THIS AGREEMENT is dated 12 December 2017 and made between:

 

(1)

BUNGE FINANCE EUROPE B.V. a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of The Netherlands having its corporate seat ( statutaire zetel ) in Rotterdam, The Netherlands and its registered office at 11720 Borman Drive, St. Louis, Missouri 63146, United States of America and registered with the Dutch Commercial Register ( Handelsregister ) under number 24347428 (the “ Borrower ”);

 

(2)	ABN AMRO BANK N.V. , BNP PARIBAS , CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK , HSBC BANK PLC and ING BANK N.V. as mandated lead arrangers and bookrunners (each an “ Arranger ” and together the “ Arrangers ”);

 

(3)	THE FINANCIAL INSTITUTIONS listed in Schedule 2 ( The Original Lenders ) as lenders (the “ Original Lenders ”); and

 

(4)	ABN AMRO BANK N.V. as agent of the other Finance Parties (the “ Agent ”).

 

IT IS AGREED as follows:

 

INTERPRETATION

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1	Definitions

 

In this Agreement:

 

“ 2014 Facility ” means the US$1,750,000,000 revolving facility agreement dated 17 March 2014 (as amended on 10 August 2015) between, amongst others, Bunge Finance Europe B.V., as borrower, ABN AMRO Bank N.V., as agent, and the persons listed therein as lenders.

 

“ Acceptable Bank ” means:

 

(a)

a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB+ or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa1 or higher by Moody’s Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or

 

(b)

any other bank or financial institution approved by the Agent.

 

“ Accordion Increase Certificate ” a certificate substantially in the form set out in Schedule 7 ( Form of Accordion Increase Certificate ).

 

“ Accordion Increase Date ” means, in relation to an increase of the Total Commitments in accordance with Clause 2.2 ( Accordion Increase ), the later of:

 

(a)

the proposed Accordion Increase Date specified in the relevant Accordion Increase Certificate; and

 

 

(b)

the date on which the Agent executes the relevant Accordion Increase Certificate,

 

which date shall be the last date of the Interest Period of each Loan then outstanding.

 

“ Additional Commitment Lenders ” means the Accordion Lenders and the New Accordion Lenders.

 

“ 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.  Notwithstanding the foregoing:

 

(a)

in relation to Crédit Agricole Corporate and Investment Bank, the term “Affiliate” shall include any Caisse Régionale of the Crédit Agricole Group and/or LCL;

 

(b)

in relation to ABN AMRO Bank N.V., the term “Affiliate” shall exclude the state of The Netherlands and any of its subsidiaries other than ABN AMRO Bank N.V., but include any entity that acquires the business of ABN AMRO Bank N.V. to which the Dutch state is entitled; and

 

(c)

in relation to Natixis, the term “Affiliate” shall include any members of the Banque Populaire and Caisse d’Epargne networks within the meaning of articles L.512-11, L.512-86 and L.512-106 of the French Monetary and Financial Code ( Code Monétaire et Financier ).

 

“ Applicable Margin ” means as set out in Schedule 1 ( Applicable Margin ) hereto.

 

“ Applicable Moody’s 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 Moody’s 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 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:

 

(a)

its participation in any outstanding Loans on such date; and

 

(b)

in relation to any proposed Utilisation, its participation in any Loans that are due to be made on or before the proposed Utilisation Date,

 

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.

 

“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers.

 

“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule.

 

“ Basel III ” means:

 

(a)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

(b)

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

(c)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

 

“ BLFC ” means Bunge Limited Finance Corp., a Delaware corporation, and its successors and permitted assigns.

 

“ Board of Directors ” means, with respect to any Person, the board of directors of such Person or any duly authorised committee thereof.

 

“ Borrower Account ” means any account established by or for the Borrower, other than the Series 2003-1 Collection Subaccount (or any sub-subaccount thereof), for the purpose of depositing funds borrowed hereunder or under any Pari Passu   Indebtedness and any amounts paid pursuant to the Series 2003-1 VFC Certificate and all amounts received with respect to Hedge Agreements.

 

 

“ Break Costs ” means the amount (if any) by which:

 

(a)

the interest minus the Applicable Margin which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount of that Loan or Unpaid Sum received been paid on the last day of that Interest Period;

 

exceeds:

 

(b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of that Loan or Unpaid Sum received by it on deposit with a leading bank in the London interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of that Interest Period.

 

“ Bunge Master Trust ” means the trust created pursuant to the Pooling Agreement.

 

“ Business Day ” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Amsterdam and New York City.

 

“ Capital Stock ” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) the equity (which includes, but is not limited to, common stock or shares, preferred stock or shares and partnership and joint venture interests) of such Person (excluding any debt securities convertible into, or exchangeable for, such equity).

 

“ Change of Control ” means the occurrence of any of the following:

 

(a)

the Parent becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the United States Securities Exchange Act of 1934 (the “ Exchange Act ”), proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination, of 50% or more of the total voting power of the Voting Stock of the Parent then outstanding;

 

(b)

the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Parent and its Subsidiaries, taken as a whole, to any Person that is not a Subsidiary of the Parent;

 

(c)

the first day on which a majority of the members of the Parent’s Board of Directors are not Continuing Directors; or

 

(d)

the Borrower shall not be directly, or indirectly wholly-owned by the Parent.

 

 

“ Code ” means the US Internal Revenue Code of 1986, as amended.

 

“ Commitment ” means:

 

(a)

in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Schedule 2 ( The Original Lenders ) and the amount of any other Commitment transferred to it under this Agreement or assumed by it under Clause 2.2 ( Accordion Increase ); and

 

(b)

in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement or assumed by it under Clause 2.2 ( Accordion Increase ),

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

“ Confidential Information ” means all information relating to the Borrower, any Obligor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:

 

(a)

any member of the Group or any of its advisers; or

 

(b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its 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

 

(i)

information that:

 

(A)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 37 ( Confidentiality ); or

 

(B)

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

(C)

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (A) or (B) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

 

(ii)

any Reference Bank Quotation.

 

 

“ Confidentiality Undertaking ” means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Borrower and the Agent.

 

“ Consenting Lender ” has the meaning given to it in Clause 6 ( Extension Option ).

 

“ Continuing Directors ” means, as of any date of determination, any member of the Board of Directors of the Parent who (1) was a member of such Board of Directors on the date of this Agreement; or (2) was nominated for election, appointed or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Parent’s proxy statement in which such member was named as a nominee for election as a director).

 

“ 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.

 

“ CRD IV ” means:

 

(a)

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (“ CRR ”); and

 

(b)

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.

 

“ 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 19 ( 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 23 ( 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.

 

“ Defaulting Lender ” means any Lender:

 

(a)

which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 ( Lenders’ participation ); or

 

(b)

which has otherwise rescinded or repudiated a Finance Document,

 

 

unless, in the case of paragraph (a) above:

 

(i)

its failure to pay is caused by:

 

(A)

administrative or technical error; or

 

(B)

a Disruption Event; and

 

payment is made within 5 Business Days of its due date; or

 

(ii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

 

“ 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.

 

“ Disruption Event ” means either or both of:

 

(a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

(b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i)

from performing its payment obligations under the Finance Documents; or

 

(ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

“ 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.

 

“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.

 

“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

“ Effective Date ” means the date on which the Agent has received all of the documents and other evidence listed in Schedule 3 ( Conditions Precedent ) in form and substance reasonably satisfactory to it, such date to occur no later than the date falling one Month after the date of this Agreement.

 

“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

 

“ Event of Default ” means any event or circumstance specified as such in Clause 23 ( Events of Default ).

 

“ Executive Order ” means Executive Order No. 13224 of September 23, 2001 – Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.

 

“ 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.

