EXHIBIT 4.20
LOAN AGREEMENT
dated as of October 7, 2022
among
COSAN OITO S.A.,
as Borrower,
Citibank, N.A., LONDON BRANCH,
as Lender
and
CITIGROUP GLOBAL MARKETS BRASIL, CORRETORA DE CÂMBIO, TÍTULOS E VALORES MOBILIÁRIOS S.A.,
as Collateral Agent
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TABLE OF CONTENTS
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EXHIBITS
Exhibit A - Form of Borrowing Notice
Exhibit B - Forms of Security Agreements
Exhibit C – [Reserved]
Exhibit D-1 - Form of U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit D-2 - Form of U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E - Form of Note
Exhibit F – Arbitration
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This LOAN AGREEMENT dated as of October 7, 2022 (as it may be amended or modified from time to time, this “Agreement”), by and among COSAN OITO S.A., a company organized under the laws of Brazil, with its principal place of business at São Paulo, Brazil, enrolled with the Brazilian National Taxpayers Registry (CNPJ) under No. 43.874.376/0001-38, as borrower (“Borrower”), Citibank, N.A., LONDON BRANCH, as Lender (“Lender”), and CITIGROUP GLOBAL MARKETS BRASIL, CORRETORA DE CÂMBIO, TÍTULOS E VALORES MOBILIÁRIOS S.A., a financial institution organized under the laws of Brazil, with its principal place of business at Avenida Paulista, 1.111, 14o andar-parte, enrolled under the CNPJ under No. 33.709.114/0001-64, as Collateral Agent (“Collateral Agent”).
Borrower has requested that Lender make a term loan to it in the principal amount not exceeding the Commitment (as hereinafter defined), linked together with the Collar Transaction (as hereinafter defined), and Lender is prepared to do so upon the terms and subject to the conditions set forth in this Agreement.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
. As used in this Agreement, the following terms shall have the following meanings:
“Acceptable Collateral” means the Collateral Shares (and Collateral Shares that are proceeds of such Collateral Shares), so long as:
| (a) | (x) such Shares are subject to a first priority Lien in favor of Lender and not subject to any other Liens, other than Permitted Liens, and (y) the Collateral Requirement has been satisfied with respect thereto; |
| (b) | such Shares are not subject to any Transfer Restrictions (other than Permitted Transfer Restrictions) or restrictive legends; |
| (c) | such Shares are held in or credited to the applicable Collateral Account; and |
| (d) | such Shares are duly authorized, validly issued, fully paid and non-assessable and have been acquired in compliance with all applicable Laws. |
“Act” has the meaning specified in Section 8.15.
“Advance” has the meaning specified in Section 2.01.
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“Additional Perfection Conditions” means, the following conditions:
| (a) | such Collateral Shares remain Acceptable Collateral (including, for the avoidance of doubt, that Lender (acting through the Collateral Agent) receives reasonably satisfactory proof that the Collateral is duly perfected in the corporate books of Issuer with respect to such Shares and that the relevant security agreement is duly registered before the registry of deeds and documents (registro de títulos e documentos) and in the corporate books of Issuer); |
| (b) | Borrower shall have provided Lender (acting through the Collateral Agent) reasonably satisfactory proof that Borrower has delivered a notice to Issuer stating that Collateral Shares are fiduciarily assigned to the Shares Security Agreement; and |
| (c) | delivery of a letter agreement, entered into by the book-entry registrar with respect to the Shares, in customary form and substance reasonably satisfactory to Lender and which shall include, without limitation, that the book-entry registrar will take all measures within its control and use commercially reasonable efforts to ensure that the settlement period with respect to any transfer of Collateral Shares to the central securities depository shall not be longer than “T+2”. |
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agreement” has the meaning specified in the preamble hereto.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
“Apostille Convention” means The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, dated of October 5th, 1961.
“Applicable Rate” has the meaning specified in the Fee and Ratio Letter.
“Applicable Taxes” means, at any date of determination, the amount of any Taxes that would be required to be paid in connection with the foreclosure on, other enforcement over, or remittance of funds in connection with, the Collateral. For the avoidance of doubt, as of the date hereof, Applicable Taxes include, without limitation, a tax discount equal to 0.38% of the market value of the Collateral Shares.
“Attributable Debt” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, if such lease were accounted for as a capital lease.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
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“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the United States Bankruptcy Code.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Borrower” has the meaning specified in the preamble hereto.
“Borrowing Notice” has the meaning specified in Section 2.02(a).
“Brazil” means the Federative Republic of Brazil.
“BRL” and “BRL Real” mean the lawful currency of Brazil.
“Business Day” means any day that is (x) a “Business Day (Dia Útil)” as defined in the Master Derivatives Agreement, (y) a day that is not a Saturday, Sunday or other day on which commercial banks in London, United Kingdom are authorized or required by law to remain closed and (z) if such day relates to any payments in respect of the Advance, a day that is not a Saturday, Sunday or other day on which commercial banks in Japan are authorized or required by law to remain closed.
“Call Spread Confirmation” means the confirmation (Confirmação) for Share collar plus forward derivatives transactions entered into between Borrower and Hedge Counterparty on October 7, 2022, incorporating by reference the terms of the Master Derivatives Agreement. For purposes of the definition of “Permitted Transactions” and “Permitted Other Bank Transactions”, the term “Call Spread Confirmation” shall include any subsequent amendment thereto or replacement thereof by which the transactions are modified to be a collar plus loan transaction, including a confirmation substantially similar to the Collar Confirmation, and including a loan agreement and security documents substantially similar to this Agreement and the Security Agreements, as applicable.
“Call Spread Transaction” means the transaction pursuant to the Call Spread Confirmation.
“Change in Law” means the occurrence, after the date of this Agreement, of (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) (1) the enactment or promulgation of any change in any law, rule, regulation or treaty or the enactment or promulgation of any change in the formal or informal interpretation of any applicable banking or securities law or regulation issued by the applicable United States regulatory bodies or (2) administrative decisions by the Brazilian Central Bank or the Comissão de Valores Mobiliários, or (c) compliance by Lender (or, for purposes of Section 2.09(b), by any lending office of Lender) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, regulations, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
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“Charges” has the meaning specified in Section 8.16.
