EXECUTION VERSION
US$600,000,000
FACILITY AGREEMENT
dated 20 December 2006
for
BUNGE FINANCE EUROPE B.V.
as Borrower
arranged by
BNP PARIBAS
and
HSBC BANK plc
as mandated lead arrangers
with
HSBC BANK plc
acting as Agent
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REVOLVING FACILITY AGREEMENT
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CONTENTS
Clause Page
1. Definitions and Interpretation.........................................1
2. The Facility..........................................................16
3. Purpose...............................................................16
4. Conditions of Utilisation.............................................16
5. Utilisation...........................................................18
6. Repayment.............................................................19
7. Prepayment and Cancellation...........................................19
8. Interest..............................................................22
9. Interest Periods......................................................23
10. Changes to the Calculation of Interest................................23
11. Fees..................................................................24
12. Tax Gross Up and Indemnities..........................................26
13. Increased Costs.......................................................29
14. Other Indemnities.....................................................30
15. Mitigation by the Lenders.............................................31
16. Costs And Expenses....................................................32
17. Representations.......................................................33
18. Positive Covenants....................................................36
19. Negative Covenants....................................................39
20. Covenant of Agent and Lenders.........................................42
21. Events of Default.....................................................42
22. Use of Websites.......................................................47
23. Changes to the Lenders................................................48
24. Changes to the Borrower...............................................51
25. Role of the Agent and the Arrangers...................................52
26. Conduct of Business by the Finance Parties............................57
27. Sharing Among the Finance Parties.....................................57
28. Payment Mechanics.....................................................59
29. Set-Off...............................................................61
30. Notices...............................................................61
31. Calculations and Certificates.........................................63
32. Partial Invalidity....................................................63
33. Remedies and Waivers..................................................63
34. Amendments and Waivers................................................63
35. Counterparts..........................................................64
36. Governing Law.........................................................65
37. Enforcement...........................................................65
SCHEDULE 1 APPLICABLE MARGIN.................................................66
SCHEDULE 2 THE ORIGINAL LENDERS..............................................68
SCHEDULE 3 CONDITIONS PRECEDENT..............................................70
SCHEDULE 4 UTILISATION REQUEST...............................................73
SCHEDULE 5 MANDATORY COST FORMULAE...........................................74
SCHEDULE 6 FORM OF TRANSFER CERTIFICATE......................................77
SCHEDULE 7 TIMETABLES........................................................79
SCHEDULE 8 FORM OF CONFIDENTIALITY UNDERTAKING...............................80
EXHIBIT
FORM OF PARENT GUARANTEE
THIS AGREEMENT is dated 20 December 2006 and made between:
(1) BUNGE FINANCE EUROPE B.V. a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid) incorporated under
the laws of The Netherlands having its seat (statutaire zetel) at
Rotterdam, The Netherlands and its registered office at 11720 Borman Drive,
St. Louis, Missouri, 63146, United States and registered with the Chamber
of Commerce (Kamer van Koophandel) in Rotterdam under number 24347428 (the
"Borrower");
(2) BNP PARIBAS and HSBC BANK plc as mandated lead arrangers (each an
"Arranger" and together the "Arrangers");
(3) THE FINANCIAL INSTITUTIONS listed on Schedule 2 (The Original Lenders) as
lenders (the "Original Lenders"); and
(4) HSBC BANK plc as agent of the other Finance Parties (the "Agent").
IT IS AGREED as follows:
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Additional Cost Rate" has the meaning given to it in Schedule 5 (Mandatory
Cost Formulae).
"Affiliate" means, with respect to any specified Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition "control" of a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting
securities or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Margin" means as set out in Schedule 1 (Applicable Margin)
hereto.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Availability Period" means the period beginning on 1 January 2007 and
ending on the Final Maturity Date.
"Available Commitment" means, on any date, a Lender's Commitment minus:
(a) its participation in any outstanding Loans on such date; and
(b) in relation to any proposed Utilisation, its participation in any
Loans that are due to be made on or before the proposed Utilisation
Date,
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other than that Lender's participation in any Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
"Available Facility" means the aggregate for the time being of each
Lender's Available Commitment.
"BAFC" means Bunge Asset Funding Corp., a Delaware corporation, and
its successors and permitted assigns.
"BLFC" means Bunge Limited Finance Corp., a Delaware corporation, and
its successors and permitted assigns.
"Borrower Account" means any account established by or for the
Borrower, other than the Series 2003-1 Collection Subaccount (or any
sub-subaccount thereof), for the purpose of depositing funds borrowed
hereunder or under any Pari Passu Indebtedness and any amounts paid
pursuant to the Series 2003-1 VFC Certificate and all amounts received
with respect to Hedge Agreements.
"Break Costs" means the amount (if any) by which:
(a) the interest minus the Applicable Margin which a Lender should
have received for the period from the date of receipt of all or
any part of its participation in a Loan or Unpaid Sum to the last
day of the current Interest Period in respect of that Loan or
Unpaid Sum, had the principal amount of that Loan or Unpaid Sum
received been paid on the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing
an amount equal to the principal amount of that Loan or Unpaid
Sum received by it on deposit with a leading bank in the London
interbank market for a period starting on the Business Day
following receipt or recovery and ending on the last day of that
Interest Period.
"Bunge Master Trust" means the trust created pursuant to the Pooling
Agreement.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and New York City.
"Change of Control" means that (i) during any twelve (12) consecutive
calendar months more than fifty per cent (50%) of the members of the
Board of Directors of the Parent who were members on the first day of
such period shall have resigned or been removed or replaced, other
than as a result of death, disability or change in personal
circumstances, or (ii) any Person or "Group" (as defined in Section
13(d)(3) of the United States Securities Exchange Act of 1934, as
amended, but excluding (a) any employee benefit or stock ownership
plans of the Parent and (b) members of the Board of Directors and
executive officers of the Parent as of the date of this Agreement,
members of the immediate families of such members and executive
officers, and
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family trusts and partnerships established by or for the benefit of
any of the foregoing individuals) shall have acquired more than fifty
per cent (50%) of the combined voting power of all classes of common
stock of the Parent, except that the Parent's purchase of its common
stock outstanding on the date of this Agreement which results in one
or more of the Parent's shareholders of record as of the date of this
Agreement controlling more than fifty per cent (50%) of the combined
voting power of all classes of common stock of the Parent shall not
constitute an acquisition for the purposes of this Agreement.
"Commitment" means:
(a) in relation to an Original Lender, the amount set opposite its
name under the heading "Commitment" in Schedule 2 (The Original
Lenders) and the amount of any other Commitment transferred to it
under this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment
transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in the form set out in Schedule 8 or in any other form
agreed between the Borrower and the Agent.
"Contractual Obligation" means as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Daily Report" means a report prepared by the Servicer on each
Business Day required pursuant to Section 4.01 of the Servicing
Agreement or Clause 18 (Positive Covenants) of this Agreement, in
substantially the form of Exhibit B attached to the Series 2003-1
Supplement.
"Default" means an Event of Default or any event or circumstance
specified in Clause 21 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"Defaulted Loan" has the meaning as defined in Annex X of the Pooling
Agreement.
"Delinquent Loan" has the meaning as defined in Annex X of the Pooling
Agreement.
"Designated Obligors" means the Parent and the Subsidiaries of the
Parent set forth on Schedule IV to the Parent Guarantee (and their
successors) and any other Subsidiaries of the Parent designated by the
Parent from time to time under the Pooling Agreement that satisfy the
conditions set forth in the definition of "Eligible Obligor" in Annex
X to the Pooling Agreement. Notwithstanding the immediately preceding
sentence, with the prior written consent of the Majority Lenders
(which consent shall not be unreasonably withheld), the Borrower may
from time to time identify, on the
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instructions of the Parent, the Parent and certain Subsidiaries that
shall not be classified as Designated Obligors.
"DNB" means the Dutch Central Bank (De Nederlandsche Bank N.V.).
"Dutch Banking Act" means the Dutch Act on the Supervision of the
Credit System 1992 (Wet toezicht kredietwezen 1992) as amended from
time to time or any successor legislation thereto.
"Dutch Civil Code" means the Dutch Civil Code (Burgerlijk Wetboek).
"Event of Default" means any event or circumstance specified as such
in Clause 21 (Events of Default).
"Exemption Regulation" means the exemption regulation to the Dutch
Banking Act dated 26 June 2002 (as amended from time to time or any
successor legislation thereto) of the Ministry of Finance of The
Netherlands (Vrijstellingsregeling Wet toezicht kredietwezen 1992), as
promulgated in connection with the Dutch Banking Act.
"Facility" means the revolving loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Fee Letter" means the letter dated 16 November 2006 between the
Arrangers and the Borrower and any letter or letters dated on or about
the date of this Agreement between the Arrangers and the Borrower (or
the Agent and the Borrower) setting out any of the fees referred to in
Clause 11 (Fees).
"Final Maturity Date" means the date falling 3 years from the date of
the first Utilisation hereunder, or, if such date is not a Business
Day, the immediately preceding Business Day.
"Finance Document" means this Agreement, any Fee Letter, any Transfer
Certificate, the Parent Guarantee and any other agreement or document
from time to time entered into pursuant to any of the foregoing
documents and any other document designated in writing as such by the
Agent and the Borrower.
"Finance Party" means the Agent, an Arranger or a Lender.
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
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"Group" means the Borrower, the Parent and the Designated Obligors.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including any bank under any letter of credit) with respect to
which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or
in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"Hedge Agreements" means all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or
currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Hedge Termination Amounts" means, as the context requires hereunder,
all amounts (i) due and owing by the Borrower or (ii) received by the
Borrower, in each case in connection with the termination of a Hedge
Agreement entered into by the Borrower.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Indebtedness" means, as to any Person, without duplication:
(a) all obligations of such Person for borrowed money;
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(b) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(c) all obligations of such Person to pay the deferred purchase price
of property, except trade accounts payable arising in the
ordinary course of business;
(d) all obligations of such Person as lessee which are capitalised in
accordance with GAAP;
(e) all obligations of such Person created or arising under any
conditional sales or other title retention agreement with respect
to any property acquired by such Person (including, without
limitation, obligations under any such agreement which provides
that the rights and remedies of the seller or lender thereunder
in the event of default are limited to repossession or sale of
such property);
(f) all obligations of such Person with respect to letters of credit
and similar instruments including, without limitation,
obligations under reimbursement agreements;
(g) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has existing right, contingent or otherwise, to
be secured by) a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person;
(h) all net obligations of such Person in respect of equity
derivatives and Hedge Agreements; and
(i) all Guarantee Obligations of such Person (other than guarantees
of obligations of direct or indirect Subsidiaries of such
Person).
"Information Memorandum" means the document in the form approved by
the Borrower and the Parent concerning the Borrower and the Parent
which, at their request and on their behalf, was prepared in relation
to this transaction and distributed by the Arrangers to selected
financial institutions before the date of this Agreement.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 9 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 8.3
(Default interest).
"Investor Certificateholder" has the meaning as defined in Annex X to
the Pooling Agreement.
"Lender" means:
(a) any Original Lender; and
(b) any bank, financial institution, trust, fund or other entity
which has become a Party in accordance with Clause 23 (Changes to
the Lenders),
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which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
London interbank market,
in each case, as of the Specified Time on the Quotation Day for the
offering of deposits in the currency of that Loan and for a period
comparable to the Interest Period for that Loan.
"Lien" means with respect to any asset (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on
such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement
relating to such asset.
"Loan" means a loan made or to be made under the Facility or (as the
context requires) the principal amount outstanding for the time being
of the loan.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 66 2/3% of the Total Commitments
(or, if the Total Commitments have been reduced to zero,
aggregated more than 66 2/3% of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in
the Loans then outstanding aggregate more than 66(2)/3% of all
the Loans then outstanding.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 5 (Mandatory Cost Formulae).
"Master Trust Approved Currencies" means U.S. dollars, euro, sterling
and yen.
"Master Trust Guaranty" means the Fifth Amended and Restated Guaranty
made as of June 28 2004 by the Parent to Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank International", New York
Branch, as letter of credit agent, JP Morgan Chase Bank, as
administrative agent, and The Bank of New York, as collateral agent
and trustee, as the same may be amended, supplemented or otherwise
modified in accordance with the terms hereof from time to time.
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"Material Adverse Effect" means:
(a) a material adverse effect on the business, property, operations,
condition (financial or otherwise) or prospects of the Borrower
or of the Parent and its consolidated Subsidiaries taken as a
whole;
(b) a material impairment of the collectability of the Purchased
Loans taken as a whole; or
(c) a material impairment of the validity or enforceability of this
Agreement or any of the other Finance Documents or of the
Transaction Documents or the rights or remedies of the Agent or
the Lenders against the Borrower or the Parent hereunder or under
the other Finance Documents.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month, except that:
(a) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to
end if there is one, or if there is not, on the immediately
preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period
is to end.
The above rules will only apply to the last Month of any period.
"Monthly Settlement Statement" has the meaning defined in Annex X to
the Pooling Agreement.
"Moody's" means Moody's Investors Service, Inc. or any successor of
Moody's credit ratings service.
"Obligors" means the Parent and the Borrower.