 

“ FATCA ” means:

 

(a)

sections 1471 to 1474 of the Code or any associated US Treasury Regulations or other official guidance;

 

(b)

any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or

 

 

(c)

any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

 

“ FATCA Application Date ” means:

 

(a)

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;

 

(b)

in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or

 

(c)

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,

 

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

 

“ FATCA Deduction ” means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

“ FATCA Exempt Party ” means a Party that is entitled to receive payments free from any FATCA Deduction.

 

“ FCPA ” has the meaning given to it in Clause 18.20 ( Sanctions ).

 

“ 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 12 ( Fees ).

 

“ Final Maturity Date ” means the Original Maturity Date or, in respect of Consenting Lenders (and Replacement Lenders, if applicable), if the extension option under Clause 6 ( Extension Option ) has been exercised, the First Extension Maturity Date or the Second Extension Maturity Date, as applicable.

 

“ 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.

 

“ First Anniversary ” means the date falling 12 Months after the Effective Date.

 

“ First Extension Request ” has the meaning given to it in Clause 6 ( Extension Option ).

 

 

“ First Extension Maturity Date ” means the date falling 12 Months after the Original Maturity Date.

 

“ 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.

 

“ 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 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.

 

 

“ Impaired Agent ” means the Agent at any time when:

 

(a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

(b)

the Agent otherwise rescinds or repudiates a Finance Document;

 

(c)

(if the Agent is also a Lender) it is a Defaulting Lender; or

 

(d)

an Insolvency Event has occurred and is continuing with respect to the Agent;

 

unless, in the case of paragraph (a) above:

 

(i)

its failure to pay is caused by:

 

(A)

administrative or technical error; or

 

(B)

a Disruption Event; and

 

payment is made within 5 Business Days of its due date; or

 

(ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

 

“ Indebtedness ” means, as to any Person, without duplication:

 

(a)

all obligations of such Person for borrowed money;

 

(b)

all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

 

(c)

all obligations of such Person to pay the deferred purchase price of property, except trade accounts payable arising in the ordinary course of business;

 

(d)

all obligations of such Person as lessee which are capitalised in accordance with GAAP, save that, to the extent a change in GAAP occurs (whether or not such change is, as of the date hereof, already scheduled to occur after the date hereof) which results in operating leases being treated or classified as capital leases or which reclassifies capital leases using different terminology (e.g., as “ finance leases ”).

 

(e)

all obligations of such Person created or arising under any conditional sales or other title retention agreement with respect to any property acquired by such Person (including, without limitation, obligations under any such agreement which provides that the rights and remedies of the seller or lender thereunder in the event of default are limited to repossession or sale of such property);

 

(f)

all obligations of such Person with respect to letters of credit and similar instruments including, without limitation, obligations under reimbursement agreements;

 

 

(g)

all indebtedness of others secured by (or for which the holder of such indebtedness has an 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; and

 

(h)

all Guarantee Obligations of such Person (other than guarantees of obligations of direct or indirect Subsidiaries of such Person).

 

“ Insolvency Event ” in relation to a Finance Party means that the Finance Party:

 

(a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

(c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

(d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

(e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

(i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

(ii)

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

(f)

has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;

 

(g)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(h)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (in each case other than by way of an Undisclosed Administration);

 

 

(i)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

(j)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or

 

(k)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

 

“ Interest Period ” means, in relation to a Loan, each period determined in accordance with Clause 10 ( Interest   Periods ) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.3 ( Default interest ).

 

“ Interpolated Screen Rate ” means, in relation to LIBOR for any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

(a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

(b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

 

each as of the Specified Time on the Quotation Day for dollars.

 

“ Investor Certificateholder ” has the meaning as defined in Annex X to the Pooling Agreement.

 

“ Lender ” means:

 

(a)

any Original Lender; and

 

(b)

any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 2.2 ( Accordion Increase ) or Clause 25 ( Changes to the Lenders ),

 

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

 

“ LIBOR ” means, in relation to any Loan:

 

(a)

the applicable Screen Rate;

 

(b)

(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or

 

 

(c)

if:

 

(i)

no Screen Rate is available for dollars; or

 

(ii)

no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,

 

the Reference Bank Rate,

 

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Quotation Day for dollars and for a period equal in length to the Interest Period of that Loan and if any such rate is less than zero, LIBOR shall be deemed to be zero.

 

“ 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.

 

“ LMA ” means the Loan Market Association.

 

“ 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 that loan.

 

“ Majority Lenders ” means:

 

(a)

if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate more than 66⅔% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔% of the Total Commitments immediately prior to the reduction); or

 

(b)

at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate more than 66⅔% of all the Loans then outstanding.

 

“ Master Trust Approved Currencies ” means dollars, euro, sterling and yen.

 

“ Master Trust Guaranty ” means the Eighth Amended and Restated Guaranty made as of 20 November 2014 by the Parent to Coöperatieve Rabobank U.A. (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank International”, New York Branch), as letter of credit agent, JP Morgan Chase Bank, N.A. as administrative agent, and The Bank of New York Mellon, 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:

 

(a)

a material adverse effect on the business, property, operations, condition (financial or otherwise) or prospects of the Borrower or of the Parent and its consolidated Subsidiaries taken as a whole;

 

(b)

a material impairment of the collectability of the Purchased Loans taken as a whole; or

 

 

(c)

a material impairment of the validity or enforceability of this Agreement or any of the other Finance Documents or of the Transaction Documents or the rights or remedies of the Agent or the Lenders against the Borrower or the Parent hereunder or under the other Finance Documents.

 

“ Month ” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

(a)

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

(b)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

(c)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

 

The above rules will only apply to the last Month of any period.

 

“ Monthly Settlement Statement ” has the meaning defined in Annex X to the Pooling Agreement.

 

“ Moody’s ” means Moody’s Investors Service, Inc. or any successor of Moody’s credit ratings service.

 

“ Non-Public Lender ” means:

 

(a)

an entity that provides repayable funds to the Borrower for a minimum amount of EUR 100,000 (or its equivalent), and to the extent the amount of EUR 100,000 (or its equivalent) does not result in such entity not qualifying as forming part of the ‘‘public’’ (as referred to in Article 4, subsection 1 under (1) of the CRR), such other amount or such criterion as a result of which such entity shall qualify as not forming part of the public; and

 

(b)

following the publication of any interpretation of public by the relevant authority/ies, such amount or such criterion as a result of which such entity shall qualify as not forming part of the public.

 

“ Obligors ” means the Parent and the Borrower.

 

“ OFAC ” has the meaning given to it in the definition of Sanctions.

 

“ Original Maturity Date ” means the date falling 36 Months after the Effective Date.

 

“ Parent ” means Bunge Limited, a company formed under the laws of Bermuda having its registered office at Clarendon House, 2 Church Street, Hamilton HM 11 Bermuda.

 

 

“ Parent Guarantee ” means the guarantee given by the Parent in the form set out in the Exhibit to this Agreement, as the same may be amended, supplemented or otherwise modified in accordance with the terms of the Finance Documents.

 

“ Pari Passu Indebtedness ” means:

 

(a)

Indebtedness for borrowed money, the proceeds of which are used to either increase the Series 2003-1 Invested Amount, refinance Indebtedness originally used for such purpose, and/or pay expenses incurred in connection with this Agreement or any such other Indebtedness; and

 

(b)

indebtedness incurred in connection with Hedge Agreements entered into in connection with the Loans hereunder and any Pari Passu Indebtedness described in paragraph (a) above,

 

in each case which ranks not greater than pari passu (in priority of payment) with the Loans.

 

“ Participating Member State ” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

“ Party ” means a party to this Agreement.

 

“ PATRIOT Act ” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107-56, signed into law 26 October 2001.

 

“ Payment Period ” means a period commencing on a date on which the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Finance Documents have become due and payable (whether at the stated maturity, by acceleration or otherwise) and ending on the date the Loans (with accrued interest thereon) and all such other amounts are paid in full by the Borrower or the Parent.

 

“ Permitted Indebtedness ” means:

 

(a)

Indebtedness of the Borrower pursuant to this Agreement; and

 

(b)

Pari Passu Indebtedness.