“Closing Date” means the first Business Day on which the conditions precedent set forth in Section 4.01 shall have been satisfied or waived in accordance with Section 8.01 of this Agreement.
“Code” means the Internal Revenue Code of 1986.
“Collar Confirmation” means the confirmation (Confirmação) for Share collar derivatives transaction entered into between Borrower and Hedge Counterparty on October 6, 2022, incorporating by reference the terms of the Master Derivatives Agreement.
“Collar Loan Documentation” means, collectively, the Collar Confirmation, the Master Derivatives Agreement, the Hedge Agreement, this Agreement (including schedules and exhibits hereto), the Fee and Ratio Letter, the Security Agreements, the Borrowing Notice, the Note and each agreement delivered under Section 5.08, in each case, including any amendments, modifications or supplements thereto.
“Collar Loan Transactions” means the execution, delivery and performance by Borrower of the Collar Loan Documentation, the grant of the security interest contemplated hereby or thereby, the borrowing of the Advance and other credit extensions and the use of the proceeds thereof.
“Collar Transaction” means the options transactions pursuant to the Collar Confirmation.
“Collateral” means, collectively, (x) the Collateral Shares, (y) the “Credit Rights” (Direitos Creditórios) under and as defined in the Credit Rights Security Agreement and (z) all other all cash, securities, securities entitlements, financial assets, investment property, rights, intangibles and other property and assets, including proceeds thereof, over which a Lien is purported to be granted under the Security Agreements.
“Collateral Accounts” means the accounts or sub-accounts of Borrower with Custodians where Collateral will be held, and shall include any future account of Borrower maintained with an affiliate of Lender to hold any Collateral.
“Collateral Agent” has the meaning specified in the preamble hereto.
“Collateral Event of Default” means at any time, the occurrence of either of the following: (A) failure of the Collateral to include, as Acceptable Collateral, at least a number of Shares equal to the Number of Transaction Shares or (B) failure at any time of the Collateral Requirement (including, if applicable, the Additional Perfection Conditions) to be met or assertion of such by Borrower in writing.
“Collateral Requirement” means, at any time, that all steps, if any, required under applicable Law or reasonably requested by Lender or Collateral Agent to ensure that each Security Agreement creates a valid, first priority Lien (subject only to Permitted Liens) on all the Collateral in favor of Lender and Hedge Counterparty, in each case, acting through Collateral Agent, shall have been taken; provided, however, that if the relevant central securities depository requests the withdrawal of the Collateral Shares from the central securities depository system as a result of a Permitted Shareholders Agreement that binds the Collateral Shares, such request shall not result in the Collateral Requirement not being met so long as the Additional Perfection Conditions are satisfied before or simultaneously with the transfer of the Collateral Shares from the central security depository to the book-entry registrar.
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“Collateral Shares” means any Shares fiducially assigned pursuant to the Shares Security Agreement (which shall be the “Fiduciarily Assigned Shares”, under and as defined in the Shares Security Agreement) and not released under the Collar Loan Documentation.
“Commitment” means ¥ 95,298,448,866.
“Commitment Letter” means the letter agreement dated as of October 5, 2022 among Borrower, Lender, and Hedge Counterparty, regarding, inter alia, entry into the Collar Loan Documentation.
“Communication” has the meaning specified in Section 5.06.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Control” means the possession of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.
“Controller” has the meaning ascribed to the definition of “Controller (Controlador)” in the Master Derivatives Agreement.
“Credit Rights Security Agreement” means the Fiduciary Assignment of Credit Rights Agreement (Instrumento de Cessão Fiduciária de Direitos Creditórios), dated as of the date hereof, executed by Borrower in favor of Lender acting through Collateral Agent.
“Custodians” means Citigroup Global Markets Brasil, Corretora De Câmbio, Títulos E Valores Mobiliários S.A., or an affiliate thereof.
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, recuperação judicial, recuperação extrajudicial, falência or similar debtor relief laws of the United States, Brazil, or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would, unless cured or waived, be an Event of Default.
“Dividend” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Shares, including any interest on capital (juros sobre o capital próprio) or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Shares, or on account of any return of capital to the stockholders, partners or members (or the equivalent Person thereof) of such Shares.
“Dollars” and “$” mean the lawful money of the United States.
“Early Collar Termination Event” means, in respect of the Collar Transaction, the delivery of notice by the relevant party following an Event of Default or any Termination Event (including any Additional Termination Event) stating that the obligations under the Master Derivatives Agreement shall be due and payable in whole or in part in accordance with Article XII thereunder.
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“EEA Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including American depositary shares and partnership, membership or trust interests therein), whether voting or nonvoting, whether economic or non-economic, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Events of Default” has the meaning specified in Section 7.01.
“Exchange” means B3 S.A. – Brasil, Bolsa, Balcão or its successor.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to Lender or required to be withheld or deducted from a payment to Lender, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of Lender being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Lender with respect to an applicable interest in an Advance pursuant to a law in effect on the date on which (i) Lender acquires such interest in the Advance or (ii) Lender changes its lending office, except in each case to the extent that amounts with respect to such Taxes were payable either to Lender’s assignor immediately before Lender acquired the applicable interest in an Advance or to Lender immediately before it changed its lending office, (c) Taxes attributable to Lender’s failure to comply with Section 2.10(e) and (d) any withholding Taxes imposed under FATCA. Notwithstanding anything to the contrary, “Excluded Taxes” shall not include any Applicable Taxes.
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“Facility” means the credit facility contemplated by this Agreement.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Effective Rate” means, for any day, the rate calculated by NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time, and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Fee and Ratio Letter” means that certain Fee and Ratio Letter, dated as of the date hereof, delivered by Lender and acknowledged by Borrower prior to the execution of this Agreement.
“Foreign Benefit Arrangement” means any employee benefit arrangement mandated by non-US law that is maintained or contributed to by Borrower, or with respect to which Borrower has any liability.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Plan” means any employee pension benefit plan, program, policy or arrangement maintained or contributed to by Borrower or any of its subsidiaries with respect to employees employed outside the United States, or with respect to which Borrower or any of its Subsidiaries has any liability or reasonable expectation of any liability.
