Exhibit 4.13
as Borrower,
NATURA COSMÉTICOS S.A. and NATURA &CO HOLDING S.A.,
as Guarantors,
THE LENDERS PARTY HERETO,
as Lenders
MIZUHO BANK, LTD.,
as Administrative Agent
BANK OF AMERICA, N.A., LONDON BRANCH, CITIBANK, N.A., HSBC BANK USA, NATIONAL ASSOCIATION, ITAU BBA INTERNATIONAL PLC, JPMORGAN CHASE BANK, N.A. and MIZUHO BANK LTD.
as Joint Bookrunners
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Arranger
| Section 10.20. No Advisory or Fiduciary Responsibility | 98 |
| Section 10.21. Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 98 |
SCHEDULES:
Schedule 1.01 – Administrative Agent’s Account
Schedule 2.01 – Commitments
EXHIBITS:
Exhibit A – Form of Assignment
Exhibit B – Form of Note
Exhibit C – Form of Borrowing Request
Exhibit D – Form of Amendment
REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of October 28, 2021, by and among:
| (1) | NATURA &CO LUXEMBOURG HOLDINGS S.À R.L., a private limited company (société à responsabilité limitée), with registered office at 8-10, Avenue de la Gare, L-1610 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B 98931 (the “Borrower”); |
| (2) | NATURA COSMÉTICOS S.A. (“Natura Cosméticos”) and NATURA &CO HOLDING S.A. (the “Parent”), each a company organized and incorporated under the laws of Brazil (each a “Guarantor” and collectively the “Guarantors”); |
| (3) | EACH OF THE LENDERS that is a signatory hereto under the caption “LENDERS” on the signature pages hereto (together with each other Person that becomes a “Lender” after the date hereof pursuant to Section 10.04 (the “Lenders” and each, a “Lender”); and |
| (4) | MIZUHO BANK, LTD., as administrative agent, for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”). |
RECITALS:
WHEREAS, the Borrower and the Guarantors have requested that the Lenders, from time to time, make Loans available to the Borrower in an aggregate principal amount outstanding at any time not exceeding $625,000,000;
WHEREAS, the Lenders are prepared to provide such Loans on and subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned agree as follows:
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Subsidiary of any Loan Party or at the time it merges or consolidates with or into any Loan Party or any of its Subsidiaries or assumed in connection with the acquisition of assets from such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary of such Loan Party or such acquisition, merger or consolidation and which Indebtedness is without recourse to any Loan Party or any of its Subsidiaries or to any of their respective properties or assets other than the Person or the assets to which such Indebtedness related prior to the time such Person became a Subsidiary of such Loan Party or the time of such acquisition, merger or consolidation.
“Additional Commitment Lender” has the meaning assigned to such term in Section 2.21(d).
“Administrative Agent” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Administrative Agent’s Account” means the account of the Administrative Agent set forth on Schedule 1.01, or such other account as may be designated by the Administrative Agent to the Borrower in writing.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by or otherwise acceptable to the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agent Parties” has the meaning assigned to such term in Section 10.01(e)(ii).
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreement” means this Revolving Credit and Guaranty Agreement.
“Anti-Corruption Laws” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, the UK Bribery Act 2010, as amended, and the rules and regulations thereunder, all Brazilian anti-corruption laws, rules and regulations and all other laws, rules, and regulations of any jurisdiction that, in each case, are applicable to any Loan Party or any of its respective Subsidiaries, from time to time, concerning or relating to bribery or corruption.
“Anti-Money Laundering Laws” means the applicable financial recordkeeping and reporting requirements of the PATRIOT Act, the Money Laundering Control Act of 1986 and the regulations and rules promulgated thereunder, as amended from time to time, the Bank Secrecy Act of 1970 and the regulations and rules promulgated thereunder, as amended from time to time, and all other anti-money laundering and anti-terrorism laws of the jurisdictions in which any Loan Party or any of its Subsidiaries operates or in which the proceeds of the Loans will be used or from which repayments of the obligations under the Loan Documents will be derived, in each case, to the extent binding on such Loan Party or any of its Subsidiaries.
“Applicable Margin” means, for any day with respect to any LIBO Rate Loan or Base Rate Loan, the applicable rate per annum set forth below, based upon the Debt Rating applicable on such date to the Index Debt:
Pricing Level | Debt Rating (S&P/Moody’s/Fitch) | LIBO Rate Loan (or any Benchmark Replacement)
| Base Rate Loan Applicable Margin |
1 | BBB-, Baa3, BBB- or better | 1.20% | 0.20% |
2 | BB+, Ba1 or BB+ | 1.50% | 0.50% |
3 | BB, Ba2 or BB | 1.65% | 0.65% |
4 | BB-, Ba3 or BB- | 2.00% | 1.00% |
5 | B+, B1, B+ or worse | 2.50% | 1.50% |
provided that in no event shall the Applicable Margin with respect to LIBO Rate Loans and Base Rate Loans be less than zero percent per annum.
“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time. If the Commitment of each Lender to make Loans has been terminated pursuant to Article 7 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment pursuant to which such Lender becomes a party hereto, as applicable.
“Arranger” means Morgan Stanley Senior Funding, Inc.
“Assignment” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.04) and accepted by the Administrative Agent in the form of Exhibit A or any other form approved by the Administrative Agent.
“Availability Period” means the period from and including the Effective Date to but excluding the Commitment Termination Date.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus ½ of 1.0% and (c) the LIBO Rate for deposits in Dollars for a one-month interest period commencing on such day (or, if such day is not a Business Day, the next preceding Business Day) plus 1.0%. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or such LIBO Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.18 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as determined pursuant to the foregoing would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Base Rate Loan” means a Loan that bears interest at a rate determined by reference to the Base Rate.
“Benchmark” means, initially, USD LIBOR; provided that if a replacement of the Benchmark has occurred pursuant to Section 2.20, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement” means, for any Available Tenor:
(1) For purposes of Section 2.20(a), the first alternative set forth below that can be determined by the Administrative Agent:
(a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, or
(b) the sum of: (i) Daily Simple SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of USD LIBOR with a SOFR-based rate having approximately the same length as the interest payment period specified in Section 2.20(a); and
(2) For purposes of Section 2.20(b), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for Dollar-denominated syndicated credit facilities at such time;
provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, the formula for calculating any successor rates identified pursuant to the definition of “Benchmark Replacement”, the formula, methodology or convention for applying the successor Floor to the successor Benchmark Replacement and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Transition Event” means, with respect to any then-current Benchmark other than USD LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Borrower” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Borrowing” means a borrowing of Loans under Section 2.03.
“Borrowing Request” has the meaning assigned to such term in Section 2.03.
“Brazilian Civil Code” means Brazilian law number 10.406, dated as of January 10, 2002, as amended from time to time.
“Brazilian Civil Procedure Code” means Brazilian law number 13.105, dated as of March 16, 2015, as amended from time to time.
“Brazilian Corporate Law” means Brazilian law number 6.404, dated as of December 15, 1976, as amended from time to time.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, United States, London, England, Luxembourg or São Paulo, Brazil are authorized or required by law to remain closed; provided that, when used in connection with a LIBO Rate Loan, the term “Business Day” shall also exclude any day on which commercial banks are not open for international business, including dealings in Dollar deposits in the London interbank market.
“Capital Lease Obligations” means, with respect to any Person, the obligations of such Person under any lease that is required to be classified and accounted for as capital lease obligations on a balance sheet prepared in accordance with GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Change in Law” means, the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of, or compliance by any Lender (or, for purposes of Section 2.11(b), by any lending office of such Lender or by such Lender’s holding company, if any) with, any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued; provided that (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
“Change of Control” means:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Parent and its Subsidiaries taken as a whole to any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act)), other than to one or more of the Permitted Holders, and other than pursuant to (i) any such transaction in which immediately after the consummation thereof, no “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) other than one or more Permitted Holders is the “beneficial owner” (as such term is used in Rules 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Person to which all or substantially all of the assets of the Parent and its Subsidiaries taken as a whole are sold, leased, transferred or conveyed, or (ii) any such sale, lease, transfer or conveyance to one or more Permitted Holders if immediately after such transaction no “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is the “beneficial owner” (as defined in Rules 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the voting power of the outstanding Voting Stock of such Permitted Holder; or
(2) the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any Person (including any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act)), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as such term is used in Rules 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Parent; or
(3) the Parent ceases to Control the Borrower or Natura Cosméticos.
For purposes of clause (2) above, any direct or indirect holding company of the Parent shall not itself be considered a “person” or “group”; provided that no “person” or “group” (other than one or more of the Permitted Holders) beneficially owns, directly or indirectly, more than 50% of the total voting power of the Voting Stock of such holding company.
For the avoidance of doubt, a Change of Control shall not occur in the event of a merger or consolidation between Subsidiaries of the Parent or a merger of the Parent or any Subsidiary thereof with or into the Parent or any Subsidiary thereof, as the case may be.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Commitment” means, as to any Lender, the obligation of such Lender, if any, to make a Loan to the Borrower in a principal amount not to exceed the amount set forth under the heading “Commitment” opposite such Lender’s name on Schedule 2.01, as such amount may be reduced or increased pursuant to Section 2.06 and Section 10.04. The initial aggregate amount of the Commitments of all Lenders is $625,000,000.
“Commitment Termination Date” means the earlier to occur of (i) the date that is thirty (30) days prior to the Maturity Date (except that if such date is not a Business Day, the Commitment Termination Date shall be the next preceding Business Day) and (ii) the date when all of the Commitments are terminated in full by the Borrower pursuant to Section 2.06.
“Commodity Agreement” means any hedging agreement or other similar agreement or arrangement designed to protect the Loan Parties or any of their respective Subsidiaries against fluctuations in commodity prices (excluding contracts for the purchase or sale of goods in the ordinary course of business).
“Common Stock” means, with respect to any Person, any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common shares, whether outstanding on date of this Agreement or issued after the date of this Agreement, and includes, without limitation, all series and classes of such common shares.
“Communications” has the meaning assigned to such term in Section 10.01(e)(ii).
“Compliance Certificate” has the meaning assigned to such term in Section 5.01(c).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Subsidiaries” means, as to any Person and as of any date, all Subsidiaries of such Person and other entities the accounts of which are or would be consolidated with those of such Person for financial reporting purposes as of such date, in accordance with GAAP.
“Consolidated Total Assets” means, at any date of determination, the total amount of the consolidated assets of the Parent and its Subsidiaries, as set forth on the most recent consolidated quarterly financial statements of the Parent, calculated after giving pro forma effect to any acquisition or disposition of companies, divisions, lines of businesses, operations or assets by the Parent and its Subsidiaries subsequent to such date and on or prior to the date of determination.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.
“Controlling” and “Controlled” have meanings correlative thereto.
“Currency Agreement” means any foreign exchange contract, currency swap agreement, currency option or other similar agreement or arrangement designed to protect the Loan Parties or any of their respective Subsidiaries against fluctuations in currency values.
“CVM” means the Securities and Exchange Commission of Brasil (Comissão de Valores Mobiliários).
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, Brazil and Luxembourg, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Debt Rating” means, as of any date of determination, the highest Index Debt rating of the Parent, as determined by at least two Rating Agencies (collectively, the “Debt Ratings”); provided that (a) if two Rating Agencies shall issue a Debt Rating, and such Debt Ratings differ by one level, then the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest); (b) if two Rating Agencies shall issue a Debt Rating, and such Debt Ratings differ by more than one level, then the Pricing Level that is one level lower than the Pricing Level of the higher Debt Rating shall apply; (c) if three Rating Agencies shall issue a Debt Rating and any two or three of the Debt Ratings are the same, then the Pricing Level shall be determined by reference to such Debt Ratings; (d) if three Rating Agencies shall issue a Debt Rating and each Debt Rating is in a different Pricing Level, then the Pricing Level that is one level higher than the middle Debt Rating shall apply; (e) if the Parent has only one Debt Rating, the Pricing Level of such Debt Rating shall apply; and (f) if the Parent does not have any Debt Rating, Pricing Level 5 shall apply.