"Parent" means Bunge Limited, a company formed under the laws of
Bermuda having its registered office at Clarendon House, 2 Church
Street, Hamilton HM 11 Bermuda.
"Parent Guarantee" means the guarantee given by the Parent in the form
set out in the Exhibit to this Agreement, as the same may be amended,
supplemented or otherwise modified in accordance with the terms of the
Finance Documents.
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"Pari Passu Indebtedness" means:
(a) Indebtedness for borrowed money, the proceeds of which are used
to increase the Series 2003-1 Invested Amount and/or to refinance
Indebtedness originally used for such purpose; and
(b) Indebtedness incurred in connection with Hedge Agreements entered
into in connection with the Commitments hereunder and any Pari
Passu Indebtedness described in paragraph (a) above,
in each case which ranks not greater than pari passu (in priority of
payment) with the Loans.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.
"Party" means a party to this Agreement.
"Payment Period" means a period commencing on a date on which the
Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Finance Documents have become due
and payable (whether at the stated maturity, by acceleration or
otherwise) and ending on the date the Loans (with accrued interest
thereon) and all such other amounts are paid in full by the Borrower
or the Parent.
"Permitted Indebtedness" means:
(a) Indebtedness of the Borrower pursuant to this Agreement; and
(b) Pari Passu Indebtedness.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"PMP" means a "professional market party" within the meaning of the
Exemption Regulation.
"Policy Guidelines" means the 2005 Dutch Central Bank's Policy
Guidelines (issued in relation to the Exemption Regulation) dated 29
December 2004 (Beleidsregel 2005 kernbegrippen markttoetreding en
handhaving Wtk 1992) as amended from time to time.
"Pooling Agreement" means the Fifth Amended and Restated Pooling
Agreement, dated as of 28 June 2004, among Bunge Funding, Inc., the
Servicer and The Bank of New York, as trustee, as the same may be
amended, supplemented or otherwise modified in accordance with the
terms hereof from time to time.
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"Purchased Loan" has the meaning defined in Annex X to the Pooling
Agreement.
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined two Business Days before the first day of
that period unless market practice differs in the London interbank
market for dollars in which case the Quotation Day for that currency
will be determined by the Agent in accordance with market practice in
the London interbank market (and if quotations would normally be given
by leading banks in the London interbank market on more than one day,
the Quotation Day will be the last of those days).
"Rated Investment Certificateholder" means Bunge Limited Finance
Corp., provided that at such time it is an Investment
Certificateholder.
"Rate of Exchange" means as of the relevant date, the rate of exchange
set forth on the relevant page of the Telerate screen on or about
11.00 a.m., New York City time, for the purchase of (as the context
will require) a Master Trust Approved Currency with any other Master
Trust Approved Currency on such date.
"Rating Agencies" means collectively, S&P and Moody's.
"Ratings" means the ratings of the Rating Agencies applicable to the
long-term, non-credit enhanced senior unsecured debt of the Parent or
the Rated Investor Certificateholder of the Bunge Master Trust, as
announced by the Rating Agencies, and "Rating" means any one of them.
"Reference Banks" means the principal London offices of BNP Paribas,
HSBC Bank plc and The Royal Bank of Scotland plc, or such other banks
as may be appointed by the Agent in consultation with the Borrower.
"Repeating Representations" means each of the representations set out
in Clauses 17.1 (Existence: Compliance with Law) to 17.6 (No default),
paragraph (c) of Clause 17.11 (No misleading information), Clause
17.12 (No Subsidiaries), Clause 17.14 (Pari passu ranking) and Clause
17.16 (Limited Purpose), Clause 17.17 (No Change) and Clause 17.19
(Tax Status).
"Requirement of Law" means as to any Person, the Certificate of
Incorporation and By-Laws or other organisational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" means any member of the Board of Directors, the
Chief Executive Officer, the President, the Chief Financial Officer or
the Treasurer of the Borrower or Parent, as applicable, or any other
officer of the Borrower or Parent, as applicable, customarily
performing functions similar to those performed by any of the
above-designated officers.
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"Rollover Loan" means one or more Loans:
(a) made or to be made on the same day that a maturing Loan is due to
be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Loan; and
(c) made or to be made for the purpose of refinancing a maturing
Loan.
"Sale Agreement" means the Second Amended and Restated Sale Agreement,
dated as of September 6, 2002, among Bunge Funding Inc., as buyer,
Bunge Finance Limited, a Bermuda company, as a seller, and Bunge
Finance North America, Inc. a Delaware corporation, as a seller, as
the same may be amended, supplemented or otherwise modified in
accordance with the terms hereof from time to time.
"S&P" means Standard & Poor's Rating Services, a division of the
McGraw-Hill Companies, Inc. or any successor of S&P's credit ratings
service.
"Screen Rate" means the British Bankers' Association Interest
Settlement Rate for the relevant currency and period displayed on the
appropriate page of the Reuters screen. If the agreed page is replaced
or service ceases to be available, the Agent may specify another page
or service displaying the appropriate rate after consultation with the
Borrower and the Lenders.
"Series 2003-1 Accrued Interest" shall have the meaning assigned in
subsection 3A.03 of Series 2003-1 Supplement.
"Series 2003-1 Adjusted Invested Amount" shall mean, as of any date of
determination, (i) the Series 2003-1 Invested Amount (as defined in
Annex X to the Pooling Agreement) on such date, minus (ii) the amount
on deposit in the Series 2003-1 Collection Subaccount on such date
that is available to reduce the Series 2003-1 Invested Amount up to a
maximum of the Series 2003-1 Invested Amount.
"Series 2003-1 Allocated Loan Amount" shall mean, on any date of
determination, the lower of (i) the Series 2003-1 Target Loan Amount
on such day and (ii) the product of (x) the Aggregate Loan Amount (as
defined in Annex X to the Pooling Agreement) on such day times (y) the
percentage equivalent of a fraction the numerator of which is the
Series 2003-1 Target Loan Amount on such day and the denominator of
which is the Aggregate Target Loan Amount (as defined in Annex X to
the Pooling Agreement) on such day.
"Series 2003-1 Collection Subaccount" shall have the meaning assigned
in subsection 3A.02(a) of the Series 2003-1 Supplement.
"Series 2003-1 Early Amortisation Event" shall have the meanings
assigned in Section 5.01 of the Series 2003-1 Supplement and Section
7.01 of the Pooling Agreement.
"Series 2003-1 Supplement" means the Bunge Master Trust Series 2003-1
Supplement dated as of May 1, 2003 to the Pooling Agreement among
Bunge Funding, Inc., as company, the Servicer, the Borrower, as Series
2003-1 Purchaser and The Bank of
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New York, as trustee, as the same may be amended, supplemented or
otherwise modified in accordance with the terms hereof from time to
time.
"Series 2003-1 Target Loan Amount" shall mean, on any date of
determination, the sum of (i) the Series 2003-1 Adjusted Invested
Amount on such date plus (ii) the result of (a) Series 2003-1 Accrued
Interest on such day minus (b) the amount on deposit in the Series
2003-1 Collection Subaccount on such day that is available to pay such
Series 2003-1 Accrued Interest.
"Series 2003-1 VFC Certificate" shall mean the Series 2003-1 VFC
Certificate executed by Bunge Funding, Inc. and authenticated by or on
behalf of The Bank of New York, as trustee, substantially in the form
of Exhibit A attached to the Series 2003-1 Supplement.
"Servicer" means Bunge Management Services, Inc., a Delaware
corporation, and any "Successor Servicer" (as defined in Annex X to
the Pooling Agreement).
"Servicing Agreement" means the Third Amended and Restated Servicing
Agreement, dated as of 23 December 2003 among Bunge Funding, Inc., the
Servicer and The Bank of New York, as trustee, as the same may be
amended, supplemented or otherwise modified in accordance with the
terms hereof from time to time.
"Solvent" means with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay debts and
liabilities as they mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at
any such time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Specified Time" means a time determined in accordance with Schedule 7
(Timetables).
"Subsidiary" means as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Parent.
- 12 -
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Total Commitments" means the aggregate of the Commitments, being
$600,000,000 at the date of this Agreement.
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 6 (Form of Transfer Certificate) or any other form
agreed between the Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed transfer date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
"Transaction Documents" means the Master Trust Guaranty, the Pooling
Agreement, the Series 2003-1 Supplement, the Series 2003-1 VFC
Certificate, the Sale Agreement and the Servicing Agreement.
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"US" and "United States" means the United States of America, its
territories, possessions and other areas subject to the jurisdiction
of the United States of America.
"Utilisation" means a utilisation of the Facility.
"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out
in Schedule 4 (Utilisation Request).
1.2 Construction
(a) Unless a contrary indication appears any reference in this
Agreement to:
(i) the "Agent", any "Arranger", any "Finance Party", any
"Lender", any "Obligor" or any "Party" shall be construed so
as to include its successors in title, permitted assigns and
permitted transferees;
(ii) "assets" of any Person shall be construed as a reference to
the whole or any part of its business, undertaking,
property, assets, rights and revenues (including any right
to receive revenues);
(iii) a "Finance Document" or any other agreement or instrument
is a reference to that Finance Document or other agreement
or instrument as amended, supplemented or novated;
- 13 -
(iv) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(v) a provision of law is a reference to that provision as
amended or re-enacted; and
(vi) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference
only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) In this Agreement, where it relates to a Dutch entity, a
reference to:
(i) a necessary action to authorise where applicable, includes
without limitation:
(A) any action required to comply with the Dutch Works
Councils Act (Wet op de ondernemingsraden); and
(B) obtaining an unconditional positive advice (advies)
from the competent works council(s);
(ii) a winding-up, administration or dissolution includes a Dutch
entity being:
(A) declared bankrupt (failliet verklaard);
(B) dissolved (ontbonden);
(iii) a moratorium includes surseance van betaling and granted a
moratorium includes surseance verleend;
(iv) a trustee in bankruptcy includes a curator;
(v) an administrator includes a bewindvoerder;
(vi) a(n) (administrative) receiver does not include a curator or
bewindvoerder; and
(vii) an attachment includes a beslag.
1.3 Currency Symbols and Definitions "$" and "dollars" denote lawful
currency of the United States, "EUR" and "euro" means the single
currency unit of the Participating Member States, "(pound)" and
"sterling"
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denote lawful currency of the United Kingdom of Great Britain and
Northern Ireland and "yen" means the lawful currency of Japan.
1.4 Third party rights
(a) Unless expressly provided to the contrary in a Finance Document a
person who is not a Party has no right under the Contracts
(Rights of Third Parties) Act 1999 (the "Third Parties Act") to
enforce or to enjoy the benefit of any term of this Agreement.
(b) Notwithstanding any term of any Finance Document, the consent of
any person who is not a Party is not required to rescind or vary
this Agreement at any time.
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THE FACILITY
2. THE FACILITY
2.1 The Facility
Subject to the terms of this Agreement, the Lenders make available to the
Borrower a dollar revolving loan facility in an aggregate amount equal to
the Total Commitments.
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations under
the Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is responsible for
the obligations of any other Finance Party under the Finance
Documents.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from an Obligor
shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance Documents.
3. PURPOSE
3.1 Purpose
The Facility shall be available solely to enable the Borrower to make
advances to the Bunge Master Trust pursuant to the Series 2003-1 VFC
Certificate. The Borrower undertakes that all amounts advanced to the Bunge
Master Trust will be used by the Bunge Master Trust to make intercompany
loans to the Designated Obligors for general corporate purposes.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
The Borrower may not deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Schedule 3
(Conditions Precedent) and copies of any other document, authorisation,
opinion or assurance reasonably requested by the Agent in form and
substance reasonably satisfactory to the Agent. The Agent shall notify the
Borrower and the Lenders promptly upon being so satisfied.
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4.2 Further conditions precedent
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) in the case of a Rollover Loan, no Event of Default is continuing or
would result from the proposed Loan and, in the case of any other
Loan, no Default is continuing or would result from the proposed Loan;
and
(b) the Repeating Representations to be made by the Borrower under this
Agreement and the representations to be made by the Parent under
Section 7 of the Parent Guarantee are true in all material respects.
4.3 Maximum number of Loans
The Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation more than 20 Loans shall be outstanding.
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UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
The Borrower may utilise the Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the
Availability Period and, in the case of the first Utilisation
Date, a Business Day no later than 31 January 2007;
(ii) the currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount); and
(iii) the proposed Interest Period complies with Clause 9 (Interest
Periods).
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be dollars.
(b) The amount of the proposed Loan must be a minimum of $10,000,000 or,
if less, the Available Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Loan available by the Utilisation
Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be equal
to the proportion borne by its Available Commitment to the Available
Facility immediately prior to making the Loan.
(c) The Agent shall notify each Lender of the amount of each Loan and the
amount of its participation in that Loan, in each case by the
Specified Time.
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REPAYMENT, PREPAYMENT AND CANCELLATION
6. REPAYMENT
The Borrower shall repay each Loan on the last day of its Interest Period.
7. PREPAYMENT AND CANCELLATION
7.1 Illegality
If, it becomes unlawful, in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to fund
or maintain its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Borrower, the Commitment of that Lender
will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the Loans made
to the Borrower on the last day of the Interest Period for each Loan
occurring after the Agent has notified the Borrower or, if earlier,
the date specified by the Lender in the notice delivered to the Agent
(being no earlier than the last day of any applicable grace period
permitted by law).
