TERMS AGREEMENT EMBRAER S.A. Debt Securities
Exhibit 1.1
Execution Version
Debt Securities
January 25, 2017
To: The Underwriters named herein
Ladies and Gentlemen:
Embraer Netherlands Finance B.V. (the “Issuer”) and Embraer S.A. (the “Company”) agree to sell to the several Underwriters named in Schedule I hereto for their respective accounts, on and subject to the terms and conditions of the Underwriting Agreement – Basic Provisions attached hereto as Exhibit I (the “Agreement”), the following securities (the “Securities”) on the following terms:
| Issuer: |
Embraer Netherlands Finance B.V. | |
| Guarantor: |
Embraer S.A. | |
| Title: |
5.400% Notes due 2027 | |
| Principal Amount: |
U.S.$750,000,000 | |
| Interest: |
5.400% per annum | |
| Interest Payment Dates: |
February 1 and August 1, commencing on August 1, 2017 | |
| Maturity: |
February 1, 2027 | |
| Yield to Maturity: |
5.400% | |
| Spread to Benchmark Treasury: |
+287.7 basis points | |
| Benchmark Treasury: |
2.000% due November 15, 2026 | |
| Benchmark Treasury Price and Yield: |
95-15+; 2.523% | |
| Make-Whole Call: |
At any time at a discount of Treasury plus 45 basis points | |
| Settlement: |
February 1, 2017 (T+5) | |
| Denominations: |
Minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof. | |
| Optional Tax Redemption: |
Either the Issuer or the Guarantor (as the case may be) may, at its option, redeem the notes, in whole but not in part, at 100% of the principal amount plus accrued and unpaid interest and additional amounts, if any, upon the occurrence of specified events relating to Brazilian or Dutch tax law. See “Description of the Notes—Redemption and Repurchase—Optional Tax Redemption” in the Disclosure Package and the Final Prospectus. | |
| Listing: |
New York Stock Exchange | |
| CUSIP: |
29082H AB8 | |
| ISIN: |
US29082HAB87 | |
1
| Expected Rating of the Company1: |
Intentionally Omitted | |
| Public Offering Price: |
100.000% of principal amount, plus accrued interest, if any, from February 1, 2017. | |
| Price to Underwriters: |
99.810% of principal amount, plus accrued interest, if any, from February 1, 2017. | |
| Registration Statement File Numbers: |
333-204470 and 000-000000-00 | |
| Execution Time: |
3:50 p.m. (New York City time) on January 25, 2017 | |
| Closing: |
9:00 a.m. (New York City time) or at such other time as agreed between the parties hereto on February 1, 2017, at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, Av. Presidente Xxxxxxxxx Xxxxxxxxxx, 1455, 12th Floor, Suite 121, São Paulo, SP 00000-000, Xxxxxx | |
| Bookrunners: |
BB Securities Ltd. X.X. Xxxxxx Securities LLC Santander Investment Securities Inc. | |
| Managers: |
None. | |
| Co-managers: |
None. | |
| Clear Market Period: |
From January 25, 2017 to February 25, 2017, neither the Issuer nor the Company will, without the prior written consent of the Bookrunners, issue, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Issuer and having a tenor of more than one year, provided that the Issuer and the Company will not be prevented from (1) prepaying any existing indebtedness of the Issuer; (2) entering into any export financing transaction with multilateral agencies or (3) entering into any financing from Financiadora de Estudos e Projetos – FINEP or the Banco Nacional de Desenvolvimento Econômico e Social – BNDES. | |
| Indenture: |
Indenture dated as of June 15, 2015, among the Issuer, the Guarantor and The Bank of New York Mellon, as trustee, as supplemented by the Second Supplemental Indenture, to be dated as of February 1, 2017, among the Issuer, the Guarantor and The Bank of New York Mellon, as trustee. | |
| Additional Transaction Documents: |
None. | |
| Notice to Underwriters: |
Notices to the Underwriters shall be directed to: | |
| BB Securities Ltd. 4th Floor – Pinners Hall 000-000 Xxx Xxxxx Xxxxxx Xxxxxx, XX0X 0XX Xxxxxx Xxxxxxx Attn: Operations Department | ||
| 1 | Rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
2
| X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Xxxxxx Xxxxxx Attn: Latin America Debt Capital Markets Fax: x0 (000) 000-0000
Santander Investment Securities Inc. 00 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000 Xxxxxx Xxxxxx Attn: Debt Capital Markets Fax: x0 (000) 000-0000 e-mail: XXXXxxxxxxx@xxxxxxxxx.xx | ||
| Underwriter Information: |
The first paragraph under the caption “Underwriting—Price Stabilization and Short Positions” in the Disclosure Package and the Final Prospectus. | |
The respective principal amounts of the Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule I hereto.