“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, be an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed to fund any portion of its Loans required to be funded by it hereunder within three Business Days of the date required to be funded by it hereunder (unless such failure is due to a condition precedent to funding not having been satisfied as notified by such Lender to the Administrative Agent), (b) has notified the Administrative Agent and the Borrower that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement, (c) has failed, within three Business Days after request by the Administrative Agent or the Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans (unless such failure to confirm results from a good faith dispute between such Lender and the Borrower, as notified to the Administrative Agent), (d) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless such amount is the subject of a good faith dispute, or (e) has become, or whose holding company has become, the subject of a bankruptcy, insolvency proceeding, or a Bail-In Action, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment; provided that (i) such Lender shall not be deemed a Defaulting Lender if the occurrence of (a) through (e) above is the result of the acquisition of controlling equity interests in such Lender by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or Governmental Authority) to reject, repudiate, disavow, or disaffirm any contracts or agreements made with such Lender or (ii) if the Borrower and the Administrative Agent agree in writing that such Lender is no longer a Defaulting Lender the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein such Lender will, to the extent applicable, purchase at par such portion of outstanding Loans of the other Lenders and make such other adjustments as the Administrative Agent may determine to be necessary to cause the Loans of the Lenders to be on a pro rata basis in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided, however, that (A) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender and (B) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to a non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender.
“Determination Date” has the meaning assigned to it in Section 2.22(a).
“Disclosed Matters” means matters previously disclosed to the Administrative Agent in writing or otherwise disclosed by the Parent or any of its Subsidiaries in (i) the most recent consolidated annual or quarterly financial statements of the Parent; (ii) any fato relevante filed by the Parent or any of its Subsidiaries with the CVM, (iii) the latest Formulário de Referência filed by the Parent or any of its Subsidiaries with the CVM or (iv) any filing by the Parent Borrower or any of its Subsidiaries with the SEC.
“Dollar Amount” means:
(i)with respect to any Commitment, the Dollar amount thereof as set forth on Schedule 2.01 or in the Assignment pursuant to which such Commitment (or portion thereof) has been assigned under Section 10.04; and
(ii)with respect to any Loan, the principal amount of such Loan then outstanding, expressed in Dollars.
“Dollars” or “$” refers to lawful currency of the United States.
“Early Opt-In Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 (five) p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders; provided however, the Administrative Agent and the Borrower may choose a later date as specified in such notice.
“Early Opt-In Election” means the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review); and
(2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from USD LIBOR and the provision by the Administrative Agent of written notice of such election to the Lenders.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 10.02).
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
“Environmental Laws” means all laws (including common laws), rules, regulations, codes, ordinances, orders, decrees, permits, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, the preservation or reclamation of natural resources, the management, generation, use, handling, transportation, storage, treatment, disposal, release or threatened release of any Hazardous Material or health and safety matters associated with exposure to Hazardous Material.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) any Environmental Laws, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code or Section 302 of ERISA).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure by any Loan Party or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules or the filing of an application for the waiver of the minimum funding standards under the Pension Funding Rules; (c) the incurrence by any Loan Party or any ERISA Affiliate of any liability pursuant to Section 4063 or 4064 of ERISA or a cessation of operations with respect to a Pension Plan within the meaning of Section 4062(e) of ERISA; (d) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of Title IV of ERISA); (e) the filing of a notice of intent to terminate a Pension Plan under, or the treatment of a Pension Plan amendment as a termination under, Section 4041 of ERISA; (f) the institution by the PBGC of proceedings to terminate a Pension Plan; (g) the determination that any Pension Plan is in at-risk status (within the meaning of Section 430 of the Code or Section 303 of ERISA) or that a Multiemployer Plan is in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (h) the imposition or incurrence of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (i) the engagement by any Loan Party or any ERISA Affiliate in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; (j) the imposition of a lien upon any Loan Party pursuant to Section 430(k) of the Code or Section 303(k) of ERISA; or (k) the making of an amendment to a Pension Plan that could result in the posting of bond or security under Section 436(f)(1) of the Code.
“Erroneous Payment” has the meaning assigned to it in Section 8.09(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 8.09(d).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 8.09(d).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 8.09(d).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 8.09(f).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Events of Default” has the meaning assigned to such term in Article 7.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“Excluded Taxes” has the meaning assigned to such term in Section 2.13(a)(i).
“Existing Maturity Date” has the meaning assigned to such term in Section 2.21(a).
“Extending Lender” has the meaning assigned to such term in Section 2.21(e).
“Extension Request Notice” has the meaning assigned to such term in Section 2.21(a).
“Fair Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market Value shall be determined by the board of directors of the Parent acting in good faith and shall be evidenced by a board resolution of the board of directors of the Parent; provided, however, that with respect to any price less than $50,000,000 only the good faith determination by the Parent’s senior management shall be required.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor provision that is substantively comparable and not materially more onerous to comply with), and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such sections of the Code.
“FCA” has the meaning assigned to such term in Section 2.20(a).
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States.
“Fee Letters” means, collectively, (i) the fee letter, dated as of the date hereof, by and among the Loan Parties, the Administrative Agent and the Joint Bookrunners and (ii) the administrative agent fee letter, dated as of the date hereof, by and between the Borrower and the Administrative Agent.
“Financial Officer” means, with respect to any Person, the chief financial officer, principal accounting officer, treasurer, controller, head of finance and insurance or head of financial planning and analysis of such Person.
“Fiscal Quarter” means a fiscal quarter of the Parent or Natura Cosméticos, as the case may be.
“Fiscal Year” means a fiscal year of the Parent or Natura Cosméticos, as the case may be.
“Fitch” means Fitch Ratings Inc. and any successor thereto.
“Floor” means the benchmark rate floor provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to USD LIBOR.
“Foreign Plan” means any employee pension benefit plan that is maintained or contributed to by any Loan Party or any Subsidiary thereof with respect to employees employed outside the United States (other than any governmental arrangement) and is required to be funded through a trust or other funding vehicle (other than a trust or funding vehicle maintained exclusively by a Governmental Authority).
“GAAP” means (i) International Financial Reporting Standards, (ii) accounting practices generally accepted in the United States or (iii) accounting practices prescribed by Brazilian Corporate Law and the rules and regulations issued by the CVM, in each case as in effect from time to time, in the Parent’s discretion.
“Governmental Authority” means any nation or government, any state or municipality, any multi-lateral or similar organization or any other agency, instrumentality or political subdivision thereof and any entity exercising executive, legislative, judicial, monetary, regulatory or administrative functions of or pertaining to government.
“Guaranteed Obligations” has the meaning assigned to such term in Section 9.01(a).
“Guarantors” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Hazardous Materials” means all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and all other substances or wastes of any nature regulated pursuant to, or for which liability can be imposed under, any Environmental Law, including all explosive or radioactive substances or wastes.
“IBA” has the meaning assigned to such term in Section 2.20(a).
“Indebtedness” means with respect to any Person, without duplication:
(1)all Obligations of such Person for borrowed money;
(2)all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3)all Capital Lease Obligations of such Person;
(4)all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business);
(5)all Obligations for the reimbursement of any obligor on any letter of credit transaction, excluding obligations in respect of letters of credit or bankers’ acceptances issued in respect of trade accounts payables to the extent not drawn upon or presented, or, if drawn upon or presented, to the extent the resulting obligation of the Person is paid within 10 Business Days;
(6)guarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below to the extent so guaranteed;
(7)all Obligations of any other Person of the type referred to in clauses (1) through (6) above that are secured by any Lien on any property or asset of such Person; and
(8)to the extent not otherwise included in this definition, net obligations of all Interest Swap Obligations and all Obligations under Currency Agreements and Commodity Agreements.
The amount of Indebtedness of any Person will be deemed to be:
(A)with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the Obligation;
(B)with respect to Indebtedness secured by a Lien on the property or asset of such Person but not otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the Fair Market Value of such property or asset on the date the Lien attached and (y) the amount of such Indebtedness;
(C)with respect to any Indebtedness issued with original issue discount, the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness;
(D)with respect to any Interest Swap Obligations or Obligations under Currency Agreements and Commodity Agreements, the net amount payable if such agreement or arrangement giving rise to such obligation terminated at that time due to default by such Person; and
(E)otherwise, the outstanding principal amount thereof.
The principal amount of any Indebtedness or other obligation that is denominated in any currency other than Dollars (after giving effect to any Interest Swap Obligations or Obligations under Currency Agreements and Commodity Agreements in respect thereof) shall be the amount thereof, as determined pursuant to the foregoing sentence, converted into Dollars at the spot rate in effect on the date of determination.
Notwithstanding anything to the contrary, “Indebtedness” shall not be deemed to include any obligations that do not appear on the face of the balance sheet of the Parent; provided that, for purposes of Section 7.01(e), “Indebtedness” shall be deemed to include Indebtedness of the type referred to in clause (6) above even if such obligations do not appear on the face of the balance sheet of the Parent.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Loan Parties under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning assigned to such term in Section 10.03(b).
“Index Debt” means senior unsecured long-term indebtedness for borrowed money of the Parent, that is not guaranteed by any other Person or subject to any other credit enhancement.
“Information” has the meaning assigned to such term in Section 10.16.
“Interest Determination Date” means, with respect to any Loans, the second Business Day prior to the commencement of any Interest Period relating to such Loans.
“Interest Payment Date” means, with respect to (i) each LIBO Rate Loan, (a) the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and (b) with respect to any Interest Period longer than three months, the date that is three months from the first day of such Interest Period, and each three month anniversary thereafter until the last day of such Interest Period and (ii) with respect to each Base Rate Loan, the last Business Day of each of March, June, September and December and the Maturity Date.
“Interest Period” means, with respect to each Loan, (i) the period commencing on (and including) the date of borrowing specified in the applicable Borrowing Request and ending on (but excluding) the numerically corresponding day in the calendar month that is one, three or six months thereafter, as the Borrower may elect in such Borrowing Request, and (ii) for each subsequent Interest Period, the period commencing on (and including) the last date of the Interest Period then ending with respect to such Loan and ending on (but excluding) the numerically corresponding day in the calendar month that is one, three, or six months thereafter, as the Borrower may elect in a Notice of Interest Period Election; provided that (i) if any Interest Period would end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) any Interest Period that would otherwise end after the Maturity Date shall instead end on the Maturity Date. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing. If the Borrower shall have failed to select a new Interest Period as provided above, the Interest Period shall be determined in accordance with Section 2.05.
“Interest Swap Obligations” means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.
“Joint Bookrunners” means, collectively, Bank of America, N.A., London Branch, Citibank, N.A., HSBC Bank USA, National Association, Itau BBA International plc, JPMorgan Chase Bank, N.A. and Mizuho Bank Ltd. in their respective capacities as joint bookrunners.
“Judgment Currency” has the meaning ascribed to such term in Section 10.12.
“Lender Parties” means the Lenders and the Administrative Agent.
“Lenders” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Lending Office” means, as to each Lender, its office located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Lending Office) or such other office as such Lender may hereafter designate as its Lending Office by notice to the Borrower and the Administrative Agent.
“LIBO Negotiation Period” means has the meaning assigned to such term in Section 2.18(b).
“LIBO Rate” means, with respect to an Interest Period for a LIBO Rate Loan, the arithmetic average of the rates per annum which appear on the display designated as page LIBOR 01 on the Reuters Monitor Money Rates Service as determined by the ICE Benchmark Administration or any successor thereof (or such other page as may replace the LIBOR 01 page on that service for the purpose of displaying USD LIBOR) for deposits in Dollars, for a period approximately equal to such Interest Period, as of 11:00 a.m. (London time) on the date which is two Business Days prior to the commencement of such Interest Period (and rounded, if necessary, upward to the next whole multiple of 1/100th of 1.0%); provided that in no event shall such rate be less than 0.00%.