“Foreign Plan Event” means, with respect to any Foreign Benefit Arrangement or Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Benefit Arrangement or Foreign Plan; (b) the failure to register or loss of good standing with applicable regulatory authorities of any Foreign Benefit Arrangement or Foreign Plan required to be registered; or (c) the failure by any Foreign Benefit Arrangement or Foreign Plan to comply with any material provisions of applicable law and regulations or with the terms of such Foreign Benefit Arrangement or Foreign Plan.
“Funding Account” means any account designated by Borrower to which Lender is authorized by Borrower in the relevant Borrowing Notice to transfer the proceeds of the Advance requested pursuant to this Agreement.
“Funding Date” means October 14, 2022, the date on which the Advance will be made, provided that the Closing Date shall have occurred on or prior to such date.
“GAAP” means generally accepted accounting principles in Brazil as in effect on the date hereof and from time to time hereafter, consistently applied.
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“Governmental Authority” means the government of the United States, the United Kingdom, Japan, Brazil, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (v) as an applicant in respect of any letter of credit or letter of credit guaranty issued to support such Indebtedness, or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Hedge Agreement” means the Master Derivatives Agreement and the trade confirmations (Confirmações) of derivatives transactions closed for currency hedging purposes entered into between Borrower and Hedge Counterparty prior to, on or following the Closing Date thereunder, all in form and substance acceptable to Lender.
“Hedge Counterparty” means Banco Citibank S.A. or any affiliate thereof.
“Hedge Transactions” means all the currency hedging transactions executed under the Hedge Agreement relating to Borrower’s Obligations under this Agreement. For the avoidance of doubt, neither the Collar Transaction nor the Call Spread Transaction shall be considered “Hedge Transactions” hereunder.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP, (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all direct or contingent payment obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (c) net payment or delivery obligations of such Person under any Swap Contract; (d) all payment obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than sixty (60) days after the date on which such trade account payable was created); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) capital leases and Synthetic Lease Obligations; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and (h) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the greater of (x) the Swap Termination Value thereof as of such date and (y) zero. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Debt in respect thereof as of such date.
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“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Collar Loan Documentation and (b) to the extent not otherwise described in (a), Other Taxes. For the avoidance of doubt, Indemnified Taxes includes Applicable Taxes.
“Indemnitee” has the meaning specified in Section 8.04(b).
“Information” has the meaning specified in Section 8.11.
“IRS” means the United States Internal Revenue Service.
“Issuer” means Vale S.A., a company organized under the laws of Brazil.
“Issuer Transactions” has the meaning specified in the Collar Confirmation.
“Judgment Currency” has the meaning specified in Section 8.14.
“Law” means, with respect to any Person, collectively, all international, foreign, U.S. and Brazil Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case that is applicable to such Person or such Person’s business or operation and whether or not having the force of law.
“Lender” has the meaning specified in the preamble hereto.
“Lending Office” means the office of Lender specified in Section 8.02 hereto, or such other office of Lender as Lender may from time to time specify in writing to Borrower.
“Lien” means any mortgage, pledge, hypothecation, collateral assignment, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any instrument or lease arrangement having substantially the same economic effect as any of the foregoing).
“Lost Note Affidavit” means an affidavit and undertaking of Lender (i) certifying to the best of its knowledge as to the loss, theft, destruction, or mutilation of any Note and (ii) agreeing that if such Note is found or otherwise is in its custody or power it shall promptly deliver such Note to Borrower for cancellation.
“Market Disruption Event” means a Market Disruption Event (Evento de Interrupção) under, and as defined in, the Collar Confirmation.
“Master Derivatives Agreement” means the Master Derivatives Agreement (Contrato Global de Derivativos), entered by and between Borrower and Hedge Counterparty on October 5, 2022, including its Schedule (Apêndice).
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations, or financial condition, of Borrower, (b) the ability of Borrower to perform any of its obligations under the Collar Loan Documentation, (c) the Collateral, or Lender’s Liens on the Collateral or the priority of such Liens, or (d) the rights of or benefits available to Lender under this Agreement or any other Collar Loan Documentation; provided that a change in the value of the Shares shall not constitute a Material Adverse Effect.
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“Material Indebtedness” means, with respect to Borrower, all Indebtedness (x) owing to Lender, Collateral Agent or their respective affiliates and (y) in excess of the Threshold Amount.
“Material Nonpublic Information” means information regarding Issuer or its Subsidiaries that is not generally available to the public that a reasonable investor would likely consider important in deciding whether to buy, sell or hold Shares.
“Maturity Date” means the earlier of: (a) the Scheduled Maturity Date; and (b) the date on which the Facility otherwise terminates in full pursuant to this Agreement.
“Maximum Rate” has the meaning specified in Section 8.16.
“Non-U.S. Lender” means a Lender that is not a U.S. Person.
“Note” has the meaning specified in Section 2.13(c).
“Number of Transaction Shares” means, at any time, the greater of the number of put options (opção de venda) and the number of call options (opção de compra) under the Collar Transaction at such time.
“NYFRB” means the Federal Reserve Bank of New York.
“Obligations” means the Advance to, and all debts, liabilities, obligations, covenants, indemnifications, and duties of, Borrower arising under any Collar Loan Documentation or otherwise with respect to the Advance, in each case whether direct or indirect (including those acquired by assumption and including the Applicable Taxes), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against Borrower of any proceeding under any Debtor Relief Laws naming Borrower as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of association, formation or organization, and the limited liability company agreement or operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” means Taxes imposed as a result of a present or former connection between Lender and the jurisdiction imposing such Tax (other than connections arising from Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Collar Loan Documentation, or sold or assigned an interest in the Advance or Collar Loan Documentation).
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“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Collar Loan Documentation, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Parent” means Cosan S.A.
“Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Permitted Liens” means (a) Liens imposed by Law for Taxes that are not yet due or are being contested in good faith by appropriate proceedings and with respect to which adequate reserves in conformity with GAAP have been taken, (b) Liens granted to Collateral Agent or Custodian pursuant to the Collar Loan Documentation and/or to a secured party pursuant to the documentation for any other Permitted Transactions, other than any Permitted Share Financing Transaction or any Permitted Other Bank Transactions and (c) Liens that may be asserted by the central securities depository as a result of a Permitted Shareholders Agreement that binds the Collateral Shares, so long as the Additional Perfection Conditions are satisfied before or simultaneously with the transfer of the Collateral Shares from the central security depository to the book-entry registrar.
