelijk bezwarend) to the holder of Dutch Securities. |
| 6.20 | To the extent Dutch law applies, as to the acquisition of Dutch Securities by their issuer, Dutch Securities will be cancelled by operation of law. |
| 6.21 | We do not express any opinion as to the authority of any of the parties other than the Company to perform the provisions of the Indenture applicable to it. |
| 6.22 | We do not express any opinion as to any specific issue of Dutch Securities, which we may do in a separate opinion or reliance letter referring to this programme opinion. |
| 6.23 | It should be understood that we have not been responsible for investigating or verifying the accuracy of the facts or the reasonableness of any statements of belief or opinion contained in the Registration Statement (including the prospectus contained therein), or that no material facts have been omitted from it. |
Page 5 of 7
| 6.24 | The Trade Register Extract and the confirmations referred to in paragraph 3 do not provide conclusive evidence that the information set out in the Trade Register Extract is correct or that the Company has not become the subject of an Insolvency Proceeding or Measure. |
| 6.25 | We do not express any opinion as to facts. |
| 7 | This opinion is addressed to you solely for your benefit in connection with the filing of the Registration Statement. It is not to be transmitted to anyone else nor is it to be relied upon by anyone else or for any other purpose or quoted or referred to in any public document or filed with anyone without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us made under the heading “Validity of Securities” and “Exhibits” in the Registration Statement. In giving this consent we do not admit that we are within the category of persons whose consent is required within Section 7 of the Securities Act or the rules and regulations of the United States Securities and Exchange Commission thereunder. |
Yours faithfully
/s/ Linklaters LLP
Linklaters LLP
Page 6 of 7
Schedule
| 1 | An electronic certified copy of an extract from the trade register (the “Trade Register Extract”) obtained from the chamber of commerce (the “Chamber of Commerce”) regarding the Company dated 30 April 2025. |
| 2 | A copy of a notarial copy of the Company’s deed of incorporation dated 12 December 2024 including the articles of association, as obtained from and according to the Chamber of Commerce. |
| 3 | A print-out of an electronic copy of a written resolution of the management board of the Company dated 28 April 2025, confirming certain matters with respect to the Registration and the Indenture. |
| 4 | A print-out of an electronic copy of the Registration Statement (but excluding any documents incorporated by reference in it and any exhibits to it, save for the form of Indenture referred to below). |
| 5 | A print-out of an electronic copy of an executed base indenture relating to the Dutch Securities dated 30 April 2025 between the Company as issuer, the Guarantor as guarantor and The Bank of New York Mellon as trustee (the “Trustee”) (the “Indenture”) (to be supplemented with a supplemental indenture at the time of closing of the Company’s next issuance of Dutch Securities under the Registration Statement to be executed between the same parties that will provide for the specific terms of the issued Dutch Securities). |
References to “documents” are to any and all documents mentioned in this Schedule including the Dutch Securities, unless the context requires otherwise.
Page 7 of 7
Exhibit 5.4
 |  |  |
April 30, 2025
Suzano S.A.
Avenida Professor Magalhaes Neto, 1,752
10th Floor, Rooms 1010 and 1011
41810-012 Salvador – BA
Brazil
Suzano Netherlands B.V.
Barbara Strozzilaan 101, 1.01, 1083HN
Amsterdam
The Netherlands
Suzano Austria GmbH
Jakov-Lind-Straße 13
1020 Vienna
Austria
Ladies and Gentlemen:
We have acted as special United States counsel to Suzano S.A., a corporation (sociedade por ações) incorporated under the laws of Brazil (“Suzano”), Suzano Netherlands, a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (“Suzano Netherlands”) and Suzano Austria GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Austria (“Suzano Austria”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form F-3 of Suzano, Suzano Netherlands and Suzano Austria (the “Registration Statement”) relating to the offering from time to time, together or separately and in one or more series (if applicable), of (i) debt securities of Suzano Netherlands (the “Suzano Netherlands Debt Securities”) to be fully and unconditionally guaranteed by Suzano, and (ii) debt securities of Suzano Austria (the “Suzano Austria Debt Securities” and, together with the Suzano Netherlands Debt Securities, the “Debt Securities”) to be fully and unconditionally guaranteed by Suzano. The Debt Securities, together with their corresponding Guarantees (as defined below), are referred to as the “Offered Securities”. The securities being registered under the Registration Statement will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act, at offering prices to be determined from time to time.