“LIBO Rate Determination Date” has the meaning assigned to such term in Section 2.18(a).
“LIBO Rate Loan” means a Loan that bears interest at a rate determined by reference to the LIBO Rate.
“LIBO Substitute Basis” has the meaning assigned to such term in Section 2.18(b).
“Lien” means, with respect to any asset, any mortgage, deed of trust, lien, pledge, hypothecation, charge, security interest or encumbrance of any kind, in, on or of such asset, including the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
“Loan” has the meaning assigned to such term in Section 2.01(a).
“Loan Documents” means this Agreement, each Note, the Fee Letters and any other document issued or entered into under this Agreement and designated by the Loan Parties and the Administrative Agent as a Loan Document.
“Loan Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, indemnities and other amounts payable by any Loan Party under any Loan Document, (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that the Administrative Agent or any Lender, in each case in its sole discretion, may elect to pay or advance on behalf of such Loan Party and (c) the Loan Parties’ obligation to pay, discharge and satisfy Erroneous Payment Subrogation Rights.
“Loan Parties” means, collectively, the Borrower and the Guarantors.
“Loan Party Materials” has the meaning assigned to such term in Section 10.01(f).
“Lost Promissory Note Affidavit” means an affidavit and undertaking of a Lender (i) certifying to the best of its knowledge as to the loss, theft, destruction, or mutilation of any Note and (ii) agreeing that if such Note is found or otherwise is in its custody or power it shall promptly deliver such Note to the Borrower for cancellation.
“Margin Stock” means margin stock within the meaning of Regulations T, U and X.
“Material Adverse Effect” means a material adverse effect on (a) the business, financial condition or results of operations of the Loan Parties and their Subsidiaries, taken as a whole; (b) the rights and remedies of the Lender Parties under the Loan Documents; (c) the ability of the Loan Parties, taken as a whole, to perform their payment obligations under the Loan Documents or (d) the legality, validity, binding effect or enforceability of the Loan Documents.
“Material Indebtedness” means, with respect to any Person, Indebtedness of such Person incurred under or evidenced by a single agreement or instrument or a series of related agreements and instruments, in each case in a principal outstanding amount in excess of $125,000,000 (or its equivalent in other currencies) other than Indebtedness incurred under this Agreement and the other Loan Documents.
“Maturity Date” means the later of (a) the date falling thirty-six months after the Effective Date and (b) if the maturity is extended pursuant to Section 2.21, such extended maturity date as determined under such Section 2.21; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Maximum Loan Amount” means $625,000,000.
“Maximum Rate” has the meaning assigned to such term in Section 10.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan subject to Title IV of ERISA and of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, during the preceding five plan years has made or been obligated to make contributions, or has any liability.
“Multiple Employer Plan” means a Plan with respect to which any Loan Party or any ERISA Affiliate is a contributing sponsor, and that has two or more contributing sponsors at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Natura Cosméticos” has the meaning assigned to such term in the introductory paragraph of this Agreement; it being understood that such term includes any of its permitted successors or assigns.
“Non-Consenting Lender” has the meaning assigned to such term in Section 10.02(e).
“Non-Extending Lender” has the meaning assigned to such term in Section 2.21(b).
“Note” has the meaning assigned to such term in Section 2.7(b).
“Notice Date” has the meaning assigned to such term in Section 2.21(b).
“Notice of Interest Period Election” has the meaning assigned to such term in Section 2.05(a).
“Obligations” means all payment obligations, whether or not contingent, for principal, premium, interest, additional amounts, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
“OFAC” means the United States Office of Foreign Assets Control of the Department of the Treasury.
“Other Connection Taxes” means, with respect to any Lender Party, Taxes imposed as a result of a present or former connection between such Lender Party and the jurisdiction imposing such Tax (other than connections arising from such Lender Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” has the meaning assigned to such term in Section 2.13(a)(ii).
“Parent” has the meaning assigned to such term in the introductory paragraph of this Agreement; it being understood that such term includes any of its permitted successors or assigns.
“Participant Register” has the meaning assigned to such term in Section 10.04(e).
“Participants” has the meaning assigned to such term in Section 10.04(e).
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the regulations and rules promulgated thereunder, as amended from time to time.
“Payment Recipient” has the meaning assigned to such term in Section 8.09(a).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards and minimum required contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan, but excluding a Multiemployer Plan) that is maintained or is contributed to by any Loan Party or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“Permitted Holders” means (i) Antonio Luiz da Cunha Seabra, Lucia Helena Rios Seabra, RM Futura Multimercado Fundo de Investimento, Kairós Fundo de Investimento em Ações – Investimento no Exterior, Guilherme Peirão Leal, Felipe Pedroso Leal, Ricardo Pedroso Leal, Vinicius Pinotti, Fabricius Pinotti, Norma Regina Pinotti, Maria Heli Dalla Colletta de Mattos, Gustavo Dalla Colletta de Mattos, Fábio Dalla Colletta de Mattos, Sirius III Multimercado Fundo de Investimento Crédito Privado Investimento no Exterior, Pedro Luiz Barreiros Passos, Passos Participações S.A., Fundo de Investimento de Ações Veredas – Investimento no Exterior and/or any immediate family members and any Person, directly or indirectly, controlled by any of them; and (ii) any Person, directly or indirectly, controlled by a Permitted Holder.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, and which is subject to ERISA, maintained for employees of any Loan Party or any Subsidiary thereof, or any such plan to which any Loan Party or any Subsidiary thereof is required to contribute on behalf of any of its employees or with respect to which any Loan Party has any liability.
“Platform” means Debt Domain, Intralinks, Syndtrak, DebtX or a substantially similar electronic transmission system.
“Preferred Stock” means, with respect to any Person, any Share Capital of such Person that has preferential rights to any other Share Capital of such Person with respect to dividends or redemptions or upon liquidation.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in the City of New York. Each change in the Prime Rate will be effective for purposes hereof from and including the date such change is publicly announced as being effective.
“Pro Rata Share” means:
(1) when used in reference to Commitments, with respect to each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the Commitment of such Lender at such time, and the denominator of which is the Commitments of all Lenders at such time; and
(2) when used in reference to Loans, with respect to each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the outstanding principal amount of the Loans of such Lender at such time, and the denominator of which is the aggregate outstanding principal amount of the Loans of all Lenders at such time.
“Process Agent” has the meaning assigned to such term in Section 10.10(a).
“Public Lender” has the meaning assigned to such term in Section 10.01(f).
“Purchase Money Indebtedness” means Indebtedness of the Loan Parties and each of their respective Subsidiaries incurred for the purpose of financing all or any part of the purchase price, or the cost of installation, construction or improvement, of property or equipment; provided that the aggregate principal amount of such Indebtedness does not exceed the lesser of the Fair Market Value of such property or such purchase price or cost.
“Rating Agency” means each of S&P, Moody’s and Fitch.
“Refinance” means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.
“Register” has the meaning specified in Section 10.04(c).
“Regulations T, U and X” means Regulations T, U and X, respectively, of the Federal Reserve Board (or any successor to the function thereof establishing margin requirements), as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective partners, directors, officers, employees, agents, trustees, administrators, managers, representatives and advisors of such Person and its Affiliates.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30)-day notice period has been waived.
“Required Lenders” means, at any time, Lenders holding more than 50.0% of the aggregate outstanding Dollar Amount of the Loans or, if no Loans are outstanding, Lenders having more than 50.0% of the aggregate Dollar Amount of the Commitments as most recently in effect; provided that the Dollar Amount of the Loans and Commitments held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders until such time as such Lender is no longer a Defaulting Lender.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer, manager, director, legal officer or controller of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Share Capital of the Parent, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Share Capital, or on account of any return of capital to the Parent’s stockholders, partners or members (or the equivalent Person thereof).
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Sanctioned Country” means, at any time, a country, territory or geographical region which is itself the subject or target of country-wide or territory-wide Sanctions.
“Sanctioned Person” means any of the following currently or in the future: (a) an entity, vessel, or individual named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC currently available at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx or on any other sanctions list maintained by OFAC or the U.S. Department of State, on the consolidated list of persons, groups, and entities subject to EU financial sanctions currently available at https://eeas.europa.eu/headquarters/headquarters-homepage/8442/consolidated-list-sanctions_en, or on any other sanctions list maintained or administered by any Sanctions Authority; (b) anyone 50 percent or more owned or controlled by one or more entities or individuals described in clause (a) above; (c) (i) an agency or instrumentality of, or an entity owned or controlled by, the government of a Sanctioned Country, (ii) an entity located in a Sanctioned Country, or (iii) an individual who is a citizen or resident of, or located in, a Sanctioned Country, to the extent that the agency, instrumentality, entity, or individual is the subject of sanctions program administered by OFAC, the U.S. Department of State, the European Union, the United Nations Security Council or Her Majesty’s Treasury; or (d) an entity or individual engaged in activities sanctionable under CISADA (as defined below), ITRA (as defined below), IFCA (as defined below), or any other Sanctions Laws as amended from time to time.
“Sanctions” means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced by any Sanctions Authority.
“Sanctions Authority” means (a) the United States, (b) the United Nations, (c) the United Kingdom, (d) the European Union, (e) Brazil, (f) Luxembourg, and (g) the respective governmental institutions, agencies and subdivisions of any of the foregoing, including, without limitation, the United Nations Security Council, Her Majesty’s Treasury, OFAC, and the United States Department of State.
“Sanctions Laws” means the laws, regulations, and rules promulgated or administered by OFAC or the U.S. Department of State to implement United States sanctions programs, including any enabling legislation or Executive Order related thereto, as amended from time to time; the Comprehensive Iran Sanctions, Accountability, and Divestment Act and the regulations and rules promulgated thereunder (“CISADA”), as amended from time to time; the Iran Threat Reduction and Syria Human Rights Act and the regulations and rules promulgated thereunder (“ITRA”), as amended from time to time; the Iran Freedom and Counter-Proliferation Act and the regulations and rules promulgated thereunder (“IFCA”); the sanctions and other restrictive measures applied by, and any similar sanctions laws as may be enacted from time to time in the future by any Sanctions Authority; and any similar sanctions laws as may be enacted from time to time in the future by any Sanctions Authority; and any corresponding laws of jurisdictions in which any Loan Party or its Affiliates or any Lender Party operates or in which the proceeds of the Loans will be used or from which repayments of the obligations under the Loan Documents will be derived.
“SEC” means the United States Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Share Capital” means:
(1)with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person;
(2)with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person; and
(3)any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above.
“Significant Subsidiary” of any Person means any Subsidiary, including its subsidiaries, that would be a “significant subsidiary” of such Person within the meaning of Rule 1-02 under Regulation S-X promulgated pursuant to the Securities Act.
“SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).
“Subsidiary” means, as to any Person, any corporation or other entity of which shares of stock or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons having similar functions of such corporation or other entity (other than stock or other interests having such power only by reason of the happening of any contingency) are at the time directly or indirectly owned by such Person.
“Taxes” means any and all present and future taxes, duties, levies, imposts, assessments, deductions, fees or other charges or withholdings (including back-up withholding) of any nature imposed by any Governmental Authority, including any penalties, fines or interest with respect thereto.
“Term SOFR” means, for the applicable corresponding tenor, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Transactions” means the execution and delivery by the Loan Parties of the Loan Documents and the initial borrowing of Loans thereunder.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“United States” or “U.S.” means the United States of America.
“USD LIBOR” means the London interbank offered rate for Dollars.
“Voting Stock” means Share Capital in a Person having power to vote for the election of directors or similar officials of such Person or otherwise voting with respect to actions of such Person.
“Withholding Agent” means the Loan Parties and the Administrative Agent.
