Exhibit 10.1
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (this "Agreement") is made and
entered into as of July 1, 2001 by and between XXXXX LIMITED, a company
incorporated under the laws of Bermuda ("Bunge"), and XXXXX INTERNATIONAL
LIMITED, a company incorporated under the laws of Bermuda ("Xxxxx
International").
RECITALS
WHEREAS, Bunge is a subsidiary of Xxxxx International;
WHEREAS, Bunge proposes to issue its common shares in an initial
public offering registered under the U.S. Securities Act of 1933, as amended
(the "Public Offering");
WHEREAS, prior to the Public Offering, Xxxxx International has
heretofore provided certain administrative and other corporate services to
Bunge;
WHEREAS, Bunge has entered into services agreements with
subsidiaries of Xxxxx International, which agreements will be unaffected by this
Agreement;
WHEREAS, Xxxxx International has requested from Bunge that Bunge
provide certain administrative and other corporate services to it pursuant to
this Agreement after the Public Offering; and
WHEREAS, Bunge agrees to provide or cause Xxxxx International to be
provided with these services on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the above premises and the
mutual covenants contained herein, it is agreed by and between the parties as
follows:
AGREEMENT
The parties therefore agree as follows:
1. SERVICES. Bunge will provide to Xxxxx International those particular
corporate and administrative services that are listed on Exhibit A hereto (the
"Services"), in consideration of the respective charges described in Section 3
below.
2. TERM AND TERMINATION. Beginning as of the date of this Agreement, Bunge
agrees to provide the Services on a quarter-to-quarter basis unless and until
terminated (a) in whole or in part with respect to particular Services by either
party at the end of a specified quarter by means
of at least 180 days' prior written notice or (b) by either party upon written
notice to the other party, if the other party shall be adjudged bankrupt, become
insolvent, make a general assignment for the benefit of the creditors, have a
receiver or trustee appointed for the benefit of creditors generally, file a
voluntary petition in bankruptcy or initiate reorganization proceedings or take
any step toward liquidation.
3. CHARGES AND PAYMENT. (a) For the Services provided by Bunge, Xxxxx
International will pay the actual costs therefor, including overhead and
selling, general and administrative expenses and any reasonable out-of-pocket
payments, costs or expenses incurred in connection with, or related to, the
Services. Bunge and Xxxxx International will use reasonable efforts to
separately identify such costs. However, where such costs are not separately
identifiable and directly measurable, Xxxxx International will pay that portion
of the total cost to Bunge of providing such Services or similar services which
shall be attributable to Xxxxx International under an "Allocation Formula." The
"Allocation Formula" shall attribute to Xxxxx International that portion of the
total cost of such Services or similar services which is based on the ratio of
the time incurred on behalf of Xxxxx International by employees of Bunge to the
time incurred on behalf of Bunge and all other entities (including Xxxxx
International) for which Bunge provides such Services or similar services. Such
costs shall include travel and entertainment expenses directly attributable to
Xxxxx International and an allocable portion of the base compensation (other
than benefit plans and employment agreements and arrangements) of the officers
and directors of Bunge who serve as executive officers and directors of Xxxxx
International.
(b) Bunge shall submit invoices quarterly in arrears, describing in
reasonable detail the Services performed, charges therefor and other charges
provided for hereunder. Xxxxx International shall, within 30 days of receipt of
such invoices, remit payment or cause such payment to be remitted, in full to
Bunge or its designated agent for the invoiced charges. In addition to these
charges, Xxxxx International shall reimburse or cause such payment to be
reimbursed to Bunge or its designated agent on a monthly basis for all
reasonable third-party charges incurred by Bunge incident to the rendering of
such Services. The parties will review the Services and all cost and usage data
at least annually, but any change in the Services will be only by mutual
agreement.
(c) At the request and expense of either party, a fairness opinion
concerning the aggregate value of all Services rendered during any given fiscal
year of Bunge may be obtained from an accounting firm nationally recognized in
the United States. If the value of the Services as calculated by the fairness
opinion is higher than the actual amounts invoiced by Bunge to Xxxxx
International, Xxxxx International shall pay to Bunge the difference in these
amounts within 60 days of the date of the fairness opinion. If the value of the
Services as calculated by the fairness opinion is lower than the actual amounts
invoiced by Bunge to Xxxxx International, Bunge shall pay to Xxxxx International
the difference in these amounts within 60 days of the date of the fairness
opinion. Such an opinion can only be requested once by each party in any given
fiscal year.
4. ACCESS TO ASSETS AND INFORMATION. Xxxxx International shall make
available to Bunge all such equipment, inventory, supplies, documents and
information as may be reasonably necessary for Bunge to perform the Services.
Bunge agrees to use Xxxxx International assets and information solely for the
purposes contemplated hereby.
5. PERFORMANCE OF SERVICES. Bunge shall perform the Services with the same
degree of care, skill and prudence customarily exercised for its own operations.
