CONFIDENTIAL TREATMENT FOR PORTIONS OF THIS EXHIBIT HAS BEEN REQUESTED
FROM THE SECURITIES AND EXCHANGE COMMISSION
Exhibit 10.3
EXECUTION COPY
Dated June 1, 2011
(1)
BUNGE SECURITIZATION B.V.
,
as Seller
(2)
BUNGE FINANCE B.V.
, as Master Servicer
(3)
The persons from time to time party hereto as Conduit Purchasers
(4)
The persons from time to time party hereto as Committed Purchasers
(5)
The persons from time to time party hereto as Purchaser Agents
(6)
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
, as Administrative Agent and Purchaser Agent
(7)
BUNGE LIMITED
, as Performance Undertaking Provider
RECEIVABLES TRANSFER AGREEMENT
CONTENTS
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Page
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Clause
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1.
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Definitions
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2
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2.
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Amounts and Terms of the Purchases
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48
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3.
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Conditions of Purchases
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72
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4.
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Representations and Warranties
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74
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5.
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Covenants
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78
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6.
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Administration and Collection of Receivables
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86
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7.
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Termination Events
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88
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8.
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The Administrative Agent
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91
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9.
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The Purchaser Agents
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98
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10.
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Indemnities by the Seller
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101
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11.
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Miscellaneous
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103
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Schedules
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1
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Purchaser Groups
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2
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Address and Notice Information
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3
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Credit and Collection Policies
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4
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Condition Precedent Documents
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5
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Facility Accounts and Account Banks
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6
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Agreed Upon Procedures
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7
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Mandatory Cost Rate
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8
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[Reserved]
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9
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Excluded Obligors
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10
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Acceptance by the Transaction Parties
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EXHIBIT A
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Form of Assignment and Acceptance
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EXHIBIT B
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Form of Investment Request
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EXHIBIT C
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Form of Joinder Agreement
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EXHIBIT D
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Form of Italian Acknowledgment Deed
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THIS AGREEMENT
(this
“Agreement”
) is dated June 1, 2011 and made by and among:
(1)
BUNGE SECURITIZATION B.V.
, a private limited liability company organized under the laws of the Netherlands, as Seller;
(2)
BUNGE FINANCE B.V.
, a private limited liability company organized under the laws of the Netherlands, as Master Servicer;
(3)
the Conduit Purchasers from time to time parties hereto;
(4)
the Committed Purchasers from time to time parties hereto;
(5)
the Purchaser Agents from time to time parties hereto;
(6)
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
, as Administrative Agent and a Purchaser Agent; and
(7)
BUNGE LIMITED
, a company formed under the laws of Bermuda, as Performance Undertaking Provider.
BACKGROUND:
(A)
The Seller and the other Seller Parties shall from time to time acquire Receivables, together with all Related Security and Collections in respect thereof, from the Originators pursuant to Originator Sale Agreements.
(B)
In the case of Receivables, Related Security and Collections acquired by Seller Parties other than the Seller, the Seller will acquire such Receivables, Related Security and Collections from such other Seller Parties pursuant to Intermediate Transfer Agreements.
(C)
The Seller shall sell all of its right, title and interest in such Receivables, Related Security and Collections to the Administrative Agent (for the benefit of the Purchasers) pursuant to this Agreement, and the Seller shall charge or otherwise pledge as security all of its right, title and interest in the Seller Operating Accounts and any other Collateral to the Administrative Agent (for the benefit of the Secured Parties) pursuant to the Security Documents.
(D)
To fund its acquisitions under the Originator Sale Agreements and Intermediate Transfer Agreements, as the case may be, the Seller may from time to time request Incremental Investments from the Purchasers on the terms and conditions of this Agreement.
(E)
The Conduit Purchasers may, in their sole discretion, make Incremental Investments in any Approved Currency so requested from time to time, and if a Conduit Purchaser in any Purchaser Group elects not to make any such Incremental Investment, the Committed Purchasers in such Purchaser Group have agreed that they shall make such Incremental Investment, in each case subject to the terms and conditions of this Agreement.
1
IT IS AGREED that:
1.
DEFINITIONS
1.1
Certain defined terms
As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Account Security Agreements”
means, as the context requires, all or any one of the Canadian Account Security Agreements, the German Account Security Agreements, the Hungarian Account Security Agreements, the Italian Account Security Agreements, the Portuguese Account Security Agreements, the Spanish Account Security Agreements and the U.S. Account Security Agreements.
“Accountants’ Letter”
has the meaning specified in
Section 5.2(b)
(
Inspections; annual agreed upon procedures audit
).
“Accrual Reserve”
means, on any Monthly Reporting Date and continuing until (but not including) the next Monthly Reporting Date, the Dollar Equivalent of the aggregate amount accrued by the Originators in accordance with their usual accounting practice, as of the last day of the immediately preceding Calculation Period, in respect of Contractual Dilutions.
“Adjusted Eurocurrency Rate”
means, for any Tranche Period, an interest rate per annum obtained by dividing (a) the Eurocurrency Rate for such Tranche Period by (b) a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such Tranche Period.
“Administrative Agent”
means Rabobank International, in its capacity as Administrative Agent for the Purchaser Agents, the Conduit Purchasers and the Committed Purchasers, and any successor thereto in such capacity appointed pursuant to
Section 8
(
The Administrative Agent
).
“Administrative Agent Fee Letter”
has the meaning specified in
Section 2.4(b)
(
Yield and Fees
).
“Advanced Purchase Price”
has the meaning specified in the applicable Originator Sale Agreement or Intermediate Transfer Agreement.
“Adverse Claim”
means a lien, security interest, trust, mortgage, hypothecation, charge, floating charge or any promise or irrevocable mandate or other encumbrance (including any lien by attachment, retention of title and any form of extended retention of title), or other right or claim under the laws of any jurisdiction in, of or on any asset or property of a Person in favor of another Person (including any UCC financing statement or any similar instrument of any jurisdiction filed against such Person, its assets or properties).
“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
2
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
.
“Agents”
means, collectively, the Administrative Agent and the Purchaser Agents.
“Agreed Annual Income”
means, with respect to the Seller, $1,000 per annum or such other amount as may be agreed between the Seller, the Performance Undertaking Provider and the Administrative Agent.
“Aggregate Commitment”
means, at any time, the sum of the Commitments then in effect. The initial Aggregate Commitment as of the Closing Date shall be equal to $700 million.
“Aggregate DPP”
means the aggregate of all Deferred Purchase Price amounts payable by the Conduit Purchasers or the Committed Purchasers (as applicable) to the Seller hereunder with respect to the Portfolio Receivables.
“Aggregate Invested Amount”
means the aggregate outstanding Invested Amounts (in U.S. Dollars or the Dollar Equivalent) in respect of the Investments (and all Tranches thereof) hereunder.
“Agreement”
has the meaning specified in the preamble hereto.
“Alternate Rate”
means, for any Tranche during any Tranche Period, a rate per annum equal to the sum of the Applicable Margin plus the Adjusted Eurocurrency Rate for such Tranche Period;
provided
that in case of:
(a)
any Tranche Period with respect to which the Adjusted Eurocurrency Rate is not available pursuant to
Section 2.12
(
Illegality
) or
2.13
(
Inability to determine Eurocurrency Rate
); or
(b)
any Tranche Period as to which the Administrative Agent does not receive notice, pursuant to
Sections 2.2(a)(i)
(
Purchase procedures
), prior to the end of the day (London time) on the fourth Business Day preceding the first day of such Tranche Period;
the Alternate Rate for such Tranche Period shall be a rate per annum equal to the sum of (i) the Base Rate in effect from time to time during such Tranche Period plus (ii) 2.0% per annum.
“Applicable Margin”
means (a) 0.85% per annum with respect to a Tranche funded with Commercial Paper and (b) in all other cases, 1.30% per annum.
“Applicable Moody’s Rating”
means the senior long-term unsecured debt rating that Moody’s provides of (i) the Performance Undertaking Provider or (ii) if Moody’s does not provide such a rating of the Performance Undertaking Provider, then the Bunge Master Trust or (iii) if Moody’s does not provide such a rating of the Performance Undertaking Provider or the Bunge Master Trust, then Bunge Limited Finance Corp.
3
“Applicable S&P Rating”
means the senior long-term unsecured debt rating that S&P provides of (i) the Performance Undertaking Provider or (ii) if S&P does not provide such a rating of the Performance Undertaking Provider, then the Bunge Master Trust or (iii) if S&P does not provide such a rating of the Performance Undertaking Provider or the Bunge Master Trust, then Bunge Limited Finance Corp.
“Approved Contract Jurisdiction”
means, with respect to any Originator, each of the following jurisdictions which apply to such Originator: (i) with respect to any Originator, the jurisdiction of such Originator, (ii) with respect to any Originator other than the U.S. Originator or the Canadian Originator, England and Wales and (iii) with respect to the Canadian Originator, the U.S.
“Approved Credit Enhancement”
means, with respect to a Receivable, a letter of credit or other form of credit insurance approved by each Purchaser Agent following receipt of any applicable opinions or other evidence of valid assignment to the Seller.
“Approved Currency”
means (a) U.S. Dollars, (b) Euros, (c) Canadian Dollars, (d) Hungarian forint, or (e) any other major convertible currency that is approved in writing by each Purchaser Agent;
provided
that, if the Administrative Agent (as a result of notice received from any Purchaser Agent or otherwise) notifies the Seller and the Master Servicer that adequate Currency Hedge Agreements cannot be reasonably maintained for any Approved Currency as a result of a disruption in the applicable currency markets, the Seller shall make no further purchases of Receivables denominated in such Approved Currency unless and until the applicable Conduit Purchaser or Committed Purchaser has entered into adequate Currency Hedge Agreements for such Approved Currency.
“Approved Obligor Jurisdiction”
means any State of the U.S., Canada, Austria, Slovakia, the United Kingdom, Greece, Lithuania, The Netherlands, France, Slovenia, Bulgaria, Switzerland, Czech Republic, Luxembourg, Belgium, Cyprus, Poland, Hungary, Germany, Spain, Portugal, Italy, Denmark, Finland, Ireland and Sweden;
provided
that additional Approved Obligor Jurisdictions may be added following the Closing Date with the prior written consent of the Administrative Agent and each Purchaser Agent.
“Approved Originator Jurisdiction”
means Canada, Germany, Hungary, Italy, Portugal, Spain and any State of the U.S. and any other jurisdiction approved in writing by the Administrative Agent and each Purchaser Agent;
provided
that a jurisdiction shall not be an Approved Originator Jurisdiction unless all authorizations and approvals by all Official Bodies required in connection with this Agreement and the other Transaction Documents have been obtained and all opinions, certificates, amendments to the Transaction Documents and other documentation reasonably requested by the Administrative Agent or any Purchaser Agent have been delivered (such documentation anticipated to be substantially similar to the documentation required for Originators on the Closing Date, with any necessary country—specific adjustments).
“Assignment and Acceptance”
means an assignment and acceptance agreement entered into by a Purchaser, an Eligible Assignee and the Purchaser Agent, pursuant to which such Eligible Assignee may become a party to this Agreement in substantially the form of
Exhibit A
(
Form of Assignment and Acceptance
).
4
“Average Sales”
means, as of any Monthly Reporting Date, (a) the aggregate amount of sales (in U.S. Dollars or the Dollar Equivalent) giving rise to Receivables during the twelve consecutive Calculation Periods immediately preceding such Monthly Reporting Date, divided by (b) 12.
“Base Rate”
means, with respect to any Tranche:
(a)
in the case of a Tranche or other amount denominated in U.S. Dollars, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of: (i) the Prime Rate in effect on such day, (ii) the Federal Funds Rate in effect on such day plus ½ of 1% and (iii) the Adjusted Eurocurrency Rate for a one month period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%. For the purposes of clause (iii) above, the Administrative Agent shall assume that the reference Tranche or other amount would be denominated in U.S. Dollars. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the one month Adjusted Eurocurrency Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate, the Federal Funds Rate or the one month Adjusted Eurocurrency Rate, respectively; and
(b)
in the case of a Tranche or other amount denominated in a currency other than U.S. Dollars, a fluctuating interest rate per annum as shall be in effect from time to time, which rate shall at all times be equal to the greater of (i) the Adjusted Eurocurrency Rate for the applicable currency for a one month period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1% and (ii) (A) the rate at which overnight deposits (in an amount approximately equal to and in the currency of such non-U.S. Dollar Tranche or other non-U.S. Dollar amount in respect of which the Base Rate is to be determined) are offered by the principal London office of the Administrative Agent in immediately available funds to leading banks in the London interbank market or (B) the “policy rate,” “base rate,” “reference rate” or other customarily referenced rate for loans to corporate borrowers for such currency on the relevant page of the applicable central bank or other commercially reasonable source determined by the Administrative Agent.
“Base Rate Tranche”
has the meaning specified in
Section 2.12
(
Illegality
).
“Board of Directors”
means, with respect to any Person, the board of directors of such Person or any duly authorized committee thereof.
“Bunge Limited”
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.
“
Bunge Master Trust
” means the master trust created by the Pooling Agreement.
“Business Day”
means any day (other than a Saturday or Sunday) (a) on which banks generally are open for business in London, Amsterdam, Paris and New York and (b) which is a TARGET Day, and, when used with respect to the determination of any Yield Rate for any currency, any day which is also a day for trading by and between
5
banks in deposits in such currency in the London, European or other applicable interbank market and, when used with respect to the determination of the CP Rate, any day which is also a day when The Depository Trust Company, Euroclear Bank S.A./N.V. and Clearstream Banking, société anonyme, Luxembourg, as applicable, are open for trading.
“Calculation Period”
means each period from and including the first day of a calendar month to and including the last day of such calendar month;
provided
, that the initial Calculation Period shall commence on the first day of the calendar month in which the Closing Date occurred and end on and include the last day of the calendar month in which the Closing Date occurred.
“Canadian Account Security Agreement”
has the meaning specified in the Canadian
RPA.
“Canadian Collection Account”
means any account set forth on
Schedule 5
(
Facility Accounts and Account Banks
) hereto under the heading “
Canadian Collection Accounts
”, as such Schedule may be amended from time to time in accordance herewith.
“Canadian Collection Account Bank”
means any bank or other financial institution set forth on
Schedule 5
(
Facility Accounts and Account Banks
) under the heading “Canadian Collection Account Banks”, as such Schedule may be amended from time to time in accordance herewith.
“Canadian Originator”
has the meaning assigned to the term “Seller” in the Canadian RPA.
“Canadian RPA”
means the Receivables Purchase Agreement, dated the Closing Date, among the Canadian Originators, the Canadian Seller Agent and the Seller.
“Canadian Seller Agent”
has the meaning assigned to the term “Seller Agent” in the Canadian RPA.
“
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).
“Cash Purchase Price”
means the cash amounts paid by the Purchasers to the Seller in connection with Investments hereunder and not repaid to the Purchasers.
“Change in Law”
means (a) the adoption of any Law after the date of this Agreement, (b) any change in Law or in the interpretation, application or implementation thereof after the date of this Agreement, or (c) compliance by any Indemnified Party, by any lending office of such Indemnified Party or by such Indemnified Party’s holding company, if any, with any request, guideline or directive (whether or not having the force of law) of any Official Body made or issued after the date of this Agreement.
6
“Change of Control”
means the occurrence of any of the following:
(a)
Bunge Limited 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 Bunge Limited 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 Bunge Limited and its Subsidiaries, taken as a whole, to any Person that is a not a Subsidiary of Bunge Limited; or
(c)
the first day on which a majority of the members of Bunge Limited’s Board of Directors are not Continuing Directors.
“Closing Date”
means June 1, 2011.
“Collateral”
means all assets, property, rights, interests, claims or benefits in respect of which an Adverse Claim has been created hereunder or under or pursuant to the Security Documents, including, without limitation, all rights of the Seller under all Transaction Documents, all Related Security and all Account Security Agreements.
“Collection Accounts”
means, as the context requires, all or any one of the Canadian Collection Accounts, German Collection Accounts, Hungarian Collection Accounts, Italian Collection Accounts, Portuguese Collection Accounts, Spanish Collection Accounts or U.S. Collection Accounts.
“Collections”
means, collectively (without duplication) (a) all cash collections (including, if applicable, any value added taxes) and other cash proceeds of the Portfolio Receivables, including all Finance Charges, cash proceeds of Related Security with respect to any such Receivable, any Deemed Collections of such Receivables and any payments made by any Originator or the Master Servicer with respect to such Receivables (including any payments made with respect to a Diluted Receivable or other Deemed Collections pursuant to the terms of the relevant Originator Sale Agreement or the Servicing Agreement and amounts paid pursuant to
Section 2.2(b
) of any applicable Originator Sale Agreement or Intermediate Transfer Agreement in respect of excess Advanced Purchase Price Payments); (b) if applicable, all recoveries of value added taxes from any relevant Official Body relating to any Portfolio Receivable that is a Defaulted Receivable; and (c) all other cash collections and other cash proceeds of the Collateral.
“Commercial Paper”
means commercial paper, money market notes and other promissory notes and senior indebtedness issued by a Conduit Purchaser or any conduit refinancing directly or indirectly a Committed Purchaser (including any such commercial paper, notes or other indebtedness issued by a related financing conduit if such Conduit Purchaser or such conduit funds itself through another issuing entity).
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“Commitment”
of any Committed Purchaser means the U.S. Dollar amount set forth on
Schedule 1
(
Purchaser Groups
) opposite such Committed Purchaser’s name or, in the case of a Committed Purchaser that became a party to this Agreement pursuant to an Assignment and Acceptance, the amount set forth therein as such Committed Purchaser’s Commitment, in each case as such amount may be reduced or increased by any Assignment and Acceptance entered into by such Committed Purchaser in accordance with the terms of this Agreement.
“Committed Purchasers”
means, collectively, the Persons identified as “Committed Purchasers” on
Schedule 1
(
Purchaser Groups
).
“Concentration Amount”
means, at any time, the sum (without duplication) of (a) the aggregate amount for all Obligors by which the Outstanding Balance of all of the Portfolio Receivables that qualify as Eligible Receivables of each Obligor (treating each Obligor and its Affiliates as if they were a single Obligor) exceeds the Concentration Limit for such Obligor at such time; (b) for each Approved Obligor Jurisdiction, the aggregate amount by which the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables of Obligors located in such Approved Obligor Jurisdiction exceeds the Country Concentration Limit for such Approved Obligor Jurisdiction at such time; (c) the aggregate amount by which the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables of Obligors located in an Approved Obligor Jurisdiction whose sovereign debt rating is non-investment grade exceeds 25% of the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables at such time; (d) the aggregate amount by which the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables and have original payment terms greater than 30 days but less than or equal to 60 days exceeds 20% of the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables at such time; (e) the aggregate amount by which the Outstanding Balance of all the Portfolio Receivables the Obligor of which is the U.S. federal government or any political subdivision or agency thereof exceeds the product of (x) the then-applicable Concentration Factor for the lowest rating category for Obligors multiplied by (y) the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables at such time; (f) the aggregate amount by which the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables of Obligors located in any Approved Obligor Jurisdiction which is not also an Approved Contract Jurisdiction exceeds 5% of the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables at such time; (g) the amount equal to the product of (i) the positive difference (if any) between (A) the percentage of the aggregate amount of Collections received on Portfolio Receivables during the preceding Calculation Period which were received or deposited in the Collection Accounts maintained at Sparkasse and (B) 5% times (ii) the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables at such time; and (h) the amount equal to the product of (i) the positive difference (if any) between (A) the percentage of the aggregate amount of Collections received on Portfolio Receivables during the preceding Calculation Period which were received or deposited in the Collection Accounts maintained at Banco Comercial Portuques and (B) 3% times (ii) the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables at such time of the Outstanding Balance of all the Portfolio Receivables that qualify as Eligible Receivables at such time.
8
“Concentration Factor”
means, with respect to any Obligor (treating each Obligor and its Affiliates as if they were a single Obligor) as of any date of determination, the percentage, if applicable, specified (or the percentage resulting from the calculation specified) under the heading “Concentration Factor” in the grid immediately below.
|
Obligor’s Short-Term Debt
Rating (S&P/Moody’s)
|
|
Obligor’s Long-Term Debt
Rating (S&P/Moody’s)
|
|
Concentration Factor
|
|
A-1+/P-1
|
|
AA/Aa2 or better
|
|
Loss Reserve Floor
|
|
A-1/P-1
|
|
AA- to A+/Aa3 to A1
|
|
Loss Reserve Floor
|
|
A-2/P-2 or better (but less than A-1/P-1)
|
|
A to BBB+/A2 to Baa1
|
|
Loss Reserve Floor/2
|
|
A-3/P-3 or better (but less than A-2/P-2)
|
|
BBB to BBB-/Baa2 to Baa3
|
|
Loss Reserve Floor/3
|
|
Lower than A-3/P-3 or no Debt Rating
|
|
Lower than BBB-/Baa3 or no Debt Rating
|
|
Loss Reserve Floor/5
|
The Concentration Factor shall be based upon an Obligor’s short-term Debt Ratings unless no such short-term Debt Rating is available from either S&P or Moody’s, in which case such Obligor’s long-term Debt Ratings will be used.
In the event the ratings of any Obligor from S&P and Moody’s fall within different ratings levels, the Concentration Factor for such Obligor shall be determined using the lower rating.
To the extent that the Receivables owing by any Obligor are subject to Approved Credit Enhancement and the aggregate Outstanding Balance of Portfolio Receivables owing by such Obligor would otherwise exceed the then applicable Concentration Factor for such Obligor based on the applicable Debt Ratings of such Obligor, the rating of such credit enhancer will be used for the purpose of determining the applicable Concentration Factor.
“Concentration Limit”
means, with respect to any Obligor at any time, the product of the Concentration Factor, if any, for such Obligor (treating each Obligor and its Affiliates as if they were a single Obligor), multiplied by the Total Eligible Receivables Balance at such time.
“Conduit Assignee”
means, with respect to any assignment by a Conduit Purchaser, any Person that (a) finances itself, directly or indirectly, through commercial paper, money market notes, promissory notes or other senior indebtedness, (b) is managed or administered by the Purchaser Agent or the Program Manager with respect to such assigning Conduit Purchaser or any Affiliate of the Purchaser Agent or such Program Manager or an Eligible Assignee or any Affiliate thereof, (c) is designated by the Purchaser Agent or the Program Manager to accept an assignment from such Conduit Purchaser of such Conduit Purchaser’s rights and obligations pursuant to
Section 11.3(b)
(
Assignments by Conduit Purchasers
), and (d) has a short-term Debt Rating of at least A-1 by S&P and P-1 by Moody’s.
9
“Conduit Purchasers”
means, collectively, the Persons identified as “Conduit Purchasers” on
Schedule 1
(
Purchaser Groups
).
“Continuing Directors”
means, as of any date of determination, any member of the Board of Directors of Bunge Limited who (a) was a member of such Board of Directors on the Closing Date; or (b) 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 Bunge Limited’s proxy statement in which such member was named as a nominee for election as a director).
“Contract”
means, in relation to any Receivable, any and all contracts, instruments, agreements, invoices, notes or other writings (including an agreement evidenced by a purchase order or similar document) pursuant to or under which an Obligor becomes or is obligated to make payments on or in respect of such Receivable.
“Contractual Dilution”
means, with respect to any Receivable, any reduction, cancellation or adjustment in the Unpaid Balance of such Receivable as a result of volume rebates, volume discounts or early payment discounts, in each case, arising pursuant to the Contract related to such Receivable.
“Country Concentration Factor”
means, with respect to any Approved Obligor Jurisdiction as of any date of determination, the percentage, if applicable, specified (or the percentage resulting from the calculation specified) under the heading “Country Concentration Factor” in the grid immediately below.
|
Approved Obligor Jurisdiction’s
Applicable Currency Rating
(S&P/Moody’s)
|
|
Country Concentration Factor
|
|
AA/Aa2 or better
|
|
No Country Concentration Factor
|
|
AA- to A+/Aa3 to A1
|
|
Loss Reserve Floor
|
|
A to BBB+/A2 to Baa1
|
|
Loss Reserve Floor/2
|
|
BBB to BBB-/Baa2 to Baa3
|
|
Loss Reserve Floor/3
|
|
Lower than BBB-/Baa3 or no Sovereign Currency Rating
|
|
Loss Reserve Floor/5
|
The applicable ratings used shall be the foreign currency government bond rating for Moody’s and the sovereign foreign currency long-term rating for S&P.
In the event the foreign currency ratings of any Approved Obligor Jurisdiction from S&P and Moody’s fall within different ratings levels, the Country Concentration Factor for such Approved Obligor Jurisdiction shall be determined as follows: (1) in the case of a one notch difference, the lower rating will be used, (2) in the case of a two notch difference, the average or middle rating category will be used (e.g., “BBB+” where the ratings were “A-” and “BBB”), (3) in the case of further odd number of notch differences, the lower of the two middle ratings will be used, and (4)
10
in the case of further even number of differences, the average or middle rating category will be used.
“Country Concentration Limit”
means, with respect to any Approved Obligor Jurisdiction at any time, the product of the Country Concentration Factor, if any, for such Approved Obligor Jurisdiction, multiplied by the Total Eligible Receivables Balance at such time.
“CP Rate”
means, for any Tranche Period for any Tranche, and for any Conduit Purchaser or any Committed Purchaser refinanced, directly or indirectly through the issuance of Commercial Paper, to the extent such Conduit Purchaser funds such Tranche by issuing Commercial Paper or such Committed Purchaser refinances such Tranche directly or indirectly through an issuance of Commercial Paper, the per annum rate equivalent to the weighted average cost (as determined by the related Purchaser Agent or related Program Manager, and which shall include (without duplication) the fees and commissions of placement agents and dealers, incremental carrying costs incurred with respect to Commercial Paper maturing on dates other than those on which corresponding funds are received by such Conduit Purchaser or such Committed Purchaser, costs associated with funding and maintaining Hedge Agreements (or similar arrangements) and Investments denominated in a currency other than the currency of such Commercial Paper, other borrowings by such Conduit Purchaser or such Committed Purchaser and any other costs and expenses associated with the issuance of Commercial Paper) of or related to the issuance of Commercial Paper that are allocated, in whole or in part, by such Conduit Purchaser or such Committed Purchaser or the related Purchaser Agent or its related Program Manager to fund or maintain such Tranche (the proceeds of which may also be allocated in part to the funding of other assets of such Conduit Purchaser or such Committed Purchaser (and, if such proceeds are allocated in part to the funding of other assets of such Conduit Purchaser the costs associated with such funding will also be allocated in the appropriate portion to the funding of such other asset));
provided
that if any component of any such rate is a discount rate, in calculating the “CP Rate” for such Tranche for such Tranche Period, the Purchaser Agent or related Program Manager shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.
“Credit and Collection Policies”
means, with respect to any Receivable, those credit and collection policies and practices of the Originator that originated such Receivable in effect on the date of this Agreement and described in
Schedule 3
(
Credit and Collection Policies
), as modified in compliance with this Agreement, the Originator Sale Agreements and the Servicing Agreement.
“Credit Note Reduction”
means, as of any day, the Dollar Equivalent of the aggregate amount of negative credit balances arising from the issue of credit notes, advance payments made by Obligors and unapplied cash received by Originators in respect of Eligible Receivables as of such day.
“Currency Hedge Agreement”
means a currency swap or exchange agreement (including any spot or forward currency exchange agreement) or any other similar arrangement, however denominated, entered into by or on behalf of a Purchaser for hedging purposes, as any of the foregoing may be amended, restated, supplemented or otherwise modified from time to time.
11
“Currency Percentage”
means, on any date of determination for any Approved Currency, the percentage of the aggregate Outstanding Balance of the Portfolio Receivables represented by Receivables denominated in such Approved Currency, rounded up or down by up to two decimal points by the Master Servicer. The aggregate Currency Percentages for all Approved Currencies, as so rounded by the Master Servicer, shall in all cases be equal to 100%.
“Days Sales Outstanding”
means, on any Monthly Reporting Date and continuing until (but not including) the next Monthly Reporting Date, the number of calendar days equal to the product of (a) 30 and (b) the amount obtained by dividing (i) the aggregate Outstanding Balance of Eligible Receivables as of the last day of the immediately preceding Calculation Period by (ii) Average Sales.
“Debt Rating”
for any Person at any time means the then-current rating by S&P or Moody’s of such Person’s public senior unsecured debt.
“Deemed Collections”
means any Collections on any Receivable paid or payable, as the context requires, by an Originator pursuant to an Originator Sale Agreement, by the Master Servicer pursuant to the Servicing Agreement, by any Intermediate Transferor pursuant to any Intermediate Transfer Agreement or by the Seller hereunder (regardless of whether received by any Person unless otherwise specified in the applicable Intermediate Transfer Agreement), and including, without limitation, the proceeds of repurchases of Receivables and payments with respect to Diluted Receivables.
“Default Rate”
means a rate per annum equal to the then applicable Yield Rate plus 2.00%.
“Default Ratio”
means the ratio (expressed as a percentage) computed as of each Monthly Reporting Date for the immediately preceding Calculation Period by dividing (a) the sum (without duplication) of (i) the aggregate Outstanding Balance of all Portfolio Receivables which were 91-120 days past their original due date as at the end of such Calculation Period plus (ii) the aggregate Outstanding Balance of all Portfolio Receivables which became Defaulted Receivables prior to becoming more than 90 days past due during such Calculation Period by (b) the aggregate amount of sales (in U.S. Dollars or the Dollar Equivalent) giving rise to Portfolio Receivables that were generated during the fourth Calculation Period prior to the Calculation Period to which such Monthly Reporting Date relates (for example, if the applicable Monthly Reporting Date is in February, then the sales for the prior September are utilized in this clause (b)). For the avoidance of doubt, any Defaulted Receivable repurchased by an Originator pursuant to an Originator Sale Agreement shall be included in the calculation of Default Ratio.
“Defaulted Receivable”
means, without duplication, a Portfolio Receivable (a) as to which any payment, or part thereof, remains unpaid for 91 or more days from the original due date for such Receivable, (b) as to which an Event of Bankruptcy has occurred and is continuing with respect to the Obligor thereof, (c) which has been identified by the Master Servicer or relevant Originator as uncollectable in accordance with the applicable Credit and Collection Policies, or (d) which, in accordance with the applicable Credit and Collection Policies, has been or should have been written off as uncollectable.
12
“Deferred Purchase Price”
means, for each Investment, an amount equal to the excess of (x) the aggregate Unpaid Balance of the Receivables purchased by the Administrative Agent (for the benefit of the Purchasers) hereunder as part of such Investment over (y) the amount of the Cash Purchase Price paid in connection with such Investment.
“Deferred RPA Purchase Price”
has the meaning specified for “Deferred Purchase Price” in the applicable Originator Sale Agreement or Intermediate Transfer Agreement.
“Delinquency Ratio”
means the ratio (expressed as a percentage) computed as of each Monthly Reporting Date for the immediately preceding Calculation Period by dividing (a) the aggregate Outstanding Balance of all Portfolio Receivables which are 61 to 90 days past due from the original due date as of the end of such Calculation Period by (b) the aggregate amount of sales (in U.S. Dollars or the Dollar Equivalent) giving rise to Portfolio Receivables that were generated during the third Calculation Period prior to the Calculation Period to which such Monthly Reporting Date relates (for example, if the applicable Monthly Reporting Date is in February, then the sales for the prior October are utilized in this clause (b)).
“Designated Master Trust Obligor”
means, on any date of determination, Bunge Limited and any of its Subsidiaries that are designated by Bunge Limited as “Designated Obligors” under (and as defined in) the Pooling Agreement that are eligible to receive intercompany loans on such date from the proceeds of debt issued by any Investor Certificateholder under the Bunge Master Trust structure.
“Diluted Receivable”
means any Portfolio Receivable or part thereof which is either (a) reduced, cancelled or adjusted as a result of (i) any defective, rejected or returned goods, merchandise or services or any failure by the relevant Originator to deliver any merchandise or goods or provide any services or otherwise to perform under any related Contract, (ii) any change in the terms of, or cancellation of, a Contract or invoice or any rebate (including any volume rebate), administrative fee, discount, credit memo, refund, non-cash payment (other than payments by check), chargeback, allowance or any billing or other adjustment by the relevant Originator (except (x) any such change or cancellation made in settlement of such Receivable in accordance with the Credit and Collection Policies resulting from the financial inability of the Obligor to pay such Receivable and (y) any adjustments to correct manual errors on invoices that do not reduce the Unpaid Balance of such Receivable) or (iii) any set off or offset in respect of a claim by the relevant Obligor (in each case, whether such claim arises out of the same or a related transaction or an unrelated transaction); or (b) subject to any specific counterclaim or defense whatsoever (except the discharge in a proceeding under applicable Insolvency Law of the Obligor thereof).
“Dilution Horizon Ratio”
means the ratio (expressed as a percentage) computed as of each Monthly Reporting Date equal to a fraction, the numerator of which is the higher of (A) the aggregate amount of all sales (in U.S. Dollars or the Dollar Equivalent) which gave rise to Portfolio Receivables that were generated during the Calculation Period to which such Monthly Reporting Date relates and (B) (i) if the Applicable S&P Rating is below “BBB-” (or withdrawn or suspended) and the Applicable Moody’s Rating is below “Baa3” (or withdrawn or suspended), the aggregate amount of the sales (in U.S. Dollars or the Dollar Equivalent) which gave
13
rise to Portfolio Receivables that were generated during the number of Calculation Periods ending prior to such Monthly Reporting Date equal to the weighted average dilution lag from the most recent collateral audit plus 7 days divided by 30 days (expressed in preceding Calculation Periods of sales) (i.e., if the weighted average dilution lag is 60 days, the number of Calculation Periods would be 67/30 or 2.23 preceding Calculation Periods of sales), and (ii) in all other cases, the aggregate amount of the sales (in U.S. Dollars or the Dollar Equivalent) which gave rise to Portfolio Receivables that were generated during the number of Calculation Periods ending prior to such Monthly Reporting Date equal to the weighted average dilution lag from the most recent collateral audit divided by 30 days (expressed in preceding Calculation Periods of sales) and the denominator of which is the Net Eligible Receivables Balance as of the last day of the Calculation Period to which such Monthly Reporting Date relates
“Dilution Ratio”
means the ratio (expressed as a percentage) computed as of each Monthly Reporting Date for the immediately preceding Calculation Period by dividing (a) the aggregate amount (in U.S. Dollars or the Dollar Equivalent) of Portfolio Receivables which became Diluted Receivables (other than as a result of a Contractual Dilution) during that Calculation Period, by (b) the aggregate amount (in U.S. Dollars or the Dollar Equivalent) of all sales which gave rise to Portfolio Receivables that were generated during the Calculation Period prior to the calendar month to which such Monthly Reporting Date relates (for example, if the applicable Monthly Reporting Date is in February, then the sales for the prior December are utilized in this clause (b)) For the avoidance of doubt, any Diluted Receivable repurchased by an Originator pursuant to an Originator Sale Agreement shall be included in the calculation of Dilution Ratio.
“Dilution Reserve Ratio”
means, as of any Monthly Reporting Date, and continuing until (but not including) the next Monthly Reporting Date, an amount (expressed as a percentage) that is calculated as follows:
DRR = [(SF x ED) + [(DS-ED) x (DS/ED)]] x DHR
where:
|
DRR
|
=
|
Dilution Reserve Ratio;
|
|
|
|
|
|
SF
|
=
|
the Stress Factor;
|
|
|
|
|
|
ED
|
=
|
the Expected Dilution;
|
|
|
|
|
|
DS
|
=
|
the “Dilution Spike”, defined as the highest one-month rolling average Dilution Ratio that occurred during the period of twelve consecutive Calculation Periods ending immediately prior to such earlier Monthly Reporting Date; and
|
|
|
|
|
|
DHR
|
=
|
the Dilution Horizon Ratio.
|
“
Discount Percentage
” means, unless otherwise specified in the applicable Originator Sale Agreement or Intermediate Transfer Agreement, with respect to the purchase of any Receivable and any period, a percentage equal to 0.15% or any other
14
percentage agreed to by the applicable buyer and seller under the applicable Originator Sale Agreement or Intermediate Transfer Agreement.
“Dollar Equivalent”
means, at any time in relation to an amount denominated in a currency other than U.S. Dollars, the U.S. Dollar equivalent of such amount determined by reference to the Spot Rate determined as of the most recent Exchange Rate Determination Date pursuant to
Section 2.16
(
Conversion of currencies
).
“DPP Collections”
has the meaning specified in
Section 2.6(b)(iv)
(
Collections prior to Facility Termination Date
).
“Eligible Account Bank”
means (a) with respect to accounts in the U.S., a depositary institution or trust company (which may include the Administrative Agent and its Affiliates) organized under the laws of the U.S. or any one of the States thereof or the District of Columbia;
provided
that at all times (i) such depositary institution or trust company is a member of the Federal Deposit Insurance Corporation, (ii) unless the Purchaser Agents consent in writing otherwise, the short-term debt rating of such depositary institution or trust company have at least two of the three following ratings: at least A-1 by S&P, P-1 by Moody’s and F1 by Fitch and (iii) such depositary institution or trust company has a combined capital and surplus of at least $100,000,000, and (b) with respect to accounts outside the U.S., an entity (i) authorized to accept deposits in the relevant jurisdiction, (ii) unless the Purchaser Agents consent in writing otherwise, which have at least two of the three following short-term debt ratings: at least A-1 by S&P, P-1 by Moody’s and F1 by Fitch (provided that (A) in the case of Sparkasse, such bank shall be considered an Eligible Account Bank so long as it has short-term debt ratings of at least A-3 by S&P, P-3 by Moody’s or F3 by Fitch, and (B) in the case of Banco Comercial Portugues, such bank shall be considered an Eligible Account Bank so long as (x) it has short-term debt ratings of at least A-3 by S&P, P-3 by Moody’s and F3 by Fitch or (y) if it does not satisfy the rating requirements of the preceding clause (x) the Majority Committed Purchasers have not delivered written notice to the Master Servicer declaring that such bank should no longer be treated as an Eligible Account Bank and (iii) has a combined capital and surplus of at least $100,000,000. If any account bank is downgraded or otherwise fails to satisfy the requirements set forth above (including any account bank which fails to satisfy such definition on the Closing Date), such account bank shall fail to constitute an “Eligible Account Bank” under the Transaction Documents on the 30
th
calendar day following the initial date of such failure (and the applicable Transaction Party shall transfer the applicable Collection Account(s) to an Eligible Account Bank and start to redirect Obligors to make payments to such new account within such 30 day period).
“Eligible Assignee”
means, with respect to any Purchaser Group, any Person (i) that is a Purchaser Agent, a Program Manager, a Purchaser, a Program Support Provider or any Affiliate of any such Person that has a short-term debt rating of at least A-1 by S&P and P-1 by Moody’s, (ii) that is managed or sponsored by a Person described in
clause (i)
above and that has a short term debt rating of at least A-1 by S&P and P-1 by Moody’s (it being understood that any financing vehicle utilized by a Committed Purchaser shall not have to satisfy such rating requirement) or (iii) any other Person that has been approved by the Purchaser Agent for such Purchaser Group and consented to by the Administrative Agent (such consent not to be unreasonably withheld) and, so long as no Facility Termination Event or Portfolio Event has
15
occurred and is continuing, consented to by the Master Servicer (such consent not to be unreasonably withheld or delayed).
“Eligible Obligor”
means any Obligor (a) that is a resident of an Approved Obligor Jurisdiction, (b) that is not an Official Body (other than a Spanish Official Body or the U.S. federal government or any political subdivision or agency thereof) or an Affiliate of any Transaction Party, (c) that is not an individual or a sole trader (if such sole trader is considered an individual rather than a corporate entity for data protection purposes under applicable Law), (d) that is not an Excluded Obligor, (e) that is not the subject of an Event of Bankruptcy, and (f) with respect to which not more than 25% of the aggregate Outstanding Balance of the Receivables owing by such Obligor and its Affiliates are (i) Defaulted Receivables or (ii) Receivables as to which any payment, or part thereof, remains unpaid for more than 60 days from the original due date for such Receivables.
