Contract
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Exhibit
10.1
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US$650,000,000
FACILITY
AGREEMENT
dated 28
MARCH 2008
for
BUNGE
FINANCE EUROPE B.V.
as
Borrower
arranged
by
BNP
PARIBAS
CALYON
FORTIS
BANK (NEDERLAND) N.V.
and
THE
ROYAL BANK OF SCOTLAND PLC
with
FORTIS
BANK (NEDERLAND) N.V.
acting
as Agent
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CONTENTS
| Clause |
Page
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| 1. | Definitions and Interpretation |
1
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| 2. | The Facility |
15
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| 3. | Purpose |
15
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| 4. | Conditions of Utilisation |
15
|
| 5. | Utilisation |
17
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| 6. | Repayment |
18
|
| 7. | Prepayment and Cancellation |
18
|
| 8. | Interest |
20
|
| 9. | Interest Periods |
21
|
| 10. | Changes to the Calculation of Interest |
21
|
| 11. | Fees |
22
|
| 12. | Tax Gross Up and Indemnities |
23
|
| 13. | Increased Costs |
25
|
| 14. | Other Indemnities |
27
|
| 15. | Mitigation by the Lenders |
28
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| 16. | Costs And Expenses |
28
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| 17. | Representations |
30
|
| 18. | Positive Covenants |
33
|
| 19. | Negative Covenants |
35
|
| 20. | Covenant of Agent and Lenders and patriot act notice |
38
|
| 21. | Events of Xxxxxxx |
00
|
| 00. | Use of Websites |
43
|
| 23. | Changes to the Lenders |
45
|
| 24. | Changes to the Borrower |
48
|
| 25. | Role of the Agent and the Arrangers |
49
|
| 26. | Conduct of Business by the Finance Parties |
54
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| 27. | Sharing Among the Finance Parties |
54
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| 28. | Payment Mechanics |
56
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| 29. | Set-Off |
57
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| 30. | Notices |
58
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| 31. | Calculations and Certificates |
59
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| 32. | Partial Invalidity |
60
|
| 33. | Remedies and Waivers |
60
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| 34. | Amendments and Waivers |
60
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| 35. | Counterparts |
61
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| 36. | Governing Law |
62
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| 37. | Enforcement |
62
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| SCHEDULE 1 Applicable Margin |
63
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| SCHEDULE 2 The Original Lenders |
65
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| SCHEDULE 3 Conditions Precedent |
67
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| SCHEDULE 4 Utilisation Request |
70
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| SCHEDULE 5 Mandatory Cost Formulae |
71
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| SCHEDULE 6 Form of Transfer Certificate |
74
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| SCHEDULE 7 Timetables |
76
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| SCHEDULE 8 Form of Confidentiality Undertaking |
77
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| EXHIBIT | Form of Parent Guarantee |
87
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THIS AGREEMENT is dated 28
March 2008 and made between:
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(1)
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BUNGE FINANCE EUROPE
B.V. a private company with limited liability (besloten vennootschap met
beperkte aansprakelijkheid) incorporated under the laws of The
Netherlands having its corporate seat (statutaire zetel) in
Rotterdam, The Netherlands and its registered office at 00000 Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of America and registered
with the commercial register (handelsregister) of the
Chamber of Commerce (Xxxxx van Koophandel)
in Rotterdam under number 24347428 (the “Borrower”);
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(2)
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BNP PARIBAS, CALYON, FORTIS BANK (NEDERLAND)
N.V. and THE ROYAL BANK OF SCOTLAND
plc as mandated lead arrangers (each an “Arranger” and together
the “Arrangers”);
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(3)
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THE FINANCIAL INSTITUTIONS
listed on Schedule 2 (The Original Lenders)
as lenders (the “Original
Lenders”); and
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(4)
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FORTIS BANK (NEDERLAND) N.V.
as agent of the other Finance Parties (the “Agent”).
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IT IS AGREED as
follows:
INTERPRETATION
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1.
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DEFINITIONS AND
INTERPRETATION
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1.1
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Definitions
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In this
Agreement:
“Additional Cost Rate” has the
meaning given to it in Schedule 5 (Mandatory Cost
Formulae).
“Affiliate” means, with respect
to any specified Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such specified
Person. For purposes of this definition “control” of a Person means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise, and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Applicable Margin” means as
set out in Schedule 1 (Applicable Margin)
hereto.
“Applicable Xxxxx’x Rating”
means the Rating that Moody’s provides of (i) the Parent or (ii) if Moody’s does
not provide a Rating of the Parent, then the Bunge Master Trust or (iii) if
Moody’s does not provide a Rating of the Parent or the Bunge Master Trust then
BLFC provided that BLFC
is at that time an Investor Certificateholder.
“Applicable Rating” means an
Applicable Xxxxx’x Rating or an Applicable S&P Rating.
“Applicable S&P Rating”
means the Rating that S&P provides of (i) the Parent or (ii) if S&P does
not provide a Rating of the Parent, then the Bunge Master Trust or (iii) if
S&P
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does not
provide a Rating of the Parent or the Bunge Master Trust then BLFC provided that BLFC is at that
time an Investor Certificateholder.
“Authorisation” means an
authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
“Availability Period” means the
period beginning on the date of this Agreement and ending on the Final Maturity
Date.
“Available Commitment” means,
on any date, a Lender’s Commitment minus:
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(a)
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its
participation in any outstanding Loans on such date;
and
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(b)
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in
relation to any proposed Utilisation, its participation in any Loans that
are due to be made on or before the proposed Utilisation
Date,
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other
than that Lender’s participation in any Loans that are due to be repaid or
prepaid on or before the proposed Utilisation Date.
“Available Facility” means the
aggregate for the time being of each Lender’s Available Commitment.
“BAFC” means Bunge Asset
Funding Corp., a Delaware corporation, and its successors and permitted
assigns.
“BLFC” means Xxxxx Limited
Finance Corp., a Delaware corporation, and its successors and permitted
assigns.
“Borrower Account” means any
account established by or for the Borrower, other than the Series 2003-1
Collection Subaccount (or any sub-subaccount thereof), for the purpose of
depositing funds borrowed hereunder or under any Pari Passu Indebtedness and any
amounts paid pursuant to the Series 2003-1 VFC Certificate and all amounts
received with respect to Hedge Agreements.
“Break Costs” means the amount
(if any) by which:
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(a)
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the
interest minus the Applicable Margin which a Lender should have received
for the period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the current
Interest Period in respect of that Loan or Unpaid Sum, had the principal
amount of that Loan or Unpaid Sum received been paid on the last day of
that Interest Period;
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exceeds:
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(b)
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the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount of that Loan or Unpaid Sum received by it on
deposit with a leading bank in the London interbank market for a period
starting on the Business Day following receipt or recovery and ending on
the last day of that Interest
Period.
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“Bunge Master Trust” means the
trust created pursuant to the Pooling Agreement.
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“Business Day” means a day
(other than a Saturday or Sunday) on which banks are open for general business
in London, Amsterdam and New York City.
“Change of Control” means that
(i) during any twelve (12) consecutive calendar months more than fifty per cent
(50%) of the members of the board of directors of the Parent who were members on
the first day of such period shall have resigned or been removed or replaced,
other than as a result of death, disability or change in personal circumstances,
or (ii) any Person or “Group” (as defined in Section 13(d)(3) of the United
States Securities Exchange Act of 1934, as amended, but excluding (a) any
employee benefit or stock ownership plans of the Parent and (b) members of the
Board of Directors and executive officers of the Parent as of the date of this
Agreement, members of the immediate families of such members and executive
officers, and family trusts and partnerships established by or for the benefit
of any of the foregoing individuals) shall have acquired (directly or
indirectly) more than fifty per cent (50%) of the combined voting power of all
classes of common stock of the Parent, except that the Parent’s purchase of its
common stock outstanding on the date of this Agreement which results in one or
more of the Parent’s shareholders of record as of the date of this Agreement
controlling more than fifty per cent (50%) of the combined voting power of all
classes of common stock of the Parent shall not constitute an acquisition for
the purposes of this Agreement.
“Commitment”
means:
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(a)
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in
relation to an Original Lender, the amount set opposite its name under the
heading “Commitment” in Schedule 2 (The Original Lenders)
and the amount of any other Commitment transferred to it under this
Agreement; and
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(b)
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in
relation to any other Lender, the amount of any Commitment transferred to
it under this Agreement,
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to the
extent not cancelled, reduced or transferred by it under this
Agreement.
“Confidentiality Undertaking”
means a confidentiality undertaking substantially in the form set out in
Schedule 8 or in any other form agreed between the Borrower and the
Agent.
“Contractual Obligation” means
as to any Person, any provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
“Daily Report” means a report
prepared by the Servicer on each Business Day required pursuant to Section 4.01
of the Servicing Agreement or Clause 18 (Positive Covenants) of this
Agreement, in substantially the form of Exhibit B attached to the
Series 2003-1 Supplement.
“Default” means an Event of
Default or any event or circumstance specified in Clause 21 (Events of Default) which
would (with the expiry of a grace period, the giving of notice, the making of
any determination under the Finance Documents or any combination of any of the
foregoing) be an Event of Default.
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“Defaulted Loan” has the
meaning as defined in Annex X of the Pooling Agreement.
“Delinquent Loan” has the
meaning as defined in Annex X of the Pooling Agreement.
“Designated Obligors” means the
Parent and the Subsidiaries of the Parent set forth on Schedule IV to the Parent
Guarantee (and their successors) and any other Subsidiaries of the Parent
designated by the Parent from time to time under the Pooling Agreement that
satisfy the conditions set forth in the definition of “Eligible Obligor” in
Annex X to the Pooling Agreement. Notwithstanding the immediately
preceding sentence, with the prior written consent of the Majority Lenders
(which consent shall not be unreasonably withheld), the Borrower may from time
to time identify, on the instructions of the Parent, the Parent and/or certain
Subsidiaries that shall not be classified as Designated Obligors.
“Dutch Civil Code” means the
Dutch Civil Code (Burgerlijk
Wetboek).
“Dutch FSA” means the Dutch
Financial Supervision Act (Wet
op het financieel toezicht), including any regulations issued pursuant
thereto.
“Event of Default” means any
event or circumstance specified as such in Clause 21 (Events of
Default).
“Facility” means the revolving
loan facility made available under this Agreement as described in Clause 2
(The
Facility).
“Facility Office” means the
office or offices notified by a Lender to the Agent in writing on or before the
date it becomes a Lender (or, following that date, by not less than five
Business Days’ written notice) as the office or offices through which it will
perform its obligations under this Agreement.
“Fee Letter” means any letter
or letters dated on or about the date of this Agreement between the Arrangers
and the Borrower (or the Agent and the Borrower) setting out any of the fees
referred to in Clause 11 (Fees).
“Final Maturity Date” means the
date falling 3 years from the date of the first Utilisation hereunder, or, if
such date is not a Business Day, the immediately preceding Business
Day.
“Finance Document” means this
Agreement, any Fee Letter, any Transfer Certificate, the Parent Guarantee and
any other agreement or document from time to time entered into pursuant to any
of the foregoing documents and any other document designated in writing as such
by the Agent and the Borrower.
“Finance Party” means the
Agent, an Arranger or a Lender.
“GAAP” means generally accepted
accounting principles in the United States, as in effect from time to
time.
“Governmental Authority” means
any nation or government, any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
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“Group” means the Borrower, the
Parent and the Designated Obligors.
“Guarantee Obligation” means as
to any Person (the “guaranteeing person”), any
obligation of (a) the guaranteeing person or (b) another Person (including any
bank under any letter of credit) with respect to which the guaranteeing person
has issued a reimbursement, counterindemnity or similar obligation, in either
case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the “primary obligations”) of any
other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount
of any Guarantee Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
“Hedge Agreements” means all
interest rate swaps, caps or collar agreements or similar arrangements dealing
with interest rates or currency exchange rates or the exchange of nominal
interest obligations, either generally or under specific
contingencies.
“Hedge Termination Amounts”
means, as the context requires hereunder, all amounts (i) due and owing by the
Borrower or (ii) received by the Borrower, in each case in connection with the
termination of a Hedge Agreement entered into by the Borrower.
“Holding Company” means, in
relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
“Indebtedness” means, as to any
Person, without duplication:
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(a)
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all
obligations of such Person for borrowed
money;
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(b)
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all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
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(c)
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all
obligations of such Person to pay the deferred purchase price of property,
except trade accounts payable arising in the ordinary course of
business;
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(d)
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all
obligations of such Person as lessee which are capitalised in accordance
with GAAP;
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(e)
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all
obligations of such Person created or arising under any conditional sales
or other title retention agreement with respect to any property acquired
by such Person (including, without limitation, obligations under any such
agreement which provides that the rights and remedies of the seller or
lender thereunder in the event of default are limited to repossession or
sale of such property);
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(f)
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all
obligations of such Person with respect to letters of credit and similar
instruments including, without limitation, obligations under reimbursement
agreements;
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(g)
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all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has existing right, contingent or otherwise, to be secured
by) a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person;
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(h)
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all
net obligations of such Person in respect of equity derivatives and Hedge
Agreements; and
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(i)
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all
Guarantee Obligations of such Person (other than guarantees of obligations
of direct or indirect Subsidiaries of such
Person).
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“Information Memorandum” means
the document in the form approved by the Borrower and the Parent concerning the
Borrower and the Parent which, at their request and on their behalf, was
prepared in relation to this transaction and distributed by the Arrangers to
selected financial institutions before the date of this Agreement.
“Interest Period” means, in
relation to a Loan, each period determined in accordance with Clause 9
(Interest
Periods) and, in relation to an Unpaid Sum, each period determined
in accordance with Clause 8.3 (Default
interest).
“Investor Certificateholder”
has the meaning as defined in Annex X to the Pooling Agreement.
“Lender” means:
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(a)
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any
Original Lender; and
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(b)
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any
bank, financial institution, trust, fund or other entity which has become
a Party in accordance with Clause 23 (Changes to the
Lenders),
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which in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
“LIBOR” means, in relation to
any Loan:
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(a)
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the
applicable Screen Rate; or
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(b)
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(if
no Screen Rate is available for the currency or Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to four decimal
places) as
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supplied
to the Agent at its request quoted by the Reference Banks to leading banks
in the London interbank market,
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in each
case, as of the Specified Time on the Quotation Day for the offering of deposits
in the currency of that Loan and for a period comparable to the Interest Period
for that Loan.
“Lien” means with respect to
any asset (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or
security interest in or on such asset and (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement relating to such asset.
“Loan” means a loan made or to
be made under the Facility or (as the context requires) the principal amount
outstanding for the time being of the loan.
“Majority Lenders”
means:
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(a)
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if
there are no Loans then outstanding, a Lender or Lenders whose Commitments
aggregate more than 662/3% of
the Total Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 662/3% of
the Total Commitments immediately prior to the reduction);
or
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(b)
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at
any other time, a Lender or Lenders whose participations in the Loans then
outstanding aggregate more than 662/3% of
all the Loans then outstanding.
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“Mandatory Cost” means the
percentage rate per annum calculated by the Agent in accordance with Schedule 5
(Mandatory Cost
Formulae).
“Master Trust Approved
Currencies” means U.S. dollars, euro, sterling and yen.
“Master Trust Guaranty” means
the Sixth Amended and Restated Guaranty made as of 11 June 2007 by the Parent to
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank International”,
New York Branch, as letter of credit agent, XX Xxxxxx Xxxxx Bank, N.A. as
administrative agent, and The Bank of New York, as collateral agent and trustee,
as the same may be amended, supplemented or otherwise modified in accordance
with the terms hereof from time to time.
“Material Adverse Effect”
means:
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(a)
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a
material adverse effect on the business, property, operations, condition
(financial or otherwise) or prospects of the Borrower or of the Parent and
its consolidated Subsidiaries taken as a
whole;
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(b)
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a
material impairment of the collectability of the Purchased Loans taken as
a whole; or
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(c)
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a
material impairment of the validity or enforceability of this Agreement or
any of the other Finance Documents or of the Transaction Documents or the
rights or remedies of the Agent or the Lenders against the Borrower or the
Parent hereunder or under the other Finance
Documents.
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“Month” means a period starting
on one day in a calendar month and ending on the numerically corresponding day
in the next calendar month, except that:
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(a)
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(subject
to paragraph (c) below) if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business
Day;
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(b)
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if
there is no numerically corresponding day in the calendar month in which
that period is to end, that period shall end on the last Business Day in
that calendar month; and
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(c)
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if
an Interest Period begins on the last Business Day of a calendar month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end.
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The above
rules will only apply to the last Month of any period.
“Monthly Settlement Statement”
has the meaning defined in Annex X to the Pooling Agreement.
“Moody’s” means Xxxxx’x
Investors Service, Inc. or any successor of Moody’s credit ratings
service.
“Obligors” means the Parent and
the Borrower.
“Parent” means Xxxxx Limited, a
company formed under the laws of Bermuda having its registered office at
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX 11 Bermuda.
“Parent Guarantee” means the
guarantee given by the Parent in the form set out in the Exhibit to this
Agreement, as the same may be amended, supplemented or otherwise modified in
accordance with the terms of the Finance Documents.
“Pari Passu Indebtedness”
means:
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(a)
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Indebtedness
for borrowed money, the proceeds of which are used to increase the Series
2003-1 Invested Amount and/or to refinance Indebtedness originally used
for such purpose; and
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(b)
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Indebtedness
incurred in connection with Hedge Agreements entered into in connection
with the Commitments hereunder and any Pari Passu Indebtedness described
in paragraph (a) above,
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in each
case which ranks not greater than pari passu (in priority of
payment) with the Loans.
“Participating Member State”
means any member state of the European Communities that adopts or has adopted
the euro as its lawful currency in accordance with legislation of the European
Community relating to Economic and Monetary Union.
“Party” means a party to this
Agreement.