7.2 Change of control
If after the date of this Agreement (i) any Change of Control shall occur
with respect to the Parent, or (ii) the Borrower shall not be directly, or
indirectly wholly-owned by the Parent:
(a) the Borrower shall promptly notify the Agent upon becoming aware of
that event; and
(b) the Agent, acting on the instructions of the Majority Lenders, shall
by not less than 5 days' notice to the Borrower, cancel the Facility
and declare all outstanding Loans, together with accrued interest, and
all other amounts accrued under the Finance Documents immediately due
and payable, whereupon the Facility will be cancelled and all such
outstanding amounts will become immediately due and payable.
7.3 Voluntary cancellation
The Borrower may, if it gives the Agent not less than 5 Business Days' (or
such shorter period as the Majority Lenders may agree) prior notice, cancel
the whole or any part (being a minimum amount of $5,000,000) of the
Available Facility. Any cancellation under this Clause 7.3 shall reduce the
Commitments of the Lenders rateably. Any amounts cancelled under this
Clause 7.3 may not be reinstated.
7.4 Voluntary Prepayment of Loans
The Borrower may, if it gives the Agent not less than 5 Business Days' (or
such shorter period as the Majority Lenders may agree) prior notice, prepay
the whole or
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any part of a Loan (but if in part, being an amount that reduces the Loan
by a minimum amount of $5,000,000).
7.5 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by the Borrower is required to be
increased under paragraph (c) of Clause 12.2 (Tax gross-up);
(ii) any Lender claims indemnification from the Borrower under Clause
12.3 (Tax indemnity) or Clause 13.1 (Increased costs),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice
of cancellation of the Commitment of that Lender and its
intention to procure the repayment of that Lender's participation
in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Borrower
has given notice under paragraph (a) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall repay
that Lender's participation in that Loan.
7.6 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 7 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which
the relevant cancellation or prepayment is to be made and the amount
of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) Unless a contrary indication appears in this Agreement, any part of
the Facility which is prepaid may be reborrowed in accordance with the
terms of this Agreement.
(d) The Borrower shall not repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments except at the times and in
the manner expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may
be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 7 it shall promptly
forward a copy of that notice to either the Borrower or the affected
Lender, as appropriate.
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- 21 -
COSTS OF UTILISATION
8. INTEREST
8.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the:
(a) Applicable Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
8.2 Payment of interest
On the last day of each Interest Period the Borrower shall pay accrued
interest on the Loan to which that Interest Period relates (and, if the
Interest Period is longer than six Months, on the dates falling at six
Monthly intervals after the first day of the Interest Period).
8.3 Default interest
(a) If the Borrower fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and
after judgement) at a rate which, subject to paragraph (b) below, is
two per cent. per annum higher than the rate which would have been
payable if the overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the Agent
(acting reasonably). Any interest accruing under this Clause 8.3 shall
be immediately payable by the Borrower on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which became
due on a day which was not the last day of an Interest Period relating
to that Loan:
(i) the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest
Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during that
first Interest Period shall be two per cent. per annum higher
than the rate which would have applied if the overdue amount had
not become due.
(c) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and
payable.
8.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
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9. INTEREST PERIODS
9.1 Selection of Interest Periods
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan.
(b) Subject to this Clause 9, the Borrower may select an Interest Period
of one, two, three or six Months or any other period agreed between
the Borrower and the Agent (acting on the instructions of all the
Lenders).
(c) An Interest Period for a Loan shall not extend beyond the Final
Maturity Date.
(d) A Loan has one Interest Period only.
9.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in that
calendar month (if there is one) or the preceding Business Day (if there is
not).
10. CHANGES TO THE CALCULATION OF INTEREST
10.1 Absence of quotations
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined by
reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR
shall be determined on the basis of the quotations of the remaining
Reference Banks.
10.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then subject to Clause 10.3 (Alternative basis of
interest or funding) the rate of interest on each Lender's share of
that Loan for the Interest Period shall be the rate per annum which is
the sum of:
(i) the Applicable Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding its
participation in that Loan from whatever source it may reasonably
select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of
the Reference Banks supplies a rate to the Agent to determine
LIBOR for the relevant Interest Period; or
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(ii) before close of business in London on the Quotation Day for the
relevant Interest Period, the Agent receives notifications from a
Lender or Lenders (whose participations in a Loan exceed 35 per
cent. of that Loan) that the cost to it of obtaining matching
deposits in the London interbank market would be in excess of
LIBOR.
10.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the Borrower shall enter into negotiations
(for a period of not more than thirty days) with a view to agreeing a
substitute basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Borrower, be binding
on all Parties.
10.4 Break Costs
(a) The Borrower shall, within three Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all or any
part of a Loan or Unpaid Sum being paid by the Borrower on a day other than
the last day of an Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by the
Agent or the Borrower, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they accrue.
11. FEES
11.1 Commitment fee
(a) The Borrower shall pay to the Agent (for the account of each Lender) a
fee computed at the rate of 35 per cent. of the Applicable Margin on
the Available Facility unless:
(i) the Applicable Margin is 0.75 per cent. per annum, in which case
the fee shall be computed at a rate of 37.5 per cent. of the
Applicable Margin; or
(ii) the Applicable Margin is 0.85 per cent. per annum, in which case
the fee shall be computed at a rate of 40 per cent. of the
Applicable Margin.
(b) The accrued commitment fee is payable in arrears on the last day of
each successive period of three Months which ends during the
Availability Period, on the last day of the Availability Period and,
if cancelled in full, on the cancelled amount of the relevant Lender's
Commitment at the time the cancellation is effective.
11.2 Arrangement and participation fees
The Borrower shall pay to the Arrangers the arrangement and participation
fees in the amount and at the times agreed in a Fee Letter.
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11.3 Agency fee
The Borrower shall pay to the Agent (for its own account) an agency fee in
the amount and at the times agreed in a Fee Letter.
- 25 -
ADDITIONAL PAYMENT OBLIGATIONS
12. TAX GROSS UP AND INDEMNITIES
12.1 Definitions
(a) In this Agreement:
"Protected Party" means a Finance Party which is or will be subject to
any liability, or required to make any payment, for or on account of
Tax in relation to a sum received or receivable (or any sum deemed for
the purposes of Tax to be received or receivable) under a Finance
Document.
"Tax Credit" means a credit against, relief or remission for, or
repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of
Tax from a payment under a Finance Document unless such deduction or
withholding was required by law on the date of this Agreement or
results from a Finance Party's failure to comply with sub-clause
12.2(f).
"Tax Payment" means either the increase in a payment made by the
Borrower to a Finance Party under Clause 12.2 (Tax gross-up) or a
payment under Clause 12.3 (Tax indemnity).
(b) Unless a contrary indication appears, in this Clause 12 a reference to
"determines" or "determined" means a determination made in the
reasonable discretion of the person making the determination.
12.2 Tax gross-up
(a) The Borrower shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(b) The Borrower shall promptly upon becoming aware that it must make a
Tax Deduction (or that there is any change in the rate or the basis of
a Tax Deduction) notify the Agent accordingly. Similarly, a Lender
shall notify the Agent on becoming so aware in respect of a payment
payable to that Lender. If the Agent receives such notification from a
Lender it shall notify the Borrower.
(c) If a Tax Deduction is required by law to be made by the Borrower, the
amount of the payment due from the Borrower shall be increased to an
amount which (after making any Tax Deduction) leaves an amount equal
to the payment which would have been due if no Tax Deduction had been
required.
(d) If the Borrower is required to make a Tax Deduction, the Borrower
shall make that Tax Deduction and any payment required in connection
with that Tax Deduction within the time allowed and in the minimum
amount required by law.
- 26 -
(e) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower shall
deliver to the Agent for the Finance Party entitled to the payment
evidence reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing authority.
(f) The Borrower hereby confirms to each Lender that it has made an
election to be disregarded as an entity separate from its parent,
Bunge N.A. Holdings, Inc., for U.S. federal income tax purposes.
Accordingly, each Lender shall, to the extent permitted by law,
deliver to the Agent for transmission to the Borrower (on or before
the date of the first interest payment after such Lender becomes a
party to this Agreement) a duly completed copy of Internal Revenue
Service Form W-8BEN, or Form W-ECI, if applicable, or any successor
forms, or any other forms as may be necessary to establish a reduction
in, or complete exemption from, U.S. withholding tax on payments under
the Series 2003-1 VFC Certificate or, as the case may be, on payments
of interest on the Loans. To the extent that any such forms become
obsolete as a result of lapse in time or change in circumstance, each
Lender shall (promptly upon the request of the Borrower in the case of
such form becoming obsolete as a result of lapse in time), to the
extent permitted by law, deliver to the Agent for transmission to the
Borrower, revised forms as may be necessary to establish a reduction
in, or complete exemption from, U.S. withholding tax on such payments.
12.3 Tax indemnity
(a) The Borrower shall (within three Business Days of demand by the Agent)
pay to a Protected Party an amount equal to the loss, liability or
cost which that Protected Party determines will be or has been
(directly or indirectly) suffered for or on account of Tax by that
Protected Party in respect of a Finance Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any loss, liability or cost related to any Tax
assessed on a Finance Party:
(A) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes;
(B) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction; or
(C) under the law of any jurisdiction in which that Finance
Party otherwise does business,
- 27 -
if that Tax is imposed on or calculated by reference to the
overall net income of that Finance Party (or a branch
thereof); or
(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under Clause 12.2
(Tax gross-up); or
(B) would have been compensated for by an increased payment
under Clause 12.2 (Tax gross-up) but was not so compensated
as a result of a Finance Party's failure to comply with
sub-clause 12.2(f).
(c) A Protected Party making, or intending to make a claim under paragraph
(a) above shall promptly notify the Agent of the event which will
give, or has given, rise to the claim, following which the Agent shall
notify the Borrower.
(d) A Protected Party shall, on receiving a payment from the Borrower
under this Clause 12.3, notify the Agent.
12.4 Tax Credit
If the Borrower makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable either to an increased payment of which
that Tax Payment forms part, or to that Tax Payment; and
(b) that Finance Party has obtained and utilised that Tax Credit,
the Finance Party shall pay an amount to the Borrower which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to
be made by the Borrower. To the extent the Finance Party loses a Tax Credit
for which it has made a payment hereunder, the Finance Party shall so
notify the Borrower and the Borrower shall refund the amounts paid to such
Borrower with respect to such Tax Credit.
12.5 Stamp taxes
The Borrower shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document.
12.6 Value added tax
(a) All consideration expressed to be payable under a Finance Document by
any Party to a Finance Party shall be deemed to be exclusive of any
VAT. If VAT is chargeable on any supply made by any Finance Party to
any Party in connection with a Finance Document, that Party shall pay
to the Finance Party an amount equal to the amount of the VAT.
(b) Where a Finance Document requires any Party to reimburse a Finance
Party for any costs or expenses, that Party shall also pay and
indemnify the Finance Party against all VAT incurred by the Finance
Party in respect of the costs or
- 28 -
expenses to the extent that the Finance Party reasonably determines
that it is not entitled to credit or repayment of the VAT.
13. INCREASED COSTS
13.1 Increased costs
(a) Subject to Clause 13.2 (Increased cost claims) and Clause 13.3
(Exceptions) the Borrower shall, within three Business Days of a
demand by the Agent, pay for the account of a Finance Party the amount
of any Increased Costs incurred by that Finance Party or any of its
Affiliates as a result of (i) the introduction of or any change in (or
in the interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made after
the date of this Agreement, or, if later, the date on which the
relevant Finance Party became a Party to this Agreement.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance Party
having entered into its Commitment or funding or performing its
obligations under any Finance Document.
13.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 13.1
(Increased costs) shall notify the Agent of the event giving rise to
the claim, following which the Agent shall promptly notify the
Borrower. The Borrower shall not be required to compensate a Lender
pursuant to Clause 13 (Increased costs) for any amounts incurred more
than six months prior to the date the Borrower receives notification
of such claim; provided, that if the circumstances giving rise to such
claim have a retroactive effect, then such six month period shall be
extended to include the period of such retroactive effect.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Agent or the Borrower, provide a certificate confirming the amount of
its Increased Costs (setting out reasonable information showing the
basis for and calculation of such amount).
13.3 Exceptions
Clause 13.1 (Increased costs) does not apply to the extent any Increased
Cost is:
(a) attributable to Tax;
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(b) compensated for by the payment of the Mandatory Cost;
(c) attributable to the breach by the relevant Finance Party or its
Affiliates of any law or regulation; or
(d) attributable to the implementation or application of or compliance
with the "International Convergence of Capital Measurement and Capital
Standards, a Revised Framework" published by the Basel Committee on
Banking Supervision in June 2004 in the form existing on the date of
this Agreement ("Basel II") or any other law or regulation which
implements Basel II (whether such implementation, application or
compliance is by a government, regulator, Finance Party or any of its
Affiliates).