“Eligible Receivable”
means, at any time, any Receivable:
(a)
(i)
which has been originated by an Originator and validly sold and/or otherwise assigned (or purported to be sold and/or otherwise assigned) by such Originator to a Seller Party pursuant to (and in accordance in all material respects with) an Originator Sale Agreement, with the result that such Seller Party has good and marketable title thereto (together with the Collections and Related Security related thereto), free and clear of all Adverse Claims (other than Permitted Adverse Claims) (with respect to the Receivable of any Obligor which is the U.S. federal government or any political subdivision or agency thereof, subject to any limitation on the Seller’s or its assigns’ rights under the Federal Assignment of Claims Act); and
(ii)
if such Seller Party is not the Seller, which has been sold and/or otherwise assigned (or purported to be sold and/or otherwise assigned) by such Seller Party to the Seller, pursuant to (and in accordance in all material respects with) an Intermediate Transfer Agreement, with the result that the Seller is the sole beneficial owner of and has good and marketable title to such Receivable (together with the Collections and Related Security related thereto), in each case, free and clear of all Adverse Claims (other than Permitted Adverse Claims) (with respect to the Receivable of any Obligor which is the U.S. federal government or any political subdivision or agency thereof, subject to any limitation on the Seller’s or its assigns’ rights under the Federal Assignment of Claims Act); (it being understood that this clause (a) shall be interpreted as appropriate when the definition of “Eligible Receivables” is used in an Originator Sale Agreement or Intermediate Transfer Agreement (i.e., the sale effectuated by such agreement shall not be required to have been completed prior to such sale));
(b)
which does not arise from the sale of any inventory (or other materials used to render or process the goods related to such Receivable) that is subject to an Adverse Claim (other than any Permitted Adverse Claim) covering the proceeds of such inventory, if such Adverse Claim would extend to such Receivable in a legally effective manner or otherwise remain in effect with
16
respect to such Receivable (including, without limitation, any Adverse Claim arising by operation of law in favor of producers or sellers of agricultural commodities, such as the United States Perishable Agricultural Commodities Act of 1930);
(c)
the Obligor of which is an Eligible Obligor;
(d)
which has been billed to the relevant Obligor and, according to the terms thereof and any Contract related thereto, is required to be paid in full (subject to any contractual rebate or discount) within 60
days from the original billing date therefor;
(e)
which is denominated and payable only in an Approved Currency;
(f)
which is not (i) a Defaulted Receivable at such time or (ii) a Receivable as to which any payment, or part thereof, remains unpaid for more than 60 days from the original due date for such Receivable;
(g)
(i)
which arises pursuant to a Contract with respect to which the applicable Originator has performed all obligations required to be performed by it thereunder in order to have such Receivable become due and payable thereunder, including shipment of the goods or merchandise and/or the performance of the services purchased thereunder;
(ii)
which does not arise from a consignment sale or sale pursuant to which the applicable Obligor has the right to return the goods for which it has become obligated to pay in the event it is unable to sell such goods and in respect of which the applicable Originator is obligated to refund to such Obligor any amount in respect of such returned goods; and
(iii)
as to which the Originator is in compliance in all material respects with the terms of such Receivable and the related Contract;
(h)
which
(i)
if purchased with proceeds of Commercial Paper, would constitute a “current transaction” within the meaning of Section 3(a)(3) of the Securities Act of 1933;
(ii)
is an “eligible asset” as defined in Rule 3a-7 under the Investment Company Act of 1940; and
(iii)
represents all or part of the sales price of merchandise, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940;
(i)
which
(i)
in the case of a Receivable subject to the Laws of a State of the U.S., is an “account” or “payment intangible” within the meaning of Section 9 of the UCC;
17
(ii)
in the case of any Receivable that is not subject to the Laws of a State of the U.S., is a right to payment of a monetary obligation for (A) property that has been sold, assigned or otherwise transferred or (B) services rendered to an Obligor; and
(iii)
in the case of any Receivable (including a Receivable subject to the Laws of a State of the U.S.), is not evidenced or otherwise payable by chattel paper, a promissory note, a bill of exchange or other instrument other than, in the case of a Receivable originated by a Spanish Originator, a check (cheque) or promissory note (pagaré) which is made payable not to the order (no a la orden) of such Spanish Originator;
(j)
which arises under a Contract that, together with such Receivable, is in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor, enforceable against such Obligor except as such enforcement against such Obligor may be limited by any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), in each case, under all applicable Law, and is not subject to any litigation, dispute, offset in respect of a claim by the relevant Obligor, counterclaim or other defense other than unexpired volume or pricing discounts or rebates or other usual adjustments or dilutions incurred by the related Originator in the normal course of its business to which the Obligor thereon may be entitled (including, without limitation, any adjustments that are necessary to correct manual errors on invoices that do not reduce the Unpaid Balance of the applicable Receivable) or with the prior written consent of the Required Committed Purchasers;
(k)
which, together with the Contract related thereto, does not contravene any Laws applicable thereto which in any way renders such Receivable unenforceable or would otherwise impair in any material respect the collectability of such Receivable;
(l)
which has been underwritten in accordance with and otherwise satisfies in all material respects all applicable requirements of the applicable Originator’s Credit and Collection Policies;
(m)
which was originated in the ordinary course of the applicable Originator’s business and represents the purchase price of goods or services sold by such Originator;
(n)
the Obligor of which has been directed to make all payments to a Collection Account at an Eligible Account Bank with respect to which a valid and enforceable Account Security Agreement is in effect;
(o)
which has not been compromised, altered, adjusted or modified for credit reasons nor is it subject to any downward adjustment for Tax, rebates or other reasons (including by the extension of time for payment or the granting of any discounts, allowances or credits), in each case, other than in the ordinary course of the applicable Originator’s business and as permitted or required by the Credit and Collection Policies (including, without limitation, any
18
adjustments that are necessary to correct manual errors on invoices that do not reduce the Unpaid Balance of the applicable Receivable) or with the prior written consent of the Required Committed Purchasers (for the avoidance of doubt, however, no Receivable which has been re-aged shall constitute an Eligible Receivable);
(p)
(i)
the sale, assignment or other transfer of which (together with the Collections and Related Security related thereto) under the applicable Originator Sale Agreement to (or for the benefit of) a Seller Party;
(ii)
the sale, assignment or other transfer of which (together with the Collections and Related Security related thereto) to the Seller under an Intermediate Transfer Agreement;
(iii)
the sale, assignment or other transfer (together with the Collections and Related Security related thereto) to the Administrative Agent, on behalf of the Purchasers, pursuant to this Agreement; and
(iv)
the grant of a security interest, pledge or charge therein to the Administrative Agent, on behalf of the Secured Parties, pursuant to this Agreement or any Security Documents;
in each case, does not violate, conflict with or contravene any applicable Laws or any contractual or other restriction, limitation or encumbrance (including any restriction or limitation under the related Contract) and does not require the consent of or notice to the applicable Obligor or any other Person other than such consents as have been obtained and notices that have been given;
(q)
which, together with the Contract related thereto, has not been rewritten, varied, waived or extended or otherwise been re-invoiced and has not otherwise had its invoice date or due date changed, in each case, other than in the ordinary course of the applicable Originator’s business and as permitted or required by the Credit and Collection Policies (including, without limitation, any adjustments that are necessary to correct manual errors on invoices that do not reduce the Unpaid Balance of the applicable Receivable) or with the prior written consent of the Required Committed Purchasers (for the avoidance of doubt, however, no Receivable which has been re-aged shall constitute an Eligible Receivable);
(r)
with respect to which all of the Seller’s right, title and interest in such Receivable (together with the Related Security and Collections related thereto) is subject to a first priority security interest, charge or pledge created by this Agreement or the Security Documents under all applicable Law in favor of the Administrative Agent, on behalf of the Secured Parties, free and clear of all Adverse Claims (other than Permitted Adverse Claims);
(s)
which is governed by the laws of an Approved Contract Jurisdiction;
(t)
with respect to which the disclosure of information necessary to permit the Seller or its assigns to enforce such Receivable against the related Obligor (with respect to the Receivable of any Obligor which is the U.S. federal
19
government or any political subdivision or agency thereof, subject to any limitation on the Seller’s or its assigns’ rights under the Federal Assignment of Claims Act), would not result in the breach of any Law, agreement (including the related Contract), judgment or other instrument by which the related Originator is bound;
(u)
(i)
each of (A) the Originator Sale Agreement under which such Receivable was sold to a Seller Party, and (B) if such Seller Party is other than the Seller, the Intermediate Transfer Agreement under which such Receivable was sold to the Seller, is in full force and effect;
(ii)
the applicable Originator of which has not been terminated as a “Seller” under the relevant Originator Sale Agreement; and
(iii)
the Seller Termination Date has not occurred with respect to the applicable Originator; and
(v)
with respect to Receivables being the subject of the German RPA or any other Originator Sale Agreement governed by German law, is not subject to a current account agreement (
kontokorrentgebundene Forderung
) within the meaning of sec. 355 of the German Commercial Code (
HGB
).
“EMU Legislation”
means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states of the European Union.
“Equity Holder”
means Stichting Bunge Securitization.
“Equity Interests”
of any Person means any and all shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
“Euro”
means the lawful currency of the Participating Member States.
“Eurocurrency Rate”
means, for any Tranche for any Tranche Period and any applicable Approved Currency, the rate determined by the Administrative Agent by reference to LIBOR, EURIBOR, CADLIBOR, BUBOR or equivalent for any other Approved Currency for deposits in the applicable Approved Currency of such Tranche appearing on the applicable page of the Telerate Service, Reuters or Bloomberg (or any successor to or substitute for such service, providing rate quotations comparable to those currently provided by such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in such currency in the London interbank market) (or, in the case of any Approved Currency for which the applicable rate is not published as such on such referenced page, on the relevant page of the applicable central bank or other commercially reasonable source determined by the Administrative Agent) at approximately 11:00 a.m., local time, on the Quotation Day, as the rate for deposits with a maturity comparable to such Tranche Period. In the
20
event that such rate is not available at such time for any reason, then the “Eurocurrency Rate” shall be the rate at which deposits (in an amount approximately equal to and in the currency of the amount in respect of which the Eurocurrency Rate is to be determined and for a maturity comparable to such Tranche Period) are offered by the principal London office of the Administrative Agent in immediately available funds to leading banks in the London interbank market at approximately 11:00 a.m., London time, on the Quotation Day.
“Eurocurrency Rate Reserve Percentage”
means, for any Tranche Period in respect of which Yield is computed by reference to the Eurocurrency Rate, (a) in the case of a Tranche denominated in U.S. Dollars, the reserve percentage applicable two Business Days before the first day of such Tranche Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) (or if more than one such percentage shall be applicable, the daily average of such percentages for those days in such Tranche Period during which any such percentage shall be so applicable) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) with respect to liabilities or assets consisting of or including eurocurrency liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Liabilities is determined) having a term equal to such Tranche Period and (b) with respect to a Tranche denominated in any applicable Approved Currency (other than U.S. Dollars), any applicable Statutory Reserves with respect to such currency.
“Eurocurrency Tranche”
has the meaning specified in
Section 2.12
(
Illegality
).
“Event of Bankruptcy”
means (A) with respect to any Person, the occurrence of any of the following:
(a)
such Person shall voluntarily commence any case, proceeding or other action, or present a petition or make an application under any Insolvency Law:
(i)
relating to bankruptcy, insolvency, court protection, 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, examination, liquidation, administration, administrative receivership, dissolution, court protection, composition, declaration or other similar relief with respect to it or any of its debts; or
(ii)
seeking the appointment of a liquidator, receiver, administrative receiver, examiner, security trustee, custodian, compulsory manager, administrator or other similar official for it or for all or any substantial part of its assets;
(b)
there shall be commenced, presented or made against such Person any case, proceeding or other action referred to in (a) above which is not dismissed by the relevant court, tribunal or authority within sixty (60)
days after its commencement;
21
(c)
there shall be commenced against such Person any case, proceeding or other action seeking issuance of a warrant of attachment, sequestration, distress, expropriation, execution, distraint or similar process against all or any substantial part of its assets which is not dismissed within sixty (60)
days after its commencement; or
(d)
a moratorium is declared in respect of any of its debt; and
(B) with respect to the German Originator (i) the commencement of insolvency proceedings (
Eröffnung des Insolvenzverfahrens
) pursuant to the provisions of the German Insolvency Code (
Insolvenzordnung
), or (ii) the ordering by the insolvency court of a general prohibition of disposal (
allgemeines Verfügungsverbot
) or the order by the insolvency court that the German Originator may only dispose of its assets with the consent of a preliminary insolvency administrator pursuant to Section 21 para. 2 No. 2 of the German Insolvency Code (
Insolvenzordnung
).
“Exchange Rate Determination Date”
means two Business Days before each Reporting Date.
“Excluded Obligor”
means any Obligor set forth on
Schedule 9
(
Excluded Obligors
), as such Schedule may be amended from time to time in accordance herewith (and, for the avoidance of doubt, upon the addition of any Obligor to
Schedule 9
, only Receivables originated on or after such date of addition shall be excluded from the Portfolio Receivables under the Transaction Documents). It being understood that upon any change to
Schedule 9
any required corresponding change to the list of “Determined Debtors” or “Further Determined Debtors” (under and as defined in the Italian RPA) shall be made concurrently.
“Excluded Taxes”
means (a) income taxes based on (or measured by) net income or net profits (or franchise taxes imposed in lieu of net income taxes) that are imposed on any Agent, Purchaser or other recipient of any payment to be made by or on account of any Transaction Party Obligation as a result of a present or former connection between such Agent, Purchaser or other recipient and the jurisdiction of the Official Body imposing such tax or any political subdivision or taxing authority thereof (other than any such connection arising solely from the Agent, Purchaser or other recipient having executed, delivered or performed its obligations or received a payment hereunder, or enforced, this Agreement), (b) any branch profits taxes that are imposed on any Agent, Purchaser or other recipient of any payment to be made by or on account of any Transaction Party Obligation by any jurisdiction described in
clause (a)
above, (c) any Tax imposed on an Agent or Purchaser to the extent such Tax is attributable to such Agent’s or Purchaser’s failure to comply with relevant requirements set forth in
Section 2.15(e)
(
Indemnity for Taxes
) (or analogous provision of any other Transaction Document), unless such failure is due to a Change in Law and (d) any withholding Tax that is imposed on amounts payable to (i) any Purchaser solely by reason of such Purchaser designating a new lending office, except to the extent that the Purchaser was entitled, immediately prior to the time of designation of a new lending office, to receive additional amounts from the Seller with respect to such withholding Tax pursuant to Section 2.15(a), or (ii) any Agent, Purchaser or other recipient which becomes a party to this Agreement after the Closing Date (other than an Eligible Assignee pursuant to a request by Seller under Section 2.20(b)), except to the extent that such Agent, Purchaser or other recipient (or
22
an Assignor, if any) was entitled, immediately prior to the time of assignment or becoming a party to this Agreement, to receive additional amounts from the Seller with respect to such withholding Tax pursuant to Section 2.15(a).
“Expected Dilution”
means, as of any Monthly Reporting Date, and continuing until (but not including) the next Monthly Reporting Date, the twelve month rolling average of the Dilution Ratios that occurred during the period of twelve consecutive Calculation Periods ending immediately prior to such earlier Monthly Reporting Date.
“Facility Account”
means, as the context requires, all or any one of the Collection Accounts or the Seller Operating Accounts.
“Facility Event”
means a Facility Termination Event or Potential Facility Termination Event.
“Facility Limit”
means, at any time, the Aggregate Commitment then in effect.
“Facility Party”
means any Transaction Party other than the Sub-Servicers, the Originators and the Intermediate Transferors.
“Facility Termination Date”
means the earliest of (a) the Scheduled Commitment Facility Termination Date, (b) the date that the Facility Termination Date is declared or automatically occurs pursuant to
Section 7.2
(
Termination of Facility
), (c) the date that the Facility Termination Date is declared by the Administrative Agent (acting at the direction of the Majority Committed Purchasers) following the occurrence of a Portfolio Event, and (d) any Settlement Date specified by the Performance Undertaking Provider on not less than sixty (60) days (or such shorter period as the Agents may agree) prior written notice to the Administrative Agent and the Purchaser Agents.
“Facility Termination Event”
has the meaning specified in
Section 7.1
(
Facility Termination Events
).
“Federal Assignment of Claims Act”
means the Assignment of Claims Act of 1940, 31 U.S.C. §3727 and 41 U.S.C. §15.
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fee Letters”
means, collectively, the Administrative Agent Fee Letter and the Purchaser Fee Letter.
“Fees”
means the fees payable pursuant to any Fee Letter.
23
“Final Payout Date”
means the date after the Facility Termination Date on which all the Transaction Party Obligations have been reduced to zero by payment in full in cash.
“Finance Charges”
means, with respect to a Receivable, any finance, interest, late payment or similar charges owing by an Obligor in respect of such Receivable.
“Fitch”
means Fitch, Inc.
“Floor Reserve Percentage”
means, at any time, a percentage equal to the sum of (a) the Loss Reserve Floor and (b)(i) the Expected Dilution multiplied by (ii) the Dilution Horizon Ratio.
“Foreign Purchaser”
shall mean any Purchaser that is organized under the laws of a jurisdiction other than that in which the Seller is located.
“Fundamental Change”
means any amendment, waiver or consent which has the following effect:
(a)
reduces the Invested Amount in respect of, or Yield that is payable on account of, any Investment or Tranche or delays any scheduled date for payment thereof;
(b)
reduces the fees payable by the Seller to the Purchaser Agents, the Conduit Purchasers or the Committed Purchasers or delays the dates on which such fees are payable;
(c)
extends the Scheduled Commitment Facility Termination Date (except as provided in
Section 2.20
(
Extension of Scheduled Commitment Facility Termination Date
));
(d)
releases any portion of the Collateral;
(e)
changes any of the provisions of the amendment or voting sections of a Transaction Document or the definition of “Required Committed Purchasers” and “Majority Committed Purchasers”;
(f)
amends any Facility Termination Event or Portfolio Event;
(g)
amends the definition of “CP Rate”, “Default Ratio”, “Approved Currency”, “Defaulted Receivable”, “Delinquent Receivable”, “Dilution Reserve Ratio”, “Floor Reserve Percentage”, “Eligible Receivable”, “Funding Base” (or any defined term directly or indirectly used therein to determine the Funding Base), “Loss Reserve Floor”, “Loss Reserve Ratio”, “Net Eligible Receivables Balance”, “Reserve Percentage”, “Stress Factor”, “Yield Reserve Ratio”, or increase any Concentration Amount or any Concentration Limit;
(h)
releases the Performance Undertaking Provider from its obligations under the Performance Undertaking; or
24
(i)
amends any provisions of a Transaction Document related to limited recourse, non-petition, governing law or the rights and obligations of the Administrative Agent to act on behalf of the Purchasers.
“Funding Base”
means, as of any date, (a) the Net Eligible Receivables Balance multiplied by (b) a percentage equal to 100% minus the Reserve Percentage.
“GAAP”
means, with respect to any Person, generally accepted accounting principles applicable to such Person (including generally accepted accounting principles applicable to such Person by Law) or the consolidated group of which such Person is a member.
“German Account Security Agreement”
has the meaning specified in the German RPA.
“German Collection Account”
means any account set forth on
Schedule 5
(
Facility Accounts and Account Banks
) hereto under the heading “German Collection Accounts”, as such Schedule may be amended from time to time in accordance herewith.
“German Collection Account Bank”
means any bank or other financial institution set forth on
Schedule 5
(
Facility Accounts and Account Banks
) under the heading “German Collection Account Banks”, as such Schedule may be amended from time to time in accordance herewith.
“German Originator”
has the meaning assigned to the term “Seller” in the German RPA.
“German RPA”
means the German Receivables Purchase Agreement, dated the Closing Date, among the German Originator(s), the German Seller Agent and the Seller.
“German Security Documents”
means any account pledge agreement (including the German Account Security Agreement) and any other security agreement subject to the Laws of the Federal Republic of Germany entered into with the Administrative Agent in favor of the Secured Parties.
“German Seller Agent”
has the meaning assigned to the term “Seller Agent” in the German RPA.
“
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
25
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 applicable guaranteeing person in good faith.
“Hedge Agreements”
means all rate swaps, caps or collar agreements or similar arrangements dealing with interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.
“Hungarian Account Security Agreements”
has the meaning specified in the Hungarian RPA.
“Hungarian Collection Account”
means any account set forth on
Schedule 5
(
Facility Accounts and Account Banks
) hereto under the heading “Hungarian Collection Accounts”, as such Schedule may be amended from time to time in accordance herewith.
“Hungarian Collection Account Bank”
means any bank or other financial institution set forth on
Schedule 5
(
Facility Accounts and Account Banks
) under the heading “Hungarian Collection Account Banks”, as such Schedule may be amended from time to time in accordance herewith. It being understood and agreed that this agreement shall be entered into after the Closing Date but the form thereof has been agreed to by each Purchaser.
“Hungarian Intermediate Transfer Agreement”
means the Hungarian Intermediate Transfer Agreement between the Hungarian Intermediate Transferor and the Seller.
“Hungarian Intermediate Transferor”
means Rabobank International.
“Hungarian Originator”
has the meaning assigned to the term “Seller” in the Hungarian RPA.
“Hungarian RPA”
means the Hungarian Receivables Purchase Agreement among the Hungarian Originator(s), the Hungarian Seller Agent and the Hungarian Intermediate Transferor. It being understood and agreed that this agreement shall be entered into after the Closing Date but the form thereof has been agreed to by each Purchaser.
26
“Hungarian Seller Agent”
has the meaning assigned to the term “Seller Agent” in the Hungarian RPA.
“Incremental Investment”
means the initial purchase of the Portfolio on the Initial Purchase Date and each investment by the Purchasers in the Portfolio thereafter which increases the total outstanding Aggregate Invested Amount hereunder.
“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 capitalized in accordance with GAAP, (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) an Adverse Claim 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).
“Indemnified Amounts”
has the meaning specified in
Section 10
(
Indemnities by the Seller
).
“Indemnified Party”
has the meaning specified in
Section 10
(
Indemnities by the Seller
).
“Indemnified Taxes”
mean Taxes other than Excluded Taxes and Other Taxes.
“Initial Purchase Date”
mean the date of the initial Incremental Investment hereunder by the Purchasers.
“Insolvency Law”
means any Law relating to bankruptcy, insolvency, administration, receivership, examination, administrative receivership, reorganisation, winding up or composition, moratorium or adjustment of debts or the rights of creditors generally (whether by way of voluntary arrangement or otherwise).
“Intermediate Transfer Agreements”
means the Italian Intermediate Transfer Agreement, the Hungarian Intermediate Transfer Agreement and the U.S. Intermediate Transfer Agreement.
“Intermediate Transferors”
means the Hungarian Intermediate Transferor, the Italian Intermediate Transferor and the U.S. Intermediate Transferor.
“Invested Amount”
means, with respect to each Incremental Investment hereunder, the amount paid in cash to the Seller by the Purchasers hereunder in connection with
27
such Incremental Investment (it being understood that Reinvestments and Settlement Date Investments shall not change the Invested Amount of any Purchaser unless a repayment of Investment or an increase in Investment occurs in connection with any such Settlement Date Investment), as such amount may be divided or combined in accordance with
Section 2.10
(
Tranches
), in each case as reduced from time to time by amounts paid to the applicable Purchaser(s) holding such Tranche pursuant to
Section 2.6
(
Collections prior to Facility Termination Date
) or
Section 2.7
(
Collections after Facility Termination Date
), as applicable, on account of the Invested Amount in respect of such Tranche;
provided
that if such Invested Amount shall have been reduced by any payment and thereafter all or a portion of such payment is rescinded or must otherwise be returned for any reason, such Invested Amount shall be increased by the amount of such rescinded or returned payment, as though it had not been received by such Purchaser(s).
“Investment”
means each Incremental Investment, Settlement Date Investment and Reinvestment.
“Investment Date”
has the meaning specified in
Section 2.2(a)(i)
(
Purchase procedures
).
“Investment Request”
has the meaning specified in
Section 2.2(a)(i)
(
Purchase procedures
).
“
Investor Certificateholder
” means the holder of record of, or the bearer of, any certificate issued by the Bunge Master Trust under the Pooling Agreement or any supplement thereto, including, without limitation, Bunge Asset Funding Corp., Bunge Finance Europe B.V. and Bunge Limited Finance Corp.
“IRC”
means the U.S. Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
“Italian Account Security Agreement”
has the meaning specified in the Italian RPA.
“Italian Collection Account”
means any account set forth on
Schedule 5
(
Facility Accounts and Account Banks
) hereto under the heading “Italian Collection Accounts”, as such Schedule may be amended from time to time in accordance herewith.
“Italian Collection Account Bank”
means any bank or other financial institution set forth on Schedule 5 (Facility Accounts and Account Banks) under the heading “Italian Collection Account Banks”, as such Schedule may be amended from time to time in accordance herewith.
“Italian Intermediate Transfer Agreement”
means the Italian Intermediate Transfer Agreement, dated the Closing Date, between the Italian Intermediate Transferor and the Seller.
“Italian Intermediate Transferor”
means Rabobank International.
“Italian Originator”
has the meaning assigned to the term “Seller” in the Italian RPA.
28
“Italian RPA”
means the Italian Receivables Purchase Agreement, dated the Closing Date, among the Italian Originator(s), the Italian Seller Agent and the Italian Intermediate Transferor.
“Italian Seller Agent”
has the meaning assigned to the term “Seller Agent” in the Italian RPA.
“Joinder Agreement”
means an agreement substantially in the form of
Exhibit C
(
Form of Joinder Agreement
) pursuant to which a new Purchaser Group is established hereunder pursuant to
Section 11.3(i)
(
New Purchaser Groups
).
“Law”
means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Official Body.
“Liquidation Fee”
means for (a) any Tranche Period of a Conduit Purchaser for which Yield is computed by reference to the CP Rate and a reduction of the Invested Amount of the relevant Tranche is made for any reason or (b) any Tranche Period for which Yield is computed by reference to the Eurocurrency Rate and a reduction of the Invested Amount of the relevant Tranche is made for any reason, in each case, on any day other than the last day of such Tranche Period, the sum of (i) the amount, if any, by which (A) the additional Yield (calculated without taking into account any Liquidation Fee or any shortened duration of such Tranche Period or any Applicable Margin) which would have accrued during such Tranche Period (or, in the case of
clause (a)
above, during the period until the maturity of the underlying commercial paper tranches) on the reductions of the Invested Amount of the Tranche relating to such Tranche Period had such reductions not occurred, exceeds (B) the income, if any, received by the Conduit Purchaser or the Committed Purchaser which holds such Tranche from the investment of the proceeds of such reductions of the Invested Amount, plus (ii) the amount of any costs or expenses incurred in connection with the termination or reduction of any related Currency Hedge Agreements. A certificate as to the amount of any Liquidation Fee (including the computation of such amount) shall be submitted by the affected Conduit Purchaser or Committed Purchaser to the Seller and shall be conclusive and binding for all purposes, absent manifest error.
“Liquidity Agreement”
means each of the liquidity facility agreements entered into between each Conduit Purchaser and its related Committed Purchaser or other financial institution.
“Liquidity Banks”
means each of the Committed Purchasers and other financial institutions providing Liquidity Funding to a Conduit Purchaser pursuant to a Liquidity Agreement.
“Liquidity Commitment”
means, as to each Liquidity Bank, its commitment under its related Liquidity Agreement.
“Liquidity Funding”
means a purchase or funding by any Liquidity Bank pursuant to its Liquidity Commitment of all or any portion of the Aggregate Invested Amount from a Conduit Purchaser.
29
“Local Business Day”
means, with respect to any Originator or Sub-Servicer, any day excluding Saturday, Sunday and any day on which banks in London, Amsterdam or New York or the jurisdiction under the Laws of which such Originator or Sub-Servicer is organized are authorized or required by law to close, and, when used with respect to the determination of any Yield Rate for any currency, any day which is also a day for trading by and between banks in deposits in such currency in the London, European or other applicable interbank market and, when used with respect to the determination of the CP Rate, any day which is also a day when The Depository Trust Company, Euroclear Bank S.A./N.V., as operator of the Euroclear system and Clearstream Banking, société anonyme, Luxembourg, as applicable, are open for trading.
“Local Currency”
means any Approved Currency other than U.S. Dollars.
“Loss Horizon Ratio”
means, as of any Monthly Reporting Date and continuing until (but not including) the next Monthly Reporting Date, the amount equal to (a) the aggregate amount of all sales (in U.S. Dollars or the Dollar Equivalent) which gave rise to Portfolio Receivables that were generated during the prior 4 Calculation Periods (where the Portfolio Receivables have weighted average payment terms of less than or equal to 30 days) or 4.25 Calculation Periods (where the Portfolio Receivables have weighted average payment terms of greater than 30 days but less than or equal to 36 days) divided by (b) the Net Eligible Receivables Balance as of the end of the Calculation Period immediately preceding such earlier Monthly Reporting Date.
“Loss Reserve Floor”
means, at any time, the percentage not less than 10.0% and not greater than 15.0% specified by the Master Servicer in the most recent Portfolio Report.
“Loss Reserve Ratio”
means, as of any Monthly Reporting Date and continuing until (but not including) the next Monthly Reporting Date, an amount (expressed as a percentage) that is calculated as follows:
LRR = SF x LR x LHR
where:
|
LRR
|
=
|
Loss Reserve Ratio;
|
|
|
|
|
|
SF
|
=
|
the Stress Factor;
|
|
|
|
|
|
LR
|
=
|
the “Loss Ratio”, defined as the highest three-month rolling average Default Ratio that occurred during the period of 12 consecutive Calculation Periods immediately preceding such earlier Monthly Reporting Date; and
|
|
|
|
|
|
LHR
|
=
|
the Loss Horizon Ratio.
|
“
Majority Committed Purchasers
” means Committed Purchasers representing more than 51% of the then outstanding Aggregate Commitment or, if the Aggregate Commitments have been reduced to zero, Committed Purchasers that represented
30
more than 51% of the Aggregate Commitment immediately prior to such termination;
provided
that, subject to the terms of the relevant Program Support Agreement, so long as any Conduit Purchaser in any Purchaser Group holds any Investments hereunder, the Committed Purchasers in such Purchaser Group shall give any vote or direction hereunder only with the consent or at the direction of the related Purchaser Agent on behalf of such Conduit Purchaser.
“Mandatory Cost Rate”
has the meaning specified in
Schedule 7
(
Mandatory Cost Rate
).
“Master Servicer”
means at any time the Person then authorized pursuant to
Section 2.1
(
Designation of Servicer; Power of Attorney
) of the Servicing Agreement to administer and collect the Receivables.
“Material Adverse Effect”
means, with respect to any event or circumstance or any Person, a material adverse effect, individually or in the aggregate with other events or circumstances, on: (a) the business, condition (financial or otherwise), prospects, operations or assets of a Transaction Party; (b) the ability of any Transaction Party to perform any of its obligations under any Transaction Document to which it is a party or the ability of any Secured Party to exercise any rights or remedies under any Transaction Document; (c) the legality, validity or enforceability of any Transaction Document to which any Transaction Party is a party; (d) the status, existence, perfection or priority of the rights, title and interest of the Seller, any Intermediate Transferor, the Administrative Agent or any Secured Party in and to the Portfolio Receivables, Collections or Related Security related thereto or any Facility Account or any other Collateral (taken as a whole); or (e) the validity, enforceability or collectibility (if applicable) of all or any material portion of the Portfolio Receivables, Collections or Related Security related thereto or any other Collateral.
“Monthly Report”
means a report substantially in the form of, and containing the information described in,
Exhibit A-1
(
Form of Monthly Report
) to the Servicing Agreement duly completed and furnished by the Master Servicer pursuant to
Section 2.3
(
Reporting requirements
) of the Servicing Agreement and containing the certification of the Master Servicer.
“Monthly Reporting Date”
means the fourth Business Day prior to each Settlement Date.
“Moody’s”
means Moody’s Investors Service, Inc.
“Net Eligible Receivables Balance”
means at any time the Dollar Equivalent of an amount equal to:
(a)
the Total Eligible Receivables Balance at such time, minus
(c)
the Concentration Amount at such time.
“Obligor”
means, with respect to any Receivable, each Person obligated to make payments in respect of such Receivable pursuant to a Contract.
31
“Obligor Payables”
means, with respect to any Obligor at any date of determination, the sum of the aggregate payables by the Transaction Parties to such Obligor at such time and the aggregate swap or hedge exposure of the Transaction Parties to such Obligor at such time.
“Official Body”
means any government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of any such government or political subdivision, or any court, tribunal, grand jury or arbitrator, or any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, or any accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles.
“Organizational Documents”
of any Person means its memorandum and articles of association, articles or certificate of incorporation and by laws, limited liability agreement, partnership agreement or other comparable charter or organizational documents as amended from time to time.
“Originator”
means any Canadian Originator, German Originator, Hungarian Originator, Italian Originator, Portuguese Originator, Spanish Originator or U.S. Originator.
“Originator Sale Agreement”
means any of the Canadian RPA, the German RPA, the Hungarian RPA, the Italian RPA, the Portuguese RPA, the Spanish RPA and the U.S. RPA.
“Other Taxes”
means any and all present or future stamp or documentary taxes or any other excise, sales, goods and services or transfer taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, any Transaction Document, in each case, other than Excluded Taxes.
“Outstanding Balance”
means, with respect to any Receivable at any time, the then outstanding principal amount thereof (in U.S. Dollars or the Dollar Equivalent), excluding any Finance Charges related thereto.
“Outstanding Receivables Report”
means a report furnished by the Master Servicer pursuant to
Section 2.3
(
Reporting requirements
) of the Servicing Agreement substantially in the form attached as
Exhibit A-3
(
Form of Outstanding Receivables Report
) to the Servicing Agreement.
“Participant”
has the meaning specified in
Section 11.3(f)
(
Participations
).
“Participating Member States”
means any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
32
“Performance Undertaking”
means the Performance and Indemnity Agreement, dated the Closing Date, issued by the Performance Undertaking Provider in favor of, among others, the Seller, the Administrative Agent and the Secured Parties.
“Performance Undertaking Provider”
means Bunge Limited.
“Permitted Adverse Claim”
means (a) any Adverse Claim created under the Security Documents or the other Transaction Documents, (b) any Adverse Claim in respect of taxes, assessments or other governmental charges or levies not yet due and payable or, in the case of any Transaction Party, the validity of which are being contested by such Transaction Party in good faith by appropriate proceedings and with respect to which appropriate reserves have been established in conformity with GAAP by such Transaction Party, (c) any Adverse Claim in respect of any Receivable which will be released on or prior to the sale or transfer (or purported sale or transfer) of such Receivable under an Originator Sale Agreement, (d) with respect to any Facility Account, any Adverse Claim of the bank or other financial institution at which such Facility Account is maintained and that arose in the ordinary course of business between the relevant account holder and such bank or other financial institution solely pursuant to the related account agreement (i.e., account fees, returned checks, and similar amounts) and not from any other relationship between the relevant account holder and such bank or other financial institution, and (e) any Adverse Claim resulting from any judgment or award, the time for the appeal or petition for rehearing of which shall not have expired, or in respect of which such Person shall at any time in good faith be prosecuting an appeal or proceeding for a review and with respect to which adequate reserves for losses or other appropriate revisions are being maintained in accordance with GAAP.
“Permitted Investments”
means, with respect to any Seller Operating Account, any of the following investments denominated and payable solely in the Approved Currency for which such Seller Operating Account is maintained: (a) readily marketable debt securities issued by, or the full and timely payment of which is guaranteed by the full faith and credit of, the central government of any Approved Originator Jurisdiction, (b) insured demand deposits, time deposits, term deposits and certificates of deposit of any Eligible Account Bank that is organized under the laws of an Approved Originator Jurisdiction, (c) repurchase obligations with a term of not more than 45 days for underlying securities of the types described in
clause (a)
above entered into with a bank meeting the qualifications described in
clause (b)
above, (d) money market funds rated in the highest ratings category by each of Moody’s and S&P (which rating, in the case of S&P, shall be AAAm or AAAmg and shall not have the “r” symbol attached to such rating and, in the case of Moody’s “P-1” or “Aaa” and “MR1+”), (e) commercial paper of any corporation incorporated under the laws of an Approved Originator Jurisdiction or any political subdivision thereof, provided that such commercial paper is rated at least A-1 (and without any “r” symbol attached to any such rating) by S&P and at least Prime-1 by Moody’s, and (f) cash.
“Person”
means an individual, partnership, corporation, business trust, limited liability company, joint stock company, trust, unincorporated association, joint venture, Official Body or any other entity.
33
“
Pooling Agreement
” means that certain Fifth Amended and Restated Pooling Agreement, dated as of June 28, 2004, among Bunge Funding Inc., Bunge Management Services, Inc. and The Bank of New York Mellon.
“Portfolio”
has the meaning specified in
Section 2.1(a)
(
The Purchases)
.
“
Portfolio Event
” means the occurrence of any of the following:
(a)
as at the end of any Calculation Period, the three-month rolling average Dilution Ratio exceeds 2.5%;
(b)
as at the end of any Calculation Period, the three-month rolling average Write-Off Ratio exceeds 1.0%;
(c)
as at the end of any Calculation Period, the three-month rolling average Delinquency Ratio exceeds 2.0%;
(d)
as of any Monthly Reporting Date, Days Sales Outstanding shall exceed 45 days; or
(e)
the occurrence of any event or circumstance which has a Material Adverse Effect on a Transaction Party.
“Portfolio Receivable”
means any Receivable (other than a Receivable that has been repurchased or retransferred to an Originator or Intermediate Transferor pursuant to, and in accordance with, the Transaction Documents) (a) which has been sold and/or otherwise assigned (or purported to be sold and/or otherwise assigned) by an Originator to a Seller Party pursuant to an Originator Sale Agreement, and (b) if such Seller Party is other than the Seller, which has been sold or and/or otherwise assigned (or purported to be sold and/or otherwise assigned) by such Seller Party to the Seller, in each case, pursuant to an Intermediate Transfer Agreement. For the avoidance of doubt, any Receivable repurchased or retransferred to an Originator or Intermediate Transferor shall, in accordance with the relevant Transaction Document, be released from the lien of this Agreement and no longer included in the Collateral.
“Portfolio Report”
means any Monthly Report or Weekly Report.
“Portuguese Account Security Agreement”
has the meaning specified in the Portuguese RPA.
“Portuguese Collection Account”
means any account set forth on
Schedule 5
(
Facility Accounts and Account Banks
) hereto under the heading “Portuguese Collection Accounts”, as such Schedule may be amended from time to time in accordance herewith.
“Portuguese Collection Account Bank”
means any bank or other financial institution set forth on
Schedule 5
(
Facility Accounts and Account Banks
) under the heading “Portuguese Collection Account Banks”, as such Schedule may be amended from time to time in accordance herewith.
“Portuguese Originator”
has the meaning assigned to the term “Seller” in the Portuguese RPA.
34
“Portuguese RPA”
means the Portuguese Receivables Purchase Agreement, dated the Closing Date, among the Portuguese Originator(s), the Portuguese Seller Agent, the Seller and the Administrative Agent.
“Portuguese Seller Agent”
has the meaning assigned to the term “Seller Agent” in the Portuguese RPA.
“Potential Facility Termination Event”
means an event that but for notice or lapse of time or both would constitute a Facility Termination Event or a Seller Termination Event.
“Potential Servicer Default”
means an event that but for notice or lapse of time or both would constitute a Servicer Default.
“Prime Rate”
means, with respect to any Tranche or other amount denominated in U.S. Dollars and any date, the rate of interest per annum equal to the “U.S. Prime Rate” as reported from time to time in the Money Rates Section of the Eastern Edition of
The Wall Street Journal
or, if
The Wall Street Journal
shall cease publication or cease publishing the “U.S. Prime Rate” on a regular basis, such other regularly published average prime rate applicable to commercial banks as is acceptable to the Administrative Agent in its discretion.
“Program Manager”
means, with respect to a Conduit Purchaser, the Person (if any) identified on
Schedule 1
(
Purchaser Groups
) as the “Program Manager” for such Conduit Purchaser.
“Program Support Agreement”
means and includes any agreement entered into by any Program Support Provider providing for the issuance of one or more letters of credit for the account of a Conduit Purchaser, the issuance of one or more surety bonds for which such Conduit Purchaser is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, the sale by such Conduit Purchaser to any Program Support Provider of the Investments funded by such Conduit Purchaser (or portions thereof or participations therein) and/or the making of loans and/or other extensions of credit to such Conduit Purchaser in connection with such Conduit Purchaser’s commercial paper program, together with any letter of credit, surety bond, swap or other instrument issued thereunder.
“Program Support Provider”
means, with respect to any Conduit Purchaser, each Committed Purchaser with respect to such Conduit Purchaser and any other Person now or hereafter extending credit, or having a commitment to extend credit to or for the account of, or to make purchases from, such Conduit Purchaser or issuing a letter of credit, surety bond, swap or other instrument to support any obligations arising under or in connection with such Conduit Purchaser’s securitization program.
“Pro Rata Share”
means, for any Committed Purchaser in any Purchaser Group (a) the Commitment of such Committed Purchaser, divided by the sum of the Commitments of all Committed Purchasers in such Purchaser Group and (b) after the Commitments of all the Committed Purchasers in such Purchaser Group have been terminated, the outstanding Invested Amount (in U.S. Dollars or the Dollar Equivalent) of the Investments funded by such Committed Purchaser, divided by the
35
outstanding Invested Amount (in U.S. Dollars or the Dollar Equivalent) of the Investments funded by all the Committed Purchasers in such Purchaser Group.
“Purchase Price”
has the meaning specified in the applicable Originator Sale Agreement or Intermediate Transfer Agreement.
“Purchaser Agent”
means, with respect to any Purchaser Group, the Person identified as the “Purchaser Agent” for such Purchaser Group on Schedule 1 together with any successor thereto in such capacity appointed pursuant to
Section 9
(
The Purchaser Agents
) and any Person that becomes a Purchaser Agent for a new Purchaser Group pursuant to
Section 11.3(i)
(
New Purchaser Groups
).
“Purchaser Agent’s Account”
means, with respect to any Purchaser Agent, the account of the Purchaser Agent identified on
Schedule 1
(
Purchaser Groups
), or such other account as such Purchaser Agent may designate in writing to the Seller, the Master Servicer and the Administrative Agent.
“Purchaser Fee Letter”
has the meaning specified in
Section 2.4(b)
(
Yield and Fees
).
“Purchaser Group”
means a group consisting of one or more Conduit Purchasers, one or more Committed Purchasers and a Purchaser Agent for such Purchasers, as specified on
Schedule 1
(
Purchaser Groups
) or in the Joinder Agreement pursuant to which such Purchaser Group is established pursuant to
Section 11.3(i)
(
New Purchaser Groups
).
“Purchaser Group Limit”
means, with respect to any Purchaser Group, the aggregate Commitment(s) of the Committed Purchaser(s) in such Purchaser Group.
“Purchaser Group Percentage”
means, for any Purchaser Group, the percentage equivalent of a fraction (expressed out to five decimal places), the numerator of which is the aggregate Commitments of all Committed Purchasers in such Purchaser Group and the denominator of which is the Aggregate Commitment.
“Purchasers”
means, collectively, the Committed Purchasers and the Conduit Purchasers.
“Quotation Day”
means, with respect to any Investment and any Tranche Period, the day on which it is market practice in the relevant interbank market for prime banks to give quotations for deposits in the currency of such Investment for delivery on the first day of such Tranche Period, as determined by the Administrative Agent. If such quotations would normally be given by prime banks on more than one day, the Quotation Day will be the last of such days.
“Rabobank International”
means Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.
“Rate Type”
means the Adjusted Eurocurrency Rate, the Base Rate or the CP Rate.
“Rating Agencies”
shall mean on any date of determination the rating agencies then rating Commercial Paper at the request of any Conduit Purchaser.
36
“Rating Agency Condition”
means, with respect to any event or circumstance, that each Rating Agency then rating the Commercial Paper of any Conduit Purchaser shall have confirmed to such Conduit Purchaser that such event or circumstance will not cause its rating of such Conduit Purchaser’s Commercial Paper to be reduced or withdrawn.
“Receivable”
means any indebtedness and other payment obligations of any Obligor resulting from the provision or sale of merchandise, goods or services by an Originator, including the right to payment of any interest or Finance Charges, value added taxes or sales taxes, late payment charges, delinquency charges, extension or collection fees.
“Records”
means, with respect to any Receivable, all Contracts, purchase orders, invoices, customer lists, credit files and other agreements, documents, books, records (including records relating to billing and collection matters) and other media for the storage of information including tapes, disks, punch cards, computer software and databases (including such licenses, sublicenses and/or assignments of contracts as may be required for the use of services and computer software that relate to the servicing of the Receivables) and related property with respect to the Receivable, the Related Security or the related Obligors.
“Register”
has the meaning specified in
Section 11.3(d)
(
Register
).
“Reinvestment”
has the meaning specified in
Section 2.6(a)
(
Collections prior to Facility Termination Date
).
“Related Security”
means, with respect to any Receivable, all of the applicable Originator’s, applicable Intermediate Transferor’s or Seller’s, as applicable, right, title and interest in, to and under:
(a)
all security interests, hypothecs, reservations of ownership, liens or other Adverse Claims and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements, registrations, hypothecs, charges or other similar filings or instruments against an Obligor and all security agreements describing any collateral securing such Receivable;
(b)
all guarantees, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise (
provided
that it is understood and agreed that notwithstanding anything herein or in any other Transaction Document to the contrary (i) no Transaction Party shall be required to take any action to cause any such guarantee, insurance or other agreement or arrangement to be transferred to or for the benefit of, or otherwise assigned, to the Administrative Agent or any Purchaser to the extent any such transfer or assignment requires the consent of any Person (other than a Transaction Party) or is prohibited by applicable Law, and (ii) any amounts received by any Transaction Party in respect of, or otherwise in connection with, such guarantee, insurance or other agreement or arrangement shall constitute “Related Security” for all purposes of the
37
Transaction Documents, including any obligation of any Transaction Party under the Transaction Documents to promptly deposit amounts received in respect of Collections to a Facility Account);
(c)
all Records related to such Receivable;
(d)
any and all goods (including Returned Goods, if any) and documentation or title evidencing the shipment or storage of any goods, the sale of which by the applicable Originator gave rise to such Receivable;
(e)
all of the Seller’s and the applicable Intermediate Transferor’s right, title and interest in, to and under the Transaction Documents; and
(f)
all Collections and proceeds of the foregoing.
“Release”
has the meaning specified in
Section 2.6(e)(vi)
(
Collections prior to Facility Termination Date
).
“Reporting Date”
means any date on which a Portfolio Report is required to be delivered by the Master Servicer pursuant to
Section 2.3
(
Reporting requirements
) of the Servicing Agreement.
“Required Committed Purchasers”
means Committed Purchasers representing more than 66 2/3% of the then outstanding Aggregate Commitment or, if the Aggregate Commitments have been reduced to zero, Committed Purchasers that represented more than 66 2/3% of the Aggregate Commitment immediately prior to such termination;
provided
that, subject to the terms of the relevant Program Support Agreement, so long as any Conduit Purchaser in any Purchaser Group holds any Investments hereunder, the Committed Purchasers in such Purchaser Group shall give any vote or direction hereunder only with the consent or at the direction of the related Purchaser Agent on behalf of such Conduit Purchaser.