“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
If no Interest Period with respect to a requested Borrowing of Loans is specified, the Borrower will be deemed to have selected an Interest Period of three month’s duration. Promptly after it receives a Borrowing Request in accordance with this Section 2.03 and in any event at least two (2) Business Days before the date of the Borrowing, the Administrative Agent shall advise each Lender of the details of such Borrowing Request and the amount of such Lender’s Loan to be made pursuant thereto.
Each Interest Period specified in a Notice of Interest Period Election shall comply with the provisions of the definition of Interest Period.
in each case, giving effect to any adjustments as provided in Section 2.17(b).
and the result of any of the foregoing shall be to increase the cost to such Lender or the Administrative Agent of making, converting to, continuing or maintaining any Loan (or maintaining its obligation to make any such Loan) or to reduce any amount received or receivable by such Lender or the Administrative Agent hereunder (whether of principal, interest or otherwise), then the Borrower shall pay to such Lender or the Administrative Agent such additional amount or amounts as will compensate it for such additional cost incurred or reduction suffered.
Each Loan Party represents and warrants to the Lender Parties on the date hereof that:
Forthwith upon the occurrence thereof, the Administrative Agent shall notify the Loan Parties and the Lenders in writing of the Effective Date and such notice shall be conclusive and binding. The Administrative Agent shall be entitled to assume that the conditions specified in this Section 4.01 have been fulfilled unless it receives written notice to the contrary from any Lender prior to the Effective Date.
The acceptance of any Loans by the Borrower shall constitute a representation and warranty by the Borrower as of such date of the Borrowing to each of the Lenders extending a Loan to the Borrower that the conditions specified in Section 4.02(a) and (b) (with respect to any Borrowing) and Section 4.02(c) (with respect to the initial Borrowing) have been satisfied as of that time.
The Administrative Agent shall be entitled to assume that the conditions specified in Section 4.01 and Section 4.02 have been fulfilled unless it receives written notice to the contrary from any Lender prior to the Effective Date.
Until all the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full, each Loan Party covenants and agrees with the Administrative Agent and the Lenders that:
provided that, if the Parent makes freely available the reports mentioned herein on its internet page or in the internet page of the CVM or the SEC, the Parent will be deemed to have satisfied the reporting requirements set forth in Section 5.01(a) and Section 5.01(b) above;
Until all the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full, each Loan Party covenants and agrees with the Administrative Agent and the Lenders that:
then, and in every such event (other than an event with respect to any Loan Party described in clause (f) or (g) above), and at any time thereafter during the continuance of such event, the Administrative Agent shall, at the written request of the Required Lenders, by written notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are waived by the Borrower; and in the case of any event with respect to the Borrower described in clause (f) or (g) above, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are waived by the Borrower. The Administrative Agent shall promptly notify the Lenders of any Event of Default pursuant to this Article 7.
For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.09(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.09(a) or on whether or not an Erroneous Payment has been made.
Natura &Co Luxembourg Holdings S.à r.l.
8-10, Avenue de la Gare, L - 1610 Luxembourg
R.C.S. Luxembourg B98931
Attention: Bruno Lawaree, Head of Treasury
Email: bruno.lawaree@thebodyshop.com
With a copy to:
Natura &Co Luxembourg Holdings S.à r.l.
8-10, Avenue de la Gare, L - 1610 Luxembourg
R.C.S. Luxembourg B98931
Attention: Itamar Gaino Filho, Chief Legal and Compliance Officer, Natura &Co Holding S.A.
Email: itamargaino@natura.net
With a copy to (for informational purposes only and which shall not constitute notice):
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: Manuel Garciadiaz
Email: manuel.garciadiaz@davispolk.co
Natura &Co Holding S.A.
Avenida Alexandre Colares, No. 1188
Room A17-Block A, Vila Jaguara,
05106-000, Brazil
Attention: Itamar Gaino Filho, Chief Legal and Compliance Officer
Telephone: +55 (11) 4389-7881
Email: itamargaino@natura.net
Natura Cosméticos S.A.
Avenida Alexandre Colares, No. 1188
Vila Jaguara,
05106-000, Brazil
Attention: Itamar Gaino Filho, Chief Legal and Compliance Officer, Natura &Co Holding S.A.
Telephone: +55 (11) 4389-7881
Email: itamargaino@natura.net
With a copy to (for informational purposes only and which shall not constitute notice):
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: Manuel Garciadiaz
Email: manuel.garciadiaz@davispolk.com
Mizuho Bank, Ltd.
Attention: Hikaru Morita
Telephone: 1 212 282 3615
Email: Hikaru.Morita@mizuhogroup.com
Attention: Joshua Adler
Telephone: 1 212 282 3231
Email: Joshua.Adler@mizuhogroup.com
if to any other Lender, to it at its address set forth in its Administrative Questionnaire.
provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent without its prior written consent.
Subject to acceptance and recording thereof pursuant to subsection (d) of this Section, from and after the effective date specified in each Assignment the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment, be released from its obligations under this Agreement (and, in the case of an Assignment covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 2.11, Section 2.12, Section 2.13 and Section 10.03). The assignee shall not be entitled to receive any greater amount under Section 2.11 and Section 2.13 than the assigning Lender would have been entitled to receive. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (e) of this Section 10.04.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| NATURA &CO LUXEMBOURG HOLDINGS S.À R.L, as a Borrower | |||
By: | /s/ Bruno Lawaree | ||
| Name: | Bruno Lawaree | |
| Title: | VP Group Treasury | |
| NATURA COSMÉTICOS S.A., as a Guarantor | |||
By: | /s/ João Paulo Brotto Gonçalves Ferreira | ||
| Name: | João Paulo Brotto Gonçalves Ferreira | |
| Title: | Chief Executive Officer/ Investor Relations Officer | |
| By: | /s/ Ana Beatriz Macedo da Costa | ||
| Name: | Ana Beatriz Macedo da Costa | ||
| Title: | Chief Legal Officer | ||
| NATURA &CO HOLDING S.A., as a Guarantor | |||
By: | /s/ Guilherme Strano Castellan | ||
| Name: | Guilherme Strano Castellan | |
| Title: | Chief Financial Officer | |
| By: | /s/ Itamar Gaino Filho | ||
| Name: | Itamar Gaino Filho | ||
| Title: | Chief Legal and Compliance Officer | ||
| ADMINISTRATIVE AGENT: | |||
| MIZUHO BANK, LTD., as Administrative Agent | |||
By: | /s/ Brian Caldwell | ||
| Name: | Brian Caldwell | |
| Title: | Managing Director | |
| LENDERS: | |||
| BANK OF AMERICA, N.A. LONDON BRANCH, as Lender | |||
By: | /s/ Christopher Coney | ||
| Name: | Christopher Coney | |
| Title: | Authorized Signatory | |
| CITIBANK, N.A., as Lender | |||
By: | /s/ Fábio Baptiste Ribeiro | ||
| Name: | Fábio Baptiste Ribeiro | |
| Title: | Authorized Signatory | |
| HSBC BANK USA, NATIONAL ASSOCIATION, as Lender | |||
By: | /s/ Christopher M Samms | ||
| Name: | Christopher M Samms | |
| Title: | Senior Vice President, #9426 | |
| ITAU BBA INTERNATIONAL PLC, as Lender | |||
By: | /s/ Paulo Lopes | ||
| Name: | Paulo Lopes | |
| Title: | Authorized Signatory | |
| By: | /s/ João Fonseca | ||
| Name: | João Fonseca | ||
| Title: | Authorized Signatory | ||
| JPMORGAN CHASE BANK, N.A., as Lender | |||
By: | /s/ Christophe Vohmann | ||
| Name: | Christophe Vohmann | |
| Title: | Executive Director | |
| MIZUHO BANK, LTD., as Lender | |||
By: | /s/ Brian Caldwell | ||
| Name: | Brian Caldwell | |
| Title: | Managing Director | |
| MORGAN STANLEY SENIOR FUNDING, INC., as Lender | |||
By: | /s/ Michael King | ||
| Name: | Michael King | |
| Title: | Authorized Signatory | |
SCHEDULE 1.01
Administrative Agent’s Account
Mizuho Bank Ltd. New York Branch
ABA 026004307 / CHPS 0430 / SWIFT MHCBUS33
Account Name: ISA LOAN AGENCY
Account Number: H79-740-005344
SCHEDULE 2.01
Commitments
Lender | Title | Commitment |
Bank of America, N.A., London Branch | Joint Bookrunner | $100,000,000 |
Citibank, N.A. | Joint Bookrunner | $100,000,000 |
HSBC Bank USA, National Association | Joint Bookrunner | $100,000,000 |
Itau BBA International plc | Joint Bookrunner | $100,000,000 |
JPMorgan Chase Bank, N.A. | Joint Bookrunner | $100,000,000 |
Mizuho Bank, Ltd. | Joint Bookrunner | $100,000,000 |
Morgan Stanley Senior Funding, Inc. | Arranger | $25,000,000 |
Form of Assignment
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage interest[s] identified below of all of such outstanding rights and obligations under the respective facilities identified below (including, without limitation, any guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
| 1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
| 2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
| 3 | Select as appropriate. | |
| 4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. | |
| 1. | Assignor[s]: | |||
| 2. | Assignor[s]: | |||
[Assignee is [a Lender][an Affiliate of [identify Lender]]5
3.Borrower: Natura &Co Luxembourg Holdings S.à r.l.,
4. Guarantors: Natura Cosméticos S.A. and Natura &Co Holding S.A.
5.Administrative Agent: Mizuho Bank, Ltd., as the administrative agent under the Credit Agreement
5.Credit Agreement: Revolving Credit and Guaranty Agreement, dated as of October 28, 2021, among Natura &Co Luxembourg Holdings S.à r.l., as Borrower, Natura Cosméticos S.A. and Natura &Co Holding S.A. as Guarantors, the Lenders from time to time party thereto and Mizuho Bank, Ltd., as Administrative Agent.
| 5 | For each Assignee, identify if applicable. | |
6. Assigned Interest[s]:
Assignor[s]6
|
Assignee[s]7
| Aggregate Amount of Commitment/Loans for all Lenders8
| Amount of Commitment /Loans Assigned
| Percentage Assigned of Commitment/Loans9
|
|
| $______________ | $________ | __________% |
|
| $______________ | $________ | __________% |
|
| $______________ | $________ | __________% |
| [7. | Trade Date: | [10] |
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
| 6 | List each Assignor, as appropriate. | |
| 4 | List each Assignee and, if available, its market entity identifier, as appropriate. | |
| 8 | Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
| 9 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. | |
| 10 | To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date. | |
The terms set forth in this Assignment and Assumption are hereby agreed to:
| ASSIGNOR | |||
[NAME OF ASSIGNOR] | |||
By: | |||
| Name: | ||
| Title: | ||
| ASSIGNOR | |||
[NAME OF ASSIGNEE] | |||
By: | |||
| Name: | ||
| Title: | ||
[Consented to and Accepted:
MIZUHO BANK, LTD., as Administrative Agent | |||
| By: | |||
| Name: | |||
| Title: | ] 11 | ||
[Consented to:
NATURA &CO LUXEMBOURG HOLDINGS S.À R.L.], as Borrower under the Credit Agreement | |||
| By: | |||
| Name: | |||
| Title: | ] 12 | ||
| 11 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
| 12 | To be added only if the consent of the Borrower and/or other parties is required by the terms of the Credit Agreement. | |
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee. [The][Each] Assignee (a) represents and warrants that: (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement; (ii) it meets all the requirements to be an assignee under Section 10.04(b) of the Credit Agreement (subject to such consents, if any, as may be required under Section 10.04(b) of the Credit Agreement); (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder; (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type; (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest; and (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents; and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.;
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Acceptance and adoption of the terms of this Assignment and Assumption by Electronic Signatures or electronic records or delivery of an executed counterpart of a signature page of this Assignment and Assumption by email or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of the State of New York.