 

“ Person ” means an individual, partnership, corporation, firm, limited liability company, company, business trust, association, consortium, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature (whether or not having separate legal personality).

 

“ PMP ” means a “professional market party” ( professionele marktpartij ) within the meaning of the Dutch FSA.

 

“ 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 Mellon, 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 Moody’s.

 

“ Rating ” means the rating of the Rating Agencies applicable to senior long-term, unsecured debt as announced by the Rating Agencies.

 

“ Reference Bank Quotation ” means any quotation supplied to the Agent by a Reference Bank.

 

“ Reference Bank Rate ” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks as either:

 

(a)

if:

 

(i)

the Reference Bank is a contributor to the Screen Rate; and

 

(ii)

it consists of a single figure,

 

the rate (applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator; or

 

(b)

in any other case, the rate at which the relevant Reference Bank could fund itself in dollars for the relevant period with reference to the unsecured wholesale funding market.

 

“ Reference Banks ” means the principal London offices of BNP Paribas and ING Bank N.V. and the principal Amsterdam office of ABN AMRO Bank N.V. and such other banks as may be appointed by the Agent in consultation with the Borrower.

 

“ Related Fund ” in relation to a fund (the “ first fund ”), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

 

 

“ Repeating Representations ” means each of the representations set out in Clauses 18.1 ( Existence: Compliance with Law ) to 18.6 ( No default ), Clause 18.11 ( No misleading information ), Clause 18.12 ( No Subsidiaries ), Clause 18.14 ( Pari passu ranking ), Clause 18.16 ( Limited Purpose ), Clause 18.17 ( No Change ), Clause 18.19 ( Tax Status ) and Clause 18.20 ( Sanctions ).

 

“ Replacement Lender ” has the meaning given to it in Clause 6 ( Extension Option ).

 

“ Representative ” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

“ 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.

 

“ Restricted Person ” means a Person that is:

 

(a)

listed on, or owned 50% or more by or controlled by a Person listed on any applicable Sanctions List; or

 

(b)

located in, a resident of, organised under the laws of, or owned or controlled by, or acting on behalf of, a Person located in or organised under the laws of a country or territory that is or whose government is the target of any applicable country-wide Sanctions.

 

For the purposes of this definition, “control” means the possession of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  The term “controlled” has the meaning correlative thereto.

 

“ Rollover Loan ” means one or more Loans:

 

(a)

made or to be made on the same day that a maturing Loan is due to be repaid;

 

(b)

the aggregate amount of which is equal to or less than the maturing Loan; and

 

(c)

made or to be made for the purpose of refinancing a maturing Loan.

 

 

“ Sale Agreement ” means the Second Amended and Restated Sale Agreement, dated as of September 6, 2002, among Bunge Funding Inc., as buyer, Bunge Finance Limited, a Bermuda company, as a seller, and Bunge Finance North America, Inc. a Delaware corporation, as a seller, as the same may be amended, supplemented or otherwise modified in accordance with the terms hereof from time to time.

 

“ Sanctions ” means any applicable economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (i) the United States government; (ii) the United Nations; (iii) the European Union; (iv) the United Kingdom; (v) the relevant authorities of Switzerland; or (vi) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“ OFAC ”), the United States Department of State, and Her Majesty’s Treasury (together “ Sanctions Authorities ”).

 

“ Sanctions Authorities ” has the meaning given to it in the definition of Sanctions.

 

“ Sanctions List ” means the “Specially Designated Nationals and Blocked Persons” list issued by OFAC, the Consolidated List of Financial Sanctions Targets issued by Her Majesty’s Treasury, or any similar applicable list issued or maintained or made public by any of the Sanctions Authorities.

 

“ S&P ” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business or any successor of S&P’s credit ratings service.

 

“ Screen Rate ” means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for dollars for the relevant period displayed on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters.  If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.

 

“ Second Anniversary ” means the date falling 24 Months after the Effective Date.

 

“ Second Extension Request ” has the meaning given to it in Clause 6 ( Extension Option ).

 

“ Second Extension Maturity Date ” means either:

 

(a)

the date falling 12 Months after the First Extension Maturity Date; or

 

(b)

if the First Extension Request has not been granted or, with respect to Lenders who have refused the First Extension Request, the date falling 24 Months after the Original Maturity Date,

 

as selected by the Borrower in the Second Extension Request.

 

“ Security ” means, for the purposes of Clause 25.6 ( Security over Lenders’ rights ), a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

 

 

“ Series 2003-1 Accrued Interest ” shall have the meaning assigned in subsection 3A.03 of Series 2003-1 Supplement.

 

“ Series 2003-1 Adjusted Invested Amount ” shall mean, as of any date of determination, (i) the Series 2003-1 Invested Amount (as defined in Annex X to the Pooling Agreement) on such date, minus (ii) the amount on deposit in the Series 2003-1 Collection Subaccount on such date that is available to reduce the Series 2003-1 Invested Amount up to a maximum of the Series 2003-1 Invested Amount.

 

“ Series 2003-1 Allocated Loan Amount ” shall mean, on any date of determination, the lower of (i) the Series 2003-1 Target Loan Amount on such day and (ii) the product of (x) the Aggregate Loan Amount (as defined in Annex X to the Pooling Agreement) on such day times (y) the percentage equivalent of a fraction the numerator of which is the Series 2003-1 Target Loan Amount on such day and the denominator of which is the Aggregate Target Loan Amount (as defined in Annex X to the Pooling Agreement) on such day.

 

“ Series 2003-1 Collection Subaccount ” shall have the meaning assigned in subsection 3A.02(a) of the Series 2003-1 Supplement.

 

“ Series 2003-1 Early Amortization 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 Invested Amount ” has the meaning given to this term in Annex X to the Pooling Agreement.

 

“ Series 2003-1 Supplement ” means the Bunge Master Trust Third Amended and Restated Series 2003-1 Supplement dated as of 13 May 2016 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 Mellon, 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 Second 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 Mellon, 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 Mellon, as trustee, as the same may be amended, supplemented or otherwise modified in accordance with the terms hereof from time to time.

 

 

“ Solvent ” means with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any such time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“ Specified Time ” means a time determined in accordance with Schedule 6 ( 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 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 $1,750,000,000 at the date of this Agreement.

 

“ Transfer Certificate ” means a certificate substantially in the form set out in Schedule 5 ( 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.

 

 

“ Undisclosed Administration ” means in relation to a Lender the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.

 

“ 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.

 

“ US Treasury Regulations ” means the United States Treasury regulations promulgated under the Code, as such Treasury regulations may be amended from time to time.

 

“ 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 ).

 

“ VAT ” means:

 

(a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(b)

any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

 

“ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

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 to, or of, its rights and/or obligations under the Finance Documents;

 

 

(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)

The determination of the extent to which a rate is “ for a period equal in length ” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

(c)

Section, Clause and Schedule headings are for ease of reference only.

 

(d)

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.

 

(e)

A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied or waived.

 

(f)

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 trustee in bankruptcy includes a curator ;

 

(iv)

an administrator includes a bewindvoerder ;

 

(v)

a(n) (administrative) receiver does not include a curator or bewindvoerder ;

 

(vi)

an attachment includes a beslag ;

 

(vii)

“financial assistance” includes any act contemplated by Section 2:98c of the Dutch Civil Code;

 

(viii)

“gross negligence” includes grove schuld ;

 

(ix)

“negligence” includes schuld ;

 

(x)

“wilful misconduct” includes opzet ; and

 

(xi)

any “step” or “procedure” taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Article 36(2) of the Tax Collection Act of the Netherlands (Invorderingswet 1990).

 

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) Act 1999 (the “ Third Parties Act ”) to enforce or to enjoy the benefit of any term of this Agreement.

 

(b)

Subject to Clause 36.3 ( Other Exceptions ) but otherwise not withstanding 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.

