Exhibit 10.7
EXECUTION COPY
BUNGE MASTER TRUST
SECOND AMENDED AND RESTATED
SERIES 2000-1 SUPPLEMENT
Dated as of February 26, 2002
to
FIRST AMENDED AND RESTATED POOLING AGREEMENT
Dated as of February 26, 2002
Among
BUNGE FUNDING, INC.,
as Company
BUNGE MANAGEMENT SERVICES, INC.,
as Servicer,
JPMORGAN CHASE BANK
as Administrative Agent,
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH
as Letter of Credit Agent,
THE BANK OF NEW YORK,
as Collateral Agent,
BUNGE ASSET FUNDING CORP.
as Series 2000-1 Purchaser
and
THE BANK OF NEW YORK,
as Trustee
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS..............................................................................................1
SECTION 1.01. Definitions........................................................................1
ARTICLE II
DESIGNATION OF SERIES 2000-1 VFC CERTIFICATE; PURCHASE AND SALE OF THE
SERIES 2000-1 VFC CERTIFICATE............................................................................2
SECTION 2.01. Designation........................................................................2
SECTION 2.02. The Series 2000-1 VFC Certificate..................................................2
SECTION 2.03. Purchases of Interests in the Series 2000-1 VFC Certificate........................3
SECTION 2.04. Delivery...........................................................................3
SECTION 2.05. Procedure for Initial Issuance and for Increasing the Series 2000-1
Invested Amount....................................................................3
SECTION 2.06. Procedure for Decreasing the Series 2000-1 Invested Amount.........................5
SECTION 2.07. Interest...........................................................................6
SECTION 2.08. Indemnification by the Company.....................................................6
ARTICLE III
ARTICLE III OF THE AGREEMENT.............................................................................7
SECTION 3A.02. Establishment of Series 2000-1 Collection Subaccount...............................7
SECTION 3A.03. Determination of Interest..........................................................8
SECTION 3A.04. Adjustments to Series 2000-1 Invested Amount.......................................8
SECTION 3A.05. Applications.......................................................................8
ARTICLE IV
DISTRIBUTIONS, REPORTS AND LETTER OF CREDIT DRAWINGS....................................................11
SECTION 4A.01. Distributions.....................................................................11
SECTION 4A.02. Reports...........................................................................11
SECTION 4A.03. Statements and Notices............................................................11
SECTION 4A.04. Letter of Credit Drawings.........................................................12
ARTICLE V ADDITIONAL SERIES 2000-1 EARLY AMORTIZATION EVENTS.....................................................13
SECTION 5.01. Additional Series 2000-1 Early Amortization Events................................13
ARTICLE VI
SERVICING FEE...........................................................................................16
SECTION 6.01. Servicing Compensation............................................................16
ARTICLE VII
COVENANTS; REPRESENTATIONS AND WARRANTIES.............................................................16
SECTION 7.01. Representations and Warranties of the Company and the Servicer....................16
SECTION 7.02. Covenants of the Company and the Servicer.........................................16
SECTION 7.03. Negative Covenant of the Company; Covenants of the Servicer.......................17
SECTION 7.04. Obligations Unaffected............................................................18
ARTICLE VIII
CONDITIONS PRECEDENT....................................................................................18
SECTION 8.01. Conditions Precedent to Effectiveness of Supplement...............................18
ARTICLE IX
MISCELLANEOUS...........................................................................................23
SECTION 9.01. Ratification of Agreement.........................................................23
SECTION 9.02. Governing Law.....................................................................23
SECTION 9.03. Further Assurances................................................................23
SECTION 9.04. Payments..........................................................................23
SECTION 9.05. Costs and Expenses................................................................24
SECTION 9.06. No Waiver; Cumulative Remedies....................................................24
SECTION 9.07. Amendments........................................................................24
SECTION 9.08. Severability......................................................................25
SECTION 9.09. Notices...........................................................................25
SECTION 9.10. Successors and Assigns............................................................26
SECTION 9.11. Counterparts......................................................................26
SECTION 9.12. Setoff............................................................................26
SECTION 9.13. No Bankruptcy Petition; No Recourse...............................................27
SECTION 9.14. Limitation on Addition of Sellers.................................................28
SECTION 9.15. Chase Conflict Waiver.............................................................29
SECTION 9.16. Limited Recourse..................................................................29
ii
ARTICLE X
FINAL DISTRIBUTIONS.....................................................................................30
SECTION 10.01. Certain Distributions.............................................................30
EXHIBITS
Exhibit A Form of Series 2000-1 VFC Certificate
Exhibit B Form of Daily Report
Exhibit C Form of Monthly Settlement Statement
Exhibit D Form of Notice of Issuance/Increase
SCHEDULES
Schedule 1 Series 2000-1 Collection Subaccount
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SECOND AMENDED AND RESTATED SERIES 2000-1 SUPPLEMENT dated as
of February 26, 2002 (as amended, supplemented or otherwise modified in
accordance with the terms hereof and in effect from time to time, this
"SUPPLEMENT"), among the Company, the Servicer, BAFC, the Collateral Agent, the
Administrative Agent, the Letter of Credit Agent and the Trustee. This
Supplement amends and restates that certain First Amended and Restated Series
2000-1 Supplement, dated as of July 12, 2001, among the Company, the Servicer,
BAFC, The Bank of
New York, as the Collateral Agent, the Administrative Agent,
the Letter of Credit Agent and The Bank of
New York, as the Trustee.
W I T N E S S E T H :
WHEREAS, the Company, the Servicer and the Trustee is
contemporaneously herewith entering into the First Amended and Restated
Pooling
Agreement, dated as of February 26, 2002 (as in effect on the date hereof and as
the same may be amended, supplemented or otherwise modified from time to time,
the "AGREEMENT");
WHEREAS, the Agreement provides, among other things, that the
Company, the Servicer and the Trustee may at any time and from time to time
enter into supplements to the Agreement for the purpose of authorizing the
issuance on behalf of the Trust by the Company for execution and redelivery to
the Trustee for authentication of one or more Series of Investor Certificates;
and
WHEREAS, the Company, the Servicer, the Trustee and BAFC as
the Series 2000-1 Purchaser wish to supplement the Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby expressly acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Capitalized terms used herein shall
unless otherwise defined or referenced herein, have the meanings assigned to
such terms in Annex X attached to the Agreement which Annex X is incorporated by
reference herein.
(a) If any term, definition or provision contained or
incorporated by reference herein conflicts with or is
inconsistent with any term, definition or provision contained
in the Agreement, the terms and provisions of this Supplement
shall govern. All Article, Section, subsection, Exhibit and
Schedule references herein shall mean Article, Section or
subsection of or Exhibit or Schedule to this Supplement,
except as otherwise provided herein.
(b) Any reference herein to a Schedule or Exhibit to
this Supplement shall be deemed to be a reference to such
Schedule or Exhibit as it may be amended, modified or
supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented
(or any term or provision of any Transaction Document may be
amended that would have the effect of amending, modifying or
supplementing information contained in such Schedule or
Exhibit) in compliance with the terms of the Transaction
Documents.
(c) Any reference in this Supplement to any
representation, warranty or covenant "deemed" to have been
made is intended to encompass only representations, warranties
or covenants that are expressly stated to be repeated on or as
of dates following the execution and delivery of this
Supplement, and no such reference shall be interpreted as a
reference to any implicit, inferred, tacit or otherwise
unexpressed representation, warranty or covenant.
(d) The words "INCLUDE", "INCLUDES" or "INCLUDING"
shall be interpreted as if followed, in each case, by the
phrase "WITHOUT LIMITATION".
ARTICLE II
DESIGNATION OF SERIES 2000-1 VFC CERTIFICATE; PURCHASE AND
SALE OF THE SERIES 2000-1 VFC CERTIFICATE
SECTION 2.01. DESIGNATION. The Investor Certificate and
interest created and authorized pursuant to the Agreement and this Supplement
shall be designated as the "SERIES 2000-1 VFC CERTIFICATE."
SECTION 2.02. THE SERIES 2000-1 VFC CERTIFICATE.
(a) The Series 2000-1 VFC Certificate shall represent
a fractional undivided interest in the Trust Assets,
consisting of the right of the Series 2000-1 VFC
Certificateholder to receive the distributions specified
herein out of (i) the Series 2000-1 Invested Percentage
(expressed as a decimal) of Collections received with respect
to the Purchased Loans and all other funds on deposit in the
Collection Account and (ii) to the extent such interests
appear herein, all other funds on deposit in the Series 2000-1
Collection Subaccount (collectively, the "SERIES 2000-1 VFC
CERTIFICATEHOLDER'S INTEREST").
(b) The Series 2000-1 VFC Certificate shall be
substantially in the form of Exhibit A, and shall, upon issue,
be executed by the Company and delivered by the Company to the
Trustee for authentication and redelivery as provided in
SECTION 2.04 hereof and SECTION 5.02 of the Agreement. The
Series 2000-1 VFC Certificate shall not be issued in the form
of a single global certificate as provided for in SECTION 5.01
of the
2
Agreement, but shall instead be issued in the form of one
definitive certificate, registered in the name of the Series
2000-1 Purchaser as the holder thereof.
(c) The Exchangeable Company Interest and any other
Series of Investor Certificates outstanding shall represent
the ownership interests in the remainder of the Trust Assets
not allocated pursuant hereto to the Series 2000-1 VFC
Certificateholder's Interest.
SECTION 2.03. PURCHASES OF INTERESTS IN THE SERIES 2000-1 VFC
CERTIFICATE.
Subject to the terms and conditions of this Supplement,
including delivery of notice, if any, required by SECTION 2.05, (i) on the
Series 0000-0 Xxxxxxxx Date, the Series 2000-1 Purchaser shall purchase a Series
2000-1 VFC Certificate in an amount equal to the Series 2000-1 Initial Invested
Amount, and (ii) thereafter, the Series 2000-1 Purchaser shall maintain its
Series 2000-1 VFC Certificate, subject to increase or decrease during the Series
2000-1 Revolving Period, in accordance with the provisions of this Series 2000-1
Supplement. Payments by the Series 2000-1 Purchaser in respect of the Series
2000-1 VFC Certificate shall be made in immediately available funds to the Trust
for deposit in the Series 2000-1 Collection Subaccount.
SECTION 2.04. DELIVERY. On the Series 0000-0 Xxxxxxxx Date,
the Company shall sign on behalf of the Trust and shall direct the Trustee in
writing pursuant to SECTION 5.02 of the Agreement to duly authenticate, and the
Trustee, upon receiving such direction, shall so authenticate the Series 2000-1
VFC Certificate in the name of the Series 2000-1 Purchaser in accordance with
such written directions. In so doing, the Company acts as agent of the Trust and
shall incur no personal liability in respect of the Investor Certificates. The
Series 2000-1 VFC Certificate shall be issued in a minimum denomination of
$100,000 and in integral multiples of $1,000 in excess thereof. The Trustee
shall xxxx on its books the actual Series 2000-1 Invested Amount outstanding on
any date of determination, which, absent manifest error, shall constitute PRIMA
FACIE evidence of the outstanding Series 2000-1 Invested Amount from time to
time.
SECTION 2.05. PROCEDURE FOR INITIAL ISSUANCE AND FOR
INCREASING THE SERIES 2000-1 INVESTED AMOUNT.