EXHIBIT B
Form of Note
This Promissory Note shall be executed in Portuguese. The English version is only for | Esta Nota Promissória será assinada em português. A versão em inglês é apenas para referência. |
| EXHIBIT B - FORM OF NOTE | ANEXO B - FORMA DA NOTA PROMISSÓRIA |
| (1) PROMISSORY NOTE | NOTA PROMISSÓRIA |
| Amount: [Lender’s Commitment to be included] | Valor: [Compromisso do Credor a ser incluído] |
MATURITY DATE: PURSUANT TO ARTICLE 34 OF DECREE 57.663 OF 24 JANUARY 1966, THE HOLDER OF THIS PROMISSORY NOTE IS AUTHORIZED TO PRESENT IT AT ANY TIME WITHIN A PERIOD OF 03 YEARS FROM THE DATE OF THIS PROMISSORY NOTE. | DATA DE VENCIMENTO: DE ACORDO COM O ARTIGO 34 DO DECRETO 57.663, DE 24 DE JANEIRO DE 1966, O TITULAR DESTA NOTA PROMISSÓRIA ESTÁ AUTORIZADO A APRESENTÁ-LA A QUALQUER TEMPO DENTRO DO PRAZO DE 03 ANOS A PARTIR DA DATA DESTA NOTA PROMISSÓRIA. |
PLACE OF PAYMENT: PURSUANT TO ARTICLE 54, PARAGRAPH 2nd OF DECREE 2,044, OF 31 DECEMBER 1908, THE PLACE OF PAYMENT OF THIS PROMISSORY NOTE SHALL BE THE CITY OF SÃO PAULO OR NEW YORK CITY, AT THE DISCRETION OF THE BENEFICIARY. | LOCAL DE PAGAMENTO: NOS TERMOS DO ARTIGO 54, PARÁGRAFO 2º DO DECRETO 2.044, DE 31 DE DEZEMBRO DE 1908, O LOCAL DE PAGAMENTO DA PRESENTE NOTA PROMISSÓRIA SERÁ A CIDADE DE SÃO PAULO OU NOVA YORK, A CRITÉRIO DO BENEFICIÁRIO. |
By means of this Promissory Note (the “Promissory Note”), issued in connection with and pursuant to the terms of the RCF Agreement (as defined below), NATURA &CO LUXEMBOURG HOLDINGS S.À R.L., a private limited company (société à responsabilité limitée), with registered office at [8- 10, Avenue de la Gare, L-1610 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B 98931 (the “Issuer”), irrevocably and unconditionally promises to pay cash, in immediately available funds, in the lawful money of the Federative Republic of Brazil or in the lawful money of the United States of America, in São | Por meio desta Nota Promissória (a “Nota Promissória”), emitida em conexão e de acordo com os termos do Contrato RCF (conforme definido abaixo), a NATURA &CO LUXEMBOURG HOLDINGS S.À R.L., sociedade de responsabilidade limitada (société à responsabilité limitée), com sede na [8-10, Avenue de la Gare, L- 1610 Luxemburgo, Grão-Ducado de Luxemburgo, registrada no Registro de Comércio e Empresas de Luxemburgo sob o número B 98931 (a “Emitente”), promete irrevogável e incondicionalmente pagar em dinheiro, em fundos imediatamente disponíveis, no dinheiro legítimo da República Federativa do Brasil ou no dinheiro legítimo dos Estados Unidos da |
Paulo, Brazil, or in New York City, United States of America, respectively, as designated by the Beneficiary (as defined below), at its sole and absolute discretion, to [LENDER'S CORPORATE NAME], [please include corporate qualification] (the “Beneficiary”), in its capacity as Lender under the Revolving Credit and Guaranty Agreement entered into on October 28, 2021, as amended from time to time, between, among others, the Issuer, as borrower, the Guarantors (as defined below), certain financial institutions named thereto as Lenders, and Mizuho Bank Ltd., named thereto as Administrative Agent (the "RCF Agreement"), or to its order, in the account to be designated in writing by the Beneficiary, the amount of [each of Lender’s Commitment to be included], which shall bear the interest indicated below, free of any deductions of taxes of any kind, present or future, provided that if this Promissory Note is required to be paid in Brazil, such amount shall be converted into Brazilian currency at the Conversion Rate described below, on the date of presentation of this Promissory Note for payment. | América, em São Paulo, Brasil, ou na Cidade de Nova York, Estados Unidos da América, respectivamente, conforme designado pelo Beneficiário (conforme definido abaixo), a seu exclusivo e absoluto critério, ao [RAZÃO SOCIAL DO CREDOR], [por favor incluir a qualificação corporativa] (o "Beneficiário"), em sua qualidade de Credor nos termos do Revolving Credit and Guaranty Agreement celebrado em 28 de outubro de 2021, conforme aditado de tempos em tempos, entre a Emitente, como devedora, os Avalistas (conforme definido abaixo), determinadas instituições financeiras designadas como Credores, e Mizuho Bank Ltd., designado como Agente Administrativo (o "Contrato RCF"), ou à sua ordem, na conta a ser designada por escrito pelo Beneficiário, o valor de [Compromisso de cada Credor deve ser incluído], no qual incidirão os juros indicados abaixo, livre de quaisquer deduções de impostos de qualquer tipo, presentes ou futuros, de modo que, caso esta Nota Promissória seja paga no Brasil, tal valor deverá ser convertido em moeda brasileira à Taxa de Conversão descrita abaixo, na data de apresentação desta Nota Promissória para pagamento. |
NATURA COSMÉTICOS S.A., a company incorporated in Brazil with company registration number 71.673.990/0001-77 whose registered office is at Avenida Alexandre Colares, nº 1.188, Parque Anhanguera, ZIP Code 05106-000, São Paulo, SP, Brazil ("Natura Cosméticos") and NATURA &CO HOLDING S.A. a company incorporated in Brazil with company registration number 32.785.497/0001-97 whose registered office is at Avenida Alexandre Colares, nº 1.188, room A17, block A, Parque Anhanguera, ZIP Code 05106-000, São Paulo, SP, Brazil (the “Parent” and together with Natura Cosméticos, the “Guarantors”) hereby unconditionally, absolutely and irrevocably guarantees, por aval, on joint and a several basis, as provided in Article 897 and subsequent articles of the Brazilian Civil Code, and in Article 30 and subsequent articles of the Uniform Law for Bills of Exchange and Promissory Notes, approved by Decree 57.663 of 24 January 1966, as amended, (the "Aval"), the full and punctual payment of and all of the obligations of the Borrower under the RCF Agreement and under the other Loan Documents when due (whether at stated maturity, upon acceleration or otherwise), represented hereby this Promissory Note (collectively, the “Guaranteed Obligations”). | NATURA COSMÉTICOS S.A., empresa constituída no Brasil, inscrita no CNPJ sob o número 71.673.990/0001-77, com sede na Avenida Alexandre Colares, n° 1.188, Parque Anhanguera, CEP 05106-000, São Paulo, SP, Brasil, ("Natura Cosméticos") e NATURA &CO HOLDING S.A., empresa constituída no Brasil, inscrita no CNPJ sob o número 32.785.497/0001-97, com sede na Avenida Alexandre Colares, n° 1.188, Sala A17, Bloco A, Parque Anhanguera, CEP 05106-000, São Paulo, SP, Brasil (a “Controladora” e, em conjunto com Natura Cosméticos, os "Avalistas”) por meio desta, garante, incondicionalmente, absolutamente e irrevogavelmente, por aval, de forma solidária entre si, nos termos do Artigo 897 e seguintes do Código Civil Brasileiro, e do Artigo 30 e seguintes da Lei Uniforme sobre Letras de Câmbio e Notas Promissórias, aprovada pelo Decreto 57.663 de 24 de janeiro de 1966, conforme alterada, (o "Aval"), o pagamento total e pontual de todas as obrigações da Emitente, nos termos do Contrato RCF e dos outros Documentos do Empréstimo, quando devido (seja no vencimento declarado, mediante aceleração ou de outra forma), representado por esta Nota Promissória (em conjunto, as “Obrigações Garantidas”). |
Payment by any Guarantor with respect to this Promissory Note shall be subrogated to the rights of the payee against the Issuer with respect to such payment; provided, however, that no Guarantor shall enforce its rights against the Issuer to any repayment by way of subrogation or by exercising its rights of contribution, indemnification, exoneration, participation or reimbursement or the right to participate in any security now or hereafter held by or for the benefit of any Lender Party until the Guaranteed Obligations have been paid in full and the Commitments have been terminated. | O pagamento por qualquer Avalista com relação a esta Nota Promissória será sub-rogado nos direitos do beneficiário contra a Emitente com relação a tal pagamento; desde que, no entanto, nenhum Avalista faça cumprir seus direitos, contra a Emitente, de qualquer quitação por meio de sub-rogação ou exercendo seus direitos de contribuição, indenização, exoneração, participação ou reembolso, ou o direito de participar de qualquer título agora ou no futuro detido por ou para o benefício de qualquer Parte Credora até que as Obrigações Garantidas tenham sido pagas integralmente e os Compromissos tenham sido rescindidos. |
As provided in the RCF Agreement, the Beneficiary is only allowed to make a demand under this Promissory Note upon the acceleration of the loans. The Beneficiary is automatically entitled, regardless of any notification or any other additional procedures whatsoever, upon simple presentation of this instrument with a statement setting out the amount due and payable under the RCF Agreement, to demand of the Issuer the full and immediate payment of this Promissory Note. | Conforme previsto no Contrato RCF, o Beneficiário somente poderá fazer a cobrança desta Nota Promissória quando da aceleração dos empréstimos. O Beneficiário tem automaticamente, independentemente de qualquer notificação ou quaisquer outros procedimentos adicionais de qualquer natureza, mediante a simples apresentação deste instrumento com uma declaração estabelecendo o valor devido e a ser quitado nos termos do Contrato RCF, o direito de exigir da Emitente o pagamento total e imediato desta Nota promissória. |
(a) This Promissory Note shall bear interest on the outstanding principal amount thereof, for each day during each Interest Period applicable thereto, at a rate per annum equal to the sum of the LIBO Rate plus the Applicable Margin applicable to such Interest Period. Such interest shall be payable in arrears on each Interest Payment Date and the Maturity Date; provided that (1) interest accrued pursuant to item (b) of this paragraph shall be payable on demand and (2) in the event of any repayment or prepayment of the Loans, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment; (b) Notwithstanding the foregoing, any overdue amounts under the Loan Documents shall bear interest, after as well as before judgment, at a rate per annum equal to 1.0% plus the rate otherwise applicable to the Loans as provided in item (a) above (whether or not any Loans are then outstanding) to the fullest extent permitted by applicable laws; (c) All interest hereunder will be computed on the basis of a year of three hundred sixty (360) days, except that interest computed by reference to the Base Rate at times when the Base Rate is based on the Prime Rate shall be computed on the basis of a year of three hundred sixty-five (365) days (or three hundred sixty-six (366) days in a leap year), and, in each case, will be payable for the actual number of days elapsed (including the first day but excluding the last day); (d) The Administrative Agent shall determine, in accordance with the terms of the RCF Agreement, each interest rate applicable to the Loans thereunder. The Administrative Agent shall promptly notify the Borrower and the Lenders, of each rate of interest so determined, and its determination thereof shall, absent manifest error, be conclusive; (e) On each Interest Determination Date, the Administrative Agent shall determine the LIBO Rate applicable to the Loans at the commencement of the next succeeding Interest Period for such Borrowing and shall promptly notify the Borrower and the Lenders thereof. | (a) Esta Nota Promissória terá a incidência de juros sobre o valor do principal em aberto, para cada dia durante cada Período de Juros aplicável, a uma taxa por ano igual à soma da Taxa LIBO mais a Margem Aplicável aplicável para tal Período de Juros. Tais juros deverão ser pagos em cada Data de Pagamento de Juros e na Data de Vencimento; desde que (1) os juros acumulados de acordo com o item (b) deste parágrafo sejam pagáveis à vista e (2) no caso de qualquer quitação ou pagamento antecipado dos Empréstimos, os juros acumulados sobre o valor principal quitado ou pago antecipado sejam pagáveis na data de tal quitação ou pré-pagamento; (b) Não obstante o acima exposto, sobre quaisquer valores em atraso nos termos dos Documentos de Empréstimo deverão incidir juros, tanto depois como antes de um julgamento, a uma taxa anual igual a 1,0% (um por cento) mais a taxa de outra forma aplicável aos Empréstimos, conforme previsto no item (a) acima (estejam ou não quaisquer Empréstimos em aberto) em toda a extensão permitida pelas leis aplicáveis; (c) Todos os juros a seguir serão calculados com base em um ano de 360 (trezentos e sessenta) dias, exceto os juros calculados por referência à Taxa Base nos momentos em que a Taxa Base for baseada na Taxa Principal, que deverão ser calculados com base em um ano de 365 (trezentos e sessenta e cinco) dias (ou 366 (trezentos e sessenta e seis) dias em um ano bissexto), e, em cada caso, será pago pelo número real de dias decorridos (incluindo o primeiro dia, mas excluindo o último dia); (d) O Agente Administrativo deverá determinar, de acordo com os termos do Contrato RCF, cada taxa de juros aplicável aos Empréstimos nele previstos. O Agente Administrativo deverá notificar prontamente a Emitente e os Credores de cada taxa de juros assim determinada, e sua determinação, na ausência de erro manifesto, deverá ser conclusiva; (e) Em cada Data de Determinação de Juros, o Agente Administrativo deverá determinar a Taxa LIBO aplicável aos Empréstimos no início do próximo Período de Juros subsequente para tal Empréstimo e deverá notificar imediatamente a Emitente e os Credores. |