 

 

 

 

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	Accordion Increase

 

(a)            Subject to this Clause 2.2, the Borrower may request an increase in th e Total Commitments (an “ Accordion Increase ”) in an aggregate amount which when aggregated with the amount of all other Accordion Increases made under this Clause 2.2 does not exceed $250,000,000 (the “ Additional Commitments ”).

 

(b)

The Borrower may invite:

 

(i)

any one or more Lenders to provide Additional Commitments in such amount as may be agreed by the Borrower and such Lender (each such Lender that is invited to and wishes to provide such Additional Commitments, an “ Accordion Lender ”); and/or

 

(ii)

any one or more bank or financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making loans, securities or other financial assets and which is acceptable to the Agent (acting reasonably) (each a “ New Accordion Lender ”) to provide Additional Commitments in such amount as may be agreed by the Borrower and such New Accordion Lender,

 

provided that, the increase in the Total Commitments following the proposed Accordion Increase does not exceed the limit set out in paragraph (a) above.

 

(c)

For the avoidance of doubt no Lender shall (unless otherwise agreed by that Lender) be obliged to provide any Additional Commitment.

 

(d)

The Borrower shall, promptly following agreement with the Accordion Lenders and New Accordion Lenders and in any event not later than 45 Business Days (or such other period as the Agent and the Borrower may agree) prior to the proposed date of the Accordion Increase, deliver to the Agent a notice (an “ Accordion Request ”) signed by a Responsible Officer of the Borrower which shall specify:

 

(i)

the aggregate amount of the proposed Additional Commitments;

 

(ii)

the identity of, and the amount of the proposed Additional Commitment of, each Accordion Lender and each New Accordion Lender that wishes to provide an Additional Commitment;

 

 

(iii)

the proposed Accordion Increase Date which shall be a Business Day within the Availability Period and shall be the last date of the Interest Period of each Loan then outstanding; and

 

(iv)

the fees relating to the proposed Additional Commitments.

 

(e)

Following receipt by the Agent of an Accordion Request, it shall promptly forward a copy to each Lender for information purposes.

 

(f)

An Accordion Increase will only become effective if, on the date of the Accordion Request and the proposed Accordion Increase Date, no Default is continuing or would result from the proposed Accordion Increase.

 

(g)

(i)

Subject to the conditions set out in this Clause 2.2, an Accordion Increase will become effective in accordance with paragraph (h) below when the Agent executes an otherwise duly completed Accordion Increase Certificate delivered to it by the Borrower and the Additional Commitment Lenders.  The Agent shall, subject to sub-paragraph (ii) below, as soon as reasonably practicable after receipt by it of a duly completed Accordion Increase 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 Accordion Increase Certificate.

 

(ii)

The Agent shall only be obliged to execute an Accordion Increase Certificate delivered to it by the Borrower and the Additional Commitment Lenders 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 each New Accordion Lender.

 

(h)

On the Accordion Increase Date:

 

(i)

the amount of the Additional Commitment of each Additional Commitment Lender will be as set out in the relevant column opposite its name in the Accordion Increase Certificate;

 

(ii)

each of the Obligors and each Additional Commitment Lender shall assume obligations towards one another and acquire rights against one another as they would have acquired and assumed had each Additional Commitment Lender been an Original Lender with the rights and obligations acquired and assumed by it as a result of it providing its Additional Commitment;

 

(iii)

the Agent, the Arrangers, the New Accordion Lenders and the other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Accordion Lenders been Original Lenders with the rights and obligations acquired and assumed by them as a result of their participation in the Additional Commitments; and

 

 

(iv)

each New Accordion Lender shall become a Party as a “Lender”.

 

(i)

The Borrower shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.

 

(j)

Any amounts payable to the Lenders by any Obligor on or before the Accordion Increase Date (including, without limitation, all interest, fees and commission payable up to (but excluding) the Accordion Increase Date) in respect of any period ending on or prior to the Accordion Increase Date shall be for the account of the Lenders party to this Agreement prior to the Accordion Increase Date and no Additional Commitment Lender shall have any interest in, or any rights in respect of, any such amount (save in respect of their Commitments up to (but excluding) the Accordion Increase Date).

 

(k)

Each New Accordion Lender, by executing the relevant Accordion Increase Certificate confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Accordion Increase Certificate becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Original Lenders.

 

2.3	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 is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below.  The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

(c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

 

3.

PURPOSE

 

3.1

Purpose

 

The Facility shall be available solely to enable the Borrower to (i) make advances to the Bunge 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 and Pari Passu Indebtedness.  The Borrower undertakes that all amounts advanced to the Bunge Master Trust will be used by the Bunge 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

 

(a)

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.

 

(b)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification.  The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

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 would be outstanding.

 

 

 

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;

 

(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 10 ( 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, and subject to Clause 7 ( Repayment ), 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, the amount of its participation in that Loan and the amount of the payment to be made available in accordance with Clause 30.1 ( Payments to the Agent ), in each case by the Specified Time.

 

5.5	Cancellation of Commitment

 

The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.

 

 

 

6.	EXTENSION OPTION

 

6.1	Extension Request

 

(a)

The Borrower shall be entitled to request that the Original Maturity Date be extended for an additional period of 12 Months by giving notice (the “ First Extension Request ”) to the Agent not more than 60 days nor less than 30 days before the First Anniversary.

 

(b)

The Borrower shall be entitled to request that the Original Maturity Date and/or the First Extension Maturity Date be extended as set out below by giving notice (the “ Second Extension Request ”) to the Agent not more than 60 nor less than 30 days before the Second Anniversary:

 

(i)

with respect to Lenders who have agreed to the First Extension Request, an extension for a further period of 12 Months; and/or

 

(ii)

if no First Extension Request has been made, or with respect to Lenders who refused the First Extension Request an extension for a period of 24 Months,

 

as selected by the Borrower in the notice to the Agent.

 

The First Extension Request and Second Extension Request are together referred to as “ Extension Requests ” and each as an “ Extension Request ”.

 

6.2	Notification of Extension Request

 

The Agent shall promptly notify the Lenders of any Extension Request as soon as practicable after receipt of it.

 

6.3	Lenders’ Response to Extension Request

 

(a)

Each Lender may, in its sole discretion, agree to any Extension Request (each such Lender a “ Consenting Lender ”) by providing notice to the Agent on or before the date falling 15 days before:

 

(i)

in respect of a First Extension Request, the First Anniversary; or

 

(ii)

in respect of a Second Extension Request, the Second Anniversary.

 

(b)

The Commitment of each Consenting Lender will be extended for the period applicable to it and referred to in such Extension Request.

 

(c)

If any Lender:

 

(i)

fails to reply to an Extension Request within the time period set out in paragraph (a); or

 

(ii)

declines an Extension Request by the date falling 15 days before the First Anniversary or the Second Anniversary, as applicable,

 

 

(in each case a “ Declining Lender ”) its Commitment will not be extended.

 

6.4	Form of Extension Request

 

Each Extension Request shall be made in writing and be irrevocable.

 

6.5	Replacement of Declining Lenders

 

(a)

The Agent shall notify the Borrower and the Lenders no later than 15 days prior to the First Anniversary or the Second Anniversary, as applicable of the details of which Lenders are Consenting Lenders and which Lenders are Declining Lenders.

 

(b)

If the Agent notifies the Borrower of one or more Declining Lenders, the Borrower may, on 15 days’ notice to the Agent replace a Declining Lender by requiring such Declining Lender to (and such Declining Lender shall) transfer pursuant to Clause 25 ( Changes to the Lenders ) all (and not part only) of its rights and obligations under the Facility to a Consenting Lender or another bank, financial institution, trust fund or other entity (to the extent not a Consenting Lender, a “ Replacement Lender ”) selected by the Borrower which is acceptable to the Agent (acting reasonably) which confirms its willingness to assume and does assume all the obligations of such Declining Lender for a purchase price in cash payable at the time of transfer at least equal to the principal amount of such Declining Lender’s participation in outstanding Loans under the Facility and all accrued interest, Break Costs and other amounts then due to the Declining Lender at such time.