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“Payment Period” means a period
commencing on a date on which the Loans (with accrued interest thereon) and all
other amounts owing under this Agreement and the other Finance Documents have
become due and payable (whether at the stated maturity, by acceleration or
otherwise) and ending on the date the Loans (with accrued interest thereon) and
all such other amounts are paid in full by the Borrower or the
Parent.
“Permitted Indebtedness”
means:
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(a)
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Indebtedness
of the Borrower pursuant to this Agreement;
and
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(b)
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Pari
Passu Indebtedness.
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“Person” means an individual,
partnership, corporation, limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
“Pooling Agreement” means the
Fifth Amended and Restated Pooling Agreement, dated as of 28 June 2004, among
Bunge Funding, Inc., the Servicer and The Bank of New York, as trustee, as the
same may be amended, supplemented or otherwise modified in accordance with the
terms hereof from time to time.
“Purchased Loan” has the
meaning defined in Annex X to the Pooling Agreement.
“Quotation Day” means, in
relation to any period for which an interest rate is to be determined two
Business Days before the first day of that period unless market practice differs
in the London interbank market for a currency in which case the Quotation Day
for that currency will be determined by the Agent in accordance with market
practice in the London interbank market (and if quotations would normally be
given by leading banks in the London interbank market on more than one day, the
Quotation Day will be the last of those days).
“Rate of Exchange” means as of
the relevant date, the rate of exchange set forth on the relevant page of the
Reuters screen on or about 11.00 a.m., New York City time, for the purchase of
(as the context will require) a Master Trust Approved Currency with any other
Master Trust Approved Currency on such date.
“Rating Agencies” means
collectively, S&P and Xxxxx’x.
“Rating” means the rating of
the Rating Agencies applicable to senior long-term, unsecured debt as announced
by the Rating Agencies.
“Reference Banks” means the
principal London offices of BNP Paribas, Calyon, Fortis Bank (Nederland) N.V.
and the Royal Bank of Scotland plc, or such other banks as may be appointed by
the Agent in consultation with the Borrower.
“Repeating Representations”
means each of the representations set out in Clauses 17.1 (Existence: Compliance with
Law) to 17.6 (No
default), paragraph (c) of Clause 17.11 (No misleading information),
Clause 17.12 (No
Subsidiaries), Clause 17.14 (Pari passu ranking) and
Clause 17.16 (Limited
Purpose), Clause 17.17 (No Change) and Clause 17.19
(Tax
Status).
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“Requirement of Law” means as
to any Person, the Certificate of Incorporation and By-Laws or other
organisational or governing documents of such Person, and any law, treaty, rule
or regulation or determination of an arbitrator or a court or other Governmental
Authority (and including, for the avoidance of doubt, all applicable
environmental laws and regulations and the Employee Retirement Income Security
Act of 1974), in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is
subject.
“Responsible Officer” means any
member of the board of directors (bestuur), the Chief Executive
Officer, the President, the Chief Financial Officer or the Treasurer of the
Borrower or Parent, as applicable, or any other officer of the Borrower or
Parent, as applicable, customarily performing functions similar to those
performed by any of the above-designated officers.
“Rollover Loan” means one or
more Loans:
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(a)
|
made
or to be made on the same day that a maturing Loan is due to be
repaid;
|
|
|
(b)
|
the
aggregate amount of which is equal to or less than the maturing Loan;
and
|
|
|
(c)
|
made
or to be made for the purpose of refinancing a maturing
Loan.
|
“Sale Agreement” means the
Second Amended and Restated Sale Agreement, dated as of September 6, 2002, among
Bunge Funding Inc., as buyer, Bunge Finance Limited, a Bermuda company, as a
seller, and Bunge Finance North America, Inc. a Delaware corporation, as a
seller, as the same may be amended, supplemented or otherwise modified in
accordance with the terms hereof from time to time.
“S&P” means Standard &
Poor’s Rating Services, a division of the XxXxxx-Xxxx Companies, Inc. or any
successor of S&P’s credit ratings service.
“Screen Rate” means the British
Bankers’ Association Interest Settlement Rate for the relevant currency and
period displayed on the appropriate page of the Reuters screen. If the agreed
page is replaced or service ceases to be available, the Agent may specify
another page or service displaying the appropriate rate after consultation with
the Borrower and the Lenders.
“Series 2003-1 Accrued
Interest” shall have the meaning assigned in subsection 3A.03 of Series
2003-1 Supplement.
“Series 2003-1 Adjusted Invested
Amount” shall mean, as of any date of determination, (i) the Series
2003-1 Invested Amount (as defined in Annex X to the Pooling Agreement) on such
date, minus (ii) the amount on deposit in the Series 2003-1 Collection
Subaccount on such date that is available to reduce the Series 2003-1 Invested
Amount up to a maximum of the Series 2003-1 Invested Amount.
“Series 2003-1 Allocated Loan
Amount” shall mean, on any date of determination, the lower of (i) the
Series 2003-1 Target Loan Amount on such day and (ii) the product of (x) the
Aggregate Loan Amount (as defined in Annex X to the Pooling Agreement) on such
day times (y) the percentage equivalent of a fraction the numerator of which is
the
- 10
-
Series
2003-1 Target Loan Amount on such day and the denominator of which is the
Aggregate Target Loan Amount (as defined in Annex X to the Pooling Agreement) on
such day.
“Series 2003-1 Collection
Subaccount” shall have the meaning assigned in subsection 3A.02(a) of the
Series 2003-1 Supplement.
“Series 2003-1 Early Amortisation
Event” shall have the meanings assigned in Section 5.01 of the Series
2003-1 Supplement and Section 7.01 of the Pooling Agreement.
“Series 2003-1 Supplement”
means the Bunge Master Trust Series 2003-1 First Amended and Restated Supplement
dated as of 15 February 2008 to the Pooling Agreement among Bunge Funding, Inc.,
as company, the Servicer, the Borrower, as Series 2003-1 Purchaser and The Bank
of New York, as trustee, as the same may be amended, supplemented or otherwise
modified in accordance with the terms hereof from time to time.
“Series 2003-1 Target Loan
Amount” shall mean, on any date of determination, the sum of (i) the
Series 2003-1 Adjusted Invested Amount on such date plus (ii) the result of (a)
Series 2003-1 Accrued Interest on such day minus (b) the amount on deposit in
the Series 2003-1 Collection Subaccount on such day that is available to pay
such Series 2003-1 Accrued Interest.
“Series 2003-1 VFC Certificate”
shall mean the First Amended and Restated Series 2003-1 VFC Certificate executed
by Bunge Funding, Inc. and authenticated by or on behalf of The Bank of New
York, as trustee, substantially in the form of Exhibit A attached to the Series
2003-1 Supplement.
“Servicer” means Bunge
Management Services, Inc., a Delaware corporation, and any “Successor Servicer”
(as defined in Annex X to the Pooling Agreement).
“Servicing Agreement” means the
Third Amended and Restated Servicing Agreement, dated as of 23 December 2003
among Bunge Funding, Inc., the Servicer and The Bank of New York, as trustee, as
the same may be amended, supplemented or otherwise modified in accordance with
the terms hereof from time to time.
“Solvent” means with respect to
any Person on a particular date, that on such date (a) the fair value of the
property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, (b) the
present fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person’s ability to pay debts and liabilities as they mature and (d) such Person
is not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person’s property would constitute an
unreasonably small capital. The amount of contingent liabilities at
any such time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
- 11
-
“Specified Time” means a time
determined in accordance with Schedule 7 (Timetables).
“Subsidiary” means as to any
Person, a corporation, partnership, limited liability company or other entity of
which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a “Subsidiary”
or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Parent.
“Tax” means any tax, levy,
impost, duty or other charge or withholding of a similar nature (including any
penalty or interest payable in connection with any failure to pay or any delay
in paying any of the same).
“Total Commitments” means the
aggregate of the Commitments, being $650,000,000 at the date of this
Agreement.
“Transfer Certificate” means a
certificate substantially in the form set out in Schedule 6 (Form of Transfer Certificate)
or any other form agreed between the Agent and the Borrower.
“Transfer Date” means, in
relation to a transfer, the later of:
|
|
(a)
|
the
proposed transfer date specified in the Transfer Certificate;
and
|
|
|
(b)
|
the
date on which the Agent executes the Transfer
Certificate.
|
“Transaction Documents” means
the Master Trust Guaranty, the Pooling Agreement, the Series 2003-1 Supplement,
the Series 2003-1 VFC Certificate, the Sale Agreement and the Servicing
Agreement.
“Unpaid Sum” means any sum due
and payable but unpaid by the Borrower under the Finance Documents.
“US” and “United States” means the
United States of America, its territories, possessions and other areas subject
to the jurisdiction of the United States of America.
“Utilisation” means a
utilisation of the Facility.
“Utilisation Date” means the
date of a Utilisation, being the date on which the relevant Loan is to be
made.
“Utilisation Request” means a
notice substantially in the form set out in Schedule 4 (Utilisation
Request).
- 12
-
|
1.2
|
Construction
|
|
|
(a)
|
Unless
a contrary indication appears any reference in this Agreement
to:
|
|
|
(i)
|
the
“Agent”, any
“Arranger”, any
“Finance Party”,
any “Lender”, any
“Obligor” or any
“Party” shall be
construed so as to include its successors in title, permitted assigns and
permitted transferees;
|
|
|
(ii)
|
“assets” of any Person
shall be construed as a reference to the whole or any part of its
business, undertaking, property, assets, rights and revenues (including
any right to receive revenues);
|
|
|
(iii)
|
a
“Finance Document”
or any other agreement or instrument is a reference to that Finance
Document or other agreement or instrument as amended, supplemented or
novated;
|
|
|
(iv)
|
a
“regulation”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or
organisation;
|
|
|
(v)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
|
(vi)
|
a
time of day is a reference to London
time.
|
|
|
(b)
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
|
(c)
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
|
(d)
|
In
this Agreement, where it relates to a Dutch entity, a reference
to:
|
|
|
(i)
|
a
necessary action to authorise where applicable, includes without
limitation:
|
|
|
(A)
|
any
action required to comply with the Dutch Works Councils Act (Wet op de
ondernemingsraden); and
|
|
|
(B)
|
obtaining
an unconditional positive advice (advies) from the competent works
council(s);
|
|
|
(ii)
|
a
winding-up, administration or dissolution includes a Dutch entity
being:
|
|
|
(A)
|
declared
bankrupt (failliet
verklaard);
|
|
|
(B)
|
dissolved
(ontbonden);
|
|
|
(iii)
|
a
moratorium includes surseance van betaling
and granted a moratorium includes surséance
verleend;
|
- 13
-
|
|
(iv)
|
a
trustee in bankruptcy includes a
curator;
|
|
|
(v)
|
an
administrator includes a bewindvoerder;
|
|
|
(vi)
|
a(n)
(administrative) receiver does not include a curator or bewindvoerder;
and
|
|
|
(vii)
|
an
attachment includes a beslag.
|
|
1.3
|
Currency Symbols and
Definitions
|
“$” and “dollars” denote lawful
currency of the United States, “EUR” and “euro” means the single
currency unit of the Participating Member States, “£” and “sterling” denote lawful
currency of the United Kingdom of Great Britain and Northern Ireland and “yen” means the lawful currency
of Japan.
|
1.4
|
Third party
rights
|
|
|
(a)
|
Unless
expressly provided to the contrary in a Finance Document a person who is
not a Party has no right under the Contracts (Rights of Third Parties) Xxx
0000 (the “Third Parties
Act”) to enforce or to enjoy the benefit of any term of this
Agreement.
|
|
|
(b)
|
Notwithstanding
any term of any Finance Document, the consent of any person who is not a
Party is not required to rescind or vary this Agreement at any
time.
|
- 14
-
THE
FACILITY
|
2.
|
THE FACILITY
|
|
2.1
|
The Facility
|
Subject
to the terms of this Agreement, the Lenders make available to the Borrower a
dollar revolving loan facility in an aggregate amount equal to the Total
Commitments.
|
2.2
|
Finance Parties’ rights and
obligations
|
|
|
(a)
|
The
obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations
under the Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under the
Finance Documents.
|
|
|
(b)
|
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor shall be a
separate and independent debt.
|
|
|
(c)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
|
3.
|
PURPOSE
|
|
3.1
|
Purpose
|
The
Facility shall be available solely to (i) enable the Borrower to make advances
to the Xxxxx Master Trust pursuant to the Series 2003-1 VFC Certificate (ii)
repay Permitted Indebtedness outstanding from time to time, and (iii) pay
expenses incurred in connection with the Facility. The Borrower
undertakes that all amounts advanced to the Xxxxx Master Trust will be used by
the Xxxxx Master Trust to make (or refinance existing) intercompany loans to the
Designated Obligors for general corporate purposes.
|
3.2
|
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
|
4.
|
CONDITIONS OF
UTILISATION
|
|
4.1
|
Initial conditions
precedent
|
The
Borrower may not deliver a Utilisation Request unless the Agent has received all
of the documents and other evidence listed in Schedule 3 (Conditions Precedent) and
copies of any other document, authorisation, opinion or assurance reasonably
requested by the Agent in form and substance reasonably satisfactory to the
Agent. The Agent shall notify the Borrower and the Lenders promptly
upon being so satisfied.
- 15
-
|
4.2
|
Further conditions
precedent
|
The
Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) if on
the date of the Utilisation Request and on the proposed Utilisation
Date:
|
|
(a)
|
in
the case of a Rollover Loan, no Event of Default is continuing or would
result from the proposed Loan and, in the case of any other Loan, no
Default is
continuing or would result from the proposed Loan;
and
|
|
|
(b)
|
the
Repeating Representations to be made by the Borrower under this Agreement
and the representations to be made by the Parent under Section 7 of the
Parent Guarantee are true in all material
respects.
|
|
4.3
|
Maximum number of
Loans
|
The
Borrower may not deliver a Utilisation Request if as a result of the proposed
Utilisation more than 30 Loans shall be outstanding.
- 16
-
UTILISATION
|
5.
|
UTILISATION
|
|
5.1
|
Delivery of a Utilisation
Request
|
The
Borrower may utilise the Facility by delivery to the Agent of a duly completed
Utilisation Request not later than the Specified Time.
|
5.2
|
Completion of a Utilisation
Request
|
|
|
(a)
|
Each
Utilisation Request is irrevocable and will not be regarded as having been
duly completed unless:
|
|
|
(i)
|
the
proposed Utilisation Date is a Business Day within the Availability Period
and, in the case of the first Utilisation Date, a Business Day no later
than one Month after the date of this
Agreement;
|
|
|
(ii)
|
the
currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
and
|
|
|
(iii)
|
the
proposed Interest Period complies with Clause 9 (Interest
Periods).
|
|
|
(b)
|
Only
one Loan may be requested in each Utilisation
Request.
|
|
5.3
|
Currency and
amount
|
|
|
(a)
|
The
currency specified in a Utilisation Request must be
dollars.
|
|
|
(b)
|
The
amount of the proposed Loan must be a minimum of $10,000,000 or, if less,
the Available Facility.
|
|
5.4
|
Lenders’
participation
|
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender shall
make its participation in each Loan available by the Utilisation Date
through its Facility Office.
|
|
|
(b)
|
The
amount of each Lender’s participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the
Loan.
|
|
|
(c)
|
The
Agent shall notify each Lender of the amount of each Loan and the amount
of its participation in that Loan, in each case by the Specified
Time.
|
- 17
-
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
6.
|
REPAYMENT
|
The
Borrower shall repay each Loan on the last day of its Interest
Period.
|
7.
|
PREPAYMENT AND
CANCELLATION
|
|
7.1
|
Illegality
|
If, it
becomes unlawful, in any applicable jurisdiction for a Lender to perform any of
its obligations as contemplated by this Agreement or to fund or maintain its
participation in any Loan:
|
|
(a)
|
that
Lender shall promptly notify the Agent upon becoming aware of that
event;
|
|
|
(b)
|
upon
the Agent notifying the Borrower, the Commitment of that Lender will be
immediately cancelled; and
|
|
|
(c)
|
the
Borrower shall repay that Lender’s participation in the Loans made to the
Borrower on the last day of the Interest Period for each Loan occurring
after the Agent has notified the Borrower or, if earlier, the date
specified by the Lender in the notice delivered to the Agent (being no
earlier than the last day of any applicable grace period permitted by
law).
|
|
7.2
|
Change of
control
|
If after
the date of this Agreement (i) any Change of Control shall occur with respect to
the Parent, or (ii) the Borrower shall not be directly, or indirectly
wholly-owned by the Parent:
|
|
(a)
|
the
Borrower shall promptly notify the Agent upon becoming aware of that
event; and
|
|
|
(b)
|
the
Agent, acting on the instructions of the Majority Lenders, shall by not
less than 5 days’ notice to the Borrower, cancel the Facility and declare
all outstanding Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents immediately due and payable,
whereupon the Facility will be cancelled and all such outstanding amounts
will become immediately due and
payable.
|
|
7.3
|
Voluntary
cancellation
|
The
Borrower may, if it gives the Agent not less than 5 Business Days’ (or such
shorter period as the Majority Lenders may agree) prior notice, cancel the whole
or any part (being a minimum amount of $5,000,000) of the Available
Facility. Any cancellation under this Clause 7.3 shall reduce the
Commitments of the Lenders rateably. Any amounts cancelled under this
Clause 7.3 may not be reinstated.
|
7.4
|
Voluntary Prepayment of
Loans
|
The
Borrower may, if it gives the Agent not less than 5 Business Days’ (or such
shorter period as the Majority Lenders may agree) prior notice, prepay the whole
or any part of a Loan (but if in part, being an amount that reduces the Loan by
a minimum amount of $5,000,000).