This Promissory Note is an extrajudicial execution document in accordance with the provisions of Article 784 of the Brazilian Code of Civil Procedure and the Beneficiary shall have the right, exercisable at its sole discretion to commence summary legal proceedings against the Issuer and Guarantors in Brazil. | Esta Nota Promissória é um documento de execução extrajudicial de acordo com as disposições do Artigo 784 do Código de Processo Civil Brasileiro e o Beneficiário terá o direito, exercível a seu exclusivo critério, de iniciar processos judiciais sumários contra a Emitente e os Avalistas no Brasil. |
This Promissory Note may only be assigned, endorsed, or transferred to the Beneficiary’s successor under and pursuant to the terms of the RCF Agreement. Any other form of assignment, endorsement, or transfer shall be considered null and void. | Esta Nota Promissória só pode ser cedida, endossada ou transferida para o sucessor do Beneficiário de acordo com os termos do Contrato RCF. Qualquer outra forma de cessão, endosso ou transferência deve ser considerada nula e inválida. |
The obligations of the Issuer and Guarantors hereunder shall be binding upon their successors and inure to the benefit of the Beneficiary and its successors at any time. | As obrigações da Emitente e dos Avalistas nos termos deste documento vincularão seus sucessores e vigorarão em benefício do Beneficiário e seus sucessores a qualquer momento. |
For the purposes of this Promissory Note, “Conversion Rate” means the exchange rate of United State Dollars in Brazil, pursuant to the index PTAX, as disclosed on the website of the Central Bank of Brazil, on the immediately preceding business day of the date of the presentation of this Promissory Note for payment. If such rate for any reason is not published on such date, the Conversion Rate shall be the exchange rate of United State Dollars (USD) to Brazilian Real (BRL) which is displayed on the public website of Thomson Reuters available at the following link (https://www.reuters.com/markets/currencies) or another appropriate online page on which Thomson Reuters may publish that rate from time to time on the date of presentation of this Promissory Note for payment. | Para os fins desta Nota Promissória, “Taxa de Conversão” significa a taxa de câmbio de dólares dos Estados Unidos no Brasil, de acordo com a taxa PTAX, conforme divulgado no site do Banco Central do Brasil, no dia útil imediatamente anterior à data de apresentação desta Nota Promissória para pagamento. Se tal taxa, por qualquer motivo, não for publicada em tal data, a Taxa de Conversão será a taxa de câmbio de Dólares dos Estados Unidos (USD) para Real Brasileiro (BRL) que é exibida no site público da Thomson Reuters disponível no seguinte link (https://www.reuters.com/markets/currencies) ou outra página online apropriada na qual a Thomson Reuters pode publicar essa taxa de tempos em tempos na data de apresentação desta Nota Promissória para pagamento. |
The Issuer and Guarantors waives all protest, demand and/or notice requirements in any way with respect to this Promissory Note. | A Emitente e os Avalistas renunciam a todos os requisitos de protesto, intimação e/ou aviso de qualquer forma com relação a esta Nota Promissória. |
This Promissory Note is issued in [the City of São Paulo, State of São Paulo] / or [London, England], and will be governed by the laws of the Federative Republic of Brazil. Any suit, action, or proceeding arising out of or based upon the Promissory Note may be instituted in any court in the city of São Paulo, State of São Paulo, Brazil, including for the purposes of the second and third paragraphs of Article 784 of the Brazilian Law No. 13.105 of March 16, 2015, as amended (Brazilian Civil Procedure Code). | Esta Nota Promissória é emitida na [Cidade de São Paulo, Estado de São Paulo] / ou [Londres, Inglaterra], e será regida pelas leis da República Federativa do Brasil. Qualquer processo, ação ou procedimento decorrente ou baseado na Nota Promissória poderá ser instaurado em qualquer tribunal na cidade de São Paulo, Estado de São Paulo, Brasil, inclusive para os fins dos §§ 2º e 3º do artigo 784 da Lei nº 13.105 de 16 de março de 2015, conforme alterada (Código de Processo Civil Brasileiro). |
This Promissory Note is executed and issued on _____________________, 2021, in the city of [São Paulo, State of São Paulo, Brazil] / or [London, England]. | Esta Nota Promissória é assinada e emitida em _____________________, 2021, na cidade de [São Paulo, Estado de São Paulo, Brasil] / [Londres, Inglaterra]. |
Capitalized terms used in this Promissory Note and not defined herein have the meaning assigned to them in the RCF Agreement. | Os termos com letras maiúsculas usados nesta Nota Promissória e nela não definidos têm o significado que lhes é atribuído no Contrato RCF. |
[São Paulo/ London], _____________________, 2021.
| NATURA &CO LUXEMBOURG HOLDINGS S.À R.L. | ||||
| como emitente da Nota Promissória/ as issuer of the Promissory Note | ||||
| Nome/ Name: | Nome/ Name: | |||
| Cargo/ Title: | Cargo/ Title: | |||
| NATURA COSMÉTICOS S.A. | ||||
| como avalista da Nota Promissória/ as guarantor (avalista) of the Promissory Note | ||||
| Nome/ Name: | Nome/ Name: | |||
| Cargo/ Title: | Cargo/ Title: | |||
| NATURA &CO HOLDING S.A. | ||||
| como avalista da Nota Promissória/ as guarantor (avalista) of the Promissory Note | ||||
| Nome/ Name: | Nome/ Name: | |||
| Cargo/ Title: | Cargo/ Title: | |||
EXHIBIT C
Form of Borrowing Request
| To: Mizuho Bank, Ltd., as Administrative Agent | [Insert Date]13 |
Attention: Hikaru Morita
Email: Hikaru.Morita@mizuhogroup.com
Attention: Joshua Adler
Email: Joshua.Adler@mizuhogroup.com
Ladies and Gentlemen:
The undersigned, Natura &Co Luxembourg Holdings S.à r.l., a private limited company (société à responsabilité limitée) organized under the laws of the Grand Duchy of Luxembourg (the “Borrower”), refers to the Revolving Credit and Guaranty Agreement, dated as of October 28, 2021 (as modified, amended or supplemented from time to time, the “Agreement”), by and among the Borrower, Natura Cosméticos S.A. and Natura &Co Holding S.A. as Guarantors, the Lenders from time to time party thereto and Mizuho Bank, Ltd., as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Agreement, that the undersigned hereby requests a Borrowing under the Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.03 of the Agreement:
(i) The aggregate principal amount of the Proposed Borrowing is $[●];
(ii) The date of the Proposed Borrowing is [●], 20[●], which is a Business Day;
(iii) The Interest Period commencing on the date of the Proposed Borrowing, applicable to all Loans comprising such Borrowing, shall be a [one/three/six month] Interest Period; and
(iv) Pursuant to Section 2.04(a) of the Agreement, the account to which the Proposed Borrowing shall be disbursed is:
Beneficiary: [●]
Account Number: [●]
ABA Number: [●]
| 13 | Note to Exhibit: To be dated no later than the third Business Day before the date of the Proposed Borrowing. | |
The undersigned hereby certifies to the Administrative Agent and the Lenders that as of the date hereof and as of the date of the making of the Proposed Borrowing and after giving effect thereto:
(a) The representations and warranties of the Loan Parties set forth in the Agreement are true and correct in all material respects, except (i) for such representations and warranties which by their term are made as of a specified date, which are true and correct in all material respects as of such specified date (other than any representations and warranties that are already qualified by materiality, in which case they are true and correct in all respects) and (ii) that the representations and warranties contained in Sections 3.04(a) and (b) are deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 5.01.
(b) No Default or Event of Default shall have occurred and be continuing or would result from such Proposed Borrowing.
Capitalized terms not otherwise defined herein have the meanings ascribed to them in the Agreement.
Very truly yours,
NATURA &CO LUXEMBOURG HOLDINGS S.À R.L.,
as Borrower
| By: | ||
| Name: | ||
| Title: |
EXHIBIT D
Form of Amendment
AMENDMENT NO. 1 TO REVOLVING CREDIT AND GUARANTY AGREEMENT
Amendment No. 1 to the Revolving Credit and Guaranty Agreement, dated as of [●], 2021 (this “Amendment”), is made by and among:
(2)NATURA &CO LUXEMBOURG HOLDINGS S.À R.L., a private limited company (société à responsabilité limitée), with registered office at 8-10, Avenue de la Gare, L-1610 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B 98931 (the “Borrower”);
(3)NATURA COSMÉTICOS S.A. (“Natura Cosméticos”) and NATURA &CO HOLDING S.A. (the “Parent”), each a company organized and incorporated under the laws of Brazil (each a “Guarantor” and collectively the “Guarantors”);
(4)EACH OF THE LENDERS PARTY HERETO (the “Lenders” and each, a
“Lender”);
(5)MIZUHO BANK, LTD., as administrative agent, for and on behalf of the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”); and
(6)BANK OF AMERICA, N.A., LONDON BRANCH, CITIBANK, N.A., HSBC SECURITIES (USA) INC., ITAU BBA INTERNATIONAL PLC, J.P. MORGAN SECURITIES LLC and MIZUHO BANK, LTD. as
sustainability structuring agents
RECITALS:
WHEREAS, reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of October 28, 2021, by and among the Borrower, the Guarantors, the Administrative Agent and the Lenders (the “Agreement”); and
WHEREAS, in accordance with Section 2.22 of the Agreement, the parties hereto desire to amend the Agreement in accordance with the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein that is defined in the Agreement has the meaning assigned to such term in the Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Agreement shall, after this Amendment becomes effective, refer to the Agreement as amended hereby.
SECTION 2. Amendments.
(a) With effect from the date hereof, the Agreement shall be amended as follows:
(i) The following new definitions shall be inserted into Section 1.01 of the Agreement in the appropriate alphabetical order:
““2028 Notes” means the $1,000,000,000 4.125% Sustainability-Linked Notes due 2028 issued by Natura Cosméticos.”