BB Securities Ltd. is not a broker-dealer registered with the Commission, and therefore may not make sales of any notes in the United States or to U.S. persons except in compliance with applicable U.S. laws and regulations. To the extent that BB Securities Ltd. intends to effect sales of the notes in the United States, it will do so only through Banco do Brasil Securities LLC or one or more U.S. registered broker dealers, or otherwise as permitted by applicable U.S. law. BB Securities Asia Pte. Ltd. may be involved in the sales of the notes in Asia.
The definition of “2014 Form 20-F” under the Underwriting Agreement – Basic Provisions is hereby amended by deleting such definition in its entirety and substituting in lieu thereof the following: ““2015 Form 20-F” means the Company’s annual report on Form 20-F for the year ended December 31, 2015, filed with the SEC on March 29, 2016.”
The definition of “Subsidiary” under the Underwriting Agreement – Basic Provisions is hereby amended by deleting the phrase “As of the date hereof, the Company has no subsidiaries other than the Issuer and those listed on Exhibit 8.1 to the 2014 Form 20-F.”
The caput of Section 1 under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “as of the date hereof” with the phrase “as of the date hereof and as of the date of the Execution Time.”
Section 1(t) under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “December 31, 2014, 2013 and 2012 and for the years ended December 31, 2014, 2013 and 2012” with the phase “December 31, 2015, 2014 and 2013 and for the years ended December 31, 2015, 2014 and 2013” and by replacing the language “for the three-month periods ended March 31, 2015 and 2014” with the language “for the nine-month periods ended September 30, 2016 and 2015.”
Section 1(nn) under the Underwriting Agreement – Basic Provisions is hereby amended by deleting the phrase “Except for AEL Sistemas S.A.”
3
Section 1(tt) under the Underwriting Agreement – Basic Provisions is hereby amended by adding at the end the sentence “; provided that the Underwriters, must be authorized or exempt pursuant to the Dutch Financial Supervision Act (Wet op het financieel toezicht) to provide investment services within the meaning of MiFID (2004/39/EC) in the Netherlands.”
Section 1(vv) under the Underwriting Agreement – Basic Provision is amended by (i) replacing the phrase “shall have been authenticated by a Brazilian consular office having jurisdiction over the place of execution” with the phrase “must be certified under the Apostille model of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents from 1961”, and (ii) replacing the phrase “in accordance with Article 835 of the Brazilian Civil Procedure Code, except in case of execution writs or counterclaims as established under Article 836 of the Brazilian Civil Procedure Code” with the phrase “in accordance with Article 83 of the new Brazilian Civil Procedure Code (Law No. 13,105/2015), except in case of execution writs, counterclaims or when it is expressly dismissed by an international agreement signed by Brazil, as established in its Article 83, §1º, I, II and III.”
Section 4(m) under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “30 days after the date hereof” with the phrase “30 days after the date of the Execution Time.”
Section 5(a)(i) under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “Xxxxxx Xxxx Xxxxxx xx Xxxxxx, Esq., Associate General Counsel of the Company” with the phrase “Xxxxxx Bumachar Barros Advogados, Brazilian counsel to the Company.”
Section 5(a)(iii) under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “Xxxxx & XxXxxxxx Amsterdam N.V.” with the phrase “Loyens & Loeff N.V.”
Section 5(b)(ii) under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “White & Case LLP” with the phrase “Xxxxxxx Xxxxxxx & Xxxxxxxx LLP.”
Section 5(d)(iv) under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “(as defined for purposes of Rule 436(g) under the Securities Act)” with the phrase “(as such term is defined under Section 3(a)(62) under the Exchange Act).”
Section 5(e)(iv) under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “(as defined for purposes of Rule 436(g) under the Securities Act)” with the phrase “(as such term is defined under Section 3(a)(62) under the Exchange Act).”
Section 5(g) under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “(as defined for purposes of Rule 436(g) under the Securities Act)” with the phrase “(as such term is defined under Section 3(a)(62) under the Exchange Act).”
Section 12 under the Underwriting Agreement – Basic Provisions is hereby amended by replacing the phrase “Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx, 0000, 12227-901 São Xxxx dos Xxxxxx, São Paulo, Brazil” with the phrase “Avenida Presidente Xxxxxxxxx Xxxxxxxxxx, 1909, 14th and 15th floors—Torre Norte—São Paulo Corporate Towers, 04543-907, São Paulo, São Paulo State, Brazil.”