“Permitted Other Bank Transactions” means transactions effected pursuant to documentation substantially similar to the Collar Loan Documentation, the Call Spread Confirmation, the Share Purchase Agreement and the Commitment Letter and entered into with J.P. Morgan Chase Bank, N.A., London Branch or Banco J.P. Morgan S.A. and their Affiliates contemporaneously with the execution of the corresponding such documentation with Lender and its Affiliates.
“Permitted Share Financing Transaction” means entry by Parent or any Subsidiary thereof (other than Borrower) on or after the date that is three (3) months following the Closing Date into (x) any transaction (including any refinancings thereof) that references or is secured by Shares that do not constitute Collateral or (y) any refinancing of any other Permitted Transaction, to the extent not otherwise prohibited by the terms of such Permitted Transaction.
“Permitted Shareholders Agreement” means any shareholders’ agreement entered into by Borrower or any Affiliates to the extent such agreement is permitted under the Security Agreements.
“Permitted Transactions” means the entry into, and performance under (including any unwind or amendment thereto), of (i) the Collar Transaction and any other substantially similar and contemporaneous ‘tranche’ thereof, whether documented under the Collar Loan Documentation or substantially similar collar documentation, (ii) the Call Spread Transaction, (iii) the Hedge Transactions and any substantially similar transactions entered into by the Borrower pursuant to the Permitted Other Bank Transactions, (iv) the Share Purchase Agreement and the Commitment Letter, (v) the Permitted Other Bank Transactions and (vi) any Permitted Share Financing Transaction. For the purposes of this definition, Lender hereby acknowledges and agrees that Borrower and its Affiliates may enter into a Permitted Shareholders Agreement, and the execution and performance of such Permitted Shareholders Agreement shall be deemed as a Permitted Transaction.
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“Permitted Transfer Restrictions” means Transfer Restrictions on the Collateral Shares (x) on account of the fact that Borrower may be an “affiliate” of the Issuer within the meaning of Rule 144 and (y) as contemplated in any Permitted Shareholders Agreement (it being understood and agreed that any Transfer Restrictions set forth in the Permitted Shareholders Agreement do not apply to Lender’s exercise of remedies under this Loan Agreement and the Security Agreements).
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Potential Adjustment Event” means a Potential Adjustment Event (Evento de Potencial Ajuste) under, and as defined in, the Collar Confirmation.
“Put Notional Amount” means, with respect to the Collar Transaction and at any time, the aggregate Put Strike Price at such time in respect of all put options (opção de venda) outstanding under the Collar Confirmation at such time.
“Put Strike Price” means, with respect to the Collar Transaction and at any time, the exercise price (preço de exercício) per put option (opção de venda) under the Collar Confirmation at such time.
“Qualified Person” means a Person that is (i) not formed for the purpose of acquiring any Obligation under this Agreement and (ii) either (a) a “qualified purchaser” within the meaning of Section 2(a)(51) of the U.S. Investment Company Act of 1940, as amended, and the rules and regulations thereunder or (b) not a “U.S. person” within the meaning of Regulation S under the Securities Act.
“RDE-ROF” means the electronic registration with the Central Bank of Brazil obtained through the Registro Declaratório Eletrônico - Registro de Operações Financeiras in the SISBACEN system (Central Bank’s Information System), to allow Borrower to enter into the relevant foreign exchange contracts for the inflow of funds into Brazil and to register the Schedule of Payments after the Closing Date.
“Register” has the meaning specified in Section 8.07(a).
“Regulatory Event” means any judicial decision made by the first instance of the Brazilian judiciary for violation or breach of any anti-fraud or anti-corruption laws by Borrower or Parent, that, if adversely determined, could reasonably be expected to have a Material Adverse Effect, provided that the Borrower has been defending itself in good faith since the beginning of investigations and denunciation, if any.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the respective partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, with respect to any Person, any of the chief executive officer, chairman, president, chief financial officer, chief strategy officer or any vice president, secretary, assistant secretary, manager or director of such Person.
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“Restricted Payment” means, with respect to any Person, any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in such Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in such Person or any option, warrant or other right to acquire any such Equity Interests in such Person, provided, however, that the Organization Documents of Borrower require that twenty-five percent (25%) of Borrower's adjusted net income be allocated for the payment of the mandatory minimum dividend, and this distribution shall not be deemed as a Restricted Payment.
“Restricted Transaction” means, in respect of Borrower, Parent or any Subsidiary thereof, (a) any financing transaction (other than Permitted Transactions and any other transactions entered into with Hedge Counterparty or an Affiliate thereof and any Permitted Other Bank Transaction and any other transactions entered into with “Hedge Counterparty” or an “Affiliate” thereof, in each case as defined in the documentation relating to the Permitted Other Bank Transactions) secured by or referencing the Shares or other voting shares of Issuer or equivalent interests in respect thereof (in each case, including, without limitation, depositary shares in respect thereof), (b) any grant, occurrence or existence of any Lien or other encumbrance on the Shares or other voting shares of Issuer or equivalent interests in respect thereof (in each case, including, without limitation, depositary shares in respect thereof) (other than Permitted Liens or, in the case of Shares that do not constitute Collateral, Liens pursuant to any Permitted Other Bank Transaction or Permitted Share Financing Transaction), or (c) any sale, swap, hedge (including by means of a physically- or cash-settled derivative or otherwise) or other direct or indirect transfer of any Shares or other voting shares of Issuer or equivalent interests in respect thereof (in each case, including, without limitation, depositary shares in respect thereof) or economic exposure thereto (other than Permitted Transactions and any other transactions entered into with Hedge Counterparty or an Affiliate thereof). For the purposes of this definition, Lender hereby acknowledges and agrees that (i) Borrower and its Affiliates may enter into a Permitted Shareholders Agreement, and the execution and performance of such Permitted Shareholders Agreement shall not constitute a Restricted Transaction; (ii) no financing entered into by any Affiliate of Borrower that is directly or indirectly secured by Shares, but the collateral for which is predominantly comprised of other assets of such Affiliate or its Subsidiaries, shall be considered a Restricted Transaction; and (iii) Borrower and its Affiliates may borrow Shares from one or more third party lenders, and the borrowing of such Shares and exercise of rights appurtenant thereto shall not constitute a Restricted Transaction, provided that such Shares are not pledged as collateral for any financing, or derivative transaction except as otherwise described in clause (ii) above.