““Determination Date” has the meaning assigned to such term in Section 2.22(a).”
““External Verifier” means the qualified provider of third-party assurance or attestation services appointed by Natura Cosméticos from time to time in connection with the 2028 Notes, to review each KPI Metrics Report.”
““Greenhouse Gas Emissions Intensity” means tCO2e divided by tonnes of product billed.”
““KPI Metric I” means, with respect to any applicable Fiscal Year, Greenhouse Gas Emissions Intensity of Natura Cosméticos, as reported in the applicable KPI Metrics Report.”
““KPI Metric II” means, with respect to any applicable Fiscal Year, PostConsumer Recycled Packaging Usage of Natura Cosméticos, as reported in the applicable KPI Metrics Report.”
““KPI Metric I Applicable Margin Adjustment Amount” means, with respect to any Fiscal Year, (a) positive two and a half (2.5) basis points if the KPI Metric I for such Fiscal Year as set forth in the applicable KPI Metrics Report is less than the KPI Metric I Threshold for such Fiscal Year, (b) zero (0) basis points if the KPI Metric I for such Fiscal Year as set forth in the applicable KPI Metrics Report is more than or equal to the KPI Metric I Threshold for such Fiscal Year but less than the KPI Metric I Target for such Fiscal Year and (c) negative two and a half (2.5) basis points, if the KPI Metric I for such Fiscal Year as set forth in the applicable KPI Metrics Report is more than or equal to the KPI Metric I Target for such Fiscal Year.”
““KPI Metric II Applicable Margin Adjustment Amount” means, with respect to any Fiscal Year, (a) positive two and a half (2.5) basis points if the KPI Metric II for such Fiscal Year as set forth in the applicable KPI Metrics Report is less than the KPI Metric II Threshold for such Fiscal Year, (b) zero (0) basis points if the KPI Metric II for such Fiscal Year as set forth in the applicable KPI Metrics Report is more than or equal to the KPI Metric II Threshold for such Fiscal Year but less than the KPI Metric II Target for such Fiscal Year and (c) negative two and a half (2.5) basis points, if the KPI Metric II for such Fiscal Year as set forth in the applicable KPI Metrics Report is more than or equal to the KPI Metric II Target for such Fiscal Year.”
““KPI Metrics” means, collectively, KPI Metric I and KPI Metric II.”
““KPI Metrics Report” means an annual report that sets forth the calculations for each KPI Metric for a specific Fiscal Year that has been duly confirmed by the External Verifier.”
““KPI Metric I Target” means, with respect to any Fiscal Year, the KPI Metric I Target for such Fiscal Year as set forth in the Sustainability Table.”
““KPI Metric I Threshold” means, with respect to any Fiscal Year, the KPI Metric I Threshold for such Fiscal Year as set forth in the Sustainability Table.”
““KPI Metric II Target” means, with respect to any Fiscal Year, the KPI Metric II Target for such Fiscal Year as set forth in the Sustainability Table.”
““KPI Metric II Threshold” means, with respect to any Fiscal Year, the KPI Metric II Threshold for such Fiscal Year as set forth in the Sustainability Table.”
““Post-Consumer Recycled Packaging Usage” means the proportion of absolute post-consumer recycled plastic used in finished product plastic packaging in relation to total absolute amount of plastic packaging materials, across the product portfolio of Natura Cosméticos.
““Pricing Certificate” means a certificate substantially in the form of Exhibit E executed by a Responsible Officer of Natura Cosméticos and attaching a true and correct copy of the KPI Metrics Report (duly confirmed by the External Verifier) for the most recently ended Fiscal Year, certifying that the KPI Metrics Report has been duly confirmed by the External Verifier, and setting forth the Sustainability Applicable Margin Adjustment for the period covered thereby and computations in reasonable detail in respect thereof.”
““Pricing Certificate Inaccuracy” has the meaning assigned to such term in Section 2.22(e).”
““Sustainability Applicable Margin Adjustment” means an amount (whether positive, negative or zero) determined in accordance with the KPI Metrics Report then most recently delivered pursuant to Section 5.01(i), and with reference to the Sustainability Table, expressed in basis points, equal to the sum of (a) the KPI Metric I Applicable Margin Adjustment Amount, plus (b) the KPI Metric II Applicable Margin Adjustment Amount; provided that the Sustainability Applicable Margin Adjustment shall in any case be no less than negative five (5) basis points in the aggregate and no greater than positive five (5) basis points in the aggregate.”
““Sustainability Pricing Adjustment Period” has the meaning assigned to such term in Section 2.22(b).
““Sustainability Review Event” means the occurrence of any of the following:
(a) Natura Cosméticos determines that any KPI Metric is no longer an appropriate sustainability performance target. In making such a determination, Natura Cosméticos must act reasonably, have regard to its business lines and the then current market standards and best industry practice for sustainability objectives in Brazil and provide evidence that the relevant KPI Metric is considered no longer relevant for the purpose of defining and steering the sustainability strategy of Natura Cosméticos;
(b) Natura Cosméticos determines that either of the KPI Metrics can no longer be measured or reported. In making such a determination, Natura Cosméticos must act reasonably, have regard to its business lines and the then current market standards and best industry practice for sustainability objectives in Brazil and provide evidence that the relevant KPI Metric(s) can no longer be measured or reported;
(c) Natura Cosméticos determines the methodology for calculating, assuring or reporting of the performance of any KPI Metric materially changes or the ability to report a KPI Metric is impaired by external causes. In forming such determination, Natura Cosméticos must act reasonably and provide evidence that methodology or ability to report against the relevant KPI Metric has been altered; or
(d) Natura Cosméticos determines a severe weather event causing significant property damage to any property of Natura Cosméticos has occurred and such event or damage impacts its performance of a KPI Metric. In forming such determination, Natura Cosméticos must act reasonably and provide evidence of the event.”
““Sustainability Review Event Consultation Period” has the meaning assigned to such term in Section 2.23(a).
““Sustainability Structuring Agents” means each of Bank of America, N.A., London Branch, Citibank, N.A., HSBC Securities (USA) Inc., Itau BBA International plc, J.P. Morgan Securities LLC and Mizuho Bank, Ltd.”
““Sustainability Table” means the Sustainability Table set forth in Exhibit F.”
““tCO2e” means the sum of Scope 1 emissions (from direct operations), Scope 2 emissions (from acquisition of energy) and Scope 3 emissions (from all other upstream and downstream activities, excluding use phase), during a given period, measured in metric tonnes of carbon dioxide equivalent, according to GHG Protocol standards and the principles of Brazil’s ABNT NBR ISO 14064-1 standard.”
““tonnes of product billed” means the sum in tonnes of products sold by Natura Cosméticos on a consolidated basis, excluding packaging.”
(ii) The definition of “Applicable Margin” in Section 1.01 shall be amended by including the following language immediately prior to the proviso at the end of such definition as follows:
“It is understood and agreed that the Applicable Margin with respect to LIBO Rate Loans and Base Rate Loans shall be adjusted from time to time based upon the Sustainability Applicable Margin Adjustment (to be calculated and applied as set forth in Section 2.22);”
(iii) The definition of “Lender Parties” in Section 1.01 shall be amended so that it reads as follows:
““Lender Parties” means the Lenders, the Administrative Agent and the Sustainability Agents.”
(iv) A new Exhibit E (Pricing Certificate) shall be inserted into the Agreement in the form of Schedule 1 to this Amendment.
(v) A new Exhibit F (Sustainability Table) shall be inserted into the Agreement in the form of Schedule 2 to this Amendment.
(vi) The final paragraph of Section 2.09(b) shall be amended so that it reads as follows:
“in each case, giving effect to any adjustments (x) based on the applicable Sustainability Applicable Margin Adjustment pursuant to Section 2.22, and (ii) as provided in Section 2.17(b).”
(vii) Section 2.10(e) shall be amended and restated in its entirety so that it reads as follows:
“On each Interest Determination Date, the Administrative Agent shall determine the LIBO Rate applicable to the Loans at the commencement of the next succeeding Interest Period for such Borrowing (giving effect to any adjustments based on the applicable Sustainability Applicable Margin Adjustment pursuant to Section 2.21) and shall promptly notify the Borrower and the Lenders thereof.”
(viii) Section 2.22 of the Agreement shall be amended and restated in its entirety so that it reads as follows:
“Section 2.22 Sustainability Adjustments.
(a) Following the date on which Natura Cosméticos provides a Pricing Certificate to the Administrative Agent pursuant to Section 5.01(i) in respect of the most recently ended Fiscal Year (the date of receipt by the Administrative Agent of each such Pricing Certificate, a “Determination Date”), the Applicable Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Applicable Margin Adjustment, as set forth in such Pricing Certificate, on the terms and conditions set forth in this Section 2.22.
(b) The Sustainability Applicable Margin Adjustment shall be included in each Pricing Certificate delivered pursuant to Section 5.01(i) and determined by Natura Cosméticos based upon the KPI Metrics set forth in such Pricing Certificate and such determination shall not be conclusive or binding on the Lenders, which shall have the right, but not the obligation, to inform the Administrative Agent of any Pricing Certificate Inaccuracy in accordance with Section 2.22(e) below. Each Sustainability Applicable Margin Adjustment resulting from a Pricing Certificate shall be effective with respect to (i) the calculation of interest pursuant to Section 2.10, for each period of twelve calendar months commencing on the first day of the Interest Period immediately succeeding (x) in the case of the first Sustainability Pricing Adjustment Period, the first Determination Date and (y) in the case of each subsequent Sustainability Pricing Adjustment Period, the last day of the immediately previous Sustainability Pricing Adjustment Period (it being understood and agreed that the Sustainability Applicable Margin Adjustment in respect of interest for such period will be based on the Pricing Certificate delivered on the most recent Determination Date) and (ii) the calculation of the commitment fee pursuant to Section 2.09, for each period of twelve calendar months commencing on the first day of the Fiscal Quarter immediately succeeding (x) in the case of the first Sustainability Pricing Adjustment Period, the first Determination Date and (y) in the case of each subsequent Sustainability Pricing Adjustment Period, the last day of the immediately previous Sustainability Pricing Adjustment Period (it being understood and agreed that the Sustainability Applicable Margin Adjustment in respect of the commitment fee for such period will be based on the Pricing Certificate delivered on the most recent Determination Date) (each such period, a “Sustainability Pricing Adjustment Period”).
(c) The Applicable Margin shall not be reduced or increased by more than five (5) basis points pursuant to the Sustainability Applicable Margin Adjustment during any Sustainability Pricing Adjustment Period. Any adjustment to the Applicable Margin by reason of meeting one or both KPI Metrics for any Sustainability Pricing Adjustment Period shall not be cumulative for each successive Sustainability Pricing Adjustment Period and shall apply only in respect of each applicable Sustainability Pricing Adjustment Period.
(d) If no such Pricing Certificate is delivered by Natura Cosméticos by the time required pursuant to Section 5.01(i), with respect to the period commencing on the day immediately following the last day of the Sustainability Pricing Adjustment Period in effect at the time in which such Pricing Certificate was required to be delivered and continuing until Natura Cosméticos delivers a Pricing Certificate to the Administrative Agent pursuant to Section 5.01(i), the Sustainability Applicable Margin Adjustment will be positive five (5) basis points. Any adjustment to the Applicable Margin by reason of the failure by Natura Cosméticos to deliver a Pricing Certificate shall not be cumulative and shall apply only in respect of the period during which Natura Cosméticos fails to deliver such Pricing Certificate.