“Reserve Percentage”
means the sum of (a) the greater of (i) the sum of (x) the Loss Reserve Ratio and (y) the Dilution Reserve Ratio, and (ii) the Floor Reserve Percentage; and (b) the Yield Reserve Ratio.
“Responsible Officer”
means, with respect to any Transaction Party, the president, any vice president, a secretary, a director, any duly authorized officer, the chief financial officer, the treasurer, the comptroller, the assistant comptroller, the assistant treasurer, assistant secretary or, to the extent any of the foregoing are not recognized in a jurisdiction, the equivalent thereof in such jurisdiction, of such Transaction Party, or any other officer of such Transaction Party customarily performing functions similar to those performed by any of the above designated officers.
“Restricted Payments”
has the meaning specified in
Section 5.1(n)
(
Distributions, etc.
).
“Returned Goods”
means all right, title and interest in and to returned, repossessed or foreclosed goods and/or merchandise the sale of which gave rise to a Receivable;
provided
that such goods shall no longer constitute Returned Goods after a Deemed
38
Collection has been received with respect to the full Unpaid Balance of the related Receivables.
“
RIBA Advance
” means any amount paid by an Italian Originator to an Italian Collection Account Bank in respect of any amount credited by such Italian Collection Account Bank to an Italian Collection Account in respect of a payment to be made by an Obligor of a Portfolio Receivable via the RIBA system and in respect of which such Obligor subsequently defaulted in the making such of payment via the RIBA system.
“
RIBA Dilution
” means any reduction in the funds on deposit in any Italian Collection Account by an Italian Collection Account Bank in respect of any amount credited or otherwise advanced by such bank or financial institution in respect of a payment to be made by an Obligor of a Portfolio Receivable via the RIBA system and in respect of which such Obligor subsequently defaulted in the making of such payment via the RIBA system.
“
Rule 17g-5
” means Rule 17g-5 under the U.S. Securities Exchange Act of 1934 as such may be amended from time to time, and subject to such clarification and interpretation as has been provided by the Securities and Exchange Commission in the adopting release (Amendments to Rules for Nationally Recognized Statistical Rating Organizations, Exchange Act Release No. 34-61050, 74 Fed. Reg. 63,832, 63,865 (Dec. 4, 2009)) and subject to such clarification and interpretation as may be provided by the Securities and Exchange Commission or its staff from time to time.
“S&P”
means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC Business.
“Scheduled Commitment Facility Termination Date”
means, with respect to any Committed Purchaser, the day falling 364 days after the Closing Date as the same may be extended from time to time pursuant to
Section 2.20
(
Extension of Scheduled Commitment Facility Termination Date
);
provided
that the Scheduled Commitment Facility Termination Date may not be extended beyond June 1, 2016 without the consent of each Purchaser Agent.
“Secured Parties”
means, collectively, the Purchasers, each Agent and each other Indemnified Party.
“Security Documents”
means each Account Security Agreement and each other security agreement, deed of charge or other analogous agreement executed or delivered from time to time by the Seller or any Transaction Party pursuant to, or in connection with, the transactions contemplated by the Transaction Documents.
“Seller”
means Bunge Securitization B.V., a private limited liability company organized under the laws of the Netherlands.
“Seller Event”
means a “Seller Event” under, and as defined in, any Originator Sale Agreement.
39
“Seller Operating Account”
means any account set forth on
Schedule 5
(
Facility Accounts and Account Banks
) under the heading “Seller Operating Accounts”, as such Schedule may be amended from time to time in accordance herewith.
“Seller Operating Account Bank”
means any bank or other financial institution set forth on
Schedule 5
(
Facility Accounts and Account Banks
) under the heading “Seller Operating Account Bank”, as such Schedule may be amended from time to time in accordance herewith.
“Seller Party”
means the Seller or any Intermediate Transferor.
“Seller Payout Date”
means a “Seller Payout Date” under, and as defined in, any Originator Sale Agreement.
“Seller Termination Date”
means the “Termination Date” under, and as defined in, any Originator Sale Agreement.
“Seller Termination Event”
means a “Seller Termination Event” under, and as defined in, any Originator Sale Agreement.
“Servicer Default”
has the meaning specified in
Section 2.9
(
Servicer Default
) of the Servicing Agreement.
“Servicer Parties”
means, collectively, the Master Servicer and the Sub-Servicers.
“Servicing Agreement”
means the Servicing Agreement, dated the Closing Date among the Master Servicer, the Seller, the Italian Intermediate Transferor, the Originators and the Administrative Agent.
“Servicing Fee”
has the meaning specified in
Section 2.10
(
Servicing Fee
) of the Servicing Agreement.
“Servicing Fee Percentage”
means 0.50% per annum or, following a Servicer Default and the appointment of a successor Master Servicer pursuant to, and in accordance with, the Transaction Documents, such other rate per annum as may be reasonably agreed by such successor Master Servicer and the Administrative Agent (with the prior written consent of the Required Committed Purchasers).
“Settlement Date”
means the sixteenth (16
th
) day of each calendar month or, if such day is not a Business Day, the immediately following Business Day; provided, however, that (i) at any time Weekly Reports are required to be delivered by the Master Servicer, the Settlement Date shall be the fourth Business Day following the required date of delivery of the Weekly Report under the Servicing Agreement and (ii) on and after the occurrence of the Facility Termination Date, the Settlement Date shall be each Business Day specified by the Administrative Agent in its sole discretion.
“Settlement Date Investment”
means each Investment on a Settlement Date made by the Purchasers to refinance the Aggregate Invested Amount maturing on such Settlement Date in accordance with
Section 2.1(d)
.
40
“Solvent”
means (a) with respect to any
German Originator, that such
entity is neither unable to pay its debts as they fall due (
Zahlungsunfähigkeit
), nor is over indebted (
Überschuldung
), nor is threatened with insolvency (
drohende Zahlungsunfähigkeit
) nor has commenced negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or, for any of the reasons set out in §§ 17 to 19 (inclusive) of the German Insolvency Code
(Insolvenzordnung)
, and (b) 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 salable 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 such 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 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.
“Spanish Account Security Agreement”
has the meaning specified in the Spanish RPA.
“Spanish Collection Account”
means any account set forth on
Schedule 5
(
Facility Accounts and Account Banks
) hereto under the heading “Spanish Collection Accounts”, as such Schedule may be amended from time to time in accordance herewith.
“Spanish Collection Account Bank”
means any bank or other financial institution set forth on
Schedule 5
(
Facility Accounts and Account Banks
) under the heading “Spanish Collection Account Banks”, as such Schedule may be amended from time to time in accordance herewith.
“Spanish Originator”
has the meaning assigned to the term “Seller” in the Spanish RPA.
“Spanish RPA”
means the Spanish Receivables Purchase Agreement, dated the Closing Date, among the Spanish Originator(s), the Spanish Seller Agent, the Seller and the Administrative Agent.
“Spanish Seller Agent”
has the meaning assigned to the term “Seller Agent” in the Spanish RPA.
“Specified Deemed Collection Sections”
means
Section 2.8
(
Deemed Collections; application of payment
s) of this Agreement and
Section 2.13
(
Deemed Collections
) of the Servicing Agreement.
“Specified Seller Termination Event”
means any Seller Termination Event other than the one described in
Section 7.1(h)
of the applicable Originator Sale Agreement.
41
“Spot Rate”
means on any day, for the purpose of determining the Dollar Equivalent of any Local Currency, the rate at which such Local Currency may be exchanged into Dollars, at the end of the day London time, on such day on the Bloomberg or Reuters screen (Reuters Identification Code (RIC): FXBENCH) for such currency. In the event that such rate does not appear on either the Bloomberg or Reuters screen, the Spot Rate shall be determined by reference to the euro foreign exchange reference rate displayed on the appropriate page of the website of the European Central Bank (the URL of such page as at the date of this Agreement being http://www.ecb.int/stats/exchange/eurofxref/html/index.en.html);
provided
that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
“Statutory Reserves”
means, with respect to any Committed Purchaser and any Investment made in any currency (other than U.S. Dollars), any currency, maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Bank of England, the Financial Services Authority, the European Central Bank or other Official Body for any category of deposits or liabilities customarily used to fund loans in such currency or by reference to which interest rates applicable to loans in such currency are determined, in each case expressed as a percentage of the Invested Amount in respect of such Investment, as determined by the Administrative Agent. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.
“Stress Factor”
means 2.25.
“Structuring Agent”
means Rabobank International.
“Sub-Servicer”
has the meaning specified in
Section 2.5
(
Sub-Servicers
) of the Servicing Agreement.
“Subordinated Lender”
has the meaning specified in the Subordinated Loan Agreement.
“Subordinated Loan”
has the meaning specified in the Subordinated Loan Agreement.
“Subordinated Loan Agreement”
means the Subordinated Loan Agreement, dated the date hereof, between the Seller, the Administrative Agent, the Master Servicer and the Subordinated Lender.
“Subordinated Loan Investment Request”
has the meaning specified in the Subordinated Loan Agreement.
“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
42
are at the time owned directly or indirectly through one or more intermediaries, or both, by such Person.
“TARGET2”
means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system number two.
“TARGET Day”
means any day on which TARGET2 (or any replacement infrastructure) is open for the settlement of payments in Euro.
“Taxes”
means any and all present or future taxes (including social security contributions and value added taxes), levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges), withholdings or other charges of any nature whatsoever imposed by any Official Body.
“Total Eligible Receivables Balance”
means at any time the Dollar Equivalent of an amount equal to:
(a)
the aggregate Outstanding Balance of Portfolio Receivables that qualify as Eligible Receivables at such time, minus
(b)
the Credit Note Reduction at such time, minus
(c)
if the Applicable S&P Rating is below “BBB-” (or withdrawn or suspended) and the Applicable Moody’s Rating is below “Baa3” (or withdrawn or suspended), the aggregate Obligor Payables at such time, minus
(d)
the Accrual Reserve at such time.
“Tranche”
has the meaning specified in
Section 2.10
(
Tranches
).
“Tranche Period”
means, with respect to any Tranche (a) initially the period commencing on (and including) the applicable Investment Date and ending on (and excluding) the next Settlement
Date
and (b) thereafter, each successive period commencing on (and including) the last day of the immediately preceding Tranche Period for such Tranche and ending on (and excluding) the next succeeding Settlement Date;
provided
that:
(i)
any Tranche Period which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day (
provided
that if Yield in respect of such Tranche Period is computed by reference to the Adjusted Eurocurrency Rate, and such Tranche Period would otherwise end on a day which is not a Business Day, and there is no subsequent Business Day in the same calendar month as such day, such Tranche Period shall end on the next preceding Business Day);
(ii)
in the case of any Tranche Period of one day (A) if such Tranche Period is the initial Tranche Period for a Tranche, such Tranche Period shall be the applicable Investment Date, (B) any subsequently occurring Tranche Period which is one day shall, if the immediately preceding Tranche Period is more than one day, be the last day of such immediately preceding Tranche Period and, if the immediately preceding Tranche Period is one day, be the day next following such immediately preceding Tranche Period and (C) if such Tranche
43
Period occurs on a day immediately preceding a day which is not a Business Day, such Tranche Period shall be extended to the next succeeding Business Day;
(iii)
in the case of any Tranche Period for any Tranche which commences before the Facility Termination Date and would otherwise end on a date occurring after the Facility Termination Date, such Tranche Period shall end on the Facility Termination Date and the duration of each Tranche Period which commences on or after the Facility Termination Date shall be as selected by the applicable Purchaser Agent; and
(iv)
any Tranche Period in respect of which Yield is computed by reference to the CP Rate may be terminated at the election of the Purchaser Agent, at any time, in which case the Tranche allocated to such terminated Tranche Period shall be allocated to a new Tranche Period commencing on (and including) the date of such termination and ending on (but excluding) the next Settlement Date, and shall accrue Yield at the Alternate Rate.
“Transaction Documents”
means this Agreement, the Bank Release Agreements, the Intermediate Transfer Agreements, the Originator Sale Agreements, the Servicing Agreement, the Security Documents, the Performance Undertaking, the Subordinated Loan Agreement, the Fee Letters and all other instruments, documents and agreements executed and/or delivered pursuant to or in connection therewith.
“Transaction Parties”
means, collectively, the Seller, each Originator, the Performance Undertaking Provider, the U.S. Intermediate Transferor, the Master Servicer (so long as it is an Originator or an Affiliate thereof), each Sub-Servicer (so long as it is an Originator or an Affiliate thereof) and any Subordinated Lender.
“Transaction Party Obligations”
means all present and future indebtedness and other liabilities and obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Seller or any other Transaction Party in any capacity to the Secured Parties arising under or in connection with this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby, and shall include the Aggregate Invested Amount, Yield accrued and to accrue to maturity with respect to all Tranche Periods at such time, Fees, and all other amounts owed and payable (whether or not due and payable) by the Seller or any other Transaction Party under or in connection with this Agreement or any other Transaction Document (whether in respect of fees, expenses, indemnifications, breakage costs, increased costs or otherwise), including interest, fees and other obligations that accrue after the commencement of any bankruptcy, insolvency or similar proceeding (including any Event of Bankruptcy) with respect to any Transaction Party (in each case whether or not allowed as a claim in such proceeding).
“
Transaction SPV
” means the Seller and the U.S. Intermediate Transferor.
“UCC”
means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction or jurisdictions.
44
“Uncollectible”
means a Portfolio Receivable which is not collectible because of the financial inability of the relevant Obligor to pay such Portfolio Receivable.
“Unpaid Balance”
means, with respect to any Receivable at any time, the unpaid amount of such Receivable at such time, excluding any Finance Charges.
“U.S.”
means the United States of America.
“U.S. Account Security Agreement”
has the meaning specified in the U.S. RPA.
“U.S. Collection Account”
means any account set forth on
Schedule 5
(
Facility Accounts and Account Banks
) hereto under the heading “U.S. Collection Accounts”, as such Schedule may be amended from time to time in accordance herewith.
“U.S. Collection Account Bank”
means any bank or other financial institution set forth on
Schedule 5
(
Facility Accounts and Account Banks
) under the heading “U.S. Collection Account Banks”, as such Schedule may be amended from time to time in accordance herewith.
“U.S. Dollars”
and
“$”
each mean the lawful currency of the United States of America.
“U.S. Intermediate Transfer Agreement”
means the U.S. Intermediate Transfer Agreement, dated the Closing Date, between the U.S. Intermediate Transferor and the Seller.
“U.S. Intermediate Transferor”
means Bunge North America Capital, Inc., a Delaware corporation.
“U.S. Originator”
has the meaning assigned to the term “Seller” in the U.S. RPA.
“U.S. RPA”
means the U.S. Receivables Purchase Agreement, dated the Closing Date, among the U.S. Originator(s), the U.S. Seller Agent and the U.S. Intermediate Transferor.
“U.S. Seller Agent”
has the meaning assigned to the term “Seller Agent” in the U.S. RPA.
“
Voting Stock
” means, with respect to any Person as of any date, 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.
“Weekly Report”
means a report furnished by the Master Servicer pursuant to
Section 2.3
(
Reporting requirements
) of the Servicing Agreement substantially in the form attached as
Exhibit A-2
(
Form of Weekly Report
) to the Servicing Agreement.
“
Write-Off Ratio
” means the ratio (expressed as a percentage) computed as of each Monthly Reporting Date for the immediately preceding Calculation Period by dividing (a) the aggregate amount (in U.S. Dollars or the Dollar Equivalent) of Portfolio Receivables which were written-off as Uncollectible during that Calculation Period, by (b) the Outstanding Balance of Receivables as of the last day of the Calculation Period prior to such immediately preceding Calculation Period.
45
“Yield”
means, for any Tranche and any Tranche Period, the sum of:
(a) for each day during such Tranche Period, the result of the following:
plus
(b) the Liquidation Fee, if any, for such Tranche for such Tranche Period
where:
YR
=
the Yield Rate for such Tranche for such day;
IA
=
the aggregate Invested Amount of such Tranche on such day;
Y
=
(a) in the case of a Tranche denominated in U.S. Dollars accruing interest at the Base Rate, 365 or 366, as applicable, and (b) in the case of any other Tranche, 360 (or, in the event the practice of the relevant interbank market differs, in accordance with such market practice);
provided
that no provision of this Agreement shall require the payment or permit the collection of Yield in excess of the maximum permitted by applicable Law; and
provided
,
further
, that Yield for any Tranche shall not be considered paid by any distribution to the extent that at any time all or a portion of such distribution is rescinded or must otherwise be returned for any reason.
“Yield Rate”
means, with respect to any Tranche for any day, (a) if such Tranche is funded on such day by a Conduit Purchaser through the issuance of Commercial Paper or a Committed Purchaser which is refinanced, directly or indirectly, through the issuance of Commercial Paper, the CP Rate plus the Applicable Margin and (b) otherwise, the Alternate Rate;
provided
that, and notwithstanding anything herein to the contrary, at all times that a Facility Termination Event has occurred and is continuing or following the declaration of the Facility Termination Date following the occurrence of a Portfolio Event, the Yield Rate for all Tranches shall be a rate per annum equal to the Default Rate.
“Yield Reserve Ratio”
means, as of any Monthly Reporting Date and continuing until (but not including) the next Monthly Reporting Date, an amount (expressed as a percentage) that is calculated as follows:
YRR = SF x AR x (DSO/360)
where:
YRR
=
Yield Reserve Ratio;
SF
=
the Stress Factor;
AR
=
the sum of (i) the “Applicable Rate”, defined as the sum of (a) the one-month rate calculated as the weighted average Eurocurrency Rate
46
weighted by the Eurocurrency Tranche sizes as of such Monthly Reporting Date plus (b) the Applicable Margin for Tranches funded with reference to the Eurocurrency Rate, and (ii) the Servicing Fee Percentage; and
DSO
=
the Days Sales Outstanding.
1.2
Other terms
All terms defined directly or by incorporation herein shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Agreement and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined herein, and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under, and shall be construed in accordance with, GAAP; (b) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (c) the words “hereof”, “herein” and “hereunder” and words of similar import refer to this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or such certificate or document); (d) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement (or the certificate or other document in which the reference is made) and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term “including” means “including without limitation”; (f) references to any Law refer to that Law as amended or re-enacted from time to time and include any successor Law; (g) references to any agreement refer to that agreement as from time to time amended, supplemented or novated or as the terms of such agreement are waived or modified in accordance with its terms; (h) references to any Person include that Person’s successors and permitted assigns; (i) references to “set-off” shall include analogous rights under applicable Law, (j) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof; and (k)
where in any Transaction Document there is an obligation to “perfect” a transfer, assignment, charge or other transaction, that shall be construed as an obligation to take all steps necessary in all relevant jurisdictions to make such transfer or other transaction valid as between the transferring parties and any creditor or hypothetical creditor of the transferor, including in any applicable insolvency proceedings.
1.3
Computation of time periods
Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including”, the words “to” and “until” each means “to but excluding”, and the word “within” means “from and excluding a specified date and to and including a later specified date”.
47
2.
AMOUNTS AND TERMS OF THE PURCHASES
2.1
The Purchases
(a)
On the terms and subject to the conditions hereof, the Seller hereby agrees to sell and assign and hereby sells, assigns and transfers to the Administrative Agent (on behalf of the Purchasers), and the Administrative Agent (on behalf of the Purchasers) hereby agrees to purchase and accept and hereby purchases and accepts from the Seller, all Portfolio Receivables, together with all Related Security and Collections and all proceeds of or payments in respect of any and all of the foregoing, in each case existing on the date of the initial Incremental Investment hereunder or thereafter arising and acquired by the Seller from time to time prior to the Facility Termination Date (in the aggregate, the
“Portfolio”
). The Administrative Agent shall hold the Portfolio on behalf of the Purchasers in each Purchaser Group in accordance with the respective portions of the Portfolio funded by that Purchaser Group from time to time. For the avoidance of doubt, the Administrative Agent shall have no right, title or interest in the Portfolio other than to hold the Portfolio for the benefit of each individual Purchaser in accordance to such Purchaser’s pro rata share, calculated as such Purchaser’s Invested Amount as a percentage of the Aggregate Invested Amount. The assignment and transfer is made to the Administrative Agent (on behalf of the Purchasers) solely as an administrative convenience.
(b)
On the terms and subject to the conditions hereof (including
Section 3
(
Conditions of Purchases
)), on the Initial Purchase Date and thereafter from time to time prior to the Facility Termination Date, each Conduit Purchaser may in its sole discretion and each Committed Purchaser shall, if the Conduit Purchaser in its related Purchaser Group elects not to do so, make Incremental Investments in the Portfolio to purchase Receivables and all Related Security and Collections, in an amount in any Approved Currency specified by the Seller (or the Master Servicer on behalf of the Seller) in accordance with
Section 2.2(a)
, for each Purchaser Group, equal to its Purchaser Group Percentage of each Incremental Investment requested by the Seller pursuant to
Section 2.2
(
Purchase procedures
);
provided
that, after giving effect to such Incremental Investments:
(i)
the aggregate Invested Amount for any Purchaser Group shall not exceed its Purchaser Group Limit; and
(ii)
the Aggregate Invested Amount shall not exceed the lesser of (A) the Facility Limit and (B) the Funding Base.
(c)
The foregoing sale, assignment and transfer does not constitute and is not intended to result in the creation, or an assumption by the Administrative Agent, any Purchaser Agent or any Purchaser, of any obligation of the Seller, any Originator, the Master Servicer or any other Person under or in connection with the Portfolio, all of which shall remain the obligations and liabilities of the Seller and the Master Servicer, as applicable.
48
(d)
The Seller, the Agents and the Purchasers intend that the sale, assignment and transfer of the Portfolio to the Administrative Agent (on behalf of the Purchasers) hereunder shall be treated as a sale for all purposes, other than tax purposes as further described below. If, notwithstanding the intent of the parties, such sale, assignment and transfer of the Portfolio to the Administrative Agent (on behalf of the Purchasers) is not treated as a sale for all purposes, other than tax purposes as further described below, such sale, assignment and transfer of the Portfolio shall be treated as the grant of, and the Seller hereby does grant, a security interest in all right, title and interest of the Seller in, to and under (i) the Portfolio, (ii) all Transaction Documents, all Related Security and all Account Security Agreements, (iii) all other Collateral and (iv) all accounts, general intangibles, chattel paper, instruments, securities, financial assets, investment property, commercial tort claims, deposit accounts, documents, goods and letter-of-credit rights, supporting obligations, securities entitlements (in each case as defined in the UCC) and any and all other personal property and assets of any type or nature in which it has an interest, and all proceeds of the foregoing, in each case, to secure the payment and performance of the Seller’s obligations to the Administrative Agent (on behalf of the Purchasers) and the other Secured Parties hereunder and under the other Transaction Documents or as may be determined in connection therewith by applicable Law. For all federal, and applicable state and local, income and franchise tax purposes, the Seller and the Agents agree, and each Purchaser by acquiring an Investment agrees, to treat and report each Investment as indebtedness issued by the Seller. The parties hereto agree that each Investment shall be due and payable to the holder thereof on each Settlement Date. Each Conduit Purchaser that is a U.S. Person, or that otherwise is subject to U.S. federal income taxation on a net basis, which is funding all or any portion of its Investment by the issuance of Commercial Paper in an Approved Currency other than U.S. Dollars shall match fund such Commercial Paper (and any related hedging arrangements) to correspond to each Tranche Period.
On each Settlement Date prior to the Facility Termination Date (upon the terms and subject to the conditions hereof), each Conduit Purchaser may make a Settlement Date Investment in respect of its then-current outstanding Investment (and, to the extent such Conduit Purchaser decides not to make a Settlement Date Investment, its related Committed Purchasers shall make such Settlement Date Investment) in an amount equal to (and in repayment of) all then-current outstanding Investments (it being understood and agreed by the parties hereto that each such Settlement Date Investment shall constitute a new Investment by the relevant Purchaser hereunder). If the Aggregate Invested Amount is to decrease on a Settlement Date, each Settlement Date Investment made by the Purchasers on such date shall be reduced by their respective pro rata shares of the reduced Aggregate Invested Amount (and the reduction in the Aggregate Invested Amount shall be paid to the applicable Purchasers in the relevant Approved Currency in accordance with
Section 2.6(f)
hereof). If the Aggregate Invested Amount is to increase on a Settlement Date, each Settlement Date Investment by the Purchasers made on such date shall be increased by their respective pro rata shares of the increased Aggregate Invested Amount (i.e., through an Incremental Investment in accordance with
49
the terms hereof). The Settlement Date Investments, any reductions in the Aggregate Invested Amount and any Incremental Investment shall all be set forth in a single Investment Request with respect to each Settlement Date, which Investment Request shall be delivered for each Settlement Date, regardless of whether the Aggregate Invested Amount is changing on such Settlement Date.
(e)
If there is more than one Committed Purchaser in a Purchaser Group, each such Committed Purchaser shall purchase its Pro Rata Share of such Purchaser Group’s Purchaser Group Percentage of each Investment, to the extent not purchased by the related Conduit Purchaser. In the event that one or more of such Committed Purchasers in any such Purchaser Group fails to purchase such Pro Rata Share as required hereunder, each of the other non-defaulting Committed Purchasers in such Purchaser Group shall purchase their Pro Rata Share (calculated without giving effect to such defaulting Committed Purchaser’s Commitment) of such Purchase Group’s Purchaser Group Percentage of such Investment subject to the other terms and conditions hereof (including
Section 2.2(c)(iii)
(
Committed Purchaser’s Commitment
)).
(f)
Each Incremental Investment in the Portfolio hereunder shall be in a minimum Invested Amount equal to such amount as will ensure that after giving effect to such Incremental Investment (A) no Purchaser Group’s Purchaser Group Percentage of the Aggregate Invested Amount (including the Dollar Equivalent of all Investments to be made on the applicable Investment Date in each Approved Currency) would be less than $10,000,000 and (B) each Purchaser Group’s Purchaser Group Percentage of the Aggregate Invested Amount would be an integral multiple of $100,000 or, in the case of any Investment denominated in a Local Currency, 100,000 units of such Local Currency.
2.2
Purchase procedures
(a)
Investment Request.
(i)
The Seller shall request an Incremental Investment hereunder by submitting (or causing the Master Servicer to execute and submit on behalf of the Seller) to the Administrative Agent a written notice, substantially in the form of
Exhibit B
(
Form of Investment Request
) (each, an
“Investment Request”
), prior to the end of day (London time) on any Monthly Reporting Date (and the Administrative Agent shall forward such Investment Request to each Purchaser Agent by 12:00 noon (London time) on the following Business Day), requesting an Incremental Investment on the immediately following Settlement Date (each, an
“Investment Date”
), or such other times agreed upon by the Seller, the Master Servicer and the Agents.
(ii)
Each Investment Request shall, among other things (A) specify (I) the desired Approved Currencies for the requested Incremental Investment, determined in accordance with
Section 2.2(e)
, (II) for each such Approved Currency, the amount of the requested Incremental Investment and the Spot Rate used in determining the Dollar
50
Equivalent thereof, and (III) the Aggregate Invested Amount after giving effect to such Incremental Investment and (B) certify that, after giving effect to the proposed Incremental Investment, the Aggregate Invested Amount shall not exceed the lesser of (x) the Facility Limit and (y) the Funding Base. Each Investment Request shall be irrevocable and binding on the Seller.
(b)
Conduit Purchaser Acceptance or Rejection.
Each Purchaser Agent will promptly notify its related Conduit Purchasers of its receipt of any Investment Request. If a Conduit Purchaser rejects an Investment Request, the related Purchaser Agent shall promptly notify the related Committed Purchasers of such rejection.
(c)
Committed Purchaser’s Commitment.
(i)
If a Conduit Purchaser rejects an Investment Request, any Incremental Investment requested by the Seller in such Investment Request that would otherwise be made by such Conduit Purchaser shall be made by the related Committed Purchasers in its Purchaser Group on a pro rata basis in accordance with their respective Pro Rata Shares of such Incremental Investment.
(ii)
The obligations of any Committed Purchaser to make Incremental Investments hereunder are several from the obligations of any other Committed Purchasers (whether or not in the same Purchaser Group). The failure of any Committed Purchaser to make Incremental Investments hereunder shall not release the obligations of any other Committed Purchaser (whether or not in the same Purchaser Group) to make Incremental Investments hereunder, but no Committed Purchaser shall be responsible for the failure of any other Committed Purchaser to make any Incremental Investment hereunder other than as described in
Section 2.1(e)
(
The Purchases
).
(iii)
Notwithstanding anything herein to the contrary, a Committed Purchaser shall not be obligated to fund any Incremental Investment at any time on or after the Facility Termination Date, at any time a Facility Event exists or would exist after making such Incremental Investment, or if, after giving effect thereto, the Dollar Equivalent of the aggregate outstanding Invested Amount of the Incremental Investment funded by such Committed Purchaser hereunder would exceed an amount equal to (A) such Committed Purchaser’s Commitment less (B) the Dollar Equivalent of such Committed Purchaser’s ratable share of the aggregate outstanding Invested Amount held by the Conduit Purchaser in such Committed Purchaser’s Purchaser Group.
(d)
Disbursement of Funds.
On each Investment Date, each applicable Purchaser shall remit its share of the aggregate amount of the Incremental Investment requested by the Seller as
51
determined above to the applicable Seller Operating Account specified therefor by (i) 4:00 p.m. (London time) for amounts in U.S. Dollars and CAD or (ii) 3:00 p.m. (London time) for amounts in other Approved Currencies by wire transfer of same day funds. Upon receipt of such funds by such deadline, the Administrative Agent shall remit such funds by (i) 4:00 p.m. (London time) for amounts in U.S. Dollars and CAD or (ii) 3:00 p.m. (London time) for amounts in other Approved Currencies to the account specified by the Seller (or the Master Servicer on its behalf) in the relevant Investment Request by wire transfer of same day funds (it being understood that if funds are not deposited by the applicable Purchasers by (i) 4:00 p.m. (London time) for amounts in U.S. Dollars and CAD or (ii) 3:00 p.m. (London time) for amounts in other Approved Currencies, the Administrative Agent may (but shall have no obligation to) remit such funds by (i) 4:00 p.m. (London time) for amounts in U.S. Dollars and CAD or (ii) 3:00 p.m. (London time) for amounts in other Approved Currencies. To the extent (i) the Administrative Agent remits any funds at the direction of the Seller or Master Servicer and any applicable Purchaser shall fail to remit its share of the aggregate amount of the Incremental Investment requested by the Seller as determined above within the timeframe set forth above, (ii) the Administrative Agent fails to remit any funds as required by the timeframe set forth above or as required by the timeframe set forth in
Section 2.9(a)
or (iii) any Purchaser shall fail to remit its share of any Incremental Advance by the timeframe set forth above, interest thereon shall be payable by the applicable late Person and accrue for the benefit of the applicable recipient on such amounts at the Default Rate.
(e)
Denomination of Investments.
Each Incremental Investment made by the Purchasers hereunder shall be denominated in an Approved Currency. Notwithstanding anything herein or in any other Transaction Document to the contrary, the Seller shall not request any Incremental Investment, and the Purchasers shall not be obligated to make any such Incremental Investment, hereunder if, after giving effect thereto, the Dollar Equivalent of the aggregate Invested Amounts of the Investments held by the Purchasers in each Approved Currency would exceed the product of (A) the Currency Percentage for such Approved Currency set forth in the most recent Portfolio Report delivered under the Servicing Agreement (plus or minus 1.0%) and (B) the Net Eligible Receivables Balance. Notwithstanding the foregoing, the Seller may request an Incremental Investment denominated in Dollars or Euros, regardless of the Currency Percentage for such currency, if each Purchaser Agent has consented thereto and hedging agreements or hedging reserves satisfactory to the Purchaser Agents have been implemented with respect thereto.
(f)
Redenomination of Local Currencies.
(i)
Each obligation of any party to this Agreement to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of yield
52
expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London Interbank Market for the basis of accrual of yield in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency;
provided
that if any Investment in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Investment, at the end of the then current Tranche Period.
(ii)
Without prejudice and in addition to any method of conversion or rounding prescribed by any EMU Legislation and (A) without limiting the liability of the Seller for any amount due under this Agreement and (B) without increasing any Commitment of any Committed Purchaser, all references in this Agreement to minimum amounts (or integral multiples thereof) denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall, immediately upon such adoption, be replaced by references to such minimum amounts (or integral multiples thereof) as shall be specified herein with respect to Investments denominated in Euro.
2.3
Use of proceeds
The Seller shall use the proceeds of the Investments only to (a) pay the Purchase Price for Receivables, pursuant to and in accordance with the terms of the Originator Sale Agreements and Intermediate Transfer Agreements, (b) refinance Investments denominated in one Approved Currency with Investments denominated in another Approved Currency for the purpose of satisfying the requirements set forth in
Section 2.2(e)
(
Denomination of Investments
) and (c) pay transaction fees, costs and expenses incurred in connection with the consummation of the transactions contemplated by the Transaction Documents (with such fees, costs and expenses reflected in the applicable Discount deducted under the applicable Originator Sale Agreements)
provided
that, notwithstanding anything herein or in any other Transaction Document to the contrary, the Seller shall not use all or any portion of the proceeds of any Incremental Investment to pay the Purchase Price for any Receivable (i) to the extent Weekly Reports are then required to be delivered pursuant to
Section 2.3
(
Reporting requirements
) of the Servicing Agreement, if a Weekly Report has not been delivered on such day pursuant to and in accordance with such
Section 2.3
, or (ii) that was originated by an Originator with respect to which a Seller Event has occurred and is continuing.
2.4
Yield and Fees
(a)
On each Settlement Date and in accordance with the requirements of Section 2.9(a), the Seller shall pay (in immediately available funds in the currency of such Tranche) to the Administrative Agent (for transfer by the Administrative Agent to the relevant Purchaser Agent, for the account of the Purchasers in such Purchaser Agent’s Purchaser Group), all Yield that is due and owing on such Settlement Date (i.e., for all Tranche Periods ending on such Settlement Date) with respect to all outstanding Tranches.
53
(b)
The Seller shall pay to the Administrative Agent (for transfer to the applicable recipient) certain Fees in the amounts and on the dates set forth in (i) the fee agreement of even date herewith between the Seller, the Performance Undertaking Provider and the Administrative Agent (the
“Administrative Agent Fee Letter”
) and (ii) the fee agreement of even date herewith between the Seller, the Performance Undertaking Provider, the Administrative Agent and the Purchaser Agents (the
“Purchaser Fee Letter”
).
(c)
On the second (2
nd
) Business Day immediately before each Reporting Date each Purchaser Agent shall furnish the Seller and the Master Servicer with an invoice setting forth the amount of the Yield and Fees that are due and owing on the immediately succeeding Settlement Date for such Tranche Period with respect to the Tranches held by the Purchaser(s) in such Purchaser Agent’s Purchaser Group. To the extent necessary, such Yield shall be calculated using an estimate of the Yield Rate for the remaining days in such Tranche Period;
provided
that such Yield shall be adjusted as follows: if the Purchaser Agent shall have used an estimate of the Yield Rate with respect to the preceding Tranche Period, the Purchaser Agent shall compute the actual Yield Rate and Yield for such Tranche Period and (i) if the actual Yield so computed is greater than the estimated Yield calculated for such preceding Tranche Period, the Yield calculated pursuant to the preceding sentence for the current Tranche Period shall be increased by the amount of such difference, and (ii) if the actual Yield so computed is less than the estimated Yield for such preceding Tranche Period, the Yield calculated pursuant to the preceding sentence for the current Tranche Period shall be decreased by the amount of such difference.
2.5
Payments
The Seller:
(a)
shall, immediately upon acceleration of the Transaction Party Obligations pursuant to
Section 7.2
(
Termination of Facility
), repay all outstanding amounts payable hereunder in accordance with the priority of payments set forth in
Section 2.7
(
Collections after Facility Termination Date
);
(b)
shall, if on any date the Aggregate Invested Amount exceeds the lesser of (i) the Facility Limit and (ii) the Funding Base as determined by reference to the most recent Portfolio Report delivered under the Servicing Agreement, pay such amounts on such date (which payment shall be effected by making a deposit to the applicable Seller Operating Account for application in accordance with
Section 2.6
(
Collections prior to Facility Termination Date
) or
Section 2.7
(
Collections after Facility Termination Date
), as applicable) in an amount sufficient to cause the Aggregate Invested Amount to be less than or equal to the lesser of (x) the Facility Limit and (y) the Funding Base; and
(c)
from and after the Facility Termination Date, shall make payments out of Collections available for such purpose pursuant to
Section 2.7
(
Collections after Facility Termination Date
).
54
2.6
Collections prior to Facility Termination Date
(a)
If at any time any Collections are received by the Master Servicer prior to the Facility Termination Date and are available for reinvestment pursuant to
Sections 2.6(e)(vi)
and
2.6(j)(ii)
, the Seller hereby requests and each Purchaser hereby agrees to make, subject to the terms and conditions set forth in the Agreement (including
Section 3.2
), simultaneously with such receipt, a reinvestment (each, a “
Reinvestment
”) in additional Receivables acquired by the Seller with the Collections received by the Master Servicer such that after giving effect to such Reinvestment, the Aggregate Invested Amount immediately after such receipt and corresponding Reinvestment shall be equal to an amount up to the Aggregate Invested Amount immediately prior to such receipt. Collections received by the Master Servicer prior to the Facility Termination Date in excess of amounts to be reinvested shall be applied in accordance with
Section 2.6(e)
. Prior to the Facility Termination Date, Collections for such Reinvestment or application pursuant to
Section 2.6(e)
may be transferred by the Master Servicer directly from the Collection Accounts to an account designated by the Master Servicer and applied to pay the Purchase Price, Deferred RPA Purchase Price or Advanced Purchase Price for Receivables under the Originator Sale Agreements and Intermediate Transfer Agreements or for the payment of other amounts described in
Section 2.6(e)
.
(b)
(i)
Prior to the Final Payout Date, until the Aggregate DPP has been paid in full, the Subordinated Lender, pursuant to the Subordinated Loan Agreement, shall make available to the Seller a Subordinated Loan in an amount equal to the Aggregate DPP determined in accordance with
Section 2.19(a)
(
Proceeds of Subordinated Loans
). Each amount allocated and paid to reduce the Subordinated Loan hereunder shall constitute a payment of a corresponding amount of the Aggregate DPP hereunder.
(ii)
Prior to the Final Payout Date, the Aggregate DPP shall only be paid to the extent funds are available for such purpose pursuant to
Section 2.6(j)(iii)
or
Section 2.7(d)
On each Business Day on and after the Final Payout Date until the date the Aggregate DPP is paid in full, the Master Servicer, on behalf of the Administrative Agent, shall pay to the Seller, in repayment of the Aggregate DPP, all Collections thereafter received less any accrued and unpaid Servicing Fee, which shall be retained by the Master Servicer.
(iii)
The Aggregate DPP shall be payable solely from Collections available therefor at the times and in the manner provided herein.
(iv)
Each of the parties hereto hereby acknowledges and agrees that, notwithstanding anything to the contrary contained herein, all Collections which are allocated to the payment of any Deferred Purchase Price (and the Aggregate DPP) in accordance with the terms of this Agreement (the “
DPP Collections
”) (A) shall be set aside and held in trust by the Master Servicer for the benefit of the Seller and shall be paid by the Master Servicer only to the Seller (or as the Seller
55
otherwise directs) in accordance with the terms of this
Section 2.6
(
Collections prior to Facility Termination Date
) and
Section 2.7
(
Collections after Facility Termination Date
), and (B) shall not constitute an asset of the Administrative Agent or the Purchasers or be available to satisfy the claims of any of their respective creditors. In the event that the Administrative Agent or any Purchaser receives any payment or distribution hereunder out of the DPP Collections which, pursuant to the terms hereof, should be allocated to the payment of the Deferred Purchase Price, such party shall, and the Purchasers hereby direct and authorize the Administrative Agent to, pay such amount to the Seller in repayment of the Deferred Purchase Price.
(c)
Notwithstanding any provision contained in this Agreement or any other Transaction Document to the contrary, the Purchaser Agents, the Purchasers and the Administrative Agent shall not, and shall not be obligated (whether on behalf of the Purchaser Agent, a Purchaser or otherwise) to, pay any amount to the Seller as a Reinvestment or in respect of any portion of the Aggregate DPP, except to the extent of Collections on Receivables available for distribution to the Seller in accordance with this Agreement. In addition, notwithstanding anything to the contrary contained in this Agreement or any other Transaction Document, any obligations of the Conduit Purchasers under this Agreement and all other Transaction Documents shall be payable by such Conduit Purchaser solely to the extent of funds received from the Seller in accordance herewith or from any party to any Transaction Document in accordance with the terms thereof in excess of funds necessary to pay such Person’s matured and maturing commercial paper or other senior indebtedness (it being acknowledged and agreed by the Conduit Purchasers that the DPP Collections shall only be applied to repay the Aggregate DPP and shall not be applied to pay such Person’s matured and maturing commercial paper or other senior indebtedness). Any amount which the Administrative Agent, a Purchaser Agent or a Purchaser is not obligated to pay pursuant to the two preceding sentences shall not constitute a claim (as defined in § 101 of the U.S. Bankruptcy Code) against, or corporate obligation of, the Administrative Agent, the Purchaser Agent or Purchaser, as applicable, for any such insufficiency unless and until such amount becomes available for distribution to the Seller pursuant to the terms hereof.
(d)
On each Business Day prior to the Facility Termination Date, the Seller shall (and shall cause the Master Servicer to) cause:
(i)
all Collections and other amounts in respect of the Portfolio Receivables, the Related Security or the Collateral to be deposited directly into a Collection Account; and
(ii)
all Collections otherwise received directly by any Transaction Party in respect of the Portfolio Receivables, the Related Security or the Collateral to be deposited into a Collection Account no later than the second (2
nd
) Business Day immediately following the day on which such amounts were received and identified;
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(e)
On each Business Day prior to the Facility Termination Date, subject to the provisions of
Section 11.1
, the Seller shall (and shall cause the Master Servicer to) cause all Collections received in the Collection Accounts (including, if applicable, any investment earnings received with respect to funds on deposit in such Collection Accounts) to be applied to the following items (as determined by the Master Servicer in its discretion):
(i)
to be retained in one or more Collection
Accounts
for the benefit of the Master Servicer, an amount equal to the aggregate Servicing Fee that will be due and owing on the following Settlement Date;
(ii)
for deposit to the Seller Operating Account for the benefit of the relevant Persons, an amount equal to the aggregate Yield and Fees that will be due and owing on the following Settlement Date;
(iii)
to pay operating costs, expenses, Agreed Annual Income and taxes of the Seller then due and payable, as instructed by the Seller;
provided
that the aggregate amount so paid during any calendar year shall not exceed EUR 100,000;
(iv)
pay to the Master Servicer, for the benefit of the applicable Italian Originators, an amount equal to any unreimbursed RIBA Advances;
(v)
if as determined by reference to the most recent Portfolio Report delivered under the Servicing Agreement the Aggregate Invested Amount exceeds the lesser of (A) the Facility Limit and (B) the Funding Base, for deposit to the applicable Seller Operating Account an amount necessary to cause the Aggregate Invested Amount to be less than or equal to the lesser of (x) the Facility Limit and (y) the Funding Base, as applicable; and
(vi)
to remit any remaining Collections to the Seller for application in accordance with
Section 2.6(j)
below (any such remittance, a
“Release”
);
provided
that, if the conditions precedent for such Release set forth in
Section 3.2
(
Conditions precedent to all Incremental Investments, Reinvestments and Releases
) are not satisfied, the Seller shall (and shall cause the Master Servicer to) cause any such remaining Collections to be retained in the applicable Seller Operating Accounts and shall apply such Collections in accordance with this
Section 2.6
or
Section 2.7
(
Collections after Facility Termination Date
) on the next Business Day.