- 18
-
|
7.5
|
Right of repayment and
cancellation in relation to a single
Lender
|
|
|
(a)
|
If:
|
|
|
(i)
|
any
sum payable to any Lender by the Borrower is required to be increased
under paragraph (c) of Clause 12.2 (Tax
gross-up);
|
|
|
(ii)
|
any
Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or
Clause 13.1 (Increased
costs),
|
the
Borrower may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender’s participation in the Loans.
|
|
(b)
|
On
receipt of a notice referred to in paragraph (a) above, the Commitment of
that Lender shall immediately be reduced to
zero.
|
|
|
(c)
|
On
the last day of each Interest Period which ends after the Borrower has
given notice under paragraph (a) above (or, if earlier, the date specified
by the Borrower in that notice), the Borrower shall repay that Lender’s
participation in that Loan.
|
|
7.6
|
Restrictions
|
|
|
(a)
|
Any
notice of cancellation or prepayment given by any Party under this Clause
7 shall be irrevocable and, unless a contrary indication appears in this
Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
|
|
|
(b)
|
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
|
|
|
(c)
|
Unless
a contrary indication appears in this Agreement, any part of the Facility
which is prepaid may be reborrowed in accordance with the terms of this
Agreement.
|
|
|
(d)
|
The
Borrower shall not repay or prepay all or any part of the Loans or cancel
all or any part of the Commitments except at the times and in the manner
expressly provided for in this
Agreement.
|
|
|
(e)
|
No
amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
|
|
|
(f)
|
If
the Agent receives a notice under this Clause 7 it shall promptly forward
a copy of that notice to either the Borrower or the affected Lender, as
appropriate.
|
- 19
-
COSTS
OF UTILISATION
|
8.
|
INTEREST
|
|
8.1
|
Calculation of
interest
|
The rate
of interest on each Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the:
|
|
(a)
|
Applicable
Margin;
|
|
|
(b)
|
LIBOR;
and
|
|
|
(c)
|
Mandatory
Cost, if any.
|
|
8.2
|
Payment of
interest
|
On the
last day of each Interest Period the Borrower shall pay accrued interest on the
Loan to which that Interest Period relates (and, if the Interest Period is
longer than six Months, on the dates falling at six Monthly intervals after the
first day of the Interest Period).
|
8.3
|
Default
interest
|
|
|
(a)
|
If
the Borrower fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount from
the due date up to the date of actual payment (both before and after
judgement) at a rate which, subject to paragraph (b) below, is two per
cent. per annum higher than the rate which would have been payable if the
overdue amount had, during the period of non-payment, constituted a Loan
in the currency of the overdue amount for successive Interest Periods,
each of a duration selected by the Agent (acting
reasonably). Any interest accruing under this Clause 8.3 shall
be immediately payable by the Borrower on demand by the
Agent.
|
|
|
(b)
|
If
any overdue amount consists of all or part of a Loan which became due on a
day which was not the last day of an Interest Period relating to that
Loan:
|
|
|
(i)
|
the
first Interest Period for that overdue amount shall have a duration equal
to the unexpired portion of the current Interest Period relating to that
Loan; and
|
|
|
(ii)
|
the
rate of interest applying to the overdue amount during that first Interest
Period shall be two per cent. per annum higher than the rate which would
have applied if the overdue amount had not become
due.
|
|
|
(c)
|
Default
interest (if unpaid) arising on an overdue amount will be compounded with
the overdue amount at the end of each Interest Period applicable to that
overdue amount but will remain immediately due and
payable.
|
|
8.4
|
Notification of rates of
interest
|
The Agent
shall promptly notify the Lenders and the Borrower of the determination of a
rate of interest under this Agreement.
- 20
-
|
9.
|
INTEREST
PERIODS
|
|
9.1
|
Selection of Interest
Periods
|
|
|
(a)
|
The
Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan.
|
|
|
(b)
|
Subject
to this Clause 9, the Borrower may select an Interest Period of one, two,
three or six Months or any other period agreed between the Borrower and
the Agent (acting on the instructions of all the
Lenders).
|
|
|
(c)
|
An
Interest Period for a Loan shall not extend beyond the Final Maturity
Date.
|
|
|
(d)
|
A
Loan has one Interest Period only.
|
|
9.2
|
Non-Business
Days
|
If an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar month
(if there is one) or the preceding Business Day (if there is not).
|
10.
|
CHANGES TO THE CALCULATION OF
INTEREST
|
|
10.1
|
Absence of
quotations
|
Subject
to Clause 10.2 (Market
disruption), if LIBOR is to be determined by reference to the Reference
Banks but a Reference Bank does not supply a quotation by the Specified Time on
the Quotation Day, the applicable LIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks.
|
10.2
|
Market
disruption
|
|
|
(a)
|
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then subject to Clause 10.3 (Alternative basis of interest
or funding) the rate of interest on each Lender’s share of that
Loan for the Interest Period shall be the rate per annum which is the sum
of:
|
|
|
(i)
|
the
Applicable Margin;
|
|
|
(ii)
|
the
rate notified to the Agent by that Lender as soon as practicable and in
any event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum the cost
to that Lender of funding its participation in that Loan from whatever
source it may reasonably select;
and
|
|
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Lender’s participation in the
Loan.
|
|
|
(b)
|
In
this Agreement “Market
Disruption Event” means:
|
|
|
(i)
|
at
or about noon on the Quotation Day for the relevant Interest Period the
Screen Rate is not available and none or only one of the Reference Banks
supplies a rate to the Agent to determine LIBOR for the relevant Interest
Period; or
|
- 21
-
|
|
(ii)
|
before
close of business in London on the Quotation Day for the relevant Interest
Period, the Agent receives notifications from a Lender or Lenders (whose
participations in a Loan exceed 35 per cent. of that Loan) that the cost
to it of obtaining matching deposits in the London interbank market would
be in excess of LIBOR.
|
|
10.3
|
Alternative basis of interest
or funding
|
|
|
(a)
|
If
a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the Borrower shall enter into negotiations (for a
period of not more than thirty days) with a view to agreeing a substitute
basis for determining the rate of
interest.
|
|
|
(b)
|
Any
alternative basis agreed pursuant to paragraph (a) above shall, with the
prior consent of all the Lenders and the Borrower, be binding on all
Parties.
|
|
10.4
|
Break
Costs
|
|
|
(a)
|
The
Borrower shall, within three Business Days of demand by a Finance Party,
pay to that Finance Party its Break Costs attributable to all or any part
of a Loan or Unpaid Sum being paid by the Borrower on a day other than the
last day of an Interest Period for that Loan or Unpaid
Sum.
|
|
|
(b)
|
Each
Lender shall, as soon as reasonably practicable after a demand by the
Agent or the Borrower, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they
accrue.
|
|
11.
|
FEES
|
|
11.1
|
Commitment
fee
|
|
|
(a)
|
The
Borrower shall pay to the Agent (for the account of each Lender) a fee
computed at the rate of 35 per cent. of the Applicable Margin on the
Available Facility.
|
|
|
(b)
|
The
accrued commitment fee is payable in arrears on the last day of each
successive period of three Months which ends during the Availability
Period, on the last day of the Availability Period and, if cancelled in
full, on the cancelled amount of the relevant Lender’s Commitment at the
time the cancellation is effective.
|
|
11.2
|
Arrangement and participation
fees
|
The
Borrower shall pay to the Arrangers the arrangement and participation fees in
the amount and at the times agreed in a Fee Letter.
|
11.3
|
Agency
fee
|
The
Borrower shall pay to the Agent (for its own account) an agency fee in the
amount and at the times agreed in a Fee Letter.
- 22
-
ADDITIONAL
PAYMENT OBLIGATIONS
|
12.
|
TAX GROSS UP AND
INDEMNITIES
|
|
12.1
|
Definitions
|
|
|
(a)
|
In
this Agreement:
|
“Protected Party” means a
Finance Party which is or will be subject to any liability, or required to make
any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
“Tax Credit” means a credit
against, relief or remission for, or repayment of any Tax.
“Tax Deduction” means a
deduction or withholding for or on account of Tax from a payment under a Finance
Document unless such deduction or withholding was required by law on the date of
this Agreement or results from a Finance Party’s failure to comply with
sub-clause 12.2(f).
“Tax Payment” means either the
increase in a payment made by the Borrower to a Finance Party under Clause 12.2
(Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).
|
|
(b)
|
Unless
a contrary indication appears, in this Clause 12 a reference to
“determines” or “determined” means a determination made in the reasonable
discretion of the person making the
determination.
|
|
12.2
|
Tax
gross-up
|
|
|
(a)
|
The
Borrower shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
|
|
(b)
|
The
Borrower shall promptly upon becoming aware that it must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly,
a Lender shall notify the Agent on becoming so aware in respect of a
payment payable to that Lender. If the Agent receives such
notification from a Lender it shall notify the
Borrower.
|
|
|
(c)
|
If
a Tax Deduction is required by law to be made by the Borrower, the amount
of the payment due from the Borrower shall be increased to an amount which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
|
(d)
|
If
the Borrower is required to make a Tax Deduction, the Borrower shall make
that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law.
|
|
|
(e)
|
Within
thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Borrower shall deliver to the
Agent for the Finance Party entitled to the payment evidence reasonably
satisfactory to
|
- 23
-
|
|
|
that
Finance Party that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing
authority.
|
|
|
(f)
|
The
Borrower hereby confirms to each Lender that it has made an election to be
disregarded as an entity separate from its parent, Xxxxx X.X. Holdings,
Inc., for U.S. federal income tax purposes. Accordingly, each
Lender shall, to the extent permitted by law, deliver to the Agent for
transmission to the Borrower (on or before the date of the first interest
payment after such Lender becomes a party to this Agreement) a duly
completed copy of Internal Revenue Service Form W-8BEN, or Form W-ECI, if
applicable, or any successor forms, or any other forms as may be necessary
to establish a reduction in, or complete exemption from, U.S. withholding
tax on payments under the Series 2003-1 VFC Certificate or, as the case
may be, on payments of interest on the Loans. To the extent
that any such forms become obsolete as a result of lapse in time or change
in circumstance, each Lender shall (promptly upon the request of the
Borrower in the case of such form becoming obsolete as a result of lapse
in time), to the extent permitted by law, deliver to the Agent for
transmission to the Borrower, revised forms as may be necessary to
establish a reduction in, or complete exemption from, U.S. withholding tax
on such payments.
|
|
12.3
|
Tax
indemnity
|
|
|
(a)
|
The
Borrower shall (within three Business Days of demand by the Agent) pay to
a Protected Party an amount equal to the loss, liability or cost which
that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party in
respect of a Finance Document.
|
|
|
(b)
|
Paragraph
(a) above shall not apply:
|
|
|
(i)
|
with
respect to any loss, liability or cost related to any Tax assessed on a
Finance Party:
|
|
|
(A)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax
purposes;
|
|
|
(B)
|
under
the law of the jurisdiction in which that Finance Party’s Facility Office
is located in respect of amounts received or receivable in that
jurisdiction; or
|
|
|
(C)
|
under
the law of any jurisdiction in which that Finance Party otherwise does
business,
|
if that
Tax is imposed on or calculated by reference to the overall net income of that
Finance Party (or a branch thereof); or
|
|
(ii)
|
to
the extent a loss, liability or
cost:
|
|
|
(A)
|
is
compensated for by an increased payment under Clause 12.2 (Tax gross-up);
or
|
- 24
-
|
|
(B)
|
would
have been compensated for by an increased payment under Clause 12.2 (Tax gross-up) but was
not so compensated as a result of a Finance Party’s failure to comply with
sub-clause 12.2(f).
|
|
|
(c)
|
A
Protected Party making, or intending to make a claim under paragraph (a)
above shall promptly notify the Agent of the event which will give, or has
given, rise to the claim, following which the Agent shall notify the
Borrower.
|
|
|
(d)
|
A
Protected Party shall, on receiving a payment from the Borrower under this
Clause 12.3, notify the Agent.
|
|
12.4
|
Tax
Credit
|
If the
Borrower makes a Tax Payment and the relevant Finance Party determines
that:
|
|
(a)
|
a
Tax Credit is attributable either to an increased payment of which that
Tax Payment forms part, or to that Tax Payment;
and
|
|
|
(b)
|
that
Finance Party has obtained and utilised that Tax
Credit,
|
the
Finance Party shall pay an amount to the Borrower which that Finance Party
determines will leave it (after that payment) in the same after-Tax position as
it would have been in had the Tax Payment not been required to be made by the
Borrower. To the extent the Finance Party loses a Tax Credit for
which it has made a payment hereunder, the Finance Party shall so notify the
Borrower and the Borrower shall refund the amounts paid to such Borrower with
respect to such Tax Credit.
|
12.5
|
Stamp
taxes
|
The
Borrower shall pay and, within three Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party incurs in
relation to all stamp duty, registration and other similar Taxes payable in
respect of any Finance Document.
|
12.6
|
Value added
tax
|
|
|
(a)
|
All
consideration expressed to be payable under a Finance Document by any
Party to a Finance Party shall be deemed to be exclusive of any
VAT. If VAT is chargeable on any supply made by any Finance
Party to any Party in connection with a Finance Document, that Party shall
pay to the Finance Party (in addition to and at the same time as paying
the consideration) an amount equal to the amount of the
VAT.
|
|
|
(b)
|
Where
a Finance Document requires any Party to reimburse a Finance Party for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance Party
in respect of the costs or expenses to the extent that the Finance Party
reasonably determines that it is not entitled to credit or repayment of
the VAT.
|
|
13.
|
INCREASED
COSTS
|
|
13.1
|
Increased
costs
|
|
|
(a)
|
Subject
to Clause 13.2 (Increased cost claims)
and Clause 13.3 (Exceptions) the
Borrower shall, within three Business Days of a demand by the Agent, pay
for
|
- 25
-
|
|
|
the
account of a Finance Party the amount of any Increased Costs incurred by
that Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation or (ii) compliance with any law
or regulation made after the date of this Agreement, or, if later, the
date on which the relevant Finance Party became a Party to this
Agreement.
|
|
|
(b)
|
In
this Agreement “Increased
Costs” means:
|
|
|
(i)
|
a
reduction in the rate of return from the Facility or on a Finance Party’s
(or its Affiliate’s) overall
capital;
|
|
|
(ii)
|
an
additional or increased cost; or
|
|
|
(iii)
|
a
reduction of any amount due and payable under any Finance
Document,
|
which is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its Commitment
or funding or performing its obligations under any Finance
Document.
|
13.2
|
Increased cost
claims
|
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall
notify the Agent of the event giving rise to the claim, following which
the Agent shall promptly notify the Borrower. The Borrower
shall not be required to compensate a Lender pursuant to Clause 13 (Increased costs) for
any amounts incurred more than six months prior to the date the Borrower
receives notification of such claim; provided, that if the circumstances
giving rise to such claim have a retroactive effect, then such six month
period shall be extended to include the period of such retroactive
effect.
|
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the Agent or
the Borrower, provide a certificate confirming the amount of its Increased
Costs (setting out reasonable information showing the basis for and
calculation of such amount).
|
|
13.3
|
Exceptions
|
Clause
13.1 (Increased costs)
does not apply to the extent any Increased Cost is:
|
|
(a)
|
attributable
to Tax;
|
|
|
(b)
|
compensated
for by the payment of the Mandatory
Cost;
|
|
|
(c)
|
attributable
to the breach by the relevant Finance Party or its Affiliates of any law
or regulation; or
|
|
|
(d)
|
attributable
to the implementation or application of or compliance with the
“International Convergence of Capital Measurement and Capital Standards, a
Revised Framework” published by the Basel Committee on Banking Supervision
in June 2004 in the form existing on the date of this Agreement (“Basel
II”) or any other law or regulation which implements Basel II (whether
|
- 26
-
such
implementation, application or compliance is by a government, regulator, Finance
Party or any of its Affiliates).
|
14.
|
OTHER
INDEMNITIES
|
|
14.1
|
Currency
indemnity
|
|
|
(a)
|
If
any sum due from the Borrower under the Finance Documents (a “Sum”), or any order,
judgement or award given or made in relation to a Sum, has to be converted
from the currency (the “First Currency”) in
which that Sum is payable into another currency (the “Second Currency”) for
the purpose of:
|
|
|
(i)
|
making
or filing a claim or proof against the
Borrower;
|
|
|
(ii)
|
obtaining
or enforcing an order, judgement or award in relation to any litigation or
arbitration proceedings,
|
the
Borrower shall as an independent obligation, within three Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any cost,
loss or liability arising out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert that Sum from the
First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
|
|
(b)
|
The
Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be
payable.
|
|
14.2
|
Other
indemnities
|
The
Borrower shall, within three Business Days of demand, indemnify each Finance
Party against any cost, loss or liability incurred by that Finance Party as a
result of:
|
|
(a)
|
the
occurrence of any Event of Default;
|
|
|
(b)
|
a
failure by the Borrower to pay any amount due under a Finance Document on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 27 (Sharing among the Finance
Parties);
|
|
|
(c)
|
funding,
or making arrangements to fund, its participation in a Loan requested by
it in a Utilisation Request but not made by reason of the operation of any
one or more of the provisions of this Agreement (other than by reason of
default or negligence by that Finance Party alone);
or
|
|
|
(d)
|
a
Loan (or part of a Loan) not being prepaid in accordance with a notice of
prepayment given by the Borrower.
|
|
14.3
|
Indemnity to the
Agent
|
The
Borrower shall promptly indemnify the Agent against any cost, loss or liability
incurred by the Agent (acting reasonably) as a result of:
|
|
(a)
|
investigating
any event which it reasonably believes is a Default;
or
|
- 27
-
|
|
(b)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised;
|
except to
the extent such cost, loss or liability arises from (i) the wilful misconduct or
gross negligence of the Agent or (ii) the Agent’s breach of express duties under
the Finance Documents.
|
15.
|
MITIGATION BY THE
LENDERS
|
|
15.1
|
Mitigation
|
|
|
(a)
|
Each
Finance Party shall, in consultation with the Borrower, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 7.1 (Illegality), Clause 12
(Tax gross-up and
indemnities), Clause 13 (Increased costs) or
paragraph 3 of Schedule 5 (Mandatory Cost
Formulae) including (but not limited to) transferring its rights
and obligations under the Finance Documents to another Facility Office or
bank or financial institution reasonably acceptable to the
Borrower.
|
|
|
(b)
|
Paragraph
(a) above does not in any way limit the obligations of the Borrower under
the Finance Documents.
|
|
15.2
|
Limitation of
liability
|
|
|
(a)
|
The
Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 15.1 (Mitigation).
|
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the
opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.
|
|
16.
|
COSTS AND
EXPENSES
|
|
16.1
|
Transaction
expenses
|
The
Borrower shall promptly on demand pay the Agent and the Arrangers the amount of
all costs and expenses (including legal fees) reasonably incurred by any of them
in connection with the negotiation, preparation, printing, execution and
syndication of:
|
|
(a)
|
this
Agreement and any other documents referred to in this Agreement;
and
|
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
|
16.2
|
Amendment
costs
|
If the
Borrower requests an amendment, waiver or consent the Borrower shall, within
three Business Days of demand, reimburse the Agent for the amount of all costs
and expenses (including legal fees) reasonably incurred by the Agent in
responding to, evaluating, negotiating or complying with that request or
requirement.
|
16.3
|
Enforcement
costs
|
The
Borrower shall, within three Business Days of demand, pay to each Finance Party
the amount of all costs and expenses (including legal fees) incurred by that
Finance Party
- 28
-
in
connection with the enforcement of, or the preservation of any rights under, any
Finance Document.
