PRIVATE DEED OF SIXTH (6th) ISSUE OF SIMPLE UNSECURED DEBENTURES NOT CONVERTIBLE INTO SHARES, IN A SINGLE SERIES, FOR PRIVATE PLACEMENT, OF MARFRIG GLOBAL FOODS S.A.
by and between | |
MARFRIG GLOBAL FOODS S.A. | |
as Issuer | |
and | |
RB CAPITAL COMPANHIA DE SECURITIZAÇÃO | |
as Debenture Holder | |
Dated July 16, 2019 | |
JUR_SP - 34029770v4 - 5113006.440836 | |
TABLE OF CONTENTS | |
SECTION ONE - AUTHORIZATION | 6 |
SECTION TWO - REQUIREMENTS | 6 |
SECTION THREE - ISSUE CHARACTERISTICS | 8 |
SECTION FOUR - DEBENTURE CHARACTERISTICS | 14 |
SECTION FIVE - ISSUER'S ADDITIONAL OBLIGATIONS | 39 |
SECTION SIX - GENERAL MEETING OF DEBENTURE HOLDERS | 42 |
SECTION SEVEN - ISSUER'S REPRESENTATIONS | 43 |
SECTION EIGHT - EXPENSES AND EXPENSE FUND | 46 |
SECTION NINE - NOTICES | 50 |
SECTION TEN - MISCELLANEOUS | 51 |
SECTION ELEVEN - JURISDICTION | 53 |
EXHIBIT I | 57 |
EXHIBIT II | 60 |
EXHIBIT III | 61 |
By this private deed, the parties below,
- MARFRIG GLOBAL FOODS S.A., a publicly-held corporation registered with the Brazilian Securities Commission ("CVM"), with its principal place of business at Avenida Queiroz Filho, No. 1.560, Block 5, Torre Sabiá (Sabiá Tower), 3rd floor, Suite 301, CEP (Postal Code) 05.319-000, in the City of São Paulo, State of São Paulo, enrolled with the National Corporate Taxpayers' Register of the Ministry of Finance ("CNPJ") under No. 03.853.896/0001-40, herein represented pursuant to its articles of incorporation ("Issuer"); and
- RB CAPITAL COMPANHIA DE SECURITIZAÇÃO, a publicly-heldcorporation registered with the CVM, with its principal place of business at Avenida Brigadeiro Faria Lima, No. 4.440, 11th floor (part), CEP 04.538-132,in the City of São Paulo, State of São Paulo, enrolled with the CNPJ No. 02.773.542/0001-22,herein represented according to its articles of incorporation ("Debenture Holder").
WHEREAS:
- Issuer is engaged in the following business: (a) operations in the cold storage business segment, with slaughter of cattle, horses, pigs, goats, sheep, poultries, buffaloes, and industrialization and sale of animal products and by-products, whether edible or not, including, among other things, industrialization and sale of leather products and by-
products, in its own or third-parties' facilities; (b) sale, purchase, distribution, agency, import and export of food products in general, including alcoholic or non-alcoholic beverages and other items; (c) sale and purchase of standing cattle, horses, pigs, goats, sheep, poultries and buffaloes; (d) supply of effective labor with other companies; (e) farming and cattle-raising activities; (f) holding interests in any business company or civil entity, as shareholder or partner; (g) distribution and sale of food products in general; (h) production, distribution and sale of soaps, washing preparations, disinfectants, softeners, and other hygiene and cleaning products; (i) cogeneration, production and sale of energy and biodiesel; (j) participation in the financial market, as well as in the carbon credit market; (k) sale and production of legume and vegetable products, as well as their by-products and substitutes, animal feeds, preserved and canned food and fats; and (l) transportation of its own products and third-party products, agency and other related activities that are necessary for the achievement of the business purpose, as provided for in Section 3.1.1 below;
- in order to finance its agribusiness activities, Issuer will issue, as of the Date of Issue (as defined below), three hundred thousand (300,000) unsecured simple debentures not convertible into shares, in a single series, for private placement, of the sixth (6th) issue, pursuant to this Indenture (as defined below), to be subscribed for and paid-up in a private manner by the Debenture Holder ("Issue," "Debentures" and "Private Placement," respectively);
- the proceeds to be raised through the Debentures shall be used by Issuer exclusively for funding its agribusiness-related activities, according to the allocation of proceeds provided for in Section 3.5 below;
- after all Debentures are paid in full by the Debenture Holder, it will become the sole owner of the Debentures and the creditor of all principal or accessory obligations due by Issuer under the Debentures, which will represent agribusiness credit rights under article 23, paragraph one, of Law No. 11076, dated December 30, 2004, as amended ("Law No. 11076/04"), and article 3, paragraph four, item II, of CVM Instruction No. 600, of August 1, 2018, as amended ("CVM Instruction No. 600," and "Agribusiness Credit Rights," respectively);
- the Debentures are issued in the context of a securitization operation of the Agribusiness Credit Rights that will result in the issue of agribusiness receivables certificates, in a single series, of the fourth (4th) issue of Debenture Holder's agribusiness receivables certificates ("CRA"), in a volume proportional to the number of Debentures issued ("Securitization Operation"), upon execution of the "Agribusiness Credit Rights Securitization Agreement for the Issue of Agribusiness Receivables Certificates of a Single Series of the Fourth (4th) Issue of RB Capital Companhia de Securitização Backed by Agribusiness Credit Rights Due by Marfrig Global Foods S.A.," to be entered into between the Debenture Holder and SLW Corretora de Valores e Câmbio Ltda. ("Trustee" and "Securitization Agreement," respectively), whereby the Agribusiness Credit Rights will be bound to the CRA pursuant to CVM Instruction No. 600;
- the Trustee, as a representative of the CRA holders, to be hired by the Debenture Holder under the Securitization Agreement, will follow up on the allocation of the proceeds raised under this Issue pursuant to Section 3.5 below;
- the CRA will be through a public offering of distribution under firm placement guarantee, as detailed in the documents of the Securitization Operation, pursuant to CVM Instruction No. 400, dated December 29, 2003, as amended ("Offering" and "CVM Instruction No. 400"), and will be allocated to Investors (as defined in the Securitization Agreement) who will be the future CRA holders;
- Issuer expressly acknowledges that the continuing existence, validity and effectiveness of this Indenture, pursuant to its terms and conditions, is of essence for the Securitization Operation, and the timely settlement by the Debenture Holder of the obligations under the CRA is bound to the performance by Issuer of all of its respective obligations under this Indenture, also subject to the terms and conditions of the Securitization Agreement (as defined below).