(a) Subject to SUBSECTION 2.05(b), (i) on the Series
0000-0 Xxxxxxxx Date, the Series 2000-1 Purchaser hereby
agrees to purchase a Series 2000-1 VFC Certificate in
accordance with SECTION 2.03 and (ii) on any Business Day on
which the Servicer delivers a Daily Report during the Series
2000-1 Commitment Period, the Series 2000-1 Purchaser, the
Administrative Agent (on behalf of the Liquidity Banks) and
the Letter of Credit Agent (on behalf of the Letter of Credit
Banks) hereby agree that the Series 2000-1 Invested Amount may
be increased (a "SERIES 2000-1 INCREASE"), upon the request of
the Servicer or the Company on behalf of the Trust (each date
on which an increase in the Series 2000-1 Invested Amount
occurs hereunder being herein referred to as the "SERIES
2000-1 INCREASE DATE" applicable to such Series 2000-1
Increase);
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PROVIDED, HOWEVER, that the Servicer or the Company, as the
case may be, shall have given the Series 2000-1 Purchaser, the
Administrative Agent and the Letter of Credit Agent (with a
copy to the Trustee) irrevocable written notice (effective
upon receipt), substantially in the form of Exhibit D hereto,
of such request no later than (i) if all or a portion of the
Series 2000-1 Initial Invested Amount or Series 2000-1
Increase Amount is to be allocated to a Series 2000-1 CP
Tranche, on or prior to the Series 0000-0 Xxxxxxxx Date or
such Series 2000-1 Increase Date, as the case may be or (ii)
(x) if the Series 2000-1 Initial Invested Amount or Series
2000-1 Increase Amount is to be funded by a Prime Rate
Liquidity Loan, on or prior to the Series 0000-0 Xxxxxxxx Date
or such Series 2000-1 Increase Date, as the case may be, or
(y) if all or a portion of the Series 2000-1 Initial Invested
Amount or Series 2000-1 Increase Amount is to be funded by a
LIBOR Liquidity Loan, three Business Days prior to the Series
0000-0 Xxxxxxxx Date or such Series 2000-1 Increase Date, as
the case may be; PROVIDED, FURTHER, that the provisions of
this subsection shall not restrict the allocations of
Collections pursuant to Article III. Such notice shall state
(x) the Series 0000-0 Xxxxxxxx Date or the Series 2000-1
Increase Date, as the case may be and (y) the Series 2000-1
Initial Invested Amount, or the proposed amount of such Series
2000-1 Increase (the "SERIES 2000-1 INCREASE AMOUNT"), as the
case may be.
(b) The Series 2000-1 Purchaser shall not be required to make
the initial purchase of the Series 2000-1 VFC Beneficial Interest on the Series
0000-0 Xxxxxxxx Date or to increase its Series 2000-1 Invested Amount on any
Series 2000-1 Increase Date hereunder unless:
(i) the related aggregate Series 2000-1 Initial
Invested Amount or Series 2000-1 Increase Amount is equal to
$100,000 or an integral multiple of $1,000 in excess thereof;
(ii) after giving effect to the Series 2000-1 Initial
Invested Amount or Series 2000-1 Increase Amount, (A) the
Series 2000-1 Invested Amount (calculated without regard to
clauses (d) and (e) of the definition of Series 2000-1
Invested Amount) would not exceed the Series 2000-1 Maximum
Invested Amount on the Series 0000-0 Xxxxxxxx Date or such
Series 2000-1 Increase Date, as the case may be, and (B) the
Series 2000-1 Allocated Loan Amount would not be less than the
Series 2000-1 Target Loan Amount on the Series 0000-0 Xxxxxxxx
Date or such Series 2000-1 Increase Date, as the case may be,
as set forth in the Daily Report delivered on such date;
(iii) no Series 2000-1 Early Amortization Event or
Potential Series 2000-1 Early Amortization Event under the
Agreement or this Supplement shall have occurred and be
continuing; and
(iv) all of the representations and warranties made
by each of the Company, the Servicer and each Seller in each
Transaction Document to which it is a party are true and
correct in all material respects on and as of the
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Series 2000-1 Issuance Date or such Series 2000-1 Increase
Date, as the case may be, as if made on and as of such date
(except to the extent such representations and warranties are
expressly made as of another date).
The Company's acceptance of funds in connection with (x) the Series
2000-1 Purchaser's initial purchase of the Series 2000-1 VFC
Certificate on the Series 0000-0 Xxxxxxxx Date and (y) each Series
2000-1 Increase occurring on any Series 2000-1 Increase Date shall
constitute a representation and warranty by the Company to the Series
2000-1 Purchaser, the Administrative Agent, the Letter of Credit Agent,
the Trustee and the Collateral Agent as of the Series 0000-0 Xxxxxxxx
Date or such Series 2000-1 Increase Date, as the case may be, that all
of the conditions contained in this SUBSECTION 2.05(b) have been
satisfied.
(c) The Servicer shall promptly notify the Company of
the Series 2000-1 Increase Date. If the Series 2000-1
Purchaser funds a Series 2000-1 Increase, the Series 2000-1
Purchaser agrees to pay in immediately available funds the
amount of such Series 2000-1 Increase on the related Series
2000-1 Increase Date to the Trust for deposit in the Series
2000-1 Collection Subaccount for distribution to the Company
in accordance with the terms of the Transaction Documents.
SECTION 2.06. PROCEDURE FOR DECREASING THE SERIES 2000-1
INVESTED AMOUNT.
(a) On any Business Day on which the Servicer
delivers a Daily Report during the Series 2000-1 Revolving
Period or the Series 2000-1 Amortization Period, upon the
written directions of the Servicer or the Company on behalf of
the Trust to allocate funds deposited in the Series 2000-1
Collection Subaccount, the Series 2000-1 Invested Amount may
be reduced (a "SERIES 2000-1 DECREASE") by the distribution by
the Trustee to the Series 2000-1 Purchaser of the funds on
deposit in the Series 2000-1 Collection Subaccount on such day
in an amount not to exceed the amount of such funds on deposit
on such day; PROVIDED that (i) any such distribution shall be
applied in accordance with SUBSECTION 3A.05, (ii) the Servicer
shall have given BAFC, the Administrative Agent, the Letter of
Credit Agent and the Trustee irrevocable written notice
(effective upon receipt) of such Series 2000-1 Decrease, on or
prior to the Business Day of such Series 2000-1 Decrease and
(iii) no prepayment of any Series 0000-0 Xxxxxxxxxx Xxxxxxx
prior to the termination of the related Interest Period may
occur unless, concurrently with such prepayment, the Company
shall have paid to the Series 2000-1 Purchaser any amounts due
and payable by BAFC to the Liquidity Banks pursuant to
SUBSECTION 4.01(c) of the Liquidity Agreement.
(b) Notwithstanding any provision to the contrary set
forth in this Agreement, so long as BAFC or the Collateral
Agent is the registered holder of the Series 2000-1 VFC
Certificate, the Series 2000-1 Accrued Interest and the Series
2000-1 Invested Amount must be reduced in accordance with
SUBSECTION 3A.05 to the extent of funds available in the
Series 2000-1 Collection Subaccount on any Business Day that
5
funds in the Cash Collateral Account are insufficient to remit
the amounts required to be remitted pursuant to SECTIONS 5.2
and 6.2 of the Security Agreement by an amount equal to such
deficiency.
SECTION 2.07. INTEREST.
(a) Interest shall be payable on the Series 2000-1
VFC Certificate as specified in SUBSECTIONS 3A.05(a)(ii) and
3A.05(b)(ii).
(b) Calculations of per annum rates under this
Supplement shall be made on the basis of a 360 day year with
respect to interest rates except with respect to interest
rates based on ABR, which shall be calculated on the basis of
a 365 day year. Each determination of LIBOR Rate by the
Administrative Agent shall be conclusive and binding upon each
of the parties hereto in the absence of manifest error.
SECTION 2.08. INDEMNIFICATION BY THE COMPANY.
(a) Without limiting any other rights that BAFC, the
Liquidity Banks, the Administrative Agent or the Letter of
Credit Agent may have under this Supplement, the Agreement,
the other Transaction Documents or under applicable law, the
Company hereby agrees to indemnify BAFC, the Liquidity Banks,
the Administrative Agent, the Letter of Credit Agent and the
Letter of Credit Banks and any of their respective agents,
officers, directors and employees (collectively, the "SERIES
2000-1 INDEMNIFIED PARTIES") from and against any and all
damages, losses, claims, liabilities, costs and expenses,
including reasonable attorneys' fees and reasonable
disbursements (all of the foregoing being collectively
referred to as "SERIES 2000-1 INDEMNIFIED AMOUNTS") awarded
against or incurred by any of them in connection with the
entering into and performance of this Agreement or any of the
Transaction Documents by any of the Series 2000-1 Indemnified
Parties, excluding, however, any amounts (i) to the extent
resulting from the gross negligence or willful misconduct on
the part of any Series 2000-1 Indemnified Party or (ii)
constituting recourse (except as otherwise specifically
provided herein or in any Transaction Document) for Defaulted
Loans.
(b) In case any proceeding by any Person shall be
instituted involving any Series 2000-1 Indemnified Party in
respect of which indemnity may be sought pursuant to paragraph
(a) of this SECTION 2.08, such Series 2000-1 Indemnified Party
shall promptly notify the Company, and the Company, upon
request of the Series 2000-1 Indemnified Party, shall retain
counsel reasonably satisfactory to the Series 2000-1
Indemnified Party to represent the Series 2000-1 Indemnified
Party and shall pay the reasonable fees and disbursements of
such counsel related to such proceeding. In any such
proceeding, any Series 2000-1 Indemnified Party shall have the
right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Series 2000-1
Indemnified Party unless the Company and the Series 2000-1
Indemnified Party shall have mutually agreed to the retention
of such counsel. It is understood that the Company shall not,
in respect of the legal expenses of any Series 2000-1
Indemnified
6
Party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local
counsel) for all such Series 2000-1 Indemnified Parties and
all other parties indemnified by the Company under the Series
Supplement, or any other Transaction Document. Such firm shall
be designated in writing by JPMorgan Chase.
(c) Any payments to be made by the Company pursuant
to this Section shall (i) be Company Subordinated Obligations,
(ii) be made solely from funds available to the Company that
are not required to be applied to Company Unsubordinated
Obligations then due and (iii) not constitute a general
recourse claim against the Company after satisfying all
Company Unsubordinated Obligations then due, except to the
extent that funds are available (including, but not limited
to, funds available to the Company pursuant to the exercise of
its right to indemnity and other payments pursuant to SECTIONS
2.05 and 8.02 of the Sale Agreement) to the Company to make
such payments.
ARTICLE III
ARTICLE III OF THE AGREEMENT
SECTION 3.01 of the Agreement and each other section of
Article III of the Agreement relating to another Series shall be read in its
entirety as provided in the Agreement. Article III of the Agreement (except for
SECTION 3.01 thereof and any portion thereof relating to another Series) shall
read in its entirety as follows and shall be exclusively applicable to Series
2000-1:
SECTION 3A.02. ESTABLISHMENT OF SERIES 2000-1 COLLECTION
SUBACCOUNT.
(a) The Trustee shall cause to be established and
maintained in the name of the Trustee, on behalf of the Trust,
for the benefit of the Series 2000-1 Purchaser a subaccount of
the Collection Account (the "SERIES 2000-1 COLLECTION
SUBACCOUNT"), which subaccount is the Series Collection
Subaccount with respect to Series 2000-1 to bear a designation
indicating that the funds deposited therein are held for the
benefit of the Series 2000-1 Purchaser and its assignees. The
Trustee, on behalf of the Holders, shall possess all right,
title and interest in all funds from time to time on deposit
in, and all Eligible Investments credited to, the Series
2000-1 Collection Subaccount and in all proceeds thereof. The
Series 2000-1 Collection Subaccount shall be under the sole
dominion and control of the Trustee for the exclusive benefit
of the Series 2000-1 Purchaser and its assignees.
(b) All Eligible Investments in the Series 2000-1
Collection Subaccount shall be held by the Trustee, on behalf
of the Holders; PROVIDED, HOWEVER, that funds on deposit in
the Series 2000-1 Collection Subaccount shall in accordance
with SUBSECTION 3.01(b) of the
Pooling Agreement, at the
direction of the Company (or the
7
Servicer on behalf of the Company), be invested together with
funds held in other subaccounts or sub-subaccounts of the
Collection Account.