- 29
-
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
|
17.
|
REPRESENTATIONS
|
The
Borrower makes the representations and warranties set out in this Clause 17 to
each Finance Party on the date of this Agreement.
|
17.1
|
Existence; Compliance with
Law
|
The
Borrower (a) is duly organised, validly existing and in good standing under the
laws of the jurisdiction of its organisation, (b) has the power and authority,
and the legal right, to own and operate its property and to conduct the business
in which it is currently engaged, (c) is duly qualified as a foreign corporation
and in good standing under the laws of each jurisdiction where its ownership or
operation of property or the conduct of its business requires such qualification
and (d) is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
|
17.2
|
Power; Authorisation;
Enforcement Obligations
|
The
Borrower has the power and authority, and the legal right, to make, deliver and
perform the Finance Documents to which it is a party and to obtain Loans
hereunder. The Borrower has taken all necessary organisational action
to authorise the execution, delivery and performance of the Finance Documents to
which it is a party and to authorise the Loans on the terms and conditions of
this Agreement. Subject to any qualification as to legal matters
contained in the legal opinions referred to in Schedule 3 (Conditions Precedent), no
consent or authorisation of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the Loans hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Finance
Documents to which the Borrower is a party. Each Finance Document to
which the Borrower is a party has been duly executed and delivered on behalf of
the Borrower. Subject to any qualification as to legal matters
contained in the legal opinions referred to in Schedule 3 (Conditions Precedent), this
Agreement constitutes, and each other Finance Document to which the Borrower is
a party, upon execution will constitute, a legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with the
terms.
|
17.3
|
No Legal
Bar
|
The
execution, delivery and performance of this Agreement and the other Finance
Documents to which the Borrower is a party, the borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law or any
Contractual Obligation of the Borrower and will not result in, or require, the
creation or imposition of any Lien on any of its properties or revenues pursuant
to any Requirement of Law or any such Contractual Obligation. No
Requirement of Law or Contractual Obligation applicable to the Borrower could
reasonably be expected to have a Material Adverse Effect.
|
17.4
|
Governing law and
enforcement
|
Subject
to any qualifications as to legal matters contained in the legal opinions
referred to in Schedule 3 (Conditions
Precedent):
- 30
-
|
|
(a)
|
The
choice of English law as the governing law of this Agreement and New York
law as the governing law of the Parent Guarantee will be recognised and
enforced in its jurisdiction of incorporation;
and
|
|
|
(b)
|
Any
judgement obtained in England in relation to this Agreement and in New
York in relation to the Parent Guarantee will be recognised and enforced
in its jurisdiction of
incorporation.
|
|
17.5
|
Litigation
|
No
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or against any of its properties or
revenues (a) with respect to any of the Finance Documents to which the Borrower
is a party or any of the transactions contemplated hereby or thereby, or (b)
that could reasonably be expected to have a Material Adverse
Effect.
|
17.6
|
No
Default
|
The
Borrower is not in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is
continuing.
|
17.7
|
Ownership of Property;
Liens
|
The
Borrower has good title to all its property, and none of such property is
subject to any Lien (except for any Lien arising by virtue of the maintenance of
a credit balance on any Dutch bank account by the Borrower pursuant to the
general terms and conditions of the bank with which such account is
held).
|
17.8
|
Taxes
|
The
Borrower has filed or caused to be filed all material corporate income tax
returns that are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower); to the knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge.
|
17.9
|
Deduction of
Tax
|
The
Borrower is not required under Netherlands law to make any deduction for or on
account of Tax from any payment it may make under any Finance
Document.
|
17.10
|
No filing or stamp
taxes
|
Under the
law of its jurisdiction of incorporation it is not necessary that the Finance
Documents be filed, recorded or enrolled with any court or other authority in
that jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents or the transactions contemplated by the
Finance Documents.
|
17.11
|
No misleading
information
|
|
|
(a)
|
Any
factual information provided by the Borrower for the purposes of the
Information Memorandum was in all material respects taken as a whole true
and
|
- 31
-
accurate as at the date it
was provided or as at the date (if any) at which it is stated.
|
|
(b)
|
Nothing
has occurred or been omitted from the Information Memorandum and no
information has been given or withheld that results in the information
contained in the Information Memorandum being untrue or misleading in any
material respect in light of the circumstances under which such
information was supplied.
|
|
|
(c)
|
All
written information supplied by the Borrower is in all material respects
taken as a whole with other written information supplied by the Borrower
true and accurate and is not misleading in light of the circumstances
under which such information was supplied as at the date it was provided
or as at the date (if any) at which it is
stated.
|
|
17.12
|
No
Subsidiaries
|
It has no
Subsidiaries.
|
17.13
|
Use of
Proceeds
|
The
proceeds of the Loans shall be used solely (i) to make advances under the Series
2003-1 VFC Certificate, (ii) repay Permitted Indebtedness outstanding from time
to time, or (iii) pay expenses incurred in connection with the
Facility.
|
17.14
|
Pari passu
ranking
|
Its
payment obligations under the Finance Documents rank at least pari passu with
the claims of all its other unsecured and unsubordinated creditors.
|
17.15
|
Solvency
|
Each
member of the Group that is a party to a Finance Document, is, and after giving
effect to the incurrence of all Indebtedness and obligations being incurred in
connection herewith and therewith will be and will continue to be,
Solvent.
|
17.16
|
Limited
Purpose
|
It is a
single purpose entity that was formed for the sole purpose of (a) holding the
Series 2003-1 VFC Certificate, (b) borrowing under this Agreement,
(c) incurring Pari Passu Indebtedness and (d) entering into Hedge
Agreements in connection with this Agreement and such Pari Passu
Indebtedness. Other than cash derived from Hedge Agreements and
distributions of Series 2003-1 Accrued Interest and Series 2003-1
Invested Amount (as defined in Annex X to the Pooling Agreement) to the Borrower
under the Series 2003-1 VFC Certificate, which cash shall be used by the
Borrower solely to make interest, principal and premium (if any) payments under
this Agreement and under any Pari Passu Indebtedness and to pay for its
reasonable operating expenses (and, in the case of cash derived from Hedge
Agreements, to make advances under the Series 2003-1 VFC Certificate), the
Series 2003-1 VFC Certificate is the sole asset of the
Borrower.
|
17.17
|
No
Change
|
Since 31
December 2007, in respect of the Parent and its consolidated Subsidiaries, and
since the date of this Agreement in respect of the Borrower, there has been
no
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-
development
or event that has had or could reasonably be expected to have a Material Adverse
Effect.
|
17.18
|
Dutch
FSA
|
The
Borrower shall ensure that, in the event that its activities bring it, or at any
time will bring it, within the definition of “bank” in the Dutch
FSA:
|
|
(a)
|
it
will comply with Chapter 2.2 Dutch FSA;
or
|
|
|
(b)
|
it
has the benefit of a statutory exemption under Article 3.2 Dutch
FSA.
|
|
17.19
|
Tax
Status
|
No notice
under Section 36 of the Tax Collection Act (Invorderingswet 1990) has
been given by any member of the Group.
|
17.20
|
Repetition
|
The
Repeating Representations are deemed to be made by the Borrower (by reference to
the facts and circumstances then existing) on the date of each Utilisation
Request and the first day of each Interest Period.
|
18.
|
POSITIVE
COVENANTS
|
The
covenants in this Clause 18 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
The
Borrower shall:
|
18.1
|
Information
Miscellaneous
|
Provide
the Agent all information that the Agent may reasonably request in writing
concerning the business of the Borrower within a reasonable period of time
considering the nature of the request; provided that with respect to any
information relating to an annual audited report, the same may be delivered
within one hundred and twenty (120) calendar days after the end of the
Borrower’s fiscal year.
|
18.2
|
Xxxxx Master Trust
information
|
Furnish
or cause to be furnished to the Agent in sufficient number for each Lender,
copies of all
|
|
(a)
|
Daily
Reports prepared by the Servicer pursuant to Clause 18.14
below;
|
|
|
(b)
|
notices
of Series 2003-1 Early Amortisation Events;
and
|
|
|
(c)
|
Monthly
Settlement Statements;
|
provided that the documents
set forth in paragraphs (a) and (c) above of this sub-Clause 18.2
shall be provided only upon request of the Agent or the Majority
Lenders.
|
18.3
|
Taxes
|
Take all
actions necessary to ensure that all taxes and other governmental claims in
respect of the Borrower’s operations and assets are promptly paid when due,
except those contested in good faith.
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|
18.4
|
Compliance
|
Comply
with all Requirements of Law except where the failure to so comply would not
reasonably be expected to have a Material Adverse Effect on its ability to
perform its obligations under the Finance Documents.
|
18.5
|
Audited financial
statements
|
Beginning
with the fiscal year commencing in 2008, furnish to the Agent in sufficient
number for each Lender as soon as available, but in any event within one hundred
and twenty (120) days after the end of each fiscal year of the Borrower, audited
financial statements consisting of the balance sheet of the Borrower as of the
end of such year and the related statements of income and retained earnings and
statements of cash flow for such year, setting forth in each case in comparative
form the corresponding figures for the previous fiscal year, certified by
independent certified public accountants satisfactory to the Agent to the effect
that such financial statements fairly present in all material respects the
financial condition and results of operations of the Borrower in accordance with
GAAP consistently applied.
|
18.6
|
Unaudited financial
statements
|
Beginning
with the fiscal year commencing in 2008, furnish to the Agent as soon as
available but in any event within sixty (60) days after the end of each of the
first three quarters for each fiscal year of the Borrower, unaudited financial
statements consisting of a balance sheet of the Borrower as at the end of such
quarter and a statement of income and retained earnings for such quarter,
setting forth (in the case of financial statements furnished for calendar
quarters subsequent to the first full calendar year of the Borrower) in
comparative form the corresponding figures for the corresponding quarter of the
preceding fiscal year.
|
18.7
|
Financial statements
certificate
|
Furnish,
or cause to be furnished, to the Agent together with the financial statements
required pursuant to Clause 18.5 and Clause 18.6 a certificate of a
Responsible Officer of the Borrower stating (a) that the attached financial
statements have been prepared in accordance with GAAP and accurately reflect the
financial condition of the Borrower, (b) that the Borrower is in compliance with
Clause 18.10 and (c) all information and calculations necessary for determining
compliance by the Borrower with Clause 19.1 as of the last day of the fiscal
quarter or fiscal year of the Borrower, as the case may be.
|
18.8
|
Corporate existence, Conduct of
business
|
|
|
(a)
|
Except
as otherwise permitted by the Finance Documents, preserve, renew and keep
in full force and effect its corporate existence;
and
|
|
|
(b)
|
take
all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its
business.
|
|
18.9
|
Notification of
default
|
Notify
the Agent of any:
|
|
(a)
|
Default
(and the steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence, and
|
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-
|
|
(b)
|
development
or event which has had, or which the Borrower in its good faith judgement
believes will have, a Material Adverse
Effect.
|
|
18.10
|
Proceeds
|
|
|
(a)
|
Use
the proceeds from the Loans to:
|
|
|
(i)
|
make
advances under the Series 2003-1 VFC
Certificate;
|
|
|
(ii)
|
repay
Permitted Indebtedness outstanding from time to time;
or
|
|
|
(iii)
|
pay
expenses incurred in connection with the Facility;
or
|
|
|
(b)
|
Use
the proceeds of any Pari Passu Indebtedness
to:
|
|
|
(i)
|
make
advances under the Series 2003-1 VFC
Certificate;
|
|
|
(ii)
|
repay
Permitted Indebtedness outstanding from time to time;
or
|
|
|
(iii)
|
pay
expenses incurred in connection with such Pari Passu
Indebtedness.
|
|
18.11
|
Notification of amounts
due
|
On each
day after the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Finance Documents have become due and payable
(whether at the stated maturity, by acceleration, or otherwise), give the notice
contemplated by Section 2.06 of the Series 2003-1 Supplement, such notice
to specify an amount equal to the lesser of (i) the funds on deposit in the
Series 2003-1 Collection Subaccount on such day and (ii) the
outstanding principal amount of the Loans (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Finance
Documents.
|
18.12
|
Notification of Applicable
Rating
|
Promptly
notify the Agent of any change in an Applicable Rating.
|
18.13
|
Direction of
Trustee
|
At the
direction of the Agent or the Majority Lenders, exercise its right under Section
8.14 of the Pooling Agreement to direct the trustee under the Xxxxx Master Trust
when the Lenders are affected by the conduct of any proceeding or the exercise
of any right conferred on the trustee under the Xxxxx Master Trust.
|
18.14
|
Submission of Daily
Report
|
On each
Utilisation Date on which a Loan is made, cause the Servicer to submit a Daily
Report to the Borrower and to the trustee under the Xxxxx Master Trust no later
than 12:00 (Noon), New York City time, setting forth the information required by
Section 4.01 of the Servicing Agreement.
|
19.
|
NEGATIVE
COVENANTS
|
The
covenants in this Clause 19 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
The
Borrower will not:
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-
|
19.1
|
Series 2003-1 Allocated Loan
Amount
|
Permit
the Series 2003-1 Allocated Loan Amount to be less than the result
of:
|
|
(a)
|
adding
(i) the aggregate principal amount of and accrued interest on the Loans
outstanding hereunder and (ii) all other Pari Passu Indebtedness
outstanding (including any net payment obligations of the Borrower related
to Hedge Agreements, but excluding all Hedge Termination Amounts due and
owing by the Borrower) calculated by converting any Master Trust Approved
Currency other than dollars into dollars at the Rate of Exchange; and
deducting therefrom; and
|
|
|
(b)
|
the
aggregate amount of any Master Trust Approved Currency (including any net
receipts from Hedge Agreements, but excluding any Hedge Termination
Amounts received by the Borrower) on deposit in any Borrower Account or
the Series 2003-1 Collection Subaccount (or any sub-subaccount thereof),
calculated by converting any Master Trust Approved Currencies other than
dollars into dollars at the Rate of Exchange, that are unconditionally
available to repay the aggregate amount of the Indebtedness and interest
accrued thereon described in the foregoing sub-clauses (a)(i) and (ii) of
this sub-clause 19.1 (or with respect to the Series 2003-1
Collection Subaccount (or any sub-subaccount thereof), unconditionally
available to repay the principal and accrued interest on the Series 2003-1
VFC Certificate which Master Trust Approved Currency amounts are in turn
unconditionally available to make such payments on the principal of and
accrued interest on the Loans and other Pari Passu Indebtedness in the
foregoing sub-clauses (a)(i) and (ii) of this
sub-clause 19.1.
|
|
19.2
|
Negative
Pledge
|
Contract
for, create, incur, assume or suffer to exist any Lien, security interest,
charge or other encumbrance of any nature upon any of its property or assets,
including without limitation the Series 2003-1 VFC Certificate, whether now
owned or hereafter required (except for any Lien arising by virtue of the
maintenance of a credit balance on any Dutch bank account by the Borrower
pursuant to the general terms and conditions of the bank with which such account
is held).
|
19.3
|
Indebtedness
|
Create,
incur, assume or suffer to exist any Indebtedness, whether current or funded, or
any other liability except Permitted Indebtedness.
|
19.4
|
Loans and
Guarantees
|
Except as
contemplated by the Finance Documents or the Transaction Documents, make any
loan or advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another’s payment or performance on any
obligation or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any assets, stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other
Person.
- 36
-
|
19.5
|
Merger
|
Enter
into any amalgamation, merger, consolidation, joint venture, syndicate or other
form of combination with any Person, or sell, lease or transfer or otherwise
dispose of any of its assets or receivables or purchase any asset.
|
19.6
|
Other
Agreements
|
|
|
(a)
|
Enter
into or be a party to any agreement or instrument other than the Finance
Documents, the Transaction Documents to which it is a party, and any
agreement or instrument related to the incurrence of Pari Passu
Indebtedness; or
|
|
|
(b)
|
Enter
into or be a party to any agreement or instrument related to the
incurrence of Pari Passu Indebtedness that does not include a provision
substantially to the effect set forth in
Clause 20.
|
|
19.7
|
Expenditure
|
Except as
permitted by any Transaction Document, make any expenditure (by long-term or
operating lease or otherwise), excluding those relating to foreclosure, for
capital assets (both realty and personalty), unless such expenditure is approved
in writing by the Agent.
|
19.8
|
Restriction of
business
|
Engage in
any business or enterprise or enter into any material transaction other than as
contemplated by the Finance Documents and the Transaction
Documents.
|
19.9
|
Constitutional
Documents
|
Amend its
constitutional documents without the prior written consent of the
Agent.
|
19.10
|
Amendments to Transaction
Documents
|
Amend,
supplement, waive or modify, or consent to any amendment, supplement, waiver or
modification of, any Transaction Document except in accordance with the
provisions of this sub-clause 19.10. Any provision of any
Transaction Document may be amended, waived, supplemented, restated, discharged
or terminated without the consent of the Agent or the Lenders; provided such amendment,
waiver, supplement or restatement does not:
|
|
(a)
|
render
the Series 2003-1 VFC Certificate subordinate in payment to any other
Series under the Xxxxx Master
Trust;
|
|
|
(b)
|
reduce
in any manner the amount of, or delay the timing of, distributions which
are required to be made on the Series 2003-1 VFC Certificate;
or
|
|
|
(c)
|
change
the definition of or the manner of calculating the interest of the
Borrower in the assets of the Xxxxx Master Trust;
and
|
provided further that the
Agent shall have received prior notice thereof together with copies of any
documentation related thereto. Any amendment, waiver, supplement or
restatement of a provision of a Transaction Document (including any exhibit
thereto) of the type described in sub-clauses (a), (b) or (c) above shall
require the written consent of the Agent acting at the direction of the Majority
Lenders.
