INDENTURE, dated as of January 26, 2024, among COSAN LUXEMBOURG S.A., a public limited liability company (société anonyme) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 6, rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B 175.646, as the Company, COSAN S.A., a sociedade anônima (corporation) incorporated under the laws of the Federative Republic of Brazil, as the Guarantor, and U.S. Bank Trust Company, National Association, a national baking association organized and existing under the laws of the United States of America, as Trustee, Paying Agent, Registrar and Transfer Agent.
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Company’s 7.250% Senior Notes due 2031 (the “Notes”). All things necessary to make this Indenture a valid agreement of the Company in accordance with its terms, have been done, and the Company has done all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligations of the Company as hereinafter provided.
In addition, the Guarantor has duly authorized the execution and delivery of this Indenture as guarantor. All things necessary to make this Indenture a valid agreement of the Guarantor, in accordance with its terms, have been done, and the Guarantor has done all things necessary to make the Note Guarantee, when the Notes are executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligation of the Guarantor as hereinafter provided.
WITNESSETH
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as follows:
“Acquired Debt” means Debt of a Person existing at the time the Person merges with or into or becomes a Restricted Subsidiary and not Incurred in connection with, or in contemplation of, the Person merging with or into or becoming a Restricted Subsidiary.
“Additional Amounts” has the meaning assigned to such term in Section 3.01.
“Additional Notes” means the Company’s 7.250% Senior Notes due 2031 (other than the Initial Notes) issued after the Issue Date in accordance with Section 2.02 hereof, as part of the same series as the Initial Notes.
“Adjusted EBITDA” means, for any period:
(1) consolidated profit (loss) for the period plus;
(2) finance results, net, plus;
(3) income tax plus;
(4) any depreciation and amortization minus;
(5) equity in earnings of investees and joint ventures plus;
(6) Cosan S.A.’s proportional interest in Raízen S.A.’s EBITDA and any equity pick-up in any entity holding interests in Vale S.A.
as such item is reported on the most recent consolidated financial statements delivered by the Guarantor to the Trustee and prepared in accordance with IFRS. For the avoidance of doubt, each of (i) Rumo S.A., (ii) any Persons in which Rumo S.A. has a direct or indirect interest and (iii) any equity pick up from such entities in which the Guarantor has a direct or indirect interest in Vale S.A., in each case, irrespective of whether any such Person is consolidated by the Guarantor, are included in the calculation of Adjusted EBITDA. The Guarantor’s proportional interest in Raízen S.A. and its Subsidiaries shall be included in the calculation of Adjusted EBITDA. While Adjusted EBITDA of Raízen S.A. and its Subsidiaries has been considered on a proportional interest base method, any eventual equity pick up from such entities during the same period shall be excluded, to avoid duplication.
For avoidance of doubt, in calculating Adjusted EBITDA, the Guarantor will deem any reported income/expense as a recurring item unless the item is greater than U.S.$50.0 million, in which case, the Guarantor shall make a good faith determination on an item-by-item basis as to whether it is recurring.
“Adjusted Net Debt” means, as of any date of determination:
(1) the aggregate amount of current and non-current loans, borrowings and debentures of the Guarantor and its Restricted Subsidiaries and the Guarantor’s proportionate equity interest in Raízen S.A. and its Subsidiaries’ Net Debt, minus
(2) the sum of consolidated cash and cash equivalents and consolidated marketable securities recorded as current and non-current assets (including (i) National Treasury Certificates - “CTNs,” acquired to guarantee loans under the Special Agricultural Financing Program and (ii) the market value of any shares of Vale S.A.), minus (plus)
(3) any recorded asset (liability) from derivatives entered into by the Guarantor and its Restricted Subsidiaries in order to hedge its Debt denominated in foreign currencies,
in all cases determined in accordance with IFRS and as set forth in the most recent consolidated balance sheet of the Guarantor. For the avoidance of doubt, each of (i) Rumo S.A., (ii) any Persons in which Rumo S.A. has a direct or indirect interest and (iii) any equity pick up from such entities in which the Guarantor has a direct or indirect interest in Vale S.A., in each case, irrespective of whether any such Person is consolidated by the Guarantor, are included in the calculation of Adjusted Net Debt. While Adjusted Net Debt of Raízen S.A. and its Subsidiaries has been considered on a proportional interest base method, any eventual equity pick up from such entities during the same period shall be excluded, to avoid duplication.
“Adjusted Treasury Rate” means, with respect to any Redemption Date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date, in each case calculated on the third Business Day immediately preceding the Redemption Date.
“Advance Transaction” means an advance from a financial institution involving either (a) a foreign exchange contract (ACC—Adiantamento sobre Contrato de Câmbio) or (b) an export contract (ACE—Adiantamento sobre Contrato de Exportação).
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent” means any Registrar, Paying Agent, Transfer Agent, Authenticating Agent or other agent hereunder, as duly appointed by the Company (or by the Trustee in the case of the Authenticating Agent).
“Agent Member” means a member of, or a participant in, the Depositary.
“Applicable Law” has the meaning assigned to such term in Section 11.15.