(f)
On each Settlement Date, the Seller shall (and shall cause the Master Servicer to) pay the following amounts in the following order of priority from amounts on deposit in the Seller Operating Accounts:
(i)
to the Administrative Agent (for the benefit of the relevant Purchasers) all Yield that is due and owing on such Settlement Date;
(ii)
to the Administrative Agent (for the benefit of the relevant Purchasers), the Fees that are due and owing on such Settlement Date;
57
(iii)
to the Master Servicer, the Servicing Fee that is due and owing on such Settlement Date;
(iv)
to the Administrative Agent (for the benefit of the relevant Purchasers) an amount in reduction of the Aggregate Invested Amount (ratably in accordance with the Dollar Equivalent of the outstanding Invested Amounts of each) equal to the excess of the Aggregate Invested Amount over the lesser of (A) the Facility Limit and (B) the Funding Base; and
(v)
if any Transaction Party Obligations (other than any amount described in
Sections 2.6(f)(i)
and
(ii)
) are then due and payable by the Seller to any Secured Party, pay to each such Secured Party (ratably in accordance with the amounts owing to each) the Transaction Party Obligations so due and payable (in the currency in which such Transaction Party Obligations are payable).
(g)
To the extent practicable, the Master Servicer shall cause all Collections applied pursuant to
Section 2.6(e)
in respect of any Transaction Party Obligations to be denominated in the same currency in which such Transaction Party Obligations are payable. To the extent that Transaction Party Obligations payable or to become payable in any currency exceed the amount of Collections in that currency and available for such payment, and Collections in any other currency are available for such payment, the Master Servicer shall allocate such other Collections to the payment of such Transaction Party Obligations, and on the relevant payment date the Master Servicer shall cause such other Collections to be converted into the relevant currency of payment in accordance with
Section 2.16
(
Conversion of Currencies
) and shall apply the amounts so converted to the making of such payment.
(h)
In the event any deposit is made to a Seller Operating Account pursuant to
Section 2.6(e)(v)
, the amount of such deposit shall be allocated among all Purchaser Groups ratably in proportion to the aggregate Invested Amount in respect of the Investments held by each and distributed on the next Settlement Date for application to the repayment of the Investments held by such Purchaser Group. Notwithstanding the foregoing, if on any Business Day after such deposit is made and prior to the distribution of such deposit pursuant to this
Section 2.6(h)
, the Master Servicer delivers a Portfolio Report with more recent data indicating that the Aggregate Invested Amount is less than or equal to the lesser of (i) the Facility Limit and (ii) the Funding Base, the Seller may (or may cause the Master Servicer to) withdraw the Collections so deposited for application in accordance with
Section 2.6(e)(v)
to the extent that, after giving effect to such withdrawal and application, the Aggregate Invested Amount is less than or equal to the lesser of (i) the Facility Limit and (ii) the Funding Base.
(i)
[Reserved.]
(j)
Any Collections remitted to the Seller pursuant to
Section 2.6(e)(vi)
shall be applied by the Master Servicer, on behalf of the Seller:
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(i)
first, if so requested by the Master Servicer (acting on behalf of the Seller), to pay or prepay (or set aside for the payment or prepayment of) Investments or other Transaction Party Obligations that are then due and payable;
(ii)
second, to pay the Purchase Price, Deferred RPA Purchase Price or Advanced Purchase Price for Receivables pursuant to (and in accordance with) the Originator Sale Agreements or Intermediate Transfer Agreements, as the case may be (
provided
that, notwithstanding anything herein or in any other Transaction Document to the contrary, the Seller shall not use all or any portion of the proceeds of any Release to pay the purchase price for any Receivable that was originated by an Originator with respect to which a Seller Termination Event has occurred and is continuing); and
(iii)
third, solely if such date is a Settlement Date, (A) prior to the Final Payout Date, only if no Facility Event or Portfolio Event then exists, or (B) after the Final Payout Date has occurred, to make payments pursuant to the Subordinated Loan Agreement (such amount to be allocated among the Subordinated Lenders ratably in accordance with the proportion of such amounts owing to each such Person).
2.7
Collections after Facility Termination Date
(a)
On the Facility Termination Date, and on each Business Day thereafter until the Final Payout Date, the Seller shall (and shall cause the Master Servicer to) cause:
(i)
all Collections and other amounts in respect of the Portfolio Receivables, the Related Security or the Collateral to be deposited directly into a Collection Account and then transferred to a Seller Operating Account, no later than the second (2
nd
) Business Day immediately following the day on which such amounts were deposited into such Collection Accounts; and
(ii)
all Collections and other amounts in respect of the Portfolio Receivables, the Related Security or the Collateral otherwise received by any Transaction Party to be deposited into a Collection Account no later than the second (2
nd
) Business Day immediately following the day on which such amounts were received and identified and then transferred to a Seller Operating Account, no later than the second (2
nd
) Business Day immediately following the day on which such amounts were deposited into such Collection Accounts.
(b)
On each Settlement Date to occur on or after the Facility Termination Date, the Seller (or the Administrative Agent acting on behalf of the Seller) shall cause all funds on deposit in the Seller Operating Accounts from time to time, including any investment earnings received with respect to such funds, (collectively,
“Seller Operating Account Funds”
), to be distributed in the following order of priority:
59
(i)
first, to pay, on a pro rata basis in no order of priority amongst themselves:
(A)
to the Administrative Agent an amount equal to any unreimbursed Transaction Party Obligations then owing to the Administrative Agent in respect of costs and expenses incurred in connection with the enforcement of any Transaction Document or the collection of any amounts due thereunder; and
(B)
all operating costs, expenses, Agreed Annual Income and taxes of the Seller then due and payable, as instructed by the Seller; provided that the aggregate amount so paid during any calendar year pursuant to this
Section 2.7(b)(i)(B)
, when combined with the aggregate amount paid during such calendar year pursuant to
Section 2.6(e)(iii)
, shall not exceed EUR 100,000;
(C)
pay to the Master Servicer, for the benefit of the applicable Italian Originators, an amount equal to any unreimbursed RIBA Advances;
(ii)
second, if the Master Servicer is a Person other than a Transaction Party or an Affiliate thereof, to pay to such Master Servicer the Servicing Fee then due and payable;
(iii)
third, to pay to the Administrative Agent (for the benefit of the relevant Purchaser) an amount equal to the aggregate Yield and Fees then due and payable to each such Person (ratably in accordance with the proportion of such amounts owing to each such Person);
(iv)
fourth, to pay to the Administrative Agent (for the benefit of the relevant Purchaser) an amount equal to the Aggregate Invested Amount (ratably in accordance with the Dollar Equivalent of the outstanding Invested Amounts held by each);
(v)
fifth, if any Transaction Party Obligations (other than any amount described in
Sections 2.7(b)(i)
to
(iv)
above) are then due and payable to any Secured Party, to pay to each such Secured Party (ratably in accordance with the amounts owing to each) the Transaction Party Obligations so due and payable;
(vi)
sixth, to pay all operating costs, expenses, Agreed Annual Income and taxes of the Seller then due and payable and not paid pursuant to
Section 2.7(b)(i)(B)
above, as instructed by the Seller;
(vii)
seventh, if the Master Servicer is a Transaction Party or an Affiliate thereof, pay to the Master Servicer the Servicing Fee then due and payable; and
(viii)
eighth, after all Transaction Party Obligations are paid in full, pay to the Seller any remaining Collections for application in accordance with
Section 2.7(d)
.
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(c)
To the extent practicable, the Seller (or the Administrative Agent acting on behalf of the Seller) shall apply Seller Operating Account Funds denominated in a currency to the payment of amounts payable pursuant to
Section 2.7(b)
in the same currency. To the extent that aggregate amounts payable or to become payable in any currency exceed the amount of Seller Operating Account Funds denominated in that currency and available for such payment, and Seller Operating Account Funds denominated in any other currency are available for such payment, the Seller shall allocate such other Seller Operating Account Funds to the payment of such amount, and on the relevant payment date the Seller (or the Administrative Agent acting on behalf of the Seller) shall cause such other Seller Operating Account Funds to be converted into the relevant currency of payment using commercially reasonable methods and shall apply the amounts so converted to the making of such payment.
(d)
Any Collections remitted to the Seller pursuant to
Section 2.7(b)(viii)
shall be applied by the Master Servicer, on behalf of the Seller, to make payments pursuant to the Subordinated Loan Agreement (such amount to be allocated among the Subordinated Lenders ratably in accordance with the proportion of such amounts owing to each such Person).
2.8
Deemed Collections; application of payments
(a)
Each of the parties hereto agrees that, unless otherwise required by contract or applicable Law or clearly indicated by facts or circumstances or unless an Obligor designates that a payment be applied to a specific Receivable,
all Collections from an Obligor shall be applied in the order of maturity of the Receivables of such Obligor starting with the Receivable of such Obligor having the earliest maturity
date (whether or not such Receivables are Portfolio Receivables)
.
(b)
If and to the extent the Administrative Agent, any Purchaser Agent, any Purchaser or any Indemnified Party shall be required for any reason to pay over to an Obligor, any Transaction Party or any other Person (other than in accordance herewith) any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Seller and, accordingly, the Administrative Agent, such Purchaser Agent, such Purchaser or such Indemnified Party, as the case may be, shall have a claim against the Seller for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
(c)
If on any day a Portfolio Receivable or any part thereof becomes a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Portfolio Receivable in the amount of such Diluted Receivable or part thereof.
(d)
If on any day it is determined that any of the representations or warranties in
Section 4.1
(
Representations and warranties of the Seller
) was untrue with respect to a Portfolio Receivable, the Seller shall be deemed to have received on such day a Collection of such Portfolio Receivable in an amount equal to the Unpaid Balance thereof.
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(e)
If on any day a RIBA Dilution occurs, the Seller shall be deemed to have received on such day a Collection in the amount of such RIBA Dilution.
(f)
Not later than the Settlement Date related to the Calculation Period in which such Collection is deemed to have been received pursuant to this
Section 2.8
(and if a Facility Event or Portfolio Event has occurred and is continuing, not later than the second (2
nd
) Local Business Day after a Responsible Officer of the Master Servicer is notified in writing or otherwise becomes aware that the Seller has been deemed pursuant to this
Section 2.8
to have received a Deemed Collection), the Seller shall deposit in a Seller Operating Account, in same day funds, the amount of such Deemed Collection;
provided
that prior to the occurrence of a Facility Event or Portfolio Event the amount so payable by the Seller shall not exceed the amount (if any) required (after giving effect to any Deemed Collection to be paid by any other Transaction Party on such day) in order to cause the Aggregate Invested Amount to be less than or equal to the lesser of (x) Facility Limit and (y) the Funding Base. Any such amount shall be applied as a Collection in accordance with
Sections 2.6
(
Collections prior to Facility Termination Date
) or
2.7
(
Collections after Facility Termination Date
), as applicable.
2.9
Payments and computations, etc.
(a)
All amounts to be paid by the Seller or the Master Servicer to the Administrative Agent, any Purchaser Agent, any Purchaser or any other Secured Party shall be paid no later than (i) 4:00 p.m. (London time) for amounts in U.S. Dollars and CAD or (ii) 3:00 p.m. (London time) for amounts in other Approved Currencies on the day when due in immediately available funds (without counterclaim, setoff, deduction, defense, abatement, suspension or deferment) to the applicable Seller Operating Account (or other account specified by the Administrative Agent from time to time). It is understood and agreed that payments by the Seller to the Purchaser or Purchaser Agents shall be made by the Seller depositing such payments into the applicable Seller Operating Account and the Administrative Agent remitting such amounts from such accounts to the applicable Purchasers or Purchaser Agents. The Administrative Agent shall forward any amounts received by the Administrative Agent for the benefit of any other Person (including without limitation under
Sections 2.6(f)
and
2.7
) to the applicable Person by (i) 4:00 p.m. (London time) for amounts in U.S. Dollars and CAD or (ii) 3:00 p.m. (London time) for amounts in other Approved Currencies in immediately available funds. All amounts to be deposited by the Seller or the Master Servicer into any Facility Account or any other account shall be deposited in immediately available funds no later than (i) 4:00 p.m. (London time) for amounts in U.S. Dollars and CAD or (ii) 3:00 p.m. (London time) for amounts in other Approved Currencies on the date when due.
(b)
The Seller shall (and shall cause the Master Servicer to), to the extent permitted by Law, pay interest on any amount not paid or deposited by it when due hereunder (after as well as before judgment), at an interest rate per annum equal to the Default Rate, payable on demand.
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(c)
All computations of Yield, Fees and other amounts hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the date of payment) elapsed, except that (i) computations of interest and Yield accruing at the Base Rate with respect to any amount denominated in U.S. Dollars shall be made on the basis of a year of 365 days (or 366, as applicable), and (ii) in any case where the practice of the relevant interbank market differs, computations of interest and Yield shall be made in accordance with that market practice. Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of such payment or deposit. Any computations by the Administrative Agent or any Purchaser Agent of amounts payable by the Seller hereunder shall be binding upon the Seller absent manifest error.
(d)
All payments required to be made hereunder to any Purchaser, any Purchaser Agent, any Indemnified Party or any other Secured Party shall be made by paying such amount to the applicable account specified by the Administrative Agent from time to time (and the Administrative Agent, in turn, shall transfer such amounts to the applicable Purchaser Agent’s Account) in accordance with this
Section 2.9
. Upon receipt of funds, the Purchaser Agent shall pay such funds to the related Person owed such funds in accordance with the records maintained by the Purchaser Agent. If the applicable Purchaser Agent shall have paid to any Purchaser, the Purchaser Agent, any Indemnified Party or any other Secured Party any funds that (i) must be returned for any reason (including any Event of Bankruptcy) or (ii) exceeds that which such Person was entitled to receive, such amount shall be promptly repaid to the Purchaser Agent by such Person.
(e)
All payments of Invested Amounts and Yield in respect of any Tranche shall be made in the same Approved Currency as the Approved Currency in which such Tranche is denominated. All other payments to be made by the Master Servicer or the Seller hereunder shall be made solely in Dollars or Euros (as specified in the applicable invoice or request for payment) or in any other Approved Currency subject to an agreement between the relevant parties of the applicable exchange rate.
(f)
It is understood and agreed that if a Purchaser is required to deposit funds into a Seller Operating Account on a particular date and is also scheduled to receive payment from such Seller Operating Account on such date in the same currency, such Purchaser may net such payments if such Purchaser has given prior notice of such netting to the Administrative Agent.
2.10
Tranches
Each Investment made by the Purchasers in the same Purchaser Group on any Investment Date shall be allocated to one or more Tranche Periods as set forth in the definition of such term with one or more Rate Types as selected by the applicable Purchaser Agent. Any portion of an Investment having one Tranche Period and one Rate Type and denominated in the same Approved Currency is referred to herein as a
“Tranche”
. Either the Master Servicer (acting on behalf of the Seller) or (following
63
a Facility Termination Event or Portfolio Event) the Purchaser Agent for each Purchaser Group may, upon notice to the other party received at least four Business Days prior to the last day of any Tranche Period in the case of the Seller giving notice, or up to the last day of such Tranche Period in the case of the Purchaser Agent giving notice, either (a) divide any Tranche originating on such last day or having a Tranche Period ending on such last day into two or more Tranches having an aggregate Invested Amount equal to the Invested Amount of such divided Tranche or (b) combine any two or more Tranches originating on such last day or having Tranche Periods ending on such last day into a single Tranche having an Invested Amount equal to the aggregate of the Invested Amount of such Tranches;
provided
that no Tranche owned by any Conduit Purchaser may be combined with a Tranche owned by any other Purchaser, a Tranche held by the Committed Purchasers in any Purchaser Group may not be combined with any Tranche held by the Committed Purchasers in any other Purchaser Group and a Tranche denominated in one Approved Currency may not be combined with a Tranche denominated in another Approved Currency.
2.11
Breakage costs
(a)
The Seller shall indemnify the Purchasers, the Agents and any related Program Support Provider against any loss, cost or expense incurred by the Purchasers, the Agents or such Program Support Providers, either directly or indirectly, as a result of the failure by the Seller to make any Investment for any reason on the date specified by the Seller pursuant to, and in accordance with,
Section 2.2
(
Purchase procedures
), including any loss, cost, loss of profit or expense incurred by any Agent, any Purchaser or any Program Support Provider by reason of the liquidation or reemployment of funds acquired by the Purchasers (including funds obtained by issuing Commercial Paper, obtaining deposits as loans from third parties and reemployment of funds) to fund such Investment and any costs incurred in connection with the termination or reduction of any related Currency Hedge Agreements. Such indemnification may include an amount equal to the Liquidation Fee.
(b)
The Seller further agrees to pay all Liquidation Fees associated with a reduction of the Invested Amount in respect of any Tranche at any time.
(c)
A certificate as to any loss, expense or Liquidation Fees payable pursuant to this
Section 2.11
submitted by any Purchaser, through its Purchaser Agent, to the Seller shall be conclusive in the absence of manifest error.
2.12
Illegality
Notwithstanding any other provision of this Agreement, if the adoption of or any change in any Law or in the interpretation or application thereof by any relevant Official Body shall make it unlawful, or any Official Body asserts it is unlawful, for any Purchaser to make or maintain Tranches for which Yield is calculated by reference to the Adjusted Eurocurrency Rate (each a
“Eurocurrency Tranche”
) as contemplated by this Agreement or to obtain in the interbank Eurocurrency market the funds with which to make or maintain any such Eurocurrency Tranche (a) such Purchaser shall promptly notify the Administrative Agent, its Purchaser Agent, the Master Servicer and the Seller thereof, (b) the obligation of such Purchaser to fund or maintain Eurocurrency Tranches or continue Eurocurrency Tranches as such shall
64
forthwith be cancelled and (c) such Purchaser’s Tranches then outstanding as Eurocurrency Tranches, if any, shall be converted on the last day of the Tranche Period for such Tranches or within such earlier period as required by Law into a Tranche that accrues Yield based on the Base Rate (each a
“Base Rate Tranche”
).
2.13
Inability to determine Eurocurrency Rate
If prior to the commencement of any Tranche Period for a Eurocurrency Tranche:
(a)
the applicable Purchaser Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining on a timely basis the Adjusted Eurocurrency Rate or the Eurocurrency Rate, as applicable, for such Tranche Period; or
(b)
the applicable Purchaser Agent determines that the Adjusted Eurocurrency Rate or the Eurocurrency Rate, as applicable, for such Tranche Period will not adequately and fairly reflect the cost to the applicable Purchasers of making or maintaining the related Tranche for such Tranche Period;
then, such Purchaser Agent shall give notice thereof to the Seller, the Master Servicer and each other Purchaser Agent by telephone or facsimile as promptly as practicable thereafter and, until the circumstances giving rise to such notice no longer exist any affected Eurocurrency Tranche shall as of the last day of the Tranche Period applicable thereto be converted to or continued as a Base Rate Tranche.
2.14
Indemnity for reserves and expenses
(a)
If any Change in Law shall:
(i)
impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Indemnified Party (except any such reserve requirement reflected in the Adjusted Eurocurrency Rate or those for which payment has been made pursuant to
Section 2.17
(
Mandatory Costs
)); or
(ii)
impose on any Indemnified Party (or on the U.S. market for certificates of deposit or the London interbank market) any other condition or expense affecting or with respect to this Agreement, any Program Support Agreement or any other Transaction Document or Eurocurrency Tranches made or maintained by such Indemnified Party (except those for which payment has been made pursuant to
Section 2.17
(
Mandatory Costs
) or
Section 2.15
(
Indemnity for Taxes
)) or the maintenance or financing of the Investments hereunder, directly or indirectly, or under any Program Support Agreement;
and the result of any of the foregoing shall be to increase the cost to such Indemnified Party of making or maintaining any Tranche (or of maintaining its obligation to fund any such Tranche or its obligations under any Program Support Agreement) by an amount that such Indemnified Party deems to be material or to reduce the amount of any sum received or receivable by such
65
Indemnified Party hereunder (whether of principal, yield or otherwise), then on the tenth (10
th
) day immediately following notification thereof pursuant to
Section 2.14(d)
the Seller will pay to such Indemnified Party such additional amount or amounts as will compensate such Indemnified Party for such additional costs incurred or reduction suffered. Notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines and directives promulgated thereunder, are deemed to have been introduced or adopted after the date hereof, regardless of the date enacted or adopted.
(b)
If any Indemnified Party determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Indemnified Party’s capital or on the capital of such Indemnified Party’s holding company, if any, as a consequence of this Agreement, any Program Support Agreement or the Investments made or acquired by such Indemnified Party, to a level below that which such Indemnified Party or holding company could have achieved but for such Change in Law (taking into consideration such Indemnified Party’s policies and the policies of such Indemnified Party’s holding company with respect to capital adequacy) by an amount that such Indemnified Party deems to be material, then on the tenth (10
th
) day immediately following notification thereof pursuant to
Section 2.14(d)
the Seller will pay to such Indemnified Party such additional amount or amounts as will compensate such Indemnified Party or such Indemnified Party’s holding company for any such reduction suffered
; provided, that the Seller shall not be required to compensate an Indemnified Party pursuant to this paragraph for any amounts incurred more than six months prior to the date that such Indemnified Party notifies the Seller and the Master Servicer of such Indemnified Party’s intention to claim compensation therefor; and provided, further, 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
.
(c)
A certificate of an Indemnified Party setting forth the amount or amounts necessary to compensate such Indemnified Party or its holding company, as applicable, as specified in
clause (a)
or
(b)
of this
Section 2.14
shall be delivered to the Seller and the Master Servicer and shall be conclusive absent manifest error.
(d)
Promptly after any Indemnified Party has determined that it will make a request for compensation pursuant to this
Section 2.14
, such Indemnified Party shall notify the Seller and the Master Servicer of such determination. Except as otherwise provided in clause (b) of this
Section 2.14
, failure or delay on the part of any Indemnified Party to demand compensation pursuant to this
Section 2.14
shall not constitute a waiver of such Indemnified Party’s right to demand such compensation.
(e)
Notwithstanding anything in this
Section 2.14
to the contrary, the Seller shall not be required to pay to any Indemnified Party any amount pursuant to this
Section 2.14
to the extent (i) such amount has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this
66
Agreement or any other Transaction Document or (ii) such amounts constitute Excluded Taxes.
2.15
Indemnity for Taxes
(a)
Any and all payments by or on account of any obligation of the Seller hereunder shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided
that if the Seller shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this
Section 2.15
) the recipient of such payment receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Seller shall make such deductions, and (iii) the Seller shall pay the full amount deducted to the relevant Official Body in accordance with applicable Law.
(b)
In addition, the Seller shall pay any Other Taxes to the relevant Official Body in accordance with applicable Law.
(c)
The Seller shall indemnify each Indemnified Party within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by such Indemnified Party on or with respect to the sale, assignment and transfer of the Portfolio Receivables under this Agreement, any Investment and any payment by or on account of any obligation of the Seller hereunder or where payment of any Indemnified Taxes or Other Taxes is otherwise made by an Indemnified Party pursuant to or in connection with this Agreement (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 2.15
) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Official Body (other than those resulting from the Indemnified Party’s gross negligence, fraud or wilful misconduct). A certificate (along with a copy of the applicable documents from the relevant Official Body) as to the amount of such payment or liability delivered to the Seller by an Indemnified Party, or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Purchaser, shall be conclusive absent manifest error. In connection with any request for compensation pursuant to this
Section 2.15(c)
, the relevant Indemnified Party shall deliver to the Master Servicer a receipt (or other evidence reasonably satisfactory to the Master Servicer) of such payment or liability with respect to which such request relates.
(d)
As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Seller to an Official Body, the Seller shall deliver to the related Purchaser Agent the original or a certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to such Purchaser Agent. Simultaneously with the delivery to a Purchaser Agent of any receipt, return or other evidence pursuant to this
Section 2.15(d)
, the Seller shall deliver a copy of the same to the Master Servicer.
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(e)
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(i)
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Upon the reasonable request of the Seller, any Foreign Purchaser that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Seller is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Seller (with a copy to the Administrative Agent), such properly completed and executed documentation prescribed by applicable Law (and, so far is practicable, within the time or times required by applicable Law) as will permit such payments to be made without withholding or at a reduced rate; provided, that such Foreign Purchaser is legally able to complete, execute and deliver such documentation and such documentation has not already been provided by the Foreign Purchaser pursuant to
Section 2.15(e)(ii)
hereof.
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Each Purchaser shall deliver to the Seller (with a copy to the Administrative Agent) either (A) in the case of a Purchaser that is not a “U.S. Person” as defined in section 7701(a)(30) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), a properly completed and executed Internal Revenue Service (“IRS”) Form W-8BEN or W-8ECI, as appropriate, claiming to the effect a zero percent rate of U.S. federal income tax withholding on interest income, or (B) in the case of a Purchaser that is a “U.S. Person” as defined in Code section 7701(a)(30), a properly completed and executed IRS Form W-9 certifying that it is not subject to backup withholding
.
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Such IRS forms shall be delivered by each applicable Purchaser on or prior to the date on which such Purchaser becomes a Purchaser under this Agreement. In addition, each Purchaser shall deliver such applicable IRS forms no later than the end of the third calendar year following the year in which the most recently submitted IRS forms were delivered and upon the obsolescence or invalidity of any previously delivered IRS form resulting from a related change in factual circumstances of Purchaser;
provided
, however, that notwithstanding any other provision in this
Section 2.15(e)
, a Purchaser shall not be required to deliver any such subsequent IRS form pursuant to this paragraph that such Purchaser is not legally able to complete, execute and deliver.
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(f)
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If an Indemnified Party determines, in its sole good faith discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Seller or with respect to which the Seller has paid additional amounts pursuant to this
Section 2.15
, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this
Section 2.15
with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Indemnified Party and without interest (other than any interest paid by the relevant Official Body with respect to such refund net of any applicable Taxes payable in respect of such interest);
provided
that the Seller, upon the request of such Indemnified Party, agrees to repay the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant
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68
Official Body) to such Indemnified Party in the event such Indemnified Party is required to repay such refund to such Official Body. This
Section 2.15
shall not be construed to require any Indemnified Party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person.
(g)
Notwithstanding anything in this
Section 2.15
to the contrary, the Seller shall not be required to pay to any Indemnified Party any amount pursuant to this
Section 2.15
to the extent (i) such amount has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document or (ii) such amounts constitute Excluded Taxes.
(h)
Each Purchaser shall, at such times as the Administrative Agent may request, take reasonable steps to obtain and deliver to the Administrative Agent a valid certificate issued by the appropriate taxation authority in that Purchaser’s jurisdiction of incorporation certifying that Purchaser is resident for taxation purposes in that jurisdiction (including certification of residence, where applicable, for the purposes of a double taxation treaty).
(i)
Each of the Seller, the Administrative Agent and each Purchaser shall provide a certified copy of a certificate of tax residence to the Master Servicer from their respective jurisdictions at closing and on an annual basis thereafter.
2.16
Conversion of currencies
(a)
If, on any day a payment is due and payable hereunder or under any other Transaction Document, it is necessary for funds in one currency to be converted into another currency in order to make any payment required to be made pursuant to
Sections 2.6
(
Collections prior to Facility Termination Date
) or
2.7
(
Collections after Facility Termination Date
), as applicable, the Seller shall (and shall cause the Master Servicer to) solicit offer quotations from at least two foreign exchange dealers reasonably acceptable to the Administrative Agent for effecting such exchange and shall select the quotation which provides for the best exchange rate. The Seller shall (and shall cause the Master Servicer to) effect such exchange (or, if applicable, shall instruct the Administrative Agent to effect such exchange) as soon thereafter as is reasonably practicable but in no event later than two Business Days thereafter.
(b)
On each Exchange Rate Determination Date, the Seller shall (and shall cause the Master Servicer to) determine the Spot Rate for each Local Currency (based on the relevant exchange rate appearing on any Reuters World Currency Page or applicable Bloomberg BGN FX Page for such currency as set forth in the definition of Spot Rate) and give notice thereof to the Administrative Agent. In the event the Spot Rate for such Local Currency cannot be determined by the Master Servicer because the relevant exchange rate does not appear on any Reuters World Currency Page or applicable Bloomberg BGN FX Page for such currency as set forth in the definition of Spot Rate, then the Spot Rate shall be determined by the Administrative Agent
69
and notified to the Seller and the Master Servicer in accordance with such definition.
(c)
Whenever any computation or calculation hereunder requires the aggregation of amounts denominated in more than one currency, all amounts that are denominated in a Local Currency shall be converted to Dollars using the Spot Rate determined for the Exchange Rate Determination Date immediately preceding the date of such calculation.
2.17
Mandatory costs
(a)
In order to compensate each Committed Purchaser for the cost of its compliance (if any) with the requirements of the European Central Bank (or, in each case, any other authority which replaces all or any of its functions), each such Committed Purchaser may (only to the extent not reflected in the Statutory Reserves and the Eurocurrency Rate Reserve Percentage) require the Seller to pay, contemporaneously with each payment of Yield on each of such Investments, additional yield on such Investment at a rate per annum equal to the Mandatory Costs Rate calculated in accordance with the formula and in the manner set forth in
Schedule 7
(
Mandatory Cost Rate
).
(b)
Any additional yield owed pursuant to
Section 2.17(a)
shall be determined by the applicable Committed Purchaser, which determination shall be conclusive absent manifest error, and notified to the Seller (with a copy to the Administrative Agent) at least five (5) Business Days before each date on which Yield is payable for the applicable Investment, and such additional yield so notified to the Seller by such Purchaser shall be payable to the related Purchaser Agent for the account of such Purchaser on each date on which Yield is payable for such Investment.
2.18
Mitigation obligations
If an event occurs as a result of which any Indemnified Party requests compensation under
Section 2.11
(
Breakage costs
),
Section 2.14
(
Indemnity for reserves and expenses
) or
2.17
(
Mandatory costs
), or if any cancellation occurs under
Section 2.12
(
Illegality
) or if the Seller is required to pay any additional amount to any Indemnified Party or any Official Body for the account of any Indemnified Party pursuant to
Section 2.15
(
Indemnity for Taxes
), then such Indemnified Party shall notify the Seller of such event and, subject to the prior written consent of the Performance Undertaking Provider (such consent not to be unreasonably withheld), use reasonable efforts to mitigate or avoid the effects of such event, if, in the reasonable judgment of such Indemnified Party, such efforts (a) would eliminate or reduce the amounts payable pursuant to such Sections in the future and (b) would not subject such Indemnified Party or any of its Affiliates to any unreimbursed cost or expense (taking into account any reimbursement made by any Transaction Party pursuant to a Transaction Document) and would not (in the reasonable opinion of such Indemnified Party) otherwise be disadvantageous to such Indemnified Party or any of its Affiliates. For the avoidance of doubt, the Seller hereby agrees to pay all reasonable costs and expenses incurred by any Indemnified Party in connection with any action taken by such Indemnified Party pursuant to, or in connection with, this
Section 2.18
.
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2.19
Proceeds of Subordinated Loans
(a)
On the Initial Purchase Date, the Seller shall request a Subordinated Loan in an amount equal to the excess of (i) the aggregate Unpaid Balance of the Receivables to be purchased by the Seller pursuant to the Originator Sale Agreements and the Intermediate Transfer Agreements, over (ii) the aggregate cash payment made by the Purchasers to the Seller on the Initial Purchase Date in respect of such Receivables. On any date of purchase of Receivables by the Seller, if the Seller does not have sufficient available funds to pay the full Purchase Price thereof and the Deferred RPA Purchase Price amounts with respect to the related Originator would exceed an amount equal to 10% of the Unpaid Balance of Portfolio Receivables that qualify as Eligible Receivables set forth in the most recently delivered Portfolio Report with respect to such Originator, the Seller shall request a Subordinated Loan in the amount of any shortfall. In addition, on or prior to each Monthly Reporting Date the Master Servicer shall (i) determine the aggregate Deferred RPA Purchase Price amounts payable by the Seller and (ii) perform a true-up of Investments hereunder for the related Calculation Period to determine the permitted portion of the Unpaid Balance of Receivables funded by Purchasers (for Investments and Reinvestments) during such Calculation Period and if it is determined that the portion of the Unpaid Balance of Receivables purchased by the Seller and funded by the Purchasers exceeds the amount permitted hereunder (i.e., the extent to which the Aggregate Invested Amount exceeds the Funding Base after giving effect to such payment, without taking into account any reductions to the Funding Base that result from Uncollectible Acquired Receivables during such Calculation Period), the Seller shall request a Subordinated Loan on the related Settlement Date in an amount equal to the sum (without duplication) of the Deferred RPA Purchase Price amounts payable by the Seller and the excess described in clause (ii) above (the proceeds of such latter portion of the Subordinated Loan to be deposited into the applicable Seller Operating Account and included in amounts distributed on such Settlement Date pursuant to
Section 2.6(f)
or
2.7(b)
, as applicable).
(b)
If (i) on any day, the Seller has insufficient funds to pay the full Purchase Price of Receivables to be purchased on such day pursuant to, and in accordance with the terms and conditions of, the Originator Sale Agreements and the Intermediate Transfer Agreements or (ii) on any Settlement Date, the Seller has insufficient funds to pay amounts payable on such Settlement Date pursuant to
Section 2.6(f)(i)
through
(iii)
or
2.7(b)(i)
through
(iii)
(solely for the first Settlement Date on which amounts are distributed pursuant to
Section 2.7
and not to exceed the amount applied to the Purchase Price of Receivables during the related Calculation Period), as applicable, the Seller shall request a Subordinated Loan on such day in amount equal to such insufficiency.
2.20
Extension of Scheduled Commitment Facility Termination Date
(a)
The Seller (or the Master Servicer on its behalf) may advise the Administrative Agent and each Purchaser Agent in writing of its desire to extend the Scheduled Commitment Facility Termination Date for an additional period not exceeding 364 days, provided such request is made not more than ninety (90) days prior to, and not less than sixty (60) days prior to, the then
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current Scheduled Commitment Facility Termination Date. Each Purchaser Agent shall promptly notify each Purchaser in its related Purchaser Group of any such request and each such Purchaser shall notify its related Purchaser Agent, the Administrative Agent, the Master Servicer and the Seller of its decision to accept or decline the request for such extension no later than thirty (30) days prior to the then current Scheduled Commitment Facility Termination Date (it being understood that each Purchaser may accept or decline such request in its sole discretion and on such terms as it may elect, and the failure to so notify its Purchaser Agent, the Administrative Agent, the Master Servicer and the Seller shall be deemed an election not to extend by such Purchaser). In the event that all Committed Purchasers agree to extend the Scheduled Commitment Facility Termination Date, the Seller, the Administrative Agent, the Purchasers and the applicable Purchaser Agents shall enter into such documents as such Purchasers may deem necessary or appropriate to reflect such extension, and all reasonable costs and expenses incurred by such Purchasers, the Purchaser Agents and the Administrative Agent (including reasonable attorneys’ fees) shall be paid by the Seller or the Master Servicer
.
(b)
No Committed Purchaser shall be obligated to agree to extend the Scheduled Commitment Facility Termination Date. If any Committed Purchaser does not agree to extend, the Seller may (i) require such Committed Purchaser and its related Conduit Purchaser to assign its interest hereunder to an Eligible Assignee identified by the Seller (or the Master Servicer on its behalf) or (ii) if no Facility Event or Portfolio Event has occurred and is continuing, apply Collections to repay in full (to the extent not assigned in clause (i)) the Investment, Yield and other amounts owing to such Committed Purchaser and related Conduit Purchaser on a non-pro rata basis and terminate in full any unassigned commitment of such Committed Purchaser.
3.
CONDITIONS OF PURCHASES
3.1
Conditions precedent to initial Incremental Investment
The effectiveness of the Commitments and the initial Incremental Investment under this Agreement is each subject to the conditions precedent that:
(a)
to the extent required by the program documents governing any Conduit Purchaser’s Commercial Paper Program or Commercial Paper Program of any conduit refinancing directly or indirectly a Committed Purchaser, each Rating Agency shall have confirmed that the execution and delivery of this Agreement by such Conduit Purchaser will not result in the reduction or withdrawal of the then-current ratings of such Conduit Purchaser’s Commercial Paper below A-1 by S&P and P-1 by Moody’s;
(b)
the results of a review and audit of the collection, operating and reporting systems, Credit and Collection Policies and historical receivables information which accounts for 70% of the Originators’ portfolio are reasonably satisfactory to the Administrative Agent and the Purchaser Agents and a satisfactory written agreed upon procedures report as to such matters is
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delivered by a Person satisfactory to the Administrative Agent and the Purchaser Agents on or before the Closing Date;
(c)
consummation of the transactions contemplated herein shall have occurred or shall occur simultaneously with the initial purchase by the Seller Parties under the applicable Originator Sale Agreements; and
(d)
the Administrative Agent and each Purchaser Agent shall have received on or before the date of such Incremental Investment all of the instruments, documents, agreements, certificates and opinions specified on
Schedule 4
(
Condition Precedent Documents
), each (unless otherwise indicated) dated on or about the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent and each Purchaser Agent.
3.2
Conditions precedent to all Incremental Investments, Reinvestments and Releases
Each Incremental Investment (including the initial Incremental Investment), each Reinvestment and each Release hereunder shall be subject to the further conditions precedent that on the date of such Incremental Investment, Reinvestment or Release the following statements shall be true (and acceptance of the proceeds of any such Incremental Investment, Reinvestment or Release shall be deemed a representation and warranty by the Seller that such statements are then true by reference to the facts and circumstances existing on the date of such Incremental Investment, Reinvestment or Release):
(i)
In the case of an Incremental Investment, the making of such Incremental Investment does not violate any provisions of
Section 2.1
(
The Purchases
);
(ii)
In the case of an Incremental Investment, Reinvestment or Release, the Seller has delivered an Investment Request, appropriately completed, within the time period required by
Section 2.2
(
Purchase procedures
);
(iii)
In the case of any Investment, Reinvestment or Release, (i) the Master Servicer has delivered the Monthly Report for the most recent Calculation Period in accordance with the Servicing Agreement and (ii) to the extent Weekly Reports are then required to be delivered pursuant to
Section 2.3
(
Reporting requirements
) of the Servicing Agreement, the Master Servicer shall have delivered a Weekly Report pursuant to and in accordance with such Section on the date of such Investment, Reinvestment or Release;
(iv)
The Facility Termination Date has not occurred and, in the case of Incremental Investments, no event exists, or would result from such Incremental Investment, that constitutes a Facility Event or Portfolio Event;
(v)
All Fees required to be paid on or prior to the date of such Incremental Investment, Reinvestment or Release in accordance with the Fee
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Letters and all fees and expenses described in
Section 11.4
(
Costs and expenses
) to the extent then due and payable shall have been paid in full in accordance with the terms thereof;
(vi)
No portion of the proceeds of such Incremental Investment, Reinvestment or Release will be used by the Seller to pay the purchase price for any Receivable that was originated by an Originator with respect to which a Seller Termination Event has occurred and is continuing;
(vii)
After giving effect to such Incremental Investment, Reinvestment or Release and the use of the proceeds thereof in accordance with
Section 2.3
(
Use of proceeds
) the Aggregate Invested Amount does not exceed the lesser of (I) the Facility Limit and (II) the Funding Base; and
(viii)
Any Subordinated Loan requested on the date of such Incremental Investment, Reinvestment or Release shall have been (or shall simultaneously with such Incremental Investment, Reinvestment or Release be) made by a Subordinated Lender.
4.
REPRESENTATIONS AND WARRANTIES
4.1
Representations and warranties of the Seller
The Seller hereby represents and warrants to the Agents and the Purchasers that, on the Closing Date and as of the date of each Investment, each Reinvestment and each Release hereunder and as of each Reporting Date:
(a)
It (i) is a private limited liability company duly organized and validly existing under the laws of its jurisdiction of organization, (ii) is duly qualified to do business in every other jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify would not have a Material Adverse Effect, and (iii) has all corporate or other organizational power and authority required to perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted unless the failure to have such power and authority would not have a Material Adverse Effect.
(b)
The execution, delivery and performance by it of this Agreement and any other Transaction Document to which it is a party, including the Seller’s use of the proceeds of Investments (i) are within its corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) are in its interest and it will receive a corporate benefit as a result of the transactions contemplated hereby and thereby and the value of the consideration obtained by it under the transactions contemplated hereby and thereby constitutes fair market value, (iv) do not contravene or constitute a default under (A) its Organizational Documents, (B) any applicable Law, (C) any contractual restriction binding on or affecting it or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property except in each case where any such contravention or default would not have a Material Adverse Effect and (v) do not result in or require the creation or imposition of
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any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to any of its properties. Each Transaction Document to which the Seller is a party has been duly executed and delivered by the Seller.
(c)
No authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any Official Body or official thereof or any third party is required for the due execution, delivery and performance by it of this Agreement or any other Transaction Documents to which it is a party or any other document to be delivered by it hereunder or thereunder, except for the actions taken or referred to in
Schedule 4
(
Conditions precedent documents
) all of which have been (or on or before the Closing Date will have been) duly made or taken, as the case may be, and are in full force and effect and except where the failure to have obtained any such authorization or approval or taken any such action or made any such filing or notice would not have a Material Adverse Effect.
(d)
Each of this Agreement and the other Transaction Documents to which it is a party constitutes the legal, valid and binding obligation of the Seller enforceable against it in accordance with its terms, subject to any limitation on the enforceability thereof against the Seller arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e)
There are no actions, suits, investigations by an Official Body, litigation or proceedings at law or in equity or by or before any Official Body or in arbitration now pending against or affecting the Seller or its Subsidiaries or any of its businesses, properties or revenues (i) which involve or question the validity of this Agreement or any other Transaction Document to which it is a party or any of the transactions contemplated hereby or thereby (excluding any litigation or proceeding against any Obligor) or (ii) which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The Seller is not in default or violation of any order, judgment or decree of any Official Body or arbitrator which could reasonably be expected to have a Material Adverse Effect.
(f)
No event has occurred and is continuing, or would result from any Investment or application of the proceeds therefrom, which constitutes a Facility Event or Portfolio Event which has not been (i) notified to the relevant parties pursuant to, and in accordance with, the Transaction Documents or (ii) remedied or waived, in each case, in accordance with the Transaction Documents.
(g)
No proceeds of any Investment will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, “margin stock” within the meaning of Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.
(h)
Each Receivable treated as or represented to be a Portfolio Receivable is owned by the Seller, free and clear of any Adverse Claim (other than Permitted Adverse Claims). The Administrative Agent, for the benefit of the Secured Parties, has a valid and perfected first priority charge, security interest or pledge, ranking ahead of any other charge, security interest or pledge and
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the interest of any other creditor of any Transaction Party (other than Permitted Adverse Claims) in the Seller Operating Accounts and all other Collateral, in each case, free and clear of any Adverse Claim (other than Permitted Adverse Claims). No effective financing statement or other instrument similar in effect is filed in any recording office listing any Transaction Party as debtor, covering any Receivable, Related Security or other Collateral, or any interest therein or proceeds thereof, other than in respect of a Permitted Adverse Claim.
(i)
(i) Each Portfolio Report and Outstanding Receivables Report is complete and accurate in all material respects as of its date, (ii) all other information, data, exhibits, documents, books, records and reports (
“Information”
)
furnished by or on behalf of the Seller in connection with this Agreement, any other Transaction Document or any transaction contemplated hereby or thereby is complete and accurate in all material respects as of its date and no such Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not materially misleading;
provided
, that, with respect to projected financial information provided by or on behalf of the Seller, the Seller represents only that such information was prepared in good faith by management of the Seller on the basis of assumptions believed by such management to be reasonable as of the time made, and (iii) all financial statements which have been furnished by or on behalf of the Seller (A) have been prepared in accordance with GAAP consistently applied (except as approved by the external auditors and as disclosed therein, if any) and (B) fairly present, in all material aspects, the financial condition of the Seller and, if applicable, its consolidated Subsidiaries as of the dates set forth therein and the results of any operations of the Seller for the periods ended on such dates.