“Rule 144” means Rule 144 under the Securities Act.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and Crimea regions of Ukraine, Cuba, Iran, North Korea and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any European Union member state, HM Treasury of the United Kingdom, the Japanese government or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any other Person otherwise the subject of any Sanctions.
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“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the United Nations Security Council, the European Union, any European Union member state or HM Treasury of the United Kingdom or (c) the Japanese government or other relevant sanctions authority.
“Schedule of Payments” means the schedule of payments (cronograma de pagamentos) within the RDE-ROF, which will enable Borrower to make remittances from Brazil to make payments of the scheduled principal, interest, fees and expenses under this Agreement.
“Scheduled Maturity Date” means October 26, 2027.
“Security Agreements” means, collectively, the Shares Security Agreement and the Credit Rights Security Agreement.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Separateness Provisions” has the meaning specified in Section 5.11.
“Set-off Party” has the meaning specified in Section 8.13.
“Share Purchase Agreement” means the Private Share Purchase Agreement (Instrumento Particular de Compra e Venda de Ações), dated October 6, 2022, between Borrower and Lender or an Affiliate of Lender.
“Shares” means the publicly-traded ordinary shares of Issuer listed on the Exchange, having the Bloomberg Equity Ticker: Vale3 BZ as of the date of this Agreement.
“Shares Security Agreement” means the Amended and Restated Shares and Assets Fiduciary Sale and Credit Rights Fiduciary Assignment (Instrumento Particular de Alienação Fiduciária de Ações e Ativos e Cessão Fiduciária de Direitos Creditórios), to be dated on or about October 10, 2022, executed by Borrower in favor of Lender acting through Collateral Agent.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company or other entity of which the majority of the Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors, the board of managers, or other persons performing similar functions of such corporation, partnership, limited liability company or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person. For the purposes of this Agreement, the Issuer is not considered as a Subsidiary of Borrower.
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“Swap Contract” means (a) any rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts (including any Hedge Transactions), after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) payable by the Borrower (represented as a positive number) or payable by the counterparty thereto to the Borrower (represented as a negative number), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, in favor of the Borrower (represented as a negative number) or in favor of such counterparty (represented as a positive number), as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include Lender or any Affiliate of Lender) (or with respect to the Hedge Transaction, determined by the applicable “Calculation Agent” thereunder in good faith and a commercially reasonable manner as the fair value thereof, net of any withholding Taxes).
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but that, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), value added taxes, or any other goods and services, use or sales taxes, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Threshold Amount” means BRL 5,000,000 (or its foreign currency equivalent).
“Total Accrued Loan Amount” means, at any time, the aggregate outstanding principal amount of the Advance, together with accrued and unpaid interest thereon, the accrued and unpaid fees, and all reimbursable expenses and other Obligations together with accrued and unpaid interest thereon.
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“Transfer Restrictions” means, with respect to any item of Collateral, any condition to or restriction on the ability of the owner or any pledgee thereof to sell, assign, pledge or otherwise transfer such item of Collateral or enforce the provisions thereof or of any document related thereto whether set forth in such item of Collateral itself or in any document related thereto, including, without limitation, (a) any requirement that any sale, assignment, pledge or other transfer or enforcement for such item of Collateral be consented to or approved by any Person, including, without limitation, the issuer thereof or any other obligor thereon, (b) any limitation on the type or status, financial or otherwise, of any purchaser, pledgee, assignee or transferee of such item of Collateral, (c) any requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any Person to the issuer of, any other obligor on or any registrar or transfer agent for, such item of Collateral, prior to the sale, pledge, assignment or other transfer or enforcement of such item of Collateral and (d) any registration or qualification requirement or prospectus delivery requirement for such item of Collateral pursuant to any federal, state, local or foreign securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such item of Collateral being a “restricted security” or Borrower being an “affiliate” of the issuer of such item of Collateral, as such terms are defined in Rule 144). For the purposes of this definition, Lender hereby acknowledges and agrees that Borrower and its Affiliates may enter into a Permitted Shareholders Agreement, and the execution and performance of such Permitted Shareholders Agreement shall not represent a Transfer Restriction.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.10(e)(ii)(B)(3).
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required to be applied in connection with the issue of perfection of security interests.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“United States” and “U.S.” mean the United States of America.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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“Yen” and “¥” mean the lawful currency of Japan.
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| (a) | Subject to the terms and conditions set forth herein, Lender agrees to make one single term loan in Yen to Borrower (the “Advance”) on the Funding Date, not to exceed the Commitment. |
| (b) | The Advance, or a portion thereof, once repaid or prepaid may not be reborrowed. |
| (c) | If the Funding Date does not occur on or prior to October 17, 2022, the Commitment shall be permanently terminated. |
. Subject to the terms and conditions set forth herein being satisfied no later than 10:00 a.m. on the Funding Date, Lender shall make the Advance available to Borrower by crediting the amounts in immediately available funds to the Funding Account not later than 6:00 p.m. on the Funding Date.
. The Commitment shall automatically terminate in full upon the earlier to occur of (x) the making of the Advance on the Funding Date and (y) 5:00 p.m. on the scheduled Funding Date.
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. The parties agree that, upon and in connection with any mandatory repayment or prepayment of the Advance (including as a result of an Event of Default), a proportionate amount of the Hedge Transactions shall be unwound at a price to be determined in good faith and a commercially reasonable manner by the Hedge Counterparty or the applicable “Calculation Agent” as provided by in the relevant Master Agreement.
and the result of any of the foregoing shall be to materially increase the cost to Lender of making, continuing, converting or maintaining the Advance hereunder or to reduce the amount of any sum received or receivable by Lender hereunder (whether of principal, interest or otherwise), then Borrower will pay to Lender, such additional amount or amounts as will compensate Lender for such additional costs incurred or reduction suffered.
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Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower in writing of its legal inability to do so.