“Applicable Premium” means, with respect to a Note at any Redemption Date, the greater of (1) 1.0% of the principal amount of such Note on such Redemption Date and (2) the excess, if any, of (A) an amount equal to the present value at such Redemption Date of (i) the Redemption Price of such Note on June 27, 2027 (such redemption price being described in Section 3.03 exclusive of any accrued interest), plus (ii) all required remaining scheduled interest payments due on such Note (assuming that the interest rate per annum on the Notes applicable on the date on which the notice of redemption was given was in effect for the entire period) through June 27, 2027 (but excluding accrued and unpaid interest to the Redemption Date), in each case, computed by the Company using a discount rate equal to the Adjusted Treasury Rate, plus 0.500%, over (B) the principal amount of such Note on such Redemption Date. In no event shall the Trustee be responsible for calculating the Applicable Premium or any component thereof.
“Asset Sale” means any sale, lease, transfer or other disposition of any assets by the Guarantor or any Restricted Subsidiary, including by means of a merger, consolidation or similar transaction and including any sale or issuance of the Equity Interests of any Restricted Subsidiary (each of the above referred to as a “disposition”), provided that the following are not included in the definition of “Asset Sale”:
(1) a disposition to the Guarantor or a Restricted Subsidiary, including the sale or issuance by the Guarantor or any Restricted Subsidiary of any Equity Interests of any Restricted Subsidiary to the Guarantor or any Restricted Subsidiary;
(2) a disposition by a Restricted Subsidiary to the Guarantor or another Restricted Subsidiary or by the Guarantor to a Restricted Subsidiary;
(3) a disposition of any Equity Interests of any Restricted Subsidiary in connection with a corporate reorganization or delisting transaction involving the public shareholders of the Guarantor, provided that immediately following such disposition, the
Guarantor could Incur at least U.S.$1.00 of Debt under the Net Debt to EBITDA Ratio test set forth in Section 4.07(a);
(4) the sale, lease, transfer or other disposition by the Guarantor or any Restricted Subsidiary in the ordinary course of business of (i) cash and Cash Equivalents, (ii) inventory, (iii) damaged, worn out or obsolete equipment or other assets, or (iv) rights granted to others pursuant to leases or licenses;
(5) the lease of assets by the Guarantor or any of its Subsidiaries in the ordinary course of business;
(6) the sale or discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(7) a transaction covered by the covenant described under Article 5;
(8) any restricted payment (including, without limitation, any dividend or distribution);
(9) a Sale and Leaseback Transaction otherwise permitted under Section 4.10;
(10) any issuance of Disqualified Stock otherwise permitted under Section 4.07;
(11) the creation of a Lien not prohibited by this Indenture (but not the sale or disposition of the property subject to such Lien);
(12) any surrender or waiver of contract rights pursuant to a settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(13) any disposition of assets in any fiscal year with an aggregate fair market value, taken together with all other dispositions made in reliance on this clause, not to exceed U.S.$175.0 million (or the equivalent thereof at the time of determination);
(14) the disposition of any shares of Capital Stock of an Unrestricted Subsidiary;
(15) the Lubricant Disposal; and
(16) the Radar Disposal.
“Attributable Debt” means, in respect of a Sale and Leaseback Transaction, the present value, discounted at the interest rate implicit in the Sale and Leaseback Transaction, of the total obligations of the lessee for rental payments during the remaining term of the lease in the Sale and Leaseback Transaction.
“Authenticating Agent” refers to the Trustee’s designee for authentication of the Notes.
“Authorized Officer” has the meaning assigned to such term in Section 11.02.
“Average Life” means, with respect to any Debt, the quotient obtained by dividing (i) the sum of the products of (x) the number of years from the date of determination to the dates of each successive scheduled principal payment of such Debt and (y) the amount of such principal payment by (ii) the sum of all such principal payments.
“bankruptcy default” has the meaning assigned to such term in Section 6.01.
“Board of Directors” means the board of directors or comparable governing body of the Company or the Guarantor, as applicable, or any committee thereof duly authorized to act on its behalf.
“Board Resolution” means a resolution duly adopted by the Board of Directors which is certified by the Secretary, Assistant Secretary or a director of the Company or the Guarantor, as applicable, and remains in full force and effect as of the date of its certification.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in the City of New York, São Paulo or (for so long as the Company is organized under the laws of the Grand Duchy of Luxembourg) Luxembourg.
“Capital Lease” means, with respect to any Person, any lease of any Property which, in conformity with IFRS, is required to be capitalized on the balance sheet of such Person.
“Capital Stock” means, with respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent interests (however designated, whether voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the profits and losses, and a distribution of assets, after liabilities, of such Person.
“Cash Equivalents” means
(1) Brazilian reais, U.S. Dollars, or money in other currencies received in the ordinary course of business that are readily convertible into U.S. Dollars,
(2) any evidence of Debt with a maturity of 180 days or less issued or directly and fully guaranteed or insured by the Federative Republic of Brazil or the United States of America or any agency or instrumentality thereof, provided that the full faith and credit of the Federative Republic of Brazil or the United States of America is pledged in support thereof,
(3) (i) demand deposits, (ii) time deposits and certificates of deposit with maturities of one year or less from the date of acquisition, (iii) bankers’ acceptances with maturities not exceeding one year from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank or trust company organized or licensed under the laws of the Federative Republic of Brazil or any political subdivision thereof or the United States or any state thereof having capital, surplus and undivided profits in excess of U.S.$500.0 million whose short-term debt is rated “A-2” or higher by S&P or “P-2” or higher by Moody’s,
(4) repurchase obligations with a term of not more than seven days for underlying securities of the type described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above,
(5) commercial paper rated at least P-1 by Moody’s or A-1 by S&P and maturing within six months after the date of acquisition, and
(6) money market funds at least 95% of the assets of which consist of investments of the type described in clauses (1) through (5) above.