 

(c)

The replacement of a Declining Lender pursuant to this Clause 6.5 shall be subject to the following conditions:

 

(i)

none of the Agent, any Arranger or any Lender shall have any obligation to find a Replacement Lender;

 

(ii)

such replacement must take place by no later than the Original Maturity Date or the First Extension Maturity Date (as applicable);

 

(iii)

in no event shall the relevant Declining Lender be required to pay or surrender to the relevant Replacement Lender any of the fees or other amounts received by such Declining Lender pursuant to the Finance Documents prior to the date of such replacement; and

 

(iv)

any Transfer Certificate executed by the relevant Declining Lender and the relevant Replacement Lender shal l include a confirmation from the Replacement Lender that it has agreed to the extension of the Original Maturity Date or the First Extension Maturity Date, as applicable, requested by the Borrower in accordance with this Clause 6 ( Extension Option ).

 

6.6	Reduction of Facility

 

If, with respect to any Extension Request, there are any Declining Lenders and such Declining Lenders cannot be replaced pursuant to Clause 6.5 ( Replacement of Declining Lenders ), then the Facility will be automatically reduced by each such Declining Lender’s Commitment on the then current Final Maturity Date applicable to such Declining Lender once such repayment has been made.

 

 

6.7	Extension of the Facility

 

The then current Final Maturity Date of the Facility will be extended to the First Extension Maturity Date or, as the case may be, the Second Extension Maturity Date in an aggregate amount equal to the sum of the aggregate Commitments of the Consenting Lenders (together with the aggregate Commitments of the Replacement Lenders, if applicable). For the avoidance of doubt, the aggregate Commitments in respect of which the Final Maturity Date has been extended under this clause shall not exceed the Total Commitments.

 

6.8	Limitations

 

No more than two Extension Requests may be given.  For the avoidance of doubt, the Final Maturity Date cannot extend beyond the date falling 60 Months after the Effective Date.

 

 

 

 

REPAYMENT, PREPAYMENT AND CANCELLATION

 

7.

REPAYMENT

 

(a)

The Borrower shall repay each Loan on the last day of its Interest Period.

 

(b)

Without prejudice to the Borrower’s obligation under paragraph (a) above, if:

 

(i)

one or more Loans are to be made to the Borrower:

 

(A)

on the same day that a maturing Loan is due to be repaid by the Borrower; and

 

(B)

in whole or in part for the purpose of refinancing the maturing Loan; and

 

(ii)

the proportion borne by each Lender’s participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans,

 

the aggregate amount of the new Loans shall, unless the Borrower notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Loan so that:

 

(A)

if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:

 

(1)

the Borrower will only be required to make a payment under Clause 30.1 ( Payments to the Agent ) in an amount equal to that excess; and

 

(2)

each Lender’s participation (if any) in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Loan and that Lender will not be required to make a payment under Clause 30.1 ( Payments to the Agent ) in respect of its participation in the new Loans; and

 

(B)

if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:

 

(1)

the Borrower will not be required to make a payment under Clause 30.1 ( Payments to the Agent ); and

 

(2)

each Lender will be required to make a payment under Clause 30.1 ( Payments to the Agent ) in respect of its participation in the new Loans only to the extent that its participation (if any) in the new Loans exceeds that Lender’s participation (if any) in the maturing Loan and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan.

 

 

8.	PREPAYMENT AND CANCELLATION

 

8.1	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 or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

 

(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)

to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 8.5 ( Right of replacement or repayment and cancellation in relation to a single Lender ), 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) and that Lender’s corresponding Commitment shall be cancelled in the amount of the participations repaid.

 

8.2	Change of control

 

If after the date of this Agreement any Change of Control shall occur:

 

(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.

 

8.3	Voluntary cancellation

 

The Borrower may, if it gives the Agent not less than two 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 8.3 shall reduce the Commitments of the Lenders rateably.  Any amounts cancelled under this Clause 8.3 may not be reinstated.

 

 

8.4	Voluntary Prepayment of Loans

 

The Borrower may, if it gives the Agent not less than two 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).

 

8.5	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 13.2 ( Tax gross-up );

 

(ii)

any Lender claims indemnification from the Borrower under Clause 13.3 ( Tax indemnity ) or Clause 14.1 ( 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.

 

(d)

If

 

(i)

any of the circumstances set out in paragraph (a) above apply to a Lender; or

 

(ii)

the Borrower becomes obliged to pay any amount in accordance with Clause 8.1 ( Illegality ) to any Lender,

 

the Borrower may, on 10 Business Days’ prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 25 ( Changes to the Lenders ) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Borrower which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 25 ( Changes to the Lenders ) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.

 

 

(e)

The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

 

(i)

the Borrower shall have no right to replace the Agent;

 

(ii)

neither the Agent nor any Lender shall have any obligation to find a replacement Lender;

 

(iii)

in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

 

(iv)

the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

 

(f)

A Lender shall perform the checks described in sub-paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.

 

8.6	Restrictions

 

(a)

Any notice of cancellation or prepayment given by any Party under this Clause 8 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 or repaid 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 8 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.

 

 

8.7	Application of prepayments

 

Any prepayment of a Loan pursuant to Clause 8.2 ( Change of control ) or Clause 8.4 ( Voluntary prepayment of Loans ) shall be applied pro rata to each Lender’s participation in that Loan.

 

 

 

 

 

 

 

 

 

COSTS OF UTILISATION

 

9.

INTEREST

 

9.1	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; and

 

(b)

LIBOR.

 

9.2	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).

 

9.3	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 9.3 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.

 

9.4	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.

 

 

 

10.	INTEREST PERIODS

 

10.1	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 10, 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)

Each Interest Period for a Loan shall start on the Utilisation Date of such Loan.

 

(e)

A Loan has one Interest Period only.

 

10.2	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).

 

11.	CHANGES TO THE CALCULATION OF INTEREST

 

11.1	Absence of quotations

 

Subject to Clause 11.2 ( 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.

 

11.2	Market disruption

 

(a)

If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then subject to Clause 11.3 ( 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; and

 

(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.

 

(b)

In this Agreement “ Market Disruption Event ” means:

 

(i)

at or about noon on the Quotation Day for the relevant Interest Period LIBOR is to be determined by reference to the Reference Banks and none or only one of the Reference Banks supplies a rate to the Agent to determine LIBOR for the relevant Interest Period; or

 

 

(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.

 

11.3	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.

 

11.4	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.

 

12.

FEES

 

12.1	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 31 December 2017 and thereafter 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.

 

(c)

No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

 

12.2	Utilisation fee

 

(a)

The Borrower shall pay to the Agent (for the account of each Lender) a fee computed at the applicable rate on each Lender’s participation in the Loans for the Availability Period. The “applicable rate” for any day on which there is a Loan outstanding and the amount of a Lender’s participation in the Loans:

 

 

(i)

is less than 33 per cent. of the amount of its Commitment on that day is 0.10 per cent. per annum;

 

(ii)

is equal to or exceeds 33 per cent. but is less than 66 per cent. of the amount of its Commitment on that day is 0.20 per cent. per annum; and

 

(iii)

is equal to or exceeds 66 per cent. of the amount of its Commitment on that day is 0.40 per cent. per annum.

 

(b)

The utilisation fee shall begin to accrue on the Effective Date and is payable on 31 December 2017 and thereafter 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 at the time the cancellation of the relevant Lender’s Commitment is effective or, if later, the last day on which any part of its participation in the Loans becomes repayable.

 

12.3	Participation fee

 

The Borrower shall pay to the Agent (for the account of each Lender) a participation fee in the amount and at the time agreed in a Fee Letter.

 

12.4	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.

 

 

 

 

 

 

ADDITIONAL PAYMENT OBLIGATIONS

 

13.	TAX GROSS UP AND INDEMNITIES

 

13.1	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, other than a FATCA Deduction.