SECTION 3A.03. DETERMINATION OF INTEREST. The amount of
interest distributable with respect to the Series 2000-1 VFC Certificate
("SERIES 2000-1 ACCRUED INTEREST") on any date of determination shall be the
aggregate amount of Series 2000-1 Daily Interest Expense accrued from and
including the Series 0000-0 Xxxxxxxx Date to but excluding such date of
determination minus the aggregate amount of interest that has been distributed
in accordance with SUBSECTION 3A.05(a)(ii) or SUBSECTION 3A.05(b)(ii).
SECTION 3A.04. ADJUSTMENTS TO SERIES 2000-1 INVESTED AMOUNT.
(a) REDUCTIONS TO SERIES 2000-1 INVESTED AMOUNT. If,
on any Special Allocation Settlement Report Date, the Series
2000-1 Allocable Charged-Off Amount is greater than zero for
the related Settlement Period, the Trustee shall (in
accordance with the written directions of the Servicer upon
which the Trustee may conclusively rely) reduce the Series
2000-1 Invested Amount (but not below zero) by such Series
2000-1 Allocable Charged-Off Amount (which shall also be
reduced by the amount so applied) and shall allocate such
amount to the Series 2000-1 Invested Amount.
(b) INCREASES TO SERIES 2000-1 INVESTED AMOUNT. If,
on any Special Allocation Settlement Report Date, the Series
2000-1 Allocable Recoveries Amount is greater than zero for
the related Settlement Period, the Trustee shall (in
accordance with written directions from the Servicer upon
which the Trustee may conclusively rely, subject to its
obligation to perform the procedures set forth in the Internal
Operating Procedures Memorandum) increase the Series 2000-1
Invested Amount (but only to the extent of any previous
reductions of the Series 2000-1 Invested Amount pursuant to
SUBSECTION 3A.04(a)) by the amount of the Series 2000-1
Allocable Recoveries Amount (which shall also be reduced by
the amount so applied) and shall allocate such amount to the
Series 2000-1 Invested Amount;
SECTION 3A.05. APPLICATIONS.
(a) During the Series 2000-1 Revolving Period, the
funds deposited in the Series 2000-1 Collection Subaccount,
after giving effect to any deposit resulting from a Series
2000-1 Increase, if any pursuant to SUBSECTION 2.05 on any
Business Day shall be distributed by the Trustee not later
than 4:30 p.m.,
New York City time (but only to the extent
that the Trustee has received a Monthly Settlement Statement
or Daily Report, as applicable, which reflects the receipt of
the Collections on deposit therein not later than 12:00
(Noon),
New York City time, upon which Monthly Settlement
Statement or Daily Report, as applicable, the Trustee may
conclusively rely, subject to its obligation to perform the
procedures set forth in the Internal Operating Procedures
Memorandum) in accordance with the following priorities (or,
if neither BAFC nor the Collateral Agent is the registered
holder of the Series 2000-1 VFC Certificate, the Trustee shall
distribute the
8
amounts required by clauses (ii), (iii) and (iv) below in
accordance with the payment instructions of any subsequent
holder of the Series 2000-1 VFC Certificate):
(i) distribute to the Servicer an amount
equal to the Series 2000-1 Servicing Fee due and
payable as required in SUBSECTION 2.05(a) of the
Servicing Agreement (less any amounts payable to the
Trustee pursuant to SECTION 8.05 of the Agreement,
which shall be paid to the Trustee);
(ii) if requested pursuant to SUBSECTION
2.06(a) or if required pursuant to SUBSECTION
2.06(b), transfer to the Cash Collateral Account an
amount to be applied (A) first, to pay Series 2000-1
Accrued Interest and (B) second, to reduce the Series
2000-1 Invested Amount (any such reduction, the
"SERIES 2000-1 PRINCIPAL PAYMENT");
(iii) on each Distribution Date, transfer to
the Cash Collateral Account an amount equal to any
Series 2000-1 Program Costs due and payable;
(iv) on each Distribution Date, transfer to
Bunge Finance and Bunge Finance North America an
amount equal to the applicable Solicitation Fee for
the immediately preceding Settlement Period; and
(v) on any Business Day, distribute to the
Company in accordance with directions contained in
the Monthly Settlement Statement or Daily Report, as
applicable, or to such accounts or such Persons and
in such amounts as the Company (or the Servicer on
behalf of the Company) may direct in writing (which
directions may consist of standing instructions
provided by the Company that shall remain in effect
until changed by the Company in writing);
PROVIDED that the Trustee shall only make the distributions set forth
in this SUBSECTION 3A.05(a) if no Series 2000-1 Early Amortization
Event or Potential Series 2000-1 Early Amortization Event has occurred
and is continuing to the actual knowledge of the Trustee and only to
the extent that if, after giving effect to such distribution, the
Series 2000-1 Target Loan Amount would not exceed the Series 2000-1
Allocated Loan Amount as shown on the applicable Daily Report and
Monthly Settlement Statement.
(b) During the Series 2000-1 Amortization Period, the
Trustee shall, based solely on the information provided to the
Trustee by the Servicer in the Monthly Settlement Statement
and Daily Report, as applicable (upon which the Trustee may
conclusively rely, subject to its obligation to perform the
procedures set forth in the Internal Operating Procedures
Memorandum), apply, on any Business Day, amounts on deposit in
the Series 2000-1 Collection Subaccount in the following order
of priority (or, if neither BAFC nor the Collateral Agent is
the registered holder of the Series 2000-1 VFC Certificate,
the Trustee shall distribute the amounts required by clauses
(ii) and (iv) below in accordance with the payment
instructions of any subsequent holder of the Series 2000-1 VFC
Certificate):
9
(i) if any amounts are owed to the Trustee
or any other Person, on account of Servicing Fees
incurred in respect of the performance of its
responsibilities as Successor Servicer, distribute to
the Trustee or such other Person an amount equal to
the product of (a) the amount so owed to such
Successor Servicer and (b) a fraction, the numerator
of which shall be equal to the Series 2000-1 Invested
Amount as of the end of the immediately preceding
Settlement Period and the denominator of which shall
be equal to the Aggregate Invested Amount as of the
end of the immediately preceding Settlement Period;
(ii) if requested pursuant to SUBSECTION
2.06(a) or if required pursuant to SUBSECTION
2.06(b), transfer to the Cash Collateral Account an
amount to be applied (A) first, to pay Series 2000-1
Accrued Interest and (B) second, to make Series
2000-1 Principal Payments;
(iii) if, following the repayment in full of
all amounts set forth in clauses (i)-(ii) above, any
amounts are owed to the Trustee, the Series 2000-1
Purchaser or any other Person, on account of its
fees, expenses and disbursements incurred in respect
of the performance of its responsibilities hereunder
or as Successor Servicer (except as otherwise set
forth in clause (v) below), transfer such amounts to
the Trustee, the Series 2000-1 Purchaser or such
other Person;
(iv) transfer to the Cash Collateral Account
an amount equal to any other Series 2000-1 Program
Costs due and payable;
(v) distribute to the Servicer an amount
equal to the Series 2000-1 Servicing Fee due and
payable as required in SUBSECTION 2.05(a) of the
Servicing Agreement (less any amounts payable to the
Trustee pursuant to SECTION 8.05 of the Agreement,
which shall be paid to the Trustee);
(vi) on each Distribution Date, transfer to
Bunge Finance and Bunge Finance North America an
amount equal to the applicable Solicitation Fee for
the immediately preceding Settlement Period; and
(vii) following the repayment in full of all
amounts set forth in clauses (i) through (vi) above,
the remaining amount on deposit in the Series 2000-1
Collection Subaccount, if any, shall be distributed
to the holder of the Exchangeable Company Interest.
(c) The allocations to be made pursuant to this
SECTION 3A.05 are subject to the provisions of SECTIONS 2.05,
2.07, 7.02, 9.01 and 9.04 of the Agreement.
10
ARTICLE IV
DISTRIBUTIONS, REPORTS AND LETTER OF CREDIT DRAWINGS
Article IV of the Agreement (except for any portion thereof
relating to another Series) shall read in its entirety as follows and the
following shall be exclusively applicable to the Series 2000-1 VFC Certificate
issued pursuant to this Supplement:
SECTION 4A.01. DISTRIBUTIONS.
(a) The Trustee shall distribute to the Series 2000-1
Purchaser from the Series 2000-1 Collection Subaccount
indicated in Article III the aggregate amount to be
distributed to the Series 2000-1 Purchaser pursuant to Article
III.
(b) All allocations and distributions hereunder shall
be in accordance with the Monthly Settlement Statement and the
Daily Report, as applicable, and shall be made in accordance
with the provisions of SECTION 9.04 hereof and subject to
SUBSECTION 3.01(g) of the Agreement.
SECTION 4A.02. REPORTS. The Servicer shall provide BAFC and
the Trustee with a Daily Report in accordance with SECTION 4.01 of the Servicing
Agreement.
SECTION 4A.03. STATEMENTS AND NOTICES.
(a) MONTHLY SETTLEMENT. On each Settlement Report
Date, the Servicer shall deliver to BAFC, the Administrative
Agent, the Letter of Credit Agent and the Trustee a Monthly
Settlement Statement in the Form of Exhibit C setting forth,
among other things, the Series 2000-1 Accrued Interest, the
Series 2000-1 Monthly Servicing Fee and the Series 2000-1
Invested Amount.
(b) ANNUAL CERTIFICATEHOLDERS' TAX STATEMENT. On or
before January 31 of each calendar year (or such earlier date
as required by applicable law), beginning with calendar year
2001, the Company (or the Servicer on its behalf) on behalf of
the Trustee shall furnish, or cause to be furnished, to the
Series 2000-1 Purchaser, a statement prepared by the Company
(or the Servicer on its behalf) containing the aggregate
amount distributed to such Series 2000-1 Purchaser for such
preceding calendar year, together with such other information
as is required to be provided by an issuer of indebtedness
under the Code and such other customary information as the
Company (or the Servicer on its behalf) deems necessary to
enable the Series 2000-1 Purchaser to prepare their tax
return. Such obligation of the Company shall be deemed to have
been satisfied to the extent that substantially comparable
information shall have been provided by the Trustee or the
Servicer pursuant to any requirements of the Internal Revenue
Code as from time to time in effect. The Trustee shall be
under no obligation to prepare tax returns for the Trust.
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(c) SERIES 2000-1 EARLY AMORTIZATION
EVENT/DISTRIBUTION OF PRINCIPAL NOTICES. Upon the occurrence
of a Series 2000-1 Early Amortization Event or Potential
Series 2000-1 Early Amortization Event, the Company or the
Servicer, as the case may be, shall give prompt written notice
thereof to BAFC, the Administrative Agent, the Letter of
Credit Agent and the Trustee. As promptly as reasonably
practicable after its receipt of notice of the occurrence of a
Series 2000-1 Early Amortization Event, the Trustee shall give
notice to each Series 2000-1 Rating Agency (which notice shall
be given, by telephone or otherwise, not later than the second
Business Day after such receipt).
SECTION 4A.04. LETTER OF CREDIT DRAWINGS.