“Certificated Note” means a Note in registered individual form without interest coupons.
“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 Guarantor 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, the voting power of the Guarantor’s outstanding Voting Stock immediately prior to such consummation constitutes or is converted into or exchanged for more than 50% of the voting power of the outstanding Voting Stock of such Person or (ii) any such sale, lease, transfer or conveyance to one or more Permitted Holders or a Subsidiary of a Permitted Holder, in each case, 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 Guarantor.
“Commission” means the U.S. Securities and Exchange Commission.
“Company” or “Issuer” means the party named as such in the first paragraph of this Indenture or any successor obligor under this Indenture and the Notes pursuant to Sections 4.21 and 11.10.
“Comparable Treasury Issue” means, with respect to any Redemption Date, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to June 27, 2027 that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity comparable to June 27, 2027.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of three, or such lesser number as is obtained by the Quotation Agent, Reference Treasury Dealer Quotations for such Redemption Date.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee is administered, which at the date of this Indenture is located at 100 Wall Street, Suite 600, New York, New York 10005.
“Debt” means, with respect to any Person, without duplication:
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments, excluding obligations in respect of trade letters of credit or bankers’ acceptances issued in respect of trade accounts payables to the extent not drawn upon or presented, or, if drawn upon or presented, to the extent the resulting obligation of the Person is paid within 10 Business Days;
(4) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, all conditional sale obligations and all obligations of such person under any title retention agreement, excluding accounts payable arising in the ordinary course of business;
(5) all obligations of such Person as lessee under Capital Leases;
(6) all Debt of other Persons guaranteed by such Person to the extent so guaranteed;
(7) all Debt of other Persons secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person; and
(8) all obligations of such Person under Hedging Agreements.
The amount of Debt of any Person will be deemed to be:
(A) with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation;
(B) with respect to Debt secured by a Lien on an asset of such Person but not otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the fair market value of such asset on the date the Lien attached and (y) the amount of such Debt;
(C) with respect to any Debt issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt;
(D) with respect to any Hedging Agreement, the net amount payable if such Hedging Agreement terminated at that time due to default by such Person; and
(E) otherwise, the outstanding principal amount thereof.
The principal amount of any Debt or other obligation that is denominated in any currency other than U.S. Dollars (after giving effect to any Hedging Agreement in respect thereof) shall be the amount thereof, as determined pursuant to the foregoing sentence, converted into U.S. Dollars at the Spot Rate in effect on the date of determination.
“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means the depositary of each Global Note, which will initially be DTC.
“Disqualified Equity Interests” means Equity Interests that by their terms or upon the happening of any event are:
(1) required to be redeemed or redeemable at the option of the holder prior to the Stated Maturity of the Notes for consideration other than Qualified Equity Interests, or
(2) convertible at the option of the holder into Disqualified Equity Interests or exchangeable for Debt;
provided that Equity Interests will not constitute Disqualified Equity Interests solely because of provisions giving holders thereof the right to require repurchase or redemption upon an “asset sale” or “change of control” occurring prior to the Stated Maturity of the Notes if those provisions
(A) are no more favorable to the holders than the covenants described under Sections 4.12 and 4.13, and
(B) specifically state that repurchase or redemption pursuant thereto will not be required prior to the Company’s repurchase of the Notes as required by this Indenture.
“Disqualified Stock” means Capital Stock constituting Disqualified Equity Interests.
“DTC” means The Depository Trust Company, a New York corporation, and its successors.
“DTC Legend” means the legend set forth in Exhibit C.
“Electronic Means” has the meaning assigned to such term in Section 11.02.
“Equity Interests” means all Capital Stock and all warrants or options with respect to, or other rights to purchase, Capital Stock, but excluding Debt convertible into equity.
“Event of Default” has the meaning assigned to such term in Section 6.01.
“Excess Proceeds” has the meaning assigned to such term in Section 4.13.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Fitch” means Fitch Ratings Inc. and its successors.
“Global Note” means a Note in global form without interest coupons registered in the name of the Depositary (or its nominee) as depositary for the beneficial owners thereof.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part; provided that the term “Guarantee” does not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor” means each of (i) Cosan S.A. and (ii) any other party that executes a Supplemental Indenture providing a Note Guarantee, or any successor obligor under its Note Guarantee pursuant to the covenant described in Article 5, in each case, unless and until such Guarantor is released from its Note Guarantee pursuant to this Indenture; provided, however, that references to the Guarantor in Articles 4 and 5 and in Sections 6.01(d) to 6.01(h) and in Section 6.01(k) shall only be to Cosan S.A.
“Hedging Agreement” means (i) any interest rate swap agreement, interest rate cap agreement or other agreement designed to protect against fluctuations in interest rates or (ii) any foreign exchange forward contract, currency swap agreement or other agreement designed to protect against fluctuations in foreign exchange rates or (iii) any commodity or raw material futures contract or any other agreement designed to protect against fluctuations in raw material prices.