To the extent not superseded or amended by the terms hereof, the provisions of the Underwriting Agreement – Basic Provisions are incorporated herein by reference. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Underwriting Agreement – Basic Provisions.
This Terms Agreement may be signed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Obligors one of the counterparts hereof, whereupon it will become a binding agreement among the Obligors and the several Underwriters in accordance with its terms.
4
Very truly yours,
/s/ Paulo Xxxxx xx Xxxxx e Xxxxx
By: Authorized Signatory
Name: Paulo Xxxxx xx Xxxxx e Xxxxx
Title: President and Chief Executive Officer
/s/ Xxxx Xxxxxxx xx Xxxxxxx Filippo
By: Authorized Signatory
Name: Xxxx Xxxxxxx xx Xxxxxxx Xxxxxxx
Title: Executive Vice President – Chief Financial and Investor Relations Officer
EMBRAER NETHERLANDS FINANCE B.V.
/s/ Xxxx Xxxxxxx xx Xxxxxxx Filippo
By: Authorized Signatory
Name: Xxxx Xxxxxxx xx Xxxxxxx Xxxxxxx
Title: Supervisory Board Member
/s/ Xxxxxx Xxxxx xx Xxxxx Funo
By: Authorized Signatory
Name: Xxxxxx Xxxxx xx Xxxxx Funo
Title: Supervisory Board Member
[Signature Page to Embraer Netherlands Finance B.V. – 2027 Notes – Terms Agreement]
The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above written.
BB SECURITIES LTD.
/s/ Xxxxxxxx Xxxxxx
By: Authorized Signatory
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
/s/ Selma Xxxxxxxx xx Xxxxx
By: Authorized Signatory
Name: Selma Xxxxxxxx xx Xxxxx
Title: Deputy Managing Director
[Signature Page to Embraer Netherlands Finance B.V. – 2027 Notes – Terms Agreement]
The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above written.
X.X. XXXXXX SECURITIES LLC
/s/ Xxx Xxxxx-Klarish
By: Authorized Signatory
Name: Xxx Xxxxx-Klarish
Title: Executive Director
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 25th day of January, 2017, before me, a notary public within and for said county, personally appeared Xxx Xxxxx-Klarish, to me personally known who being duly sworn, did say that he/she is an Executive Director of X.X. Xxxxxx Securities LLC, the person described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said corporation.
/s/ Liez X. Xxxxxx
Title: Notary Public, State of New York
XXXX X XXXXXX
Notary Public – State of New York
NO. 01SA6185147
Qualified in Kings County
My Commission Expires Apr 7, 2020
[Signature Page to Embraer Netherlands Finance B.V. – 2027 Notes – Terms Agreement]
The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above written.
SANTANDER INVESTMENT SECURITIES INC.
/s/ Xxxxxx Xxxxx
By: Authorized Signatory
Name: Xxxxxx Xxxxx
Title: Sr. Vice President
/s/ Xxx Xxxxxx
By: Authorized Signatory
Name: Xxx Xxxxxx
Title: Sr. Vice President
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 25th day of January, 2017, before me, a notary public within and for said county, personally appeared Xxxxxx Xxxxx and Xxx Xxxxxx, to me personally known who being duly sworn, did say that such person is the Sr. Vice President and Sr. Vice President, respectively, and authorized signatory of Santander Investment Securities Inc., the person described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said corporation.
/s/ Xxxxxxx X. Xxxxxx, Xx.
Title: Notary Public, State of New York
XXXXXXX X. XXXXXX, XX.
NOTARY PUBLIC-STATE OF NEW YORK
No. 01ZO6224451
Qualified in New York County
My Commission Expires August 02, 2018
[Signature Page to Embraer Netherlands Finance B.V. – 2027 Notes – Terms Agreement]
SCHEDULE I
UNDERWRITERS
| Underwriter |
Principal Amount | |||
| BB Securities Ltd. |
U.S.$ | 250,000,000 | ||
| X.X. Xxxxxx Securities LLC |
U.S.$ | 250,000,000 | ||
| Santander Investment Securities Inc. |
U.S.$ | 250,000,000 | ||
|
|
|
|||
| Total |
U.S.$ | 750,000,000 | ||
|
|
|
|||
S-I-1
SCHEDULE II
ISSUER FREE WRITING PROSPECTUSES
| • | Final Term Sheet, dated January 25, 2017, relating to the Securities (as filed pursuant to Ruled 433 under the Securities Act) |
S-II-1
SCHEDULE III
FINAL TERM SHEET
S-III-1
Free Writing Prospectus
Filed Pursuant to Rule 433
Registration Statement Nos. 333-204470
000-000000-00
PRICING TERM SHEET
EMBRAER NETHERLANDS FINANCE B.V.