14. OTHER INDEMNITIES
14.1 Currency indemnity
(a) If any sum due from the Borrower under the Finance Documents (a
"Sum"), or any order, judgement or award given or made in relation to
a Sum, has to be converted from the currency (the "First Currency") in
which that Sum is payable into another currency (the "Second
Currency") for the purpose of:
(i) making or filing a claim or proof against the Borrower;
(ii) obtaining or enforcing an order, judgement or award in relation
to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within three Business
Days of demand, indemnify each Finance Party to whom that Sum is due
against any cost, loss or liability arising out of or as a result of
the conversion including any discrepancy between (A) the rate of
exchange used to convert that Sum from the First Currency into the
Second Currency and (B) the rate or rates of exchange available to
that person at the time of its receipt of that Sum.
(b) The Borrower waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency or currency unit
other than that in which it is expressed to be payable.
14.2 Other indemnities
The Borrower shall, within three Business Days of demand, indemnify each
Finance Party against any cost, loss or liability incurred by that Finance
Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by the Borrower to pay any amount due under a Finance
Document on its due date, including without limitation, any cost, loss
or liability arising as a result of Clause 27 (Sharing among the
Finance Parties);
(c) funding, or making arrangements to fund, its participation in a Loan
requested by it in a Utilisation Request but not made by reason of the
operation of any
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one or more of the provisions of this Agreement (other than by reason
of default or negligence by that Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.
14.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default; or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised;
except to the extent such cost, loss or liability arises from (i) the
wilful misconduct or gross negligence of the Agent or (ii) the Agent's
breach of express duties under the Finance Documents.
15. MITIGATION BY THE LENDERS
15.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrower, take all
reasonable steps to mitigate any circumstances which arise and which
would result in any amount becoming payable under or pursuant to, or
cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax
gross-up and indemnities), Clause 13 (Increased costs) or paragraph 3
of Schedule 5 (Mandatory Cost Formulae) including (but not limited to)
transferring its rights and obligations under the Finance Documents to
another Facility Office or bank or financial institution reasonably
acceptable to the Borrower.
(b) Paragraph (a) above does not in any way limit the obligations of the
Borrower under the Finance Documents.
15.2 Limitation of liability
(a) The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 15.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 15.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
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16. COSTS AND EXPENSES
16.1 Transaction expenses
The Borrower shall promptly on demand pay the Agent and the Arrangers the
amount of all costs and expenses (including legal fees) reasonably incurred
by any of them in connection with the negotiation, preparation, printing,
execution and syndication of:
(a) this Agreement and any other documents referred to in this Agreement;
and
(b) any other Finance Documents executed after the date of this Agreement.
16.2 Amendment costs
If the Borrower requests an amendment, waiver or consent the Borrower
shall, within three Business Days of demand, reimburse the Agent for the
amount of all costs and expenses (including legal fees) reasonably incurred
by the Agent in responding to, evaluating, negotiating or complying with
that request or requirement.
16.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
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REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
17. REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 17 (other than 17.20) to each Finance Party on the date of this
Agreement.
17.1 Existence; Compliance with Law
The Borrower (a) is duly organised, validly existing and in good standing
under the laws of the jurisdiction of its organisation, (b) has the power
and authority, and the legal right, to own and operate its property and to
conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership or operation of property or the
conduct of its business requires such qualification and (d) is in
compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
17.2 Power; Authorisation; Enforcement Obligations
The Borrower has the power and authority, and the legal right, to make,
deliver and perform the Finance Documents to which it is a party and to
obtain Loans hereunder. The Borrower has taken all necessary organisational
action to authorise the execution, delivery and performance of the Finance
Documents to which it is a party and to authorise the Loans on the terms
and conditions of this Agreement. Subject to any qualification as to legal
matters contained in the legal opinions referred to in Schedule 3
(Conditions Precedent), no consent or authorisation of, filing with, notice
to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the Loans hereunder or with the
execution, delivery, performance, validity or enforceability of this
Agreement or any of the Finance Documents to which the Borrower is a party.
Each Finance Document to which the Borrower is a party has been duly
executed and delivered on behalf of the Borrower. Subject to any
qualification as to legal matters contained in the legal opinions referred
to in Schedule 3 (Conditions Precedent), this Agreement constitutes, and
each other Finance Document to which the Borrower is a party, upon
execution will constitute, a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with the terms.
17.3 No Legal Bar
The execution, delivery and performance of this Agreement and the other
Finance Documents to which the Borrower is a party, the borrowings
hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of the Borrower and will
not result in, or require, the creation or imposition of any Lien on any of
its properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation. No Requirement of Law or Contractual Obligation
applicable to the Borrower could reasonably be expected to have a Material
Adverse Effect.
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17.4 Governing law and enforcement
Subject to any qualifications as to legal matters contained in the legal
opinions referred to in Schedule 3 (Conditions Precedent):
(a) The choice of English law as the governing law of this Agreement and
New York law as the governing law of the Parent Guarantee will be
recognised and enforced in its jurisdiction of incorporation; and
(b) Any judgement obtained in England in relation to this Agreement and in
New York in relation to the Parent Guarantee will be recognised and
enforced in its jurisdiction of incorporation.
17.5 Litigation
No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or against any of its properties or
revenues (a) with respect to any of the Finance Documents to which the
Borrower is a party or any of the transactions contemplated hereby or
thereby, or (b) that could reasonably be expected to have a Material
Adverse Effect.
17.6 No Default
The Borrower is not in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.
17.7 Ownership of Property; Liens
The Borrower has good title to all its property, and none of such property
is subject to any Lien (except for any Lien arising by virtue of the
maintenance of a credit balance on any Dutch bank account by the Borrower
pursuant to the general terms and conditions of the bank with which such
account is held).
17.8 Taxes
The Borrower has filed or caused to be filed all material corporate income
tax returns that are required to be filed and has paid all taxes shown to
be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity
with GAAP have been provided on the books of the Borrower); to the
knowledge of the Borrower, no claim is being asserted, with respect to any
such tax, fee or other charge.
17.9 Deduction of Tax
The Borrower is not required under Netherlands law to make any deduction
for or on account of Tax from any payment it may make under any Finance
Document.
17.10 No filing or stamp taxes
Under the law of its jurisdiction of incorporation it is not necessary that
the Finance Documents be filed, recorded or enrolled with any court or
other authority in that
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jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents or the transactions contemplated by
the Finance Documents.
17.11 No misleading information
(a) Any factual information provided by the Borrower for the purposes of
the Information Memorandum was in all material respects taken as a
whole true and accurate as at the date it was provided or as at the
date (if any) at which it is stated.
(b) Nothing has occurred or been omitted from the Information Memorandum
and no information has been given or withheld that results in the
information contained in the Information Memorandum being untrue or
misleading in any material respect in light of the circumstances under
which such information was supplied.
(c) All written information supplied by the Borrower is in all material
respects taken as a whole with other written information supplied by
the Borrower true and accurate and is not misleading in light of the
circumstances under which such information was supplied as at the date
it was provided or as at the date (if any) at which it is stated.
17.12 No Subsidiaries
It has no Subsidiaries.
17.13 Use of Proceeds
The proceeds of the Loans shall be used solely to make advances under the
Series 2003-1 VFC Certificate.
17.14 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors.
17.15 Solvency
Each member of the Group that is a party to a Finance Document, is, and
after giving effect to the incurrence of all Indebtedness and obligations
being incurred in connection herewith and therewith will be and will
continue to be, Solvent.
17.16 Limited Purpose
It is a single purpose entity that was formed for the sole purpose of (a)
holding the Series 2003-1 VFC Certificate, (b) borrowing under this
Agreement, (c) incurring Pari Passu Indebtedness and (d) entering into
Hedge Agreements in connection with this Agreement and such Pari Passu
Indebtedness. Other than cash derived from Hedge Agreements and
distributions of Series 2003-1 Accrued Interest and Series 2003-1 Invested
Amount (as defined in Annex X to the Pooling Agreement) to the Borrower
under the Series 2003-1 VFC Certificate, which cash shall be used by the
Borrower solely to make interest, principal and premium (if any) payments
under this Agreement and under any Pari Passu Indebtedness and to pay for
its reasonable operating expenses (and, in the case of cash derived from
Hedge Agreements, to make advances under the
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Series 2003-1 VFC Certificate), the Series 2003-1 VFC Certificate is the
sole asset of the Borrower.
17.17 No Change
Since 31 December 2005, in respect of the Parent and its consolidated
Subsidiaries, and since the date of this Agreement in respect of the
Borrower, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
17.18 Dutch Banking Act
It is in compliance with the Dutch Banking Act and any regulations issued
pursuant thereto (including, but not limited to, the Policy Guidelines and
Exemption Regulation).
17.19 Tax Status
No notice under Section 36 of the Tax Collection Act (Invorderingswet 1990)
has been given by any member of the Group.
17.20 PMP Representations-Lenders
(a) Each Lender which is a party to this Agreement on the date hereof
represents and warrants to the Borrower that it is a PMP.
(b) If on the date on which a New Lender as defined in Clause 23 (Changes
to the Lenders) becomes a Lender, it is a requirement of Dutch law
that such New Lender is a PMP, each New Lender represents and warrants
to the Borrower on the date on which it becomes a party to this
Agreement as a Lender that it is a PMP.
(c) Each such Lender and New Lender acknowledges that each Dutch Borrower
has relied upon such representation and warranty.
17.21 Repetition
The Repeating Representations are deemed to be made by the Borrower (by
reference to the facts and circumstances then existing) on the date of each
Utilisation Request and the first day of each Interest Period.
18. POSITIVE COVENANTS
The covenants in this Clause 18 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
The Borrower shall:
18.1 Information Miscellaneous
Provide the Agent all information that the Agent may reasonably request in
writing concerning the business of the Borrower within a reasonable period
of time considering the nature of the request; provided that with respect
to any information relating to an annual audited report, the same may be
delivered within 120 calendar days after the end of the Borrower's fiscal
year.
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18.2 Bunge Master Trust information
Furnish or cause to be furnished to the Agent in sufficient number for each
Lender, copies of all
(a) Daily Reports prepared by the Servicer pursuant to Clause 18.14 below;
(b) notices of Series 2003-1 Early Amortisation Events; and
(c) Monthly Settlement Statements;
provided that the documents set forth in paragraphs (a) and (c) above of
this sub-Clause 18.2 shall be provided only upon request of the Agent or
the Majority Lenders.
18.3 Taxes
Take all actions necessary to ensure that all taxes and other governmental
claims in respect of the Borrower's operations and assets are promptly paid
when due, except those contested in good faith.
18.4 Compliance
Comply with all Requirements of Law except where the failure to so comply
would not reasonably be expected to have a Material Adverse Effect on its
ability to perform its obligations under the Finance Documents.
18.5 Audited financial statements
Beginning with the fiscal year commencing in 2006, furnish to the Agent in
sufficient number for each Lender as soon as available, but in any event
within one hundred and twenty (120) days after the end of each fiscal year
of the Borrower, audited financial statements consisting of the balance
sheet of the Borrower as of the end of such year and the related statements
of income and retained earnings and statements of cash flow for such year,
setting forth in each case in comparative form the corresponding figures
for the previous fiscal year (provided that comparative figures shall not
be required with respect to such financial statements delivered at the end
of the Borrower's fiscal year ending in 2006), certified by independent
certified public accountants satisfactory to the Agent to the effect that
such financial statements fairly present in all material respects the
financial condition and results of operations of the Borrower in accordance
with GAAP consistently applied.
18.6 Unaudited financial statements
Beginning with the fiscal year commencing in 2006, furnish to the Agent as
soon as available but in any event within sixty (60) days after the end of
each of the first three quarters for each fiscal year of the Borrower,
unaudited financial statements consisting of a balance sheet of the
Borrower as at the end of such quarter and a statement of income and
retained earnings for such quarter, setting forth (in the case of financial
statements furnished for calendar quarters subsequent to the first full
calendar year of the Borrower) in comparative form the corresponding
figures for the corresponding quarter of the preceding fiscal year.
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18.7 Financial statements certificate
Furnish, or cause to be furnished, to the Agent together with the financial
statements required pursuant to Clause 18.5 and Clause 18.6 a certificate
of a Responsible Officer of the Borrower stating (a) that the attached
financial statements have been prepared in accordance with GAAP and
accurately reflect the financial condition of the Borrower, (b) that the
Borrower is in compliance with Clause 18.10 and (c) all information and
calculations necessary for determining compliance by the Borrower with
Clause 19.1 as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be.
18.8 Corporate existence, Conduct of business
(a) Except as otherwise permitted by the Finance Documents, preserve,
renew and keep in full force and effect its corporate existence; and
(b) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its
business.
18.9 Notification of default
Notify the Agent of any:
(a) Default (and the steps, if any, being taken to remedy it) promptly
upon becoming aware of its occurrence, and
(b) development or event which has had, or which the Borrower in its good
faith judgement believes will have, a Material Adverse Effect.
18.10 Proceeds
Loan all of the proceeds from the Loans hereunder, and the proceeds of any
Pari Passu Indebtedness, to Bunge Funding, Inc. pursuant to the Series
2003-1 VFC Certificate.