6. LIMITATION ON LIABILITY. (a) In the absence of gross negligence or
reckless or willful misconduct on the part of Bunge, Bunge shall not be liable
for any claims, liabilities, damages, losses, costs, expenses (including
reasonable attorney's fees), fines and penalties arising out of or relating to
any actual or alleged injury, loss or damage of any nature whatsoever in
connection with providing or failing to provide the Services to Xxxxx
International.
(b) Bunge's liability for damages to Xxxxx International for any
cause whatsoever, and regardless of the form of action, whether in contract or
in tort, including gross negligence or willful misconduct, shall not exceed in
the aggregate an amount equal to five times the total amount paid by Xxxxx
International hereunder for all Services provided during the term of this
Agreement.
7. INDEMNIFICATION. (a) Xxxxx International shall indemnify, defend and
hold Bunge, its directors, officers and employees harmless from and against all
damages, losses and out-of-pocket expenses (including reasonable attorneys'
fees) ("Losses") arising out of or related to the performance or non-performance
of any obligation or agreement herein, except for Losses which are the direct
and sole result of gross negligence or willful misconduct of the personnel of
Bunge. Neither party will be responsible for special, indirect, incidental or
consequential damages that the other party or any third party may incur or
experience in connection with this Agreement.
(b) Any claim for indemnity under this Section must be made by
written notice to the indemnifying party within one (1) year after the discovery
thereof. Notwithstanding the foregoing, the indemnities contained in this
Section shall survive for a period of three (3) years after the termination of
this agreement.
8. LIMITATIONS ON OBLIGATIONS; SERVICE PROVIDERS. (a) Notwithstanding
anything herein to the contrary, Bunge may, at its sole discretion, decline to
provide any Service hereunder if: (a) the facilities or personnel of Bunge are
not reasonably available to provide such Service; (b) providing such Service
requested by Xxxxx International would materially interfere with Bunge's conduct
of its business; or (c) could conflict with any applicable law, regulation or
ordinance, could result in a conflict of interest or, in Bunge's good faith
judgment based upon the advice of its tax advisors, could result in significant
tax disadvantages for Bunge. Bunge may, at any time and in its sole discretion,
change in any reasonable respect the manner, scheduling or timing of the
Services, PROVIDED that Bunge shall provide Xxxxx International at least thirty
(30) days' prior written notice of any such material change. Nothing in this
Agreement shall limit or
restrict the right of Bunge or any of Bunge's directors, officers or employees,
agents, subsidiaries or affiliates to engage in any other business or devote
their time and attention in part to the management or other aspects of any other
business, whether or not of a similar nature, or to limit or restrict the right
of Bunge to engage in any other business or to render services of any kind to
any entity.
(b) Services to be provided by Bunge hereunder may, in Bunge's sole
discretion, be provided by employees or service providers of Bunge or any of its
subsidiaries; PROVIDED, HOWEVER, that Bunge shall remain responsible, in
accordance with the terms of this Agreement, for the performance of any Service
it causes to be so provided.
9. RELATIONSHIP OF THE PARTIES. It is expressly understood and agreed that
in rendering the Services Bunge is acting as an independent contractor and that
this Agreement does not constitute Bunge as an employee, agent or other
representative of Xxxxx International for any purpose whatsoever. Bunge does not
have the right or authority to enter into any contract, warranty, guarantee or
other undertaking in the name or for the account of Xxxxx International, or to
assume or create any obligation or liability of any kind, express or implied, on
behalf of Xxxxx International, or to bind Xxxxx International in any manner
whatsoever, or to hold itself out as having any right, power or authority to
create any such obligation or liability on behalf of Xxxxx International or to
bind Xxxxx International in any manner whatsoever (except as to any actions
taken by Bunge at the express written request and direction of Xxxxx
International).
10. ASSIGNMENT. Xxxxx International shall not assign or transfer any of
its rights under this Agreement without the prior written consent of Bunge.
11. NOTICES. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be deemed to have
been given (a) on the date on which hand delivered, (b) at the time when mailed
in any general or branch office of the United States Postal Service, enclosed in
a registered or certified postpaid envelope, or sent by Federal Express or other
similar overnight courier service, addressed to the address of the parties
stated below or to such changed address as such party may have fixed by notice,
or (c) if given by facsimile, when such facsimile is transmitted and a
confirmation slip is issued by the transmitting machine indicating that the
notice has been transmitted without error:
If to Bunge:
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
If to Xxxxx International:
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. In that context, and without
limiting the generality of the foregoing, each of the parties hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal suit, action or
proceeding relating to this Agreement or transaction contemplated hereby, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive jurisdiction of the Courts of the State of New York sitting in the
County of New York or the United States District Court for the Southern District
of New York and appellate courts having jurisdiction of appeals in such courts,
and each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such suit, action, or proceeding may properly be heard
and determined in such New York State court or, to the extent permitted by law,
in such federal court;
(b) consents that any such suit, action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue or jurisdiction or any such action or proceeding in such court or that
such action or proceeding was brought in an inconvenient forum and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such party in its
address as provided in Section 11 hereof;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by New York law; and
(e) agrees that this Agreement has been entered into in the State of
New York and performed in part in the State of New York.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between the parties and supersedes all prior proposals, commitments, writings,
negotiations and understandings, oral and written, and all other prior
communications between the parties relating to the subject matter of this
Agreement.