U.S.$750,000,000 5.400% NOTES DUE 2027
GUARANTEED BY
January 25, 2017
| ISSUER: | Embraer Netherlands Finance B.V. | |
| GUARANTOR: | Embraer S.A. | |
| SECURITY: | 5.400% Notes due 2027 | |
| RANKING: | The notes and the guarantee will be general, senior, unsecured obligations and will rank equal in right of payment with all of the Issuer’s and the Guarantor’s existing and future senior unsecured indebtedness, respectively. The notes and the guarantee will be (i) effectively subordinated to all of the Issuer’s and the Guarantor’s existing and future secured indebtedness to the extent of the value of the assets securing such indebtedness, respectively, and (ii) structurally subordinated to all of the existing and future liabilities of the Guarantor’s subsidiaries (other than the Issuer). | |
| FORMAT: | SEC Registered | |
| CURRENCY: | U.S. Dollars | |
| PRINCIPAL AMOUNT: | U.S.$750,000,000 | |
| MATURITY: | February 1, 2027 | |
| SETTLEMENT DATE*: | February 1, 2017 (T+5) | |
| COUPON: | 5.400% per annum | |
| DAY COUNT: | 30/360 | |
| INTEREST PAYMENT DATES: | February 1 and August 1, commencing on August 1, 2017 | |
| ISSUE PRICE: | 100.000% of principal amount | |
| BENCHMARK TREASURY: | 2.000% due November 15, 2026 | |
S-III-2
| BENCHMARK TREASURY PRICE AND YIELD: | 95-15+; 2.523% | |
| SPREAD TO BENCHMARK TREASURY: | +287.7 basis points | |
| YIELD: | 5.400% | |
| MAKE-WHOLE CALL: | Treasury Rate plus 45 basis points | |
| OPTIONAL REDEMPTION PROVISIONS: | The Issuer may, at its option, redeem the notes, in whole or in part, at any time, by paying the greater of (i) 100% of the principal amount of the notes and (ii) the applicable “make-whole” amount, as described under “Description of the Notes—Redemption and Repurchase—Optional Redemption With Make-Whole Amount” in the prospectus supplement. | |
| TAX REDEMPTION PROVISIONS: | Either the Issuer or the Guarantor (as the case may be) may, at its option, redeem the notes, in whole but not in part, at 100% of the principal amount plus accrued and unpaid interest and additional amounts, if any, upon the occurrence of specified events relating to Brazilian or Dutch tax law. See “Description of the Notes—Redemption and Repurchase—Optional Tax Redemption” in the prospectus supplement. | |
| RATINGS**: | Intentionally Omitted | |
| DENOMINATION: | Minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof | |
| GOVERNING LAW: | State of New York | |
| CLEARING: | The Depository Trust Company | |
| LISTING: | The Issuer will apply to list the notes on the New York Stock Exchange | |
| CUSIP/ISIN: | CUSIP: 29082H AB8 ISIN: US29082HAB87 | |
| JOINT BOOK-RUNNING MANAGERS: | BB Securities Ltd. X.X. Xxxxxx Securities LLC Santander Investment Securities Inc. | |
| * | Delivery of the notes will be made to investors on or about February 1, 2017, which will be the fifth business day following the date hereof. Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in three business days, unless the parties to a trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes on the date of pricing or the next succeeding business day will be required, by virtue of the fact that the notes initially will settle in T+5, to specify alternative settlement arrangements to prevent a failed settlement. |
S-III-3
| ** | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
The information in this Pricing Term Sheet supplements the preliminary prospectus supplement, dated January 18, 2017 (the “Preliminary Prospectus Supplement”), and supersedes the information in the Preliminary Prospectus Supplement to the extent inconsistent with the information in the Preliminary Prospectus Supplement. Unless otherwise indicated, terms used but not defined herein have the meanings assigned to such terms in the Preliminary Prospectus Supplement.
The Issuer and the Guarantor have filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer and the Guarantor have filed with the SEC for more complete information about the Issuer, the Guarantor and this offering. You may access these documents without charge by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the Underwriters can arrange to send you the prospectus supplement and prospectus if you request it by calling BB Securities Ltd. at x00 (00) 0000 0000, att. Operations Department, X.X. Xxxxxx Securities LLC at x0 (000) 000-0000, or Santander Investment Securities Inc. at x0 (000) 000-0000.
S-III-4