(a) DRAWS FOR DEFAULTED LOANS. If on any Business Day
any Loan has become a Defaulted Loan, the Servicer shall (i)
notify the Administrative Agent on the next succeeding
Business Day of such fact and the aggregate principal amount
of such Defaulted Loan and interest thereon accrued to and
including the day prior to the day such Loan became a
Defaulted Loan; PROVIDED, that if more than one Loan shall
become a Defaulted Loan on that date, such notice shall
include the aggregate principal amount of each such Defaulted
Loan and interest thereon accrued to and including the day
prior to the day each such Loan became a Defaulted Loan, and
(ii) prepare a Servicer's Certificate (with copies to the
Letter of Credit Agent) which shall serve to instruct the
Administrative Agent to (A) draw on the Letter of Credit on
such Business Day in an amount equal to the lesser of (x) the
aggregate unpaid principal amount of such Defaulted Loan and
accrued and unpaid interest (or discount) thereon to and
including the day prior to the day the Loan has become a
Defaulted Loan, or (y) the Letter of Credit Amount then in
effect, (B) deposit the proceeds of such drawing into the Cash
Collateral Account for application in accordance with SECTION
5.2 and SECTION 6.2 of the Security Agreement), and (C)
instruct the Collateral Agent to reimburse the Letter of
Credit Banks for such draw in accordance with the terms of the
Letter of Credit Reimbursement Agreement and the Security
Agreement. Each Servicer's Certificate shall also contain
notification to the Administrative Agent of Loans which have
become Defaulted Loans since the most recent Daily Report,
including the aggregate outstanding principal amount of such
Defaulted Loans plus accrued interest (or discount) thereon to
and including the day prior to the day such Loans become
Defaulted Loans. The Servicer shall, on the Business Day on
which such Loan has become a Defaulted Loan, or if such day is
not a Business Day, on the next succeeding Business Day,
transmit the Servicer's Certificate to the Letter of Credit
Agent for verification of the Letter of Credit Amount as of
the date such Servicer's Certificate is prepared.
Notwithstanding the foregoing, if at any time the Letter of
Credit Amount in effect shall be less than the aggregate
principal plus accrued and unpaid interest (or discount) in
respect of Defaulted Loans, the Servicer shall include in the
Servicer's Certificate instructions to the Administrative
Agent that, upon receipt of notice from the Collateral Agent
of payment of the Repayment Amount to the Letter of Credit
Agent pursuant to either SECTION 5.2 or 6.2 of the Security
Agreement, or other receipt of notice that the Repayment
Amount has been paid, the Administrative Agent
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shall immediately submit a second draw on the Letter of Credit for the
lesser of (x) the amount of such excess principal plus accrued and
unpaid interest (or discount) on such Defaulted Loans over the Letter
of Credit Amount prior to giving effect to the first draw or (y) the
Letter of Credit Amount after giving effect to the payment of such
Repayment Amount.
(b) DRAWS UPON L/C EXPIRATION DATE. On the fourth
Business Day preceding the L/C Expiration Date, the Servicer
shall (i) prepare a Servicer's Certificate (with copies to the
Letter of Credit Agent and the Guarantor) to instruct the
Administrative Agent to (1) draw on the Letter of Credit on
the third Business Day preceding the L/C Expiration Date in an
amount equal to the Letter of Credit Amount then in effect and
(2) wire transfer the proceeds of such drawing to the
Collateral Agent for deposit into the Reserve Account
maintained by the Collateral Agent pursuant to SECTION 5.7 of
the Security Agreement and (ii) on such day, transmit the
Servicer's Certificate to the Letter of Credit Agent for
verification of the Letter of Credit Amount. The Letter of
Credit Agent shall make the verification to the Servicer with
a copy to the Collateral Agent.
ARTICLE V
ADDITIONAL SERIES 2000-1 EARLY AMORTIZATION EVENTS
SECTION 5.01. ADDITIONAL SERIES 2000-1 EARLY AMORTIZATION
EVENTS. If any one of the events specified in SECTION 7.01 of the Agreement
(after any grace periods or consents applicable thereto) or any one of the
following events (each, a "SERIES 2000-1 EARLY AMORTIZATION EVENT"), after grace
periods or consents applicable thereto, shall occur during the Series 2000-1
Revolving Period:
(a) (i) failure on the part of the Servicer or the
Guarantor to direct any payment or deposit to be made, or
failure of any payment or deposit to be made, in respect of
interest owing on any Series 2000-1 VFC Certificate within
three (3) Business Days of the date such interest is due, (ii)
failure on the part of the Servicer or the Guarantor to direct
any payment or deposit to be made, or failure of any payment
or deposit to be made, in respect of principal owing on the
Series 2000-1 VFC Certificate on the date such principal is
due or (iii) failure on the part of the Servicer or the
Guarantor to direct any payment or deposit to be made, or of
the Company or the Guarantor to make any payment or deposit in
respect of any other amounts owing by the Company, under any
Pooling and Servicing Agreement to or for the benefit of the
Series 2000-1 Purchaser within three (3) Business Days of the
date such amount is due or such deposit is required to be
made;
(b) (i) failure on the part of the Company duly to
observe or perform in any material respect any covenant or
agreement set forth in SUBSECTION 2.06(g) or 2.06(j)(i) or
(ii) of the
Pooling Agreement; or (ii) failure on the part of
the Company duly
13
to observe or perform in any material respect any other
covenant or agreement of the Company set forth in any Pooling
and Servicing Agreement (including each covenant contained in
SECTIONS 2.07 and 2.08 of the Agreement) that continues
unremedied thirty (30) days after the earlier of (A) the date
on which a Responsible Officer of the Company or a Responsible
Officer of the Servicer has knowledge of such failure and (B)
the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Company
by the Trustee, or to the Company and the Trustee by the
Letter of Credit Agent or Administrative Agent;
(c) any representation or warranty made or deemed
made by the Company in any Pooling and Servicing Agreement to
or for the benefit of the Series 2000-1 Purchaser shall prove
to have been incorrect in any material respect when made or
when deemed made and as a result of such incorrectness, the
interests, rights or remedies of the Series 2000-1 Purchaser
have been materially and adversely affected; PROVIDED,
HOWEVER, that a Series 2000-1 Early Amortization Event shall
not be deemed to have occurred under this paragraph if the
incorrectness of such representation or warranty gives rise to
an obligation to repurchase or make an adjustment payment in
respect of the related Purchased Loans and the Company has
repurchased or made an adjustment payment in respect of the
related Purchased Loan or all such Purchased Loans, if
applicable, in accordance with the provisions of any Pooling
and Servicing Agreement.
(d) a Servicer Default other than any Servicer
Default that is within SUBSECTION 5.01(a) above shall have
occurred and be continuing;
(e) a Purchase Termination Event shall have occurred
and be continuing;
(f) any of the Agreement, the Servicing Agreement,
this Supplement or the Sale Agreement shall cease, for any
reason, to be in full force and effect, or the Company, the
Servicer, the Sellers, or any Affiliate of any of the
foregoing, shall so assert in writing;
(g) the Trust shall for any reason cease to have a
valid and perfected first priority undivided ownership or
first priority security interest in any or all of the Trust
Assets (subject to no other Liens other than any Permitted
Liens) or any of the Servicer, the Sellers, the Company or any
Affiliate of any of the foregoing, shall so assert;
(h) a Federal tax notice of a Lien, in an amount
equal to or greater than $100,000, shall have been filed
against the Company or the Trust unless there shall have been
delivered to the Trustee, the Letter of Credit Agent, the
Administrative Agent and the Series 2000-1 Rating Agencies
proof of release of such Lien;
(i) a notice of a Lien shall have been filed by the
PBGC against the Company or the Trust under Section 412(n) of
the Code or Section 302(f) of ERISA for a
14
failure to make a required installment or other payment to a
plan to which Section 412(n) of the Code or Section 302(f) of
ERISA applies unless there shall have been delivered to the
Trustee, the Letter of Credit Agent, the Administrative Agent
and the Series 2000-1 Rating Agencies proof of the release of
such Lien;
(j) one or more judgments for the payment of money
(to the extent not bonded or covered by insurance to the
reasonable satisfaction of the Administrative Agent) shall be
rendered against the Company (i) in an aggregate amount
greater than $100,000 or (ii) that, individually or in the
aggregate, have resulted or could reasonably be expected to
result in a Material Adverse Effect;
(k) (i) the Credits Outstanding shall exceed the
Available Liquidity Commitment or (ii) the Series 2000-1
Invested Amount shall exceed the Series 2000-1 Maximum
Invested Amount;
(l) a Default or Event of Default shall have occurred
and be continuing;
(m) the Liquidity Commitment shall have been
terminated pursuant to SECTION 4.02 of the Liquidity
Agreement;
(n) the amount available to be drawn under the
Guaranty shall be less than the Aggregate Invested Amount;
then, in the case of (x) any event described in SECTION 7.01 of the Agreement,
automatically without any notice or action on the part of the Trustee, Series
2000-1 Purchaser, the Administrative Agent, the Letter of Credit Agent or the
Collateral Agent, an early amortization period shall immediately commence or (y)
any event described above, after the applicable grace period (if any) set forth
in the applicable subsection, the Trustee may, and at the written direction of
the Majority Letter of Credit Banks and the Majority Liquidity Banks, shall, by
written notice then given to the Guarantor, the Company, BAFC and the Servicer,
declare that an early amortization period has commenced as of the date of such
notice with respect to Series 2000-1 (any such period under clause (x) or (y)
above, a "SERIES 2000-1 EARLY AMORTIZATION PERIOD"). Upon the occurrence of a
Series 2000-1 Early Amortization Event or a Potential Series 2000-1 Early
Amortization Event, the Trustee may, or shall at the written direction of the
Letter of Credit Agent or the Administrative Agent, direct each Obligor to make
all payments with respect to Purchased Loans directly to the Collection Account.
15
ARTICLE VI
SERVICING FEE
SECTION 6.01. SERVICING COMPENSATION. A servicing fee (the
"SERIES 2000-1 MONTHLY SERVICING FEE") shall be payable to the Servicer as
specified in SUBSECTION 2.05(a) of the Servicing Agreement.
ARTICLE VII
COVENANTS;
REPRESENTATIONS
AND WARRANTIES
SECTION 7.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE SERVICER.
(a) The Company and the Servicer each hereby
represents and warrants to the Trustee and the Series 2000-1
Purchaser that each and every of their respective
representations and warranties contained in the Agreement and
the Servicing Agreement is true and correct as of the Series
0000-0 Xxxxxxxx Date and as of the date of each Series 2000-1
Increase.
(b) The Company hereby represents and warrants to the
Trustee and the Trust, for the benefit of the Holders, on each
Loan Purchase Date that since the Effective Date, no material
adverse change has occurred in the overall rate of collection
of the Purchased Loans.
SECTION 7.02. COVENANTS OF THE COMPANY AND THE SERVICER. The
Company (solely with respect to clauses (a), (b), (c), (d) and (e) below) and
the Servicer hereby agree, in addition to their obligations under the Agreement
and the Servicing Agreement, that:
(a) they shall not terminate the Agreement unless in
compliance with the terms of the Agreement and the Supplements
relating to each Outstanding Series;
(b) they shall observe in all material respects each
and every of their respective covenants (both affirmative and
negative) contained in the Agreement, the Servicing Agreement,
this Supplement and all other Transaction Documents to which
each is a party;
(c) they shall afford BAFC, the Administrative Agent,
the Letter of Credit Agent, the Collateral Agent, the Trustee
or any of their representatives access to all records relating
to the Purchased Loans at any reasonable time during regular
business hours, upon reasonable prior notice (and without
prior notice if a Series 2000-1 Early
16
Amortization Event has occurred), for purposes of inspection
and shall permit BAFC, the Administrative Agent, the Letter of
Credit Agent, the Collateral Agent or the Trustee or any of
their representatives to visit any of the Company's or the
Servicer's, as the case may be, offices or properties during
regular business hours and as often as may reasonably be
requested, subject to the Company's or the Servicer's, as the
case may be, normal security and confidentiality requirements
and to discuss the business, operations, properties, financial
and other conditions of the Company or the Servicer with their
respective officers and employees and with their Independent
Public Accountants;
(d) they shall not waive the provisions of
SUBSECTIONS 7.01(d), (e)(i), (f), (g) or (h) or SECTIONS 2.05
or 8.02 of the Sale Agreement without the consent of the
Majority Letter of Credit Banks and the Majority Liquidity
Banks;
(e) neither the Company nor the Servicer shall take
any action, nor shall the Servicer permit any Seller to take
any action, requiring the satisfaction of the Rating Agency
Condition pursuant to any Transaction Document without the
prior written consent of the Majority Letter of Credit Banks
and the Majority Liquidity Banks; and
(f) the Servicer shall cooperate in good faith to
allow the Trustee to use the Servicer's available facilities
and expertise upon the Servicer's termination or default.