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. Notwithstanding any other provision of this Agreement, if Lender shall notify Borrower that a Change in Law makes it unlawful (or any Governmental Authority asserts that it is unlawful) (x) for Lender to perform its obligations to make or maintain the Advance hereunder or (y) for Borrower or Lender to remit payments due to Lender out of Brazil, the obligation of Lender to make the Advance shall be terminated and the Advance, all interest thereon and all other amounts payable under this Agreement to Lender shall become due and payable no later than the first (1st) Business Day following such notice by Lender.
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Borrower represents and warrants to Lender that:
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. Parent has implemented and maintains in effect policies and procedures designed to ensure compliance by Borrower, Parent, and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and Borrower, Parent, and their respective directors, officers and employees and, to the knowledge of Borrower, Parent, and their respective agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not engaged in any activity that would reasonably be expected to result in Borrower or Parent being designated as a Sanctioned Person. None of (a) Borrower, Parent, or any of their respective directors, officers or employees, or (b) to the knowledge of Borrower any agent of Borrower or Parent or their respective Affiliates that will act in any capacity in connection with or benefit from the Facility, is a Sanctioned Person. No Advance or the use of proceeds thereof will violate any Anti-Corruption Law or applicable Sanctions. The parties hereto acknowledge that the use of proceeds as provided in Section 5.08 shall not be deemed as a breach of this Section 3.12.
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. Neither Borrower nor any of its assets or properties has any right of immunity on the grounds of sovereignty from jurisdiction of any court or from setoff or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the Law of any jurisdiction.
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. The obligation of Lender to make the Advance on the Funding Date is subject to satisfaction or waiver by Lender of the following conditions precedent:
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Delivery by Borrower of a Borrowing Notice shall be deemed to constitute a representation and warranty by Borrower that the conditions to making the Advance have been satisfied.
On and after the date hereof and so long as the Facility has not been terminated in full or any Obligations (other than unasserted contingent indemnification obligations) remain outstanding:
Borrower will furnish to Lender or cause to be furnished to Lender within 45 days after the end of each calendar quarter, a certificate executed by a Responsible Officer of Borrower (i) listing (A) the assets held by Borrower and (B) any monetary obligations (including contingent obligations) and liabilities of Borrower arising other than pursuant to the Collar Loan Transactions, in each case, as of the last day of such quarter and (ii) stating whether such Responsible Officer knows of any Default, Event of Default, Collateral Event of Default, Early Collar Termination Event or Potential Adjustment Event that has occurred and is continuing, and if a Default or Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto.
Promptly following any request therefor, Borrower shall furnish to Lender (x) such additional information regarding the operations, business affairs and financial condition of Borrower, or compliance with the terms of the Agreement as Lender may from time to time reasonably request and (y) information and documentation reasonably requested by Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.
Borrower shall promptly furnish to Lender or cause to be furnished to Lender written notice of the following, in each case to the extent actually known to a Responsible Officer of Borrower:
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In addition, promptly after the Closing Date (but in any event, no later than ten Business Days after the Closing Date), Borrower shall provide Lender with evidence that the Schedule of Payments was registered with the Central Bank of Brazil.
Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer of Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
.Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations, intellectual property rights (if any), licenses and permits material to the conduct of its business, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted.
.Borrower shall pay and discharge as the same shall become due and payable, all liabilities or obligations, as and when due and payable, including all Taxes, assessments, claims and governmental charges or levies imposed upon it or upon its property; provided that no such Tax or liability needs to be paid or discharged if (i) it is being contested in good faith by appropriate proceedings and reserves, in accordance with GAAP, have been provided for or (ii) no Collateral would become subject to forfeiture or loss as a result of such contest.
Borrower shall comply with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or its property in all material respects. Borrower will maintain policies and procedures reasonably designed to ensure compliance with Anti-Corruption Laws and applicable Sanctions by Borrower and its respective managers, officers, and employees and agents. Borrower shall comply with all provisions of its Organization Documents.
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.Borrower will timely notify, disclose or publish all information on any Issuer Transaction, which is required by (x) Section 13(d) or Section 13(g) of the Exchange Act, or (y) pursuant to any pending or future derivatives or share ownership reporting regime under the Exchange Act (each report specified in (x) and (y) a “Related Report”); and Borrower agrees to give prior notice to Lender of any Related Report (including any such Related Report referencing the name of Lender) and provide Lender with a copy of any such Related Report a reasonable period of time prior to filing thereof and a reasonable opportunity to comment thereon (provided that such review and comment by Lender shall be considered in good faith by Borrower, but shall in no event be binding upon Borrower or any Affiliate thereof and shall in no event result in any delay of a timely filing or submission by Borrower or any such Affiliate), and shall, if requested by Lender and to the extent permitted by applicable law, use commercially reasonable efforts to seek confidential treatment of any information therein that Lender considers to be proprietary or commercially sensitive information.
Upon the request of Lender, Borrower shall execute and/or deliver any additional agreements, documents and instruments, and take such further actions as Lender may reasonably deem necessary (a) to assure that the Collateral Requirement is satisfied with respect to all of the Collateral and (b) to carry out the provisions and purposes of this Agreement. Such agreements, documents or instruments or actions shall be reasonably satisfactory to Lender.
Borrower shall keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities.
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The proceeds of the Advance will be used to pay a portion of the purchase price for the Collateral Shares (including any fees or commissions payable in connection therewith), for costs and expenses in connection with Permitted Transactions. Borrower will not request any borrowing, and Borrower shall not use, and shall procure that Borrower and its directors, officers, employees and agents shall not use, the proceeds of the Advance (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities, business or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States or in a European member state, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
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Borrower shall ensure that any information, including financial statements or other documents, furnished to Lender or Collateral Agent in connection with this Agreement or any amendment or modification hereof or waiver hereunder contains no material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the furnishing of such information shall be deemed to be a representation and warranty by Borrower on the date thereof as to the matters specified in this Section 5.12.
On and after the date hereof and so long as the Facility has not been terminated in full or any Obligations (other than unasserted contingent indemnification obligations) remain outstanding:
. Borrower shall not create, incur, assume or suffer to exist any Lien upon the Collateral or any other property or asset, whether now owned or hereafter acquired, except for (x) Permitted Liens or (y) solely in the case of property or assets not constituting Collateral, Liens granted to the relevant secured party pursuant to the documentation for the Permitted Other Bank Transactions.