NOW, THEREFORE, and in the best legal form, the parties execute this "Private Deed of Sixth (6th) Issue of Simple Unsecured Debentures Not Convertible into Shares, in a Single Series, for Private Placement, of Marfrig Global Foods S.A." ("Indenture"), which shall be governed by the following sections and conditions.
The capitalized terms used herein, whether in the singular or plural, shall have the meanings ascribed to them in this Indenture, even after they are first used.
SECTION ONE - AUTHORIZATION
1.1. Authorization by Issuer
- The Issue is made pursuant to the resolutions taken at Issuer's Board of Directors' Meetings held on July 12, 2019, and July 16, 2019 ("Issue BDM"), pursuant to article 59, paragraph 1, of Law No. 6404, dated December 15, 1976, as amended ("Brazilian Business Corporation Law"), which: (i) approved the terms and conditions for the Issue and the Private Placement of the Debentures, and (ii) authorized the Issuer's Executive Board to take any and all measures and execute all documents necessary for the Issue and the Private Placement, with powers to make amendments to this Indenture.
- Pursuant to article 59, paragraph 1, of the Brazilian Business Corporation Law, and article 19, sections III and XVIII, of Issuer' Articles of Incorporation, Issuer's Board of Directors is responsible for resolving on the issue of Debentures.
SECTION TWO - REQUIREMENTS
The Issue of the Debentures shall be made subject to compliance with the following requirements:
2.1. Release from Registration with the Brazilian Securities Commission and with ANBIMA
2.1.1. The Issue is exempted from registration with CVM or with the Brazilian Financial and Capital Markets Association ("ANBIMA"), as the Debentures are issued under Private Placement, without (i) intermediation of entities that are part of the securities distribution system; or (ii) any effort to sell to undefined investors.
2.2 Filing with JUCESP and Publication of the minutes of the Issue BDM
-
The minutes of the Issue BDM and other of Issuer's corporate acts relating to the Issue shall be filed with the Registry of Commerce of the State of São Paulo ("JUCESP"), and published
(i) in the Official Gazette of the State of São Paulo; and (ii) in the newspaper "Valor Econômico," pursuant to article 62, item I, and article 289 of the Brazilian Business Corporation Law. - Issuer agrees to provide Debenture Holder with (i) a copy of the filing confirmation with JUCESP of the minutes of the Issue BDM, within five (5) Business Days after execution of this Indenture; and (ii) copies of the minutes of the Issue BDM duly filed with JUCESP within five (5) Business Days after the filing of each of the minutes of the Issue BDM is granted by JUCESP, and the filing with JUCESP of the minutes of the Issue BDM is of essence for the payment of the Debentures.
2.3. Filing of the Indenture
- This Indenture and any amendments hereto shall be filed with JUCESP, pursuant to article 62, item II and paragraph 3, of the Brazilian Business Corporation Law.
- Issuer agrees to provide the Debenture Holder with one (1) original copy of this Indenture, as well as any amendments hereto, duly filed with JUCESP, within five (5) Business Days after such filing, and the filing of this Indenture with JUCESP is a condition to the payment of the Debentures.
- The Debenture Holder is hereby irrevocably and irreversibly authorized and vested with all powers to, on behalf of Issuer and at Issuer's expenses, file this Indenture with JUCESP if Issuer fails to do it, but this does not exempt Issuer from noncompliance with its non-pecuniary obligation.
2.4. Registration for Distribution and Trading
2.4.1. The Debentures will not be registered for distribution in the primary market, trading in the secondary market, electronic custody or settlement in any organized market. The Debentures may not be assigned, sold, disposed of, or transferred in any way by the Debenture Holder, except in the event of settlement of separate equity, as provided for in the Securitization Agreement.