- 37
-
|
19.11
|
Powers of
Attorney
|
Grant any
powers of attorney to any Person for any purposes except where permitted by the
Finance Documents.
|
19.12
|
Increase in Series 2003-1
Investment Amount
|
Increase
the Series 2003-1 Invested Amount during any Payment Period.
|
19.13
|
Servicer
|
Take any
action which would permit the Servicer to have the right to refuse to perform
any of its respective obligations under the Servicing Agreement.
|
19.14
|
Hedge
Agreements
|
Enter
into any Hedge Agreement other than Hedge Agreements entered into in the
ordinary course of business to hedge or mitigate risks directly arising from its
borrowings under this Agreement or other Pari Passu Indebtedness.
|
20.
|
COVENANT OF AGENT AND
LENDERS AND
PATRIOT ACT NOTICE
|
|
20.1
|
No Bankruptcy Petition Against
the Borrower; Liability of the
Borrower
|
|
|
(a)
|
Each
of the Agent and the Lenders hereby covenants and agrees that, prior to
the date which is one year and one day after the payment in full of all
Loans and other amounts payable hereunder and all Pari Passu Indebtedness,
it will not institute against, or join with or assist any other Person in
instituting against, the Borrower, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any applicable insolvency laws. This Clause 20 shall
survive the termination of this
Agreement.
|
|
|
(b)
|
Notwithstanding
any other provision hereof or of any other Finance Documents, the sole
remedy of the Agent, any Lender or any other Person against the Borrower
in respect of any obligation, covenant, representation, warranty or
agreement of the Borrower under or related to this Agreement or any other
Finance Document shall be against the assets of the
Borrower. Neither the Agent, nor any Lender nor any other
Person shall have any claim against the Borrower to the extent that such
assets are insufficient to meet such obligations, covenant,
representation, warranty or agreement (the difference being referred to
herein as a “shortfall”) and all claims in respect of the shortfall shall
be extinguished; provided, however, that the
provisions of this Clause 20 apply solely to the obligations of the
Borrower and shall not extinguish such shortfall or otherwise restrict
such Person’s rights or remedies against the
Parent.
|
|
20.2
|
PATRIOT Act
Notice
|
Each
Finance Party hereby notifies the Borrower that, pursuant to the requirements of
the PATRIOT Act, it may be required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Finance Party to
identify the Borrower in accordance with the PATRIOT Act.
In this
Clause “PATRIOT Act”
shall mean the USA PATRIOT Act, Title III of Pub. L. 107-56, signed into law 26
October 2001.
- 38
-
|
21.
|
EVENTS OF
DEFAULT
|
Each of
the events set out in Clauses 21.1(Non-payment) to 21.12 (Tax Status) (inclusive) is
an Event of Default.
|
21.1
|
Non-payment
|
Any
Obligor shall fail to pay any principal of any Loan when due in accordance with
the terms hereof or any Obligor shall fail to pay any interest on any Loan or
any other amount payable hereunder or under any other Finance Document, unless
such failure to pay is caused by administrative or technical error and payment
is made within 5 Business Days of its due date; or
|
21.2
|
Misrepresentation
|
Any
representation or warranty made or deemed made by the Borrower or the Parent
herein or in any other Finance Document or that is contained in any certificate,
document or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Finance Document shall prove to
have been inaccurate in any material respect on or as of the date made or deemed
made; or
|
21.3
|
Other
Obligations
|
|
|
(a)
|
the
Borrower shall default in the observance or performance of any agreement
contained in Clause 19 of this Agreement or the Parent shall default in
the observance or performance of any agreement contained in Sections
8.1(c), 8.1(g)(i), 8.1(h), 8.1(j) or 8.2 of the Parent Guarantee;
or
|
|
|
(b)
|
the
Borrower or the Parent shall default in the observance or performance of
any other agreement contained in this Agreement or any other Finance
Document (other than as provided in sub-clause 21.3(a) of this
Clause), and if capable of being remedied such default shall continue
unremedied for a period of 30 days after the earlier of (i) the date on
which a Responsible Officer of the Borrower or the Parent has knowledge of
such default and (ii) the Borrower or the Parent receives written notice
thereof from the Agent or the Majority Lenders;
or
|
|
21.4
|
Cross
default
|
The
Borrower, BAFC, BLFC or any other Investor Certificateholder that is an
Affiliate of the Parent shall
|
|
(a)
|
default
in making any payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding the Loans) or of any material amounts
under any other agreement to which it is a party on the scheduled or
original due date with respect thereto;
or
|
|
|
(b)
|
default
in making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created;
or
|
|
|
(c)
|
default
in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or
|
- 39
-
condition
exist, the effect of which default or other event or condition is to cause, or
to permit the holder or beneficiary of such Indebtedness (or a trustee or agent
on behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided
that:
|
|
(i)
|
a
default, event or condition described in clause (a), (b) or (c) of this
sub-clause 21.4 shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the
type described in Clauses (a), (b) and (c) of this sub-clause 21.4
shall have occurred and be continuing with respect to Indebtedness or
other amounts the outstanding principal amount of which exceeds in the
aggregate $50,000,000; provided further that the proviso specified in
sub-clause 21.4(c)(i) shall be deemed inapplicable at any time that any
Purchased Loan shall constitute a Defaulted Loan or shall have constituted
a Delinquent Loan for a period of more than three (3) successive Business
Days; and
|
|
|
(ii)
|
sub-clause
21.4(c) shall be deemed inapplicable if the occurrence of such event or
condition referred to above gives rise to an obligation to make a
mandatory prepayment without further demand of any person on terms agreed
prior to the occurrence of such event or condition;
or
|
|
21.5
|
Group
default
|
Any
member of the Group (other than the Borrower) shall
|
|
(a)
|
default
in making any payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding the Loans) or of any material amounts
under any other agreement to which it is a party on the scheduled or
original due date with respect thereto;
or
|
|
|
(b)
|
default
in making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created;
or
|
|
|
(c)
|
default
in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided
that:
|
|
|
(i)
|
a
default, event or condition described in Clauses (a), (b) or (c) of this
sub-clause 21.5 shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the
type
|
- 40
-
described in Clauses (a),
(b) and (c) of this sub-clause 21.5 shall have occurred and be continuing
with respect to Indebtedness or other amounts the outstanding principal amount
of which exceeds in the aggregate $50,000,000; and
|
|
(ii)
|
this
sub-clause 21.5(c) shall be deemed inapplicable if the occurrence of such
event or condition referred to above gives rise to an obligation to make a
mandatory prepayment without further demand of any person on terms agreed
prior to the occurrence of such event or condition;
or
|
|
21.6
|
Insolvency
Proceedings
|
|
|
(a)
|
any
member of the Group or Bunge Funding Inc. shall commence any case,
proceedings or other action (i) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganisation or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganisation, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (ii) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any member of the Group or Bunge
Funding Inc. shall make a general assignment for the benefit of its
creditors; or
|
|
|
(b)
|
there
shall be commenced against any member of the Group or Bunge Funding Inc.
any case, proceeding or other action of a nature referred to in clause (a)
above that (i) results in the entry of an order for relief or any such
adjudication or appointment or (ii) remains undismissed, undischarged or
unbonded for a period of 60 days;
or
|
|
|
(c)
|
there
shall be commenced against any member of the Group or Bunge Funding Inc.
any case, proceeding or other action seeking issuance of a warrant of
expropriation, attachment, sequestration, distress, execution, distraint
or similar process against all or any substantial part of its assets that
results in the entry of an order for any such relief that shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or
|
|
|
(d)
|
any
member of the Group or Bunge Funding, Inc. shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (a), (b), or (c) above;
or
|
|
|
(e)
|
any
member of the Group or Bunge Funding, Inc. shall generally not, or shall
be unable to, or shall admit in writing its inability to pay its debts as
they become due; or
|
|
21.7
|
Final Judgement against
Group
|
One or
more final judgements or orders shall be entered against any member of the Group
(other than the Borrower) involving in the aggregate a liability (not paid or
fully covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $50,000,000 or more, and all such final judgements or
orders shall not have
- 41
-
been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
|
21.8
|
Final Judgement against
Borrower
|
One or
more final judgements or orders shall be entered against the Borrower involving
in the aggregate a liability (not paid or fully covered by insurance as to which
the relevant insurance company has acknowledged coverage) of $50,000 or more,
and all such final judgements or orders shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof;
or
|
21.9
|
Unlawfulness
|
It is or
becomes unlawful for an Obligor to perform any of its obligations under the
Finance Documents; or
|
21.10
|
Repudiation
|
An
Obligor repudiates a Finance Document or evidences an intention to repudiate a
Finance Document; or
|
21.11
|
Effectiveness
|
Any of
the Finance Documents or the Transaction Documents shall cease, for any reason,
to be in full force and effect or the Borrower or the Parent shall so assert in
writing; or
|
21.12
|
Tax
Status
|
A notice
under Section 36 Dutch Tax Collection Act (Invorderingswet 1990) has
been given by any member of the Group.
|
21.13
|
Acceleration
|
On and at
any time after the occurrence of an Event of Default (which is continuing) the
Agent may, and shall if so directed by the Majority Lenders, by notice to the
Borrower:
|
|
(a)
|
cancel
the Total Commitments whereupon they shall immediately be
cancelled;
|
|
|
(b)
|
declare
that all or part of the Loans, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon they shall become immediately due
and payable; and/or
|
|
|
(c)
|
with
the consent of the Majority Lenders, the Agent may, or upon the request of
the Majority Lenders, the Agent shall, by notice to the Borrower, instruct
the Borrower to, and in such event the Borrower shall, instruct the
trustee of the Bunge Master Trust to declare the principal and accrued
interest in respect of the Purchased Loans to be due and
payable. Except as expressly provided above in this Clause,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower,
|
provided that if an Event of
Default under Clause 21.6 (Insolvency Proceedings) shall
occur in respect of the Group or Bunge Funding, Inc., then without notice or any
other act by the Agent or any other person, the Loans, interest thereon and all
other amounts
- 42
-
owed
under the Finance Documents shall become immediately due and payable without
presentment, demand, protest or notice of any kind, all of which are expressly
waived.
|
22.
|
USE OF
WEBSITES
|
22.1
|
|
(a)
|
The
Borrower may satisfy its obligation to deliver any public information to
the Lenders by posting this information onto an electronic website
designated by the Borrower and the Agent (the “Designated Website”) by
notifying the Agent (i) of the address of the website together with any
relevant password specifications and (ii) that such information has been
posted on the website.
|
|
|
(b)
|
In
any event the Borrower shall supply the Agent with one copy in paper form
of any information which is posted onto the
website.
|
|
22.2
|
The
Agent shall supply each Lender with the address of and any relevant
password specifications for the Designated Website following designation
of that website by the Borrower and the
Agent.
|
|
22.3
|
The
Borrower shall promptly upon becoming aware of its occurrence notify the
Agent if:
|
|
|
(a)
|
the
Designated Website cannot be accessed due to technical
failure;
|
|
|
(b)
|
the
password specifications for the Designated Website
change;
|
|
|
(c)
|
any
new information which is required to be provided under this Agreement is
posted onto the Designated Website;
|
|
|
(d)
|
any
existing information which has been provided under this Agreement and
posted onto the Designated Website is amended;
or
|
|
|
(e)
|
the
Borrower becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any
electronic virus or similar
software.
|
If the
Borrower notifies the Agent under paragraph 22.3(a) or
paragraph 22.3(e) above, all information to be provided by the Borrower
under this Agreement after the date of that notice shall be supplied in paper
form unless and until the Agent is satisfied that the circumstances giving rise
to the notification are no longer continuing.
|
22.4
|
“Know your customer”
checks
|
|
|
(a)
|
If:
|
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
|
(ii)
|
any
change in the status of an Obligor or the composition of the shareholders
of an Obligor after the date of this Agreement;
or
|
- 43
-
|
|
(iii)
|
a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to
such assignment or transfer,
|
obliges
the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective new Lender) to comply with “know your customer” or similar
identification procedures in circumstances where the necessary information is
not already available to it, each Obligor shall promptly upon the request of the
Agent or any Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Agent (for itself or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described
in paragraph (iii) above, on behalf of any prospective new Lender) in order for
the Agent, such Lender or, in the case of the event described in paragraph (iii)
above, any prospective new Lender to carry out and be satisfied it has complied
with all necessary “know your customer” or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in the
Finance Documents.
|
|
(b)
|
Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry out
and be satisfied it has complied with all necessary “know your customer”
or other similar checks under all applicable laws and regulations pursuant
to the transactions contemplated in the Finance
Documents.
|
- 44
-
CHANGES
TO PARTIES
|
23.
|
CHANGES TO THE
LENDERS
|
|
23.1
|
Assignments and transfers by
the Lenders
|
Subject
to this Clause 23, a Lender (the “Existing Lender”)
may:
|
|
(a)
|
assign
any of its rights; or
|
|
|
(b)
|
transfer
by novation any of its rights and
obligations,
|
to
another bank or financial institution or to a trust, fund or other entity which
is regularly engaged in or established for the purpose of making, purchasing or
investing in loans, securities or other financial assets (the “New Lender”).
|
23.2
|
Conditions of assignment or
transfer
|
|
|
(a)
|
The
consent of the Borrower (not to be unreasonably withheld or delayed) is
required for an assignment or transfer by a Lender, unless the assignment
or transfer is to another Lender or an Affiliate of a Lender, or an Event
of Default has occurred and has not been
waived.
|
|
|
(b)
|
The
Borrower will be deemed to have given its consent five Business Days after
the Lender has requested it unless consent is expressly refused by the
Borrower within that time.
|
|
|
(c)
|
The
consent of the Borrower to an assignment or transfer must not be withheld
solely because the assignment or transfer may result in an increase to the
Mandatory Cost.
|
|
|
(d)
|
An
assignment will only be effective:
|
|
|
(i)
|
on
receipt by the Agent of written confirmation from the New Lender (in form
and substance satisfactory to the Agent) that the New Lender will assume
the same obligations to the other Finance Parties as it would have been
under if it was an Original Lender;
and
|
|
|
(ii)
|
performance
by the Agent of all necessary “know your customer” or other similar checks
under all applicable laws and regulations in relation to such assignment
to a New Lender, the completion of which the Agent shall promptly notify
to the Existing Lender and the New
Lender.
|
|
|
(e)
|
A
transfer will only be effective if the procedure set out in Clause
23.5 (Procedure for transfer)
is complied with.
|
|
|
(f)
|
If:
|
|
|
(i)
|
a
Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office;
and
|
|
|
(ii)
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, the Borrower would be obliged to make a payment to the
|
- 45
-
New
Lender or Lender acting through its new Facility Office under Clause 12 (Tax
gross-up and indemnities) or Clause 13 (Increased
costs),
then the
New Lender or Lender acting through its new Facility Office is only entitled to
receive payment under those Clauses to the same extent as the Existing Lender or
Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
|
|
(g)
|
An
assignment or transfer of part (but not all) of a Lender’s Commitment and
Loans must (unless such transfer or assignment is to an Existing Lender or
an Event of Default has occurred and is continuing) be in a minimum
aggregate amount of $5 million.
|
|
|
(h)
|
Without
prejudice to paragraph (g) above, the amount transferred to a New Lender
in relation to a Loan or a Commitment shall be at least the dollar
equivalent of EUR 50,000 or, if it is less, the New Lender shall confirm
to the Borrower that it is a “professional market party” within the
meaning of the Dutch FSA.
|
|
23.3
|
Assignment or transfer
fee
|
The New
Lender shall, on the date upon which an assignment or transfer takes effect, pay
to the Agent (for its own account) a fee of $1,500.
|
23.4
|
Limitation of responsibility of
Existing Lenders
|
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
|
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other
documents;
|
|
|
(ii)
|
the
financial condition of any Obligor;
|
|
|
(iii)
|
the
performance and observance by any Obligor of its obligations under the
Finance Documents or any other documents;
or
|
|
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document,
|
and any
representations or warranties implied by law are excluded.
|
|
(b)
|
Each
New Lender confirms to the Existing Lender and the other Finance Parties
that it:
|
|
|
(i)
|
has
made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of any member of the
Group and its related entities in connection with its participation in
this Agreement and has not relied exclusively on any information provided
to it by the Existing Lender in connection with any Finance Document;
and
|
- 46
-
|
|
(ii)
|
will
continue to make its own independent appraisal of the creditworthiness of
each Obligor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in
force.
|
|
|
(c)
|
Nothing
in any Finance Document obliges an Existing Lender
to:
|
|
|
(i)
|
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause 23;
or
|
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
|
|
23.5
|
Procedure for
transfer
|
|
|
(a)
|
Subject
to the conditions set out in Clause 23.2 (Conditions of assignment or
transfer) a transfer is effected in accordance with paragraph (b)
below when the Agent executes an otherwise duly completed Transfer
Certificate delivered to it by the Existing Lender and the New
Lender. The Agent shall, as soon as reasonably practicable
after receipt by it of a duly completed Transfer Certificate appearing on
its face to comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that Transfer
Certificate.