Suzano S.A.
Suzano Netherlands B.V.
Suzano Austria GmbH
Page 2
The Suzano Netherlands Securities are to be issued from time to time under an indenture (the “Suzano Netherlands Indenture”) to be entered among Suzano Netherlands, Suzano and the Bank of New York Mellon, as trustee, the form of which is attached as an exhibit to the Registration Statement. The Suzano Austria Debt Securities are to be issued from time to time under an indenture (the “Suzano Austria Indenture” and, together with the Suzano Netherlands Indenture, the “Indentures”) to be entered among Suzano Austria and the Bank of New York Mellon, as trustee, the form of which is attached as an exhibit to the Registration Statement.
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) | the Registration Statement and the documents incorporated by reference therein; |
| (b) | the form of Suzano Netherlands Indenture, filed as an exhibit to the Registration Statement, including the form of the Debt Securities, the form of notation to be executed by Suzano relating to the guarantee of the Suzano Netherlands Securities (the “Suzano Netherlands Guarantee”), included therein; and |
| (c) | the form of Suzano Austria Indenture, filed as an exhibit to the Registration Statement, including the form of the Debt Securities, the form of notation to be executed by Suzano relating to the guarantee of the Suzano Austria Debt Securities (the “Suzano Austria Guarantee” and, together with the Suzano Netherlands Guarantee, the “Guarantees”), included therein. |
In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified (i) the accuracy as to factual matters of each document we have reviewed, (ii) that the Debt Securities will conform to the forms we have reviewed.
Suzano S.A.
Suzano Netherlands B.V.
Suzano Austria GmbH
Page 3
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
1. The Suzano Netherlands Debt Securities to be issued under the Suzano Netherlands Indenture, when issued and sold by Suzano Netherlands in the manner contemplated in the Registration Statement and upon due execution and delivery of the Suzano Netherlands Debt Securities in accordance with the terms of the Suzano Netherlands Indenture, will be valid, binding and enforceable obligations of Suzano Netherlands, entitled to the benefits of the Suzano Netherlands Indenture.
2. The Suzano Austria Debt Securities to be issued under the Suzano Austria Indenture, when issued and sold by Suzano Austria in the manner contemplated in the Registration Statement and upon due execution and delivery of the Suzano Austria Debt Securities in accordance with the terms of the Suzano Austria Indenture, will be valid, binding and enforceable obligations of Suzano Austria, entitled to the benefits of the Suzano Austria Indenture.
3. The Suzano Netherlands Guarantee to be issued under the Suzano Netherlands Indenture, when issued and granted by Suzano in the manner contemplated in the Registration Statement, will be the valid, binding and enforceable obligation of Suzano, entitled to the benefits of the Suzano Netherlands Indenture.
4. The Suzano Austria Guarantee to be issued under the Suzano Austria Indenture, when issued and granted by Suzano in the manner contemplated in the Registration Statement, will be the valid, binding and enforceable obligation of Suzano, entitled to the benefits of the Suzano Austria Indenture.
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of Suzano, Suzano Netherlands or Suzano Austria, (a) we have assumed that each of Suzano, Suzano Netherlands and Suzano Austria, as the case may be, and each other party to such agreement or obligation has satisfied or, prior to the issuance of the Offered Securities, will satisfy those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to Suzano, Suzano Netherlands or Suzano Austria regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities in relation to transactions of the type contemplated in the Indentures and the Offered Securities), (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity and (c) such opinions are subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
Suzano S.A.
Suzano Netherlands B.V.
Suzano Austria GmbH
Page 4
In rendering the opinions expressed in numbered paragraphs 1 and 2 above, we have assumed that each series of Debt Securities will be issued with an original aggregate principal amount (or, in the case of any Debt Securities issued at original issue discount, an aggregate issue price) of US$2,500,000 or more.