SECTION THREE - ISSUE CHARACTERISTICS
3.1. Issuer's Business Purpose
3.1.1. Pursuant to article 3 of its Articles of Incorporation, the Issuer's business purpose consists of the following activities:
- operations in the cold storage business segment, with slaughter of cattle, horses, pigs, goats, sheep, poultries, buffaloes, and industrialization and sale of animal products and by-products, whether edible or not, including, among other things, industrialization and sale of leather products and by-products, in its own or third- parties' facilities;
- sale, purchase, distribution, agency, import and export of food products in general, including alcoholic or non-alcoholic beverages and other items;
- sale and purchase of standing cattle, horses, pigs, goats, sheep, poultries and buffaloes;
- supply of effective labor with other companies;
- farming and cattle-raising activities;
- holding interests in any business company or civil entity, as shareholder or partner;
- distribution and sale of food products in general;
- production, distribution and sale of soaps, washing preparations, disinfectants, softeners, and other hygiene and cleaning products;
- cogeneration, production and sale of energy and biodiesel;
- participation in the financial market, as well as in the carbon credit market;
- sale and production of legume and vegetable products, as well as their by-products and substitutes, animal feeds, preserved and canned food and fats; and
- transportation of its own products and third-party products, agency and other related activities that are necessary for the achievement of the business purpose.
3.1.2. Pursuant to article 3, paragraph 1, of its Articles of Incorporation, Issuer may engage in other business activities that are related to the business purpose set out in Section 3.1.1 above.
3.2. Series
3.2.1. The Issue shall be made in a single series ("Series").
3.3. Total Issue Amount
3.3.1. The total Issue amount will be three hundred million Brazilian reais (BRL 300,000,000.00) as of the Date of Issue (as defined below), subject to Section 4.6.6 below ("Total Issue Amount").
3.4. Number of Debentures
3.4.1. Three hundred thousand (300,000) Debentures will be issued, subject to Section 4.6.6 below. The final number of Debentures that will be paid-up by the Debenture Holder will be defined based on the number of CRA, according to the bookbuilding procedure provided for in the Transaction Documents (as defined in the Securitization Agreement) ("Bookbuilding Procedure"), and an amendment to this Indenture shall be executed within the period set forth in Section 4.6.6 below, with no need of approval at a meeting of the Board of Directors of Issuer, a General Meeting of Debenture Holders (as defined below) and/or a meeting of CRA holders to formalize the number of Debentures actually subscribed for and paid-up and the Total Issue Amount, as provided for in the Securitization Agreement.
3.5. Allocation of Proceeds
3.5.1. The net proceeds raised through this Issue, disbursed by the Debenture Holder in favor of Issuer, shall be used by Issuer entirely and exclusively for the acquisition by Issuer of bovine cattle (i.e., live cattle) from MFG AGROPECUÁRIA LTDA., a company with its principal place of business in the City of São Paulo, State of São Paulo, at Avenida Queiroz Filho, No. 1560, 3rd floor, suite 315, Torre Sabiá, Vila Hamburguesa, CEP 05319-000, enrolled with the CNPJ/ME under No. 11.938.605/0001-44, duly registered as a rural producer under section 165 of Normative Regulation No. 971 of the Federal Revenue Office, dated November 13, 2009 ("Rural Producer"), and pursuant to the "General Terms and Conditions for the Purchase and Sale of Cattle" executed by Issuer to establish the terms and conditions that will regulate the purchase of cattle by Issuer from the Rural Producer ("General Agreement for the Purchase and Sale of Cattle"), and also in compliance with paragraph 1, article 23, of Law No. 11076/04, and article 3, item I and paragraphs 1, 2, 7 and 8, of CVM Instruction No. 600, as well as item II, paragraph 4, article 3, of CVM Instruction No. 600, as provided for in its business purpose and in the ordinary course of its business, until the earlier of the Due Date or the date on which Issuer shows evidence of the application of all the proceeds obtained from the Issue ("Allocation of Proceeds").
3.5.1.1. Issuer estimates, on this date, that the Allocation of Proceeds shall take place according to the schedule set forth in Exhibit IIof this Indenture, in an indicative and not binding manner ("Indicative Schedule"), and Issuer may, if necessary and considering the commercial dynamics of the sector in which it operates, allocate the proceeds from the payment of the Debentures on dates other than those provided for in the Indicative Schedule, subject to Issuer's obligations to fully Allocate the Proceeds until the earlier of the Due Date or the date on which Issuer shows evidence of application of all proceeds from the Issue. Because it is a tentative and indicative schedule, in the event of any delay or advance of the Indicative Schedule for any reason whatsoever, (i) no notice to the Trustee or amendment to this Indenture or to any other documents of the Issue will be required, and (ii) no acceleration of maturity or early redemption
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Marfrig Global Foods SA published this content on 24 July 2019 and is solely responsible for the information contained therein. Distributed by Public, unedited and unaltered, on 24 July 2019 22:24:10 UTC