(j)
It has (i) timely filed or caused to be filed all material Tax returns required to be filed and (ii) paid or made adequate provision for the payment of all material Taxes, assessments and other governmental charges due and payable by it, except any such Taxes, assessments or other governmental charges that are being contested in good faith by appropriate proceedings and for which the Seller has set aside in its books and records reserves in accordance with GAAP as reasonably determined by the Seller.
(k)
The Seller has its registered office, its center of main interests and its principal place of business in the Netherlands. The Seller has no other place of business in any other jurisdiction.
(l)
(i) The names and addresses of all the Seller Operating Account Banks together with the account numbers of the Seller Operating Accounts at such Seller Operating Account Banks are as specified in
Schedule 5
(
Facility Accounts and Account Banks
), as such
Schedule 5
(
Facility Accounts and Account Banks
) may be updated from time to time pursuant to
Section 5.1(g)
(
Change in payment instructions to Obligors
). (ii) Only Collections and other amounts payable in respect of Portfolio Receivables are deposited into the Seller Operating Accounts.
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(m)
Since its formation, the Seller has not used any company name, tradename or doing-business-as name other than the name in which it has executed this Agreement.
(n)
The Seller was formed on March 9, 2011
under the Laws of the Netherlands
and the Seller did not engage in any business activities prior to such date. The Seller has no Subsidiaries.
(o)
The Seller is not an “investment company” as defined in, or is exempt from all provisions of, the Investment Company Act of 1940.
(p)
The Seller is Solvent.
(q)
With respect to each Receivable treated as or represented to be a Portfolio Receivable, the applicable Seller Party purchased such Receivable from the applicable Originator in accordance with the terms of the applicable Originator Sale Agreement in exchange for payment (made by the applicable Seller Party to such Originator in accordance with the provisions of the applicable Originator Sale Agreement) of cash, in an amount which constituted fair market value. Each such purchase referred to above shall not have been made for or on account of an antecedent debt owed by the applicable Originator to the applicable Seller Party, or by any Intermediate Transfer to the Seller, as the case may be, and no such sale, acquisition or other transaction is or may be voidable or subject to avoidance under any section of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(r)
The Seller has no operations or employees in the U.S.
(s)
Each of the representation and warranties of the Seller contained in the Transaction Documents (other than this Agreement), is complete and correct in all material respects and the Seller hereby makes each such representation and warranty to, and for the benefit of, the Administrative Agent and the Secured Parties as if the same were set forth in full herein.
(t)
There have been no material changes to the Credit and Collection Policies since the Closing Date which have not been (i) notified to the Agents pursuant to, and in accordance with, the Transaction Documents or (ii) permitted in accordance with the Transaction Documents.
(u)
It is not required to account to any Official Body for any value added or other substantially similar Tax in respect of the assignment by it of any Receivable or any Related Security related thereto and no withholding or other Tax is deductible or payable on any payment made by an Obligor with respect to any Receivable or any Related Security related thereto.
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5.
COVENANTS
5.1
Covenants of the Seller
Until the Final Payout Date:
(a)
Compliance with laws, etc.
The Seller will comply in all material respects with all applicable Laws and preserve and maintain its corporate existence, rights, franchises, qualifications, and privileges, except to the extent that the failure so to comply with such Laws or the failure so to preserve and maintain such existence, rights, franchises, qualifications and privileges would not have a Material Adverse Effect.
(b)
Offices, records and books of account
The Seller will keep its records concerning the Receivables at (i) the address of the Seller specified in
Section 11.2
(
Notices, etc.
) as of the date of this Agreement or (ii) upon fifteen (15) days prior written notice to the Administrative Agent and the Purchaser Agents, at any other locations in jurisdictions where all actions reasonably requested by the Administrative Agent or any Purchaser Agent to protect and perfect its security interest in the Collateral have been taken and completed. The Seller also will maintain and implement, or cause the Master Servicer to maintain and implement, administrative and operating procedures (including an ability to recreate records evidencing Receivables and related Contracts in the event of the loss or destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including records adequate to permit the daily identification of each Receivable and all Collections of and adjustments to each existing Receivable).
(c)
Notice of Seller’s interest
In the event that the Seller shall sell, hold in trust or otherwise transfer any interest in any Receivable, any Related Security or any other Collateral (other than as contemplated by the Transaction Documents), the Seller shall inform the counterparty that it has entered into a securitization program arranged by Rabobank International under which it has securitized certain of its Receivables.
(d)
Sales, Liens, etc.
The Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (except for Permitted Adverse Claims) upon or with respect to, the Portfolio Receivables, any Seller Operating Account, any other Collateral or any other asset of the Seller, or assign any right to receive income in respect thereof and the Seller shall not issue any Equity Interest to any other Person other than the Equity Holder or permit any such Equity Interests to be subject to any Adverse Claim, except as
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otherwise expressly provided for in the Transaction Documents. Nothing in this
Section 5.1(d
) shall prevent the Seller from making Restricted Payments otherwise permitted under
Section 5.1(n)
.
(e)
Extension or amendment of Portfolio Receivables and Contracts
Except as provided in
Section 2.2(c)
(
Duties of the Master Servicer
) of the Servicing Agreement, the Seller will not (i) extend, amend or otherwise modify the terms of any Portfolio Receivable or any Related Security, or (ii) amend, modify or waive any term or condition of any Contract related thereto except (i) in accordance with the applicable Credit and Collection Policies, (ii) as required by Law or (iii) otherwise in a manner that would not have a Material Adverse Effect or materially adversely affect the interests or remedies of the Secured Parties.
(f)
Change in Business
The Seller will not make any change to the character of its business.
(g)
Change in payment instructions to Obligors
The Seller will not add or terminate any Seller Operating Account from those listed in
Schedule 5
(
Facility Accounts and Facility Account Banks
), or make any change in any instruction to Obligors regarding payments to be made in respect of the Receivables which would adversely affect the likelihood that Obligors will make payments directly to the relevant Collection Account or payments to be made to any Seller Operating Account unless the Administrative Agent and each Purchaser Agent shall have received at least fifteen (15) days prior written notice of such addition, termination or change (including an updated
Schedule 5
(
Facility Accounts and Facility Account Banks
)) and a fully executed Security Document with respect to each new Seller Operating Account has been delivered to the Administrative Agent. Each Seller Operating Account shall be maintained at all times in the name of the Seller and at a bank or other financial institution with at least two of the three following ratings: at least A-1 by S&P, P-1 by Moody’s and F1 by Fitch.
(h)
Deposits to Seller Operating Accounts
If the Seller shall receive any Collections directly, the Seller shall (or will cause the Master Servicer to) promptly (and in any event within two (2) Business Days) cause such Collections to be deposited into a Seller Operating Account or Collection Account. The Seller will not permit and will (and will cause the Servicer Parties to) prevent funds which do not constitute Collections of Receivables or the proceeds of Incremental Investments or Subordinated Loans under the Subordinated Loan Agreement from being deposited into any Seller Operating Account.
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(i)
Further Assurances; Change in Name or Jurisdiction of Organisation, etc.
(i)
The Seller agrees from time to time, at its expense, promptly to execute and deliver all further instruments and documents, and to take all further actions, that the Administrative Agent may reasonably request, to (A) perfect, protect or more fully evidence the Administrative Agent’s security interest in the Seller Operating Accounts and the other Collateral, (B) enable the Conduit Purchasers, the Committed Purchasers, the Purchaser Agents or the Administrative Agent to exercise and enforce their respective rights and remedies under this Agreement or (C) ensure that the transactions contemplated hereunder and under the other applicable Transaction Documents are treated as true sales. Without limiting the foregoing, the Seller will at its expense, within ten (10) Business Days request of the Administrative Agent, duly execute, file, or serve in or on the appropriate filing office, Official Body or other Person in each jurisdiction necessary all registrations, notices, financing or continuation statements, or amendments thereto, and such other instruments and other documents, that may be necessary or reasonably desirable, or that the Administrative Agent may reasonably request, to perfect, protect or evidence the Administrative Agent’s security interest in the Seller Operating Accounts and the other Collateral. The Seller authorizes the Administrative Agent to file financing or continuation statements or similar instruments, and amendments thereto and assignments thereof, relating to the Seller Operating Accounts and the other Collateral for the purpose of evidencing or protecting its security interest in connection therewith without the signature of the Seller. A photocopy or other reproduction of this Agreement shall be sufficient as a financing statement where permitted by Law.
(ii)
The Seller will at all times be incorporated under the laws of Netherlands
and will not take any action to change its jurisdiction of organisation.
(iii)
The Seller will not change its name, identity, corporate structure, location, registered office, its centre of main interests, its principal place of management or tax identification number or make any other change which could render any financing statement or similar instrument filed in connection with any Transaction Document seriously misleading or otherwise ineffective under applicable Law, unless the Administrative Agent shall have received at least fifteen (15) days advance written notice of such change prior to the effectiveness thereof and all action by the Seller necessary or appropriate to perfect or maintain the perfection of the Administrative Agent’s security interest in the Seller Operating Accounts and the other Collateral (including the filing of all financing statements or similar instruments and the taking of such other action as the Administrative Agent may request in connection with such change) shall have been duly taken.
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(j)
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Separateness
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The Seller shall:
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(i)
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maintain corporate records and books of account separate from those of any other Transaction Party;
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(ii)
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ensure that the resolutions, agreements and other instruments underlying the transactions described in the Transaction Documents shall be continuously maintained as official records;
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(iii)
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maintain an arm’s-length relationship with each other Transaction Party and not hold itself out as being liable for any Indebtedness of any other Transaction Party;
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(iv)
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keep its assets and its liabilities wholly separate from those of each other Transaction Party;
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(v)
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not mislead third parties by conducting or appearing to conduct business on behalf of any other Transaction Party or expressly or impliedly representing or suggesting that the Seller is liable or responsible for any Indebtedness of any other Transaction Party or that the assets of the Seller are available to pay the creditors of any other Transaction Party;
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(vi)
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not hold any other Transaction Party out to third parties as other than an entity with assets and liabilities distinct from the Seller;
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(vii)
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not hold itself out to be responsible for any decisions or actions relating to any other Transaction Party.
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(viii)
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take such other actions as are necessary on its part to ensure that all corporate procedures required by its Organizational Documents are duly and validly taken;
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(ix)
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keep correct and complete records and books of account and corporate minutes;
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(x)
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not act in any manner that could foreseeably mislead others with respect to the separate identity of each other Transaction Party;
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(xi)
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at all times limit its transactions with each other Transaction Party only to those expressly permitted hereunder or under any other Transaction Document; and
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(xii)
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take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken by it in order to (I) ensure that the assumptions and factual recitations set forth in any true sale opinion or non-consolidating opinion issued in connection with the Transaction Documents remain true and correct in all material respects with respect to it and the other Transaction Party and (II) comply in all
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81
material respects with those procedures described in such provisions which are applicable to it.
(k)
Transaction Documents
Except as permitted under
Section 11.14
(
Limitation on the addition and termination of Originators
) or as otherwise expressly permitted by the Transaction Documents
,
the Seller will not terminate, amend, waive or modify, or consent to any termination, amendment, waiver or modification of, any provision of any Transaction Document or grant any other consent or other indulgence under any Transaction Document, in each case, without the prior written consent of the Administrative Agent and the Required Committed Purchasers (such consent not to be unreasonably withheld);
provided
that the consent of each Committed Purchaser shall be required for any such amendment, waiver, modification, consent or other indulgence that would have a Fundamental Change. The Seller will perform in all material respects all of its obligations under the Transaction Documents and will enforce its rights under the Transaction Documents in accordance with their respective terms. The Seller will take all actions to perfect and enforce its rights and interests (and the rights and interests of the Administrative Agent and the Secured Parties as assignees of Seller) under the Transaction Documents as the Administrative Agent or the Required Committed Purchasers may from time to time reasonably request, including making claims to which it may be entitled under any indemnity, reimbursement or similar provision contained in any Transaction Document.
(l)
Nature of Business; No Subsidiaries; Change in Credit and Collection Policies
The Seller will not engage in any business other than the ownership, collection and financing of Receivables, Related Security and Collections originated by the Originators pursuant to and in accordance with terms of the Transaction Documents. The Seller will not create or form any Subsidiary. The Seller will not amend, modify, change or repeal any of its Organizational Documents without the prior written consent of each Agent. The Seller will not make any material change in the Credit and Collection Policies except (i) as required by Law or (ii) with the prior written consent of each Purchaser Agent (such consent not to be unreasonably withheld). The Seller will not have any employees.
(m)
Mergers, etc.
Except to the extent expressly permitted by the Transaction Documents, the Seller will not liquidate or dissolve or merge with or into or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions), all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets or capital stock or other ownership interest of, or enter into any joint venture or partnership agreement with, any Person.
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(n)
Distributions, etc.
The Seller will not (i) except as otherwise required by applicable Law, declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any of its
Equity Interests in the Seller, or return any capital to its members or other Equity Holders as such, or purchase, retire, defease, redeem or otherwise acquire for value or make any payment in respect of any membership interests or other equity of the Seller or any warrants, rights or options to acquire any membership interests or other equity of the Seller, now or hereafter outstanding, (ii) prepay, purchase or redeem any Indebtedness (other than expressly in accordance with the Transaction Documents), (iii) lend or advance any funds or (iv) repay any loans or advances to, for or from any of its Affiliates (the amounts described in
Sections 5.1(n)(i)
to
(iv)
being referred to as
“Restricted Payments”
);
provided
that the Seller may (x) purchase Receivables and any Related Security and Collections related thereto, and (y) pay amounts owing in respect of the Subordinated Loans, in each case, pursuant to and in accordance with the terms and conditions of the Transaction Documents, including
Section 2.6
(
Collections prior to Facility Termination Date
),
Section 2.7
(
Collections after Facility Termination Date
) and
Section 3
(
Conditions of Purchases
).
(o)
Indebtedness
The Seller will not create, incur, guarantee, assume or suffer to exist any Indebtedness or other liabilities, whether direct or contingent, funded or unfunded, other than (i) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (ii) the incurrence of obligations under this Agreement, (iii) the incurrence of other obligations pursuant to, and, as expressly set forth in, the Transaction Documents or (iv) the incurrence of operating expenses in the ordinary course of business in an amount not to exceed EUR 100,000 at any time outstanding.
(p)
Taxes
The Seller will file all material tax returns and reports required by Law to be filed by it and will within the time period required by applicable Law or regulation pay all material Taxes and governmental charges at any time due and payable by it (including, without limitation, all Taxes payable by the Seller in connection with the Portfolio Receivables and Related Security), except to the extent such Taxes or governmental charges are being contested in good faith by appropriate proceedings and the Seller has set aside in its books adequate reserves in accordance with GAAP as reasonably determined by the Seller.
(q)
Enforcement
The Seller on its behalf, and on behalf of the Secured Parties, shall (or shall cause the Master Servicer Parties to) promptly require compliance with all covenants and obligations in its favor of the Intermediate Transferors contained in the Intermediate Transfer Agreements and all covenants and
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obligations in its favor of the Originators under the Originator Sale Agreements. The Seller shall also deliver consents, approvals, acknowledgements, directions, notices, waivers and take such further actions thereunder as may be directed by the Administrative Agent. The Seller (or the Seller Agent or Master Servicer on its behalf) shall track all funds paid to each Originator as Advanced Purchase Prices and shall at no time permit the transfer of Advanced Purchase Price payments (which have not been applied to the Purchase Price of Receivables that qualify as Eligible Receivables) to exceed 10% of the Unpaid Balance of Portfolio Receivables that qualify as Eligible Receivables set forth in the most recently delivered Portfolio Report with respect to the applicable Originator. In addition, the Seller (or the Seller Agent or Master Servicer on its behalf) shall track all Deferred RPA Purchase Price amounts payable to Originators and shall at no time permit the Deferred RPA Purchase Price amounts to exceed 10% of the Unpaid Balance of Portfolio Receivables that qualify as Eligible Receivables set forth in the most recently delivered Portfolio Report with respect to the applicable Originator.
(r)
Seller Operating Accounts
The Seller will cause all Seller Operating Accounts to be subject at all times to a Security Document and all Collection Accounts to be subject at all times to an Account Security Agreement.
(s)
Change in accountants or accounting policies
The Seller shall promptly notify the Administrative Agent of (i) any change in its auditors or (ii) any material change in its accounting policies to the extent such change in accounting policies could reasonably be expected to have a Material Adverse Effect.
(t)
Power of Attorney
The Seller will not revoke or attempt to revoke any power of attorney granted by it in connection with the transactions contemplated by the Transaction Documents (unless such revocation results from mandatory application of applicable Law).
(u)
Negotiable Instruments
Unless delivered to the Administrative Agent, the Seller shall not take any action to cause any Portfolio Receivable not evidenced by a negotiable instrument upon origination to become evidenced by a negotiable instrument, except in connection with the enforcement or collection of a Defaulted Receivable.
(v)
Delivery of Audited Financial Statements
The Seller shall deliver to the Administrative Agent, within 120 days after the close of each of its fiscal years starting from its fiscal year ending December 31, 2011, a copy of its audited financial statements prepared by its accountants in accordance with GAAP and that are provided to the
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Performance Undertaking Provider in connection with the preparation of the Performance Undertaking Provider’s consolidated annual audited financial statements.
(w)
Licenses, etc.
The Seller shall maintain in full force and effect all licenses, approvals, authorizations, consents, registrations and notifications which are at any time required in connection with the performance of its duties and obligations hereunder and under the other Transaction Documents, except to the extent the failure to do so would not have a Material Adverse Effect.
(x)
Credit and Collection Policies
The Seller shall comply in all material respects with the applicable Credit and Collection Policies.
5.2
Inspections; annual agreed upon procedures audit
Until the Final Payout Date:
(a)
The Seller will, at the expense of the Seller (subject to the proviso to this
Section 5.2(a)
), from time to time during regular business hours as requested by the Administrative Agent and/or any Purchaser Agent upon five (5) Business Days prior notice, permit the Administrative Agent, any Purchaser Agent, or their respective agents or representatives (including independent accountants, which may not be the Seller’s or the Master Servicer’s independent accountants) (i) to conduct audits of the Receivables, the Related Security, the other Collateral and the related books and records, including the Contracts, and collections systems of the Seller; (ii) to examine and make copies of and abstracts from all documents, purchase orders, invoices, agreements, books, records and other information (including computer programs, tapes, discs, punch cards, data processing software, storage media and related property and rights) relating to Receivables, the Related Security and the other Collateral, including, the related Contracts to the extent necessary to preserve the Secured Parties’ rights, and verify the Transaction Parties’ compliance with their obligations, under the Transaction Documents and (iii) to visit the offices and properties of the Seller for the purpose of examining such materials described in
Sections 5.2(a)(i)
and
(ii)
, and to discuss matters relating to Receivables, the Related Security and the other Collateral or the Seller’s performance under the Transaction Documents or under the Contracts with any of the officers or employees of the Seller having knowledge of such matters;
provided
that, unless a Facility Event or Portfolio Event has occurred, only one such examination and visit in any calendar year shall be at the expense of the Seller.
(b)
On or before the 30
th
day before each anniversary of the Closing Date, or at any time upon the occurrence and during the continuance of a Facility Event or Portfolio Event, upon the request of the Administrative Agent and/or any Purchaser Agent, the Seller shall, and shall cause each Servicer Party to, cause a firm of nationally recognized independent accountants or collateral auditors,
85
in either case acceptable to the Administrative Agent (who may also render other services to the Seller, the Servicer Parties or their Affiliates) to furnish a report (addressed to the Administrative Agent and each Purchaser Agent) to the Administrative Agent and each Purchaser Agent (each such report, an
“Accountants’ Letter”
) in a form acceptable to the Administrative Agent and each Purchaser Agent, to the effect that they have performed certain procedures as reasonably requested by the Administrative Agent and the Purchaser Agents (which, unless otherwise agreed by the Administrative Agent and the Purchaser Agents, shall include the procedures identified on
Schedule 6
(
Agreed upon Procedures
)) and examined certain documents and records relating to the Receivables and the servicing thereof and have compared the information contained in certain of the Portfolio Reports and Outstanding Receivables Reports delivered pursuant to the Transaction Documents for the preceding twelve (12) calendar month period with such documents and records and that, on the basis of such procedures, have noted no material instances where the amounts set forth in such Portfolio Reports and Outstanding Receivables Reports are not in agreement with the Master Servicer documents and records, except for such exceptions as shall be set forth in such report. The cost of any Accountants’ Letter shall be paid by the Master Servicer out of its own funds. For the avoidance of doubt, the Seller shall only be responsible for the costs of one such annual review and any such annual review per Servicer Party requested by the Administrative Agent and/or the Purchaser Agents upon the occurrence and during the continuance of a Facility Event or Portfolio Event.
6.
ADMINISTRATION AND COLLECTION OF RECEIVABLES
6.1
Designation of Master Servicer
The servicing, administration and collection of the Portfolio Receivables shall be conducted by the Master Servicer so designated under the Servicing Agreement from time to time. If the Applicable S&P Rating is below “BBB-” (or withdrawn or suspended) and the Applicable Moody’s Rating is below “Baa3” (or withdrawn or suspended), then the Administrative Agent (at the direction of any Purchaser) may appoint a back-up servicer reasonably acceptable to the Administrative Agent hereunder and under the other Transaction Documents at the reasonable expense of the Master Servicer. Such back-up servicer must agree to commence servicing within five Business Days of receipt of notice to succeed the Master Servicer. The Master Servicer shall cooperate with such appointment and take all actions reasonably requested by the Administrative Agent or any Purchaser Agent in connection therewith. The back-up servicer shall be appointed within 3 calendar months of such downgrade (but, for the avoidance of doubt, any failure to appoint a back-up servicer within such timeframe shall not constitute a Facility Termination Event).
6.2
Certain Rights of the Administrative Agent
(a)
The Administrative Agent may (and if so directed by the Majority Committed Purchasers, shall), at any time following the occurrence and during the continuation of a Facility Event or Portfolio Event, have each Seller Operating Account transferred into the name of the Administrative Agent for the benefit of the Secured Parties and/or assume exclusive control of the Seller Operating
86
Accounts and Collection Accounts and, in each case, take such actions to effect such transfer or assumption as it may determine to be necessary or appropriate (including delivering the notices attached to the applicable Security Documents).
(b)
At any time following the occurrence and during the continuation of a Facility Termination Event:
(i)
At the Administrative Agent’s request (acting at the request of the Majority Committed Purchasers) and at the Seller’s expense, the Seller shall, or shall cause each Servicer Party to (and if any Servicer Party shall fail to do so within two (2) Local Business Days, the Administrative Agent may) (i) notify each Obligor of Portfolio Receivables of the transfer, sale, trust, assignation and assignment of the Portfolio Receivables and the Related Security with respect thereto pursuant to the Transaction Documents and of the applicable Purchaser’s ownership of the Portfolio Receivables and the Related Security with respect thereto, (ii) direct such Obligors that payments under any Portfolio Receivable or any Related Security with respect thereto be made directly to the Administrative Agent or its designee and (iii) execute any power of attorney or other similar instrument and/or take any other action necessary or desirable to give effect to such notice and directions, including any action required (x) to convey or perfect the relevant Purchaser’s title in the Portfolio Receivables and Related Security, or (y) to be taken so that the obligations or other indebtedness of such Obligors in respect of any Portfolio Receivables and any Related Security with respect thereto may no longer be legally satisfied by payment to the applicable Originator or any of its Affiliates.
(ii)
At the Administrative Agent’s request (acting at the request of the Majority Committed Purchasers) and at the Seller’s expense, the Seller shall, or shall cause each Servicer Party to (A) assemble all of the Contracts, documents, instruments and other records (including computer tapes and disks) that evidence or relate to the applicable Portfolio Receivables, or that are otherwise necessary or desirable to collect the applicable Portfolio Receivables, and shall make the same available to the Administrative Agent at a place selected by the Administrative Agent or its designee and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Portfolio Receivables in a manner acceptable to the Administrative Agent and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Administrative Agent or its designee.
(c)
The Seller authorizes the Administrative Agent, following the occurrence and during the continuation of a Facility Termination Event, to take any and all steps in the Seller’s name and on behalf of the Seller that are necessary or desirable, in the determination of the Administrative Agent, to collect amounts due under the Portfolio Receivables, including (i) endorsing the Seller’s or any other Transaction Party’s name on checks and other instruments representing
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Collections, and (ii) enforcing the Receivables and the Related Security and the Security Agreements and other Transaction Documents, including to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection with therewith and to file any claims or take any action or institute any proceedings that the Administrative Agent (or such designee) may deem to be necessary or desirable for the collection thereof or to enforce compliance with the terms and conditions of, or to perform any obligations or enforce any rights of the Seller or any other Transaction Party in respect of, the Receivables and the Related Security and the other Transaction Documents.
6.3
Performance of obligations
(a)
If the Master Servicer or the Seller fails to perform any of its obligations under this Agreement or any other Transaction Document and a Servicer Default or Facility Termination Event has occurred and is continuing with respect to the Master Servicer or the Seller, as applicable, the Administrative Agent may (but shall not be required to) itself perform, or cause performance of, such obligation; and the Administrative Agent’s costs and expenses reasonably incurred in connection therewith shall be payable by the Master Servicer or the Seller, as applicable.
(b)
The Seller shall, and shall cause the Master Servicer to, perform their respective obligations, and exercise their respective rights, under the Contracts and the Transaction Documents to the same extent as if the Portfolio Receivables had not been sold and transferred pursuant hereto. The exercise by the Administrative Agent on behalf of the Secured Parties of their rights under this Agreement shall not release the Master Servicer or the Seller from any of their duties or obligations with respect to any Contracts or Transaction Documents. None of the Administrative Agent, the Purchasers or the Purchaser Agents shall have any obligation or liability with respect to any Transaction Documents or Contracts, nor shall any of them be obligated to perform the obligations of any Transaction Party under any Transaction Document or Contract.
(c)
The Administrative Agent’s rights and powers under this
Section 6
and under the Servicing Agreement shall not subject the Administrative Agent to any liability if any action taken by it proves to be inadequate or invalid nor shall such powers confer any obligation whatsoever upon the Administrative Agent.
7.
TERMINATION EVENTS
7.1
Facility Termination Events
If any of the following events (each a
“Facility Termination Event”
) shall occur and be continuing:
(a)
any Facility Party shall fail to make any payment or deposit required to be made by it hereunder or under any other Transaction Document to which it is a party when due hereunder or thereunder and such failure remains unremedied for two (2) Business Days from the earlier to occur of (i) the date upon which
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a Responsible Offer of such Facility Party obtains knowledge of such failure or (ii) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to such Facility Party by the Administrative Agent or any Purchaser Agent;
(b)
any representation, warranty, certification or statement made by any Facility Party in this Agreement or any other Transaction Document to which such Facility Party is a party shall prove to have been incorrect in any material respect when made or deemed made (other than any breach of a representation, warranty, certification or statement solely relating to a Portfolio Receivable for which the entire Deemed Collection amount required to be paid under the applicable Specified Deemed Collection Section has been paid) and such Facility Party shall have failed to remedy such circumstances in a manner such that such representation, warranty, certification or statement is true and correct in all material respects within thirty (30) days after a Responsible Officer of such Facility Party obtained knowledge or received notice thereof;
(c)
other than as addressed in
Section 7.1(a)
, any Facility Party shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Transaction Document to which such Facility Party is a party in any material respect and such Facility Party shall have failed to remedy such failure within thirty (30) days after a Responsible Officer of such Facility Party obtained knowledge or received notice thereof;
(d)
Bunge Limited, any Investor Certificateholder or any Designated Master Trust Obligor shall (i) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation) on the scheduled or original due date with respect thereto; (ii) 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 (iii) 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 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 (A) a default, event or condition described in
clause (i)
,
(ii)
or
(iii)
above shall not at any time constitute a Facility Termination Event unless, at such time, one or more defaults, events or conditions of the type described in
clauses (i)
through
(iii)
above shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which together exceeds in the aggregate $50,000,000; and (B)
clause (iii)
shall be deemed inapplicable if the occurrence of such event or condition referred to above gives rise to an obligation to make mandatory prepayment without further demand of any person on terms agreed prior to the occurrence of such event or condition;
(e)
an Event of Bankruptcy shall occur with respect to any Transaction Party;
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(f)
the Administrative Agent, on behalf of the Secured Parties, shall, for any reason, fail or cease to have a valid and perfected first priority charge, security interest or pledge in the Collateral prior to all other interests;
(g)
a Servicer Default shall occur and be continuing;
(h)
any Change of Control shall occur;
(i)
the Aggregate Invested Amount exceeds the Funding Base as determined by reference to the most recent Portfolio Report delivered under the Servicing Agreement and such circumstance remains unremedied for two (2) Business Days;
(j)
the failure by any Transaction Party to pay one or more final judgments requiring that Transaction Party to pay a sum or sums of money aggregating in excess of $50,000,000 or the Dollar Equivalent thereof in any other currency, which judgments are not discharged or effectively vacated, discharged, bonded, waived or stayed (including by appeal within thirty (30) days from entry thereof) for a period of thirty (30) consecutive days (unless fully covered by insurance as to which the relevant insurance company has acknowledged coverage), or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any such Transaction Party to enforce any such judgment;
(k)
the failure by the Seller to pay one or more final judgments requiring the Seller to pay a sum or sums of money aggregating in excess of $50,000 or the Dollar Equivalent thereof in any other currency which judgments are not discharged or effectively waived or stayed (including by appeal provided that the Seller is not required to make any payment or payments in respect of such judgment pending appeal) for a period of thirty (30) consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Seller to enforce any such judgment;
(l)
except in the case of a termination expressly permitted under
Section 11.14
(
Limitation on the addition and termination of Originators
), any Transaction Document or any material provision thereof shall cease, for any reason, to be in full force and effect, or any Transaction Party shall so assert in writing or any Transaction Party shall otherwise seek to terminate or disaffirm its material obligations under any such Transaction Document;
(m)
the Subordinated Lender fails for any reason (including as the result of the failure to meet any condition precedent) to make a Subordinated Loan under the Subordinated Loan Agreement following delivery by the Seller of a Subordinated Loan Investment Request and such failure remains unremedied for two (2) Business Days; or
(n)
an “Event of Default” occurs under and as defined in the Subordinated Loan Agreement and the Subordinated Lender’s commitment to make further Subordinated Loans thereunder shall be cancelled.
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then, and in any such event, the Administrative Agent shall, at the direction of the Majority Committed Purchasers, declare the Facility Termination Date to have occurred upon notice to the Seller (in which case the Facility Termination Date shall be deemed to have occurred);
provided
that automatically upon the occurrence of any event (without any requirement for the giving of notice) described in
Section 7.1(e)
, the Facility Termination Date shall occur. Upon any such declaration or upon such automatic termination, the Purchasers, the Purchaser Agents and the Administrative Agent shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided after default under applicable Law, which rights and remedies shall be cumulative. Each Committed Purchaser agrees to provide written notice to the Administrative Agent within three (3) Business Days of receipt of notice of the occurrence of a Facility Termination Event or Portfolio Event of both (1) whether it desires to declare the Facility Termination Date and (2) whether it desires to waive such the Facility Termination Event or Portfolio Event;
provided
, that any failure to respond shall be deemed to be (x) a decision not to declare the Facility Termination Date (although any such decision not to declare may be switched to a decision to declare the Facility Termination Date at any time thereafter in such Committed Purchaser’s discretion) and (y) a decision not to waive such Facility Termination Event or Portfolio Event.
7.2
Termination of Facility
If the Facility Termination Date occurs following the occurrence of any Facility Termination Event, Reinvestments shall immediately terminate without demand, protest or further notice of any kind, all of which are hereby expressly waived by each Seller Party. The aforementioned rights and remedies shall be without limitation, and shall be in addition to all other rights and remedies of the Agents and the Purchasers otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly preserved, including all rights and remedies provided under the UCC, all of which rights shall be cumulative.
8.
THE ADMINISTRATIVE AGENT
8.1
Authorization and Action
(a)
The Administrative Agent shall:
(i)
hold, administer and realize any Collateral that is transferred or assigned by way of security (
Sicherungseigentum/Sicherungsabtretung
) or otherwise granted to it creating or evidencing a non-accessory security right (
nicht akzessorische Sicherheit
) in its own name as trustee (
Treuhänder
) for the benefit of the Secured Parties;
(ii)
hold, administer, and realize any Collateral that is pledged (
Verpfändung
) or otherwise transferred to the Administrative Agent creating or evidencing an accessory security right (
akzessorische Sicherheit
) for the benefit of the Secured Parties;
(iii)
the Administrative Agent shall promptly forward to any Purchaser Agent the original or a copy of any document or report which is delivered to the Administrative Agent by any Transaction Party in
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connection with any Transaction Document (including, (i) in the case of any document or report specifically required to be delivered to the Administrative Agent by 12:00 noon (London time) on any Business Day, by the end of such Business Day of receipt and (ii) in the case of each other document or report, by 12:00 noon (London time) on the following Business Day); and
(iv)
upon receipt of the specified direction of all Purchasers, the Majority Committed Purchasers or the Required Committed Purchasers, as applicable, take any action which the Transaction Documents specify must be taken by the Administrative Agent upon receipt of such direction. It is understood and agreed that any Purchaser or Purchaser Agent shall have the ability to request a vote on any matter requiring Purchaser or Purchaser Agent consent hereunder at any time, in which event the Administrative Agent shall promptly solicit such vote.
(b)
Each Secured Party hereby ratifies and approves all acts and declarations done by the Administrative Agent on such Secured Parties’ behalf before the execution of this Agreement.
(c)
Each of the parties to this Agreement agrees that, in relation to any jurisdiction the courts of which would not recognize or give effect to the trust expressed to be created by this Agreement, the relationship of the Secured Parties to the Administrative Agent shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Agreement shall have full force and effect between the parties to this Agreement.
(d)
Each of the Secured Parties hereby authorizes and grants power of attorney (
Vollmacht
) to the Administrative Agent to:
(i)
accept as its representative (
Stellvertreter
) any pledge or other creation of any accessory Collateral granted to it in relation to the German Security Documents and to execute and amend for and on its behalf all German Security Documents to which it is a party, and any other agreements related to the Collateral;
(ii)
execute on behalf of itself and the Secured Parties where relevant and without the need for any further referral to, or authority from, the Secured Parties or any other person all necessary releases of any Collateral created under any of the German Security Documents;
(iii)
realize the Collateral in accordance with the German Security Documents;
(iv)
make and receive all declarations and statements which are necessary or desirable in connection with the Collateral or any of the German Security Documents; and
(v)
undertake all other necessary actions and measures.
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(e)
The Administrative Agent is exempt from the restrictions of section 181 of the German Civil Code (
Bürgerliches Gesetzbuch
) or similar restrictions under any applicable law.
(f)
The Administrative Agent has the power to grant sub-power of attorney (including the release from the restrictions of section 181 of the German Civil Code). A Secured Party which, due to its statutes, is not able to grant an exemption from the restrictions of section 181 of the German Civil Code will notify the Administrative Agent accordingly. Upon demand of the Administrative Agent, such Secured Party will grant a certain power of attorney to the Administrative Agent in order to enable the Administrative Agent to act on the Secured Party’s behalf in accordance with the Transaction Documents in a way the Administrative Agent deems appropriate to maintain the Secured Party’s rights.
(g)
Each Purchaser and Purchaser Agent hereby irrevocably appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Administrative Agent by the terms hereof and the other Transaction Documents, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, the Administrative Agent is empowered and authorized, on behalf of the Secured Parties, to hold and administer the Collateral as trustee for the benefit of the Secured Parties under the Security Documents.
(h)
Without limiting the foregoing, the Administrative Agent and the Seller hereby undertake to enter into an acknowledgment deed, substantially in the form attached hereto as Exhibit D, bearing certain date at law (
data certa
) with the Italian Originator and the Italian Collection Account Banks, in order to acknowledge that pursuant to Clause 2.1 of this Agreement any right, title and interest arising from the Italian Account Security (including those transferred by the Italian Intermediate Transferor to the Seller under the Italian Intermediate Transfer Agreement) has been transferred by the Seller to the Administrative Agent (on behalf of the Purchasers), including the right to exercise all the Seller’s rights and powers under the Italian Account Security Agreement.
(i)
The Administrative Agent shall not have any duties other than those expressly set forth in the Transaction Documents, and no implied obligations or liabilities shall be read into any Transaction Document, or otherwise exist, against the Administrative Agent. The Administrative Agent does not assume, nor shall it be deemed to have assumed, any duty of care or obligation to, or relationship of trust or agency with, any Transaction Party, the Conduit Purchasers, the Committed Purchasers, the Purchaser Agents or any other Secured Party, except as expressly set out in the Transaction Documents. Notwithstanding any provision of this Agreement or any other Transaction Document, in no event shall the Administrative Agent ever be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to any provision of any Transaction Document or applicable Law. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Administrative Agent is
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not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
8.2
Liability of Agent
Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them as Administrative Agent under or in connection with the Transaction Documents (including the Administrative Agent’s servicing, administering or collecting Receivables as Servicer pursuant to
Section 6
(
Administration and Collection of Receivables
)), in the absence of its or their own gross negligence or wilful misconduct. Without limiting the generality of the foregoing, the Administrative Agent:
(a)
may consult with legal counsel (including counsel for the Seller or any Transaction Party), independent accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts;
(b)
makes no warranty or representation to any Purchaser Agent, Conduit Purchaser, Committed Purchaser or other Secured Party (whether written or oral) and shall not be responsible to any Purchaser Agent, Conduit Purchaser, Committed Purchaser or other Secured Party for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or any other Transaction Document;
(c)
shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Transaction Document on the part of any Transaction Party or to inspect the property (including the books and records) of any Transaction Party or to verify the accuracy of any Portfolio Report, Outstanding Receivables Report or any other information received under the Transaction Document;
(d)
shall not be responsible to any Purchaser Agent, Conduit Purchaser, Committed Purchaser or other Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Transaction Document; and
(e)
shall incur no liability under or in respect of this Agreement or any other Transaction Document by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by facsimile) believed by it in good faith to be genuine and signed or sent by the proper party or parties.
8.3
Rabobank International and Affiliates
The obligation of Rabobank International to fund its pro rata share of Incremental Investments under this Agreement may be satisfied by Rabobank International or any
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of its Affiliates. With respect to any Incremental Investment or interest therein owned by it, Rabobank International shall have the same rights and powers under this Agreement as any Committed Purchaser and may exercise the same as though it were not the Administrative Agent. Rabobank International and any of its Affiliates may generally engage in any kind of business with the Transaction Parties or any Obligor, any of their respective Affiliates and any Person who may do business with or own securities of the Transaction Parties or any Obligor or any of their respective Affiliates, all as if Rabobank International were not the Administrative Agent and without any duty to account therefor to the Purchaser Agents, the Conduit Purchasers, the Committed Purchasers or other Secured Parties.
8.4
Indemnification of Administrative Agent
Whether or not the transactions contemplated hereby are consummated, each Committed Purchaser severally agrees to indemnify the Administrative Agent (to the extent not reimbursed by the Transaction Parties), ratably based on the Commitment of such Committed Purchaser (or, if the Commitments have terminated, ratably according to the respective Commitment of such Committed Purchaser immediately prior to such termination), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any other Transaction Document or any action taken or omitted by the Administrative Agent under this Agreement or any other Transaction Document, provided that no Committed Purchaser shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence, fraud or willful misconduct;
provided
, that no action taken in accordance with the direction of the Required Committed Purchasers shall be deemed to constitute gross negligence, fraud or willful misconduct for purposes of this
Section 8.4
. Without limitation of the foregoing, to the extent not previously reimbursed by a Transaction Party or the priority of payments hereunder, each Committed Purchaser shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including attorney’s fees pre-approved by the Purchasers (which approval shall not be unreasonably withheld)) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Transaction Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Seller. The undertaking in this
Section 8.4
shall survive payment on the Final Payout Date and the resignation or replacement of the Administrative Agent.
8.5
Delegation of Duties
The Administrative Agent may execute any of its duties through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
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8.6
Action or inaction by Administrative Agent
The Administrative Agent shall in all cases be fully justified in failing or refusing to take action under any Transaction Document unless it shall first receive such advice or concurrence of the Purchaser Agents, the Required Committed Purchasers, or the Majority Committed Purchasers, as the case may be, and assurance of its indemnification by the Committed Purchasers, as it deems appropriate. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Transaction Document in accordance with a request or at the direction of the Required Committed Purchasers, and such request or direction and any action taken or failure to act pursuant thereto shall be binding upon all Conduit Purchasers, Committed Purchasers and Purchaser Agents. Unless any action to be taken by the Administrative Agent under a Transaction Document (a) specifically requires the advice or concurrence of the Purchaser Agents or (b) specifically provides that it be taken by the Administrative Agent alone or without any advice or concurrence of the Purchaser Agents, then the Administrative Agent may (and shall, to the extent required hereunder) take action based upon the advice or concurrence of the Required Committed Purchasers.
8.7
Notice of Facility Events; Action by Administrative Agent
The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Facility Event or Portfolio Event or any other default or termination event under the Transaction Documents, as the case may be, unless the Administrative Agent has received notice from any Purchaser Agent, any Purchaser or any Transaction Party stating that a Facility Event or Portfolio Event has occurred hereunder or thereunder and describing such termination event or default. If the Administrative Agent receives such a notice, it shall promptly give notice thereof to the Purchaser Agents whereupon the Purchaser Agents shall promptly give notice thereof to their respective Conduit Purchaser(s) and Committed Purchasers. The Administrative Agent shall take such action concerning a Facility Event or Portfolio Event or any other matter hereunder as may be directed by the Required Committed Purchasers (subject to the other provisions of this
Section 8
), but until the Administrative Agent receives such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, as the Administrative Agent deems advisable and in the best interests of the Purchasers (unless specifically required by the terms of the applicable Transaction Document to await instruction from all Purchasers, the Majority Committed Purchasers or the Required Committed Purchasers, as applicable).
8.8
Non-Reliance on Administrative Agent and Other Parties
Each Purchaser Agent and each Purchaser expressly acknowledges that neither the Administrative Agent nor any of its directors, officers, agents or employees has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Transaction Parties, shall be deemed to constitute any representation or warranty by the Administrative Agent. Each Purchaser represents and warrants to the Administrative Agent that, independently and without reliance upon the Administrative Agent, any Purchaser Agent or any other Purchaser and based on such documents and information as it has deemed appropriate, it has made and will continue to make its own appraisal of and
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investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of each Transaction Party and the Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document. Except for items expressly required to be delivered under any Transaction Document by the Administrative Agent to any Purchaser Agent or any Purchaser, the Administrative Agent shall not have any duty or responsibility to provide any Purchaser Agent or Purchaser with any information concerning the Transaction Parties or any of their Affiliates that comes into the possession of the Administrative Agent or any of its directors, officers, agents, employees, attorneys-in-fact or Affiliates.