 

“ Tax Payment ” means either the increase in a payment made by the Borrower to a Finance Party under Clause 13.2 ( Tax gross-up ) or a payment under Clause 13.3 ( Tax indemnity ).

 

(b)

Unless a contrary indication appears, in this Clause 13 a reference to “determines” or “determined” means a determination made in the reasonable discretion of the person making the determination.

 

13.2	Tax gross-up

 

(a)

The Borrower shall make all payments to be made by it under any Finance Document 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)

A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction if and to the extent the obligation to make a Tax Deduction (i) was required by law on the date of this Agreement or (ii) results from a Finance Party’s failure to comply with paragraph (g) below.

 

(e)

If the Borrower is required by law or regulation 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 or regulation.

 

 

(f)

Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

(g)

The Borrower hereby confirms to each Lender that it has made an election to be disregarded as an entity separate from its parent, Bunge N.A. Holdings, Inc., for U.S. federal income tax purposes.  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) or as otherwise reasonably requested by the Borrower a duly completed copy of Internal Revenue Service Form W-9, W-8BEN, or Form W-ECI, as applicable, or any successor forms, or any other forms as may be necessary to establish a reduction in, or complete exemption from, US or other 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, US or other withholding tax on such payments.

 

13.3	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; or

 

(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,

 

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 13.2 ( Tax gross-up );

 

(B)

would have been compensated for by an increased payment under Clause 13.2 ( Tax gross-up ) but was not so compensated because one of the exclusions in paragraph (d) of Clause 13.2 ( Tax gross up ) applied;

 

(C)

relates to a FATCA Deduction required to be made by a Party;

 

(D)

arises under the law of any jurisdiction in which the Finance Party is subject to non-resident taxation in respect of amounts received in or from that jurisdiction; or

 

(E)

is related to any Tax assessed on the Finance Party resulting from an assignment or transfer by the Finance Party of any of its rights and obligations under the Finance Documents or a change by the Finance Party of its Facility Office to the extent provided in paragraph (f) of Clause 25.2 ( Conditions of assignment or transfer ).

 

(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 13.3, notify the Agent.

 

13.4	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, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; 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.

 

13.5	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.

 

 

13.6	Value added tax

 

(a)

All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party shall pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to that Party).

 

(b)

If VAT is or becomes chargeable on any supply made by any Finance Party (the “ Supplier ”) to any other Finance Party (the “ Recipient ”) under a Finance Document, and any Party other than the Recipient (the “ Subject Party ”) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

(i)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Subject Party shall also pay to the Supplier (at the same time as paying such amount) an amount of the VAT.  The Recipient must (where this paragraph (i) applies) promptly pay to the Subject Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

(ii)

(where the Recipient is the person required to account to the relevant tax authority for VAT) the Subject Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT,

 

(c)

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

(d)

Any reference in this Clause 13.6 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994).

 

 

(e)

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

 

13.7	FATCA Information

 

(a)

Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

(i)

confirm to that other Party whether it is:

 

(A)

a FATCA Exempt Party; or

 

(B)

not a FATCA Exempt Party; and

 

(ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable “passthru payment percentage” or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA.

 

(b)

If a Party confirms to another Party pursuant to sub-paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

(c)

Paragraph (a) above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of:

 

(i)

any law or regulation;

 

(ii)

any fiduciary duty; or

 

(iii)

any duty of confidentiality.

 

(d)

If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:

 

(i)

if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party, then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and

 

(ii)

if that Party failed to confirm its applicable “passthru payment percentage”, then such Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable “passthru payment percentage” is 100%,

 

 

 

until (in each case) such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

13.8	FATCA Deduction

 

(a)

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(b)

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Borrower, the Agent and the other Finance Parties.

 

14.	INCREASED COSTS

 

14.1	Increased costs

 

(a)

Subject to Clause 14.2 ( Increased cost claims ) and Clause 14.3 ( Exceptions ) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement, or, if later, the date on which the relevant Finance Party became a Party to this Agreement ( provided, however, that for the purposes of this Agreement and the other Finance Documents and to the extent permitted by applicable laws, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith are deemed to have gone into effect and adopted after the date of this Agreement) or (iii) the implementation or application of, or compliance with, Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV (including, for the avoidance of doubt, the Dodd-Frank Wall Street Reform and Consumer Protection Act).

 

(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.

 

 

14.2	Increased cost claims

 

(a)

A Finance Party intending to make a claim pursuant to Clause 14.1 ( 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 14 ( 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 the calculation of such amount).

 

14.3	Exceptions

 

Clause 14.1 ( Increased costs ) does not apply to the extent any Increased Cost is:

 

(a)

attributable to a Tax Deduction required by law to be made by an Obligor;

 

(b)

attributable to a FATCA Deduction required to be made by a Party;

 

(c)

compensated for by Clause 13.3 ( Tax Indemnity ) (or would have been compensated for under Clause 13.3 ( Tax Indemnity ) but was not so compensated because the exclusions in paragraph (b) of Clause 13.3 ( Tax Indemnity ) applied); or

 

(d)

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;

 

In this Clause 14.3 ( Exceptions ), a reference to “ Tax Deduction ” has the same meaning given to such term in Clause 13.1 ( Definitions ).

 

15.	OTHER INDEMNITIES

 

15.1	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.

 

15.2	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 29 ( 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);

 

(d)

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or

 

(e)	any claim by the Agent against any of the Lenders pursuant to Clause 27.11 ( Lenders’ indemnity to the Agent ).

 

15.3	Indemnity to the Agent

 

The Borrower shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

 

(a)

investigating any event which it reasonably believes is a Default; or

 

(b)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised,

 

except to the extent such cost, loss or liability arises from the wilful misconduct or gross negligence of the Agent.

 

16.	MITIGATION BY THE LENDERS

 

16.1	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 8.1 ( Illegality ), Clause 13 ( Tax gross-up and indemnities ) or Clause 14 ( Increased costs ) 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.

 

16.2	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 16.1 ( Mitigation ).

 

(b)

A Finance Party is not obliged to take any steps under Clause 16.1 ( Mitigation ) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

17.	COSTS AND EXPENSES

 

17.1	Transaction expenses

 

The Borrower shall promptly on demand pay the Agent and the Arrangers the amount of all costs and out-of-pocket 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.

 

17.2	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 out-of-pocket expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.

 

17.3	Enforcement costs

 

The Borrower shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and out-of-pocket expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

 

18.	REPRESENTATIONS

 

The Borrower makes the representations and warranties set out in this Clause 18 to each Finance Party on the date of this Agreement.

 

 

18.1	Existence; Compliance with Law

 

The Borrower (a) is a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) duly organised and validly existing 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.

 

18.2	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.

 

18.3	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.

 

18.4	Governing law and enforcement

 

Subject to any qualifications as to legal matters contained in the legal opinions referred to in Schedule 3 ( Conditions Precedent ):

 

(a)

The choice of English law as the governing law of this Agreement and New York law as the governing law of the Parent Guarantee will be recognised and enforced in its jurisdiction of incorporation; and

 

 

 

(b)

Any judgement obtained in England in relation to this Agreement and in New York in relation to the Parent Guarantee will be recognised and enforced in its jurisdiction of incorporation.

 

18.5	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.

 

18.6	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.

 

18.7	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 bank account by the Borrower pursuant to the general terms and conditions of the bank with which such account is held).

 

18.8

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.

 

18.9	Deduction of Tax

 

The Borrower is not required under Netherlands law to make any Tax Deduction (as defined in Clause 13.1 ( Definitions )) from any payment it may make under any Finance Document.

 

18.10

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.

 

 

18.11

No misleading information

 

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.

 

18.12

No Subsidiaries

 

It has no Subsidiaries.