In rendering the opinions expressed above, we have further assumed that (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and will comply with all applicable laws, (ii) the Registration Statement will be effective and will comply with all applicable laws at the time the Offered Securities are offered or issued as contemplated by the Registration Statement, (iii) the terms of all Debt Securities and, as applicable, the accompanying Guarantees, will conform to the forms thereof contained in the applicable indenture will not violate any applicable law, result in a default under or breach of any agreement or instrument binding upon Suzano, Suzano Netherlands or Suzano Austria, as the case may be, or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over Suzano, Suzano Netherlands or Suzano Austria, as applicable, (iv) the Debt Securities and, as applicable, the accompanying Guarantees, will be issued, sold and delivered to, and paid for by, the purchasers at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto, (v) Suzano, Suzano Netherlands or Suzano Austria, as applicable, will authorize the offering and issuance of the Debt Securities and, as applicable, the accompanying Guarantees, and will authorize, approve and establish the final terms and conditions thereof and will authorize, approve and establish the terms and conditions of any applicable Guarantee, as the case may be, and will take any other appropriate additional corporate action, and (vi) certificates, if required, representing the Debt Securities and, as applicable, the accompanying Guarantees, will be duly executed and delivered and, to the extent required by the applicable indenture, duly authenticated and countersigned.
We express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the Offered Securities where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist.
We note that (a) the enforceability in the United States of the waiver in Section 1.15 of the Indentures by each of Suzano Netherlands and Suzano Austria of any immunities from court jurisdiction and from legal processes is subject to the limitations imposed by the United States Foreign Sovereign Immunities Act of 1976 and (b) the designation in Section 1.15 of the Indentures of the United States federal courts sitting in the Borough of Manhattan, City of New York as the venue for actions or proceedings relating to the Debt Securities or the applicable indenture is (notwithstanding the waiver in Section 1.15 of the Indentures) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. § 1404 (a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such an action or proceeding.
Suzano S.A.
Suzano Netherlands B.V.
Suzano Austria GmbH
Page 5
With respect to any Offered Securities that may be issued in a currency other than U.S. dollars, we note that by statute New York provides that a judgment or decree rendered in a currency other than the currency of the United States shall be converted into U.S. dollars at a rate of exchange prevailing on the date of entry of the judgment or decree. There is no corresponding federal statute and no controlling federal court decision on this issue. Accordingly, we express no opinion as to whether a federal court would award a judgment in a currency other than U.S. dollars or, if it did so, whether it would order the conversion of the judgment into U.S. dollars.
In addition, we note that the waiver of defenses in Section 12.01 in the Suzano Austria and the Suzano Netherlands Indentures filed as Exhibit 4.1 and 4.2 to the Registration Statement, respectively, may be ineffective to the extent that any such defense involves a matter of public policy in New York (such as reflected in New York’s anti-champerty statute).
The foregoing opinions are limited to the federal law of the United States of America and the law of the State of New York.