14. AMENDMENT; WAIVER. This Agreement may not be amended or otherwise
modified except in writing duly executed by all of the parties. No failure or
delay by either party in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof. A waiver by any party of any breach
or violation of this Agreement shall not be deemed or construed as a waiver of
any subsequent breach or violation thereof.
15. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same
document.
16. SEVERABILITY. Should any part, term or condition hereof be declared
illegal or unenforceable or in conflict with any other law, the validity of the
remaining portions or provisions of this Agreement shall not be affected
thereby, and the illegal or unenforceable portions of this Agreement shall be
and hereby are redrafted to conform with applicable law, while leaving the
remaining portions of this Agreement intact.
17. FORCE MAJEURE. No party shall be deemed to have breached this
Agreement or be held liable for any failure or delay in the performance of all
or any portion of its obligations under this Agreement if prevented from doing
so by a cause or causes beyond its control. Without limiting the generality of
the foregoing, such causes include acts of God or the public enemy, fires,
floods, storms, earthquakes, riots, strikes, lock-outs, wars and war-operations,
restraints of government power or communication line failure or other
circumstances beyond such party's control, or by reason of the judgment, ruling
or order of any court or agency of competent jurisdiction or change of law or
regulation subsequent to the execution of this Agreement.
18. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 7, this
Agreement is solely for the benefit of the parties and their respective
successors and assigns. Nothing herein shall be construed to provide any rights
to any other entity or individual.
19. HEADINGS. Section headings are for convenience only and do not control
or affect the meaning or interpretation of any terms or provisions of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXX LIMITED
By /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CEO
XXXXX INTERNATIONAL LIMITED
By /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CFO
EXHIBIT A
THE SERVICES
Bunge will provide the following services to Xxxxx International:
(i) CASH MANAGEMENT SERVICES: Bunge shall assist Xxxxx International with
certain of its treasury and cash management needs, including foreign currency
and hedging activities and the managing and maintenance of its bank accounts.
(ii) HUMAN RESOURCES ADMINISTRATION: Bunge shall provide personnel
oversight and services for the ongoing human resource administration
requirements of Xxxxx International, including recruitment and hiring
assistance, statutory compliance, compensation recommendations and employee
record retention.
(iii) EMPLOYEE BENEFIT PLANS ADMINISTRATION: Bunge shall assist in the
administration to certain employees of Xxxxx International of all employee
benefit plans and health insurance plans consistent with the plans currently
maintained by Xxxxx International.
(iv) INSURANCE ADMINISTRATION: Bunge shall extend coverage to Xxxxx
International under Bunge's insurance policies for those types of insurance
coverage consistent with Bunge's own insurance coverage by adding (or
maintaining) Xxxxx International as a named insured under policy or policies in
question and advancing the applicable premiums necessary to extend such
insurance coverage to Xxxxx International.
(v) ACCOUNTING AND FINANCIAL SERVICES: Bunge shall provide to Xxxxx
International internal audit coordinating and supervising, external audit
arranging and managing and shall assist Xxxxx International with its periodic
financial reporting requirements pursuant to applicable securities laws, if any.
Bunge shall also provide financial analysis and planning services to Xxxxx
International, including assistance with corporate budgeting, forecasting,
actuarial services and mergers and acquisitions analysis, together with
assisting Xxxxx International in executing any mergers, acquisitions or
divestitures that Xxxxx International undertakes. Bunge shall also maintain the
accounting books and records of Xxxxx International.
(vi) TAX SERVICES: Bunge shall provide to Xxxxx International tax
compliance, reporting and planning services for international, U.S. federal,
state and local tax matters.
(vii) LEGAL AND REGULATORY SERVICES: Bunge shall provide to Xxxxx
International certain legal services and assist Xxxxx International with
regulatory matters before U.S. federal, state and municipal authorities and
foreign authorities.
(viii) CORPORATE COMMUNICATION SERVICES. Bunge shall provide Xxxxx
International with corporate communication services support, which shall include
(but not be limited to)
general communications to the investment community, trade shows and general
corporate media activities, the preparation of any annual reports and letters or
communications to shareholders and assisting in coordinating and preparing
shareholders' meetings.
(ix) MANAGEMENT INFORMATION SYSTEM SERVICES: Bunge shall provide to Xxxxx
International certain management information system services, including, but not
limited to, data and voice communication services and networks.
