Contract
Exhibit 10.4
DATED 1 MARCH 2024 FOR BUNGE FINANCE EUROPE B.V. THE BORROWER WITH CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK ACTING AS AGENT | |||||||||||
RELATING TO A FACILITY AGREEMENT DATED 6 OCTOBER 2023 | |||||||||||
| CONTENTS | |||||
| Clause | Page | ||||
1. Definitions and Interpretation....................................................................................... 1
2. Representations............................................................................................................. 2
3. Amendment................................................................................................................... 2
4. Waiver........................................................................................................................... 2
5. Continuity and Further Assurance.............................................................................… 3
6. Fees, Costs and Expenses.............................................................................................. 3
7. Miscellaneous................................................................................................................ 3
8. Governing Law.............................................................................................................. 3
Schedule 1 The Lenders............................................................................................................ 5
Schedule 2 Conditions Precedent.............................................................................................. 6
Exhibit A Form of Facility Agreement
THIS AGREEMENT is dated 1 March 2024 and made among:
(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 corporate seat (statutaire zetel) in Rotterdam, The Netherlands and its registered office at 0000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx xx Xxxxxxx and registered with the Dutch Commercial Register (Handelsregister) under number 24347428 (the "Borrower");
(2) THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as lenders (the "Lenders"); and
(3) CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK as agent of the other Finance Parties (the "Agent").
RECITALS:
(A) This Agreement is supplemental to and amends the Existing Facility Agreement (as defined below).
(B) The Parties have agreed to amend the Existing Facility Agreement and to waive the forty-five (45) Business Days' notice requirement set forth under Clause 2.2(d) of the Existing Facility Agreement, in each case on the terms of this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Amended Facility Agreement" means the Existing Facility Agreement, as amended by this Agreement.
"Effective Date" means the date of the notification by the Agent under Clause 3.2 (Effective Date) to the Borrower and the Lenders.
"Effective Time" means the time on the Effective Date at which the Agent delivers the notification under Clause 3.2 (Effective Date) to the Borrower and the Lenders.
"Existing Facility Agreement" means the facility agreement, dated 6 October 2023, among the Borrower, the Agent, the Arrangers and the Lenders (as such terms are defined therein).
1.2 Incorporation of defined terms
(a) Unless a contrary indication appears, a term defined in the Amended Facility Agreement has the same meaning in this Agreement.
(b) The principles of construction set out in Clauses 1.2 (Construction) and 1.3 (Currency Symbols and Definitions) of the Amended Facility Agreement shall have effect as if set out in this Agreement.
1.3 Clauses
In this Agreement any reference to a "Clause" or a "Schedule" is, unless the context otherwise requires, a reference to a Clause in or a Schedule to this Agreement.
1.4 Third party rights
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
1.5 Designation
In accordance with the Existing Facility Agreement, each of the Borrower and the Agent designates this Agreement to be entered into on or about the date of this Agreement as a Finance Document.
2. REPRESENTATIONS
The Repeating Representations are deemed to be made by the Borrower (by reference to the facts and circumstances then existing) on:
(a) the date of this Agreement; and
(b) the Effective Date,
and references to "this Agreement" in the Repeating Representations should be construed as references to this Agreement and to the Existing Facility Agreement and on and from the Effective Date, to the Amended Facility Agreement.
3. AMENDMENT
3.1 Amendment of the Existing Facility Agreement
With effect from the Effective Time, the Existing Facility Agreement (excluding the signature pages thereto) shall be amended and restated in its entirety so that it will be read and construed for all purposes as set out in Exhibit A attached hereto.
3.2 Effective Date
The Agent will notify the Borrower and the Lenders promptly when all the conditions precedent listed in Schedule 2 (Conditions Precedent) have been fulfilled to its satisfaction.
4. WAIVER
4.1 Reference is hereby made to the Accordion Request delivered by the Borrower to the Agent on 1 March 2024. The Borrower and the Agent hereby request the consent of the Majority Lenders to waive the forty-five (45) Business Days’ notice requirement set forth under Clause 2.2(d) of the Existing Facility Agreement for delivery of an Accordion Request prior to the proposed date of the relevant Accordion Increase, and each Lender executing this Agreement hereby waives such requirement provided that the relevant Accordion Increase Date occurs on the Viterra Acquisition Closing Date
(as defined in the relevant Accordion Request) being a date falling not less than ten (10) Business Days after 1 March 2024.