We hereby consent to the filing of this opinion as Exhibit 5.4 to the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement under the heading “Validity of Securities” as counsel for Suzano, Suzano Netherlands and Suzano Austria who have passed on the validity of the Debt Securities being registered by the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. We assume no obligation to advise you, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
| Very truly yours, | |
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | |
| By: | |
| /s/ Jonathan Mendes de Oliveira | |
| Jonathan Mendes de Oliveira, a Partner |
Exhibit 21.1
| List of Subsidiaries of Suzano S.A. | ||
| Subsidiaries | Country of Incorporation | |
| BEM AGRO INTEGRAÇÃO E DESENVOLVIMENTO S.A. | BRAZIL | |
| BIOMAS – SERVIÇOS AMBIENTAIS, RESTAURAÇÃO E CARBONO LTDA | BRAZIL | |
| CELLUFORCE INC. | CANADA | |
| ENSYN CORPORATION | U.S. | |
| F&E TECHNOLOGIES, LLC | U.S. | |
| F&E TECNOLOGIA DO BRASIL S.A. | BRAZIL | |
| FIBRIA CELULOSE (U.S.A.), INC. | U.S. | |
| FIBRIA TERMINAL DE CELULOSE DE SANTOS SPE S.A. | BRAZIL | |
| FUTURAGENE DELAWARE INC. | U.S. | |
| FUTURAGENE INC. | U.S. | |
| FUTURAGENE ISRAEL LTD. | ISRAEL | |
| FUTURAGENE LTD | ENGLAND | |
| IBEMA COMPANHIA BRASILEIRA DE PAPEL | BRAZIL | |
| ITACEL – TERMINAL DE CELULOSE DE ITAQUI S.A. | BRAZIL | |
| LENZING | AUSTRIA | |
| MAXCEL EMPREENDIMENTOS E PARTICIPAÇÕES S.A. | BRAZIL | |
| MUCURI ENERGÉTICA S.A. | BRAZIL | |
| NFINITE NANOTECHNOLOGY INC. | CANADA | |
| PAINEIRAS LOGÍSTICA E TRANSPORTES LTDA. | BRAZIL | |
| PORTOCEL – TERMINAL ESPECIALIZADO DE BARRA DO RIACHO S.A. | BRAZIL | |
| PROJETOS ESPECIAIS E INVESTIMENTOS LTDA. | BRAZIL | |
| SFBC PARTICIPAÇÕES LTDA. | BRAZIL | |
| SIMPLIFYBER | U.S. | |
| SPINNOVA PLC | FINLAND | |
| STENFAR S.A. INDUSTRIAL COMERCIAL IMPORTADORA Y EXPORTADORA | ARGENTINA | |
| SUZANO AUSTRIA GMBH | AUSTRIA | |
| SUZANO CANADA INC. | CANADA | |
| SUZANO ECUADOR S.A.S | EQUADOR | |
| SUZANO FINLAND OY | FINLAND | |
| SUZANO INTERNATIONAL FINANCE B.V. | NETHERLANDS | |
| SUZANO INTERNATIONAL HOLDING B.V. | NETHERLANDS | |
| SUZANO INTERNATIONAL TRADE GMBH | AUSTRIA | |
| SUZANO MATERIAL TECHNOLOGY DEVELOPMENT LTD. | SHANGHAI | |
| SUZANO NETHERLANDS B.V. | NETHERLANDS | |
| SUZANO OPERAÇÕES FLORESTAIS E INDUSTRIAIS S.A. | BRAZIL | |
| SUZANO PACKAGING LLC | U.S. | |
| SUZANO PULP AND PAPER AMERICA, INC. | U.S. | |
| SUZANO PULP AND PAPER EUROPE S.A. | SWITZERLAND | |
| SUZANO SHANGHAI LTD. | CHINA | |
| SUZANO SHANGHAI TRADING LTD. | CHINA | |
| SUZANO SINGAPORE PTE. LTD. | SINGAPORE | |
| SUZANO TRADING INTERNATIONAL KFT | HUNGARY | |
| SUZANO VENTURES LLC | U.S. | |
| VERACEL CELULOSE S.A. | BRAZIL | |
| WOODSPIN | FINLAND | |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Suzano S.A. of our report dated February 12, 2025 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Suzano S.A.'s Annual Report on Form 20-F for the year ended December 31, 2024. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers Auditores
Independentes Ltda.
São Paulo, Brazil
April 30, 2025
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New York (Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382 |
240
Greenwich Street, New York, N.Y. |
10286 (Zip code) |
Suzano Austria GmbH
(Exact name of obligor as specified in its charter)
The
Republic of Austria |
Not Applicable (I.R.S. employer identification no.) |
|
Jakov-Lind-Straße 13 1020 Vienna Austria |
|
Suzano S.A.
(Exact name of registrant as specified in its charter)
Suzano Inc.