SECTION 7.03. NEGATIVE COVENANT OF THE COMPANY; COVENANTS OF
THE SERVICER.
(a) The Company shall not declare or pay any dividend
on, or make any payment on account of, or set apart assets for
a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of,
any shares of any class of capital stock of the Company,
whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of
the Company (such declarations, payments, setting apart,
purchases, redemptions, defeasance, retirements, acquisitions
and distributions being herein called "RESTRICTED PAYMENTS")
while Series 2000-1 is an Outstanding Series, except (i) from
amounts distributed to the Company (x) in respect of the
Exchangeable Company Interest, PROVIDED that on the date any
such Restricted Payment is made, the Company is in compliance
with its payment obligations under SECTION 2.05 of the
Agreement or (y) pursuant to SUBSECTION 3A.05; (ii) in
compliance with all terms of the Transaction Documents and
(iii) such Restricted Payment is made in accordance with all
corporate and legal formalities applicable to the Company;
PROVIDED that no Restricted Payment shall be made if a Series
2000-1 Early Amortization Event has occurred and is continuing
(or would occur as a result of making such Restricted
Payment).
17
(b) The Servicer hereby agrees that it shall observe
each and all of its covenants (both affirmative and negative)
contained in each Pooling and Servicing Agreement in all
material respects and that it shall:
(i) provide to the Letter of Credit Agent,
the Administrative Agent and the Collateral Agent,
simultaneously with delivery to the Trustee or the
Series 2000-1 Rating Agencies, all reports, notices,
certificates, statements and other documents required
to be delivered to the Trustee or the Series 2000-1
Rating Agencies pursuant to the Agreement, the
Servicing Agreement and the other Transaction
Documents and furnish to the Letter of Credit Agent,
the Administrative Agent and the Collateral Agent
promptly after receipt thereof a copy of each
material notice, material demand or other material
communication (excluding routine communications)
received by or on behalf of the Company or the
Servicer with respect to the Transaction Documents;
and
(ii) provide notice to the Letter of Credit
Agent, the Administrative Agent and the Collateral
Agent of the appointment of a Successor Servicer
pursuant to SECTION 6.02 of the Servicing Agreement.
SECTION 7.04. OBLIGATIONS UNAFFECTED. The obligations of the
Company and the Servicer to the Letter of Credit Agent, the Administrative
Agent, the Collateral and the Series 2000-1 Purchaser under this Supplement
shall not be affected by reason of any invalidity, illegality or irregularity of
any of the Purchased Loans or any sale of any of the Purchased Loans.
ARTICLE VIII
CONDITIONS PRECEDENT
SECTION 8.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF
SUPPLEMENT. This Supplement will become effective on the date on which the
following conditions precedent have been satisfied:
(a) TRANSACTION DOCUMENTS. BAFC, the Trustee, the
Collateral Agent, the Letter of Credit Agent and the
Administrative Agent shall have received an original copy for
itself, each executed and delivered in form and substance
satisfactory to BAFC, the Letter of Credit Agent and the
Administrative Agent, of (i) the Agreement executed by a duly
authorized officer of each of the Company, the Servicer and
the Trustee, (ii) this Supplement executed by a duly
authorized officer or authorized representative of each of the
Company, the Servicer, the Trustee, the Administrative Agent,
the Letter of Credit Agent, the Collateral Agent and the
Series 2000-1 Purchaser and (iii) the other Transaction
Documents duly executed by the parties thereto.
(b) CORPORATE DOCUMENTS; CORPORATE PROCEEDINGS OF THE
COMPANY, THE SELLERS AND THE SERVICER. BAFC, the Trustee, the
Collateral Agent, the Letter of Credit
18
Agent and the Administrative Agent shall have received from
the Company and each Seller, complete copies of:
(i) a copy of the certificate of
incorporation including all amendments thereto, of
such Person, certified as of a recent date by the
Secretary of State or other appropriate authority of
the jurisdiction of incorporation, as the case may
be, and a certificate of compliance, of status or of
good standing (or other similar certificate, if any),
as and to the extent applicable, of each such Person
as of a recent date, from the Secretary of State or
other appropriate authority of such jurisdiction;
(ii) a certificate of a Responsible Officer
of such Person dated the Series 0000-0 Xxxxxxxx Date
and certifying (A) that attached thereto is a true
and complete copy of the By-laws of such Person in
effect as of the Series 0000-0 Xxxxxxxx Date, (B)
that attached thereto is a true and complete copy of
the resolutions, in form and substance reasonably
satisfactory to BAFC, the Letter of Credit Agent and
the Administrative Agent, of the Board of Directors
of such Person or committees thereof authorizing the
execution, delivery and performance of the
transactions contemplated by the Transaction
Documents, and that such resolutions have not been
amended, modified, revoked or rescinded and are in
full force and effect on the Series 0000-0 Xxxxxxxx
Date, (C) that the certificate of incorporation of
such Person has not been amended since the last
amendment thereto shown on the certificate of the
Secretary of State or other appropriate authority of
the jurisdiction of incorporation of such Person
furnished pursuant to clause (i) above and (D) as to
the incumbency and specimen signature of each officer
executing any Transaction Documents or any other
document delivered in connection herewith or
therewith on behalf of such Person; and
(iii) a certificate of another Responsible
Officer as to the incumbency and specimen signature
of the Responsible Officer executing the certificate
pursuant to clause (ii) above.
(c) GOOD STANDING CERTIFICATES. BAFC, the Trustee,
the Collateral Agent, the Letter of Credit Agent and the
Administrative Agent shall have received copies of
certificates of compliance, of status or of good standing (or
similar certificate, if any), dated as of a recent date from
the Secretary of State or other appropriate authority of such
jurisdiction, with respect to such Person in each jurisdiction
where the ownership, lease or operation of property or the
conduct of business requires it to qualify as a foreign
corporation, except where the failure to so qualify would not
reasonably be expected to have a material adverse effect on
the business, operations, properties or condition (financial
or otherwise) of such Person.
(d) CONSENTS, LICENSES, APPROVALS, ETC. BAFC, the
Trustee, the Collateral Agent, the Letter of Credit Agent and
the Administrative Agent shall have received certificates
dated the Series 0000-0 Xxxxxxxx Date of a Responsible Officer
of
19
such Person either (i) attaching copies of all material
consents, licenses, approvals, registrations or filings
required in connection with the execution, delivery and
performance by such Person of the Agreement, this Supplement,
the Sale Agreement and/or the Servicing Agreement, as the case
may be, and the validity and enforceability of the Agreement,
this Supplement, the Sale Agreement, and/or the Servicing
Agreement against such Person and such consents, licenses and
approvals shall be in full force and effect or (ii) stating
that no such consents, licenses, approvals registrations or
filings are so required, except for (a) the filing of UCC
financing statements (or similar filings) in any applicable
jurisdictions necessary to perfect the Trusts' ownership or
security interesting the Purchased Loans; and (b) those that
may be required under state securities or "blue sky" laws;
PROVIDED, that the Company makes no representation or warranty
as to whether any action , consent, or approval of,
registration or filing with any other action by any
Governmental Authority is or will be required in connection
with the distribution of the Certificates and Interests.
(e) LIEN SEARCHES. BAFC, the Collateral Agent, the
Letter of Credit Agent, the Administrative Agent and the
Trustee shall have received the results of a recent search
satisfactory to BAFC, the Letter of Credit Agent and the
Administrative Agent of any UCC filings (or equivalent
filings) made with respect to the Company and the Sellers (and
with respect to such other Persons as BAFC, the Letter of
Credit Agent or the Administrative Agent deems necessary) in
the jurisdictions in which the Sellers and the Company are
required to file financing statements pursuant to SUBSECTION
8.01(s), together with copies of the financing statements (or
similar documents) disclosed by such search, and accompanied
by evidence satisfactory to BAFC, the Letter of Credit Agent
and the Administrative Agent that any Liens disclosed by such
search would be Permitted Liens or have been released.
(f) LEGAL OPINIONS. BAFC, the Collateral Agent, the
Letter of Credit Agent, the Administrative Agent and the
Trustee shall have received opinions of counsel to the Company
and the Sellers, dated the Series 0000-0 Xxxxxxxx Date, as to
corporate, bankruptcy, perfection and other matters, in form
and substance reasonably acceptable to BAFC, the Letter of
Credit Agent and the Administrative Agent and their counsel.
(g) FEES. BAFC, the Collateral Agent, the Letter of
Credit Agent, the Administrative Agent and the Trustee shall
have received payment of all fees and other amounts due and
payable to any of them on or before the Series 0000-0 Xxxxxxxx
Date.
(h) CONDITIONS UNDER THE SALE AGREEMENT. A
Responsible Officer of the Sellers and of the Company,
respectively, shall have certified that all conditions to the
obligations of the Sellers and of the Company under the Sale
Agreement shall have been satisfied in all material respects.
(i) COMPANY'S BOARD OF DIRECTORS. The composition of
the Company's Board of Directors (including two independent
directors) shall be reasonably acceptable to BAFC, the Letter
of Credit Agent and the Administrative Agent.
20
(j) FINANCIAL STATEMENTS. BAFC, the Trustee, the
Collateral Agent, the Letter of Credit Agent and the
Administrative Agent shall have received the consolidated
balance sheets and statements of income, stockholders' equity
and cash flows of Bunge and its Subsidiaries on a consolidated
basis as of and for the fiscal year ended December 31, 1999,
audited by and accompanied by a copy of the opinion of
Deloitte & Touche, Independent Public Accountants.
(k) SOLVENCY CERTIFICATE. BAFC, the Collateral Agent,
the Letter of Credit Agent, the Administrative Agent and the
Trustee shall have received a certificate dated the Series
0000-0 Xxxxxxxx Date and signed by a Responsible Officer of
the Company, in form satisfactory to BAFC, the Letter of
Credit Agent and the Administrative Agent, to the effect that
the Company will be Solvent after giving effect to the
transactions occurring on the Series 0000-0 Xxxxxxxx Date.
(l) REPRESENTATIONS AND WARRANTIES. On the Series
0000-0 Xxxxxxxx Date, the representations and warranties of
the Company and the Servicer in the Agreement, the Servicing
Agreement and this Supplement shall be true and correct in all
material respects.
(m) ESTABLISHMENT OF ACCOUNTS. BAFC, the Collateral
Agent, the Letter of Credit Agent, the Administrative Agent
and the Trustee (x) shall have received evidence of the
establishment of the Collection Account and the Collateral
Accounts (other than the Reserve Account) and (y) shall
otherwise be satisfied with the arrangements for collection of
the Purchased Loans pursuant to the Transaction Documents.
(n) BAFC RATING. BAFC, the Collateral Agent, the
Administrative Agent and the Trustee shall have received a
letter from S&P confirming its "A-1" rating of BAFC's
commercial paper, a letter from Xxxxx'x confirming its "P-1"
rating of BAFC's commercial paper and a letter from Fitch
confirming its "F1" rating of BAFC's commercial paper.
(o) DAILY REPORT. BAFC, the Collateral Agent, the
Administrative Agent and the Trustee shall have received a
Daily Report on the Series 2000-1 Issuance Date.