5. CONTINUITY AND FURTHER ASSURANCE
5.1 Continuing obligations
The provisions of the Existing Facility Agreement and the other Finance Documents shall, save as amended by this Agreement, continue in full force and effect.
5.2 Reservation of rights
Each Finance Party (as defined in the Existing Facility Agreement) reserves any other right or remedy it may have now or subsequently. This Agreement does not constitute a waiver of any right or remedy other than in relation to the specific amendments and waiver expressly referred to in this Agreement.
5.3 Further assurance
The Borrower, shall, at the request of the Agent and at the Borrower's own expense, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this Agreement.
6. FEES, COSTS AND EXPENSES
6.1 Transaction expenses
The Borrower shall promptly on demand pay the Agent the amount of all costs and expenses (including but not limited to legal fees) reasonably incurred in connection with the negotiation, preparation, printing and execution of this Agreement and any other documents referred to in this Agreement.
7. MISCELLANEOUS
7.1 Incorporation of terms
The provisions of Clause 33 (Notices), Clause 35 (Partial Invalidity), Clause 36 (Remedies and Waivers) and Clause 43 (Enforcement) of the Existing Facility Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to "this Agreement" or "the Finance Documents" are references to this Agreement.
7.2 Counterparts
This Agreement 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 Agreement.
8. GOVERNING LAW
This Agreement and all non-contractual obligations arising out of or in connection with it are governed by English law.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
SCHEDULE 1
THE LENDERS
THE LENDERS
BNP Paribas
Crédit Agricole Corporate and Investment Bank
ING Bank N.V.
Natixis
Sumitomo Mitsui Banking Corporation
Bank of China, New York Branch
Abu Dhabi Commercial Bank PJSC
Australia and New Zealand Banking Group Limited
Bank of Montreal
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch
Citibank N.A., Jersey Branch
Deutsche Bank Luxembourg S.A.
Industrial and Commercial Bank of China Limited, New York Branch
Mizuho Bank, Ltd.
Oversea‐Chinese Banking Corporation Limited, New York Agency
Coöperatieve Rabobank U.A.
Royal Bank of Canada
Banco Santander, S.A., New York Branch
The Bank of Nova Scotia
Standard Chartered Bank
U.S. Bank National Association
Xxxxx Fargo Bank, National Association.
Westpac Banking Corporation
Agricultural Bank of China, Limited, New York Branch
Commonwealth Bank of Australia (Europe) N.V.
Commerzbank AG, New York Branch
DBS Bank Ltd.
Emirates NBD Bank (P.J.S.C), London Branch
Erste Group Bank AG
Intesa Sanpaolo S.P.A. Amsterdam Branch
Itaú Unibanco S.A., Miami Branch
PNC Bank, National Association
Skandinaviska Enskilda Xxxxxx XX (PUBL) Frankfurt Branch
Abanca Corporacion Bancaria S.A.
DZ Bank AG Deutsche Zentral-Genossenschaftsbank, New York Branch
SCHEDULE 2
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
1. Corporate Authorisations
(a) A copy of the constitutional documents of each Obligor, or in the case of the Borrower, a copy of the articles of association (statuten) and deed of incorporation (oprichtingsakte) as well as an extract (uittreksel) from the Dutch Chamber of Commerce (Xxxxx van Koophandel) of the Borrower.
(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) if applicable, authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
(iii) if applicable, 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) To the extent required under Dutch law or the Borrower’s articles of association, a copy of the resolution of the general meeting (algemene vergadering) of the Borrower approving the resolutions of the board of managing directors referred to under paragraph (b) above.
(d) To the extent required under Dutch law or the Borrower’s articles of association, a copy of the resolution of the board of supervisory directors (raad van commissarissen) of the Borrower approving the resolutions of the board of managing directors referred to under paragraph (b) above.