“Holder” means the registered holder of any Note.
“IFRS” means International Financial Reporting Standards as issued by the International Accounting Standards Board as in effect on the Issue Date.
“IFRS 16” means International Financial Reporting Standard 16 Leases as issued by the International Accounting Standards Board in January 2016 to replace IAS 17 and effective from January 1, 2019, as amended or superseded from time to time.
“Incur” means, with respect to any Debt or Capital Stock, to incur, create, issue, assume or guarantee such Debt or Capital Stock. If any Person becomes a Restricted Subsidiary on any date after the date of this Indenture, the Debt and Capital Stock of such Person outstanding on such date will be deemed to have been Incurred by such Person on such date for purposes of Section 4.07, but will not be considered the sale or issuance of Equity Interests for purposes of Section 4.13. The accretion of original issue discount or payment of interest in kind will not be considered an Incurrence of Debt.
“Incurrence” shall have a corresponding meaning to the definition herein of Incur.
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Initial Notes” means the U.S.$600,000,000 aggregate principal amount of Notes issued on the date hereof.
“Initial Purchasers” means the initial purchasers party to a purchase agreement with the Company relating to the sale of the Notes or Additional Notes by the Company.
“Instructions” has the meaning assigned to such term in Section 11.02.
“Interest Payment Date” means each June 27 and December 27 of each year, commencing June 27, 2024.
“Investment” means:
(1) any direct or indirect advance, loan or other extension of credit to another Person, but excluding any such advance, loan or extension of credit having a term not exceeding 180 days arising in connection with the sale of inventory, equipment or supplies by that Person in the ordinary course of business,
(2) any capital contribution to another Person, by means of any transfer of cash or other property or in any other form,
(3) any purchase or acquisition of Equity Interests, bonds, notes or other Debt, or other instruments or securities issued by another Person, any acquisitions of assets or substantially all the assets of a Person, including the receipt of any of the above as consideration for the disposition of assets or rendering of services, or
(4) any Guarantee of any obligation of another Person.
For purposes of this definition, the term “Person” shall not include the Guarantor or any Subsidiary or any Person who would become a Subsidiary as a result of any Investment. If the Guarantor or any Subsidiary sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary so that, after giving effect to that sale or disposition, such Person is no longer a Subsidiary of the Guarantor, all remaining Investments of the Guarantor and the Subsidiaries in such Person shall be deemed to have been made at such time. For purposes of the definition of “Unrestricted Subsidiary”:
(1) Investment shall include the portion (proportionate to the Guarantor’s Equity Interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of the Guarantor at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that, upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Guarantor shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) the Guarantor’s Investment in such Subsidiary at the time of such redesignation, minus
(b) the portion (proportionate to the Guarantor’s Equity Interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer.
“Investment Grade” means BBB- or higher by S&P, Baa3 or higher by Moody’s or BBB- or higher by Fitch, or the equivalent of such global ratings by S&P, Moody’s or Fitch.
“Investment Grade Rating” means a rating equal to or higher than Investment Grade.
“Issue Date” means January 26, 2024.
“Issuer Substitution Documents” has the meaning assigned to such term in Section 4.21.
“Joint Venture” means (i), as described in the Offering Memorandum, the joint venture between the Guarantor and Shell Brazil Holdings B.V. (“Shell”) and their respective subsidiaries whereby (a) the Guarantor contributed its sugar and ethanol and its fuel distribution assets and (b) Shell contributed its distribution assets in Brazil, its interests in second generation ethanol research and development entities (Iogen Corp. and Codexis, Inc., its aviation fuel business in Brazil) and the license to use the Shell brand, and a cash contribution, or (ii) any similar or related transaction.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or Capital Lease).
“Lubricant Disposal” has the meaning assigned to such term in Section 4.14.
“Marketable Securities” means publicly traded debt or equity securities that are listed for trading on a national securities exchange and that were issued by a corporation with debt securities rated at least “AA-” from S&P or “Aa3” from Moody’s.
“Minimum Withholding Level” has the meaning assigned to such term in Section 3.05.
“Moody’s” means Moody’s Investors Service, Inc. and its successors.
“Net Cash Proceeds” means, with respect to:
(A) any Asset Sale, the proceeds of such Asset Sale in the form of cash or Cash Equivalents (including (i) payments in respect of deferred payment obligations to the extent corresponding to principal, but not interest, when received in the form of cash, and (ii) proceeds from the conversion of other consideration received when converted to cash), net of:
(1) brokerage commissions and other fees and expenses related to such Asset Sale, including fees and expenses of counsel, accountants and investment bankers;
(2) provisions for taxes as a result of such Asset Sale taking into account the consolidated results of operations of the Guarantor and its Subsidiaries;
(3) payments required to be made to repay Debt (other than revolving credit borrowings) outstanding at the time of such Asset Sale that is secured by a Lien on the property or assets sold; and
(4) appropriate amounts to be provided as a reserve against liabilities associated with such Asset Sale, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and indemnification obligations associated with such Asset Sale, with any subsequent reduction of the reserve other than by payments made and charged against the reserved amount to be deemed a receipt of cash; and
(B) any Option Exercise, the proceeds from such Option Exercise in the form of cash or Cash Equivalents (including (i) payments in respect of deferred payment obligations to the extent corresponding to principal, but not interest, when received in the form of cash, and (ii) proceeds from the conversion of other consideration received when converted to cash), net of:
(1) fees and expenses related to such Option Exercise, including fees and expenses of counsel, auditors and investment bankers;
(2) provisions for taxes as a result of such Option Exercise taking into account the consolidated results of operations of the Guarantor and its Subsidiaries;
(3) payments required to be made to repay Debt (other than revolving credit borrowings) outstanding at the time of such Option Exercise that is secured by a Lien on the property or assets sold or conveyed; and
(4) appropriate amounts to be provided as a reserve against liabilities associated with such Option Exercise, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and indemnification obligations associated with such Option Exercise, with any subsequent reduction of the reserve other than by payments made and charged against the reserved amount to be deemed a receipt of cash.