(p) NO LITIGATION. BAFC, the Trustee, the Collateral
Agent, the Letter of Credit Agent and the Administrative Agent
shall have received confirmation that there is no pending or,
to their knowledge after due inquiry, threatened action or
proceeding affecting a Seller, the Servicer, the Company or
any of their Subsidiaries before any Governmental Authority
that could reasonably be expected to have a Material Adverse
Effect.
(q) BACK-UP SERVICING ARRANGEMENTS. BAFC, the
Trustee, the Collateral Agent, the Letter of Credit Agent and
the Administrative Agent shall have
21
received evidence that each Seller and the Servicer maintains
disaster recovery systems and back-up computer and other
information management systems that, in BAFC's, the Letter of
Credit Agent's and the Administrative Agent's reasonable
judgement, are sufficient to protect such Seller's and such
Servicer's business against material interruption or loss or
destruction of its primary computer and information management
systems.
(r) FILINGS, REGISTRATIONS AND RECORDINGS.
(i) Each Seller shall have filed and
recorded before such Series 0000-0 Xxxxxxxx Date, at
its own expense, UCC-1 financing statements (or other
similar filings) with respect to the Purchased Loans
and other Loan Assets (as defined with respect to the
Sale Agreement) in such manner and in such
jurisdictions as are necessary to perfect the
Company's ownership interest thereof under the
relevant UCC (or similar laws) and delivered evidence
of such filings to BAFC, the Trustee, the Collateral
Agent, the Letter of Credit Agent and the
Administrative Agent on or prior to such Series
0000-0 Xxxxxxxx Date, and all other action (including
but not limited to notifying related Obligors of the
assignment of a Purchased Loan, except to the extent
that the relevant UCC and other similar laws (to the
extent applicable) permit the Seller (or the Company
or its assignees) to provide such notification
subsequent to the 0000-0 Xxxxxxxx Date without
materially impairing the Company's ownership of or
security interest in the Purchased Loans and without
incurring material expenses in connection with such
notification) necessary to perfect under the relevant
UCC and other similar laws (to the extent applicable)
in jurisdictions outside the United States (to the
extent applicable) the Company's ownership of or
security interest in the Purchased Loans and other
Loan Assets (as defined with respect to the Sale
Agreement) shall have been duly taken; and
(ii) The Company (or the Servicer on its
behalf) shall have filed and recorded before such
Series 0000-0 Xxxxxxxx Date, at its own expense,
UCC-1 financing statements (or other similar filings)
with respect to the Trust Assets in such manner and
in such jurisdictions as are necessary to perfect and
maintain perfection of the assignment of the Trust
Assets to the Trust and delivered evidence of such
filings to the BAFC, the Trustee, the Collateral
Agent, the Letter of Credit Agent and the
Administrative Agent on or prior to such Series
0000-0 Xxxxxxxx Date, and all other action (including
but not limited to notifying related Obligors of the
assignment of a Purchased Loan, except to the extent
that the relevant UCC and other similar laws (to the
extent applicable) permit the Company (or its
assignees) to provide such notification subsequent to
the Series 0000-0 Xxxxxxxx Date without materially
impairing the Trust's ownership or security interest
of the Trust Assets and without incurring material
expenses in connection with such notification)
necessary to perfect under the relevant UCC and other
similar laws (to the extent applicable) in
jurisdictions outside the United
22
States (to the extent applicable) the Trust's
security interest or ownership of the Trust Assets
shall have been duly taken by the Company (or by the
Servicer on behalf of the Company).
(s) OTHER REQUESTS. The Collateral Agent, the Letter
of Credit Agent and the Administrative Agent shall have
received such other approvals, opinions or documents as it may
reasonably request.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. RATIFICATION OF AGREEMENT. As supplemented by
this Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
SECTION 9.02. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, EXCEPT TO
THE EXTENT ISSUES OF PERFECTION ARE GOVERNED BY THE LAWS OF ANOTHER
JURISDICTION.
SECTION 9.03. FURTHER ASSURANCES. Each of the Company, the
Servicer and the Trustee agrees, from time to time, to do and perform any and
all acts and to execute any and all further instruments required or reasonably
requested by BAFC, the Letter of Credit Agent or the Administrative Agent more
fully to effect the purposes of this Supplement and the sale of the Series
2000-1 VFC Certificate and the Series 2000-1 VFC Beneficial Interests hereunder,
including, without limitation, in the case of the Company and the Servicer, the
execution of any financing or registration statements or similar documents or
notices or continuation statements relating to the Purchased Loans and the other
Trust Assets for filing or registration under the provisions of the relevant UCC
or similar legislation of any applicable jurisdiction, provided that, in the
case of the Trustee, in furtherance and without limiting the generality of
SUBSECTION 8.01(d) of the Agreement, the Trustee shall have received reasonable
assurance in writing of adequate reimbursement and indemnity in connection with
taking such action before the Trustee shall be required to take any such action.
SECTION 9.04. PAYMENTS. Each payment to be made hereunder
shall be made on the required payment date in Dollars and in immediately
available funds, and if such payment is to be made to the Series 2000-1
Purchaser or any Secured Party, such payment shall be deposited in the Cash
Collateral Account for distribution in accordance with the Security Agreement.
If neither BAFC nor the Collateral Agent is the registered holder of the Series
2000-1 VFC Certificate, such payments shall be made in accordance with the
payment instructions from any subsequent registered holder of the Series 2000-1
VFC Certificate.
23
SECTION 9.05. COSTS AND EXPENSES. The Company agrees to pay
all reasonable fees and out-of-pocket costs and expenses of BAFC (including,
without limitation, reasonable fees and disbursements of counsel to BAFC) in
connection with (i) the preparation, execution and delivery of this Supplement,
the Agreement, and the other Transaction Documents and amendments or waivers of
any such documents, (ii) the reasonable enforcement by BAFC of the obligations
and liabilities of the Company and the Servicer under the Agreement, this
Supplement or any related document, (iii) any restructuring or workout of the
Agreement, this Supplement or any related document and (iv) any inspection of
the Company's and/or the Servicer's offices, properties, books and records and
any discussions with the officers, employees and the Independent Public
Accountants of the Company or the Servicer; PROVIDED, HOWEVER, that any payments
made by the Company pursuant to this Section shall be Company Subordinated
Obligations.
SECTION 9.06. NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of the Trustee, the Letter of
Credit Agent, the Administrative Agent, the Series 2000-1 Purchaser or the
Collateral Agent, any right, remedy, power or privilege hereunder, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 9.07. AMENDMENTS.
(a) Subject to SUBSECTION (c) of this SECTION 9.07,
this Supplement may be amended in writing from time to time by
the Servicer, the Company and the Trustee, with the prior
written notice to BAFC, the Collateral Agent, the Letter of
Credit Agent and the Administrative Agent, but without the
consent of BAFC, the Collateral Agent, the Letter of Credit
Agent and the Administrative Agent, to cure any ambiguity, to
correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or to add any
other provisions to or change in any manner or eliminate any
of the provisions with respect to matters or questions raised
under this Supplement which shall not be inconsistent with the
provisions of any Pooling and Servicing Agreement; PROVIDED,
HOWEVER, that such action shall not, as evidenced by a
Responsible Officer's Certificate of the Servicer delivered to
the Trustee upon which the Trustee may conclusively rely, have
a Material Adverse Effect (but, to the extent that the
determination of whether such action would have a Material
Adverse Effect requires a conclusion as to a question of law,
an Opinion of Counsel shall be delivered by the Servicer to
the Trustee in addition to such Responsible Officer's
Certificate). The Trustee may, but shall not be obligated to,
enter into any such amendment pursuant to this paragraph or
paragraph (b) below that affects the Trustee's rights, duties
or immunities under any Pooling and Servicing Agreement or
otherwise.
24
(b) Subject to SUBSECTION (c) of this SECTION 9.07,
this Supplement may also be amended (other than in the
circumstances referred to in SUBSECTION (a)) in writing from
time to time by the Servicer, the Company and the Trustee with
the written consent of BAFC, the Collateral Agent, the Letter
of Credit Agent, the Majority Letter of Credit Banks, the
Administrative Agent and the Majority Liquidity Banks for the
purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Supplement or of
modifying in any manner the rights of BAFC, the Collateral
Agent, the Letter of Credit Agent, the Letter of Credit Banks,
the Administrative Agent or the Liquidity Banks; PROVIDED,
HOWEVER, that no such amendment shall, unless signed or
consented to in writing by the Letter of Credit Banks and all
Liquidity Banks, (i) extend the time for payment, or reduce
the amount, of any amount of money payable to or for the
account of the Series 2000-1 Purchaser under any provision of
this Supplement or extend the Series 2000-1 Termination Date,
(ii) subject the Series 2000-1 Purchaser to any additional
obligation (including, without limitation, any change in the
determination of any amount payable by the Series 0000-0
Xxxxxxxxx) or (iii) change the Series 2000-1 Maximum Invested
Amount or the number of Letter of Credit Banks or Liquidity
Banks which shall be required for any action under this
subsection or any other provision of this Supplement.
(c) No amendment to this Supplement shall be
effective until (i) if such amendment is material, the Rating
Agency Condition is satisfied and (ii) with respect to all
such amendments, prior written notice is given to the Series
2000-1 Rating Agencies.
(d) The Company and the Trustee hereby agree that the
Company and the Trustee may not perform a Company Exchange in
accordance with SECTION 5.10 of the Agreement without
obtaining (i) the prior written consent of BAFC, the Letter of
Credit Banks having, in the aggregate, more than 66-2/3% of
the Letter of Credit Commitment and the Liquidity Banks
having, in the aggregate, more than 66 2/3% of the Liquidity
Commitment, and (ii) satisfaction of the Rating Agency
Condition.
SECTION 9.08. SEVERABILITY. If any provision hereof is void or
unenforceable in any jurisdiction, such status shall not affect the validity or
enforceability of (i) such provision in any other jurisdiction or (ii) any other
provision hereof in such or any other jurisdiction.
SECTION 9.09. NOTICES. All notices, requests and demands to or
upon any party hereto to be effective shall be given (i) in the case of the
Company, the Servicer and the Trustee, in the manner set forth in SECTION 10.05
of the Agreement and (ii) in the case of the Series 2000-1 Purchaser, the Letter
of Credit Agent, each Letter of Credit Bank, each Liquidity Bank, the
Administrative Agent, the Collateral Agent and the Series 2000-1 Rating
Agencies, in writing (including a confirmed transmission by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand or three days after being deposited in the
mail, postage prepaid, or, in the case of telecopy notice,
25
when received, at their respective Notice Addresses or to such other address as
may be hereafter notified by the respective parties hereto.
SECTION 9.10. SUCCESSORS AND ASSIGNS.
(a) This Supplement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns.
(b) Neither the Company nor the Servicer shall assign
or delegate any of its rights or duties hereunder other than
to an Affiliate thereof without the prior written consent of
the Trustee, the Series 2000-1 Purchaser, the Letter of Credit
Agent, the Administrative Agent and the Collateral Agent, and
any attempted assignment without such consent shall be null
and void.
(c) Notwithstanding any other provisions herein, no
transfer or assignment of any interests or obligations of the
Series 2000-1 Purchaser hereunder or any grant of
participation therein shall be permitted (i) if such transfer,
assignment or grant would result in a prohibited transaction
under Section 4975 of the Internal Revenue Code or Section 406
of ERISA or cause the Trust Assets to be regarded as "plan
assets" pursuant to 29 C.F.R. ss. 2510.3-101, and (ii) unless
the transferee shall deliver to the Trustee, the Company and
the Collateral Agent an officer's certificate and an opinion
of counsel that such transfer, assignment or grant would not
require the Company or the Sellers to file a registration
statement with the Securities and Exchange Commission.