(Translation of Registrant’s Name into English)
|
The Federative Republic of Brazil (State or other jurisdiction of incorporation or organization) |
Not Applicable identification no.) |
|
Av. Professor Magalhaes Neto, 1,752 10th Floor, Rooms 009, 1010 and 1011 Salvador, Brazil 41810-012 (Address of principal executive offices) |
|
Debt
Securities
and Guarantees of Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address | ||
| Superintendent of the Department of Financial Services of the State of New York | One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 | ||
| Federal Reserve Bank of New York | 33 Liberty Street, New York, N.Y. 10045 | ||
| Federal Deposit Insurance Corporation | 550 17th Street, NW Washington, D.C. 20429 | ||
| The Clearing House Association L.L.C. | 100 Broad Street New York, N.Y. 10004 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-261533). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
| -2- |
SIGNATURE
Pursuant to the requirements
of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of
New York, and State of New York, on the
23rd day of April, 2025.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Stacey B. Poindexter | ||
| Name: | Stacey B. Poindexter | ||
| Title: | Vice President | ||
| -3- |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2024, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| Dollar amounts in thousands | |||
| ASSETS | ||||
| Cash and balances due from depository institutions: | ||||
| Noninterest-bearing balances and currency and coin | 3,316,000 | |||
| Interest-bearing balances | 96,711,000 | |||
| Securities: | ||||
| Held-to-maturity securities | 48,596,000 | |||
| Available-for-sale debt securities | 87,787,000 | |||
| Equity securities with readily determinable fair values not held for trading | 0 | |||
| Federal funds sold and securities purchased under agreements to resell: | ||||
| Federal funds sold in domestic offices | 0 | |||
| Securities purchased under agreements to resell | 24,014,000 | |||
| Loans and lease financing receivables: | ||||
| Loans and leases held for sale | 0 | |||
| Loans and leases held for investment | 37,084,000 | |||
| LESS: Allowance for credit losses on loans and leases | 272,000 | |||
| Loans and leases held for investment, net of allowance | 36,812,000 | |||
| Trading assets | 7,593,000 | |||
| Premises and fixed assets (including right-of-use assets) | 2,912,000 | |||
| Other real estate owned | 0 | |||
| Investments in unconsolidated subsidiaries and associated companies | 2,021,000 | |||
| Direct and indirect investments in real estate ventures | 0 | |||
| Intangible assets | 7,329,000 | |||
| Other assets | 18,864,000 | |||
| Total assets | 335,955,000 | |||
| -4- |
| LIABILITIES | ||||
| Deposits: | ||||
| In domestic offices | 194,168,000 | |||
| Noninterest-bearing | 61,444,000 | |||
| Interest-bearing | 132,724,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 97,210,000 | |||
| Noninterest-bearing | 3,557,000 | |||
| Interest-bearing | 93,653,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: | ||||
| Federal funds purchased in domestic offices | 0 | |||
| Securities sold under agreements to repurchase | 2,499,000 | |||
| Trading liabilities | 2,911,000 | |||
| Other borrowed money: (includes mortgage indebtedness) | 3,031,000 | |||
| Not applicable | ||||
| Not applicable | ||||
| Subordinated notes and debentures | 0 | |||
| Other liabilities | 8,176,000 | |||
| Total liabilities | 307,995,000 | |||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus | 0 | |||
| Common stock | 1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) | 12,511,000 | |||
| Retained earnings | 17,415,000 | |||
| Accumulated other comprehensive income | -3,101,000 | |||
| Other equity capital components | 0 | |||
| Total bank equity capital | 27,960,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||
| Total equity capital | 27,960,000 | |||
| Total liabilities and equity capital | 335,955,000 |
| -5- |
I, Dermot McDonogh, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
| Dermot McDonogh Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Robin A. Vince Jeffrey A. Goldstein Joseph J. Echevarria |
Directors |
| -6- |
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New York (Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382
|
| 240 Greenwich Street, New York, N.Y. (Address of principal executive offices) |
10286 (Zip code) |
Suzano Netherlands B.V.
(Exact name of obligor as specified in its charter)
| The Netherlands (State or other jurisdiction of incorporation or organization) |
Not Applicable
|
|
Barbara Strozzilaan 101, 1.01, 1083HN Amsterdam The Netherlands (Address of principal executive offices) |
|
Suzano S.A.
(Exact name of registrant as specified in its charter)
Suzano Inc.