“Net Debt” means, on any date, current and non-current loans, borrowings and debentures and the line item preferred shareholders payable in subsidiaries, net of cash and cash equivalents, marketable securities and derivative financial instruments on debt (assets less liabilities). Furthermore, any shares of Vale S.A. held by the Guarantor or any of its Subsidiaries shall be considered cash and cash equivalents and marketable securities for purposes of this definition based on the market value of the aggregate number of shares.
“Net Debt to EBITDA Ratio” means, on any date (the “transaction date”), the ratio of:
(x) the aggregate amount of Adjusted Net Debt at that time to
(y) Adjusted EBITDA for the four fiscal quarters immediately prior to the transaction date for which internal financial statements are available (the “reference period”).
In making the foregoing calculation,
(1) pro forma effect will be given to any Debt Incurred during or after the reference period to the extent the Debt is outstanding or is to be Incurred on the transaction date as if the Debt had been Incurred on the first day of the reference period; and
(2) pro forma effect will be given to:
(A) the acquisition or disposition of companies, divisions or lines of businesses by the Guarantor and its Restricted Subsidiaries, including any acquisition or disposition of a company, division or line of business since the beginning of the reference period by a Person that became a Restricted Subsidiary after the beginning of the reference period, and
(B) the discontinuation of any discontinued operations that have occurred since the beginning of the reference period as if such events had occurred, and, in the case of any disposition, the proceeds thereof applied, on the first day of the reference period. To the extent that pro forma effect is to be given to an acquisition or disposition of a company, division or line of business, the pro forma calculation will be based upon the most recent four full fiscal quarters for which the relevant financial information is available.
“Non-U.S. Person” means a Person that is not a U.S. person, as defined in Regulation S.
“Notation of Guarantee” has the meaning assigned to such term in Section 10.08.
“Note Guarantee” means the guarantee by any Guarantor of the obligations of the Company pursuant to the Notes, including the full and prompt payment of principal and interest on the Notes, and all other payment obligations of the Company under this Indenture, when and as the same become due and payable, whether at maturity, upon redemption or repurchase, by declaration of acceleration or otherwise, including any Additional Amounts required to be paid.
“Notes” has the meaning assigned to such term in the Recitals. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“obligations” means, with respect to any Debt, all obligations (whether in existence on the Issue Date or arising afterwards, absolute or contingent, direct or indirect) for or in respect of principal (when due, upon acceleration, upon redemption, upon mandatory repayment or repurchase pursuant to a mandatory offer to purchase, or otherwise), premium, interest, penalties, fees, indemnification, reimbursement and other amounts payable and liabilities with respect to such Debt, including all interest accrued or accruing after the commencement of any bankruptcy, insolvency or reorganization or similar case or proceeding at the contract rate (including, without limitation, any contract rate applicable upon default) specified in the relevant documentation, whether or not the claim for such interest is allowed as a claim in such case or proceeding.
“Offering Memorandum” means the final offering memorandum dated January 23, 2024, prepared by the Company in connection with the Initial Notes.
“Offer to Purchase” has the meaning assigned to such term in Section 3.11.
“Officer” means a director, the president or chief executive officer, any vice president, the chief financial officer, the chief operating officer, the chief accounting officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary, the general counsel or any other duly appointed Person of the Company or the Guarantor, as applicable, to perform corporate duties.
“Officers’ Certificate” means a certificate signed in the name of the Company or the Guarantor, as applicable, by any two of the chairman of the Board of Directors, the president or chief executive officer, the chief operating officer, the chief financial officer, the chief accounting officer, a director, the general counsel, any vice president, the treasurer or any assistant treasurer or the secretary or any assistant secretary, as the case may be.
“Offshore Global Note” means a Global Note representing Notes issued and sold pursuant to Regulation S.
“Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Company, reasonably satisfactory to the Trustee.
“Option Exercise” has the meaning assigned to such term in Article 5.
“Paying Agent” refers to U.S. Bank Trust Company, National Association and its successors or such other paying agents as the Company shall appoint.
“Permitted Business” means any of the businesses in which the Guarantor and its Subsidiaries are engaged on the Issue Date or the Option Exercise date, as applicable, and any business reasonably related, incidental, complementary or ancillary thereto or any business determined in good faith by its Board of Directors to be in the interest of the Guarantor.
“Permitted Business Investment” means any Investment and expenditure made in assets or properties (including Capital Stock, Debt or any other security or instrument of a Person) related to a Permitted Business or any business determined in good faith by its Board of Directors to be in the interest of the Guarantor.
“Permitted Debt” has the meaning assigned to such term in Section 4.07(b).