8.9
Successor Administrative Agent
The Administrative Agent may, upon at least thirty days notice to the Seller, the Master Servicer and the Purchaser Agents, resign as Administrative Agent. In addition, if either (i) the Administrative Agent has defaulted in the performance of its obligations under the Transaction Documents or (ii) the Administrative Agent is no longer Solvent, the Administrative Agent may be removed by the Purchaser Agents representing the Majority Committed Purchasers upon 30 days prior notice in the case of clause (i) above or immediately in the case of clause (ii) above. Except as provided below, such resignation or removal shall not become effective until a successor Administrative Agent is appointed by the Purchaser Agents (with the consent of the Master Servicer, such consent not to be unreasonably withheld or delayed) and has accepted such appointment. If no successor Administrative Agent shall have been appointed within 90 days after the departing Administrative Agent’s giving of notice of resignation, the departing Administrative Agent may appoint a successor Administrative Agent, which successor Administrative Agent shall have short-term debt ratings of at least A-1 from S&P and P-1 from Moody’s and shall be either a commercial bank having a combined capital and surplus of at least $250,000,000 or a Subsidiary of such an institution and shall be acceptable to the Master Servicer (such acceptance not to be unreasonably withheld or delayed). If no successor Administrative Agent shall have been appointed within 120 days after the departing Administrative Agent’s giving of notice of resignation, the departing Administrative Agent may petition a court of competent jurisdiction to appoint a successor Administrative Agent, which successor Administrative Agent shall have short-term debt ratings of at least A-1 from S&P and P-1 from Moody’s, and shall be either a commercial bank having a combined capital and surplus of at least $250,000,000 or a Subsidiary of such an institution. Upon such acceptance of its appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from any further duties and obligations under the Transaction Documents. After any retiring Administrative Agent’s resignation hereunder, the provisions of
Section 2.6
(
Indemnities
) of the Servicing Agreement and
Section 10
(
Indemnities by the Seller
) and this
Section 8
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent.
8.10
Consent to agreed upon procedures
Each of the Purchasers and the Purchaser Agents, by becoming a party to this Agreement, authorizes the Administrative Agent (a) to execute on its behalf a letter
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agreement with respect to the limited engagement of, and consenting to the agreed upon procedures to be performed by, a firm of nationally recognized independent accountants or collateral auditors, in either case acceptable to the Administrative Agent in connection with the transactions contemplated by the Transaction Documents so long as such procedures are consistent with
Section 5.2
(
Inspections; annual agreed upon procedures audit
); and (b) to approve additional agreed upon procedures.
9.
THE PURCHASER AGENTS
9.1
Authorization and action
Each Conduit Purchaser and each Committed Purchaser which belongs to the same Purchaser Group hereby appoints and authorizes the Purchaser Agent for such Purchaser Group to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Purchaser Agent by the terms hereof and the other Transaction Documents, together with such powers as are reasonably incidental thereto. No Purchaser Agent shall have any duties other than those expressly set forth in the Transaction Documents, and no implied obligations or liabilities shall be read into any Transaction Document, or otherwise exist, against any Purchaser Agent. No Purchaser Agent assumes, nor shall it be deemed to have assumed, any obligation to, or relationship of trust or agency with any Transaction Party, Conduit Purchaser or Committed Purchaser except as otherwise expressly agreed by such Purchaser Agent. Notwithstanding any provision of this Agreement or any other Transaction Document, in no event shall any Purchaser Agent ever be required to take any action which exposes such Purchaser Agent to personal liability or which is contrary to any provision of any Transaction Document or applicable Law.
9.2
Purchaser Agent’s reliance, etc.
No Purchaser Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them as a Purchaser Agent under or in connection with this Agreement or the other Transaction Documents in the absence of its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, a Purchaser Agent: (a) may consult with legal counsel (including counsel for the Administrative Agent, the Seller, any Transaction Party), independent accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Conduit Purchaser or Committed Purchaser (whether written or oral) and shall not be responsible to any Conduit Purchaser or Committed Purchaser for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or any other Transaction Document; (c) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Transaction Document on the part of any Transaction Party or any other Person or to inspect the property (including the books and records) of any Transaction Party or to verify the accuracy of any Portfolio Report, Outstanding Receivables Report or any other information received under the Transaction Document; (d) shall not be responsible to any Conduit Purchaser or any Committed Purchaser for the due execution, legality,
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validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Transaction Documents or any other instrument or document furnished pursuant hereto; and (e) shall incur no liability under or in respect of this Agreement or any other Transaction Document by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by facsimile) believed by it to be genuine and signed or sent by the proper party or parties.
9.3
Purchaser Agent and Affiliates
With respect to any Investment or interests therein owned by it, each Purchaser Agent shall have the same rights and powers under this Agreement as any Committed Purchaser and may exercise the same as though it were not a Purchaser Agent. The Purchaser Agent and any of its Affiliates may generally engage in any kind of business with any Transaction Party or any Obligor, any of their respective Affiliates and any Person who may do business with or own securities of any Transaction Party or any Obligor or any of their respective Affiliates, all as if such Purchaser Agent were not a Purchaser Agent and without any duty to account therefore to any Conduit Purchasers or Committed Purchasers.
9.4
Indemnification of Purchaser Agents
Each Committed Purchaser in any Purchaser Group severally agrees to indemnify the Purchaser Agent for such Purchaser Group (to the extent not reimbursed by the Transaction Parties), ratably according to its Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Purchaser Agent in any way relating to or arising out of this Agreement or any other Transaction Document or any action taken or omitted by such Purchaser Agent under this Agreement or any other Transaction Document;
provided
that no Committed Purchaser shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Purchaser Agent’s gross negligence or willful misconduct.
9.5
Delegation of Duties
Each Purchaser Agent may execute any of its duties through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Purchaser Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
9.6
Action or inaction by Purchaser Agent
Each Purchaser Agent shall in all cases be fully justified in failing or refusing to take action under any Transaction Document unless it shall first receive such advice or concurrence of the Conduit Purchasers and Committed Purchasers in its Purchaser Group and assurance of its indemnification by the Committed Purchasers in its Purchaser Group, as it deems appropriate. Each Purchaser Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Transaction Document in accordance with a request or at the direction of the
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Committed Purchasers in its Purchaser Group representing a majority of the Commitments in such Purchaser Group, and such request or direction and any action taken or failure to act pursuant thereto shall be binding upon all Conduit Purchasers and Committed Purchasers in its Purchaser Group.
9.7
Notice of Events of Termination
No Purchaser Agent shall be deemed to have knowledge or notice of the occurrence of any Facility Event or Portfolio Event or and other default or termination event under the Transaction Documents unless such Purchaser Agent has received notice from the Administrative Agent, any Conduit Purchaser or Committed Purchaser, any Servicer Party or the Seller stating that a Facility Event or Portfolio Event or default or termination event under the Transaction Documents, as the case may be, has occurred hereunder or thereunder and describing such termination event or default. If a Purchaser Agent receives such a notice, it shall promptly give notice thereof to the Conduit Purchasers and Committed Purchasers in its Purchaser Group and to the Administrative Agent (but only if such notice received by such Purchaser Agent was not sent by the Administrative Agent). A Purchaser Agent may take such action concerning a Facility Event or Portfolio Event as may be directed by Committed Purchasers in its Purchaser Group representing a majority of the Commitments in such Purchaser Group (subject to the other provisions of this
Section 9
), but until such Purchaser Agent receives such directions, such Purchaser Agent may (but shall not be obligated to) take such action, or refrain from taking such action, as such Purchaser Agent deems advisable and in the best interests of the Conduit Purchasers and Committed Purchasers in its Purchaser Group.
9.8
Non-reliance on Purchaser Agent and other Parties
Except to the extent otherwise agreed to in writing between a Conduit Purchaser and its Purchaser Agent, each Conduit Purchaser and Committed Purchaser expressly acknowledges that neither the Purchaser Agent for its Purchaser Group nor any of such Purchaser Agent’s directors, officers, agents or employees has made any representations or warranties to it and that no act by such Purchaser Agent hereafter taken, including any review of the affairs of the Transaction Parties, shall be deemed to constitute any representation or warranty by such Purchaser Agent. Each Conduit Purchaser and Committed Purchaser represents and warrants to the Purchaser Agent for its Purchaser Group that, independently and without reliance upon such Purchaser Agent, any other Purchaser Agent, the Administrative Agent or any other Conduit Purchaser or Committed Purchaser and based on such documents and information as it has deemed appropriate, it has made and will continue to make its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of the Transaction Parties and the Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document. Except for items expressly required to be delivered under any Transaction Document by a Purchaser Agent to any Conduit Purchaser or Committed Purchaser in its Purchaser Group, no Purchaser Agent shall not have any duty or responsibility to provide any Conduit Purchaser or Committed Purchaser in its Purchaser Group with any information concerning the Transaction Parties or any of their Affiliates that comes into the possession of such Purchaser Agent or any of its directors, officers, agents, employees, attorneys-in-fact or Affiliates.
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9.9
Successor Purchaser Agent
Any Purchaser Agent may, upon at least 30 days notice to the Administrative Agent, the Seller, the Master Servicer and the Conduit Purchasers and Committed Purchasers in its Purchaser Group, resign as the Purchaser Agent for its Purchaser Group. Except as provided below, such resignation shall not become effective until a successor Purchaser Agent has been, with the consent of the Master Servicer (such consent not to be unreasonably withheld), appointed in the manner prescribed by the relevant Program Support Agreements or, in the absence of any provisions in such Program Support Agreements providing for the appointment of a successor Purchaser Agent, until a successor Purchaser Agent is appointed by the Conduit Purchaser(s) in such Purchaser Group (with the consent of the Committed Purchasers representing a majority of the Commitments in such Purchaser Group) and has accepted such appointment. If no successor Purchaser Agent shall have been so appointed within 30 days after the departing Purchaser Agent’s giving of notice of resignation, then the departing Purchaser Agent may appoint a successor Purchaser Agent for such Purchaser Group, which successor Purchaser Agent shall have short-term debt ratings of at least A-1 from S&P and P-1 from Moody’s and shall be either a commercial bank having a combined capital and surplus of at least $250,000,000 or an Affiliate of such an institution. Upon such acceptance of its appointment as Purchaser Agent for such Purchaser Group hereunder by a successor Purchaser Agent, such successor Purchaser Agent shall succeed to and become vested with all the rights and duties of the retiring Purchaser Agent, and the retiring Purchaser Agent shall be discharged from any further duties and obligations under the Transaction Documents. After any retiring Purchaser Agent’s resignation hereunder, the provisions of
Section 2.6
(
Indemnities
) of the Servicing Agreement and
Section 10
(
Indemnities by the Seller
) and this
Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was a Purchaser Agent.
9.10
Reliance on Purchaser Agent
Unless otherwise advised in writing by a Purchaser Agent or by any Conduit Purchaser or Committed Purchaser in such Purchaser Agent’s Purchaser Group, each party to this Agreement may assume that (a) such Purchaser Agent is acting for the benefit and on behalf of each of the Conduit Purchasers and Committed Purchasers in its Purchaser Group, as well as for the benefit of each assignee or other transferee from any such Person and (b) each action taken by such Purchaser Agent has been duly authorized and approved by all necessary action on the part of the Conduit Purchasers and Committed Purchasers in its Purchaser Group.
10.
INDEMNITIES BY THE SELLER
Without limiting any other rights that the Administrative Agent, the Purchaser Agent, the Conduit Purchasers (including any related financing conduit if any such Conduit Purchaser funds itself through another issuing entity), the Committed Purchasers, the Program Support Providers, any Program Manager or any of their respective officers, directors, agents, employees, controlling Persons or Affiliates of any of the foregoing (each, an
“Indemnified Party”
) may have hereunder, under any other Transaction Document or under applicable Law, the Seller hereby agrees to indemnify and hold harmless each Indemnified Party from and against any and all damages, losses, claims, liabilities, deficiencies, costs, disbursements and expenses, including interest,
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penalties, amounts paid in settlement and reasonable internal and external attorneys’ fees and expenses (all of the foregoing being collectively referred to as
“Indemnified Amounts”
) awarded against or incurred by any Indemnified Party (including in connection with or relating to:
(i) any investigation, litigation or lawsuit (actual or threatened) or order, consent decree, judgment, claim or other action of whatever sort (including the preparation of any defense with respect thereto), in each case, in any way arising out of, resulting from or related to this Agreement or any other Transaction Document, the funding or maintenance or financing, either directly or indirectly, by any Indemnified Party of the Investments made hereunder or the use of the proceeds thereof or in respect of any Collateral or any Facility Account or the enforcement, servicing, administration or collection thereof, or any other transaction contemplated hereby or thereby;
(ii) the occurrence of any Facility Event, Portfolio Event, Seller Event or Servicer Default;
(iii) the failure to vest in the Seller ownership of the Portfolio Receivables, the Related Security with respect thereto and other Collateral free of any Adverse Claims;
(iv) the failure to vest in the Administrative Agent a first priority perfected ownership or security interest prior to all other interests in all of the Portfolio Receivables, the Related Security with respect thereto, the Facility Accounts and other Collateral, free and clear of any Adverse Claim;
(v) any dispute, claim, setoff or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise, goods or services related to such Receivable or the furnishing or failure to furnish such merchandise, goods or services or relating to collection activities with respect to such Receivable or from any breach or alleged breach of any provision of the Receivables or any Contracts related thereto restricting assignment of any Receivables; or
(vi) the commingling by any Transaction Party of Collections of Portfolio Receivables at any time with any other funds, the payment of any Collections into an account other than a Facility Account, or any failure of a bank or other financial institution at which a Facility Account is maintained to remit any amounts held in the Facility Accounts or any related lock-boxes pursuant to applicable instructions whether by reason of the exercise of setoff rights or otherwise;
excluding, however (a) Indemnified Amounts to the extent that such Indemnified Amounts resulted from the negligence, fraud or wilful misconduct on the part of such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement or any other Transaction Document) for Uncollectible Portfolio Receivables and Related Security with respect thereto, (c) any Excluded Taxes, and (d) any Indemnified Amount to the extent the same has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document.
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11.
MISCELLANEOUS
11.1
Amendments, etc.
No failure on the part of the Purchaser Agents, the Conduit Purchasers, the Committed Purchasers or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. No amendment or waiver of any provision of this Agreement or consent to any departure by any Transaction Party therefrom shall be effective unless in writing signed by the Administrative Agent, with the prior written consent of each Purchaser Agent (and, in the case of any amendment, also signed by the Seller, the Master Servicer and the Performance Undertaking Provider), and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;
provided
that, notwithstanding the foregoing, the Majority Committed Purchasers may waive any Portfolio Event or Facility Termination Event; and
provided
,
further
, that (i) no amendment, waiver or consent shall increase the Commitment of any Committed Purchaser unless in writing and signed by such Committed Purchaser and the relevant Purchaser Agent and (ii) no amendment, waiver or consent shall alter the duties of any Purchaser Agent in any material respect without the consent of such Purchaser Agent. Following the occurrence of a Portfolio Event or Facility Termination Event and either (i) any waiver of such Portfolio Event or Facility Termination Event (as described above or in
Section 7.1
) or (ii) the failure of the Committed Purchasers to declare the Facility Termination Date where one or more Committed Purchasers have voted in favour of such declaration, any Committed Purchaser (and its related Conduit Purchaser) which voted against such waiver or in favour of the declaration of the Facility Termination Date may notify the Seller, the Master Servicer and the Administrative Agent in writing that it did not consent to such waiver and has opted for an early exit from this facility. If the Administrative Agent is one of the Committed Purchasers exiting the facility, (i) one of the waiving Committed Purchasers (or its related Purchaser Agent) shall be immediately appointed as the successor Administrative Agent by the waiving Committed Purchasers (without the consent of the Seller or the Master Servicer or the necessity of satisfying any of the other requirements of
Section 8.9
) and (ii) all necessary steps shall be taken to transition all rights, obligations, security interests, charges, etc. to the successor Administrative Agent as a condition to such exit by the predecessor Administrative Agent. Following delivery of such notice, and for so long as the Facility Termination Date has not occurred, the Seller may draw on the non-exiting Purchasers to the extent of any unused Commitments and availability hereunder (and subject to the conditions set forth in
Section 3.2
) to repay the Invested Amounts of each exiting Purchaser and/or shall allocate all Collections received (after paying amounts required under
Sections 2.6(e)(i)-(v)
) on a non-pro rata basis to the repayment of such Committed Purchaser (and its related Conduit Purchaser), in each case, until the Invested Amount of each exiting Purchaser has been reduced to zero (instead of reinvesting such amounts) (it being understood that if there are several exiting Purchasers, the allocation of Collections shall be paid on a pro rata basis across all exiting Purchasers). In addition, the Commitment of any exiting Committed Purchaser shall be reduced to zero and no further Investments shall be made by such Committed Purchaser (or its related Conduit Purchaser). For purposes of any voting by the Purchasers during the exiting process of a Committed Purchaser, such
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Committed Purchaser (and its related Conduit Purchaser) shall be permitted to vote based on their then-current Invested Amount.
11.2
Notices, etc.
All communications and notices provided for hereunder shall be provided in the manner described in
Schedule 2
(
Address and Notice Information
).
11.3
Assignability
(a)
General
This Agreement and each Purchaser’s rights and obligations hereunder shall be assignable by such Purchaser and its successors and permitted assigns to any Eligible Assignee subject to
Sections 11.3(b)
and
(c)
. Each assignor of an Investment or any interest therein shall notify the Administrative Agent and the Seller of any such assignment. Each assignor of an Investment or any interest therein may, in connection with the assignment or participation, disclose to the assignee or participant any information relating to the Transaction Parties, including the Collateral, furnished to such assignor by or on behalf of any Transaction Party or by the Administrative Agent; provided that, prior to any such disclosure, the assignee or participant agrees to preserve the confidentiality of any confidential information relating to the Transaction Parties received by it from any of the foregoing entities in a manner consistent with
Section 11.6(b)
(
Confidentiality
).
Notwithstanding the foregoing, the provisions and procedures set forth in this clause 11.3 (
Assignability
) shall not apply to any assignment made by a Committed Purchaser for the sole purpose of refinancing such Committed Purchaser’s Invested Amount using, in this respect, any entity within its group or managed by its Purchaser Agent. In such a case, a Committed Purchaser may assign any of its rights with respect to such Invested Amount to such entities without any restriction.
(b)
Assignments by Conduit Purchasers
Each Conduit Purchaser may pledge or otherwise grant security interests in all or any portion of the Investments to a security trustee in connection with its commercial paper program without prior notice to or consent from any other party or any other condition or restriction of any kind. Each Conduit Purchaser may assign or otherwise transfer all or any portion of the Investments to any Conduit Assignee or Program Support Provider with respect to such Conduit Purchaser without prior notice to or consent from any other party or any other condition or restriction of any kind. Without limiting the generality of the foregoing, each Conduit Purchaser may, from time to time assign all or any portion of its interest in the Investments and its rights and obligations under this Agreement and any other Transaction Documents to which it is a party to an Eligible Assignee. Upon such assignment by a Conduit Purchaser to a Conduit Assignee, (i) unless a new Purchaser Group is being established pursuant to
Section 11.3(i)
, the Purchaser Agent for such Conduit Purchaser will act as the Purchaser Agent for such Conduit Assignee
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hereunder, (ii) such Conduit Assignee (and any related commercial paper issuer, if such Conduit Assignee does not itself issue commercial paper) and its liquidity support provider(s) and credit support provider(s) and other related parties (including all of its Program Support Providers) shall have the benefit of all the rights and protections provided to such Conduit Purchaser and its related Committed Purchasers herein and in the other Transaction Documents (including any limitation on recourse against such Conduit Assignee), (iii) such Conduit Assignee shall assume all of such Conduit Purchaser’s obligations hereunder or under any other Transaction Document (whenever created, whether before or after such assignment) with respect to the assigned portion of the Investments held by such Conduit Purchaser and such Conduit Purchaser shall be released from all such obligations, (iv) all distributions to such Conduit Purchaser hereunder with respect to the assigned portion of the Investments shall be made to such Conduit Assignee, (v) the definition of the term “CP Rate” shall be determined on the basis of the interest rate or discount applicable to Commercial Paper issued by such Conduit Assignee (and any related commercial paper issuer, if such Conduit Assignee does not itself issue commercial paper) rather than such assigning Conduit Purchaser, (vi) the defined terms and other terms and provisions of this Agreement and the other Transaction Documents shall be interpreted in accordance with the foregoing and (vii) if requested by the Administrative Agent or the Purchaser Agent with respect to such Conduit Assignee, the parties will execute and deliver such further agreements and documents (including amendments to this Agreement) and take such other actions as the Administrative Agent or such Purchaser Agent may reasonably request to evidence and give effect to the foregoing.
(c)
Assignment by Committed Purchasers
Each Committed Purchaser may assign to any Eligible Assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and any Investments or interests therein owned by it);
provided
that:
(i)
each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(ii)
the amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of (A) $125,000,000 (in U.S. Dollars or the Dollar Equivalent) and (B) all of the assigning Committed Purchaser’s Commitment; and
(iii)
the parties to each such assignment shall execute and deliver to the Administrative Agent, for its recording in the Register (as defined below), an Assignment and Acceptance, together with a processing and recordation fee of $5,000 (which fee shall not be payable with respect to any assignment by a Committed Purchaser of a type described in the last sentence of
Section 11.3(a))
. The Seller shall have no responsibility for such fee.
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Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Committed Purchaser thereunder and (y) the assigning Committed Purchaser shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Committed Purchaser’s rights and obligations under this Agreement, such Committed Purchaser shall cease to be a party hereto). In addition, any Committed Purchaser or any of its Affiliates may assign any of its rights (including rights to payment of any Invested Amount and Yield) under this Agreement to any U.S. Federal Reserve Bank or European Central Bank without notice to or consent of any Transaction Party, any other Committed Purchaser or Conduit Purchaser, any Purchaser Agent or the Administrative Agent.
(d)
Register
At all times during which any Investment is outstanding, the Administrative Agent shall maintain at its address referred to in
Section 11.2
(or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the
“Register”
). All Investments and any interest therein, and any Assignments and Acceptances of any Investments and any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the Register shall serve as a record of ownership that identifies the owner of each Investment and any interest therein. Notwithstanding any other provision of this Agreement, no transfer of any Investment or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Seller, the Master Servicer, the Administrative Agent, the Purchaser Agents, the Conduit Purchasers and the Committed Purchasers may treat each Person whose name is recorded in the Register as a Committed Purchaser or Conduit Purchaser, as the case may be, under this Agreement for all purposes of this Agreement. This
Section 11.3(d)
shall be construed so that each Investment and any interest therein is maintained at all times in “registered form” within the meaning of clauses 163(f), 871(h) and 881(c) of the IRC, and solely for the purposes of this
Section 11.3
, the Administrative Agent will act as an agent of the Seller. The Register shall be available for inspection by the Seller, the Master Servicer, any Purchaser Agent, any Conduit Purchaser or any Committed Purchaser at any reasonable time and from time to time upon reasonable prior notice.
(e)
Procedure
Upon its receipt of an Assignment and Acceptance executed by an assigning Committed Purchaser and an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein
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in the Register and (iii) give prompt notice thereof to the Seller and the Master Servicer.
(f)
Participations
Each Purchaser may sell participations to one or more banks or other entities that are Eligible Assignees on the date of such sale (each a
“Participant”
) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its interests in the Investments owned by it and, in the case of a Committed Purchaser, its Commitment);
provided
that:
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(i)
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such Purchaser’s obligations under this Agreement shall remain unchanged;
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(ii)
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such Purchaser shall remain solely responsible to the other parties to this Agreement for the performance of such obligations; and
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(iii)
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the Administrative Agent, the Purchaser Agents, the other Purchasers, the Seller and the Master Servicer shall have the right to continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement.
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Any agreement or instrument pursuant to which a Purchaser sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents;
provided
that such agreement or instrument may provide that such Committed Purchaser will not, without the consent of the Participant, agree to any amendment, modification or waiver of a type that would require the consent of each Purchaser affected thereby pursuant to
Section 11.1
(
Amendments, etc.
).
(g)
Seller and Servicer Assignment
Neither the Seller nor the Master Servicer may assign any of its rights or obligations hereunder or any interest herein without the prior written consent of each Purchaser Agent.
(h)
Cooperation
The Seller and the Master Servicer agree to assist each Committed Purchaser, upon its reasonable request, in syndicating their respective Commitments hereunder, including making management and representatives of the Master Servicer and the Seller reasonably available to participate in informational meetings with potential assignees.
(i)
New Purchaser Groups
In connection with any assignment by a Conduit Purchaser of all or any portion of its Invested Amount to a Conduit Assignee, such Conduit Assignee may elect to establish a new Purchaser Group hereunder by the execution and delivery of a Joinder Agreement by such Conduit Assignee, the Committed
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Purchasers which are to be in its Purchaser Group and the Person which is to be the Purchaser Agent for such Purchaser Group, in each case without the consent of any other party. Upon the effective date of such Joinder Agreement, (i) the Person specified therein as a “Purchaser Agent” shall become a party hereto and a party to the Purchaser Fee Letter as the Purchaser Agent, entitled to the rights and subject to the obligations of the Purchaser Agent hereunder and (ii)
Schedule 1
(
Purchaser Groups
) shall be deemed to have been amended as appropriate to incorporate the information set forth in such Joinder Agreement.
11.4
Costs and Expenses
In addition to the rights of indemnification granted under
Section 10
(
Indemnities by the Seller
) and the other obligations herein, the Seller agrees to pay on written demand all reasonable costs and expenses incurred by any Indemnified Party in connection with the preparation, execution, delivery and administration of this Agreement, any Program Support Agreement and the other Transaction Documents, including (a) all rating agency fees, (b) subject to
Section 5.2(a)
(
Inspections; annual agreed upon procedures audit
), all reasonable fees and expenses associated with any audits and other due diligence, (c) any amendments, waivers or consents under the Transaction Documents and (d) to the extent not included in the CP Rate for any Conduit Purchaser or Committed Purchaser refinanced, directly or indirectly, through the issuance of Commercial Paper, all reasonable costs incurred by such Conduit Purchaser to open and maintain accounts in Local Currencies in connection with the Investments made by it hereunder. In addition, the Seller agrees to pay on written demand all costs and expenses (including reasonable counsel fees and expenses), of each of the Administrative Agent, the Purchaser Agents, the Conduit Purchasers, the Committed Purchasers, the Program Support Providers and their respective Affiliates, incurred in connection with the enforcement of, or any dispute, work-out, litigation or preparation for litigation involving, this Agreement or any other Transaction Document.
11.5
No proceedings; no recourse
Each of the parties hereto, each assignee of an Investment or any interest therein and each Person which enters into a commitment to purchase Investments or interests therein hereby agrees that it will not institute against any Conduit Purchaser (including, for the avoidance of doubt, any Conduit Purchaser acting as a Committed Purchaser hereunder) any proceeding of the type referred to in the definition of Event of Bankruptcy so long as any Commercial Paper or other senior indebtedness issued by such Conduit Purchaser (or its related commercial paper issuer) shall be outstanding or there shall not have elapsed two years plus one day since the last day on which any such Commercial Paper or other senior indebtedness shall have been outstanding.
11.6
Confidentiality
(a)
The Fee Letters and any other pricing information relating to the facility contemplated by the Transaction Documents (including such information set forth in any engagement letter, term sheet or proposal prior to the Closing
108
Date) (collectively,
“Product Information”
) is confidential. Each of the Seller, the Performance Undertaking Provider and the Master Servicer agrees:
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(i)
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to keep all Product Information confidential and to disclose Product Information only to those of its officers, employees, agents, accountants, legal counsel and other representatives (collectively
“Representatives”
) who have a need to know such Product Information for the purpose of assisting in the negotiation, completion and administration of the facility contemplated hereby (the
“Facility”
);
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(ii)
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to use the Product Information only in connection with the Facility and not for any other purpose; and
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(iii)
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to cause its Representatives to comply with these provisions and to be responsible for any failure of any Representative to so comply.
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The provisions of this
Section 11.6
shall not apply to Product Information that is or hereafter becomes (through a source other than the Seller, the Master Servicer, the Performance Undertaking Provider or any of their respective Affiliates or Representatives) a matter of general public knowledge. The provisions of this
Section 11.6
shall not prohibit the Seller, the Performance Undertaking Provider or the Master Servicer from filing with any governmental or regulatory agency any information or other documents with respect to the Transaction Documents as may be required by applicable Law.
(b)
The Seller, each Purchaser, each Purchaser Agent, and the Administrative Agent agrees to maintain the confidentiality of all non-public information with respect to the Transaction Parties, the Receivables, the Collections, the Related Security, the Collection Accounts or any other matters furnished or delivered to it pursuant to or in connection with this Agreement or any other Transaction Document (including, for the avoidance of doubt, any such information obtained from another Committed Purchaser, Conduit Purchaser, Purchaser Agent, or the Administrative Agent) ;
provided
that such information may be disclosed (i) to such party’s Affiliates or such party’s or its Affiliates officers, employees, agents, accountants, legal counsel and other representatives or professional advisers (collectively
“Purchaser Representatives”
), in each case, who have a need to know such information for the purpose of assisting in the negotiation, completion and administration of the facility contemplated hereby, (ii) to such party’s permitted (including potential) assignees and participants (and their respective affiliates, representatives and professional advisers) to the extent such disclosure is made pursuant to a written agreement of confidentiality substantially similar to this
Section 11.6(b)
, (iii) to any rating agency (including by means of a password-protected internet website maintained in connection with Rule 17g-5) and to the Program Support Providers for each Conduit Purchaser, (iv) to the extent required by applicable Law or by any Official Body, (v) to any Person who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any interest of such Committed Purchaser or Conduit Purchaser hereunder to the extent such disclosure is made pursuant to a written agreement of confidentiality substantially similar to this
Section
109
11.6(b)
, and (vi) to the extent necessary in connection with the enforcement of any Transaction Document.
The provisions of
Section 11.6(b
) shall not apply to information that is or hereafter becomes (through a source other than the applicable Purchaser, Purchaser Agent or the Administrative Agent or any Purchaser Representative associated with such party) a matter of general public knowledge. The provisions of this
Section 11.6
shall not prohibit any Purchaser, any Purchaser Agent or the Administrative Agent from filing with or making available to any governmental or regulatory agency any information or other documents with respect to the Transaction Documents as may be required by applicable Law or requested by such governmental or regulatory agency.
11.7
Further Assurances
From time to time as may be necessary, each of the Seller and the Master Servicer shall (a) cooperate with each Rating Agency in connection with any review of the Transaction Documents which may be undertaken by such Rating Agency and (b) provide each Rating Agency with such information or access to such information as they may reasonably request in connection with any future review of the ratings referred to above.
11.8
Execution in Counterparts
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by electronic file in a format that is accessible by the recipient shall be effective as delivery of a manually executed counterpart of this Agreement.
11.9
Integration; Binding Effect; Survival of Termination; Severability
This Agreement and the other Transaction Documents executed by the parties hereto on the date hereof contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy). Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until the Final Payout Date;
provided
, that the provisions of
Sections 2.11
,
2.12
,
2.13
,
2.14
,
2.15
,
10
,
11.4
,
11.5
,
11.6
,
11.11
,
11.13
,
11.15
, and
11.17
shall survive any termination of this Agreement. If any one or more of the provisions of this Agreement shall for any reason whatsoever be held invalid, then such provisions shall be deemed severable from the remaining provisions of this
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Agreement and shall in no way affect the validity or enforceability of such other provisions.
11.10
Governing law; consent to jurisdiction; waiver of jury trial
(a)
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(b)
Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably waives, to the fullest extent that it may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c)
Each of the parties hereto consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to it at its address specified herein. Nothing in this
Section 11.10
shall affect the right of any party to serve legal process in any manner permitted by law.
(d)
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
11.11
Right of Setoff
Each Purchaser is hereby authorized (in addition to any other rights it may have) at any time after the occurrence of the Facility Termination Date following the occurrence of a Facility Termination Event to set off, appropriate and apply (without
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presentment, demand, protest or other notice which are hereby expressly waived) any amounts and any other indebtedness held or owing by such Purchaser to, or for the account of, the Seller against the amount of the Transaction Party Obligations owing by the Seller to such Person.
11.12
Ratable payments
If any Committed Purchaser, whether by setoff or otherwise, has payment made to it with respect to any Transaction Party Obligation in a greater proportion than that received by any other Committed Purchaser entitled to receive a ratable share of such Transaction Party Obligation, such Committed Purchaser agrees, promptly upon demand, to purchase for cash without recourse or warranty a portion of such Transaction Party Obligation held by the other Committed Purchasers so that after such purchase each Committed Purchaser will hold its ratable proportion of such Transaction Party Obligation;
provided
that if all or any portion of such excess amount is thereafter recovered from such Committed Purchaser, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, if a Purchaser receives any payment through a proceeding against a Transaction Party and the other Purchasers were provided an opportunity to participate in such proceeding but opted not to, then such Purchaser may retain any such amounts.
11.13
Limitation of Liability
(a)
No claim may be made by any party against any other party or their respective Affiliates, directors, officers, employees, attorneys or agents (each a
“Default Party”
) for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection herewith or therewith, except with respect to any claim arising out of the willful misconduct or gross negligence of such Default Party; and each party hereto hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
(b)
Notwithstanding anything to the contrary contained herein or any other Transaction Document, the obligations of the respective Conduit Purchasers (including, for the avoidance of doubt, any Conduit Purchaser acting as a Committed Purchaser hereunder) under this Agreement and all other Transaction Documents are solely the corporate obligations of each such Conduit Purchaser and shall be payable only at such time as funds are actually received by, or are available to, such Conduit Purchaser in excess of funds necessary to pay in full all outstanding Commercial Paper issued by such Conduit Purchaser and shall be non-recourse other than with respect to such excess funds, and without limiting
Section 11.5
, if ever and until such time as such Conduit Purchaser has sufficient funds to pay such obligation shall not constitute a claim against such Conduit Purchaser. Each party hereto agrees that the payment of any claim of any such party shall be subordinated to the payment in full of all Commercial Paper.
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(c)
No recourse under any obligation, covenant or agreement of any party hereto contained in this Agreement or any other Transaction Document shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of such party or any of their Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement and the other Transaction Documents are solely a corporate obligation of such party, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of any party hereto or any of their Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or agreements of such party contained in this Agreement or any other Transaction Document, or implied therefrom, and that any and all personal liability for breaches by any party of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement or any other Transaction Document;
provided
that the foregoing shall not relieve any such Person from any liability it might otherwise have as a result of grossly negligent or fraudulent actions taken or grossly negligent or fraudulent omissions made by them.
11.14
Limitation on the addition and termination of Originators
(a)
Without limiting the right of any Originator to terminate its rights and obligations to sell Receivables to a Purchaser pursuant to and in accordance with the applicable Originator Sale Agreement, the Seller shall not consent to any request made to terminate any Originator Sale Agreement or to terminate the right or obligation of any Originator to continue selling its Receivables to the Seller or any Intermediate Transferor (as applicable) thereunder, nor will any Originator which is the subject of such request be terminated under an Originator Sale Agreement, in each case unless (i) the Master Servicer provides the Administrative Agent, the Purchaser Agents and each Committed Purchaser with a certificate (signed by a Responsible Officer of the Master Servicer) which attaches a Monthly Report or Weekly Report, as applicable, giving pro forma effect to any reduction in the Net Eligible Receivables Balance resulting from the termination of such Originator or Originator Sale Agreement, and which certifies that, after giving pro forma effect to such termination and any prepayments of Investments on or prior to the date of such termination, the Aggregate Invested Amount does not exceed the Funding Base, (ii) no Facility Termination Event (other than with respect to the Originator so terminated) or Portfolio Event has occurred and is continuing (both before and after giving effect to such termination) and (iii) the Administrative Agent and the Purchaser Agents will have received ten (10) Business Days’ prior written notice of such termination. In the event any Originator or Originator Sale Agreement is so terminated, the ratios used in calculating the performance triggers or reserves shall be determined as if the Receivables of such Originator or Originators under such Originator Sale Agreement, as applicable, had never existed.
113
(b)
The Seller will not, and will not permit any Intermediate Transferor to, consent to the addition of a new Originator under an Originator Sale Agreement except (i) with the consent of the Administrative Agent and each Purchaser Agent (such consent not to be unreasonably withheld), (ii) upon the satisfaction of the conditions precedent specified in such Originator Sale Agreement, and (iii) a reaffirmation from the Performance Undertaking Provider in form and substance reasonably satisfactory to the Administrative Agent and the Required Committed Purchasers pursuant to which the Performance Undertaking Provider reaffirms its obligations under the Performance Undertaking after giving effect to the addition of such new Originator thereunder, together with any opinions and certificates in connection with the addition of such new Originator reasonably requested by the Administrative Agent, the Purchaser Agent or the Seller.
(c)
the Seller will not enter into any new Intermediate Transfer Agreement without the prior consent of the Administration Agent and each Purchaser Agent.
(d)
Bunge Limited, acting on behalf of one or more of its Subsidiaries organized under the laws of a jurisdiction which at the time of such request is not an Approved Originator Jurisdiction, may submit a request in writing to the Administrative Agent in order to seek the approval of the addition of a new Approved Originator Jurisdiction (and a related new Approved Obligor Jurisdiction, Approved Currency and Approved Contract Jurisdiction to the extent necessary) and the entry into a new Originator Sale Agreement relating to such new Approved Originator Jurisdiction,
provided
that:
(i)
the Administrative Agent shall respond to any such request as soon as reasonably practicable following receipt thereof, and any approval of such request, subject to
clause (ii)
below, shall be “in principle” and may be conditional upon the execution by Bunge Limited of a mandate letter to be entered into with Rabobank International in which Rabobank International shall indicate its estimate of the costs to be incurred in adding such Subsidiary(ies) as a new Originator(s) hereunder, including the costs of due diligence in connection with, and structuring of, the securitization of such proposed new Originator’s Receivables;
(ii)
notwithstanding any indication of approval of any such request by the Administrative Agent pursuant to
clause (i)
above, the addition of the proposed new Approved Originator Jurisdiction (and a related new Approved Obligor Jurisdiction, Approved Currency and Approved Contract Jurisdiction to the extent necessary) and any proposed new Originator organized under the laws thereof shall be subject to the final approval of each Purchaser Agent and confirmation from the Rating Agencies that the addition of such new Originator(s) will not result in the reduction or withdrawal of the then-current ratings of any Conduit Purchaser’s Commercial Paper;
(iii)
each Person proposed to become a new Originator has become a party to the Servicing Agreement as a Sub-Servicer and, if applicable, with
114
respect to a new Intermediate Transferor, is reasonably satisfactory to each Committed Purchaser;
(iv)
the Originator Sale Agreement and, if applicable, Intermediate Transfer Agreement are in form and substance satisfactory to each Purchaser Agent;
(v)
the Seller shall have delivered such instruments, opinions and other documents any Committed Purchasers may reasonably request in connection therewith (including amendment of the Performance Undertaking to include the obligations of any new Originator), all of which shall be in form and substance satisfactory to such Committed Purchasers;
(vi)
no Facility Termination Event or Portfolio Event has occurred and is continuing or would result therefrom; and
(vii)
the Administrative Agent and each Purchaser Agent shall have received an amendment hereto reflecting such new Originator Sale Agreement and/or Intermediate Transfer Agreement.
11.15
Judgment Currency
(a)
If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
(b)
The obligations of the Seller in respect of any sum due to any party hereto or any holder of the obligations owing hereunder (the
“Applicable Creditor”
) shall, notwithstanding any judgment in a currency (the
“Judgment Currency”
) other than the currency in which such sum is stated to be due hereunder (the
“Agreement Currency”
), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Seller agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss and if the amount of the Agreement Currency so purchased is more than the sum originally due to the Applicable Creditor in the Agreement Currency, such Applicable Creditor agrees to return any such excess to the Seller. The obligations of the Seller contained in this
Section 11.15
shall survive the termination of this Agreement and the payment of all other amounts owing hereunder.
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11.16
USA Patriot Act
Each Purchaser hereby notifies the Seller that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and any similar Law in any relevant jurisdiction (the
“Acts”
), it is required to obtain, verify and record information that identifies the Transaction Parties, which information includes the name and address of each Transaction Party and other information that will allow such Purchaser to identify such Transaction Party in accordance with the Acts.
11.17
No proceeding; limited recourse
(a)
Each of the parties hereto hereby agrees that (i) it will not institute against the Seller any proceeding of the type referred to in the definition of Event of Bankruptcy until there shall have elapsed two years plus one day since the Final Payout Date and (ii) notwithstanding anything contained herein or in any other Transaction Document to the contrary, the obligations of the Seller under the Transaction Documents are solely the corporate obligations of the Seller and shall be payable solely to the extent of funds which are received by the Seller pursuant to the Transaction Documents and available for such payment in accordance with the terms of the Transaction Documents and shall be non-recourse other than with respect to such available funds and, without limiting
Section 11.17
, if ever and until such time as the Seller has sufficient funds to pay such obligation shall not constitute a claim against the Seller.
(b)
No recourse under any obligation, covenant or agreement of the Seller contained in this Agreement or any other Transaction Document shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of the Seller by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement and the other Transaction Documents are solely a corporate obligation of the Seller, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of the Seller or any of them under or by reason of any of the obligations, covenants or agreements of the Seller contained in this Agreement or any other Transaction Document, or implied therefrom, and that any and all personal liability for breaches by the Seller of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided that the foregoing shall not relieve any such Person from any liability it might otherwise have as a result of fraudulent actions taken or fraudulent omissions made by them.
116
EXECUTION of Receivables Transfer Agreement:
The parties have shown their acceptance of the terms of this Agreement by executing it below.
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The Seller
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BUNGE SECURITIZATION B.V.
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Given under the common seal of
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By:
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/s/
Frans M.J. van Rijn
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Name:
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Frans M.J. van Rijn
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Title:
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Director
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By:
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/s/ L.F.S. Bagchus
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Name:
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L.F.S. Bagchus
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Title:
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Proxy holder
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Receivables Transfer Agreement
S-1
EXECUTION of Receivables Transfer Agreement:
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The Master Servicer
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BUNGE FINANCE B.V.
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By:
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/s/
Steven Claassens
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Name:
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Steven Claassens
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Title:
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Director
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By:
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/s/
Luc Dekkers
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Name:
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Luc Dekkers
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Title:
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Director
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Receivables Transfer Agreement
S-2
EXECUTION of Receivables Transfer Agreement:
Conduit Purchaser
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NIEUW AMSTERDAM RECEIVABLES CORP.
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By:
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/s/
Kevin Burns
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Name:
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Kevin Burns
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Title:
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Vice President
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Receivables Transfer Agreement
S-3
EXECUTION of Receivables Transfer Agreement:
Conduit Purchaser
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MATCHPOINT FINANCE PLC
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By:
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/s/
Brian McDonagh
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Name:
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Brian McDonagh
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Title:
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Director
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Receivables Transfer Agreement
S-4
EXECUTION of Receivables Transfer Agreement:
Conduit Purchaser
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REGENCY ASSETS LIMITED
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By:
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/s/
Eimir McGrath
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Name:
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Eimir McGrath
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Title:
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Alternate Director
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Receivables Transfer Agreement
S-5
EXECUTION of Receivables Transfer Agreement:
Committed Purchaser
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REGENCY ASSETS LIMITED
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By:
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/s/
Eimir McGrath
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Name:
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Eimir McGrath
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Title:
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Alternate Director
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Receivables Transfer Agreement
S-6
EXECUTION of Receivables Transfer Agreement:
Committed Purchaser
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
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By:
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/s/ James Han
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Name:
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James Han
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Title:
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Executive Director
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Receivables Transfer Agreement
S-7
EXECUTION of Receivables Transfer Agreement:
Committed Purchaser
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MATCHPOINT FINANCE PLC
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By:
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/s/ Brian McDonagh
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Name:
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Brian McDonagh
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Title:
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Director
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Receivables Transfer Agreement
S-8
EXECUTION of Receivables Transfer Agreement:
Purchaser Agent
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BNP PARIBAS, LONDON BRANCH
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By:
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/s/ Marc Fayemi
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Name:
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Marc Fayemi
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Title:
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Securitisation Officer
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Receivables Transfer Agreement
S-9
EXECUTION of Receivables Transfer Agreement:
Purchaser Agent
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
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By:
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/s/
James Han
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Name:
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James Han
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Title:
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Executive Director
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Receivables Transfer Agreement
S-10
EXECUTION of Receivables Transfer Agreement:
Purchaser Agent
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For and on behalf of
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CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
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pursuant to a power of attorney dated 26 May 2011
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By:
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/s/
Marie-Laure LePont
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Name:
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Marie-Laure LePont
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Title:
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Executive Director
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By:
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/s/
Pascale Olivie
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Name:
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Pascale Olivie
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Title:
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Executive Director
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Receivables Transfer Agreement
S-11
EXECUTION of Receivables Transfer Agreement:
Purchaser Agent
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HSBC BANK PLC
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By:
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/s/ Mawgan Harris
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Name:
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Mawgan Harris
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Title:
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Director
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Receivables Transfer Agreement
S-12
EXECUTION of Receivables Transfer Agreement:
The Administrative Agent
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
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By:
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/s/
James Han
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Name:
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James Han
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Title:
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Executive Director
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Receivables Transfer Agreement
S-13
EXECUTION of Receivables Transfer Agreement:
Performance Undertaking Provider
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BUNGE LIMITED
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By:
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/s/
Alberto Weisser
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Name:
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Alberto Weisser
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Title:
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Chairman and Chief Executive Officer
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Receivables Transfer Agreement
S-14
EXECUTION of Receivables Transfer Agreement:
Purchaser Agent
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For and on behalf of
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CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
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pursuant to a power of attorney dated 26 May 2011
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By:
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/s/
Marie-Laure LePont
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Name:
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Marie-Laure LePont
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Title:
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Executive Director
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By:
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/s/
Pascale Olivie
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Name:
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Pascale Olivie
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Title:
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Executive Director
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Receivables Transfer Agreement
S-15
Exhibit A
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated [
·
] 20[
·
]
Reference is made to the Receivables Transfer Agreement, dated June 1, 2011 (as it may from time to time be amended, restated, supplemented, renewed, extended or otherwise modified from time to time, the “
Receivables Transfer Agreement
”), among
Bunge Securitization B.V., as Seller,
Bunge Finance B.V., as Master Servicer, Bunge Limited, as Performance Undertaking Provider, the Persons from time to time parties thereto as Conduit Purchasers, and Committed Purchasers, and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., as Administrative Agent and as Purchaser Agent. Terms defined in the Receivables Transfer Agreement are used herein with the same meaning.