. Borrower shall not sell, transfer, lease or otherwise dispose of any asset, except in connection with (x) Permitted Transactions (including pursuant to any provision for any Permitted Other Bank Transaction substantially similar to Section 2.15 of this Agreement, and including the exercise and settlement or early termination, whether required or consensual, of any such Permitted Transaction) or (y) a Restricted Payment permitted under Section 6.06.
. Borrower shall not purchase, hold or acquire (including pursuant to any merger) any capital stock (other than Shares), evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (whether through purchase of assets, merger or otherwise); provided that this Section 6.05 shall not prohibit any Permitted Transaction.
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. Borrower shall not declare or make, or agree to pay or make, directly or indirectly, any Restricted Payments, or incur any obligation to do so, unless (i) no Default, Event of Default, Collateral Event of Default or Early Collar Termination Event shall have occurred and be continuing or would result therefrom or (ii) the property or assets to be delivered by Borrower pursuant to such Restricted Payment do not constitute Collateral, provided that the foregoing restrictions shall not apply in respect of payment pursuant to Borrower’s Organization Documents of twenty-five percent (25%) of Borrower's adjusted net income for the mandatory minimum dividend.
. Borrower shall not become an “investment company” or a Person “controlled by” an “investment company,” as such terms are defined in the United States Investment Company Act of 1940 as amended.
. Borrower shall not enter into, or permit to be made, or consent to any material amendment, supplement or other modification of any of the terms or provisions of its Organization Documents without the prior written consent of Lender (such consent not to be unreasonably withheld or delayed).
. Borrower shall not sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with any of its Affiliates, except transactions that (a) are incidental to holding the Collateral, other Shares subject to a Permitted Other Bank Transaction or cash or to performing its obligations under the Collar Loan Documentation and any other Permitted Transaction and (b) are on terms and conditions substantially as favorable to Borrower as could be obtained on an arm’s-length basis from unrelated third-parties; provided that this Section 6.09 shall not prohibit (x) contributions of cash or Shares from an Affiliate to Borrower or (y) Restricted Payments that are permitted under Section 6.06.
. Borrower shall not, and shall not permit any of its Affiliates to, take any action that would impair the Collateral Agent’s security interest therein in the Collateral Shares or its ability to sell or otherwise realize against such Collateral Shares, provided that Borrower and its Affiliates may enter into a Permitted Shareholders Agreement, and the execution and performance of such Permitted Shareholders Agreement shall not represent a violation of the provisions established herein.
. Borrower shall not, without the written consent of Lender, change the jurisdiction of its organization.
. Borrower shall not request the Advance, and shall not use, nor permit its respective directors, officers, employees and agents to use, the proceeds of the Advance (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
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. Borrower shall not enter into any Swap Contract other than the Collar Loan Documentation, Permitted Transactions and/or any hedge transactions substantially similar to the Hedge Transactions and relating to a Permitted Transaction.
. Borrower shall not form, create, organize, incorporate or acquire any Subsidiaries.
. None of Borrower, Parent nor any Subsidiary thereof shall enter into, or agree to enter into, any Restricted Transaction.
. If any of the following events (“Events of Default”) shall occur:
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then, and in any such event, Lender may take either or both of the following actions, at the same or different times (i) declare the Total Accrued Loan Amount to be forthwith due and payable, whereupon the Total Accrued Loan Amount shall become and be due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower (it being understood that Lender may demand, at its sole discretion, that payment of the Total Accrued Loan Amount be made in Brazil or other applicable jurisdictions) and (ii) declare the Facility to be terminated, whereupon the same (but not, for the avoidance of doubt, the Collar Loan Documentation or security interests granted thereunder) shall terminate immediately; provided that upon the occurrence of any event in Section 7.01(f) or Section 7.01(a) solely following a failure to make payments due under Section 2.08(b), (x) the Total Accrued Loan Amount shall automatically become and be due and payable, without presentment, demand, protest or other any notice of any kind, all of which are hereby expressly waived by Borrower and (y) the Facility (but not, for the avoidance of doubt, the Collar Loan Documentation or security interests granted thereunder) shall automatically terminate. Upon the occurrence and during the continuance of an Event of Default, Lender may increase the rate of interest applicable to the Advance and other Obligations as set forth in this Agreement and exercise any rights and remedies provided to Lender under the Collar Loan Documentation (including the enforcement of any and all Liens in favor of Lender pursuant to the Collar Loan Documentation) or at law or equity, including all remedies provided under the UCC, if applicable.
. Neither this Agreement nor any other Collar Loan Documentation nor any provision hereof or thereof may be waived, amended, modified or supplemented, nor any consent granted to any deviation to the terms hereof or thereof, except pursuant to an agreement or agreements in writing entered into by Lender and Borrower.
Cosan Oito S.A.
Avenida Brigadeiro Faria Lima
4100, 16th Floor, São Paulo, SP D5 04538-132
Brazil
Attention: Maria Rita de Carvalho Drummond; Ricardo Lewin
E-mail: mariarita.drummond@cosan.com; ricardo.lewin@cosan.com
Telephone: +55 11 3897 9797
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Citibank, N.A., London Branch
Address: Citigroup Centre
33 Canada Square
London UK E14 5LB
With a copy to:
Address: 388 Greenwich Street, 4th Floor,
New York, NY 10013
For the Attention of: James Heathcote, Sean Garvey, Grant Mortell
Email: james.heathcote@citi.com, sean.garvey@citi.com, grant.mortell@citi.com, eq.us.ses.notifications@citi.com; eq.us.corporates.middle.office@citi.com; sesmiddleofficeemea@citi.com
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications given through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
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. Any provision of any Collar Loan Documentation held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
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. All covenants, agreements, representations and warranties made by Borrower in the Collar Loan Documentation and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Collar Loan Documentation shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Collar Loan Documentation and the making of the Advance, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Lender may have had notice or knowledge of any Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on the Advance or any other Obligation under this Agreement is outstanding and unpaid or unsatisfied. The provisions of Sections 2.09, 2.10 and Article 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Advance or the termination of this Agreement or any provision hereof.