“Permitted Holders” means Mr. Rubens Ometto Silveira Mello and/or any immediate family members and any Person, directly or indirectly, controlled by any of them.
“Permitted Liens” means:
(1) any Lien existing on the date of this Indenture, and any extension, renewal or replacement thereof or of any Lien in clauses (2), (3) or (4) below; provided, however, that the total amount of Debt so secured is not increased;
(2) any Lien on any property or assets (including Capital Stock of any person) securing Debt Incurred solely for purposes of financing the acquisition, construction or improvement of such property or assets after the date of this Indenture; provided that (a) the aggregate principal amount of Debt secured by the Liens will not exceed (but may be less than) the cost (i.e., purchase price) of the property or assets so acquired, constructed or improved and (b) the Lien is Incurred before, or within 365 days after the completion of, such acquisition, construction or improvement and does not encumber any other property or assets of the Guarantor or any Subsidiary; and provided, further, that to the extent that the property or asset acquired is Capital Stock, the Lien also may encumber other property or assets of the person so acquired;
(3) any Lien securing Debt for the purpose of financing all or part of the cost of the acquisition, construction or development of a project; provided that the Liens in respect of such Debt are limited to assets (including Capital Stock of the project entity) and/or revenues of such project; and provided, further, that the Lien is Incurred before, or within 365 days after the completion of, that acquisition, construction or development and does not apply to any other property or assets of the Guarantor or any Subsidiary;
(4) any Lien existing on any property or assets of any person before that person’s acquisition (in whole or in part) by, merger into or consolidation with the Guarantor or any Subsidiary after the date of this Indenture; provided that the Lien is not created in contemplation of or in connection with such acquisition, merger or consolidation;
(5) any Lien imposed by law that was Incurred in the ordinary course of business, including, without limitation, carriers’, warehousemen’s and mechanics’ liens and other similar encumbrances arising in the ordinary course of business, in each case for sums not yet due or being contested in good faith by appropriate proceedings;
(6) any pledge or deposit made in connection with workers’ compensation, unemployment insurance or other similar social security legislation, any deposit to secure appeal bonds in proceedings being contested in good faith to which the Guarantor or any Subsidiary is a party, good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which the Guarantor or any Subsidiary is a party or deposits for the payment of rent, in each case made in the ordinary course of business;
(7) any Lien in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of the Guarantor or any Subsidiary in the ordinary course of business;
(8) any Lien securing taxes, assessments and other governmental charges, the payment of which are not yet due or are being contested in good faith by appropriate proceedings and for which such reserves or other appropriate provisions, if any, have been established as required by IFRS;
(9) minor defects, easements, rights-of-way, restrictions and other similar encumbrances Incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, licenses, restrictions on the use of property or assets or minor imperfections in title that do not materially impair the value or use of the property or assets affected thereby, and any leases and subleases of real property that do not interfere with the ordinary conduct of the business of the Guarantor or any Subsidiary, and which are made on customary and usual terms applicable to similar properties;
(10) any rights of set-off of any person with respect to any deposit account of the Guarantor or any Subsidiary arising in the ordinary course of business;
(11) any Liens granted to secure borrowings from, directly or indirectly, (a) Banco Nacional de Desenvolvimento Econômico e Social – BNDES, or any other Brazilian governmental development bank or credit agency, (b) any international or multilateral development bank, government-sponsored agency, export-import bank or official export-import credit insurer or (c) the Brazilian Cooperative Organization (Organização das Cooperativas Brasileiras – OCB);
(12) any Liens on the inventory or receivables of the Guarantor or any Subsidiary securing the obligations of such person under any lines of credit or working capital facility or in connection with any structured export or import financing or other trade transaction; provided that the aggregate principal amount of Debt Incurred that is secured by receivables that will fall due in any calendar year shall not exceed (a) with respect to transactions secured by receivables from export sales, 80% of the Guarantor’s consolidated gross revenues from export sales for the immediately preceding calendar year; or (b) with respect to transactions secured by receivables, 80% of the consolidated gross revenues of the Guarantor from sales for the immediately preceding calendar year; and provided, further, that Advance Transactions will not be deemed transactions secured by receivables for purpose of the above calculation;
(13) any Lien securing Hedging Agreements so long as such Hedging Agreements are entered into for bona fide, non-speculative purposes;
(14) any Lien securing obligations under the documentation governing the establishment and operation of the Joint Venture pursuant to which the Guarantor will pledge or has pledged, among others, certain dividends, interest on capital and shares to Shell or its Affiliates; and
(15) in addition to the foregoing Liens set forth in clauses (1) through (14) above, Liens securing Debt of the Guarantor or any Subsidiary (including, without limitation, guarantees of the Guarantor or any Subsidiary) which in aggregate principal amount, at any time of determination, do not exceed 20.0% of the Guarantor’s Total Consolidated Assets.
“Permitted Refinancing Debt” has the meaning assigned to such term in Section 4.07(b).
“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, including a government or political subdivision or an agency or instrumentality thereof.
“principal” of any Debt means the principal amount of such Debt, (or if such Debt was issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt), together with, unless the context otherwise indicates, any premium then payable on such Debt.