(e) In the event that (A) any Loan Party or any Lender becomes aware of any material inaccuracy in the Sustainability Applicable Margin Adjustment or the KPI Metrics as reported in a Pricing Certificate (any such material inaccuracy, a “Pricing Certificate Inaccuracy”) and, in each case, such Loan Party or Lender, as the case may be, delivers, not later than ten (10) Business Days after obtaining knowledge thereof, a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (which description shall be promptly shared with each other Lender and other Loan Party, as applicable), or (B) any Loan Party and the Lenders agree and notify the Administrative Agent that there was a Pricing Certificate Inaccuracy at the time of delivery of a Pricing Certificate then in the case of (A) or (B), Natura Cosméticos shall adjust and deliver the adjusted Pricing Certificate to the Administrative Agent (such adjustment to include corrections to the calculations of the Sustainability Applicable Margin Adjustment or the KPI Metrics, as applicable in reasonable detail) and:
(i) if a correct calculation of the Sustainability Applicable Margin Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Margin for any applicable period and an increase in the amount of interest and in the commitment fee payable by the Borrower for such applicable period, then commencing on the Business Day following receipt by the Administrative Agent of the adjusted Pricing Certificate, the Applicable Margin shall be adjusted to reflect the correct calculations of the Sustainability Applicable Margin Adjustment or the KPI Metrics, as applicable, and (B) the Borrower shall be obligated to pay to the Administrative Agent for the account of the Lenders, within fifteen (15) days after Natura Cosméticos has delivered the adjusted Pricing Certificate to Administrative Agent in accordance with this Section 2.22(e), an amount equal to the excess of (1) the amount of interest and/or commitment fee, as applicable, that should have been paid for such period over (2) the amount of interest and/or commitment fee actually paid for such period; or
(ii) if a correct calculation of the Sustainability Applicable Margin Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Margin for any applicable period and a decrease in the amount of interest and in the commitment fee payable by the Borrower for such applicable period, then, commencing on the Business Day following receipt by the Administrative Agent of the adjusted Pricing Certificate, the Applicable Margin shall be adjusted to reflect the correct calculations of the Sustainability Applicable Margin Adjustment or the KPI Metrics, as applicable.
(f) Any Pricing Certificate Inaccuracy with respect to any applicable period shall not constitute a Default or Event of Default unless the Borrower actually fails to make the payment pursuant to and in accordance with Section 2.21(e)(i).” (ix) A new Section 2.23 shall be inserted into the Agreement as follows:
“Section 2.23. Sustainability Review Events.
(a) If a Sustainability Review Event occurs, each of the applicable Loan Parties and each of the Lenders will consult for a period of up to thirty (30) Business Days (a “Sustainability Review Event Consultation Period”) to determine if adjustments are to be made to either of the KPI Metrics or to the Sustainability Table.
(b) The parties agree that no increases or decreases to the Applicable Margin pursuant to any Sustainability Applicable Margin Adjustment shall apply during a Sustainability Review Event Consultation Period.
(c) If the necessary adjustments cannot be agreed between the Loan Parties and the Lenders by the end of the Sustainability Review Event Consultation Period, either the Loan Parties or the Lenders may, by written notice to the other parties to this Agreement, within thirty (30) Business Days after the end of the Sustainability Review Event Consultation Period, declare that no such adjustments shall be made in which case the Sustainability Review Event Consultation Period shall automatically terminate and the existing KPI Metrics shall continue to apply to this Agreement as set forth in Section 2.22(a) through (f).
(d) For the avoidance of doubt, the occurrence of a Sustainability Review Event is not a Default.
(x) Section 5.01 shall be amended by including a new paragraph (i) as follows:
“(i) no later than [●] of each Fiscal Year (commencing on [ ] 20[●]), a Pricing Certificate delivered by Natura Cosméticos for the most recently-ended Fiscal Year, and attaching a copy of the KPI Metrics Report for the most recently ended Fiscal Year duly confirmed by the External Verifier; provided that Natura Cosméticos may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default; provided further that such failure to so deliver a Pricing Certificate shall result in the Sustainability Applicable Margin Adjustment being applied as set forth in Section 2.22(d).”
(xi) Section 8.08 shall be amended and restated in its entirety as follows:
“Section 8.08. No Other Duties. Anything herein to the contrary notwithstanding, the Joint Bookrunners or Sustainability Structuring Agents shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in their capacity, as applicable, as the Administrative Agent or a
Lender hereunder.”
(xii) Section 10.20 shall be amended and restated in its entirety as follows:
“Section 10.20. No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Loan Party acknowledges and agrees that: (a) (i) no fiduciary, advisory or agency relationship among the Loan Parties and their respective Subsidiaries and any Joint Bookrunner, the Arranger, the Administrative Agent, any Sustainability Structuring Agent or any Lender is intended to be or has been created in respect of the transactions contemplated hereby or by the other Loan Documents, irrespective of whether any Joint Bookrunner, the Arranger, the Administrative Agent, any Sustainability Structuring Agent or any Lender has advised or is advising any Loan Party or any Subsidiary thereof on other matters, (ii) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Joint Bookrunners, the Arranger, the Sustainability Structuring Agents and the Lenders are arm’s-length commercial transactions between each Loan Party and its Affiliates, on the one hand, and the Administrative Agent, the Joint Bookrunners, the Arranger, the Sustainability Structuring Agents and the Lenders, on the other hand, (ii) each Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) each Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) each of the Administrative Agent, each Joint Bookrunner, the Arranger, each Sustainability Structuring Agent and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or any of its Affiliates, or any other Person and (ii) none of the Administrative Agent, any Joint Bookrunner, the Arranger, any Sustainability Structuring Agent or any Lender has any obligation to any Loan Party or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent, the Joint Bookrunners, the Arranger, the Sustainability Structuring Agents and the Lenders and their respective branches and Affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of the Loan Parties and their Affiliates, and none of the Administrative Agent, any Joint Bookrunner, the Arranger, any Sustainability Structuring Agent or any Lender has any obligation to disclose any of such interests to the Loan Parties or any of their Affiliates. To the fullest extent permitted by law, each Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, any Joint Bookrunner, the Arranger, any Sustainability Structuring Agent or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.”
SECTION 3. Accession by Sustainability Structuring Agents. Each of the undersigned sustainability structuring agents hereby acknowledges that it has received a copy of the Agreement and acknowledges and agrees that by its execution and delivery of this Amendment it shall join and become a party to the Agreement.
SECTION 4. Governing Law. This Amendment and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 5. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
SECTION 6. Electronic Execution. Delivery of an executed counterpart of a signature page of this Amendment by email or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 7. Effectiveness. This Amendment shall become effective on the date the following conditions are satisfied: (i) this Amendment shall have been executed by each of the parties hereto and (ii) the Loan Parties and the Sustainability Structuring Agents have entered into an engagement letter, in form and substance satisfactory to the Sustainability Structuring Agents, whereby the Sustainability Structuring Agents are exclusively engaged by the Loan Parties to act as sustainability structuring agents in connection with the Agreement; it being understood that no fee or any other amount shall be payable by the Loan Parties to the Sustainability Structuring Agents in connection with such engagement.
[Signature page follows.]
| NATURA &CO LUXEMBOURG HOLDINGS S.À R.L, as the Borrower | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
NATURA COSMÉTICOS S.A., as a Guarantor | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
NATURA &CO HOLDING S.A., as a Guarantor | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
| ADMINISTRATIVE AGENT: | |||
MIZUHO BANK, LTD., as Administrative Agent | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
LENDERS14:
| 14 | Include signature block of each Lender as of date of Amendment. | |
SUSTAINABILITY STRUCTURING AGENTS: | |||
| BANK OF AMERICA, N.A., LONDON | |||
| BRANCH, as sustainability structuring agent | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
| CITIBANK, N.A., as sustainability structuring agent | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
| HSBC SECURITIES (USA) INC., as sustainability structuring agent | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
| ITAU BBA INTERNATIONAL PLC, as sustainability structuring agent | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
| J.P. MORGAN SECURITIES LLC, as sustainability structuring agent | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
| MIZUHO BANK, LTD., as sustainability structuring agent | |||
By: | |||
| Name: | ||
| Title: | ||
| By: | |||
| Name: | |||
| Title: | |||
SCHEDULE 1
EXHIBIT E
FORM OF PRICING CERTIFICATE
[Insert date]
To: Mizuho Bank, Ltd., as Administrative Agent
Ladies and Gentlemen:
Reference is hereby made to the Revolving Credit and Guaranty Agreement, dated October 28, 2021 (as amended, supplement or otherwise modified from time to time, the “Credit Agreement”), among, inter alios, Natura &Co Luxembourg Holdings S.à r.l., as borrower, Natura Cosméticos S.A. (“Natura Cosméticos”) and Natura &Co Holding S.A., as guarantors, the lenders from time to time party thereto and Mizuho Bank, Ltd., as administrative agent. Capitalized terms not otherwise defined herein have the meanings ascribed to them in the Credit Agreement.
The undersigned certifies as of the date hereof that he/she is the duly appointed [●]15 of Natura Cosméticos, and that, as such, he/she is a Responsible Officer authorized to execute and deliver this certificate pursuant to Section 5.01(i) of the Credit Agreement in the name and on behalf of Natura Cosméticos, and further certifies solely in such capacity (and not in his/her personal capacity) that:
1. Attached as Annex A hereto is a true and correct copy of the KPI Metrics Report for the 20[__] Fiscal Year, duly confirmed by the External Verifier; and
2. The Sustainability Applicable Margin Adjustment in respect of the 20[__] Fiscal Year is [+][-][__] basis points per annum, calculated as set forth on Annex B hereto.
The foregoing certifications are made and delivered this [__] day of [_____], 20[__].
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first above written.
| 15 | Insert title of Responsible Officer. | |
| NATURA COSMÉTICOS S.A. | |||
By: | |||
| Name: | ||
| Title: | ||
Annex A
KPI Metrics Report
Annex B
Sustainability Applicable Margin Adjustment
The Sustainability Applicable Margin Adjustment for a given year is the sum of the KPI Metric I Applicable Margin Adjustment Amount and the KPI Metric II Applicable Margin Adjustment Amount, each as set forth in the below Sustainability Adjustment Table and with reference to the KPI Metrics Report (see Annex A) and the Sustainability Table.
Sustainability Adjustment Table
| KPI Metric I
| KPI Metric II | ||
KPI Metric | Applicable Margin Adjustment Amount | KPI Metric | Applicable Margin Adjustment Amount | |
Level I* | Greater than or equal to KPI Metric I Target
| -2.5 basis points | Greater than or equal to KPI Metric II Target
| -2.5 basis points |
Level II** | Greater than or equal to KPI Metric I Threshold but less than KPI Metric I Target
| 0 basis points | Greater than or equal to KPI Metric II Threshold but less than KPI Metric II Target
| 0 basis points |
Level III*** | Less than KPI Metric I Threshold
| +2.5 basis points | Less than KPI Metric II Threshold
| +2.5 basis points |
*If (x) KPI Metric I is greater than or equal to the KPI Metric I Target as applicable for such calendar year or (y) the KPI Metric II is greater than or equal to the KPI Metric II Target as applicable for such calendar year, the applicable rate adjustment for such KPI Metric is set forth in Level I.
**If (x) KPI Metric I is greater than or equal to the KPI Metric I Threshold as applicable for such calendar year but less than the KPI Metric I Target as applicable for such calendar year or (y) KPI Metric II is greater than or equal to the KPI Metric II Threshold as applicable for such calendar year but less than the KPI Metric II Target as applicable for such calendar year, the applicable rate adjustment for such KPI Metric is set forth in Level II.
***If (x) KPI Metric I is less than the KPI Metric I Threshold for such calendar year or (y) KPI Metric II is less than the KPI Metric II Threshold as applicable for such calendar year, the applicable rate adjustment for such KPI Metric is set forth in Level III.
| SCHEDULE 2 |
| EXHIBIT F |
| Sustainability Table |
KPI Metrics | Description | 20[ ] | 20[ ] | 20[ ] | 20[ ] | 20[ ] |
| Target |
|
|
|
|
|
Threshold | ||||||
| Target |
|
|
|
|
|
Threshold |
| 153 |