. Subject to Section 5.06, Lender agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any Governmental Authority (including any self-regulatory authority), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Collar Loan Documentation or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of, or any prospective assignee of, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction (including any hedging transactions referenced in Section 8.04(d)) relating to the Collateral, Borrower or the Obligations, (g) with the consent of Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to Lender on a non-confidential basis from a source other than Borrower. For the purposes of this Section, “Information” means all information received from Borrower relating to Borrower or its business hereunder or pursuant hereto, other than any such information that is available to Lender on a non-confidential basis prior to disclosure by Borrower and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry; provided that, in the case of information received from Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
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. In connection with all aspects of each transaction contemplated hereby and by the other Collar Loan Documentation (including in connection with any amendment, waiver or other modification hereof or of any other Collar Loan Documentation), Borrower acknowledges and agrees that: (a)(i) the arranging and other services regarding this Agreement provided by Lender are arm’s-length commercial transactions between Borrower and its Affiliates, on the one hand, and Lender and its Affiliates, on the other hand, (ii) Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Collar Loan Documentation; (b)(i) Lender is and has been acting solely as a principal and, except as expressly agreed in writing herein or otherwise by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Borrower or any of its Affiliates, or any other Person and (ii) Lender has no obligation to Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Collar Loan Documentation; and (c) Lender and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower and its Affiliates, and Lender has no obligations to disclose any of such interests to Borrower or any of its Affiliates. To the fullest extent permitted by law, Borrower hereby agrees to not assert any claims that it may have against Lender or its Affiliates with respect to any alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
. If an Event of Default shall have occurred and be continuing, Lender, Collateral Agent and each of their respective Affiliates (each, a “Set-off Party”) is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law (including, for the avoidance of doubt, the laws of Brazil), to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Set-off Party to or for the credit or the account of Borrower against any of and all the obligations and liabilities of Borrower now or hereafter existing, irrespective of whether or not the relevant Set-off Party shall have made any demand under the Collar Loan Documentation and although such obligations may be unmatured. The rights of each Set-off Party under this Section are in addition to other rights and remedies (including other rights of setoff) that such Set-off Party may have.
. If a judgment, order or award is rendered by any court or tribunal for the payment of any amounts owing to Lender under this Agreement or any other Collar Loan Documentation or for the payment of damages in respect of a judgment or order of another court or tribunal for the payment of such amount or damages, such judgment, order or award being expressed in a currency (the “Judgment Currency”) other than Yen, Borrower agrees (i) that its obligations in respect of any such amounts owing shall be discharged only to the extent that on the Business Day following Lender’s receipt of any sum adjudged in the Judgment Currency, Lender may purchase Yen with the Judgment Currency, and (ii) to indemnify and hold harmless Lender against any deficiency in terms of Yen in the amounts actually received by Lender following any such purchase (after deduction of any premiums and costs of exchange payable in connection with the purchase of, or conversion into, Yen). The indemnity set forth in the preceding sentence shall (notwithstanding any judgment referred to in the preceding sentence) constitute an obligation of Borrower separate and independent from its other obligations hereunder, shall apply irrespective of any indulgence granted by Lender, and shall survive the termination of this Agreement.
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. Lender is subject to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) and hereby notifies Borrower that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow such Lender to identify Borrower in accordance with the Act. Borrower agrees to promptly provide Lender with all of the information requested by such Person (i) to the extent such Person deems such information reasonably necessary to identify Borrower in accordance with the Act or (ii) in connection with Lender’s standard “on boarding” process (including, without limitation, pursuant to “know your customer” or anti-money laundering requirements).
. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to the Advance, together with all fees, charges and other amounts that are treated as interest on the Advance under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by Lender holding the Advance in accordance with applicable law, the rate of interest payable in respect of the Advance hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of the Advance but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of the Advance or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by Lender.
. Borrower hereby acknowledges and agrees that Lender and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with Borrower or its Affiliates.
. Lender hereby appoints Citigroup Global Markets Brasil, Corretora De Câmbio, Títulos E Valores Mobiliários S.A. as Collateral Agent hereunder to take such actions on its behalf and to exercise such powers as are delegated to such agent by the terms of this Agreement, the Security Agreements or by any instruction of Lender, together with such actions and powers as are reasonably related thereto. Without limiting the generality of the foregoing, Collateral Agent is hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and exercise the rights as a secured party on behalf of Lender with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the other Collar Loan Documentation. Citigroup Global Markets Brasil, Corretora De Câmbio, Títulos E Valores Mobiliários S.A. hereby accepts such appointment. Collateral Agent may resign as collateral agent at any time upon written notice to Lender and Borrower, Lender may dismiss Collateral Agent at any time upon written notice to Collateral Agent and Borrower, and Lender may appoint a different collateral agent at any time upon written notice to Borrower; and in each case of the foregoing, without consent of Borrower. If any time there is no collateral agent in place, Lender shall act as Collateral Agent. In performing its functions and duties hereunder and under the other Collar Loan Documentation, Collateral Agent is acting solely on behalf of Lender and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing, Collateral Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for Lender or Borrower, other than as expressly set forth herein and in the other Collar Loan Documentation, regardless of whether a Default or an Event of Default has occurred and is continuing.
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. Notwithstanding anything to the contrary in any Collar Loan Documentation or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Collar Loan Documentation may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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[END OF TEXT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers or representatives thereunto duly authorized, as of the date first above written.
| BORROWER: |
||
| COSAN OITO S.A. |
||
| By: | /s/ Ricardo Lewin /s/ Maria Rita Drummond | |
| Name: Ricardo Lewin / Maria Rita Drummond | ||
| Title: Attorney in fact / Executive Officer | ||
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| CITIBANK, N.A., LONDON BRANCH, as Lender |
||
| By: | /s/ Sean Garvey | |
| Name: Sean Garvey | ||
| Title: Authorized Representative | ||
| CITIGROUP GLOBAL MARKETS BRASIL, CORRETORA DE CÂMBIO, TÍTULOS E VALORES MOBILIÁRIOS S.A., as Collateral Agent and solely in respect of Section 8.18 |
||
| By: | /s/ Sean Garvey | |
| Name: Sean Garvey | ||
| Title: Authorized Representative | ||
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| WITNESSES: |
||
| By: | ||
| ID: | ||
| Name: | ||
| ID: | ||
[Signature Page to Loan Agreement]
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