“Productive Assets” means assets (including capital stock or its substantial equivalent or other Investments) that are used or usable by the Guarantor and its Subsidiaries in Permitted Businesses (or in the case of capital stock or its substantial equivalent or other Investments that represent direct, or indirect (via a holding company), ownership or other interests held by the Guarantor or any Subsidiary in entities engaged in Permitted Businesses).
“Property” means (i) any land, buildings, machinery and other improvements and equipment located therein and (ii) any intangible assets, including, without limitation, any brand names, trademarks, copyrights and patents and similar rights and any income (licensing or otherwise), proceeds of sale or other revenues therefrom.
“Qualified Equity Interests” means all Equity Interests of a Person other than Disqualified Equity Interests.
“Qualified Stock” means all Capital Stock of a Person other than Disqualified Stock.
“Quotation Agent” means the Reference Treasury Dealer selected by the Company.
“Radar Disposal” has the meaning assigned to such term in Section 4.14.
“Raízen Significant Entity” means (i) Raízen S.A. and (ii) any of its Subsidiaries, only to the extent and for so long as Cosan S.A.’s proportional equity interest in any such entity would satisfy the “significant subsidiary” tests with respect to Cosan S.A. (notwithstanding whether any such entity is a Subsidiary of Cosan S.A.) set forth in Rule 1-02 under Regulation S-X promulgated pursuant to the Securities Act.
“Rating Agency” means S&P, Fitch or Moody’s; or if S&P, Fitch or Moody’s are not making ratings of the Notes publicly available, an internationally recognized U.S. rating agency or agencies, as the case may be, selected by the Company, which will be substituted for S&P, Fitch or Moody’s, as the case may be.
“Rating Decline” means that at any time within 90 days (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any Rating Agency) after the date of public notice of a Change of Control, or of the Company’s or the Guarantor’s intention, or that of any Person, to effect a Change of Control (i) in the event the Notes are assigned an Investment Grade Rating by at least two of the Rating Agencies prior to such public notice, the rating of the Notes by at least two of the Rating Agencies shall be below an Investment Grade Rating; (ii) in the event the Notes are assigned an Investment Grade Rating by one Rating Agency and rated below an Investment Grade Rating by at least one other Rating Agency, the rating of the Notes by at least two of the Rating Agencies shall be decreased by one or more categories and both be below an Investment Grade Rating; or (iii) in the event the Notes are rated below an Investment Grade Rating by at least two of the Rating Agencies prior to such public notice, the rating of the Notes by at least two of the Rating Agencies shall be decreased by one or more categories; provided that any such Rating Decline is in whole or in part in connection with a Change in Control.
“Redemption Date” means, when used with respect to any Note to be redeemed pursuant to the terms of this Indenture, the date fixed for such redemption by or pursuant to the provisions of this Indenture.
“Redemption Price” means, when used with respect to any Notes to be redeemed pursuant to this Indenture, the price at which it is to be redeemed pursuant to the provisions of this Indenture.
“Reference Treasury Dealer” means Itau BBA USA Securities, Inc., Morgan Stanley & Co. LLC, Santander US Capital Markets LLC, their respective successors and assigns, and any four additional nationally recognized investment banking firms selected by the Company that are primary U.S. Government securities dealers.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as calculated by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 P.M., New York City time, on the third Business Day immediately preceding such Redemption Date.
“refinance” has the meaning assigned to such term in Section 4.07.
“Register” has the meaning assigned to such term in Section 2.09.
“Registrar” means a Person engaged by the Company to maintain the Register, which shall initially be U.S. Bank Trust Company, National Association, and its successors.
“Regular Record Date” for the interest payable on any Interest Payment Date means June 25 or December 25 (whether or not a Business Day) next preceding such Interest Payment Date.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Certificate” means a certificate substantially in the form of Exhibit D hereto.
“Related Party Transaction” has the meaning assigned to such term in Section 4.14(a).
“Relevant Date” means, with respect to any payment on a Note, whichever is the later of: (i) the date on which such payment first becomes due; and (ii) if the full amount payable has not been received by the Trustee on or prior to such due date, the date on which notice is given to the Holders that the full amount has been received by the Trustee.
“Relevant Jurisdiction” has the meaning assigned to such term in Section 3.01.
“Responsible Officer” means any officer of the Trustee, in the case of the Trustee, or the Paying Agent, in the case of the Paying Agent, in its Corporate Trust Office with direct responsibility for the administration of such role under this Indenture.
“Restricted Legend” means the legend set forth in Exhibit B.
“Restricted Subsidiary” means the Company and any Subsidiary of the Guarantor other than an Unrestricted Subsidiary.
“Reversion Date” has the meaning assigned to such term in Section 4.20(b).
“Rule 144A” means Rule 144A under the Securities Act.
“Rule 144A Certificate” means (i) a certificate substantially in the form of Exhibit E hereto.
“S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc. and its successors.
“Sale and Leaseback Transaction” means, with respect to any Person, an arrangement whereby such Person enters into a lease of property previously transferred by such Person to the lessor.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Significant Restricted Subsidiary” of any Person means any Restricted Subsidiary, including its Restricted 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.
“Spot Rate” means, for any currency, the spot rate at which that currency is offered for sale against U.S. Dollars as published in The Wall Street Journal on the Business Day immediately preceding the date of determination or, if that rate is not available in that publication, as determined in any publicly available source of similar market data.