|
|
|
(b)
|
The
Agent shall only be obliged to execute a Transfer Certificate delivered to
it by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations in relation to the transfer to
such New Lender.
|
|
|
(c)
|
On
the Transfer Date:
|
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance
Documents each of the Obligors and the Existing Lender shall be released
from further obligations towards one another under the Finance Documents
and their respective rights against one another under the Finance
Documents shall be cancelled (being the “Discharged Rights and
Obligations”);
|
|
|
(ii)
|
each
of the Obligors and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and
the Existing Lender;
|
|
|
(iii)
|
the
Agent, the Arrangers, the New Lender and other Lenders shall acquire the
same rights and assume the same obligations between themselves as they
would have acquired and assumed had the New Lender been an Existing Lender
with the rights and/or obligations acquired or assumed by it as a result
of the transfer and to that extent the Agent, the Arrangers and
|
- 47
-
the
Existing Lender shall each be released from further obligations to each other
under the Finance Documents; and
|
|
(iv)
|
the
New Lender shall become a Party as a
“Lender”.
|
|
23.6
|
Disclosure of
information
|
Any
Lender may disclose to any of its Affiliates and any other person:
|
|
(a)
|
to
(or through) whom that Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under this
Agreement;
|
|
|
(b)
|
with
(or through) whom that Lender enters into (or may potentially enter into)
any sub-participation, any securitisation, or any hedge, in relation to,
or any other transaction under which payments are to be made by reference
to, this Agreement or any Obligor;
or
|
|
|
(c)
|
to
whom, and to the extent, that information is required to be disclosed by
any applicable law or regulation,
|
any
information about the Borrower, the Group and the Finance Documents as that
Lender shall consider appropriate if, in relation to paragraphs (a) and (b)
above, the person to whom the information is to be given has entered into a
Confidentiality Undertaking. In addition, a Lender may make any
disclosure of information required by any applicable law or
regulation.
|
24.
|
CHANGES TO THE BORROWER
|
The
Borrower may not assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
- 48
-
THE
FINANCE PARTIES
|
25.
|
ROLE OF THE AGENT AND THE
ARRANGERS
|
|
25.1
|
Appointment of the
Agent
|
|
|
(a)
|
Each
other Finance Party appoints the Agent to act as its agent under and in
connection with the Finance
Documents.
|
|
|
(b)
|
Each
other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and
discretions.
|
|
25.2
|
Duties of the
Agent
|
|
|
(a)
|
The
Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other
Party.
|
|
|
(b)
|
Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another
Party.
|
|
|
(c)
|
If
the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the other Finance
Parties.
|
|
|
(d)
|
If
the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the
Agent or the Arrangers) under this Agreement it shall promptly notify the
other Finance Parties.
|
|
|
(e)
|
The
Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature.
|
|
25.3
|
Role of the
Arrangers
|
Except as
specifically provided in the Finance Documents, the Arrangers have no
obligations of any kind to any other Party under or in connection with any
Finance Document.
|
25.4
|
No fiduciary
duties
|
|
|
(a)
|
Nothing
in this Agreement constitutes the Agent or the Arrangers as a trustee or
fiduciary of any other person.
|
|
|
(b)
|
Neither
the Agent nor the Arrangers shall be bound to account to any Lender for
any sum or the profit element of any sum received by it for its own
account.
|
|
25.5
|
Business with the
Group
|
The Agent
and the Arrangers may accept deposits from, lend money to and generally engage
in any kind of banking or other business with any member of the
Group.
- 49
-
|
25.6
|
Rights and discretions of the
Agent
|
|
|
(a)
|
The
Agent may rely on:
|
|
|
(i)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and
|
|
|
(ii)
|
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify.
|
|
|
(b)
|
The
Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the Lenders)
that:
|
|
|
(i)
|
no
Default has occurred (unless it has actual knowledge of a Default arising
under Clause 21.1 (Non-payment));
and
|
|
|
(ii)
|
any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised.
|
|
|
(c)
|
The
Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
|
|
(d)
|
The
Agent may act in relation to the Finance Documents through its personnel
and agents.
|
|
|
(e)
|
The
Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this
Agreement.
|
|
|
(f)
|
Notwithstanding
any other provision of any Finance Document to the contrary, neither the
Agent nor any Arranger is obliged to do or omit to do anything if it would
or might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
|
|
25.7
|
Majority Lenders’
instructions
|
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, the Agent shall (i)
exercise any right, power, authority or discretion vested in it as Agent
in accordance with any instructions given to it by the Majority Lenders
(or, if so instructed by the Majority Lenders, refrain from exercising any
right, power, authority or discretion vested in it as Agent) and (ii) not
be liable for any act (or omission) if it acts (or refrains from taking
any action) in accordance with an instruction of the Majority
Lenders.
|
|
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
|
|
(c)
|
The
Agent may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require for any cost, loss or liability (together
with any associated VAT) which it may incur in complying with the
instructions.
|
- 50
-
|
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the
Lenders.
|
|
|
(e)
|
The
Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender’s consent) in any legal or arbitration proceedings
relating to any Finance Document.
|
|
25.8
|
Responsibility for
documentation
|
Neither
the Agent nor any Arranger:
|
|
(a)
|
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, an Arranger,
an Obligor or any other Person given in or in connection with any Finance
Document or the Information Memorandum;
or
|
|
|
(b)
|
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement
or document entered into, made or executed in anticipation of or in
connection with any Finance
Document.
|
|
25.9
|
Exclusion of
liability
|
|
|
(a)
|
Without
limiting paragraph (b) below, the Agent will not be liable for any action
taken by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful
misconduct.
|
|
|
(b)
|
No
Party (other than the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any
officer, employee or agent of the Agent may rely on this Clause subject to
Clause 1.4 (Third Party
Rights) and the provisions of the Third Parties
Act.
|
|
|
(c)
|
The
Agent will not be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents
to be paid by the Agent if the Agent has taken all necessary steps as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by the
Agent for that purpose.
|
|
|
(d)
|
Nothing
in this Agreement shall oblige the Agent or the Arranger to carry out any
“know your customer” or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Agent and the Arranger that
it is solely responsible for any such checks it is required to carry out
and that it may not rely on any statement in relation to such checks made
by the Agent or the Arranger.
|
|
25.10
|
Lenders’ indemnity to the
Agent
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to
- 51
-
their
reduction to zero) indemnify the Agent, within three Business Days of demand,
against any cost, loss or liability incurred by the Agent (otherwise than by
reason of the Agent’s gross negligence or wilful misconduct) in acting as Agent
under the Finance Documents (unless the Agent has been reimbursed by an Obligor
pursuant to a Finance Document, and provided that such Lender indemnification
shall not affect any Obligor’s reimbursement obligations to such Lender under
any Finance Document).
|
25.11
|
Resignation of the
Agent
|
|
|
(a)
|
The
Agent may resign and appoint one of its Affiliates acting through an
office as successor by giving notice to the other Finance Parties and the
Borrower.
|
|
|
(b)
|
Alternatively
the Agent may resign by giving notice to the other Finance Parties and the
Borrower, in which case the Majority Lenders (after consultation with the
Borrower) may appoint a successor
Agent.
|
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation was
given, the Agent (after consultation with the Borrower) may appoint a
successor Agent.
|
|
|
(d)
|
The
retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as Agent under the Finance
Documents.
|
|
|
(e)
|
The
Agent’s resignation notice shall only take effect upon the appointment of
a successor.
|
|
|
(f)
|
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of this Clause 25. Its successor
and each of the other Parties shall have the same rights and obligations
amongst themselves as they would have had if such successor had been an
original Party.
|
|
|
(g)
|
After
consultation with the Borrower, the Majority Lenders may, by notice to the
Agent, require it to resign in accordance with paragraph (b)
above. In this event, the Agent shall resign in accordance with
paragraph (b) above.
|
|
25.12
|
Confidentiality
|
|
|
(a)
|
In
acting as agent for the Finance Parties, the Agent shall be regarded as
acting through its agency division which shall be treated as a separate
entity from any other of its divisions or
departments.
|
|
|
(b)
|
If
information is received by another division or department of the Agent, it
may be treated as confidential to that division or department and the
Agent shall not be deemed to have notice of
it.
|
|
25.13
|
Relationship with the
Lenders
|
|
|
(a)
|
The
Agent may treat each Lender as a Lender entitled to payments under this
Agreement and acting through its Facility Office unless it has received
not less
|
- 52
-
than
five Business Days prior notice from that Lender to the contrary in accordance
with the terms of this Agreement.
|
|
(b)
|
Each
Lender shall supply the Agent with any information required by the Agent
in order to calculate the Mandatory Cost in accordance with Schedule 5
(Mandatory Cost
Formula).
|
|
25.14
|
Credit appraisal by the
Lenders
|
Without
affecting the responsibility of any Obligor for information supplied by it or on
its behalf in connection with any Finance Document, each Lender confirms to the
Agent and the Arrangers that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but not
limited to:
|
|
(a)
|
the
financial condition, status and nature of each member of the
Group;
|
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document;
|
|
|
(c)
|
whether
that Lender has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any
Finance Document; and
|
|
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Memorandum and
any other information provided by the Agent, any Party or by any other
person under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in
connection with any Finance
Document.
|
|
25.15
|
Reference
Banks
|
If a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it
is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with
the Borrower) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
|
25.16
|
Deduction from amounts payable
by the Agent
|
If any
Party owes an amount to the Agent under the Finance Documents the Agent may,
after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged to
make under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so
deducted.
- 53
-
|
26.
|
CONDUCT OF BUSINESS BY THE
FINANCE PARTIES
|
No
provision of this Agreement will:
|
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
|
(b)
|
oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim;
or
|
|
|
(c)
|
oblige
any Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of
Tax.
|
|
27.
|
SHARING AMONG THE FINANCE
PARTIES
|
|
27.1
|
Payments to Finance
Parties
|
If a
Finance Party (a “Recovering
Finance Party”) receives or recovers any amount from an Obligor other
than in accordance with Clause 28 (Payment mechanics) and
applies that amount to a payment due under the Finance Documents
then:
|
|
(a)
|
the
Recovering Finance Party shall, within three Business Days, notify details
of the receipt or recovery, to the
Agent;
|
|
|
(b)
|
the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Finance Party would have been paid had the receipt
or recovery been received or made by the Agent and distributed in
accordance with Clause 28 (Payment mechanics),
without taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution;
and
|
|
|
(c)
|
the
Recovering Finance Party shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the “Sharing Payment”) equal
to such receipt or recovery less any amount which the Agent determines may
be retained by the Recovering Finance Party as its share of any payment to
be made, in accordance with Clause 28.5 (Partial
payments).
|
|
27.2
|
Redistribution of
payments
|
The Agent
shall treat the Sharing Payment as if it had been paid by the Borrower and
distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 28.5 (Partial
payments).
|
27.3
|
Recovering Finance Party’s
rights
|
|
|
(a)
|
On
a distribution by the Agent under Clause 27.2 (Redistribution of
payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
|
|
|
(b)
|
If
and to the extent that the Recovering Finance Party is not able to rely on
its rights under paragraph (a) above, the Borrower shall be liable to the
Recovering Finance Party for a debt equal to the Sharing Payment which is
immediately due and payable.
|
- 54
-
|
27.4
|
Reversal of
redistribution
|
If any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
|
|
(a)
|
each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 27.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering Finance Party
for its proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay);
and
|
|
|
(b)
|
that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrower will be liable to the
reimbursing Finance Party for the amount so
reimbursed.
|
|
27.5
|
Exceptions
|
|
|
(a)
|
This
Clause 27 shall not apply to the extent that the Recovering Finance Party
would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the
Borrower.
|
|
|
(b)
|
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings,
if:
|
|
|
(i)
|
it
notified that other Finance Party of the legal or arbitration proceedings;
and
|
|
|
(ii)
|
that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.
|
- 55
-
ADMINISTRATION
|
28.
|
PAYMENT
MECHANICS
|
|
28.1
|
Payments to the
Agent
|
On each
date on which the Borrower or a Lender is required to make a payment under a
Finance Document, the Borrower or Lender shall make the same available to the
Agent (unless a contrary indication appears in a Finance Document) for value on
the due date at the time and in such funds specified by the Agent as being
customary at the time for settlement of transactions in dollars in the place of
payment.
|
28.2
|
Distributions by the
Agent
|
Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 28.3 (Distributions to an Obligor),
Clause 28.4 (Clawback)
and Clause 25.16 (Deduction
from amounts payable by the Agent) be made available by the Agent as soon
as practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account of its
Facility Office), to such account as that Party may notify to the Agent by not
less than five Business Days’ notice.
|
28.3
|
Distributions to the
Borrower
|
The Agent
may (with the consent of the Borrower or in accordance with Clause 29 (Set-off)) apply any amount
received by it for the Borrower in or towards payment (on the date and in the
currency and funds of receipt) of any amount due from the Borrower under the
Finance Documents or in or towards purchase of any amount of any currency to be
so applied.
|
28.4
|
Clawback
|
|
|
(a)
|
Where
a sum is to be paid to the Agent under the Finance Documents for another
Party, the Agent is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been
able to establish to its satisfaction that it has actually received that
sum.
|
|
|
(b)
|
If
the Agent pays an amount to another Party and it proves to be the case
that the Agent had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was
paid by the Agent shall on demand refund the same to the Agent together
with interest on that amount from the date of payment to the date of
receipt by the Agent, calculated by the Agent to reflect its cost of
funds.
|
|
28.5
|
Partial
payments
|
|
|
(a)
|
If
the Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by the Borrower under the Finance Documents,
the Agent shall apply that payment towards the obligations of the Borrower
under the Finance Documents in the following
order:
|
|
|
(i)
|
first, in or towards
payment pro rata of any unpaid fees, costs and expenses of the Agent and
the Arrangers under the Finance
Documents;
|
- 56
-
|
|
(ii)
|
secondly, in or towards
payment pro rata of any accrued interest, fee or commission due but unpaid
under this Agreement;
|
|
|
(iii)
|
thirdly, in or towards
payment pro rata of any principal due but unpaid under this Agreement;
and
|
|
|
(iv)
|
fourthly, in or towards
payment pro rata of any other sum due but unpaid under the Finance
Documents.
|
|
|
(b)
|
The
Agent shall, if so directed by the Majority Lenders, vary the order set
out in paragraphs (a)(ii) to (iv)
above.
|
|
|
(c)
|
Paragraphs
(a) and (b) above will override any appropriation made by the
Borrower.
|
|
28.6
|
No set-off by the
Borrower
|
All
payments to be made by the Borrower under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
|
28.7
|
Business
Days
|
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day shall
be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is
not).
|
|
|
(b)
|
During
any extension of the due date for payment of any principal or Unpaid Sum
under this Agreement interest is payable on the principal or Unpaid Sum at
the rate payable on the original due
date.
|
|
28.8
|
Currency of
account
|
|
|
(a)
|
Subject
to paragraphs (b) to (e) below, dollars is the currency of account and
payment for any sum due from the Borrower under any Finance
Document.
|
|
|
(b)
|
A
repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall
be made in the currency in which that Loan or Unpaid Sum is denominated on
its due date.
|
|
|
(c)
|
Each
payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
|
|
|
(d)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
|
|
(e)
|
Any
amount expressed to be payable in a currency other than dollars shall be
paid in that other currency.
|
|
29.
|
SET-OFF
|
A Finance
Party may set off any matured obligation due from the Borrower under the Finance
Documents (to the extent beneficially owned by that Finance Party) against any
matured obligation owed by that Finance Party to the Borrower, regardless of the
place
- 57
-
of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of business for the
purpose of the set-off.
|
30.
|
NOTICES
|
|
30.1
|
Communications in
writing
|
Except as
otherwise provided in Clause 22 (Use of Websites), any
communication to be made under or in connection with the Finance Documents shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
|
30.2
|
Addresses
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:
|
|
(a)
|
in
the case of the Borrower, that identified with its name
below;
|
|
|
(b)
|
in
the case of each Lender, that notified in writing to the Agent on or prior
to the date on which it becomes a Party;
and
|
|
|
(c)
|
in
the case of the Agent, that identified with its name
below,
|
or any
substitute address, fax number, or department or officer as the Party may notify
to the Agent (or the Agent may notify to the other Parties, if a change is made
by the Agent) by not less than five Business Days’ notice.
|
30.3
|
Delivery
|
|
|
(a)
|
Except
as otherwise provided in Clause 22 (Use of Websites), any
communication or document made or delivered by one person to another under
or in connection with the Finance Documents will only be
effective:
|
|
|
(i)
|
if
by way of fax, when received in legible form;
or
|
|
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or five
Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that
address;
|
and, if a
particular department or officer is specified as part of its address details
provided under Clause 30.2 (Addresses), if addressed to
that department or officer.
|
|
(b)
|
Except
as otherwise provided in Clause 22 (Use of Websites), any
communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified
with the Agent’s signature below (or any substitute department or officer
as the Agent shall specify for this
purpose).
|
|
|
(c)
|
All
notices from or to the Borrower shall be sent through the
Agent.
|
- 58
-
|
30.4
|
Notification of address and fax
number
|
Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 30.2 (Addresses) or changing its
own address or fax number, the Agent shall notify the other
Parties.
|
30.5
|
Electronic
communication
|
|
|
(a)
|
Any
communication to be made between the Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail or
other electronic means, if the Agent and the relevant
Lender:
|
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an accepted
form of communication;
|
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means; and
|
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
|
(b)
|
Any
electronic communication made between the Agent and a Lender will be
effective only when actually received in readable form and in the case of
any electronic communication made by a Lender to the Agent only if it is
addressed in such a manner as the Agent shall specify for this
purpose.
|
|
30.6
|
English
language
|
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must be in
English.
|
|
|
(b)
|
All
other documents provided under or in connection with any Finance Document
must be:
|
|
|
(i)
|
in
English; or
|
|
|
(ii)
|
if
not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other
official document.
|
|
31.
|
CALCULATIONS AND
CERTIFICATES
|
|
31.1
|
Accounts
|
In any
litigation or arbitration proceedings arising out of or in connection with a
Finance Document, the entries made in the accounts maintained by a Finance Party
are prima facie
evidence of the matters to which they relate.
|
31.2
|
Certificates and
Determinations
|
Any
certification or determination by a Finance Party of a rate or amount under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.