(e) If applicable, a copy of (i) the request for advice from each (central or European) works council (centrale of Europese) ondernemingsraad) with jurisdiction over the transactions contemplated by this Agreement and (ii) the positive advice from such works council which contains no condition, which if complied with, could result in a breach of any of the Finance Documents.
(f) A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above in relation to the Finance Documents.
(g) 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.
(h) A certificate of an authorised signatory of the Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
2. Finance Documents
(a) A copy of this Agreement executed by the Parties hereto.
(b) A copy of the Consent to the Amendment and Restatement of the Guaranty, dated as of the date hereof, duly executed by the Borrower, the Parent, the Majority Lenders and the Agent.
(c) A copy of the First Amended and Restated Guaranty, dated as of the date hereof, duly executed by the Parent and the Agent (the “First Amended and Restated Guaranty”).
3. Legal Opinions
(a) A legal opinion of Homburger, special legal counsel to the Parent as to matters of Swiss law, opining notably as to (i) the capacity of the Parent to enter into and perform its obligations under the First Amended and Restated Guaranty, (ii) the recognition under Swiss law of the validity of such obligations and the choice of law expressed in the First Amended and Restated Guaranty and (iii) the recognition and enforcement in Switzerland of any judgement rendered against the Parent pursuant to the jurisdiction provisions of the First Amended and Restated Guaranty.
(b) A legal opinion of Xxxx Xxxxx LLP, legal advisor to the Parent 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 First Amended and Restated Guaranty.
[Signature Pages Follow]
SIGNATURES
THE BORROWER
BUNGE FINANCE EUROPE B.V.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: President
Signature Page to First Amendment and Waiver Agreement | ||
THE ORIGINAL LENDERS
BNP PARIBAS
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx, Managing Director
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx, Managing Director
Signature Page to First Amendment and Waiver Agreement | ||
CITIBANK N.A., JERSEY BRANCH
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx, Senior Vice President
Signature Page to First Amendment and Waiver Agreement | ||
COMMERZBANK AG, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx, Vice President
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx, Vice President
Signature Page to First Amendment and Waiver Agreement | ||
COMMONWEALTH BANK OF AUSTRALIA (EUROPE) N.V.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx, CEO, Commonwealth bank of Australia (Europe) N.V.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx, Head of Natural Resources, Energy & Carbon, Europe
Signature Page to First Amendment and Waiver Agreement | ||
COÖPERATIEVE RABOBANK U.A.
By: /s/ T.B.H. Xxxxxxxxx
Name: T.B.H. Xxxxxxxxx, Director Proxy B
By: /s/ Xxxxxx xx Xxxxx Xxxxxxxx
Name: Xxxxxx xx Xxxxx Xxxxxxxx, Head of TCF Agri Europe
Signature Page to First Amendment and Waiver Agreement | ||
DBS BANK LTD.
By: /s/ Xxxx Xxxx
Name: Vice President
Signature Page to First Amendment and Waiver Agreement | ||
DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/ X. Xxxxxxx
Name: X. Xxxxxxx, Assistant Vice President
By: /s/ X. Xxxxxx-Xxxxxx
Name: X. Xxxxxx-Xxxxxx, Assistant Vice President
Signature Page to First Amendment and Waiver Agreement | ||
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx, Vice President
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx, Vice President
Signature Page to First Amendment and Waiver Agreement | ||
ERSTE GROUP BANK AG
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx, Managing Director
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx, Vice President
Signature Page to First Amendment and Waiver Agreement | ||
INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx, Executive Director
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx, Vice President
Signature Page to First Amendment and Waiver Agreement | ||
ING BANK N.V.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx, Managing Director
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx, Managing Director
Signature Page to First Amendment and Waiver Agreement | ||
ITAU UNIBANCO S.A., MIAMI BRANCH
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx, Authorised Signatory
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx, Authorized Signatory
Signature Page to First Amendment and Waiver Agreement | ||
MIZUHO BANK, LTD.