(Translation of Registrant’s Name into English)
|
The Federative Republic of Brazil (State or other jurisdiction of incorporation or organization)
|
Not Applicable identification no.) |
|
Av. Professor Magalhaes Neto, 1,752 10th Floor, Rooms 1009, 1010 and 1011 Salvador, Brazil 41810-012 (Address of principal executive offices)
|
|
Debt
Securities
and Guarantees of Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address | ||
| Superintendent of the Department of Financial Services of the State of New York | One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 | ||
| Federal Reserve Bank of New York | 33 Liberty Street, New York, N.Y. 10045 | ||
| Federal Deposit Insurance Corporation | 550 17th Street, NW Washington, D.C. 20429 | ||
| The Clearing House Association L.L.C. | 100 Broad Street New York, N.Y. 10004 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").
| 1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
| 4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-261533). |
| 6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
| -1- |
SIGNATURE
Pursuant to the requirements
of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of
New York, and State of New York, on the
23rd day of April, 2025.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Stacey B. Poindexter | ||
| Name: | Stacey B. Poindexter | ||
| Title: | Vice President | ||
| -2- |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2024, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| Dollar amounts in thousands | |||
| ASSETS | ||||
| Cash and balances due from depository institutions: | ||||
| Noninterest-bearing balances and currency and coin | 3,316,000 | |||
| Interest-bearing balances | 96,711,000 | |||
| Securities: | ||||
| Held-to-maturity securities | 48,596,000 | |||
| Available-for-sale debt securities | 87,787,000 | |||
| Equity securities with readily determinable fair values not held for trading | 0 | |||
| Federal funds sold and securities purchased under agreements to resell: | ||||
| Federal funds sold in domestic offices | 0 | |||
| Securities purchased under agreements to resell | 24,014,000 | |||
| Loans and lease financing receivables: | ||||
| Loans and leases held for sale | 0 | |||
| Loans and leases held for investment | 37,084,000 | |||
| LESS: Allowance for credit losses on loans and leases | 272,000 | |||
| Loans and leases held for investment, net of allowance | 36,812,000 | |||
| Trading assets | 7,593,000 | |||
| Premises and fixed assets (including right-of-use assets) | 2,912,000 | |||
| Other real estate owned | 0 | |||
| Investments in unconsolidated subsidiaries and associated companies | 2,021,000 | |||
| Direct and indirect investments in real estate ventures | 0 | |||
| Intangible assets | 7,329,000 | |||
| Other assets | 18,864,000 | |||
| Total assets | 335,955,000 | |||
| -3- |
| LIABILITIES | ||||
| Deposits: | ||||
| In domestic offices | 194,168,000 | |||
| Noninterest-bearing | 61,444,000 | |||
| Interest-bearing | 132,724,000 | |||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 97,210,000 | |||
| Noninterest-bearing | 3,557,000 | |||
| Interest-bearing | 93,653,000 | |||
| Federal funds purchased and securities sold under agreements to repurchase: | ||||
| Federal funds purchased in domestic offices | 0 | |||
| Securities sold under agreements to repurchase | 2,499,000 | |||
| Trading liabilities | 2,911,000 | |||
| Other borrowed money: (includes mortgage indebtedness) | 3,031,000 | |||
| Not applicable | ||||
| Not applicable | ||||
| Subordinated notes and debentures | 0 | |||
| Other liabilities | 8,176,000 | |||
| Total liabilities | 307,995,000 | |||
| EQUITY CAPITAL | ||||
| Perpetual preferred stock and related surplus | 0 | |||
| Common stock | 1,135,000 | |||
| Surplus (exclude all surplus related to preferred stock) | 12,511,000 | |||
| Retained earnings | 17,415,000 | |||
| Accumulated other comprehensive income | -3,101,000 | |||
| Other equity capital components | 0 | |||
| Total bank equity capital | 27,960,000 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||
| Total equity capital | 27,960,000 | |||
| Total liabilities and equity capital | 335,955,000 |
| -4- |
I, Dermot McDonogh, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
| Dermot McDonogh Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Robin A. Vince Jeffrey A. Goldstein Joseph J. Echevarria |
Directors |
| -5- |