“Stated Maturity” means (i) with respect to any Debt, the date specified as the fixed date on which the final installment of principal of such Debt is due and payable or (ii) with respect to any scheduled installment of principal of or interest on any Debt, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing such Debt, not including any contingent obligation to repay, redeem or repurchase prior to the regularly scheduled date for payment.
“Subordinated Debt” means any Debt of the Guarantor which is subordinated in right of payment to the Notes or the Notes Guarantee, as applicable, pursuant to a written agreement to that effect.
“Subsidiary” means with respect to any Person, any corporation, association or other business entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by such Person, provided, however, that none of Raízen S.A. or any of its subsidiaries shall be a Subsidiary unless Cosan S.A. owns, directly or indirectly, more than 51% of the Voting Stock of that entity.
“Substantially Wholly-Owned” means, with respect to any Subsidiary, a Subsidiary at least 90% of the outstanding Capital Stock of which (other than director’s or other similar qualifying shares) is owned, directly or indirectly, by Cosan S.A. (or its successors) or one or more Wholly-Owned Subsidiaries (or a combination thereof) of Cosan S.A. (or its successors).
“Substituted Issuer” has the meaning assigned to such term in Section 4.21.
“Supplemental Indenture” means a supplemental indenture to this Indenture which such amendments as may be required thereto in order to reflect the purpose and effect of the execution of such supplemental indenture as provided in this Indenture.
“Suspended Covenants” has the meaning assigned to such term in Section 4.20.
“Suspension Date” has the meaning assigned to such term in Section 4.20.
“Suspension Period” has the meaning assigned to such term in Section 4.20.
“Total Consolidated Assets” means (i) the total amount of the consolidated assets of the Guarantor and its Restricted Subsidiaries, plus (ii) the Guarantor’s proportionate equity interest in the total amount of the consolidated assets of Raízen S.A. and its Subsidiaries, in each case determined in accordance with IFRS.
“Transfer Agent” means U.S. Bank Trust Company, National Association and its successors or such other transfer agent as the Company shall appoint.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.
“Trustee” means the party named as such in the first paragraph of this Indenture or any successor trustee under this Indenture pursuant to Article 7.
“Unrestricted Subsidiary” means:
(1) each of Cosan Oito S.A., Cosan Nove Participações S.A., Cosan Dez Participações S.A., Tellus Brasil Participações S.A., Janus Brasil Participações S.A., Gamiovapar Empreendimentos e Participações S.A. and Duguetiapar Empreendimentos e Participações S.A.;
(2) any Subsidiary of the Guarantor (other than the Company) that at the time of determination shall be designated an Unrestricted Subsidiary by the management of the Guarantor in the manner provided below; and
(3) any Subsidiary of an Unrestricted Subsidiary.
The management of the Guarantor may designate any Restricted Subsidiary of the Guarantor (including any newly acquired or newly formed Subsidiary of the Guarantor) to be an Unrestricted Subsidiary pursuant to clause (2) above unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Debt of, or owns or holds any Lien on any property of, the Guarantor or any Restricted Subsidiary of the Guarantor that is not a Subsidiary of the Subsidiary to be so designated.
The management of the Guarantor may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that immediately after giving effect to such designation:
(i) such designation shall be deemed an Incurrence of Debt by a Restricted Subsidiary and such designation shall only be permitted if such Debt is permitted under Section 4.07; and
(ii) no Event of Default shall have occurred and be continuing.
Any such designation of a Subsidiary as a Restricted Subsidiary, and any such designation of a Subsidiary as an Unrestricted Subsidiary pursuant to clause (1) above, by the management of the Guarantor shall be evidenced to the Trustee by promptly filing with the Trustee an Officers’ Certificate certifying that such designation complied with the foregoing provisions. On the Issue Date, there will be no Unrestricted Subsidiary of the Guarantor, except for Cosan Oito S.A., Cosan Nove Participações S.A., Cosan Dez Participações S.A., Tellus Brasil Participações S.A., Janus Brasil Participações S.A., Gamiovapar Empreendimentos e Participações S.A. and Duguetiapar Empreendimentos e Participações S.A.
“U.S. Global Note” means a Global Note that bears the Restricted Legend representing Notes issued and sold pursuant to Rule 144A.
“U.S. Government Obligations” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agent or instrumentality thereof, provided that the full faith and credit of the United States of America is pledged in support thereof.
“Voting Stock” means, with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.
“Wholly-Owned” means, with respect to any Subsidiary, a Subsidiary all of the outstanding Capital Stock of which (other than any director’s or other similar qualifying shares) is owned, directly or indirectly, by Cosan S.A. (or its successors).
Section 1.02 Section 1.02 Rules of Construction. Unless the context otherwise requires or except as otherwise expressly provided:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board;
(c) “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Section, Article or other subdivision;
(d) all references to “U.S. Dollars”, “U.S.$” and “U.S.$” shall mean the lawful currency of the United States of America;
(e) all references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of or to this Indenture unless otherwise indicated;
(f) references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time to time (or to successor statutes and regulations);
(g) references to the Guarantor and its Subsidiaries on a consolidated basis shall be deemed to include the Guarantor;
(h) in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Guarantor may classify such transaction as it, in its sole discretion, determines; and
(i) the words “execution,” “signed,” “signature,” and words of like import in this Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
Section 1.03 Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof. Section 1.04 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an Officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company or the Guarantor, as applicable, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