- 59
-
|
31.3
|
Day count
convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the London
interbank market differs, in accordance with that market practice.
|
32.
|
PARTIAL
INVALIDITY
|
If, at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
|
33.
|
REMEDIES AND
WAIVERS
|
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or
remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by
law.
|
34.
|
AMENDMENTS AND
WAIVERS
|
|
34.1
|
Required
consents
|
|
|
(a)
|
Subject
to Clause 34.2 (Exceptions) any term of
this Agreement may be amended or waived only with the consent of the
Majority Lenders and the Borrower and any such amendment or waiver will be
binding on all Parties.
|
|
|
(b)
|
The
Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause.
|
|
34.2
|
Exceptions
|
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
|
(i)
|
the
definition of “Majority Lenders” in Clause 1.1 (Definitions);
|
|
|
(ii)
|
an
extension to the date of payment of any amount under this
Agreement;
|
|
|
(iii)
|
a
reduction in the Applicable Margin or a reduction in the amount of any
payment of principal, interest, fees or commission
payable;
|
|
|
(iv)
|
an
increase in or an extension of any
Commitment;
|
|
|
(v)
|
a
change to the Borrower;
|
|
|
(vi)
|
any
provision which expressly requires the consent of all the
Lenders;
|
|
|
(vii)
|
Clause
2.2 (Finance Parties’
rights and obligations), Clause 19.5 (Merger), Clause 23
(Changes to the
Lenders) or this Clause 34;
or
|
|
|
(viii)
|
Any
release of the Parent Guarantee or change to the Guarantor (as defined
therein)
|
- 60
-
shall not
be made without the prior consent of all the Lenders.
|
|
(b)
|
An
amendment or waiver which relates to the rights or obligations of the
Agent or the Arrangers may not be effected without the consent of the
Agent or the Arrangers.
|
|
35.
|
COUNTERPARTS
|
Each
Finance Document may be executed in any number of counterparts, and this has the
same effect as if the signatures on the counterparts were on a single copy of
the Finance Document.
- 61
-
GOVERNING
LAW AND ENFORCEMENT
|
36.
|
GOVERNING
LAW
|
This
Agreement is governed by English law.
|
37.
|
ENFORCEMENT
|
|
37.1
|
Jurisdiction
|
|
|
(a)
|
The
courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement or the
consequences of its nullity) (a “Dispute”).
|
|
|
(b)
|
The
Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the
contrary.
|
|
|
(c)
|
This
Clause 37.1 is for the benefit of the Finance Parties only. As
a result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To
the extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of
jurisdictions.
|
|
37.2
|
Service of
process
|
Without
prejudice to any other mode of service allowed under any relevant law, the
Borrower:
|
|
(a)
|
irrevocably
appoints Xxxxx Corporation Limited, (Company Number 03132265, Xxxx 000, 00
Xxxxxx Xxxx, Xxxxxx, XX0X 0XX) as its agent for service of process in
relation to any proceedings before the English courts in connection with
any Finance Document; and
|
|
|
(b)
|
agrees
that failure by a process agent to notify the Borrower of the process will
not invalidate the proceedings
concerned.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
- 62
-
SCHEDULE
1
Applicable
Margin
|
1.
|
The
Applicable Margin is 0.80 per cent. per annum
unless:
|
|
(a)
|
an
Event of Default has occurred and is continuing and/or the certificate
required to be delivered under Clause 18.7 has not been delivered, in
which case the Applicable Margin shall be 1.50 per cent. per annum;
or
|
|
(b)
|
Xxxxx’x
are publishing an Applicable Xxxxx’x Rating and/or S&P are publishing
an Applicable S&P Rating, in which case the Applicable Margin is the
percentage rate per annum that corresponds to that rating, as in effect
from time to time as set out in the following
table:
|
|
Applicable
S&P Rating
|
Applicable
Xxxxx’x Rating
|
Applicable
Margin
(%
per annum)
|
|
BBB+
or above
|
Baa1
or above
|
0.65
|
|
BBB
|
Baa2
|
0.75
|
|
BBB-
|
Baa3
|
0.85
|
|
BB+
|
Ba1
|
1.20
|
|
BB
or lower
|
Ba2
or lower
|
1.50
|
provided that if (i) paragraph
(a) above applies, and/or (ii) neither an Applicable Xxxxx’x Rating nor an
Applicable S&P Rating is available, the Applicable Margin shall be 1.50 per
cent. per annum.
|
2.
|
If
the Applicable Xxxxx’x Rating and the Applicable S&P Rating appear on
different lines of the table at Clause 1 of this Schedule, the Applicable
Margin will be determined as
follows:
|
|
|
(a)
|
if
there is a split Rating of one notch, the Applicable Margin shall be the
average of the Applicable Margin of the two
notches;
|
|
|
(b)
|
if
there is a split Rating of two notches, the Applicable Margin shall be the
Applicable Margin for the intermediate
notch;
|
|
|
(c)
|
if
only one of the Rating Agencies has provided an Applicable Rating then the
Applicable Margin shall be calculated by assuming that the Rating Agency
that did not provide an Applicable Rating would provide an Applicable
Rating two notches below the Applicable Rating that was
provided.
|
|
3.
|
Any
change to the Applicable Margin shall take effect on the first Business
Day after the announcement of the change in rating by the relevant Rating
Agency.
|
- 63
-
|
4.
|
If
the long term unsecured debt ratings service provided by S&P or
Xxxxx’x ceases to be available, the Agent can, after consultation with the
Borrower and the Lenders, specify an alternative provider of an equivalent
service for the purposes of calculating the Applicable
Margin.
|
- 64
-
SCHEDULE
2
The
Original Lenders
|
Name
of Original Lender
|
Commitment
$mm
|
|
BNP
Paribas
|
40
|
|
Calyon
New York Branch
|
40
|
|
Fortis
Bank (Nederland) N.V.
|
40
|
|
The
Royal Bank of Scotland PLC
|
40
|
|
Australia
and New Zealand Banking Group Limited
|
30
|
|
The
Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
30
|
|
Credit
Suisse, Cayman Islands Branch
|
30
|
|
DZ
Bank AG
Deutsche
Zentral-Genossenschaftsbank
New
York Branch
|
30
|
|
HSH
Nordbank AG, New York
|
30
|
|
ING
Bank N.V.
|
30
|
|
KfW
IPEX-Bank GmbH
|
30
|
|
Lloyds
TSB Bank plc
|
30
|
|
National
Australia Bank Ltd
A.B.N.
12 004 044 937
|
30
|
|
Coöperatieve
Centrale Raiffeisen-Boerenleenbank B.A.
|
30
|
|
Standard
Chartered Bank
|
30
|
|
Banco
Español de Crédito, S.A.
|
17.5
|
|
Commerzbank
Aktiengesellschaft, London Branch
|
17.5
|
|
ICBC
(London) Limited
|
17.5
|
|
Landsbanki
Islands hf, London Branch
|
17.5
|
|
Oversea-Chinese
Banking Corporation, New York Agency
|
17.5
|
|
Banco
Santander S.A., New York Branch
|
17.5
|
|
Société
Générale
|
17.5
|
- 65
-
|
Sumitomo
Mitsui Banking Corp., New York
|
17.5
|
|
Agricultural
Bank of China, Singapore Branch
|
10
|
|
Scotiabank
Europe plc
|
10
|
|
TOTAL:
|
650
|
- 66
-
SCHEDULE
3
Conditions
Precedent
Conditions
precedent to initial Utilisation
|
1.
|
Obligors
|
|
|
(a)
|
A
copy of the constitutional documents of each Obligor or, in the case of
the Borrower, a copy of the articles of association (statuten) and deed of
incorporation (oprichtingsakte) as
well as an extract (uittreksel) from the relevant
Chamber of Commerce (Xxxxx van Koophandel)
of the Borrower.
|
|
|
(b)
|
A
copy of a resolution of the board of directors of each
Obligor:
|
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Finance Documents
to which it is a party and resolving that it execute the Finance Documents
to which it is a party;
|
|
|
(ii)
|
authorising
a specified person or persons to execute the Finance Documents to which it
is a party on its behalf; and
|
|
|
(iii)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch all
documents and notices (including, if relevant, any Utilisation Request) to
be signed and/or despatched by it under or in connection with the Finance
Documents to which it is a party.
|
|
|
(c)
|
A
copy of the resolution of the general meeting of shareholders (algemene vergadering van
aandeelhouders) of the Borrower approving the resolutions of the
board of managing directors referred to under (b) above and appointing an
authorised person to represent the Borrower in case of a conflict of
interest.
|
|
|
(d)
|
If
applicable, a copy of the resolution of the board of supervisory directors
(raad van
commissarissen) of the Borrower approving the resolutions of the
board of managing directors referred to under (b)
above.
|
|
|
(e)
|
If
applicable, a copy of (i) the request for advice from each (central or
European) works council (centrale of Europese)
ondernemingsraad)
with jurisdiction over the transactions contemplated by this Agreement and
(ii) the positive advice from such works council which contains no
condition, which if complied with, could result in a breach of any of the
Finance Documents.
|
|
|
(f)
|
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above in relation to the Finance Documents
and such other evidence as may be required to ensure that the Finance
Parties are in compliance with the Wet Identificatie Financiële
Dienstverlening.
|
|
|
(g)
|
A
certificate of each Obligor (signed by a Responsible Officer) confirming
that borrowing or guaranteeing, as appropriate, the Total Commitments
would not violate any borrowing or, guaranteeing limit set forth in any
Contractual Obligation or Requirement of Law binding on the respective
Obligor.
|
- 67
-
|
|
(h)
|
A
certificate of an authorised signatory of the Obligor certifying that each
copy document relating to it specified in this Schedule 3 is correct,
complete and in full force and effect as at a date no earlier than the
date of this Agreement.
|
|
2.
|
Legal
opinions
|
|
|
(a)
|
A
legal opinion of Xxxxxxxx Chance LLP legal advisers to the Arrangers and
the Agent, opining, notably to the validity under English law of the
obligations of the Borrower under this
Agreement.
|
|
|
(b)
|
A
legal opinion of Xxxxxxxx Chance LLP legal advisers to the Arrangers and
the Agent as to matters of Dutch law, opining notably as to (i) the
capacity of the Borrower to enter into and perform its obligations under
the Finance Documents, (ii) the recognition under Dutch law of the
validity of such obligations of the Borrower under this Agreement and
(iii) the recognition and enforcement in The Netherlands of any judgement
rendered against the Borrower pursuant to the jurisdiction provisions of
the Financing Documents.
|
|
|
(c)
|
A
legal opinion of Xxxxxxx Xxxx & Xxxxxxx as to matters of Bermuda law,
opining notably as to (i) the capacity of the Parent to enter into and
perform its obligations under the Parent Guarantee, (ii) the recognition
under Bermuda law of the validity of such obligations and the choice of
law expressed in the Parent Guarantee and (iii) the recognition and
enforcement in Bermuda of any judgement rendered against the Parent
pursuant to the jurisdiction provisions of the Parent
Guarantee.
|
|
|
(d)
|
A
legal opinion of Winston & Xxxxxx LLP as to matters of New York law,
opining notably as to the validity under New York law of the obligations
of the Parent under the Parent
Guarantee.
|
|
|
(e)
|
A
legal opinion of Winston & Xxxxxx LLP opining notably as to the
enforceability of the Transaction
Documents.
|
|
3.
|
Other documents and
evidence
|
|
|
(a)
|
One
signed original of the Parent
Guarantee.
|
|
|
(b)
|
Delivery
of a copy of each of the Transaction
Documents.
|
|
|
(c)
|
Evidence
that any process agent referred to in Clause 37.2 (Service of process),
has accepted its appointment.
|
|
|
(d)
|
A
certificate of the Parent confirming the prevalent Ratings in respect of
the Parent on the day of this
Agreement.
|
|
|
(e)
|
The
latest annual consolidated audited and certified financial statements of
the Parent.
|
|
|
(f)
|
Evidence
that the fees, costs and expenses then due from the Borrower pursuant to
Clause 11 (Fees)
and Clause 16 (Costs and
expenses) have been paid or will be paid by the first Utilisation
Date.
|
- 68
-
|
|
(g)
|
A
copy of any other document, authorisation, opinion or assurance reasonably
requested by the Agent.
|
- 69
-
SCHEDULE
4
Utilisation
Request
|
From:
|
Xxxxx
Finance Europe B.V. as Borrower
|
|
To:
|
Fortis
Bank (Nederland) N.V. as Agent
|
Dated:
Dear
Sirs
We
refer to the revolving facility agreement (the “Agreement”) dated 28 March 2008
and made between, Xxxxx Finance Europe B.V., as Borrower, the Arrangers named
therein, the Agent and certain Lenders named therein.
|
1.
|
This
is a Utilisation Request. Terms defined in the Agreement have
the same meaning in this Utilisation Request unless given a different
meaning in this Utilisation
Request.
|
|
2.
|
We
wish to borrow a Loan on the following
terms:
|
|
Proposed
Utilisation Date:
|
[ ]
(or, if that is not a Business Day, the next Business
Day)
|
|
Amount:
|
[ ]
or, if less, the Available Facility
|
|
Interest
Period:
|
[ ]
|
|
3.
|
We
confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation
Request.
|
|
4.
|
The
proceeds of this Loan should be credited to [account].
|
|
5.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
…………………………………
authorised
signatory for
Xxxxx
Finance Europe B.V.
- 70
-
SCHEDULE
5
Mandatory
Cost Formulae
|
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate Lenders
for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions), (b) the
requirements of the European Central Bank, or (c) the requirements of the
Swiss Banking Code Commission and/or the Swiss National
Bank.
|
|
2.
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”)
for each Lender, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders’ Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per
annum.
|
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender
in its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender’s participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
|
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the Agent as
follows:
|
 |
per cent. per annum. |
Where:
E is designed to compensate
Lenders for amounts payable under the Fees Rules and is calculated by the Agent
as being the average of the most recent rates of charge supplied by the
Reference Banks to the Agent pursuant to paragraph 6 below and expressed in
pounds per £1,000,000.
|
5.
|
For
the purposes of this Schedule:
|
|
|
(a)
|
“Fees Rules” means the
rules on periodic fees contained in the FSA Supervision Manual or such
other law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of
deposits;
|
|
|
(b)
|
“Fee Tariffs” means the
fee tariffs specified in the Fees Rules under the activity group A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate);
|
|
|
(c)
|
“Tariff Base” has the
meaning given to it in, and will be calculated in accordance with, the
Fees Rules; and
|
- 71
-
|
|
(d)
|
“Participating Member
State” means any member state of the European Communities that
adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary
Union.
|
|
6.
|
If
requested by the Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the
Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for this
purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed
in pounds per £1,000,000 of the Tariff Base of that Reference
Bank.
|
|
7.
|
Each
Lender shall supply any information required by the Agent for the purpose
of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information on
or prior to the date on which it becomes a
Lender:
|
|
|
(a)
|
the
jurisdiction of its Facility Office;
and
|
|
|
(b)
|
any
other information that the Agent may reasonably require for such
purpose.
|
Each
Lender shall promptly notify the Agent of any change to the information provided
by it pursuant to this paragraph.
|
8.
|
The
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it pursuant
to paragraphs 6 and 7 above.
|
|
9.
|
The
Agent shall have no liability to any person if such determination results
in an Additional Cost Rate which over or under compensates any Lender and
shall be entitled to assume that the information provided by any Lender or
Reference Bank pursuant to paragraphs 3, 6 and 7 above is true and correct
in all respects.
|
|
10.
|
The
Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for
each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 6 and 7
above.
|
|
11.
|
Any
determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
|
|
12.
|
The
Agent may from time to time, after consultation with the Borrower and the
Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority, the European Central Bank,
the Swiss Banking Code Commission and/or the Swiss National Bank (or, in
any case, any other authority which replaces all or any of its functions)
and
|
- 72
-
any such
determination shall, in the absence of manifest error, be conclusive and binding
on all Parties.
- 73
-
SCHEDULE
6
Form
of Transfer Certificate
To: Fortis
Bank (Nederland) N.V. as Agent
From: [The Existing Lender] (the
“Existing Lender”) and
[The New Lender] (the
“New
Lender”)
Dated:
We
refer to the revolving facility agreement (the “Agreement”) dated 28 March
2008 between Xxxxx Finance Europe B.V., as Borrower, the Arrangers named
therein, the Agent and certain Lenders named therein.
|
1.
|
This
is a Transfer Certificate. Terms defined in the Agreement have
the same meaning in this Transfer Certificate unless given a different
meaning in this Transfer
Certificate.
|
|
2.
|
We
refer to Clause 23.5 (Procedure for
transfer):
|
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender’s Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 23.5 (Procedure for
transfer).
|
|
|
(b)
|
The
proposed Transfer Date is
[ ].
|
|
|
(c)
|
The
Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 30.2 (Addresses) are set out
in the Schedule.
|
|
3.
|
The
New Lender expressly acknowledges the limitations on the Existing Lender’s
obligations set out in paragraph (c) of Clause 23.4 (Limitation of responsibility
of Existing Lenders).
|
|
4.
|
This
Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on
a single copy of this Transfer
Certificate.
|
|
5.
|
This
Transfer Certificate is governed by English
law.
|
- 74
-
THE
SCHEDULE
Commitment/rights
and obligations to be transferred
[insert relevant
details]
[Facility Office address, fax number
and attention details for notices and account details for
payments,]
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
|
By
|
|
This
Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as
[ ].
|
|
|
Fortis
Bank (Nederland) N.V.
|
|
By:
WARNING
NOTE: PLEASE ENSURE THAT THE AMOUNT TRANSFERRED BY ONE LENDER TO ANOTHER LENDER
IN RELATION TO A LOAN OR A COMMITMENT IS AT LEAST THE US$ EQUIVALENT OF EUR
50,000. OTHERWISE, INSERT A CONFIRMATION BY THE NEW LENDER WHO LENDS
TO THE BORROWER THAT THE NEW LENDER IS A ‘PROFESSIONAL MARKET PARTY’ WITHIN THE
MEANING OF THE DUTCH FSA.