SECTION 9.11. COUNTERPARTS. This Supplement may be executed in
any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same agreement.
SECTION 9.12. SETOFF. In addition to any rights and remedies
of the Series 2000-1 Purchaser provided by law, the Series 2000-1 Purchaser
shall have the right, without prior notice to the Company, any such notice being
expressly waived by the Company to the extent permitted by applicable law, upon
any amount becoming due and payable by the Company hereunder or under the Series
2000-1 VFC Certificate to setoff and appropriate and apply against any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Series 0000-0 Xxxxxxxxx to or for
the credit or the account of the Company. The Series 2000-1 Purchaser agrees
promptly to notify the Company, the Trustee, the Letter of Credit Agent, the
Collateral Agent and the Administrative Agent after any the setoff and
application made by the Series 0000-0 Xxxxxxxxx; PROVIDED that the failure to
give such notice shall not affect the validity of such setoff and application.
26
SECTION 9.13. NO BANKRUPTCY PETITION; NO RECOURSE.
(a) (i) The Series 2000-1 Purchaser, the Collateral
Agent, the Administrative Agent, the Liquidity Banks, the
Letter of Credit Agent, the Letter of Credit Banks, the
Servicer and the Trustee each hereby covenants and agrees that
prior to the date which is one year and one day after all
Investor Certificates of each Outstanding Series are repaid in
full it will not institute against, or join with or assist any
other Person in instituting against, the Company any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other similar proceedings under
any Applicable Insolvency Laws. (ii) Notwithstanding anything
elsewhere herein contained, the sole remedy of the Collateral
Agent, the Administrative Agent, the Liquidity Banks, the
Letter of Credit Agent, the Letter of Credit Banks, the
Servicer, the Trustee, the Series 2000-1 Purchaser, or any
other Person in respect of any obligation, covenant,
representation, warranty or agreement of the Company under or
related to this Supplement shall be against the assets of the
Company. Neither the Collateral Agent, nor the Administrative
Agent, nor the Liquidity Banks, nor the Letter of Credit
Agent, nor the Letter of Credit Banks, nor the Series 2000-1
Purchaser, nor the Trustee, nor the Servicer, nor any other
Person shall have any claim against the Company to the extent
that such assets are insufficient to meet any such obligation,
covenant, representation, warranty or agreement (the
difference being referred to herein as "shortfall") and all
claims in respect of the shortfall shall be extinguished. A
director, officer, employee or shareholder, as such, of the
Servicer or the Company shall not have liability for any
obligation of the Servicer or the Company hereunder or under
any Transaction Document or for any claim based on, in respect
of, or by reason of, any Transaction Document, unless such
claim results from the gross negligence, fraudulent acts or
willful misconduct of such director, officer, employee or
shareholder.
(b)
(i) The Trustee, the Company, the Servicer,
the Collateral Agent, the Administrative Agent, the
Liquidity Banks, the Letter of Credit Agent and the
Letter of Credit Banks, each hereby covenant and
agree that prior to the date which is one year and
one day after the latest of (A) the last day of the
Series 2000-1 Amortization Period, (B) the date on
which all Series 0000-0 Xxxxxxxxx Unpaids are repaid
in full, and (C) the date on which all outstanding
Commercial Paper of BAFC is paid in full, it will not
institute against, or join with or assist any other
Person in instituting against, BAFC any bankruptcy,
reorganization, arrangement, insolvency or
liquidation proceedings, or other similar proceedings
under any Applicable Insolvency Laws.
(ii) Notwithstanding any other provision
hereof or of any other Transaction Documents, the
sole remedy of the Collateral Agent, the
Administrative Agent, the Liquidity Banks, the Letter
of Credit Agent, the Letter of Credit Banks, the
Servicer, the Trustee or any other Person in respect
of any
00
xxxxxxxxxx, xxxxxxxx, xxxxxxxxxxxxxx, xxxxxxxx or
agreement of BAFC under or related to this Supplement
or any other Transaction Document shall be against
the assets of BAFC. Neither the Collateral Agent, nor
the Administrative Agent, nor any Liquidity Bank, nor
the Letter of Credit Agent, nor any Letter of Credit
Bank, nor the Servicer, nor the Trustee nor any other
Person shall have any claim against BAFC 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 SECTION 9.13 apply solely
to the obligations of BAFC and shall not extinguish
such shortfall for purposes of the obligations of the
Guarantor to any Person under the Guaranty.
The provisions of this SECTION 9.13 shall survive
termination of this Agreement.
SECTION 9.14. LIMITATION ON ADDITION OF SELLERS.
Notwithstanding anything to the contrary contained in the Sale Agreement or the
Agreement, the Company shall not consent to the addition of a Seller thereunder
unless each of the following conditions shall have been satisfied.
(i) Each of the conditions set forth in
SECTION 3.05 of the Sale Agreement shall have been
satisfied and the Trustee shall have received
evidence in the form of a Responsible Officer's
Certificate as to that fact.
(ii) The Company, the Trustee, the
Collateral Agent, the Administrative Agent and the
Letter of Credit Agent, shall have received
confirmation that there is no pending or, to its
knowledge after due inquiry, threatened action or
proceeding affecting such additional Seller before
any Governmental Authority (A) that could reasonably
be expected to have a Material Adverse Effect, or (B)
that purports to affect the legality, validity or
enforceability or this Supplement, the Agreement or
any other Transaction Document or any of the
transactions contemplated hereby or thereby.
(iii) The Company, the Trustee, the
Collateral Agent, the Administrative Agent and the
Letter of Credit Agent shall have received evidence
that the Rating Agency Condition shall have been
satisfied with respect to the addition of such
Seller.
(iv) The Administrative Agent and the Letter
of Credit Agent shall have provided prior written
consent to the addition of such Seller to Bunge.
(v) The Company, the Administrative Agent,
the Letter of Credit Agent, the Collateral Agent and
the Trustee shall have received Opinions of Counsel
of outside counsel addressed to the Company, the
Administrative Agent, the Letter of Credit Agent, the
Collateral Agent and the Trustee covering
28
matters with respect to such Seller as were covered
in the Opinions of Counsel delivered on the Series
0000-0 Xxxxxxxx Date with respect to the original
Sellers.
(vi) The Company, the Trustee, the
Collateral Agent, the Administrative Agent and the
Letter of Credit Agent shall have received a
certificate prepared by a Responsible Officer of the
Servicer certifying that after giving effect to the
addition of such Seller, the Credits Outstanding
shall be equal to or less than the Available
Liquidity Commitment on the related Seller Addition
Date.
SECTION 9.15. JPMORGAN CHASE CONFLICT WAIVER. JPMorgan Chase
acts as Depositary, Administrative Agent and Liquidity Bank and may provide
other services or facilities from time to time (the "JPMORGAN CHASE ROLES").
Each Liquidity Bank and each other party hereto hereby acknowledges and consents
to any and all JPMorgan Chase Roles, waives any objections it may have to any
actual or potential conflict of interest caused by JPMorgan Chase's acting as
Administrative Agent, Depositary or as Liquidity Bank hereunder and acting as or
maintaining any of the JPMorgan Chase Roles, and agrees that in connection with
any JPMorgan Chase Role, JPMorgan Chase may take, or refrain from taking, any
action which it in its discretion deems appropriate.
SECTION 9.16. LIMITED RECOURSE.
No recourse under any obligation, covenant or agreement of
BAFC contained in the
Pooling Agreement shall be had against any incorporator,
stockholder, officer, director, employee or agent of BAFC or any of their
Affiliates (solely by virtue of such capacity) by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that the
Pooling Agreement
is solely a corporate obligation of BAFC individually, and that no personal
liability whatever shall attach to or be incurred by any incorporator,
stockholder, officer, director, employee or agent of BAFC or any of their
Affiliates (solely by virtue of such capacity) or any of them under or by reason
of any of the obligations, covenants or agreements of BAFC contained in the
Pooling Agreement, or implied therefrom, and that any and all personal liability
for breaches by BAFC of any of such obligations, covenants or agreements, either
at common law or at equity, or by statute, rule or regulation, of every such
incorporator, stockholder, officer, director, employee or agent is hereby
expressly waived as a condition of and in consideration for the execution of the
Pooling Agreement; PROVIDED that the foregoing shall not relieve any such Person
from any liability it might otherwise have as a result of fraudulent actions
taken or omissions made by them. The provisions of this SECTION 9.16 shall
survive termination of the
Pooling Agreement.
29
ARTICLE X
FINAL DISTRIBUTIONS
SECTION 10.01. CERTAIN DISTRIBUTIONS.
(a) Not later than 2:00 p.m.,
New York City time, on
the Distribution Date following the date on which the proceeds
from the disposition of the Purchased Loans pursuant to
SUBSECTION 7.02(b) of the Agreement are deposited into the
Series 2000-1 Collection Subaccount, the Trustee shall
distribute such amounts pursuant to Article III of this
Supplement.
(b) Notwithstanding anything to the contrary in this
Supplement or the Agreement, any distribution made pursuant to
this Section shall be deemed to be a final distribution
pursuant to SECTION 9.03 of the Agreement with respect to the
Series 2000-1 VFC Certificate.
30
IN WITNESS WHEREOF, the Company, the Servicer, the Trustee,
the Series 2000-1 Purchaser, the Collateral Agent, the Letter of Credit Agent
and the Administrative Agent have caused this Second Amended and Restated Series
2000-1 Supplement to be duly executed by their respective officers as of the day
and year first above written.
BUNGE FUNDING, INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President
BUNGE MANAGEMENT SERVICES,
INC., as Servicer
By: /s/ Xxxxxxxx Xxx
Name: Xxxxxxxx Xxx
Title: Vice President & Treasurer
THE BANK OF
NEW YORK,
not in its individual capacity but solely
as Trustee
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Assistant Vice President
BUNGE ASSET FUNDING CORP.,
as the Series 2000-1 Purchaser
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President
THE BANK OF NEW YORK,
as the Collateral Agent
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Assistant Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW
YORK BRANCH,
as the Letter of Credit Agent
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
JPMORGAN CHASE BANK,
as the Administrative Agent
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
SERIES 2000-1 COLLECTION SUBACCOUNT
Series 2000-1 Collection Subaccount #200805
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
SI-1
EXHIBIT A
TO
SERIES 2000-1 SUPPLEMENT
BUNGE MASTER TRUST
FORM OF SERIES 2000-1 VFC CERTIFICATE
REGISTERED UP TO $930,000,000.00 SERIES
NO. VFC-[ ] 2000-1 INVESTED AMOUNT*
*THE SERIES 2000-1 INVESTED AMOUNT OF THIS SERIES 2000-1 VFC
CERTIFICATE IS SUBJECT TO CHANGE AS DESCRIBED HEREIN.
THIS SERIES 2000-1 VFC CERTIFICATE AMENDS AND RESTATES THE
SECOND AMENDED AND RESTATED SERIES 2000-1 VFC CERTIFICATE THAT WAS ISSUED ON
JULY 12, 2001.
THIS SERIES 2000-1 VFC CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). NEITHER THIS SERIES
2000-1 VFC CERTIFICATE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS SERIES 2000-1 VFC CERTIFICATE IS NOT PERMITTED TO BE
TRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE
POOLING AGREEMENT AND SUPPLEMENT REFERRED TO
HEREIN.
This Series 2000-1 VFC Certificate evidences a fractional
undivided interest in the assets of the
BUNGE MASTER TRUST
the corpus of which consists of loans made by Bunge Finance Limited and Bunge
Finance North America, Inc. to Affiliates, which loans have been purchased by
Bunge Funding, Inc., a Delaware corporation, which in turn transferred and
assigned such receivables to the Bunge Master Trust.