[
Assigning Committed Purchaser
] (the “
Assignor
”), [
Eligible Assignee
] (the “
Assignee
”) and [
Name of applicable Purchaser Agent
], in its capacity as Purchaser Agent for the Purchaser Group which includes the Assignor [and the Assignee] (in such capacity, the “
Purchaser Agent
”), hereby agree as follows:
1.
Purchase and Sale of Interest
The Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Receivables Transfer Agreement as of the Effective Date (as defined below) interest in and to all of the Assignor’s rights and obligations under the Receivables Transfer Agreement as of the date hereof (including, without limitation, its Commitment and all Investments, if any, or interests therein owned by it) equal to the percentage (the “
Percentage
”) interest specified on Schedule I attached hereto. After giving effect to such sale and assignment, [the Assignee will be a Committed Purchaser in the Purchaser Group that includes [Name of Conduit Purchaser] and] the Assignee’s Commitment will be as set forth in Section 2 of the signature page hereto. As consideration for the sale and assignment contemplated in this Section 1, the Assignee shall pay to the Assignor on the Effective Date (as defined below) in immediately available funds an amount equal to [$][€][
·
], representing the purchase price payable by the Assignee for the interests in the transferred interest sold and assigned to the Assignee under this Section 1.
2.
Representations and Disclaimers of Assignor
The Assignor:
(a)
represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any Adverse Claim created by it;
(b)
makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Transaction Document or any other instrument or document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Receivables Transfer Agreement or any other Transaction Document or any such other instrument or document furnished pursuant thereto, or the perfection, priority or value of
any ownership interest or security interest created or purported to be created under the Receivables Transfer Agreement or under any Originator Sale Agreement; and
(c)
makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Transaction Party or the performance or observance by any Transaction Party of any of its respective obligations under the Receivables Transfer Agreement or any other Transaction Document or any other instrument or document furnished pursuant thereto.
3.
Representations and Agreements of Assignee
The Assignee:
(a)
confirms that it has received a copy of the Receivables Transfer Agreement and the other Transaction Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase its interest in and to the Assignor’s right, title and interest in the Commitment and Investments being purchased by it hereunder;
(b)
agrees that it will, independently and without reliance upon the Administrative Agent, any Purchaser Agent, the Assignor or any other Purchaser or any of their respective Affiliates and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Receivables Transfer Agreement and any other Transaction Document;
(c)
appoints and authorizes the Administrative Agent [and the Purchaser Agent] to take such action as agent on its behalf and to exercise such powers under the Receivables Transfer Agreement and the other Transaction Documents and any other instrument or document furnished pursuant thereto as are delegated to the Administrative Agent [and the Purchaser Agent, respectively,] by the terms thereof, together with such powers and discretion as are reasonably incidental thereto;
(d)
agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Receivables Transfer Agreement and this Assignment and Acceptance are required to be performed by it as a Committed Purchaser;
(e)
specifies as its address and telecopier number for notices the office set forth beneath its name on the signature pages hereof;
(f)
represents that this Assignment and Acceptance has been duly authorized, executed and delivered by the Assignee pursuant to its corporate powers and constitutes the legal, valid and binding obligation of the Assignee;
(g)
represents that as of the Effective Date it is an Eligible Assignee; and
(h)
[other representations to be included, if applicable].
A-2
4.
Effectiveness of Assignment
Following the execution of this Assignment and Acceptance by the Assignor, [the Purchaser Agent,] and the Assignee, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent and to the Master Servicer. The effective date of this Assignment and Acceptance shall be the later of (a) the date the Administrative Agent receives this Assignment and Acceptance executed by the parties hereto, including the Consent to Assignment attached hereto as Annex I executed by the Seller, (the “
Effective Date
”) or (b) the date of this Assignment and Acceptance.
5.
Rights of the Assignee
Upon such acceptance and recording by the Administrative Agent, as of the Effective Date, (i) the Assignee shall be a party to the Receivables Transfer Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Committed Purchaser thereunder, hereunder and under the other Transaction Documents and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Receivables Transfer Agreement.
6.
Payments
Upon such acceptance and recording by the Administrative Agent, from and after the Effective Date, the Administrative Agent, the Purchaser Agent, the Seller [the Performance Undertaking Provider] or the Servicer, as the case may be, shall make all payments under the Receivables Transfer Agreement in respect of the interest assigned hereby (including, without limitation, all payments of fees with respect thereto) to the Assignee or the Purchaser Agent for the benefit of the Assignee in accordance with the Receivables Transfer Agreement. The Assignor and Assignee shall make all appropriate adjustments in payments under the Receivables Transfer Agreement for periods prior to the Effective Date directly between themselves.
7.
Governing Law
This Assignment and Acceptance and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the law of the State of New York, other than those conflict of law provisions that would defer to the substantive laws of another jurisdiction. This governing law election has been made by the parties in reliance (at least in part) on Section 5-1401 of the General Obligation Law of the State of New York, as amended (as and to the extent applicable), and other applicable Law.
A-3
Schedule I
Assignment and Acceptance
Dated , 20[
·
]
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Section 1.
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%
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Percentage:
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Section 2.
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Assignee’s Commitment as of the Effective Date:
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[€][$]
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Principal Balance of Investments
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[€][$]
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held by Assignee as of the Effective Date:
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[€][$]
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Section 3.
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Effective Date:
**
|
, 20[
·
]
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**
This date should be no earlier than the date of acceptance by the Administrative Agent.
A-4
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The parties have shown their acceptance of the terms of this Assignment and Acceptance by executing it below.
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[NAME OF ASSIGNOR]
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By:
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Name:
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Title:
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[NAME OF ASSIGNEE]
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By:
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Name:
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Title:
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Address and telecopier number for Notices:
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[Insert]
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A-5
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Accepted this day of
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, 20[
·
]
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COÖPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A.,
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as Administrative Agent
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By:
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Name:
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Title:
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AGREED TO:
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, as Purchaser Agent
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By:
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Name:
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Title:
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A-6
ANNEX I TO
ASSIGNMENT AND ACCEPTANCE
CONSENT TO ASSIGNMENT
[ ] [
·
] 2011
Coöperatieve Centrale Raiffeisen-
Boerenleenbank B.A.
245 Park Avenue, 37
th
Floor
New York, New York 10167
Attention: [ ]
Reference is made to the Receivables Transfer Agreement dated as of June 1, 2011 (as it may from time to time be amended, restated, supplemented, renewed, extended or otherwise modified from time to time, being the “
Receivables Transfer Agreement
”), among
Bunge Securitization B.V., as Seller,
Bunge Finance B.V., as Master Servicer, Bunge Limited, as Performance Undertaking Provider, the Persons from time to time parties thereto as Conduit Purchasers and Committed Purchasers, and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., as Administrative Agent and as Purchaser Agent. Unless otherwise defined herein, terms defined in the Receivables Transfer Agreement are used herein as therein defined.
The undersigned hereby consents to the execution, delivery and performance of the foregoing Assignment and Acceptance by the Assignor and the Assignee as defined therein on the terms and conditions specified therein and agrees that such Assignee is an Eligible Assignee under and as defined in the Receivables Transfer Agreement.
A-7
EXHIBIT B
FORM OF INVESTMENT REQUEST
Dated as of ,
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
as Administrative Agent
245 Park Avenue, 37th Floor
New York, New York 10167
Attention: Eugene van Esveld
Ladies and Gentlemen:
The undersigned, BUNGE SECURITIZATION B.V., and, with respect to clauses (B) (solely to the Master Servicer’s knowledge) and (D) only, BUNGE FINANCE B.V., refer to the Receivables Transfer Agreement dated as of June 1, 2011 (as amended, amended and restated, supplemented, extended, renewed or otherwise modified from time to time, the “
Receivables Transfer Agreement
”), among the BUNGE SECURITIZATION B.V., as Seller, BUNGE FINANCE B.V., as Master Servicer, BUNGE LIMITED, as Performance Undertaking Provider, the Persons from time to time party thereto as Conduit Purchasers and Committed Purchasers and COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., as administrative agent (the “
Administrative Agent
”) and Purchaser Agent. Unless otherwise defined herein, terms defined in the Receivables Transfer Agreement are used herein as therein defined.
The undersigned hereby gives you notice, irrevocably, pursuant to Section 2.2 of the Receivables Transfer Agreement that the undersigned hereby requests the following Investment(s) under the Receivables Transfer Agreement, and in that connection sets forth below the information relating to such Investment (the “
Proposed Investment
”) as required by Section 2.2(a)(ii) of the Receivables Transfer Agreement:
Prior Settlement Date Investment Amount
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(i)
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The current aggregate amount of such U.S. Dollar denominated Investment:
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(ii)
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The current aggregate amount of such EURO denominated Investment:
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(iii)
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The current aggregate amount of such Canadian Dollar denominated Investment:
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(iv)
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The current aggregate amount of such Hungarian Forint denominated Investment:
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(v)
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The current Aggregate Invested Amount in the Dollar Equivalent
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Proposed Settlement Date Investment
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(i)
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The proposed Cash Purchase Price portion of the U.S.
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B-1
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Dollar denominated Investment:
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(ii)
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The proposed Cash Purchase Price portion of the EURO denominated Investment:
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(iii)
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The proposed Cash Purchase Price portion of the Canadian Dollar denominated Investment:
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(iv)
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The proposed Cash Purchase Price portion of the Hungarian Forint denominated Investment:
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(v)
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The Spot Rates (based on the most recent Exchange Rate Determination Date) for such Approved Currencies
1
:
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EURO:
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Canadian Dollar:
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Hungarian Forint:
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(vi)
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The proposed Aggregate Invested Amount in the Dollar Equivalent:
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(vii)
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The requested Investment Date of such proposed Investment:
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The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Investment:
(A)
the representations and warranties contained in Section 4.1 of the Receivables Transfer Agreement, in Section [ ] of the [
·
] Receivables Purchase Agreement and in Section 9 of the Performance and Indemnity Agreement are correct in all material respects on and as of the date hereof, before and after giving effect to the Proposed Investment(s) and to the application of the proceeds therefrom, as though made on and as of the date hereof, other than any such representations and warranties that, by their terms, refer to a specific date other
1
Include if Proposed Investments in such Approved Currencies are requested.
B-2
than the date of this Investment Request or the date of the Proposed Investment(s), in which case, as of such other dates;
(B)
the Facility Termination Date has not occurred, and no event has occurred and is continuing, or would result from the Proposed Investment(s) or from the application of the proceeds therefrom, which constitutes a Facility Event or a Portfolio Event;
(C)
no portion of the proceeds of such Investment(s) will be used by the Seller to pay the purchase price for any Receivable that was originated by an Originator with respect to which a Seller Termination Event has occurred and is continuing; and
(D)
after giving effect to the Proposed Investment(s), the Aggregate Invested Amount will not exceed the lesser of (1) the Facility Limit and (2) the Funding Base on such Investment Date.
Delivery of an executed counterpart of this Investment Request by telecopier shall be effective as delivery of an original executed counterpart of this Investment Request.
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Very truly yours,
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BUNGE SECURITIZATION B.V.
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By
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Name:
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Title:
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BUNGE FINANCE B.V.
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By
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Name:
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Title:
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B-3
Exhibit C
FORM OF JOINDER AGREEMENT
Dated [
·
] 20[
·
]
Reference is made to the Receivables Transfer Agreement, dated June 1 2011, among Bunge Securitization B.V., as Seller, Bunge Finance B.V., as Master Servicer, Bunge Limited, as Performance Undertaking Provider, the Persons from time to time party thereto as Conduit Purchasers and Committed Purchasers, and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., as Administrative Agent (the “
Receivables Transfer Agreement
”). Terms defined in the Receivables Transfer Agreement are used herein with the same meaning.
[
·
] (the “
New Conduit Purchaser
”), [
·
] (the “
New Purchaser Agent
”), and [
·
] (the “
New Committed Purchaser(s)
”; and together with the New Purchaser Agent and New Conduit Purchaser(s), the “
New Purchaser Group
”) agree as follows:
By execution and delivery of this Joinder Agreement and pursuant to Section 11.3(i) (
New Purchaser Groups
) of the Receivables Transfer Agreement, the New Purchaser Group elects to become a “Purchaser Group” under the Receivables Transfer Agreement.
8.
The effective date (the “
Effective Date
”) of this Joinder Agreement shall be the later of (i) the date on which a fully executed copy of this Joinder Agreement is delivered to the Administrative Agent, (ii) the date of this Joinder Agreement [and (iii) the effective date of that certain assignment agreement of even date herewith between the New Committed Purchaser and [
Name of Committed Purchaser Assignor
].
9.
By executing and delivering this Joinder Agreement, each of the New Purchaser Agent, the New Conduit Purchaser(s) and the New Committed Purchaser(s) confirms to and agrees with each other party to the Receivables Transfer Agreement that (i) it has received a copy of the Receivables Transfer Agreement and the other Transaction Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder Agreement; (ii) it will, independently and without reliance upon the Administrative Agent, any other Purchaser Agent, any other Purchaser or any of their respective Affiliates, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Receivables Transfer Agreement and any Transaction Documents; (iii) it appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Receivables Transfer Agreement and the Transaction Documents and any other instrument or document furnished pursuant thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (iv) it will perform in accordance with their terms all of the obligations which by the terms of the Receivables Transfer Agreement and the documents or agreements to be delivered thereunder are required to be performed by it as a Purchaser Agent, a Conduit Purchaser, or a Committed Purchaser, respectively; (v) its address and telecopier number for notices shall be the office set forth beneath its name on the signature pages of this Joinder Agreement; (vi) the Purchaser Group Limit for the New Purchaser Group shall be as set forth on Schedule 1; (vii) the Purchaser Agent’s Account for the new Purchaser Agent shall be as set forth in Schedule 1 and (viii) this Joinder Agreement has been duly authorized, executed and delivered by it pursuant to
C-1
its applicable corporate powers and constitutes the legal, valid and binding obligation of the New Purchaser Agent, the New Conduit Purchaser(s) and the New Committed Purchaser(s), respectively.
10.
On the Effective Date of this Joinder Agreement, the New Purchaser Agent shall become a party to the Purchaser Fee Letter as a Purchaser Agent thereunder, and each of the New Purchaser Agent, the New Conduit Purchaser(s) and the New Committed Purchaser(s) shall join in and be a party to the Receivables Transfer Agreement and, to the extent provided in this Joinder Agreement, shall have the rights and obligations of a Purchaser Agent, a Conduit Purchaser and a Committed Purchaser, respectively, under the Receivables Transfer Agreement and the other Transaction Documents. Schedule 1 to the Receivables Transfer Agreement shall be amended to incorporate the information set forth on the signature pages and Schedule 1 to this Joinder Agreement.
11.
This Joinder Agreement may be executed by one or more of the parties on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
12.
This Joinder Agreement and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the law of the State of New York, other than those conflict of law provisions that would defer to the substantive laws of another jurisdiction. This governing law election has been made by the parties in reliance (at least in part) on Section 5-1401 of the General Obligation Law of the State of New York, as amended (as and to the extent applicable), and other applicable Law.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
C-2
EXECUTION:
The parties hereto have caused this Joinder Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
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NEW CONDUIT PURCHASER(S):
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[NAME(S)]
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By:
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Name:
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Title:
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Address and telecopier number for notices:
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[Address]
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[Telecopier No.]
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NEW COMMITTED PURCHASER(S):
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[NAME(S)]
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By:
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Name:
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Title:
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Address and telecopier number for notices:
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[Address]
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[Telecopier No.]
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NEW PURCHASER AGENT:
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[NAME]
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By:
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Name:
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Title:
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Address and telecopier number for notices:
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[Address]
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[Telecopier No.]
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C-3
SCHEDULE 1
|
Purchaser Agent’s Account for New Purchaser Agent:
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[
·
]
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Conduit Lending Limit for New Conduit Purchaser:
|
[
·
]
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Commitments of New Committed Purchasers:
|
[
·
]
|
C-4
Exhibit D
Form of Italian Acknowledgment Deed
[FORM OF ACKNOWLEDGMENT DEED TO BE ATTACHED TO THE RTA — TO BE EXECUTED BY ANY OF THE ITALIAN COLLECTION ACCOUNT BANKS WITH CERTAIN DATE AT LAW (
DATA CERTA
)]
This acknowledgement deed dated [
·
] 2011
(“
Acknowledgment Deed
”)
is made today by:
(1)
BUNGE SECURITIZATION B.V.
, a private limited liability company organized under the laws of the Netherlands,
whose registered office is at
[
·
]
, enrolled with the Companies Register of
[
·
]
under number
[
·
]
(hereinafter the “
Seller
”);
(2)
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
organized under the laws of
the Netherlands
,
whose registered office is at
[
·
]
, enrolled with the Companies Register of
[
·
]
under number
[
·
]
,
on behalf of the Purchasers, (hereinafter “
Rabobank Nederland
” or the “
Italian
Intermediate Transferor
” and together with the Seller, the “
Pledgees
”);
(3)
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
organized under the laws of
the Netherlands
,
whose registered office is at
[
·
]
, enrolled with the Companies Register of
[
·
]
under number
[
·
]
,
on behalf of the Purchasers (hereinafter, the “
Administrative Agent
”);
(4)
BUNGE ITALIA S.P.A.,
a joint stock company
organized
under the laws of Italy, whose registered office is at
[
·
]
, enrolled with the Companies Register of
[
·
]
under no.
[
·
]
(hereinafter, the “
Bunge Italia
” or the “
Pledgor
”)
;
(5)
UNICREDIT S.P.A.
, a bank organized under
the laws of Italy, whose registered office is at
[
·
]
, enrolled with the Companies Register of
[
·
]
under no.
[
·
] and with the bank register (
Albo delle Banche
) held by the Bank of Italy in accordance with article 13 of Italian
legislative
decree No. 385/93 (“
MPS
”/”
Unicredit
” or the “
Italian Collection Account Bank
”),] [
TO BE CONFIRMED BY BUNGE ITALIA
]
jointly, the “
Parties
”.
Whereas:
(A)
on [
·
] 2011, Bunge Italia, in its capacity as Pledgor and the Administrative Agent in the name and on behalf of the Seller and the Italian Intermediate Transferor, as pledgees, have entered into a deed of pledge over the Collection Accounts held by Bunge Italia with MPS/Unicredit as Italian Collection Account Bank (the “
Deed of Pledge
”)
;
(B)
on [
·
] 2011, the Italian Collection Account Bank has received a copy of the Deed of Pledge and has entered into a letter of acceptance of the Pledge created over the relevant bank accounts (the “
Acceptance
”);
(C)
on [
·
] 2011, the Italian Intermediate Transferor and the Seller have entered into an Italian intermediate transfer agreement, pursuant to which the Italian Intermediate Transferor has assigned to the Seller, in accordance with article 1260 and followings of the Italian civil code,
inter alia
, all its rights, title and interests in, to and under the Deed of Pledge (the “
First Assignment
”);
(D)
on [
·
] 2011, the Seller and the Administrative Agent,
inter alios
, have entered into a transfer agreement governed by U.S.A. law (the “
RTA
”); in accordance with Clause 2.1 of the RTA, the Seller has transferred to the Administrative Agent, on behalf of the Purchasers (as defined in the RTA), all the rights, title and interests in, to and under,
inter alia
, the Deed of Pledge, including those assigned to it by the Italian Intermediate Transferor under the First Assignment (the “
Second
Assignment
” and together with the First Assignment, (the “
Assignments
”)).
Now therefore,
it is agreed as follows:
1.
Capitalized terms used herein unless otherwise defined, have the same meaning given to them under the Deed of Pledge
.
2.
The Parties acknowledge and
accept the Assignments as specified under Recitals (C) and
(D) above, and hereby acknowledges that,
following and within the limits of such Assignments, the Administrative Agent, on behalf of the
P
urchasers, is entitled to exercise all the rights of the Pledgees (including the enforcement of the Pledge), titles and interest under the Deed
of Pledge
(as transferred by the Seller to the Administrative Agent, in accordance with the Assignments), with no prejudice for the terms and conditions contained in the Acceptance.
3.
The parties hereto acknowledge that the Assignments shall not be considered as a novation (
novazione
) of the Pledge which continues to be in full force and effect, valid and enforceable against third parties, as security for the prompt satisfaction of any and all Secured Claims.
D-2
EXECUTION OF ACKNOWLEDGEMENTS DEED
|
For and on behalf of
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BUNGE SECURITIZATION B.V.
|
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By:
|
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Title:
|
|
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|
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (as Italian Intermediate Transferor)
|
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By:
|
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Title:
|
|
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|
|
|
|
|
|
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (as Administrative Agent)
|
|
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By:
|
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Title:
|
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BUNGE ITALIA S.P.A.
|
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By:
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Title:
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UNICREDIT S.P.A.
|
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By:
|
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Title:
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D-3
SCHEDULE 1
PURCHASER GROUPS
Purchaser Agent: Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
|
Committed Purchaser
|
|
Commitment
|
|
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
|
|
$300,000,000
|
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Croeselaan 18
|
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3521 CB Utrecht
|
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The Netherlands
|
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Attention: Eugene van Esveld
|
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Telephone: +31 (0)30 216 9398
|
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Fax: +44 (0)20 7809 3450
|
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|
|
email: eugene.van.esveld@rabobank.com
|
|
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with a copy to:
|
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Donna Kunzig
|
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|
|
Telephone: +44 (0)20 7809 3647
|
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Fax: +44 (0)20 7809 3450
|
|
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|
email: donna.kunzig@rabobank.com
|
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|
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|
|
Conduit Purchaser
|
|
Conduit Lending Limit
|
|
Nieuw Amsterdam Receivables Corp.
|
|
$300,000,000
|
|
245 Park Avenue
|
|
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|
New York, NY 10167
|
|
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|
United States of America
|
|
|
|
Attention: Eugene van Esveld
|
|
|
|
Telephone: +31 (0)30 216 9398
|
|
|
|
Fax: +44 (0)20 7809 3450
|
|
|
|
email: eugene.van.esveld@rabobank.com
|
|
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with a copy to:
|
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|
|
|
|
|
|
Donna Kunzig
|
|
|
|
Telephone: +44 (0)20 7809 3647
|
|
|
|
Fax: +44 (0)20 7809 3450
|
|
|
|
email: donna.kunzig@rabobank.com
|
|
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|
|
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|
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Program Manager
|
|
|
|
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
|
|
|
|
Croeselaan 18
|
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3521 CB Utrecht
|
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|
The Netherlands
|
|
|
|
Attention: Eugene van Esveld
|
|
|
|
Telephone: +31 (0)30 216 9398
|
|
|
|
Fax: +44 (0)20 7809 3450
|
|
|
|
email: eugene.van.esveld@rabobank.com
|
|
|
|
|
|
|
|
with a copy to:
|
|
|
|
Donna Kunzig
|
|
|
|
Telephone: +44 (0)20 7809 3647
|
|
|
|
Fax: +44 (0)20 7809 3450
|
|
|
|
email: donna.kunzig@rabobank.com
|
|
|
Purchaser Agent: Crédit Agricole Corporate & Investment Bank
|
Committed Purchaser
|
|
Commitment
|
|
Crédit Agricole Corporate & Investment Bank
9 quai du Président Paul Doumer
92920 Paris La Défense Cedex
France
Attention: Securitization / Middle Office — Carole d’Haeyere
Telephone: +33 (0)1 57 87 17 48
Fax: +33 (0)1 57 87 17 58
email: titrisation@ca-cib.com; carole.d’haeyere@ca-cib.com; elody.roudet@ca-cib.com; fabrice.martial@ca-cib.com;
|
|
$150,000,000
|
|
|
|
|
|
Conduit Purchaser
|
|
Conduit Lending Limit
|
|
|
|
|
|
Program Manager
|
|
Account Information
|
|
|
|
USD
Beneficiary : Crédit Agricole CIB Paris (swift BSUIFRPPXXX)
Correspondent Bank : JP MORGAN (swift CHASUS33XXX)
Account Number : [***]
Reference : CORPO/BUNGE/Uniloan BO
CAD
Beneficiary : Crédit Agricole CIB Paris (swift BSUIFRPPXXX)
Correspondent Bank : Royal Bank of Canada (swift ROYCCAT2XXX)
Account Number : [***]
Reference : CORPO/BUNGE/Uniloan BO
EUR
Beneficiary : Crédit Agricole CIB Paris (swift BSUIFRPPXXX)
Correspondent Bank : Crédit Agricole CIB Paris (swift BSUIFRPPXXX)
Account Number : [***]
IBAN: [***]
Reference : CORPO/BUNGE/Uniloan BO
HUF
Beneficiary : Crédit Agricole CIB Paris (swift BSUIFRPPXXX)
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
|
|
Correspondent Bank : CA-CIB MAGYARORSZAG BUDAPEST (swift code : CRLYHUHBXXX)
Account Number :[***]
Reference : CORPO/BUNGE/Uniloan BO
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
Purchaser Agent: HSBC Bank Plc
|
Committed Purchaser
|
|
Commitment
|
|
Regency Assets Limited
5 Harbourmaster Place
Dublin 1, Ireland
Attention: The Directors
Telephone: +353 1680 6000
Fax: +353 1680 6050
email: corporate.services@db.com
With a copy to:
HSBC Bank plc
8 Canada Square
London E14 5HQ
Attention: Ingram Lyons/Graham Walton/Mawgan Harris
Telephone: +44 207 99 19834/16921/22255
Fax: +44 20799 14140
email: ingram.lyons@hsbcib.com/graham.s.walton@hsbcib.com/
Mawgan.harris@hsbcgroup.com
|
|
$125,000,000
|
|
|
|
|
|
Conduit Purchaser
|
|
Conduit Lending Limit
|
|
Regency Assets Limited
5 Harbourmaster Place
Dublin 1, Ireland
Attention: The Directors
Telephone: +353 1680 6000
Fax: +353 1680 6050
email: corporate.services@db.com
With a copy to:
HSBC Bank plc
8 Canada Square
London E14 5HQ
Attention: Ingram Lyons/Graham Walton/Mawgan Harris
Telephone: +44 207 99 19834/16921/22255
Fax: +44 20799 14140
email: ingram.lyons@hsbcib.com/graham.s.walton@hsbcib.com/
Mawgan.harris@hsbcgroup.com
|
|
$125,000,000
|
|
|
|
|
|
Program Manager
|
|
Account Information
|
|
HSBC Bank plc
8 Canada Square
London E14 5HQ
Attention: Ingram Lyons/Graham Walton/Mawgan Harris
|
|
EUR
BANK:
HSBC Bank Plc, London
SWIFT:
MIDLGB22
|
|
Telephone: +44 207 99 19834/16921/22255
Fax: +44 20799 14140
email: ingram.lyons@hsbcib.com/graham.s.walton@hsbcib.com/
Mawgan.harris@hsbcgroup.com
|
|
A/C Name Regency Assets re Bunge
IBAN GB72MIDL40051571209490
USD
CORRESPONDENT
BANK
HSBC BANK, New York
SWIFT
MRMDUS33
BENEFICIARY BANK: HSBC Bank Plc, London
SWIFT:
MIDLGB22
FURTHER CR TO Regency Assets re Bunge
IBAN
[***]
CAD
CORRESPONDENT
BANK
HSBC BANK Canada, Toronto
SWIFT
HKBCCATT
BENEFICIARY BANK: HSBC Bank Plc, London
SWIFT:
MIDLGB22
FURTHER CR TO Regency Assets re Bunge
IBAN
[***]
HUF
CORRESPONDENT ING Bank, Budapest
BANK
SWIFT
INGBHUHB
BENEFICIARY BANK: HSBC Bank Plc, London
SWIFT:
MIDLGB22
FURTHER CR TO Regency Assets re Bunge
IBAN
[***]
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
Purchaser Agent: BNP Paribas, London Branch
|
Committed Purchaser
|
|
Commitment
|
|
Matchpoint Finance Plc
4
th
Floor Marsh House
25-28 Adelaide Road
Dublin 2
Ireland
Attention: The Directors
|
|
$125,000,000
|
|
|
|
|
|
Conduit Purchaser:
|
|
Conduit Lending Limit
|
|
Matchpoint Finance Plc
4
th
Floor Marsh House
25-28 Adelaide Road
Dublin 2
Ireland
Attention: The Directors
|
|
$125,000,000
|
|
|
|
|
|
Program Manager
|
|
Account Information
|
|
BNP Paribas, London Branch
10 Harewood Avenue
London NW1 6AA
United Kingdom
Attention: Securitisation (Olivier Varon)
Telephone: +44 20 7595 2120
Fax: +44 20 7595 2555
with a copy to:
Attention: Samuel Lefeuvre
Email: samuel.lefeuvre@bnpparibas.com
Telephone: +44 20 7595 6330
Fax: +44 20 7595 5079
and with a copy to:
Attention: Marc Fayemi
Email: Marc.fayemi@bnpparibas.com
Telephone: +44 20 7595 3430
Fax: +44 20 7595 5079
and with a copy to:
Attention: Michel Khong
Email: michel.khong@bnpparibas.com
Telephone: +44 20 7595 6996
Fax: +44 20 7595 5079
|
|
EUR
Account name: Matchpoint Finance Plc
Account number: [***]
IBAN: [***]
SWIFT: CITIGB2L
Account bank: Citibank N.A. London
USD
Account name: Matchpoint Finance Plc
Account number: [***]
IBAN: [***]
SWIFT: CITIGB2L
Account bank: Citibank N.A. London
CAD
Account name: Matchpoint Finance Plc
Account number: [***]
IBAN: [***]
SWIFT: CITIGB2L
Account bank: Citibank N.A. London
Intermediary Bank: Toronto Dominion Bank
Intermediary Corresp Bank Swift Code : TDOMCATTTOR
HUF
[To be provided]
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
Initial Aggregate Commitment: $700,000,000
Facility Limit: $700,000,000
SCHEDULE 2
ADDRESS AND NOTICE INFORMATION
Except as provided below, all communications and notices provided for under the Transaction Documents shall be in writing (including facsimile) and shall be sent to the other party by registered, certified or express mail, postage prepaid, return receipt requested, by recognized overnight courier service at its address or facsimile number set forth below or at such other address or facsimile number as such party may hereafter specify for the purposes of notice to such party. Each such notice or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified below and confirmation is received, or (ii) if given by registered, certified or express mail, or by a recognized overnight courier, on the date that such writing is actually delivered to the intended recipient thereof; provided, that each Investment Request shall only be effective upon receipt by the Administrative Agent.
If to the Administrative Agent
|
Name:
|
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
|
|
Address:
|
Croeselaan 18
|
|
|
3521 CB Utrecht, The Netherlands
|
|
Attention:
|
Mr. E. van Esveld/Mr. S. van Boven
|
|
Telephone:
|
+31 (0) 30 216 9398/+31 (0) 30 216 9775
|
|
Facsimile:
|
+31 (0) 30 712 3474
|
Payment Information:
Euro Account:
Accountnr: Iban: GB97RABO40509190791402
Swift Address:
RABOGB2L
Account Title:
NARC — Client R
Account Number: [***]
US Account:
[ ]
Swift Address: [ ]
ABA: [ ]
For Credit to: NARC-Client R
Account Number:
[***]
Account Title: NARC — Client R
Ref:
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
If to the Seller
|
Name:
|
Bunge Securitization B.V.
|
|
Address:
|
De Lairessestraat 154
|
|
|
1075 HL
|
|
|
Amsterdam, the Netherlands
|
|
Attention:
|
Senior Legal Counsel Vistra
|
|
Telephone:
|
+31 88 560 99 00
|
|
Facsimile:
|
+31 88 560 99 60
|
|
|
|
|
copy to:
|
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
Payment Information:
|
|
|
|
|
EUR
|
|
|
Bank:
|
Rabobank International, London
|
|
BIC:
|
RABOGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
USD
|
|
|
Bank:
|
Rabobank International, London
|
|
BIC:
|
RABOGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
Correspondent Bank:
|
JP Morgan Chase, New York
|
|
BIC Code:
|
CHASUS33
|
|
|
|
|
CAD
|
|
|
Bank:
|
Rabobank International, London
|
|
BIC:
|
RABOGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
Correspondent Bank:
|
Canadian Imperial Bank of Commerce, Toronto
|
|
Swift Code:
|
CIBCCATT
|
|
|
|
|
HUF
|
|
|
Bank:
|
Rabobank International, London
|
|
BIC:
|
RABOGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
Correspondent Bank:
|
Citibank Europe PLC Hungarian Branch Office, Budapest
|
|
Swift Code:
|
CITIHUHX
|
If to the Master Servicer
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
Payment Information:
|
|
|
|
|
EUR
|
|
|
Bank:
|
Citibank N.A., London
|
|
BIC:
|
CITIGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
USD
|
|
|
Bank:
|
J.P. Morgan Chase Bank, N.A., London
|
|
BIC:
|
CHASGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
Correspondent Bank:
|
JP Morgan Chase, New York
|
|
BIC Code:
|
CHASUS33
|
|
|
|
|
CAD
|
|
|
Bank:
|
J.P. Morgan Chase Bank, N.A., Toronto
|
|
BIC:
|
CHASCATT
|
|
Account No.:
|
[***]
|
|
|
|
|
HUF
|
|
|
Bank:
|
Citibank Europe PLC Hungarian Branch Office, Budapest
|
|
BIC:
|
CITIHUHX
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
If to any Conduit Purchaser or Committed Purchaser
To the address specified on Schedule 1 (Purchaser Groups)
Payment Information:
To the account specified on Schedule 1 (Purchaser Groups)
If to the Subordinated Lender
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
Payment Information:
|
|
|
|
|
EUR
|
|
|
Bank:
|
Citibank N.A., London
|
|
BIC:
|
CITIGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
USD
|
|
|
Bank:
|
J.P. Morgan Chase Bank, N.A., London
|
|
BIC:
|
CHASGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
Correspondent Bank:
|
JP Morgan Chase, New York
|
|
BIC Code:
|
CHASUS33
|
|
|
|
|
CAD
|
|
|
Bank:
|
J.P. Morgan Chase Bank, N.A., Toronto
|
|
BIC:
|
CHASCATT
|
|
Account No.:
|
[***]
|
|
|
|
|
HUF
|
|
|
Bank:
|
Citibank Europe PLC Hungarian Branch Office, Budapest
|
|
BIC:
|
CITIHUHX
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
If to the Performance Undertaking Provider
|
Name:
|
Bunge Limited
|
|
Address:
|
50 Main Street
|
|
|
White Plains, New York 10606
|
|
Attention:
|
General Counsel
|
|
Telephone:
|
+1-914-684-3397
|
|
Facsimile:
|
+1-914-6843283
|
|
|
|
|
copy to:
|
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
If to the U.S. Intermediate Transferor
|
Name:
|
Bunge North America Capital, Inc.
|
|
Address:
|
c/o Bunge North America, Inc.
|
|
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
Treasurer
|
|
Telephone:
|
+1-314-292-2314
|
|
Facsimile:
|
+1-314-292-4314
|
|
|
|
|
copy to:
|
|
|
|
|
|
Name:
|
Bunge North America, Inc.
|
|
Address:
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
General Counsel
|
|
Telephone:
|
+1-314-292-2512
|
|
Facsimile:
|
+1-314-292-2521
|
|
|
|
|
and copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
If to the Italian Intermediate Transferor
|
Name:
|
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
|
|
Address:
|
Croeselaan 18
|
|
|
3521 CB Utrecht, The Netherlands
|
|
Attention:
|
Mr. E. van Esveld/Mr. S. van Boven
|
|
Telephone:
|
+31 (0) 30 216 9398/+31 (0) 30 216 9775
|
|
Facsimile:
|
+31 (0) 30 712 3474
|
If to the Hungarian Intermediate Transferor
|
Name:
|
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
|
|
Address:
|
Croeselaan 18
|
|
|
3521 CB Utrecht, The Netherlands
|
|
Attention:
|
Mr. E. van Esveld/Mr. S. van Boven
|
|
Telephone:
|
+31 (0) 30 216 9398/+31 (0) 30 216 9775
|
|
Facsimile:
|
+31 (0) 30 712 3474
|
If to the Canadian Originator(s)
|
Name:
|
Bunge Canada
|
|
Address:
|
c/o Bunge North America, Inc.
|
|
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
Treasurer
|
|
Telephone:
|
+1-314-292-2314
|
|
Facsimile:
|
+1-314-292-4314
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
General Counsel
|
|
|
|
|
Telephone:
|
+1-314-292-2512
|
|
Facsimile:
|
+1-314-292-2521
|
|
|
|
|
and a copy to:
|
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
|
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
If to German Originator(s)
|
Name:
|
Walter Rau Lebensmittel Werke GMBH
|
|
Address:
|
Muensterstrasse 9-11
|
|
|
49176 Hilter, Germany
|
|
Attention:
|
Managing Director
|
|
Telephone:
|
+495424366138
|
|
Facsimile:
|
+49542436618138
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
If to Hungarian Originator(s)
|
Name:
|
Bunge
Növényolajipari Zártkörűen Működö Részvénytársaság
|
|
Address:
|
1134 Budapest
|
|
|
Váci út
33
|
|
|
Hungary
|
|
Attention:
|
CFO
|
|
Telephone:
|
+361 237 64 03
|
|
Facsimile:
|
+361 239 96 47
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
If to Italian Originator(s)
|
Name:
|
Bunge Italia S.p.A.
|
|
Address:
|
Viale G. di Vittorio 62
|
|
|
48123 Ravenna, Italia
|
|
Attention:
|
Reporting and Treasury Manager
|
|
Telephone:
|
+39 0544 69 63 11
|
|
Facsimile:
|
+39 0544 53 90 30
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
If to the Spanish Originator(s)
|
Name:
|
Bunge Ibérica, S.A.U.
|
|
Address:
|
Constituci
ó
n 1, Edificio B, planta 1
|
|
|
Sant Just Desvern, 08960 Barcelona (Spain)
|
|
Attention:
|
CFO
|
|
Telephone:
|
+34 93 400 75 18
|
|
Facsimile:
|
+34 93 473 31 20
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
If to the Portuguese Originator(s)
|
Name:
|
Bunge Ib
é
rica Portugal, S.A.
|
|
Address:
|
Rua de Palença, Palença de Baixo, Pragal, 2801-601
|
|
|
Almada, Portugal
|
|
Attention:
|
Country Manager
|
|
Telephone:
|
+351 212 949 100
|
|
Facsimile:
|
+351 212 943 184
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
If to U.S. Originators
|
Name:
|
Bunge North America, Inc.
|
|
Address:
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
General Counsel
|
|
Telephone:
|
+1-314-292-2512
|
|
Facsimile:
|
+1-314-292-2521
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
Name:
|
Bunge Oils, Inc.
|
|
Address:
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
General Counsel
|
|
Telephone:
|
+1-314-292-2512
|
|
Facsimile:
|
+1-314-292-2521
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
Name:
|
Bunge North America (East), L.L.C.
|
|
Address:
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
General Counsel
|
|
Telephone:
|
+1-314-292-2512
|
|
Facsimile:
|
+1-314-292-2521
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
|
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
Name:
|
Bunge Milling, Inc.
|
|
Address:
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
General Counsel
|
|
Telephone:
|
+1-314-292-2512
|
|
Facsimile:
|
+1-314-292-2521
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
Name:
|
Bunge North America (OPD West), Inc.
|
|
Address:
|
11720 Borman Drive
|
|
|
St. Louis, MO 63146
|
|
Attention:
|
General Counsel
|
|
Telephone:
|
+1-314-292-2512
|
|
Facsimile:
|
+1-314-292-2521
|
|
|
|
|
copy to:
|
|
|
|
|
Name:
|
Bunge Finance B.V.
|
|
Address:
|
Weena 320
|
|
|
3012 NJ
|
|
|
Rotterdam, the Netherlands
|
|
Attention:
|
Director
|
|
|
|
|
Telephone:
|
+31 10 217 6652
|
|
Facsimile:
|
+31 10 433 0035
|
|
|
|
|
SCHEDULE 3
CREDIT AND COLLECTION POLICIES
[Attached]
[***]
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
SCHEDULE 4
CONDITIONS PRECEDENT DOCUMENTS
Reference is made to the Receivables Transfer Agreement, dated as of June 1, 2011, by and among Bunge Securitization B.V., as Seller, Bunge Finance B.V., as Master Servicer, Bunge Limited, as Performance Undertaking Provider, the Persons from time to time party thereto as Conduit Purchasers and Committed Purchasers, and Cooperatieve Centrale Raiffeisen-Boerenleenbank, as Administrative Agent (the
“Agreement”
). Terms defined in the Agreement are used herein with the same meaning.
The conditions precedent to funding in each jurisdiction shall be the delivery to the satisfaction of the Administrative Agent and each Purchaser Agent of fully executed copies of the relevant documents for that relevant jurisdiction as set out in Annex 1 (the
“Closing List”
).