18.11 Notification of amounts due
On each day after the Loans (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Finance Documents have
become due and payable (whether at the stated maturity, by acceleration, or
otherwise), give the notice contemplated by Section 2.06 of the Series
2003-1 Supplement, such notice to specify an amount equal to the lesser of
(i) the funds on deposit in the Series 2003-1 Collection Subaccount on such
day and (ii) the outstanding principal amount of the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and the
other Finance Documents.
18.12 Notification of Parent Rating
Promptly notify the Agent of any change in a Rating of the Parent or any
other relevant entity or trust referred to in Schedule 1 (Applicable
Margin).
18.13 Direction of Trustee
At the direction of the Agent or the Majority Lenders, exercise its right
under Section 8.14 of the Pooling Agreement to direct the trustee under the
Bunge Master Trust when the Lenders are affected by the conduct of any
proceeding or the exercise of any right conferred on the trustee under the
Bunge Master Trust.
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18.14 Submission of Daily Report
On each Utilisation Date on which a Loan is made, cause the Servicer to
submit a Daily Report to the Borrower and to the trustee under the Bunge
Master Trust no later than 12:00 (Noon), New York City time, setting forth
the information required by Section 4.01 of the Servicing Agreement.
19. NEGATIVE COVENANTS
The covenants in this Clause 19 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
The Borrower will not:
19.1 Series 2003-1 Allocated Loan Amount
Permit the Series 2003-1 Allocated Loan Amount to be less than the result
of:
(a) adding (i) the aggregate principal amount of and accrued interest on
the Loans outstanding hereunder and (ii) all other Pari Passu
Indebtedness outstanding (including any net payment obligations of the
Borrower related to Hedge Agreements, but excluding all Hedge
Termination Amounts due and owing by the Borrower) calculated by
converting any Master Trust Approved Currency other than dollars into
dollars at the Rate of Exchange; and deducting therefrom; and
(b) the aggregate amount of any Master Trust Approved Currency (including
any net receipts from Hedge Agreements, but excluding any Hedge
Termination Amounts received by the Borrower) on deposit in any
Borrower Account or the Series 2003-1 Collection Subaccount (or any
sub-subaccount thereof), calculated by converting any Master Trust
Approved Currencies other than dollars into dollars at the Rate of
Exchange, that are unconditionally available to repay the aggregate
amount of the Indebtedness and interest accrued thereon described in
the foregoing sub-clauses (a)(i) and (ii) of this sub-clause 19.1 (or
with respect to the Series 2003-1 Collection Subaccount (or any
sub-subaccount thereof), unconditionally available to repay the
principal and accrued interest on the Series 2003-1 VFC Certificate
which Master Trust Approved Currency amounts are in turn
unconditionally available to make such payments on the principal of
and accrued interest on the Loans and other Pari Passu Indebtedness in
the foregoing sub-clauses (a)(i) and (ii) of this sub-clause 19.1.
19.2 Negative Pledge
Contract for, create, incur, assume or suffer to exist any Lien, security
interest, charge or other encumbrance of any nature upon any of its
property or assets, including without limitation the Series 2003-1 VFC
Certificate, whether now owned or hereafter required (except for any Lien
arising by virtue of the maintenance of a credit balance on any Dutch bank
account by the Borrower pursuant to the general terms and conditions of the
bank with which such account is held).
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19.3 Indebtedness
Create, incur, assume or suffer to exist any Indebtedness, whether current
or funded, or any other liability except Permitted Indebtedness.
19.4 Loans and Guarantees
Except as contemplated by the Finance Documents or the Transaction
Documents, make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
assets, stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any other Person.
19.5 Merger
Enter into any amalgamation, merger, consolidation, joint venture,
syndicate or other form of combination with any Person, or sell, lease or
transfer or otherwise dispose of any of its assets or receivables or
purchase any asset.
19.6 Other Agreements
(a) Enter into or be a party to any agreement or instrument other than the
Finance Documents, the Transaction Documents to which it is a party,
and any agreement or instrument related to the incurrence of Pari
Passu Indebtedness; or
(b) Enter into or be a party to any agreement or instrument related to the
incurrence of Pari Passu Indebtedness that does not include a
provision substantially to the effect set forth in Clause 20.
19.7 Expenditure
Except as permitted by any Transaction Document, make any expenditure (by
long-term or operating lease or otherwise), excluding those relating to
foreclosure, for capital assets (both realty and personalty), unless such
expenditure is approved in writing by the Agent.
19.8 Restriction of business
Engage in any business or enterprise or enter into any material transaction
other than as contemplated by the Finance Documents and the Transaction
Documents.
19.9 Constitutional Documents
Amend its constitutional documents without the prior written consent of the
Agent.
19.10 Amendments to Transaction Documents
Amend, supplement, waive or modify, or consent to any amendment,
supplement, waiver or modification of, any Transaction Document except in
accordance with the provisions of this sub-clause 19.10. Any provision of
any Transaction Document may be amended, waived, supplemented, restated,
discharged or terminated without the consent of the Agent or the Lenders;
provided such amendment, waiver, supplement or restatement does not:
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(a) render the Series 2003-1 VFC Certificate subordinate in payment to any
other Series under the Bunge Master Trust;
(b) reduce in any manner the amount of, or delay the timing of,
distributions which are required to be made on the Series 2003-1 VFC
Certificate; or
(c) change the definition of or the manner of calculating the interest of
the Borrower; and
provided further that the Agent shall have received prior notice thereof
together with copies of any documentation related thereto. Any amendment,
waiver, supplement or restatement of a provision of a Transaction Document
(including any exhibit thereto) of the type described in sub-clauses (a),
(b) or (c) above shall require the written consent of the Agent acting at
the direction of the Majority Lenders.
19.11 Powers of Attorney
Grant any powers of attorney to any Person for any purposes except where
permitted by the Finance Documents.
19.12 Increase in Series 2003-1 Investment Amount
Increase the Series 2003-1 Invested Amount during any Payment Period.
19.13 Servicer
Take any action which would permit the Servicer to have the right to refuse
to perform any of its respective obligations under the Servicing Agreement.
19.14 Hedge Agreements
Enter into any Hedge Agreement other than Hedge Agreements entered into in
the ordinary course of business to hedge or mitigate risks directly arising
from its borrowings under this Agreement or other Pari Passu Indebtedness.
20. COVENANT OF AGENT AND LENDERS AND PATRIOT ACT NOTICE
20.1 No Bankruptcy Petition Against the Borrower; Liability of the Borrower
(a) Each of the Agent and the Lenders hereby covenants and agrees that,
prior to the date which is one year and one day after the payment in
full of all Loans and other amounts payable hereunder and all Pari
Passu Indebtedness, it will not institute against, or join with or
assist any other Person in instituting against, the Borrower, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any applicable insolvency
laws. This Clause 20 shall survive the termination of this Agreement.
(b) Notwithstanding any other provision hereof or of any other Finance
Documents, the sole remedy of the Agent, any Lender or any other
Person against the Borrower in respect of any obligation, covenant,
representation, warranty or agreement of the Borrower under or related
to this Agreement or any other Finance Document shall be against the
assets of the Borrower. Neither the Agent, nor any Lender nor any
other Person shall have any claim
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against the Borrower to the extent that such assets are insufficient
to meet such obligations, covenant, representation, warranty or
agreement (the difference being referred to herein as a "shortfall")
and all claims in respect of the shortfall shall be extinguished;
provided, however, that the provisions of this Clause 20 apply solely
to the obligations of the Borrower and shall not extinguish such
shortfall or otherwise restrict such Person's rights or remedies
against the Parent.
20.2 PATRIOT act Notice
Each Finance Party hereby notifies the Borrower that, pursuant to the
requirements of the PATRIOT Act, it may be required to obtain, verify and
record information that identifies the Borrower, which information includes
the name and address of the Borrower and other information that will allow
such Finance Party to identify the Borrower in accordance with the PATRIOT
Act.
In this Clause "PATRIOT Act" shall mean the USA PATRIOT Act, Title III of
Pub. L. 107-56, signed into law 26 October 2001.
21. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
21.1 Non-payment
any Obligor shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; or any Obligor shall fail to pay any
interest on any Loan or any other amount payable hereunder or under any
other Finance Document, within five Business Days after any such interest
or other amount becomes due in accordance with the terms hereof; or
21.2 Misrepresentation
any representation or warranty made or deemed made by the Borrower or the
Parent herein or in any other Finance Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other
Finance Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
21.3 Other Obligations
(a) the Borrower shall default in the observance or performance of any
agreement contained in Clause 19 of this Agreement or the Parent shall
default in the observance or performance of any agreement contained in
Sections 8.1(c), 8.1(g)(i), 8.1(h), 8.1(j) or 8.2 of the Parent
Guarantee; or
(b) the Borrower or the Parent shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Finance Document (other than as provided in sub-clause 21.3(a)
of this Clause), and such default shall continue unremedied for a
period of 30 days after the earlier of (i) the date on which a
Responsible Officer of the Borrower or the Parent
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has knowledge of such default and (ii) the Borrower or the Parent
receives written notice thereof from the Agent or the Majority
Lenders; or
21.4 Cross default
the Borrower, BAFC, BLFC or any other Investor Certificateholder that is an
Affiliate of the Parent shall
(a) default in making any payment of any principal of any Indebtedness
(including any Guarantee Obligation, but excluding the Loans) or of
any material amounts under any other agreement to which it is a party
on the scheduled or original due date with respect thereto; or
(b) default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or
(c) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its
stated maturity or (in the case of any such Indebtedness constituting
a Guarantee Obligation) to become payable; provided that:
(i) a default, event or condition described in clause (a), (b) or (c)
of this sub-clause 21.4 shall not at any time constitute an Event
of Default unless, at such time, one or more defaults, events or
conditions of the type described in Clauses (a), (b) and (c) of
this sub-clause 21.4 shall have occurred and be continuing with
respect to Indebtedness or other amounts the outstanding
principal amount of which exceeds in the aggregate $25,000,000;
provided further that the proviso specified in sub-clause
21.4(c)(i) shall be deemed inapplicable at any time that any
Purchased Loan shall constitute a Defaulted Loan or shall have
constituted a Delinquent Loan for a period of more than three (3)
successive Business Days; and
(ii) sub-clause 21.4(c) shall be deemed inapplicable if the occurrence
of such event or condition referred to above gives rise to an
obligation to make a mandatory prepayment without further demand
of any person on terms agreed prior to the occurrence of such
event or condition; or
21.5 Group default
any member of the Group (other than the Borrower) shall
(a) default in making any payment of any principal of any Indebtedness
(including any Guarantee Obligation, but excluding the Loans) or of
any material
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amounts under any other agreement to which it is a party on the
scheduled or original due date with respect thereto; or
(b) default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or
(c) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its
stated maturity or (in the case of any such Indebtedness constituting
a Guarantee Obligation) to become payable; provided that:
(i) a default, event or condition described in Clauses (a), (b) or
(c) of this sub-clause 21.5 shall not at any time constitute an
Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in Clauses (a), (b)
and (c) of this sub-clause 21.5 shall have occurred and be
continuing with respect to Indebtedness or other amounts the
outstanding principal amount of which exceeds in the aggregate
$50,000,000; and
(ii) this sub-clause 21.5(c) shall be deemed inapplicable if the
occurrence of such event or condition referred to above gives
rise to an obligation to make a mandatory prepayment without
further demand of any person on terms agreed prior to the
occurrence of such event or condition; or
21.6 Insolvency Proceedings
(a) any member of the Group or Bunge Funding Inc. shall commence any case,
proceedings or other action (i) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganisation or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganisation, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (ii) seeking appointment of
a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or any member
of the Group or Bunge Funding Inc. shall make a general assignment for
the benefit of its creditors; or
(b) there shall be commenced against any member of the Group or Bunge
Funding Inc. any case, proceeding or other action of a nature referred
to in clause (a) above that (i) results in the entry of an order for
relief or any such adjudication or appointment or (ii) remains
undismissed, undischarged or unbonded for a period of 60 days; or
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(c) there shall be commenced against any member of the Group or Bunge
Funding Inc. any case, proceeding or other action seeking issuance of
a warrant of expropriation, attachment, sequestration, distress,
execution, distraint or similar process against all or any substantial
part of its assets that results in the entry of an order for any such
relief that shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or
(d) any member of the Group or Bunge Funding, Inc. shall take any action
in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (a), (b), or (c)
above; or
(e) any member of the Group or Bunge Funding, Inc. shall generally not, or
shall be unable to, or shall admit in writing its inability to pay its
debts as they become due; or
21.7 Final Judgement against Group
one or more final judgements or orders shall be entered against any member
of the Group (other than the Borrower) involving in the aggregate a
liability (not paid or fully covered by insurance as to which the relevant
insurance company has acknowledged coverage) of $50,000,000 or more, and
all such final judgements or orders shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry
thereof; or
21.8 Final Judgement against Borrower
one or more final judgements or orders shall be entered against the
Borrower involving in the aggregate a liability (not paid or fully covered
by insurance as to which the relevant insurance company has acknowledged
coverage) of $50,000 or more, and all such final judgements or orders shall
not have been vacated, discharged, stayed or bonded pending appeal within
30 days from the entry thereof; or
21.9 Unlawfulness
it is or becomes unlawful for an Obligor to perform any of its obligations
under the Finance Documents; or
21.10 Repudiation
an Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document; or
21.11 Effectiveness
any of the Finance Documents or the Transaction Documents shall cease, for
any reason, to be in full force and effect or the Borrower or the Parent
shall so assert in writing,
then, and in any such event, the Agent may, and shall if so directed by the
Majority Lenders, by notice to the Borrower:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
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(b) declare that all or part of the Loans, together with accrued interest,
and all other amounts accrued or outstanding under the Finance
Documents be immediately due and payable, whereupon they shall become
immediately due and payable; and/or
(c) with the consent of the Majority Lenders, the Agent may, or upon the
request of the Majority Lenders, the Agent shall, by notice to the
Borrower, instruct the Borrower to, and in such event the Borrower
shall, instruct the trustee of the Bunge Master Trust to declare the
principal and accrued interest in respect of the Purchased Loans to be
due and payable. Except as expressly provided above in this Clause,
presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower,
provided that if an Event of Default under Clause 21.6 (Insolvency
Proceedings) shall occur in respect of the Group or Bunge Funding, Inc.,
then without notice or any other act by the Agent or any other person, the
Loans, interest thereon and all other amounts owed under the Finance
Documents shall become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are expressly waived.