- 75
-
SCHEDULE
7
Timetables
|
Loans
in dollars
|
|
|
Delivery
of a duly completed Utilisation Request (Clause 5.1
(Delivery of a Utilisation
Request)
|
U-3
10.00
am
|
|
Agent
notifies the Lenders of the Loan in accordance with Clause 5.4
(Lenders’
participation)
|
U-3
3.00
pm
|
|
LIBOR
|
Quotation
Day as of 11:00
a.m.
London time
|
“U” =
date of utilisation
“U - X” =
X Business Days prior to date of utilisation
- 76
-
SCHEDULE
8
Form
of Confidentiality Undertaking
[Letterhead
of Lender]
| To: | [·] | |
| Re: | The Facility | |
|
Borrower:
|
XXXXX
FINANCE EUROPE B.V.
|
|
| Amount: | [·] | |
| Agent: | Fortis Bank (Nederland) N.V. | |
Dear
Sirs
We
understand that you are considering participating in the Facility. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
|
1.
|
Confidentiality
Undertaking You undertake:
|
|
|
(a)
|
to
keep the Confidential Information confidential and not to disclose it to
anyone except as provided for by paragraph 2 below and to ensure that the
Confidential Information is protected with security measures and a degree
of care that would apply to your own confidential
information;
|
|
|
(b)
|
to
keep confidential and not disclose to anyone the fact that the
Confidential Information has been made available or that discussions or
negotiations are taking place or have taken place between us in connection
with the Facility;
|
|
|
(c)
|
to
use the Confidential Information only for the Permitted
Purpose;
|
|
|
(d)
|
to
use all reasonable endeavours to ensure that any person to whom you pass
any Confidential Information (unless disclosed under paragraph 2(b) below)
acknowledges and complies with the provisions of this letter as if that
person were also a party to it; and
|
|
|
(e)
|
not
to make enquiries of any member of the Group or any of their officers,
directors, employees or professional advisers relating directly or
indirectly to the Facility.
|
|
2.
|
Permitted Disclosure We
agree that you may disclose Confidential
Information:
|
|
|
(a)
|
to
members of the Participant Group and their officers, directors, employees
and professional advisers to the extent necessary for the Permitted
Purpose and to any auditors of members of the Participant
Group;
|
|
|
(b)
|
(i)
where requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body, (ii)
where required by the rules of any stock exchange on which the shares or
other securities of any member of the Participant Group are listed or
(iii) where
|
- 77
-
required
by the laws or regulations of any country with jurisdiction over the affairs of
any member of the Participant Group; or
|
|
(c)
|
with
the prior written consent of us and
Bunge.
|
|
3.
|
Notification of Required or
Unauthorised Disclosure You agree (to the extent permitted by law)
to inform us of the full circumstances of any disclosure under paragraph
2(b) or upon becoming aware that Confidential Information has been
disclosed in breach of this letter.
|
|
4.
|
Return of Copies If we
so request in writing, you shall return all Confidential Information
supplied to you by us or a member of the Group and destroy or permanently
erase all copies of Confidential Information made by you and use all
reasonable endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent
that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance
with internal policy, or where the Confidential Information has been
disclosed under paragraph 2(b)
above.
|
|
5.
|
Continuing Obligations
The obligations in this letter are continuing and, in particular,
shall survive the termination of any discussions or negotiations between
you and us. Notwithstanding the previous sentence, the obligations in this
letter shall cease (a) if you become a party to or otherwise acquired (by
assignment or sub participation) an interest, direct or indirect in the
Facility or (b) twelve months after you have returned all Confidential
Information supplied to you by us or a member of the Group and destroyed
or permanently erased all copies of Confidential Information made by you
(other than any such Confidential Information or copies which have been
disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned or
destroyed).
|
|
6.
|
No Representation;
Consequences of Breach, etc You acknowledge and agree
that:
|
|
|
(a)
|
neither
we nor any of our officers, employees or advisers (each a “Relevant Person”) (i)
make any representation or warranty, express or implied, as to, or assume
any responsibility for, the accuracy, reliability or completeness of any
of the Confidential Information or any other information supplied by us or
any member of the Group or the assumptions on which it is based or (ii)
shall be under any obligation to update or correct any inaccuracy in the
Confidential Information or any other information supplied by us or any
member of the Group or be otherwise liable to you or any other person in
respect to the Confidential Information or any such information;
and
|
|
|
(b)
|
we
or members of the Group may be irreparably harmed by the breach of the
terms of this letter and damages may not be an adequate remedy; each
Relevant Person or member of the Group may be granted an injunction or
specific performance for any threatened or actual breach of the provisions
of this letter by you.
|
- 78
-
|
7.
|
No Waiver; Amendments, etc
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of
this letter. No failure or delay in exercising any right, power or
privilege under this letter will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or
privileges under this letter. The terms of this letter and your
obligations under this letter may only be amended or modified by written
agreement between us; provided, that any amendment or modification of a
material term of this letter (including, without limitation, paragraphs 1
and 2 and the definition of “Confidential Information”) shall also require
Bunge’s prior written consent.
|
|
8.
|
Inside Information You
acknowledge that some or all of the Confidential Information is or may be
price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation relating to insider
dealing and you undertake not to use any Confidential Information for any
unlawful purpose.
|
|
9.
|
Nature of Undertakings
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of Bunge, the Borrower and each other member of the
Group.
|
|
10.
|
Third party
rights
|
|
|
(a)
|
Subject
to paragraph 6 and paragraph 9 the terms of this letter may be enforced
and relied upon only by you and us and the operation of the Contracts
(Rights of Third Parties) Xxx 0000 is
excluded.
|
|
|
(b)
|
Notwithstanding
any provisions of this letter, (but subject to the proviso set forth
below) the parties to this letter do not require the consent of any
Relevant Person or any member of the Group to vary this letter at any
time; provided, that any variation of a material term of this
letter (including, without limitation, paragraphs 1 and 2 and the
definition of “Confidential Information”) shall require Bunge’s prior
written consent.
|
|
11.
|
Governing Law and Jurisdiction
This letter (including the agreement constituted by your
acknowledgement of its terms) shall be governed by and construed in
accordance with the laws of England and the parties submit to the
non-exclusive jurisdiction of the English
courts.
|
|
12.
|
Definitions In this
letter (including the acknowledgement set out
below):
|
“Borrower” means Xxxxx Finance
Europe B.V., a company formed under the laws of The Netherlands, and its
successors and permitted assigns;
“Bunge” means Xxxxx Limited, a
company formed under the laws of Bermuda, and its successors and permitted
assigns;
“Confidential Information”
means any information relating to Bunge, the Borrower, the Group, and the
Facility including, without limitation, the Information Memorandum, provided to
you by us or any member of the Group or any of their respective affiliates
or
- 79
-
advisers,
in whatever form, and includes information given orally and any document,
electronic file or any other way of representing or recording information which
contains or is derived or copied from such information but excludes information
that (a) is or becomes generally available to the public knowledge other than as
a direct or indirect result of any breach of this letter or (b) is known by you
before the date the information is disclosed to you by us or any member of the
Group or any of their respective affiliates or advisers or is lawfully obtained
by you after that date, other than from a source which is connected with the
Group and which, in either case, as far as you are aware, has not been obtained
in violation of, and is not otherwise subject to, any obligation of
confidentiality;
“Group” means Bunge and each of
its holding companies and subsidiaries and each subsidiary of each of its
holding companies (as each such term is defined in the Companies Act
1985);
“Information Memorandum” means
the Confidential Information Memorandum dated February
2008;
“Participant Group” means you,
each of your holding companies and subsidiaries and each subsidiary of each of
your holding companies (as each such term is defined in the Companies Act 1985);
and
“Permitted Purpose” means
considering and evaluating whether to enter into the Facility.
Please
acknowledge your agreement to the above by signing and returning the enclosed
copy.
Yours
faithfully
……………………………………..
For and
on behalf of
[· Lender]
To: Xxxxx
Limited
We
acknowledge and agree to the above:
……………………………………..
For and
on behalf of
[[·]]
- 80
-
SIGNATURES
THE
BORROWER
XXXXX
FINANCE EUROPE B.V.
|
By:
|
/s/ XXXXXX XXXXX
|
|
|
Name:
|
XXXXXX
XXXXX
|
|
|
Address:
|
00000
Xxxxxx Xxxxx
|
|
|
Xx.
Xxxxx, Xxxxxxxx 00000
|
||
|
Attention:
|
Xxxx
Xxxxxxx
|
|
|
Fax:
|
(000)
000 0000
|
|
|
with
a copy to:
|
||
|
Xxxxx
Limited
|
||
|
Address:
|
00
Xxxx Xxxxxx
|
|
|
Xxxxx
Xxxxxx,
|
||
|
Xxx
Xxxx 00000
|
||
|
Attention:
|
Xxxxxx
Xxxxx
|
|
|
Fax:
|
(000)
000 0000
|
THE
ARRANGERS
|
BNP
PARIBAS
|
||
|
By:
|
/s/ CAMERON LETTERS and XXXXXX X.
XXXXXXXXXX
|
|
|
Name:
|
CAMERON
LETTERS AND XXXXXX X. XXXXXXXXXX
|
|
|
CALYON
|
||
|
By:
|
/s/ XXXX XXXXXXXXXX and XXXXXX X.
XXXXXXX
|
|
|
Name:
|
XXXX
XXXXXXXXXX AND XXXXXX X. XXXXXXX
|
|
|
FORTIS
BANK (NEDERLAND) N.V.
|
||
|
By:
|
/s/ J.G.H.M. HANEGRAAF and M.S.M.
DENIE
|
|
|
Name:
|
J.G.H.M.
HANEGRAAF AND M.S.M. DENIE
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
||
|
By:
|
/s/ XXXX XXXXXXXX
|
|
|
Name:
|
XXXX
XXXXXXXX
|
|
|
THE
ORIGINAL LENDERS
|
||
|
AGRICULTURAL
BANK OF CHINA,
|
||
|
SINGAPORE
BRANCH
|
||
|
By:
|
/s/ XXXX XXXXX
|
|
|
Name:
|
XXXX
XXXXX
|
|
|
AUSTRALIA
AND NEW ZEALAND BANKING GROUP LIMITED
|
||
|
By:
|
/s/ XXX XXXXX
|
|
|
Name:
|
XXX
XXXXX
|
|
|
BANCO
ESPAÑOL DE CRÉDITO, S.A.
|
||
|
By:
|
/s/ XXXXXX XXXXXXXXX XXXXXXXXX and XXXXXX CERCZO
PAMPLONA
|
|
|
Name:
|
XXXXXX
XXXXXXXXX XXXXXXXXX AND XXXXXX CERCZO PAMPLONA
|
|
|
BANCO
SANTANDER S.A., NEW YORK BRANCH
|
||
|
By:
|
/s/ XXXXX X. ENGLISH, IV and XXXXXXX
XXXXXXXX
|
|
|
Name:
|
XXXXX
X. ENGLISH, IV AND XXXXXXX XXXXXXXX
|
|
|
BNP
PARIBAS
|
||
|
By:
|
/s/ CAMERON LETTERS and XXXXXX X.
XXXXXXXXXX
|
|
|
Name:
|
CAMERON
LETTERS AND XXXXXX X. XXXXXXXXXX
|
|
|
CALYON
NEW YORK BRANCH
|
||
|
By:
|
/s/ XXXX XXXXXXXXXX and XXXXXX X.
XXXXXXX
|
|
|
Name:
|
XXXX
XXXXXXXXXX AND XXXXXX X. XXXXXXX
|
|
|
COMMERZBANK
AKTIENGESELLSCHAFT, LONDON BRANCH
|
||
|
By:
|
/s/ XXXXXXX XXXXXXXXX and XXXXXX
XXXX
|
|
|
Name:
|
XXXXXXX
XXXXXXXXX AND XXXXXX XXXX
|
|
|
COÖPERATIEVE
CENTRALE
|
||
|
RAIFFEISEN-BOERENLEENBANK
B.A.
|
||
|
By:
|
/s/ X. XXXX and K. VALKEN
|
|
|
Name:
|
X.
XXXX AND K. VALKEN
|
|
|
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
|
||
|
By:
|
/s/ XXXX XXXXXX and XXXXXX
XXXXXXX
|
|
|
Name:
|
XXXX
XXXXXX AND XXXXXX XXXXXXX
|
|
|
DZ
BANK AG
|
||
|
DEUTSCHE
ZENTRAL-GENOSSENSCHAFTSBANK
|
||
|
NEW
YORK BRANCH
|
||
|
By:
|
/s/ XXXXXXX XXX XXXXX and XXXX
XXXXXX
|
|
|
Name:
|
XXXXXXX
XXX XXXXX AND XXXX XXXXXX
|
|
|
FORTIS
BANK (NEDERLAND) N.V.
|
||
|
By:
|
/s/ J.G.H.M. HANEGRAAF and M.S.M.
DENIE
|
|
|
Name:
|
J.G.H.M.
HANEGRAAF AND M.S.M. DENIE
|
|
|
HSH
NORDBANK AG, NEW YORK
|
||
|
By:
|
/s/ XXX XXXXXXXXX and XXX XXXXX XXXXXXX
XXXXXXXX
|
|
|
Name:
|
XXX
XXXXXXXXX AND XXX XXXXX XXXXXXX XXXXXXXX
|
|
|
ICBC
(LONDON) LIMITED
|
||
|
By:
|
/s/ XX XXXXX and JIN XXX XX
|
|
|
Name:
|
XX
XXXXX AND JIN XXX XX
|
|
|
ING
BANK N.V.
|
||
|
By:
|
/s/ X.X. XXX XXXX and X.X.
XXXXX
|
|
|
Name:
|
X.X.
XXX XXXX AND X.X. XXXXX
|
|
|
KfW
IPEX-BANK GMBH
|
||
|
By:
|
/s/ XXXXX XXXXXX and XXXXXXX VON
VLANCKENBURG
|
|
|
Name:
|
XXXXX
XXXXXX AND XXXXXXX VON VLANCKENBURG
|
|
|
LANDSBANKI
ISLANDS HF, LONDON BRANCH
|
||
|
By:
|
/s/ LILJA B. EMACSDOLTR and XXXXXX
XXXXXX
|
|
|
Name:
|
LILJA
B. EMACSDOLTR AND XXXXXX XXXXXX
|
|
|
LLOYDS
TSB BANK PLC
|
||
|
By:
|
/s/ XXXX XXXXXXXX
|
|
|
Name:
|
XXXX
XXXXXXXX
|
|
|
NATIONAL
AUSTRALIA BANK LTD
|
||
|
A.B.N.
12 004 044 937
|
||
|
By:
|
/s/ XXXXX XXXXXX XXXXX
|
|
|
Name:
|
XXXXX
XXXXXX XXXXX
|
|
|
OVERSEA-CHINESE
BANKING CORPORATION, NEW YORK AGENCY
|
||
|
By:
|
/s/ XXXX XXX
|
|
|
Name:
|
XXXX
XXX
|
|
|
SCOTIABANK
EUROPE PLC
|
||
|
By:
|
/s/ XXXX X'XXXXXX
|
|
|
Name:
|
XXXX
X'XXXXXX
|
|
|
SOCIETE
GENERALE
|
||
|
By:
|
/s/ XXXXXXXXX XXXXXXX
|
|
|
Name:
|
XXXXXXXXX
XXXXXXX
|
|
|
STANDARD
CHARTERED BANK
|
||
|
By:
|
/s/ VIVEK SIÀHA and GÜRKORN
ENSORI
|
|
|
Name:
|
VIVEK
SIÀHA AND GÜRKORN ENSORI
|
|
|
SUMITOMO
MITSUI BANKING CORP.,
|
||
|
NEW
YORK
|
||
|
By:
|
/s/ XXXXXXXXX XXXXXXXXX
|
|
|
Name:
|
XXXXXXXXX
XXXXXXXXX
|
|
|
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD.
|
||
|
By:
|
/s/ XXXXXX XXXXXXXX, EVP
|
|
|
Name:
|
XXXXXX
XXXXXXXX, EVP
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
||
|
By:
|
/s/ XXXX XXXXXXXX
|
|
|
Name:
|
XXXX
XXXXXXXX
|
|
|
THE
AGENT
|
||
|
FORTIS
BANK (NEDERLAND) N.V.
|
||
|
By:
|
/s/ M.G. MEIJER and L.J.M. VAN DER
KNAAP
|
|
|
NAME:
|
M.G.
MEIJER AND L.J.M. VAN DER KNAAP
|
|
Contact
Details:
FORTIS
BANK (NEDERLAND) N.V.
Syndicated
Loans Agency
|
Address:
|
X.X.
Xxx 000
|
|
0000
XX Xxxxxxxxx
|
|
|
Xxx
Xxxxxxxxxxx
|
|
|
Attention:
|
Xx.
Xxxx Xxxxxx
|
|
Telephone:
|
x00
00000 0000
|
|
Fax:
|
x00
00000 0000
|
|
Email:
|
xxxx.xxxxxx@xx.xxxxxx.xxx
|
EXHIBIT
Form
of Parent Guarantee