 

18.13

Use of Proceeds

 

The proceeds of the Loans shall be used solely to (i) make advances under the Bunge Master Trust pursuant to the Series 2003-1 VFC Certificate, (ii) repay Permitted Indebtedness outstanding from time to time, or (iii) pay expenses incurred in connection with this Agreement and any Pari Passu Indebtedness.

 

18.14

Pari passu ranking

 

Its payment obligations under the Finance Documents rank at all times at least pari passu with the claims of all its other unsecured and unsubordinated creditors (other than any such claims that are preferred by mandatory provisions of law).

 

18.15

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.

 

18.16

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.

 

18.17

No Change

 

Since 31 December 2016, in respect of the Parent and its consolidated Subsidiaries, and since the date of this Agreement in respect of the Borrower, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect.

 

 

18.18

Dutch FSA

 

The Borrower shall ensure that, in the event that it falls within the definition of “bank” in the Dutch FSA, it will only raise repayable funds ( opvorderbare gelden ) from lenders, provided that such lender is a Non-Public Lender.

 

18.19

Tax Status

 

No notice under Section 36 of the Tax Collection Act ( Invorderingswet 1990 ) has been given by any member of the Group.

 

18.20

Sanctions

 

(a)

The Borrower is, to the extent applicable, in compliance with Sanctions and with the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”) and any other applicable anti-corruption law, in all material respects.

 

(b)

The Borrower is not, and no director or senior officer of the Borrower is, any of the following:

 

(i)

a Restricted Person;

 

(ii)

a Person owned 50% or more or controlled by, or acting on behalf of, any Restricted Person; or

 

(iii)

a Person that commits, threatens or conspires to commit or support “terrorism” as defined in the Executive Order.

 

18.21

Repetition

 

The Repeating Representations are deemed to be made by the Borrower (by reference to the facts and circumstances then existing) on the date of each Utilisation Request and the first day of each Interest Period.

 

19.	POSITIVE 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 shall:

 

19.1	Information Miscellaneous

 

Provide the Agent all information (including any public information) that the Agent may reasonably request in writing concerning the financial condition, business or operations 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.

 

 

19.2	Bunge Master Trust information

 

Furnish or cause to be furnished to the Agent in sufficient number for each Lender, copies of all

 

(a)

Daily Reports prepared by the Servicer pursuant to Clause 19.14 ( Submission of Daily Report ) below;

 

(b)

notices of Series 2003-1 Early Amortization Events; and

 

(c)

Monthly Settlement Statements;

 

provided that the documents set forth in paragraphs (a) and (c) above of this Clause 19.2 shall be provided only upon request of the Agent or the Majority Lenders.

 

19.3

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 where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves to the extent required by GAAP with respect thereto have been provided on the books of the Borrower.

 

19.4	Compliance

 

Comply with all Requirements of Law except (other than as regards Sanctions, to which Clause 20.15 ( Use of proceeds ) applies) 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.

 

19.5	Audited financial statements

 

Beginning with the fiscal year commencing in 2016, 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.

 

19.6	Unaudited financial statements

 

Beginning with the fiscal year commencing in 2016, 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.

 

 

19.7	Financial statements certificate

 

Furnish, or cause to be furnished, to the Agent together with the financial statements required pursuant to Clause 19.5 ( Audited financial statements ) and Clause 19.6 ( Unaudited financial statements ) 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 19.10 ( Proceeds ) and (c) all information and calculations necessary for determining compliance by the Borrower with Clause 20.1 ( Series 2003-1 Allocated Loan Amount ) as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be.

 

19.8	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.

 

19.9	Notification of default

 

Notify the Agent of any:

 

(a)

Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence, and

 

(b)

development or event which has had, or which the Borrower in its good faith judgement believes will have, a Material Adverse Effect.

 

19.10

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 and any Pari Passu Indebtedness; or

 

(b)

Use the proceeds from 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 this Agreement and any such Pari Passu Indebtedness.

 

 

 

19.11

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.

 

19.12

Notification of Applicable Rating

 

Promptly notify the Agent of any change in an Applicable Rating.

 

19.13

Direction of Trustee

 

At the direction of the Agent or the Majority Lenders, exercise its right under Section 8.14 of the Pooling Agreement to direct the trustee under the Bunge Master Trust when the Lenders are affected by the conduct of any proceeding or the exercise of any right conferred on the trustee under the Bunge Master Trust.

 

19.14

Submission of Daily Report

 

On each Utilisation Date on which a Loan is made, cause the Servicer to submit a Daily Report to the Borrower and to the trustee under the Bunge Master Trust no later than 12:00 (Noon), New York City time, setting forth the information required by Section 4.01 of the Servicing Agreement.

 

19.15

Sanctions Investigations

 

Promptly upon a Responsible Officer of the Borrower becoming aware that the Borrower has received formal notice that it has become subject of any action or investigation under any Sanctions, the Borrower shall, to the extent permitted by law, supply to the Agent details of any such action or investigation.

 

19.16

Anti-Money Laundering Information

 

Upon the reasonable request of the Agent, the Borrower shall provide to the Agent the information so requested, to the extent such information is available to the Borrower, in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case in accordance with the Borrower’s past practices.

 

20.	NEGATIVE COVENANTS

 

The covenants in this Clause 20 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:

 

 

20.1	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;

 

(b)

and deducting therefrom, 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-paragraphs (a)(i) and (a)(ii) of this Clause 20.1 (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-paragraphs (a)(i) and (a)(ii) of this Clause 20.1.

 

20.2	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 acquired (except for any Lien arising by virtue of the maintenance of a credit balance on any bank account by the Borrower pursuant to the general terms and conditions of the bank with which such account is held).

 

20.3	Indebtedness

 

Create, incur, assume or suffer to exist any Indebtedness, whether current or funded, or any other liability except Permitted Indebtedness.

 

20.4	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.

 

 

20.5

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.

 

20.6	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 22.1 ( No Bankruptcy Petition against the Borrower; Liability of the Borrower ).

 

20.7	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 personality), unless such expenditure is approved in writing by the Agent.

 

20.8	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.

 

20.9	Constitutional Documents

 

Amend its constitutional documents in any material respect without the prior written consent of the Agent.

 

20.10

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 Clause 20.10.  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 Bunge Master Trust;

 

(b)

reduce in any manner the amount of, or delay the timing of, distributions which are required to be made on the Series 2003-1 VFC Certificate; or

 

(c)

change the definition of or the manner of calculating the interest of the Borrower in the assets of the Bunge 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 paragraphs (a), (b) or (c) above shall require the written consent of the Agent acting at the direction of the Majority Lenders.

 

20.11

Powers of Attorney

 

Grant any powers of attorney to any Person for any purposes except where permitted by the Finance Documents.

 

20.12

Increase in Series 2003-1 Invested Amount

 

Increase the Series 2003-1 Invested Amount during any Payment Period.

 

20.13

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.

 

20.14

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.

 

20.15

Use of proceeds

 

Knowingly permit or authorise any other person to, directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of the Facility or other transactions contemplated by this Agreement (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of the FCPA or any other applicable anti-corruption law, (ii) to fund any trade, business or other activities involving or for the benefit of any Restricted Person except as otherwise permitted or authorized by Sanctions or Sanctions Authorities, including, without limitation, as authorized by OFAC general or specific license, or (iii) in any other manner that would result in any Obligor or the Finance Parties being in breach of any Sanctions or becoming a Restricted Person.

 

21.	ACKNOWLEDGEMENT

 

Each Party acknowledges and agrees that the Borrower does not:

 

(a)

represent under Clause 18.20 ( Sanctions ); nor

 

(b)

undertake under Clause 20.15 ( Use of proceeds ),

 

in favour of KfW IPEX-Bank GmbH (“ KfW ”), DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main (“ DZ ”), or HSH Nordbank AG (“ HSH ”) and each of KfW, DZ and HSH shall not have any rights thereunder. Furthermore, each of KfW, DZ and HSH shall be deemed not to be a party to the provisions of Clause 18.20 ( Sanctions ) or Clause 20.15 ( Use of proceeds ).