(Not an interest in or recourse obligation of
Xxxxx Limited (except in its capacity as the Guarantor),
Bunge Funding, Inc. or any of their respective Affiliates)
A-1
This certifies that
BUNGE ASSET FUNDING CORP.
(the "SERIES 2000-1 VFC CERTIFICATEHOLDER") is the registered owner of a
fractional undivided interest in the assets of Bunge Master Trust (the "TRUST")
originally created pursuant to the Pooling Agreement, dated as of August 25,
2000 (as the same may from time to time be amended, restated, supplemented or
otherwise modified thereafter, the "POOLING AGREEMENT"), by and among Bunge
Funding, Inc., a Delaware corporation (the "COMPANY"), Bunge Management
Services, Inc., a Delaware corporation, as Servicer (the "SERVICER"), and The
Bank of New York as trustee (in such capacity, the "TRUSTEE") for the Trust, as
supplemented by the Series 2000-1 Supplement, dated as of August 25, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Supplement",
collectively, with the Pooling Agreement, the "AGREEMENT"), by and among the
Company, the Servicer, the Trustee, Bunge Asset Funding Corp. ("BAFC"), The Bank
of New York, as collateral agent (in such capacity the "COLLATERAL AGENT"),
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank International",
New York Branch, as letter of credit agent (in such capacity, the "LETTER OF
CREDIT AGENT") and JPMorgan Chase Bank, as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT"). The corpus of the Trust consists of
Purchased Loans and all other Trust Assets referred to in the Agreement.
Although a summary of certain provisions of the Agreement is set forth below,
this Series 2000-1 VFC Certificate does not purport to summarize the Agreement,
is qualified in its entirety by the terms and provisions of the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Trustee. A copy of the Agreement
may be requested by a holder hereof by writing to the Trustee at The Bank of New
York, 000 Xxxxxxx Xxxxxx, Xx. 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxx. To the extent not defined herein, the capitalized terms used herein
have the meanings ascribed to them in Annex X attached to the Agreement.
THIS SERIES 2000-1 VFC CERTIFICATE IS ISSUED UNDER AND IS
SUBJECT TO THE TERMS, PROVISIONS AND CONDITIONS OF THE AGREEMENT, TO WHICH
AGREEMENT THE SERIES 2000-1 VFC CERTIFICATEHOLDER, BY VIRTUE OF THE ACCEPTANCE
HEREOF, ASSENTS AND IS BOUND.
The Servicer, the Company, the Series 2000-1 VFC
Certificateholder and the Trustee intend, for federal, state and local income
and franchise tax purposes only (but for no other purpose), that the Series
2000-1 VFC Certificate be evidence of indebtedness of the Company secured by the
Trust Assets and that the Trust not be characterized as an association or
publicly traded partnership taxable as a corporation. The Series 2000-1 VFC
Certificateholder, by the acceptance hereof, agrees to treat the Series 2000-1
VFC Certificate for federal, state and local income and franchise tax purposes
(but for no other purpose) as indebtedness of the Company; PROVIDED, HOWEVER,
that nothing in this Series 2000-1 VFC Certificate or in the Transaction
Documents shall impose on the Company any personal liability in respect of this
Series 2000-1 VFC Certificate.
A-2
This Series 2000-1 VFC Certificate is the Investor Certificate
entitled "Bunge Master Trust, Series 2000-1 VFC Certificate" (the "SERIES 2000-1
VFC CERTIFICATE") representing a fractional undivided interest in the Trust
Assets, consisting of the right to receive the distributions specified in the
Supplement out of (i) the Series 2000-1 Invested Percentage (expressed as a
decimal) of Collections received with respect to the Purchased Loans and all
other funds on deposit in the Collection Account and (ii) to the extent such
interests appear in the Supplement, all other funds on deposit in the Series
2000-1 Collection Subaccount (collectively, the "SERIES 2000-1 VFC
CERTIFICATEHOLDER'S INTEREST"). The Trust Assets are allocated in part to the
Series 2000-1 VFC Certificateholder with the remainder allocated to the Investor
Certificateholders of other Series, if any, and to the Company. An Exchangeable
Company Interest representing the Company's interest in the Trust was issued to
the Company pursuant to the Pooling Agreement on August 25, 2000. The
Exchangeable Company Interest represents the interest in the Trust Assets not
represented by the Investor Certificates of each Outstanding Series. The
Exchangeable Company Interest may be decreased by the Company pursuant to the
Pooling Agreement in exchange for an increase in the Invested Amount of a Class
of Investor Certificates of an Outstanding Series, or one or more newly issued
Series of Investor Certificates, upon the conditions set forth in the Agreement.
Distributions with respect to this Series 2000-1 VFC
Certificate shall be paid by the Trustee in immediately available funds to the
Series 2000-1 VFC Certificateholder by depositing such funds in the Cash
Collateral Account or, if neither BAFC nor the Collateral Agent is the
registered holder of the Series 2000-1 VFC Certificate, in accordance with the
payment instructions from any subsequent registered holder of the Series 2000-1
VFC Certificate. Final payment of this Series 2000-1 VFC Certificate shall be
made only upon presentation and surrender of this Series 2000-1 VFC Certificate
at the office or agency specified in the notice of final distribution delivered
by the Trustee to the Series 2000-1 VFC Certificateholder in accordance with the
Agreement.
THIS SERIES 2000-1 VFC CERTIFICATE DOES NOT REPRESENT AN
OBLIGATION OF, OR AN INTEREST IN, BL (EXCEPT IN ITS CAPACITY AS THE GUARANTOR),
THE COMPANY, THE SERVICER OR ANY AFFILIATE OF EITHER OF THEM.
The transfer of this Series 2000-1 VFC Certificate shall be
registered in the Certificate Register upon surrender of this Series 2000-1 VFC
Certificate for registration of transfer at any office or agency maintained by
the Transfer Agent and Registrar accompanied by evidence of satisfaction of the
transfer restrictions set forth in SUBSECTION 9.10(c) of the Series 2000-1
Supplement and a written instrument of transfer, in a form satisfactory to the
Trustee, the Transfer Agent and Registrar, the Company and the Servicer, duly
executed by the Series 2000-1 VFC Certificateholder or the Series 2000-1 VFC
Certificateholder's attorney, and duly authorized in writing with such signature
guaranteed, and thereupon one or more new Series 2000-1 VFC Certificates of
authorized denominations and of like aggregate Fractional Undivided Interests
will be issued to the designated transferee or transferees.
A-3
The Company, the Trustee, the Servicer, the Transfer Agent and
Registrar, and any agent of any of them, may treat the person whose name is
recorded in the Series 2000-1 Register as the Series 2000-1 Purchaser for all
purposes of the Supplement, notwithstanding notice to the contrary.
It is expressly understood and agreed by the Company and the
Series 2000-1 VFC Certificateholder that (i) the Agreement is executed and
delivered by the Trustee, not individually or personally but solely as Trustee
of the Trust, in the exercise of the powers and authority conferred and vested
in it, (ii) the representations, undertakings and agreements made on the part of
the Trust in the Agreement are made and intended not as personal
representations, undertakings and agreements by the Trustee, but are made and
intended for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability of the Trustee,
individually or personally, to perform any covenant either expressed or implied
made on the part of the Trust in the Agreement, all such liability, if any,
being expressly waived by the parties who are signatories to the Agreement and
by any Person claiming by, through or under such parties; PROVIDED, HOWEVER, the
Trustee shall be liable in its individual capacity for its own willful
misconduct or gross negligence and for any tax assessed against the Trustee
based on or measured by any fees, commission or compensation received by it for
acting as Trustee and (iv) under no circumstances shall the Trustee be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under the Agreement.
The holder of this Series 2000-1 VFC Certificate is authorized
to record the date and amount of each increase and decrease in the Series 2000-1
Invested Amount with respect to such holder on the schedules annexed hereto and
made a part hereof and any such recordation shall constitute PRIMA FACIE
evidence of the accuracy of the information so recorded, absent manifest error,
PROVIDED that the failure of the holder of this Series 2000-1 VFC Certificate to
make such recordation (or any error in such recordation) shall not affect the
obligations of the Company, the Servicer or the Trustee under the Agreement.
This Series 2000-1 VFC Certificate shall be treated as a
"certificated security" for the purposes of Section 8-102(a)(4) of the New York
UCC.
THIS SERIES 2000-1 VFC CERTIFICATE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CONFLICT OF LAW PRINCIPLES.
By acceptance of this Series 2000-1 VFC Certificate, the
Series 2000-1 VFC Certificateholder hereby agrees that it will not institute
against, or join with or assist any other Person in instituting against, the
Company prior to the date which is one year and one day after all Investor
Certificates of each Outstanding Series are repaid in full any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any Applicable Insolvency Laws.
A-4
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this Series 2000-1
VFC Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
A-5
IN WITNESS WHEREOF, the Company, as agent of the Trust, has
caused this Series 2000-1 VFC Certificate to be duly executed.
Dated: February __, 2002
BUNGE FUNDING, INC.,
as agent of the Trust as authorized
pursuant to SECTION 5.01 of the Pooling
Agreement,
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
A-6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Series 2000-1 VFC Certificate referred to in the
within-mentioned Agreement.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Trustee,
By:
------------------------------------
Name:
----------------------------------
Authorized Signatory
Dated:
---------------------------------
A-7
Pay to the order of The Bank of New York, as Collateral Agent.
BUNGE ASSET FUNDING CORP.,
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-8
SCHEDULE 1
TO
SERIES 2000-1 VFC CERTIFICATE
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Series 2000-1 Series 2000-1
Increase in Decrease in Series 2000-1
Date Series 2000-1 Series 2000-1 Purchaser Notation
Purchaser Purchaser Invested Made By
Invested Invested Amount
Amount Amount
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A-9
EXHIBIT D
TO
SERIES 2000-1 SUPPLEMENT
FORM OF ISSUANCE/INCREASE NOTICE
____, 20__
BUNGE ASSET FUNDING CORP.
JPMORGAN CHASE BANK,
as Administrative Agent
THE BANK OF NEW YORK,
as Trustee
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL", NEW YORK BRANCH,
as Letter of Credit Agent
Ladies and Gentlemen;
Reference is hereby made to the Second Amended and Restated Series
2000-1 Supplement, dated as of February 26, 2002 (as amended or supplemented,
the "SUPPLEMENT"), among Bunge Funding, Inc. (the "COMPANY"), Bunge Management
Services, Inc. as Servicer (in such capacity, the "SERVICER"), Bunge Asset
Funding Corp. as Series 2000-1 Purchaser, The Bank of New York, as Collateral
Agent and as Trustee, JPMorgan Chase Bank, as Administrative Agent, and
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank International",
New York Branch, as Letter of Credit Agent. Capitalized terms used in this
Notice and not otherwise defined herein shall have the meanings assigned thereto
or incorporated by reference in the Supplement.
This Notice constitutes the notice recruited in connection
with [the initial issuance] [a Series 2000-1 Increase] pursuant to SUBSECTION
2.05(A) of the Supplement.
The [Servicer] [Company] hereby requests [a purchase in
respect of the initial issuance of the Series 2000-1 VFC Certificate] [a Series
2000-1 Increase] be made by the Series 2000-1 Purchaser on , in the aggregate
amount of $ .
The [Servicer] [Company] hereby represents and warrants, as of
the date of such [purchase] [Series 2000-1 Increase] after giving effect
thereto, that the conditions set forth in
D-1
SECTION 2.05 of the Supplement with respect to such [purchase] [Series 2000-1
Increase] have been satisfied.
D-2
IN WITNESS WHEREOF, the undersigned has caused this Notice to
be executed by its duly authorized officer as of the date first above written.
[BUNGE MANAGEMENT SERVICES, INC., as
Servicer] [BUNGE FUNDING, INC.]
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
D-3