22. USE OF WEBSITES
22.1
(a) The Borrower may satisfy its obligation to deliver any public
information to the Lenders by posting this information onto an
electronic website designated by the Borrower and the Agent (the
"Designated Website") by notifying the Agent (i) of the address of the
website together with any relevant password specifications and (ii)
that such information has been posted on the website.
(b) In any event the Borrower shall supply the Agent with one copy in
paper form of any information which is posted onto the website.
22.2 The Agent shall supply each Lender with the address of and any relevant
password specifications for the Designated Website following designation of
that website by the Borrower and the Agent.
22.3 The Borrower shall promptly upon becoming aware of its occurrence notify
the Agent if:
(a) the Designated Website cannot be accessed due to technical failure;
(b) the password specifications for the Designated Website change;
(c) any new information which is required to be provided under this
Agreement is posted onto the Designated Website;
(d) any existing information which has been provided under this Agreement
and posted onto the Designated Website is amended; or
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(e) the Borrower becomes aware that the Designated Website or any
information posted onto the Designated Website is or has been infected
by any electronic virus or similar software.
If the Borrower notifies the Agent under paragraph 22.3(a) or paragraph
22.3(e) above, all information to be provided by the Borrower under this
Agreement after the date of that notice shall be supplied in paper form
unless and until the Agent is satisfied that the circumstances giving rise
to the notification are no longer continuing.
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CHANGES TO PARTIES
23. CHANGES TO THE LENDERS
23.1 Assignments and transfers by the Lenders
Subject to this Clause 23, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution or to a trust, fund or other
entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial
assets (the "New Lender").
23.2 Conditions of assignment or transfer
(a) The consent of the Borrower (not to be unreasonably withheld or
delayed) is required for an assignment or transfer by a Lender, unless
the assignment or transfer is to another Lender or an Affiliate of a
Lender, or an Event of Default has occurred and has not been waived.
(b) The Borrower will be deemed to have given its consent five Business
Days after the Lender has requested it unless consent is expressly
refused by the Borrower within that time.
(c) The consent of the Borrower to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an
increase to the Mandatory Cost.
(d) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same
obligations to the other Finance Parties as it would have been under
if it was an Original Lender.
(e) A transfer will only be effective if the procedure set out in Clause
23.5 (Procedure for transfer) is complied with.
(f) If:
(i) a Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Borrower would be obliged to make
a payment to the New Lender or Lender acting through its new
Facility Office under Clause 12 (Tax gross-up and indemnities) or
Clause 13 (Increased costs),
then the New Lender or Lender acting through its new Facility Office
is only entitled to receive payment under those Clauses to the same
extent as the
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Existing Lender or Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not
occurred.
(g) An assignment or transfer of part (but not all) of a Lender's
Commitment and Loans must (unless such transfer or assignment is to an
Existing Lender or an an Event of Default has occurred and is
continuing) be in a minimum aggregate amount of $5 million.
23.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of $1,500.
23.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
(i) the legality, validity, effectiveness, adequacy or enforceability
of the Finance Documents or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its obligations
under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of any member of the Group and its related entities in
connection with its participation in this Agreement and has not
relied exclusively on any information provided to it by the
Existing Lender in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities whilst
any amount is or may be outstanding under the Finance Documents
or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 23; or
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(ii) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
23.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 23.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender
and the New Lender. The Agent shall, as soon as reasonably practicable
after receipt by it of a duly completed Transfer Certificate appearing
on its face to comply with the terms of this Agreement and delivered
in accordance with the terms of this Agreement, execute that Transfer
Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and obligations
under the Finance Documents each of the Obligors and the Existing
Lender shall be released from further obligations towards one
another under the Finance Documents and their respective rights
against one another under the Finance Documents shall be
cancelled (being the "Discharged Rights and Obligations");
(ii) each of the Obligors and the New Lender shall assume obligations
towards one another and/or acquire rights against one another
which differ from the Discharged Rights and Obligations only
insofar as that Obligor and the New Lender have assumed and/or
acquired the same in place of that Obligor and the Existing
Lender;
(iii)the Agent, the Arrangers, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New
Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that
extent the Agent, the Arrangers and the Existing Lender shall
each be released from further obligations to each other under the
Finance Documents; and
(iv) the New Lender shall become a Party as a "Lender".
23.6 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement; or
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(b) with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation, any securitisation, or any hedge,
in relation to, or any other transaction under which payments are to
be made by reference to, this Agreement or any Obligor;
any information about the Borrower, the Group and the Finance Documents as
that Lender shall consider appropriate if, in relation to paragraphs (a)
and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking. In addition, a Lender may make
any disclosure of information required by any applicable law or regulation.
24. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
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THE FINANCE PARTIES
25. ROLE OF THE AGENT AND THE ARRANGERS
25.1 Appointment of the Agent
(a) Each other Finance Party appoints the Agent to act as its agent under
and in connection with the Finance Documents.
(b) Each other Finance Party authorises the Agent to exercise the rights,
powers, authorities and discretions specifically given to the Agent
under or in connection with the Finance Documents together with any
other incidental rights, powers, authorities and discretions.
25.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a copy of
any document which is delivered to the Agent for that Party by any
other Party.
(b) Except where a Finance Document specifically provides otherwise, the
Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.
(c) If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the other Finance Parties.
(d) If the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the
Agent or the Arrangers) under this Agreement it shall promptly notify
the other Finance Parties.
(e) The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
25.3 Role of the Arrangers
Except as specifically provided in the Finance Documents, the Arrangers
have no obligations of any kind to any other Party under or in connection
with any Finance Document.
25.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the Arrangers as a
trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arrangers shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for
its own account.
25.5 Business with the Group
The Agent and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
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25.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may reasonably
be assumed to be within his knowledge or within his power to
verify.
(b) The Agent may assume (unless it has received notice to the contrary in
its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 21.1 (Non-payment)); and
(ii) any right, power, authority or discretion vested in any Party or
the Majority Lenders has not been exercised.
(c) The Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through its
personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor any Arranger is obliged to do or omit
to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a
fiduciary duty or duty of confidentiality.
25.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the Agent
shall (i) exercise any right, power, authority or discretion vested in
it as Agent in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders,
refrain from exercising any right, power, authority or discretion
vested in it as Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in
accordance with an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Finance Parties.
(c) The Agent may refrain from acting in accordance with the instructions
of the Majority Lenders (or, if appropriate, the Lenders) until it has
received such security as it may require for any cost, loss or
liability (together with any associated VAT) which it may incur in
complying with the instructions.
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(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document.
25.8 Responsibility for documentation
Neither the Agent nor any Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, an
Arranger, an Obligor or any other Person given in or in connection
with any Finance Document or the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in anticipation
of or in connection with any Finance Document.
25.9 Exclusion of liability
(a) Without limiting paragraph (b) below, the Agent will not be liable for
any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party (other than the Agent) may take any proceedings against any
officer, employee or agent of the Agent in respect of any claim it
might have against the Agent or in respect of any act or omission of
any kind by that officer, employee or agent in relation to any Finance
Document and any officer, employee or agent of the Agent may rely on
this Clause subject to Clause 1.4 (Third Party Rights) and the
provisions of the Third Parties Act.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the Finance Documents to be paid by the Agent if the Agent has taken
all necessary steps as soon as reasonably practicable to comply with
the regulations or operating procedures of any recognised clearing or
settlement system used by the Agent for that purpose.
25.10 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) in acting as Agent under the Finance
Documents (unless the Agent has been reimbursed by an Obligor pursuant to a
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Finance Document, and provided that such Lender indemnification shall not
affect any Obligor's reimbursement obligations to such Lender under any
Finance Document).
25.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting through
an office as successor by giving notice to the other Finance Parties
and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the other
Finance Parties and the Borrower, in which case the Majority Lenders
(after consultation with the Borrower) may appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after consultation with the
Borrower) may appoint a successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance
as the successor Agent may reasonably request for the purposes of
performing its functions as Agent under the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 25.
Its successor and each of the other Parties shall have the same rights
and obligations amongst themselves as they would have had if such
successor had been an original Party.
(g) After consultation with the Borrower, the Majority Lenders may, by
notice to the Agent, require it to resign in accordance with paragraph
(b) above. In this event, the Agent shall resign in accordance with
paragraph (b) above.
25.12 Confidentiality
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be treated
as a separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of the
Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of it.
25.13 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less than five Business Days prior notice from that
Lender to the contrary in accordance with the terms of this Agreement.
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(b) Each Lender shall supply the Agent with any information required by
the Agent in order to calculate the Mandatory Cost in accordance with
Schedule Schedule 5 (Mandatory Cost Formula).
25.14 Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and the Arrangers that it has been, and
will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any Party
or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or
any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance
Document.
25.15 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of
which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Borrower) appoint another Lender or an Affiliate of a
Lender to replace that Reference Bank.
25.16 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the
Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent would
otherwise be obliged to make under the Finance Documents and apply the
amount deducted in or towards satisfaction of the amount owed. For the
purposes of the Finance Documents that Party shall be regarded as having
received any amount so deducted.
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26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and manner
of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
27. SHARING AMONG THE FINANCE PARTIES
27.1 Payments to Finance Parties
If a Finance Party (a "Recovering Finance Party") receives or recovers any
amount from an Obligor other than in accordance with Clause 28 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Finance Party shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in excess
of the amount the Recovering Finance Party would have been paid had
the receipt or recovery been received or made by the Agent and
distributed in accordance with Clause 28 (Payment mechanics), without
taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which the
Agent determines may be retained by the Recovering Finance Party as
its share of any payment to be made, in accordance with Clause 28.5
(Partial payments).
27.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
Borrower and distribute it between the Finance Parties (other than the
Recovering Finance Party) in accordance with Clause 28.5 (Partial
payments).
27.3 Recovering Finance Party's rights
(a) On a distribution by the Agent under Clause 27.2 (Redistribution of
payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Finance Party is not able to
rely on its rights under paragraph (a) above, the Borrower shall be
liable to the Recovering Finance Party for a debt equal to the Sharing
Payment which is immediately due and payable.
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27.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant Sharing
Payment pursuant to Clause 27.2 (Redistribution of payments) shall,
upon request of the Agent, pay to the Agent for account of that
Recovering Finance Party an amount equal to the appropriate part of
its share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Finance Party for its
proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay); and
(b) that Recovering Finance Party's rights of subrogation in respect of
any reimbursement shall be cancelled and the Borrower will be liable
to the reimbursing Finance Party for the amount so reimbursed.
27.5 Exceptions
(a) This Clause 27 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the Borrower.
(b) A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified that other Finance Party of the legal or arbitration
proceedings; and
(ii) that other Finance Party had an opportunity to participate in
those legal or arbitration proceedings but did not do so as soon
as reasonably practicable having received notice and did not take
separate legal or arbitration proceedings.
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ADMINISTRATION
28. PAYMENT MECHANICS
28.1 Payments to the Agent
On each date on which the Borrower or a Lender is required to make a
payment under a Finance Document, the Borrower or Lender shall make the
same available to the Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement of
transactions in dollars in the place of payment.
28.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 28.3 (Distributions to an Obligor), Clause
28.4 (Clawback) and Clause 25.16 (Deduction from amounts payable by the
Agent) be made available by the Agent as soon as practicable after receipt
to the Party entitled to receive payment in accordance with this Agreement
(in the case of a Lender, for the account of its Facility Office), to such
account as that Party may notify to the Agent by not less than five
Business Days' notice.
28.3 Distributions to the Borrower
The Agent may (with the consent of the Borrower or in accordance with
Clause 29 (Set-off)) apply any amount received by it for the Borrower in or
towards payment (on the date and in the currency and funds of receipt) of
any amount due from the Borrower under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
28.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that other
Party (or to enter into or perform any related exchange contract)
until it has been able to establish to its satisfaction that it has
actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the
Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to the
Agent together with interest on that amount from the date of payment
to the date of receipt by the Agent, calculated by the Agent to
reflect its cost of funds.