 

 

Each Party further acknowledges that the representations and warranties included in Clause 18.20 ( Sanctions ) given by, and the undertaking included in Clause 20.15 ( Use of proceeds ) of, the Borrower to any Lender resident in Germany ( Inländer ) within the meaning of Section 2 Paragraph 15 of the German Foreign Trade and Payments Regulation (“ AWV ”) are made only to the extent that such Lender would be permitted to make or receive such representations and warranties or undertakings, as applicable, pursuant to Section 7 of the AWV, or pursuant to Council Regulation (EC) 2271/96 of 22 November 1996.

 

22.	COVENANT OF AGENT AND LENDERS AND PATRIOT ACT NOTICE

 

22.1	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 22.1 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 22.1 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.

 

22.2	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.

 

23.	EVENTS OF DEFAULT

 

Each of the events set out in Clauses 23.1 (Non-payment) to 23.12 (Tax Status) (inclusive) is an Event of Default.

 

 

23.1	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

 

23.2	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

 

23.3	Other Obligations

 

(a)

The Borrower shall default in the observance or performance of any agreement contained in Clause 20 ( Negative Covenants ) 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(i) 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 Clause 23.1 (Non-payment ) or paragraph (a) above), 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

 

23.4	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) 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 paragraphs (a), (b) or (c) of this Clause 23.4 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 paragraphs (a), (b) or (c) of this Clause 23.4 shall have occurred and be continuing with respect to Indebtedness, the outstanding principal amount of which together exceeds in the aggregate $100,000,000; provided further that the proviso specified in this sub-paragraph (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)

this paragraph (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

 

23.5	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) 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 paragraphs (a), (b) or (c) of this Clause 23.5 shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in paragraphs (a), (b) or (c) of this Clause 23.5 shall have occurred and be continuing with respect to Indebtedness, the outstanding principal amount of which together exceeds in the aggregate $100,000,000; and

 

 

(ii)

this paragraph (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

 

23.6	Insolvency and 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 in bankruptcy, 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 paragraph (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, distrait 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 paragraphs (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.

 

23.7	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 $100,000,000 or more, and all such final judgements or orders shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or

 

 

23.8	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

 

23.9	Unlawfulness

 

It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents; or

 

23.10

Repudiation

 

An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document; or

 

23.11

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

 

23.12

Tax Status

 

A notice under Section 36 Dutch Tax Collection Act ( Invorderingswet 1990 ) has been given by any member of the Group.

 

23.13

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 23.6 ( Insolvency and Insolvency Proceedings ) shall occur in respect of the Group or Bunge Funding, Inc., then without notice or any other act by the Agent or any other person, the Loans, interest thereon and all other amounts owed under the Finance Documents shall become immediately due and payable without presentment, demand, protest or notice of any kind, all of which are expressly waived.

 

 

24.	USE OF WEBSITES

 

24.1

(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.

 

24.2	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.

 

24.3	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 (a) or paragraph (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.

 

24.4	“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

 

(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 sub-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 sub-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 sub-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.

 

 

 

 

 

 

CHANGES TO PARTIES

 

25.	CHANGES TO THE LENDERS

 

25.1	Assignments and transfers by the Lenders

 

Subject to this Clause 25, 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 ”).

 

25.2	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 is made at a time when 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)

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.

 

(d)

A transfer will only be effective if the procedure set out in Clause 25.5 ( Procedure for transfer ) is complied with.

 

(e)

If:

 

(i)

a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

 

(ii)

as a result of circumstances existing at the date the assignment, transfer or change occurs, the Borrower would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 13 ( Tax gross-up and indemnities ) or Clause 14 ( Increased costs ),

 

 

then, notwithstanding anything to the contrary contained in any Finance Document, the Borrower shall not be required to increase any amounts payable to a New Lender (in the case of an assignment or a transfer) or Lender (in the case of a change in Facility Office) pursuant to those Clauses except to the extent the Lender making such assignment or transfer or change in Facility Office was entitled, at the time of such assignment or transfer or change in Facility Office, to receive additional amounts from the Borrower with respect to such Clauses.

 

(f)

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 is made at a time when an Event of Default has occurred and is continuing) be in a minimum aggregate amount of $10,000,000.

 

(g)

Without prejudice to paragraph (f) above, the amount transferred to a New Lender in relation to a Loan or a Commitment shall be at least the dollar equivalent of EUR100,000 or, if it is less, the New Lender shall confirm in writing to the Borrower that it is a PMP.

 

(h)

The Borrower hereby designates the Agent to serve as the Borrower’s agent, solely for the purpose of this paragraph (h), to maintain a register (the “ Register ”) on which the Agent will record each Lender’s Commitment, the Loans made by each Lender and each repayment in respect of the principal amount of the Loans of each Lender and annexed to which the Agent shall retain a copy of each Transfer Certificate delivered to the Agent pursuant to this Clause 25 ( Changes to the Lenders ).  Failure to make any recordation, or any error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans.  The entries in the Register shall be conclusive ( provided, however, that any failure to make any recordation or any error in such recordation shall be corrected by the Agent upon notice or discovery thereof), and the Borrower, the Agent and the Lenders shall treat each Person in whose name a Loan is registered as the Lender thereof for all purposes of this Agreement, notwithstanding notice or any provision herein to the contrary.  A Lender’s Commitment and the Loans made pursuant thereto may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer in the Register.  Any assignment or transfer of a Lender’s Commitment or the Loans made pursuant thereto shall be registered in the Register only upon delivery to the Agent of a Transfer Certificate duly executed by the assignor thereof.  No assignment or transfer of a Lender’s Commitment or the Loans made pursuant thereto shall be effective unless such assignment or transfer shall have been recorded in the Register by the Agent, acting promptly, as provided in this paragraph (h).  The Agent shall supply a copy of the Register to the Borrower upon request.  It is intended that the procedures described in this paragraph (h) will cause the Loans to be treated as being in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code of 1986, as amended.

 

 

 

25.3	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 $3,000.

 

25.4	Limitation of responsibility of Existing Lenders

 

(a)

Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

 

(i)

the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

 

(ii)

the financial condition of any Obligor;

 

(iii)

the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

 

(iv)

the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

 

and any representations or warranties implied by law are excluded.

 

(b)

Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

 

(i)

has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of any member of the Group and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

 

(ii)

will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 

(c)

Nothing in any Finance Document obliges an Existing Lender to:

 

(i)

accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 25; 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.

 

25.5	Procedure for transfer

 

(a)

Subject to the conditions set out in Clause 25.2 ( 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 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”.

 

25.6	Security over Lenders’ rights

 

In addition to the other rights provided to Lenders under this Clause 25 ( Changes to Lenders ), each Lender may without consulting with or obtaining consent from the Borrower, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:

 

(a)

any charge, assignment or other Security to secure obligations to a federal reserve or central bank or government authority, department or agency including HM Treasury or equivalent or any other authorised government body; and

 

 

 

(b)

in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,

 

except that no such charge, assignment or Security shall:

 

(i)

release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or

 

(ii)

require any payments to be made by the Borrower other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

 

26.	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.

 

 

 

 

 

THE FINANCE PARTIES

 

27.	ROLE OF THE AGENT AND THE ARRANGERS AND THE REFERENCE BANKS

 

27.1	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.

 

27.2	Instructions

 

(a)

The Agent shall:

 

(i)

unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:

 

(A)

all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and

 

(B)

in all other cases, the Majority Lenders; and

 

(ii)

not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.

 

(b)

The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion.  The Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.

 

(c)

Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.

 

(d)

The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.

 

 

 

 

(e)

In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.

 

(f)

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.

 

27.3	Duties of the Agent

 

(a)

The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

 

(b)

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.

 

(c)

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.

 

(d)

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.

 

(e)

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.

 

(f)

The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).

 

27.4	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.

 

27.5	No fiduciary duties

 

(a)

Nothing in any Finance Document 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.