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx, Executive Director
Signature Page to First Amendment and Waiver Agreement | ||
NATIXIS
By: /s/ R Xxxxxx
Name: X Xxxxxx, Executive Director, Corporate Finance Relationship Manager
By: /s/ N Kovshova
Name: X Xxxxxxxx
Signature Page to First Amendment and Waiver Agreement | ||
OVERSEA-CHINESE BANKING CORPORATION LIMITED, NEW YORK AGENCY
By: /s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx, General Manager
Signature Page to First Amendment and Waiver Agreement | ||
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx, Senior Vice President
Signature Page to First Amendment and Waiver Agreement | ||
ROYAL BANK OF CANADA
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx, Authorized Signatory
Signature Page to First Amendment and Waiver Agreement | ||
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) FRANKFURT BRANCH
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx, Head of Legal, LC&FI
By: /s/ Xxxxxxxxx Xxxxxxx
Name: Xxxxxxxxx Xxxxxxx, Head of Client Portfolio Management Germany
Signature Page to First Amendment and Waiver Agreement | ||
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx, Director
Signature Page to First Amendment and Waiver Agreement | ||
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxxxx Xxxxxxxxxxx
Name: Xxxxxxxxx Xxxxxxxxxxx, Director
Signature Page to First Amendment and Waiver Agreement | ||
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx, Vice President
Signature Page to First Amendment and Waiver Agreement | ||
WESTPAC BANKING CORPORATION
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx, Tier II Attorney
Signature Page to First Amendment and Waiver Agreement | ||
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx, Authorized Signatory
By: /s/ Xxxxxxx xx Xxxxx
Name: Xxxxxxx xx Xxxxx, Authorized Signatory
Signature Page to First Amendment and Waiver Agreement | ||
BANK OF CHINA, NEW YORK BRANCH
By: /s/ Xxxx Del Xxxxxxxx
Name: Xxxx Del Xxxxxxxx, Vice President
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx, Executive Vice President
Signature Page to First Amendment and Waiver Agreement | ||
BANK OF MONTREAL
By: /s/ Xxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxx Xxxxxxxx, Managing Director
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx, Managing Director
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx, Managing Director
Signature Page to First Amendment and Waiver Agreement | ||
STANDARD CHARTERED BANK
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx, Managing Director
Signature Page to First Amendment and Waiver Agreement | ||
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx, Executive Director
Signature Page to First Amendment and Waiver Agreement | ||
AGRICULTURAL BANK OF CHINA LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx, SVP & Head of Corp Banking
Signature Page to First Amendment and Waiver Agreement | ||
INTESA SANPAOLO S.P.A. AMSTERDAM BRANCH
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx, General Manager Xxxxxx Xxxxxxxx S.p.A Amsterdam Branch
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx, Relationship Manager Xxxxxx Xxxxxxxx S.p.A Amsterdam Branch
Signature Page to First Amendment and Waiver Agreement | ||
ABANCA CORPORACION BANCARIA S.A.
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx, Director
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx, Vice President
Signature Page to First Amendment and Waiver Agreement | ||
EMIRATES NBD BANK (P.J.S.C), LONDON BRANCH
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx, CEO, UK
By: /s/ Xxxxx xx Xxx
Name: Xxxxx xx Xxx, Head of Corporate and Institutional Banking
Signature Page to First Amendment and Waiver Agreement | ||
ABU DHABI COMMERCIAL BANK PJSC
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx, Executive Head – International Corporate Banking
Signature Page to First Amendment and Waiver Agreement | ||
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx, Head of Food, Beverage and Agri, International
Signature Page to First Amendment and Waiver Agreement | ||
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx, Managing Director
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx, Managing Director
Signature Page to First Amendment and Waiver Agreement | ||
BANCO SANTANDER, S.A., NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx, Managing Director
By: /s/ Xxxx Xxxx-Xxxxxxxx
Name: Xxxx Xxxx-Xxxxxxxx, Executive Director
Signature Page to First Amendment and Waiver Agreement | ||
THE AGENT
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chargée d’Affaires Agency
By: /s/ Xxxxxxx Xxxxxxx _____
Name: Xxxxxxx Xxxxxxx
Title: Chargé d’Affaires Agency
Signature Page to the First Amendment and Waiver Agreement
Exhibit A
Form of Facility Agreement