28.5 Partial payments
(a) If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by the Borrower under the Finance
Documents, the Agent shall apply that payment towards the obligations
of the Borrower under the Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Agent and the Arrangers under the Finance
Documents;
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(ii) secondly, in or towards payment pro rata of any accrued interest,
fee or commission due but unpaid under this Agreement;
(iii)thirdly, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by
the Borrower.
28.6 No set-off by the Borrower
All payments to be made by the Borrower under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
28.7 Business Days
(a) Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar month
(if there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or
Unpaid Sum under this Agreement interest is payable on the principal
or Unpaid Sum at the rate payable on the original due date.
28.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, dollars is the currency of
account and payment for any sum due from the Borrower under any
Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when
that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than dollars
shall be paid in that other currency.
29. SET-OFF
A Finance Party may set off any matured obligation due from the Borrower
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against
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any matured obligation owed by that Finance Party to the Borrower,
regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Finance
Party may convert either obligation at a market rate of exchange in its
usual course of business for the purpose of the set-off.
30. NOTICES
30.1 Communications in writing
Except as otherwise provided in Clause 22 (Use of Websites), any
communication to be made under or in connection with the Finance Documents
shall be made in writing and, unless otherwise stated, may be made by fax
or letter.
30.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name below;
(b) in the case of each Lender, that notified in writing to the Agent on
or prior to the date on which it becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address, fax number, or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five Business
Days' notice.
30.3 Delivery
(a) Except as otherwise provided in Clause 22 (Use of Websites), any
communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be
effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address;
and, if a particular department or officer is specified as part of its
address details provided under Clause 30.2 (Addresses), if addressed
to that department or officer.
(b) Except as otherwise provided in Clause 22 (Use of Websites), any
communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it
is expressly marked for the attention of the department or officer
identified with the Agent's signature below (or any substitute
department or officer as the Agent shall specify for this purpose).
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(c) All notices from or to the Borrower shall be sent through the Agent.
30.4 Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 30.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the other
Parties.
30.5 Electronic communication
(a) Any communication to be made between the Agent and a Lender under or
in connection with the Finance Documents may be made by electronic
mail or other electronic means, if the Agent and the relevant Lender:
(i) agree that, unless and until notified to the contrary, this is to
be an accepted form of communication;
(ii) notify each other in writing of their electronic mail address
and/or any other information required to enable the sending and
receipt of information by that means; and
(iii) notify each other of any change to their address or any other
such information supplied by them.
(b) Any electronic communication made between the Agent and a Lender will
be effective only when actually received in readable form and in the
case of any electronic communication made by a Lender to the Agent
only if it is addressed in such a manner as the Agent shall specify
for this purpose.
30.6 English language
(a) Any notice given under or in connection with any Finance Document must
be in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent, accompanied
by a certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional,
statutory or other official document.
31. CALCULATIONS AND CERTIFICATES
31.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
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31.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
31.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the London interbank market differs, in accordance with that market
practice.
32. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by law.
34. AMENDMENTS AND WAIVERS
34.1 Required consents
(a) Subject to Clause 34.2 (Exceptions) any term of this Agreement may be
amended or waived only with the consent of the Majority Lenders and
the Borrower and any such amendment or waiver will be binding on all
Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.
34.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount under this
Agreement;
(iii) a reduction in the Applicable Margin or a reduction in the
amount of any payment of principal, interest, fees or commission
payable;
(iv) an increase in or an extension of any Commitment;
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(v) a change to the Borrower;
(vi) any provision which expressly requires the consent of all the
Lenders;
(vii) Clause 2.2 (Finance Parties' rights and obligations), Clause
19.5 (Merger), Clause 23 (Changes to the Lenders) or this Clause
34; or
(viii) Any release of the Guaranty or change to the Guarantor
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of
the Agent or the Arrangers may not be effected without the consent of
the Agent or the Arrangers.
35. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
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GOVERNING LAW AND ENFORCEMENT
36. GOVERNING LAW
This Agreement is governed by English law.
37. ENFORCEMENT
37.1 Jurisdiction
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement (including
a dispute regarding the existence, validity or termination of this
Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will
argue to the contrary.
(c) This Clause 37.1 is for the benefit of the Finance Parties only. As a
result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of jurisdictions.
37.2 Service of process
Without prejudice to any other mode of service allowed under any relevant
law, the Borrower:
(a) irrevocably appoints Law Debenture Corporate Services Limited (Fifth
Floor, 100 Wood Street, London EC2V 7EX) as its agent for service of
process in relation to any proceedings before the English courts in
connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the Borrower of the
process will not invalidate the proceedings concerned.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
APPLICABLE MARGIN
1. The Applicable Margin is 0.60 per cent. per annum unless:
(a) an Event of Default has occurred and is continuing and/or the certificate
required to be delivered under Clause 18.7 has not been delivered, in which
case the Applicable Margin shall be 0.85 per cent. per annum; or
(b) Moody's are publishing a Rating in respect of the Parent (or, if no Moody's
Rating is assigned to the Parent, in respect of the Rated Investor
Certificateholder) (the "Moody's Rating") and/or S&P are publishing a
Rating in respect of the Parent (or, if no S&P Rating is assigned to the
Parent, in respect of the Rated Investor Certificateholder) (the "S&P
Rating"), in which case the Applicable Margin is the percentage rate per
annum that corresponds to that rating, as in effect from time to time as
set out in the following table:
-------------------------- ------------------------- ----------------------
S&P Rating Moody's Rating Applicable Margin
(% per annum)
-------------------------- ------------------------- ----------------------
BBB+ or above Baa1 or above 0.425
-------------------------- ------------------------- ----------------------
BBB Baa2 0.55
-------------------------- ------------------------- ----------------------
BBB- Baa3 0.65
-------------------------- ------------------------- ----------------------
BB+ or below Ba1 or below 0.85
-------------------------- ------------------------- ----------------------
provided that if (i) paragraph (a) above applies, and/or (ii) neither the
Moody's Rating nor the S&P Rating is in respect of the Parent, the
Applicable Margin shall be 0.85 per cent. per annum.
2. If the applicable Moody's Rating and the applicable S&P Rating appear on
different lines of the table at Clause 1 of this Schedule, the Applicable
Margin will be determined as follows:
(a) if there is a split rating of one notch, the Applicable Margin shall
be the average of the Applicable Margin of the two notches;
(b) if there is a split rating of two notches, the Applicable Margin shall
be the Applicable Margin for the intermediate notch;
(c) if only one of the Rating Agencies provides a Rating then the
Applicable Margin shall be calculated at 0.85 per cent. per annum.
3. Any change to the Applicable Margin shall take effect on the first Business
Day after the announcement of the change in rating by the relevant Rating
Agency.
4. If the long term unsecured debt ratings service provided by S&P or Moody's
ceases to be available, the Agent can, after consultation with the Borrower
and the Lenders,
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specify an alternative provider of an equivalent service for the purposes
of calculating the Applicable Margin.
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SCHEDULE 2
THE ORIGINAL LENDERS
Name of Original Lender Commitment
$mm
BNP Paribas 37.5
HSBC Bank PLC 37.5
Banco Bilbao Vizcaya Argentaria S.A. 29
The Bank of Tokyo-Mitsubishi UFJ, Ltd. 29
Calyon New York Branch 14.5
Caisse Regional du Credit Agricole Mutuel 14.5
de Paris et d'Ile de France
Credit Suisse 29
DBS Bank Ltd. 29
Fortis Bank (Nederland) N.V. 29
HSH - Nordbank AG New York Branch 29
ING Bank N.V. 29
KBC Bank Nederland N.V. 29
Mizuho Corporate Bank Nederland N.V. 29
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. 29
(Rabobank International) London Branch
The Royal Bank of Scotland plc 29
Banco Santander Central Hispano, S.A. London Branch 29
SOCIETE GENERALE 29
Standard Chartered Bank 29
Commerzbank Aktiengesellschaft, London Branch 18
Intesa Bank Ireland plc 18
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Banca Monte Dei Paschi Di Siena S.p.A. 18
Frankfurt am Main Branch
Natixis 18
Sumitomo Mitsui Banking Corp., New York 18
TOTAL: 600
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SCHEDULE 3
CONDITIONS PRECEDENT
Conditions precedent to initial Utilisation
1. Obligors
(a) A copy of the constitutional documents of each Obligor or, in the case
of each Dutch Obligor, a copy of the articles of association
(statuten) and deed of incorporation (oprichtings akte) as well as an
extract (uittreksel) from the relevant Chamber of Commerce (Kamer van
Koophandel) of such Dutch Obligor(s).
(b) A copy of a resolution of the board of directors of each Obligor:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including, if
relevant, any Utilisation Request) to be signed and/or despatched
by it under or in connection with the Finance Documents to which
it is a party.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A copy of the articles of association (statuten) and deed of incorporation
(oprichtings akte) of each Dutch Obligor as well as an extract (uittreksel)
from the relevant Chamber of Commerce (Kamer van Koophandel) of such Dutch
Obligor(s).
(e) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above in relation to the Finance Documents and
such other evidence as may be required to ensure that the Finance Parties
are in compliance with the Wet Identificatie Financiele Dienstverlening.
(f) A certificate of each Obligor (signed by a Responsible Officer) confirming
that borrowing or guaranteeing, as appropriate, the Total Commitments would
not violate any borrowing or, guaranteeing limit set forth in any
Contractual Obligation or Requirement of Law binding on the respective
Obligor.
(g) A certificate of an authorised signatory of the Obligor certifying that
each copy document relating to it specified in this Schedule 3 is correct,
complete and in full force and effect as at a date no earlier than the date
of this Agreement.
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2. Legal opinions
(a) A legal opinion of Clifford Chance LLP legal advisers to the Arrangers
and the Agent, opining, notably to the validity under English law of
the obligations of the Borrower under this Agreement.
(b) A legal opinion of Clifford Chance LLP legal advisers to the Arrangers
and the Agent as to matters of Dutch law, opining notably as to (i)
the capacity of the Borrower to enter into and perform its obligations
under the Finance Documents, (ii) the recognition under Dutch law of
the validity of such obligations of the Borrower under this Agreement
and (iii) the recognition and enforcement in The Netherlands of any
judgement rendered against the Borrower pursuant to the jurisdiction
provisions of the Financing Documents.
(c) A legal opinion of Conyers Dill & Pearman as to matters of Bermuda
law, opining notably as to (i) the capacity of the Parent to enter
into and perform its obligations under the Parent Guarantee, (ii) the
recognition under Bermuda law of the validity of such obligations and
the choice of law expressed in the Parent Guarantee and (iii) the
recognition and enforcement in Bermuda of any judgement rendered
against the Parent pursuant to the jurisdiction provisions of the
Parent Guarantee.
(d) A legal opinion of Winston & Strawn as to matters of New York law,
opining notably as to the validity under New York law of the
obligations of the Parent under the Parent Guarantee.
(e) A legal opinion of Winston & Strawn opining notably as to the
enforceability of the Transaction Documents.
3. Other documents and evidence
(a) One signed original of the Parent Guarantee.
(b) Delivery of a copy of each of the Transaction Documents.
(c) Evidence that any process agent referred to in Clause 37.2 (Service of
process), has accepted its appointment.
(d) A certificate of the Parent confirming the prevalent Ratings in
respect of the Parent on the day of this Agreement.
(e) The latest annual consolidated audited and certified financial
statements of the Parent.
(f) Evidence that the fees, costs and expenses then due from the Borrower
pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have
been paid or will be paid by the first Utilisation Date.
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(g) A copy of any other document, authorisation, opinion or assurance
reasonably requested by the Agent.
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SCHEDULE 4
UTILISATION REQUEST
From: Bunge Finance Europe B.V. as Borrower
To: HSBC Bank plc as Agent
Dated:
Dear Sirs
We refer to the revolving facility agreement (the "Agreement") dated [o] and
made between, Bunge Finance Europe B.V., as Borrower, the Arrangers named
therein, the Agent and certain Lenders named therein.
1. This is a Utilisation Request. Terms defined in the Agreement have the same
meaning in this Utilisation Request unless given a different meaning in
this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business Day,
the next Business Day)
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
...............................
authorised signatory for
Bunge Finance Europe B.V.
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SCHEDULE 5
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions), (b) the
requirements of the European Central Bank, or (c) the requirements of the
Swiss Banking Code Commission and/ or the Swiss National Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans made
from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
E x 0.01
-------- per cent. per annum.
300
Where:
E is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 6 below and expressed in pounds per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Fees Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance
of deposits;
(b) "Fee Tariffs" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or
zero rated fee required pursuant to the Fees Rules but taking into
account any applicable discount rate);
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(c) "Tariff Base" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules; and
(d) "Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.
6. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Agent, the rate of charge payable by that Reference Bank to the
Financial Services Authority pursuant to the Fees Rules in respect of the
relevant financial year of the Financial Services Authority (calculated for
this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in
pounds per (pound)1,000,000 of the Tariff Base of that Reference Bank.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on or prior
to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
8. The rates of charge of each Reference Bank for the purpose of E above shall
be determined by the Agent based upon the information supplied to it
pursuant to paragraphs 6 and 7 above.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by any
Lender or Reference Bank pursuant to paragraphs 3, 6 and 7 above is true
and correct in all respects.
10. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 6 and 7 above.
11. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
12. The Agent may from time to time, after consultation with the Borrower and
the Lenders, determine and notify to all Parties any amendments which are
required to be
- 75 -
made to this Schedule in order to comply with any change in law, regulation
or any requirements from time to time imposed by the Bank of England, the
Financial Services Authority, the European Central Bank, the Swiss Banking
Code Commission and/ or the Swiss National Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all Parties.
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SCHEDULE 6
FORM OF TRANSFER CERTIFICATE
To: HSBC Bank plc as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the
"New Lender")
Dated:
We refer to the revolving facility agreement (the "Agreement") dated [o] between
Bunge Finance Europe B.V., as Borrower, the Arrangers named therein, the Agent
and certain Lenders named therein.
1. This is a Transfer Certificate. Terms defined in the Agreement have the
same meaning in this Transfer Certificate unless given a different meaning
in this Transfer Certificate.
2. We refer to Clause 23.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender's Commitment, rights and obligations referred to in the
Schedule in accordance with Clause 23.5 (Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 30.2 (Addresses)
are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 23.4 (Limitation of
responsibility of Existing Lenders).
4. The New Lender confirms on the date on which it becomes a party to this
Agreement that it is a PMP.
5. This Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on a
single copy of this Transfer Certificate.
6. This Transfer Certificate is governed by English law.
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THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments.]
[Existing Lender] [New Lender]
By: By
This Transfer Certificate is accepted by the Agent and the Transfer Date
is confirmed as [ ].
HSBC Bank plc
By:
- 78 -
SCHEDULE 7
TIMETABLES
Loans in dollars
Delivery of a duly completed Utilisation Request U-3
(Clause 5.1 (Delivery of a Utilisation Request)
10.00 am
Agent notifies the Lenders of the Loan in U-3
accordance with Clause 5.4 (Lenders' participation)
3.00 pm
LIBOR Quotation Day as of
11:00 a.m. London time
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
- 79 -
SCHEDULE 8
FORM OF CONFIDENTIALITY UNDERTAKING
[Letterhead of Lender]
To: [o]
Re: The Facility
- ---------------------------------------------------
Borrower: BUNGE FINANCE EUROPE B.V.
Amount: [o]
Agent: HSBC BANK plc
- ---------------------------------------------------
Dear Sirs
We understand that you are considering participating in the Facility. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake:
(a) to keep the Confidential Information confidential and not to disclose
it to anyone except as provided for by paragraph 2 below and to ensure
that the Confidential Information is protected with security measures
and a degree of care that would apply to your own confidential
information;
(b) to keep confidential and not disclose to anyone the fact that the
Confidential Information has been made available or that discussions
or negotiations are taking place or have taken place between us in
connection with the Facility;
(c) to use the Confidential Information only for the Permitted Purpose;
(d) to use all reasonable endeavours to ensure that any person to whom you
pass any Confidential Information (unless disclosed under paragraph
2(b) below) acknowledges and complies with the provisions of this
letter as if that person were also a party to it; and
(e) not to make enquiries of any member of the Group or any of their
officers, directors, employees or professional advisers relating
directly or indirectly to the Facility.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
(a) to members of the Participant Group and their officers, directors,
employees and professional advisers to the extent necessary for the
Permitted Purpose and to any auditors of members of the Participant
Group;
(b) (i) where requested or required by any court of competent jurisdiction
or any competent judicial, governmental, supervisory or regulatory
body, (ii) where required by the rules of any stock exchange on which
the shares or other
- 80 -
securities of any member of the Participant Group are listed or (iii)
where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Participant Group;
or
(c) with the prior written consent of us and Bunge.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2(b) or upon becoming aware that Confidential
Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us or a member of the Group and
destroy or permanently erase all copies of Confidential Information made by
you and use all reasonable endeavours to ensure that anyone to whom you
have supplied any Confidential Information destroys or permanently erases
such Confidential Information and any copies made by them, in each case
save to the extent that you or the recipients are required to retain any
such Confidential Information by any applicable law, rule or regulation or
by any competent judicial, governmental, supervisory or regulatory body or
in accordance with internal policy, or where the Confidential Information
has been disclosed under paragraph 2(b) above.
5. Continuing Obligations The obligations in this letter are continuing and,
in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence, the
obligations in this letter shall cease (a) if you become a party to or
otherwise acquired (by assignment or sub participation) an interest, direct
or indirect in the Facility or (b) twelve months after you have returned
all Confidential Information supplied to you by us or a member of the Group
and destroyed or permanently erased all copies of Confidential Information
made by you (other than any such Confidential Information or copies which
have been disclosed under paragraph 2 above (other than sub-paragraph 2(a))
or which, pursuant to paragraph 4 above, are not required to be returned or
destroyed).
6. No Representation; Consequences of Breach, etc You acknowledge and agree
that:
(a) neither we nor any of our officers, employees or advisers (each a
"Relevant Person") (i) make any representation or warranty, express or
implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information or
any other information supplied by us or any member of the Group or the
assumptions on which it is based or (ii) shall be under any obligation
to update or correct any inaccuracy in the Confidential Information or
any other information supplied by us or any member of the Group or be
otherwise liable to you or any other person in respect to the
Confidential Information or any such information; and
(b) we or members of the Group may be irreparably harmed by the breach of
the terms of this letter and damages may not be an adequate remedy;
each Relevant Person or member of the Group may be granted an
injunction or
- 81 -
specific performance for any threatened or actual breach of the
provisions of this letter by you.
7. No Waiver; Amendments, etc This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the information
the subject of this letter. No failure or delay in exercising any right,
power or privilege under this letter will operate as a waiver thereof nor
will any single or partial exercise of any right, power or privilege
preclude any further exercise thereof or the exercise of any other right,
power or privileges under this letter. The terms of this letter and your
obligations under this letter may only be amended or modified by written
agreement between us; provided, that any amendment or modification of a
material term of this letter (including, without limitation, paragraphs 1
and 2 and the definition of "Confidential Information") shall also require
Bunge's prior written consent.
8. Inside Information You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter are
given to us and (without implying any fiduciary obligations on our part)
are also given for the benefit of Bunge, the Borrower and each other member
of the Group.
10. Third party rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this letter may be
enforced and relied upon only by you and us and the operation of the
Contracts (Rights of Third Parties) Act 1999 is excluded.
(b) Notwithstanding any provisions of this letter, (but subject to the
proviso set forth below) the parties to this letter do not require the
consent of any Relevant Person or any member of the Group to vary this
letter at any time; provided, that any variation of a material term of
this letter (including, without limitation, paragraphs 1 and 2 and the
definition of "Confidential Information") shall require Bunge's prior
written consent.
11. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by and
construed in accordance with the laws of England and the parties submit to
the non-exclusive jurisdiction of the English courts.
12. Definitions In this letter (including the acknowledgement set out below):
"Borrower" means Bunge Finance Europe B.V., a company formed under the laws
of The Netherlands, and its successors and permitted assigns;
- 82 -
"Bunge" means Bunge Limited, a company formed under the laws of Bermuda,
and its successors and permitted assigns;
"Confidential Information" means any information relating to Bunge, the
Borrower, the Group, and the Facility including, without limitation, the
Information Memorandum, provided to you by us or any member of the Group or
any of their respective affiliates or advisers, in whatever form, and
includes information given orally and any document, electronic file or any
other way of representing or recording information which contains or is
derived or copied from such information but excludes information that (a)
is or becomes generally available to the public knowledge other than as a
direct or indirect result of any breach of this letter or (b) is known by
you before the date the information is disclosed to you by us or any member
of the Group or any of their respective affiliates or advisers or is
lawfully obtained by you after that date, other than from a source which is
connected with the Group and which, in either case, as far as you are
aware, has not been obtained in violation of, and is not otherwise subject
to, any obligation of confidentiality;
"Group" means Bunge and each of its holding companies and subsidiaries and
each subsidiary of each of its holding companies (as each such term is
defined in the Companies Act 1985);
"Information Memorandum" means the Confidential Information Memorandum
dated November 2006;
"Participant Group" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as each
such term is defined in the Companies Act 1985); and
"Permitted Purpose" means considering and evaluating whether to enter into
the Facility.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
...................................
For and on behalf of
[o Lender]
To: Bunge Limited
We acknowledge and agree to the above:
...................................
For and on behalf of
[[o]]
- 83 -
SIGNATURES
THE BORROWER
BUNGE FINANCE EUROPE B.V.
By: /s/ Morris Kalef
----------------------
MORRIS KALEF
Address: 11720 Borman Drive
St. Louis, Missouri 63146
Attention: John Gilsinn
Fax: (314) 292 2530
with a copy to:
Bunge Limited
Address: 50 Main Street
White Plains,
New York 10606
Attention: Morris Kalef
Fax: (914) 684 3283
- 84 -
THE ARRANGERS
BNP PARIBAS
By: /s/ Sue Mingay /s/ Stuart Perry
---------------------- ------------------
SUE MINGAY STUART PERRY
HSBC BANK plc
By: /s/ John Haire
----------------------
JOHN HAIRE
THE ORIGINAL LENDERS
For the purposes of the Dutch Banking Act, each Lender expressly confirms the
representations given by it in Clause 17.20 (PMP Representations - Lenders)
BNP PARIBAS
By: /s/ Sue Mingay /s/ Stuart Perry
---------------------- ------------------
SUE MINGAY STUART PERRY
HSBC BANK plc
By: /s/ John Haire
----------------------
JOHN HAIRE
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: /s/ A. M. Sarfati /s/ Jay Levit
---------------------- ------------------
A. M. SARFATI JAY LEVIT
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD
By: /s/ Andrew Trenouth
----------------------
ANDREW TRENOUTH
CALYON NEW YORK BRANCH
By: /s/ Lee E. Grieve /s/ Gregory S. Hennenfent
------------------ -------------------------
LEE E. GRIEVE GREGORY S. HENNENFENT
CAISSE REGIONAL DU CREDIT AGRICOLE MUTUEL DE PARIS ET D'ILE DE FRANCE
By: /s/ Laurent Carlo
----------------------
LAURENT CARLO
- 85 -
CREDIT SUISSE
By: s/ Gianni Sargenti /s/ Manuela Genoud
---------------------- ------------------
GIANNI SARGENTI MANUELA GENOUD
DBS BANK LTD
By: /s/ David Walker-Smith
----------------------
DAVID WALKER-SMITH
- 86 -
FORTIS BANK (NEDERLAND) N.V.
By: /s/ J. G. H. M. Hanegraaf
-------------------------
J. G. H. M. HANEGRAAF
HSH - NORDBANK AG NEW YORK BRANCH
By: /s/ David Lopez Menendez /s/ Rhona Aledia
------------------------ ------------------
DAVID LOPEZ MENENDEZ RHONA ALEDIA
ING BANK N.V.
By: /s/ R. A. Marlenburgh /s/ L. V. Mews
---------------------- ------------------
R. A. MARLENBURGH L. V. MEWS
KBC BANK NEDERLAND N.V.
By: /s/ Kris Denissen /s/ Kris Arts
---------------------- ------------------
KRIS DENISSEN KRIS ARTS
MIZUHO CORPORATE BANK NEDERLAND N.V.
By: /s/ A. Ditja /s/ H. Takahashi
---------------------- ------------------
A. DITJA H. TAKAHASHI
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (RABOBANK
INTERNATIONAL) LONDON BRANCH
By: /s/ E. Harman /s/ S. P. Tyler
---------------------- ------------------
E. HARMAN S. P. TYLER
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ J. P. Jones
----------------------
J. P. JONES
BANCO SANTANDER CENTRAL HISPANO, S.A. LONDON BRANCH
By: /s/ Steven Wahnon /s/ Grant Sessions
---------------------- ------------------
STEVEN WAHNON GRANT SESSIONS
- 87 -
SOCIETE GENERALE
By: /s/ Eric Le Lay
----------------------
ERIC LE LAY
STANDARD CHARTERED BANK
By: /s/ Hiren Singharay
----------------------
HIREN SINGHARAY
COMMERZBANK AKTIENGESELLSCHAFT
By: /s/ W. Freckel
----------------------
W. FRECKEL
INTESA BANK IRELAND PLC
By: /s/ Richard Barkley /s/ Andrew Plomp
---------------------- ------------------
RICHARD BARKLEY ANDREW PLOMP
BANCA MONTE DEI PASCHI DI SIENA S.p.A. FRANKFURT AM MAIN BRANCH
By: /s/ Enrico Vignoli /s/ Berthold Biehler
---------------------- --------------------
ENRICO VIGNOLI BERTHOLD BIEHLER
- 88 -
NATIXIS
By: /s/ Vincent Mazeli /s/ Anne-Luis Dupuis
---------------------- --------------------
VINCENT MAZELI ANNE-LUIS DUPUIS
By: /s/ Shigeru Tsuru
----------------------
SHIGERU TSURU
THE AGENT
HSBC BANK plc
By: /s/ John Haire
----------------------
JOHN HAIRE
Address: Level 17
8 Canada Square
London E14 5HQ
Fax: 0207 991 4347
Attention: Khalid Raja
- 89 -
EXHIBIT
FORM OF PARENT GUARANTEE
- 90 -