SCHEDULE 5
FACILITY ACCOUNTS AND FACILITY ACCOUNT BANKS
SELLER OPERATING ACCOUNTS
|
Currency:
|
EUR
|
|
Bank:
|
Rabobank International
|
|
BIC:
|
RABOGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
Rabobank International
|
|
BIC:
|
RABOGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
Correspondent Bank:
|
JP Morgan Chase Bank N.A., New York
|
|
BIC Code:
|
CHASUS33
|
|
|
|
|
Currency:
|
CAD
|
|
Bank:
|
Rabobank International
|
|
BIC:
|
RABOGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
Correspondent Bank:
|
Canadian Imperial Bank of Commerce, Toronto
|
|
Swift Code:
|
CIBCCATT
|
|
|
|
|
Currency:
|
HUF
|
|
Bank:
|
Rabobank International
|
|
BIC:
|
RABOGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
Correspondent Bank:
|
Citibank Europe PLC Hungarian Branch, Budapest
|
|
Swift Code:
|
CITIHUHX
|
|
|
|
|
SELLER OPERATING ACCOUNT BANK
|
|
|
|
|
Bank:
|
Rabobank International
|
|
Address:
|
Thames Court, 1
Queenhithe 1
|
|
|
EC4V 3RL London, UK
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
CANADIAN COLLECTION ACCOUNTS
|
|
|
|
Currency:
|
CAD
|
|
Bank:
|
Canadian Imperial Bank of Commerce
|
|
BIC:
|
CIBCCATT
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
UMB Bank, NA
|
|
BIC:
|
UMKCUS44
|
|
ABA:
|
1010-0069-5
|
|
Account No.:
|
[***]
|
|
|
|
|
CANADIAN COLLECTION ACCOUNT BANKS
|
|
|
|
Bank:
|
Canadian Imperial Bank of Commerce
|
|
Bank address:
|
500 — One Lombard Place, Winnipeg,
|
|
|
Manitoba R3C 2P3, Canada
|
|
|
|
|
Bank:
|
UMB Bank, NA
|
|
Address:
|
1010 Grand Blvd, Kansas City MO 64106, USA
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
GERMAN COLLECTION ACCOUNTS
|
|
|
|
Currency:
|
EUR
|
|
Bank:
|
Sparkasse
Osnabrück
|
|
BIC:
|
NOLADE22
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
GERMAN
COLLECTION ACCOUNT BANKS
|
|
|
|
Bank:
|
Sparkasse
Osnabrück
|
|
Bank address:
|
Wittekindstr. 17-10, 49074
Osnabrück, Germany
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
HUNGARIAN COLLECTION ACCOUNTS
|
|
|
|
|
Currency:
|
HUF
|
|
Bank:
|
Citibank Europe plc Hungarian Branch Office
|
|
BIC:
|
CITIHUHX
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
EUR
|
|
Bank:
|
Citibank N.A.
|
|
BIC:
|
CITIGB2L
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
HUNGARIAN COLLECTION ACCOUNT BANKS
|
|
|
|
Bank:
|
Citibank Europe plc Hungarian Branch Office
|
|
Bank address:
|
H-1051 Budapest, Szabadság tér 7, Hungary
|
|
|
|
|
Bank:
|
Citibank N.A.
|
|
Address:
|
Citigroup Centre, 25 Canada Square Canary Wharf
|
|
|
London E14 5LB, UK
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
ITALIAN COLLECTION ACCOUNTS
|
|
|
|
|
Currency:
|
EUR
|
|
Bank:
|
Unicredit SpA
|
|
BIC:
|
UNCRITMMOCI
|
|
IBAN:
|
[***]
|
|
Account No
:
|
[***]
|
|
|
|
|
Currency:
|
EUR
|
|
Bank:
|
Banca Nazionale del Lavoro SpA
|
|
BIC:
|
BNLIITRR
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
ITALIAN COLLECTION ACCOUNT BANKS
|
|
|
|
Bank:
|
Unicredit SpA
|
|
Bank address:
|
Palazzo Sciarra, Via Marco Minghetti 10,
|
|
|
000187 Roma (RM), Italy
|
|
|
|
|
|
|
|
Bank:
|
Banca Nazionale del Lavoro SpA
|
|
Bank address:
|
Via C. Cicognani 7, 48100, Ravenna (RA), Italy
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
PORTUGUESE COLLECTION ACCOUNTS
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
Millennium bcp
|
|
BIC:
|
BCOMPTPL
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
EUR
|
|
Bank:
|
Millennium bcp
|
|
BIC:
|
BCOMPTPL
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
EUR
|
|
Bank:
|
BNP Pariba Sucursal em Portugal
|
|
BIC:
|
BNPAPTPLXXX
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
PORTUGUESE COLLECTION ACCOUNT BANKS
|
|
|
|
Bank:
|
Banco Comercial Português, S.A.
|
|
Bank address:
|
Avenida José Malhoa, 27 - 3
º
|
|
|
1099-007, Lisbon, Portugal
|
|
|
|
|
Bank:
|
BNP Paribas Sucursal em Portugal
|
|
Address:
|
Aveinda 5 De Outubro 206
|
|
|
1050-065, Lisbon, Portugal
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
SPANISH COLLECTION ACCOUNTS
|
Currency:
|
EUR
|
|
Bank:
|
Banco Bilbao Vizcaya Argentaria, S.A.
|
|
BIC:
|
BBVAESMM
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
Banco Bilbao Vizcaya Argentaria, S.A.
|
|
BIC:
|
BBVAESMM
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
EUR
|
|
Bank:
|
Banco Español de Crédito, S.A.
|
|
BIC:
|
ESPCESMM
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
Banco Español de Crédito, S.A.
|
|
BIC:
|
ESPCESMM
|
|
IBAN:
|
[***]
|
|
Account No.:
|
[***]
|
SPANISH COLLECTION ACCOUNT BANKS
|
Bank:
|
Banco Bilbao Vizcaya Argentaria, S.A.
|
|
Bank address:
|
Plaça Catalunya 5, 08002, Barcelona, Spain
|
|
|
|
|
Bank:
|
Banco Español de Crédito, S.A.
|
|
Address:
|
Gran Via Corts Catalanes 583, 08011, Barcelona, Spain
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
U.S. COLLECTION ACCOUNTS
|
Currency:
|
USD
|
|
Bank:
|
Commerce Bank, N.A.
|
|
BIC
|
CBKCUS44
|
|
ABA:
|
1010-0001-9
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
Commerce Bank, N.A.
|
|
BIC:
|
CBKCUS44
|
|
ABA:
|
1010-0001-9
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
UMB Bank, NA
|
|
BIC:
|
UMKCUS44
|
|
ABA:
|
1010-0069-5
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
UMB Bank, NA
|
|
BIC:
|
UMKCUS44
|
|
ABA:
|
1010-0069-5
|
|
Account No.:
|
[***]
|
|
|
|
|
Currency:
|
USD
|
|
Bank:
|
UMB Bank, NA
|
|
BIC:
|
UMKCUS44
|
|
ABA:
|
1010-0069-5
|
|
Account No.:
|
[***]
|
U.S COLLECTION ACCOUNT BANKS
|
Bank:
|
Commerce Bank, N.A.
|
|
Bank address:
|
1000 Walnut St, Kansas City MO 64141, USA
|
|
|
|
|
Bank:
|
UMB Bank, NA
|
|
Address:
|
1010 Grand Blvd, Kansas City MO 64106, USA
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
SCHEDULE 6
AGREED UPON PROCEDURES
[Attached]
PROTIVITI - SCOPE OF SERVICES
COMPANY: BUNGE LIMITED
SPE: BUNGE SECURITIZATION B.V.
REVIEW PERIOD: []
Conduct the following procedures as it relates to Company operations, books and records, policies and procedures, etc. (through inquiry and observation, except where testing is noted). Document all discussions with and inquiries of management. All samples are judgmentally selected.
General
·
Obtain a copy and review any internal audit report relating to the credit and receivables process prepared within the 6 months to the latest settlement report.
·
List any issues / risks raised in the internal audit report.
·
Obtain a copy of the latest settlement report from the Client and (i) check that it conforms to the data received by Rabobank and (ii) check that following fields reconcile with the Company’s internal management information:
·
Beginning account receivable;
·
Sales;
·
Collections;
·
Dilutions
2
;
·
Losses
3
;
·
Financial Revaluation
4
;
·
Ending accounts receivable; and
·
Accounts receivable ageing — by age bucket. Also, specifically validate list of top 10 Obligors and amounts versus the company’s aged trial balance for such customers;
·
For the two reporting periods covered in the last two settlement reports, assess procedures used for identifying, calculating and reconciling: (a) ineligible receivables (b) cross aging (customers which have other defaulted balances), (c) customer deductions, (d) contra account and (e) intercompany receivables. (Please provide a schedule which identifies these accounts.) Refer to term sheet for description of “ineligible receivables’.
2
Dilution means a reduction in the unpaid balance of any receivable attributable to any non-cash items including credits, rebates, billing errors, cash discounts, volume discounts, allowances, disputes, set-offs, counterclaims, chargebacks, returned or repossessed goods, sales and marketing discounts, warranties, any unapplied credit memos and other adjustments that are made in respect of Obligors, except any write-off in respect of a Defaulted Receivable.
3
Losses mean amounts written-off by the originator as unrecoverable or highly unlikely to be recovered.
4
Financial Revaluation means an amount accounting for the a change in value due to currency movement since the last servicer report.
·
Report exceptions and explanations provided by the client on those exceptions.
Open invoices
·
Obtain a summary AR Aging for the two reporting periods covered in the last two settlement reports .
·
Obtain a reconciliation of the last reporting period’s month-end AR Aging for each division to the general ledger and financial statements.
·
Select a judgmental sample of 20 outstanding invoices as at the last day of the last reporting period from a listing provided by the Company.
·
For each invoice:
·
trace it to the relevant customer purchase order and seek evidence that its value correlates with the relevant Company sales order and customer purchase order;
·
trace it to a signed delivery note;
·
confirm that the payment terms are indicated on the invoice and report the issuance date and the due date of the invoice;
·
confirm that its ageing is correctly reported on the aged receivables listing (to be provided by the Company);
·
confirm the invoice is denominated in an eligible currency (EUR, USD, CAD, HUF or any other major convertible currency);
·
obtain a copy of the underlying sales contract and prevailing terms and conditions;
·
note whether the customer’s purchase order includes a set of terms and conditions; and
·
note the jurisdiction / law governing the Company’s sales order / invoice and customer’s purchase order. Where this is not clearly stated on the sales order, sales contract, invoice, or purchase order, please ask what the governing law is and request the document under which this is attained (e.g. General Sales Conditions). Please reference in the Collateral Audit Report where governing law was specified.
·
Report exceptions and explanations provided by the client on those exceptions.
Credit notes
·
Report the total value of outstanding credit notes (by reason, if possible) as of end of the two reporting periods covered in the last two settlement reports.
·
Report the monthly accrual for customer rebates for each of the 12 months to the last reporting period. This will include the accrual brought forward from the previous month, value of credits issued, value released and accrual carried forward to the next month.
·
Note whether customer rebates are actioned by means of credit notes or netted against sales invoices, or paid directly to the customer via checks. Determine what percentage and amounts are made through each of the above methods during the last 12 months.
·
Describe the company’s method for accruing rebates and determine if (i) the company’s internal and external auditors have validated such methodology and periodically review it (ii) for the period during the last 12 months, discuss with the company and determine the magnitude of variances between the accrued amount and the actual rebates issued, and the reasons for such variances.
·
Scan the last reporting period’s month-end GL Trial balance to identify any accruals that could potentially offset AR.
·
Select at random a sample of 10 credit notes raised during the last reporting period from a listing provided by the Company.
·
For each credit note:
·
note the underlying reason for issue;
·
seek evidence that it was authorized;
·
check that it is ageing correctly based on the credit note and aged receivables listings (for example: for “cancel and replace credit notes”, the receivable shall not be re-aged but shall age from the initial invoice date); and
·
note the gap between the date of issue and the date it was allocated against the relevant sales invoice(s);
·
determine the lag time from the date the original invoice was issued to the date the credit memo was passed.
·
Report whether dilutive credit notes (e.g. product returns, price corrections or invoice errors) are issued for the full original invoice value, or just the balance to be credited.
·
Report exceptions and explanations provided by the client on those exceptions.
Accounts Payable
·
Provide a listing of vendors that are also AR customers.
·
Provide a summary A/P aging or vendor listing for the 2 periods months ending in the two reporting periods covered in the last two settlement reports.
·
Scan the last reporting period’s month-end GL Trial balance to identify any accrued expenses and liability accounts (i.e. customer deposits) that would serve to offset AR. If any exist, provide a roll forward of the activity of those expenses for the periods ending in the two reporting periods covered in the last two settlement reports.
Cash receipts
·
Obtain a list of bank accounts used by the client to receive collections on receivables.
·
Prepare a schedule for the 2 monthly periods ending in the two reporting periods covered in the last two settlement reports summarizing collections by obligor remittance location, in a format similar to the following:
|
Payment to :
|
|
($)
|
|
%
|
|
($)
|
|
%
|
|
|
Collection Account (via Lockbox, Wire Transfer, ACH)
|
|
|
|
|
|
|
|
|
|
|
Company’s office
|
|
|
|
|
|
|
|
|
|
|
COD - Cash Payment
|
|
|
|
|
|
|
|
|
|
|
Other (describe)
|
|
|
|
|
|
|
|
|
|
|
Non-trade A/R ($) received in the collection accounts
|
|
|
|
|
|
|
|
|
|
|
TOTAL COLLECTIONS DEPOSITED per Bank Statement(s)
|
|
$
|
|
|
100
|
%
|
$
|
|
|
100
|
%
|
|
Reconciling items
|
|
|
|
|
|
|
|
|
|
|
Total Collections per Company’s Report
|
|
$
|
|
|
|
|
$
|
|
|
|
|
·
Report the total value of unallocated cash receipts as of the last business day of the two reporting periods covered in the last two settlement reports .
·
From the Company’s bank statements dated during the last reporting period select a judgmental sample of 20 cash receipts.
·
For each cash receipt:
·
note the date of receipt (with reference to the relevant bank statement);
·
note the date it was posted to the accounts receivable system;
·
check that it was posted to the accounts receivable system accurately;
·
check that it was allocated to the appropriate sales invoice(s) — by reference to the customer’s remittance advice;
·
the means of payment (cash, wire transfer), and
·
that they were paid directly by the obligors into the specified bank account (details of designated accounts to be provided by the Agent).
·
Report exceptions and explanations provided by the client on those exceptions.
·
Provide a report for the month of the last settlement report showing collections that were not remitted by the obligors directly to one of the lock-boxes or bank accounts (i.e. collections which are received by the company before going to the lock-boxes/bank account). For collections received by the company, test how quickly these collections are deposited into a lock-box or bank account. For those collections received by the company, test how much of these collections are in the form of cash and determine the % of case collections to total receivable collections.
Reporting
·
Generally report on Client’s accounting and A/R tracking system and capabilities, and its ability to comply with expected reporting requirements;
·
Validate that the Obligor amount reported in the servicer report are on a consolidated basis (e.g. affiliated obligors are aggregated with the parent, and if the obligor has AR from different selling originators, such AR is consolidated);
·
Obtain the 5 largest write-offs for the last 12 months, and discuss reasons/background for the write-offs as well as any recoveries on the written-off receivables;
·
For partial payments, test whether the AR is reduced by the payment or whether the AR is cancelled and a new AR is created to reflect the unpaid balance. If the latter is the case, test whether the newly created AR continues to age or is re-aged as Current. (We have test for credit memos but not for cash payments.);
·
In reporting the AR balances by aging, determine if the AR balances are reported gross or net of unapplied cash/unapplied credits. If on a net basis, determine if the netting is done on an aggregate pool level or at the individual obligor level.
SCHEDULE 7
MANDATORY COST RATE
13.
The Mandatory Cost Rate is an addition to the interest rate to compensate Purchasers for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in each case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
14.
On the first day of each Tranche Period (or as soon as possible thereafter) the Administrative Agent shall calculate, as a percentage rate, a rate (the
“Additional Cost Rate”
) for each Purchaser, in accordance with the paragraphs set out below. The Mandatory Cost Rate will be calculated by the Administrative Agent as a weighted average of the Purchasers’ Additional Cost Rates (weighted in proportion to the percentage participation of each Purchaser in the relevant Investment) and will be expressed as a percentage rate per annum.
15.
The Additional Cost Rate for any Purchaser lending from a Facility Office in a Participating Member State will be the percentage notified by that Purchaser to the Administrative Agent. This percentage will be certified by that Purchaser in its notice to the Administrative Agent to be its reasonable determination of the cost (expressed as a percentage of that Purchaser’s participation in all Investments made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that facility office.
16.
The Additional Cost Rate for any Purchaser Investing from a Facility Office in the United Kingdom will be calculated by the Administrative Agent as follows:
(a) in relation to a sterling Investment:
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per cent. per annum
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(b) in relation to a Loan in any currency other than sterling:
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per cent. per annum.
|
Where:
A
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Purchaser is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
B
is the percentage rate of interest (excluding the Applicable Margin and the Mandatory Cost Rate and, if principal amount of the Investment is unpaid, the Default Rate) payable for the relevant Tranche Period on the Investment.
C
is the percentage (if any) of Eligible Liabilities which that Purchaser is required from time to time to maintain as interest bearing Special Deposits with the Bank of England.
D
is the percentage rate per annum payable by the Bank of England to the Administrative Agent on interest bearing Special Deposits.
E is designed to compensate Purchasers for amounts payable under the Fees Rules and is calculated by the Administrative Agent as being the average of the most recent rates of charge supplied by the Reference Banks to the Administrative Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.
17.
For the purposes of this Schedule:
“Eligible Liabilities”
and
“Special Deposits”
have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England;
“Facility Office”
means the office or offices through which the relevant Purchaser will perform its obligations under this Agreement, as notified in writing to the Administrative Agent on or prior to the date hereof (or, if following that date, by not less than 5 Business Days’ written notice).
“Fees Rules”
means the rules on periodic fees contained in the Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
“Fee Tariffs”
means the fee tariffs specified in the Fees Rules under Column 1 of the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate);
““Reference Bank”
means each Purchaser Agent;
“Tariff Base”
has the meaning given to it in, and will be calculated in accordance with, the Fees Rules.
18. In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
19.
If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Administrative Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
20.
Each Purchaser shall supply any information required by the Administrative Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Purchaser shall supply the following information on or prior to the date on which it becomes a Purchaser:
(a)
the jurisdiction of its Facility Office; and
(b)
any other information that the Administrative Agent may reasonably require for such purpose.
Each Purchaser shall promptly notify the Administrative Agent of any change to the information provided by it pursuant to this paragraph.
21.
The percentages of each Purchaser for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the Administrative Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a Purchaser notifies the Administrative Agent to the contrary, each Purchaser’s obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a facility office in the same jurisdiction as its Facility Office.
22.
The Administrative Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Purchaser and shall be entitled to assume that the information provided by any Purchaser or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
23.
The Administrative Agent shall distribute the additional amounts received as a result of the Mandatory Cost Rate to the Purchasers on the basis of the Additional Cost Rate for each Purchaser based on the information provided by each Purchaser and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
24.
Any determination by the Administrative Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost Rate, an Additional Cost Rate or any amount payable to a Purchaser shall, in the absence of manifest error, be conclusive and binding on all Transaction Parties.
25.
The Administrative Agent may from time to time, after consultation with the Seller and the Purchasers, determine and notify to all Transaction Parties any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all Transaction Parties.
SCHEDULE 9
EXCLUDED OBLIGORS
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Country:
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Canada
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Germany
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Originator:
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BUNGE CANADA
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WALTER RAU LEBENSMITTELWERKE GMBH
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currencies
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customers to which above company sells in other currencies than CAD and USD
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customers to which above company sells in other currencies than EUR
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export sales
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customers outside of Canada and US
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Quebec sales
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customers in Quebec (until notification on assignment of receivables is printed on invoices)
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commingling (not eligible anyway)
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customers that are allowed to pay to other accounts than the pledged accounts at UMB and CIBC
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customers that are allowed to pay to other accounts than the pledged accounts at Sparkasse Osnabruck
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factoring (not eligible anyway)
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customers that are part of a factoring agreement
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customers that are part of a factoring agreement
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prepayments (not eligible anyway)
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customers that are prepaying
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customers that are prepaying
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specific customers:
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all customers excluded, except for:
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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***
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Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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***
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Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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***
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Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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***
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Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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***
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Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
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|
Country:
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Hungary
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Originator:
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BUNGE NÖVÉNYOLAJIPARI ZÁRTKÖRŰEN MŰKÖDŐ RÉSZVÉNYTÁRSASÁG
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currencies
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customers to which above company sells in other currencies than EUR and HUF
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export sales
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Quebec sales
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commingling (not eligible anyway)
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customers that are allowed to pay to other accounts than the pledged accounts at Citi
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factoring (not eligible anyway)
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customers that are part of a factoring agreement
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prepayments (not eligible anyway)
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customers that are prepaying
|
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specific customers:
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all customers excluded, except for:
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[***]
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[***]
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[***]
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[***]
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***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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***
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Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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***
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Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
Country:
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Italy
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Portugal
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Originator:
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BUNGE ITALIA S.P.A.
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BUNGE IBÉRICA PORTUGAL, S.A.
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currencies
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customers to which above company sells in other currencies than EUR
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customers to which above company sells in other currencies than EUR and USD
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export sales
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Quebec sales
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commingling (not eligible anyway)
|
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customers that are allowed to pay to other accounts than the pledged accounts at UMB and CIBC
|
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customers that are allowed to pay to other accounts than the pledged accounts at BNP Paribas and Millennium BCP
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factoring (not eligible anyway)
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customers that are part of a factoring agreement
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customers that are part of a factoring agreement
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prepayments (not eligible anyway)
|
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customers that are prepaying
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customers that are prepaying
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specific customers:
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[***]
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
Country:
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Spain
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US
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Originator:
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BUNGE IBÉRICA, S.A.U.
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BUNGE NORTH AMERICA, INC.
BUNGE OILS, INC.
BUNGE NORTH AMERICA (EAST), LLC
BUNGE MILLING, INC.
BUNGE NORTH AMERICA (OPD WEST), INC.
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currencies
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customers to which above company sells in other currencies than EUR and USD
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customers to which above company sells in other currencies than USD
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export sales
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customers outside of US
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Quebec sales
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commingling (not eligible anyway)
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customers that are allowed to pay to other accounts than the pledged accounts at BBVA and Banesto
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customers that are allowed to pay to other accounts than the pledged accounts at UMB and Commerce Bank
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factoring (not eligible anyway)
|
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customers that are part of a factoring agreement
|
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customers that are part of a factoring agreement
|
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prepayments (not eligible anyway)
|
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customers that are prepaying
|
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customers that are prepaying
|
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specific customers:
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[***]
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[***]
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[***]
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***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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[***]
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***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
SCHEDULE 10
ACCEPTANCE BY THE TRANSACTION DEBTORS
[TO BE GIVEN WITH CERTAIN DATE AT LAW]
To:
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (as Italian Intermediate Transferor)
BUNGE ITALIA S.P.A. (in all of its capacities)
Dear Sirs,
Claims Arising from the Agreements
The undersigned
BUNGE SECURITIZATION B.V.
,
a private limited liability company organized under the laws of The Netherlands,
whose registered office is at
[
·
]
, enrolled with the Companies Register of
[
·
]
under number
[
·
] (the “
Seller
”) hereby notifies, to Bunge Italia S.p.A. and the Administrative Agent - pursuant to and for the purposes of article 1264 of the Italian Civil Code - that the Seller has assigned to
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
organized under the laws of
The Netherlands
,
whose registered office is at
[
·
]
, enrolled with the Companies Register of
[
·
]
under number
[
·
] in its capacity as administrative agent (the “
Administrative Agent
”) in favour of the Purchasers, all existing and future claims and rights (including, but not limited to, any claim, indemnity, damage, penalty, sanction, credits, security interest and guarantee) to which the Seller is or will be entitled to claim under or in connection with the Transaction Documents (including the Italian Account Security Agreement) to which the Seller is a party or as assigned by the Italian Intermediate Transferor, as the case may be, to the Seller.
On this respect, Bunge Italia S.p.A. also acknowledges and accepts that, pursuant to and for the purposes of article 1264 of the Italian Civil Code, the Italian Intermediate Transferor, under the Italian Intermediate Transfer Agreement, has assigned to the Seller all of its existing and future claims and rights arising from the Italian RPA.
All capitalised terms and expressions used and not defined herein shall have the meaning ascribed to them in the transfer agreement governed by New York law entered into by the Seller and the Administrative Agent, on behalf of the Purchasers, on [
·
] 2011.
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Kind regards,
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BUNGE SECURITIZATION B.V.
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For acceptance by the transaction debtors, also for the purposes of article 1248, paragraph 1, of the Italian civil code:
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
(as Italian Intermediate Transferor)
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BUNGE ITALIA S.P.A. (in all of its capacities)
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CONFIDENTIAL TREATMENT FOR PORTIONS OF THIS EXHIBIT HAS BEEN REQUESTED
FROM THE SECURITIES AND EXCHANGE COMMISSION
Exhibit 10.4
EXECUTION COPY
Dated June 1, 2011
(1)
BUNGE SECURITIZATION B.V.
, as Seller
(2)
BUNGE NORTH AMERICA CAPITAL, INC.
, as U.S. Intermediate Transferor
(3)
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
, as Italian Intermediate Transferor
(4)
BUNGE FINANCE B.V.
, as Master Servicer
(5)
The Persons set forth on Schedule 1 hereto as Sub-Servicers
(6)
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
, as Administrative Agent
SERVICING AGREEMENT
CONTENTS
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Clause
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Page
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1.
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Definitions
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2
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2.
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Administration and Collections
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2
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3.
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Representations and Warranties
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4.
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Covenants
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5.
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Miscellaneous
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26
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Schedule
1.
Initial Sub-Servicers
Exhibits
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EXHIBIT A-1
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Form of Monthly Report
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EXHIBIT A-2
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Form of Weekly Report
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EXHIBIT A-3
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Form of Outstanding Receivables Report
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EXHIBIT B
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Form of Servicer Power of Attorney
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EXHIBIT C
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Form of Administrative Agent and Seller Power of Attorney
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EXHIBIT D
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Form of Italian First Notice of Assignment
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EXHIBIT E
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Form of Italian Monthly Notice of Assignment
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EXHIBIT F
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Form of Joinder Agreement
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THIS AGREEMENT
is dated June 1, 2011 and made between:
(1)
BUNGE SECURITIZATION B.V.
, a private limited liability company organized under the laws of the Netherlands, as Seller (the
“Seller”
);
(2)
BUNGE NORTH AMERICA CAPITAL, INC.
, a Delaware corporation, as the U.S. Intermediate Transferor (
“U.S. Intermediate Transferor”
);
(3)
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
, as the Italian Intermediate Transferor (“
Italian Intermediate Transferor
”);
(4)
BUNGE FINANCE B.V.
, a private limited liability company organized under the laws of the Netherlands (
“Bunge”
), as the Master Servicer (as defined below);
(5)
The Persons set forth on Schedule 1 hereto, as Sub-Servicers (as defined below) and each Person added to this Agreement after the date hereof as a Sub-Servicer pursuant to a Joinder Agreement in the form of Exhibit F hereto (each an
“Originator”
and, collectively, the
“Originators”
); and
(6)
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
, as Administrative Agent (the
“Administrative Agent”
).
BACKGROUND:
(A)
The Seller and the other Seller Parties shall from time to time acquire Receivables and any Related Security with respect thereto from the Originators pursuant to Originator Sale Agreements.
(B)
In the case of Receivables and Related Security acquired by Seller Parties other than the Seller, the Seller will acquire such Receivables and Related Security from such other Seller Parties pursuant to the Intermediate Transfer Agreements.
(C)
Each of the Seller Parties and the Secured Parties desires that the Master Servicer conduct the servicing, administration and collection of the Portfolio Receivables and Related Security with respect thereto on the terms and subject to the conditions set forth in this Agreement.
(D)
Bunge has agreed to act as the initial Master Servicer in accordance with the terms and subject to the conditions set forth in this Agreement.
(E)
Each of the Originators has agreed to act as a Sub-Servicer in accordance with the terms and subject to the conditions set forth in this Agreement.
(F)
The Master Servicer and each Sub-Servicer from time to time appointed in accordance herewith (each a
“Servicer Party”
and, collectively, the
“Servicer Parties”
) intend to, and shall, conduct the servicing, administration, collection and management of the Portfolio Receivables and Related Security with respect thereto on the terms and subject to the conditions set forth in this Agreement.
1
IT IS AGREED that:
1.
DEFINITIONS
1.1
Definitions
Unless otherwise defined herein, capitalised terms which are used herein shall have the meanings assigned to such terms in
Section 1.1
(
Certain Defined Terms
) of the Receivables Transfer Agreement, dated the date hereof, among the Seller, the Master Servicer, Bunge Limited, as Performance Undertaking Provider, the entities from time to time parties thereto as Conduit Purchasers, Committed Purchasers and Purchaser Agents and the Administrative Agent (the
“Receivables Transfer Agreement”
). In the case of any inconsistency between such terms and the terms defined in this Agreement, the terms defined in this Agreement shall prevail for all purposes of this Agreement.
1.2
Interpretation
The principles of interpretation set forth in
Sections 1.2
(
Other terms
) and
1.3
(
Computation of time periods
) of the Receivables Transfer Agreement shall apply to this Agreement as if fully set forth herein.
2.
ADMINISTRATION AND COLLECTIONS
2.1
Designation of Master Servicer; Power of Attorney
(a)
(i) The servicing, administration, collection and management of the Portfolio Receivables shall be conducted by the Person so designated hereunder from time to time (such Person, the
“Master Servicer”
). Until the Administrative Agent (with the consent or at the direction of the Required Committed Purchasers) gives notice to the Seller Parties of the designation of a new Master Servicer (which notice may only be given at any time following the occurrence and during the continuation of a Servicer Default), Bunge is hereby designated as and is hereby appointed by the Seller, each Intermediate Transferor party hereto and the Administrative Agent (each such Person having an interest in such appointment by reason of the rights granted to it pursuant to the Transaction Documents) as, and hereby agrees to perform the duties and obligations of, the Master Servicer pursuant to the terms of this Agreement and the other Transaction Documents; and (ii) Bunge acknowledges that each of the Seller Parties and the Secured Parties have relied on its agreement to act as Master Servicer hereunder in making the decision to execute the Transaction Documents to which such Persons are a party. Bunge hereby agrees and acknowledges that it may not resign from the obligations and liabilities imposed on it hereunder and under the other Transaction Documents to which it is a party;
provided
, that Bunge may, with the prior written consent of the Administrative Agent and the Required Committed Purchasers (such consent not to be unreasonably withheld) resign as Master Servicer if (A) a successor Master Servicer which is an Affiliate or Subsidiary of Bunge has agreed to act as Master Servicer substantially on the terms and conditions hereof, (B) the Performance Undertaking Provider has provided a reaffirmation, in form and substance reasonably satisfactory to the
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Administrative Agent and the Required Committed Purchasers, of its obligations under the Performance Undertaking after giving effect to such resignation and appointment, and (C) such successor Master Servicer has agreed to execute documentation, in form and substance reasonably satisfactory to the Administrative Agent and the Required Committed Purchasers, to effect its appointment as, and the assumption of the rights and duties of, the Master Servicer hereunder and under the Transaction Documents;
provided
,
further
, no such resignation will be effective until such successor Master Servicer has been appointed pursuant to such documentation. For the avoidance of doubt, any such appointment of a successor Master Servicer pursuant to, and in accordance with, this
Section 2.1(a)(ii)
shall not terminate the appointment of any Sub-Servicer.
(b)
The Administrative Agent may, and at the direction of the Required Committed Purchasers shall, but only following the occurrence and during the continuation of a Servicer Default, designate as Master Servicer any Person (including itself or any back-up servicer appointed pursuant to Section 6.1 of the Receivables Transfer Agreement) to succeed Bunge or any successor Master Servicer, on such terms and conditions as the Administrative Agent and such successor Master Servicer shall agree.
(c)
Each of the Originators, the Seller, each Intermediate Transferor party hereto and Bunge (to the extent not then acting as Master Servicer hereunder) (each a
“Grantor”
) hereby agrees that the Master Servicer may take any and all steps in such Grantor’s name and on behalf of such Grantor as are necessary or desirable, in the reasonable determination of the Master Servicer, to collect all amounts due under any and all Portfolio Receivables, any Related Security with respect thereto and any other Collateral, including endorsing such Grantor’s respective name on checks and other instruments representing Collections, giving instructions and other directions in respect of the Facility Accounts and enforcing such Portfolio Receivables, Related Security and the related Contracts and taking all such other actions set forth in this
Section 2
. In furtherance of the foregoing, each Grantor hereby agrees to execute and deliver to the Master Servicer a power of attorney substantially in the form of
Exhibit B
(
Form of Servicer Power of Attorney
). In case of any power of attorney granted by a German Originator, such power of attorney will be granted under release of the restrictions of section 181 of the German Civil Code (
Bürgerliches Gesetzbuch
).
2.2
Duties of the Master Servicer
(a)
The Master Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect and manage the Portfolio Receivables and any Related Security, with reasonable care and diligence, all in accordance with this Agreement and the other Transaction Documents, applicable Laws and the Credit and Collection Policies. The Seller, each Intermediate Transferor party hereto and the Administrative Agent hereby appoint the Master Servicer, from time to time designated pursuant to
Section 2.1
, as their agent to enforce their respective rights and interests in the Portfolio Receivables, the Related Security and the related Contracts. In performing its duties as Master Servicer, the Master Servicer shall use the same care and
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apply the same policies as it would exercise and apply if it owned such Portfolio Receivables and shall act in such manner as it reasonably determines to be in the best interests of the Purchasers, the Agents and the other Secured Parties as Persons having an interest in the Portfolio Receivables. At any time following the occurrence and during the continuation of a Facility Termination Event or a Specified Seller Termination Event (but only with respect to the Portfolio Receivables and Related Security originated by the Originators with respect to which such Specified Seller Termination Event relates), the Administrative Agent shall have the sole right to direct the Master Servicer to commence or settle any legal action to enforce collection of any Portfolio Receivable or any Related Security with respect thereto. The Master Servicer shall not be conferred any powers to enter into contracts in the name of the Seller, each Intermediate Transferor party hereto or the Administrative Agent.
(b)
The Master Servicer shall perform and shall comply with, and agrees to be bound by, the terms of the Intermediate Transfer Agreements, the Originator Sale Agreements and the other Transaction Documents which are specifically expressed to be applicable to it as Master Servicer (as defined herein or therein) in the same manner as if it were a party thereto and agrees to perform and to be bound by all covenants and other undertakings required of it as Master Servicer (as defined herein or therein) pursuant to the terms of such agreements or which the Seller Parties, as applicable, agree to cause or direct the Master Servicer to do or perform (or perform through the Master Servicer) under any such agreement.
(c)
If no Facility Termination Event or Specified Seller Termination Event (but only with respect to Portfolio Receivables and Related Security originated by Originators with respect to which such Specified Seller Termination Event relates) shall have occurred and be continuing, the Servicer may extend, amend or otherwise modify the terms and conditions of any Portfolio Receivable or Related Security (i) in accordance with the applicable Credit and Collection Policies, (ii) as required by Law or (iii) otherwise in a manner that would not have a Material Adverse Effect or materially adversely affect the interests or remedies of the Seller (or its assignees);
provided
that the classification of any such Portfolio Receivable as a delinquent Receivable or Defaulted Receivable shall not be affected by any such extension or adjustment;
provided
,
further
that (x) if such Portfolio Receivable is an Eligible Receivable, the Master Servicer shall not amend or modify such Portfolio Receivable or any Contract related thereto in a manner that would cause such Portfolio Receivable to cease to be an Eligible Receivable unless following such amendment or modification the Aggregate Invested Amount would not exceed the Funding Base, and (y) if such amendment or modification would cause all or any portion of such Receivable to be a Diluted Receivable, the Master Servicer shall not amend or modify such Portfolio Receivable or any Contract related thereto unless the Master Servicer or the relevant Originator makes any payment with respect to all Deemed Collections required in connection therewith in accordance with the Transaction Documents. If a Facility Termination Event or Specified Seller Termination Event (but only with respect to Portfolio Receivables and Related Security originated by Originators with respect to which such Specified Seller
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Termination Event relates) shall have occurred and be continuing, the Master Servicer may grant such extensions or adjustments only with the prior written consent of the Administrative Agent. In no event shall the Master Servicer be entitled to make any Purchaser, any Agent or any other Secured Party a party to any litigation involving the Transaction Documents or the Receivables without such Purchaser’s, such Agent’s or such Secured Party’s prior written consent. In no event shall the Master Servicer be entitled to make the Seller a party to any litigation involving the Transaction Documents or the Receivables without the Seller’s and the Administrative Agent’s prior written consent.
(d)
The Master Servicer shall maintain for the benefit of the Seller, the Administrative Agent, the Purchaser Agents and each Purchaser all documents, purchase orders, invoices, agreements, books, records and other information which evidence or relate to the Portfolio Receivables, any Related Security with respect thereto, the applicable Contracts and the related Obligors whether now existing or hereafter arising. The Master Servicer shall mark its (and shall procure that the relevant Originator marks its) master data processing records evidencing the Portfolio Receivables with a legend, reasonably acceptable to the Administrative Agent, that such Portfolio Receivables have been sold to the Administrative Agent (for the benefit of the Purchasers).
(e)
The Master Servicer shall, as soon as practicable following receipt thereof, and in any event within two (2) Business Days after receipt thereof, turn over or cause to be turned over to the applicable Originator or such other Person as may be entitled thereto any cash collections or other cash proceeds received in the Facility Accounts and not constituting Collections of Portfolio Receivables, Related Security with respect thereto or any other Collateral.
(f)
Each of the parties hereto agrees that, unless otherwise required by contract or applicable Law or clearly indicated by facts or circumstances or unless an Obligor designates that a payment be applied to a specific Receivable,
all Collections from an Obligor shall be applied in the order of maturity of the Receivables of such Obligor starting with the Receivable of such Obligor having the earliest maturity
date (whether or not such Receivables are Portfolio Receivables)
.
(g)
Each of the Seller, each Intermediate Transferor party hereto and the Originators hereby appoints the Administrative Agent, as their agent, at any time a Servicer Default has occurred and is continuing, to (if it so elects) itself perform, or cause the performance of, any obligations of the Master Servicer which have not been performed by the Master Servicer in accordance herewith; and the Administrative Agent’s costs and expenses reasonably incurred in connection therewith shall be payable by the Master Servicer.
2.3
Reporting requirements
(a)
Monthly Reports
No later than 3:30 p.m. (London time) on each Monthly Reporting Date, the Master Servicer shall deliver to the Administrative Agent and the Seller a
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Monthly Report in the form of
Exhibit A-1
(
Form of Monthly Report
), based on information as of the close of business on the last Business Day of the immediately preceding Calculation Period. The Administrative Agent shall promptly forward each Monthly Report to the Purchaser Agents (by the end of the day (London time) if received by 3:30 p.m. (London time)).
(b)
Weekly Reports
If the Applicable S&P Rating is below “BBB-” (or withdrawn or suspended) and the Applicable Moody’s Rating is below “Baa3” (or withdrawn or suspended), then weekly reporting shall be required and no later than 12:00 noon (London time) on the fourth Business Day (or, if such calendar week has less than 4 Business Days, on the last Business Day of such calendar week) of each calendar week (starting not later than the 30
th
day following such rating event), the Master Servicer shall deliver to the Administrative Agent and the Seller a Weekly Report in the form of
Exhibit A-2
(
Form of Weekly Report
), based on information as of the close of business on the last Business Day of the immediately preceding calendar week.
(c)
List of Receivables
The Master Servicer covenants and agrees to provide the Administrative Agent with an Outstanding Receivables Report in the form of
Exhibit A-3
(
Form of Outstanding Receivables Report
) within three (3) Business Days of request. This request will be limited to once per any 364-day period prior to the occurrence of a Facility Event. Any such Outstanding Receivables Report provided by the Master Servicer in response to such request shall include the name of each Obligor and the Unpaid Balance of the Portfolio Receivables of such Obligor.
(d)
Transmission of Portfolio Reports and Outstanding Receivables Report
The Master Servicer shall transmit each Portfolio Report and Outstanding Receivables Report to Administrative Agent by electronic mail. In addition, the Master Servicer shall, upon the request of the Administrative Agent, transmit a copy of such Portfolio Report or Outstanding Receivables Report to the Administrative Agent by facsimile.
(e)
[Reserved.]
(f)
Notice of Facility Events and Portfolio Events
As soon as possible and in any event within two (2) Business Days after a Responsible Officer of the Master Servicer obtains knowledge of the occurrence of any Facility Event (including any Servicer Default or Potential Servicer Default) or Portfolio Event, the Master Servicer shall furnish or cause to be furnished to the Administrative Agent a statement of a Responsible Officer of the Master Servicer setting forth details of such Facility Event or Portfolio Event and, if applicable, the action that the Master Servicer or any of the other Transaction Parties has taken and proposes to take with respect thereto.
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(g)
Notice of downgrades
As soon as possible and in any event within the five (5) Business Days after a Responsible Officer of the Master Servicer obtains knowledge thereof, the Master Servicer shall provide to the Administrative Agent notice of any downgrade in the Applicable S&P Rating or Applicable Moody’s Rating, respectively (or the withdrawal by either S&P or Moody’s of the Applicable S&P Rating or Applicable Moody’s Rating, respectively), setting forth the debt affected and the nature of such change (or withdrawal).
(h)
Termination or Suspension of Originator Sale Agreement
The Master Servicer shall furnish or cause to be furnished to the Administrative Agent (i) at least ten (10) Business Days’ prior written notice of any termination of the sale of Receivables by an Originator to the Seller or an Intermediate Transferor, as the case may be, pursuant to the related Originator Sale Agreement to which such Originator is a party and (ii) as soon as possible and in any event within two (2) Business Days
after a Responsible Officer of the Master Servicer obtains knowledge of the occurrence thereof, notice of any Seller Event under any Originator Sale Agreement.
(i)
Notices under Transaction Documents
Promptly after receipt thereof by the Master Servicer or the Seller (if copied to the Master Servicer), the Master Servicer shall furnish or cause to be furnished to the Administrative Agent copies of all notices received by the Seller or the Master Servicer from any Originator or any Seller Party in connection with any Transaction Document to the extent not previously provided to the Agents by another Transaction Party.
(j)
Litigation; Material Adverse Effect
Promptly (and in any event within five (5) Business Days) after a Responsible Officer of the Master Servicer obtains knowledge thereof, the Master Servicer shall furnish or cause to be furnished to the Administrative Agent notice of:
(i)
(A) the filing or commencement of, or any written threat or notice of intention of any Person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity or by or before any Official Body or in arbitration against, or any investigation by any Official Body that may exist with respect to any Transaction Party, the Facility Accounts, the Transaction Documents or the transactions contemplated thereby in each case, which could reasonably be expected, in the reasonable discretion of the Master Servicer, to have a Material Adverse Effect or (B) any material adverse development that has occurred with respect to any such previously disclosed litigation, investigation or proceeding; and
(ii)
any other event or condition with respect to any Transaction Party that has had, or in the reasonable discretion of the Master Servicer would reasonably be expected to have, a Material Adverse Effect.
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(k)
Pro forma reports
On or prior to the date on which (i) any Originator Sale Agreement or the right and obligation of any Originator to sell Receivables to a Seller Party is to be terminated or (ii) a material portion of the Obligors of an Originator are to be characterized as Excluded Obligors, the Master Servicer shall provide to the Administrative Agent twelve (12) months (or such other applicable period agreed to by the Administrative Agent) of Receivables data giving pro forma effect to any reduction in the Net Eligible Receivables Balance resulting from the termination of such Originator or Originator Sale Agreement or exclusion of such Obligors. In the event any Originator or Originator Sale Agreement is so terminated or a material portion of the Obligors of an Originator are to be excluded, the ratios used in calculating the Reserve Percentage shall be determined as if the Receivables of such Originator or Originators under such Originator Sale Agreement or such Excluded Obligors, as applicable, had never existed. The prior written consent of each Purchaser Agent to such termination or exclusion shall be required if such termination or exclusion would result in the Aggregate Invested Amount exceeding the Funding Base.
(l)
Other information
As soon as reasonably practical and in any event no later than ten (10) Business Days after a request by any Agent, the Master Servicer shall deliver to each Agent such other information with respect to (i) the Portfolio Receivables, the Related Security, the Facility Accounts or the Collateral as such Agent may from time to time reasonably request, or (ii) any Facility Event or Portfolio Event or Material Adverse Effect related to the Master Servicer as such Agent may from time to time reasonably request.
2.4
Transition to successor Master Servicer
(a)
If terminated as Master Servicer following the occurrence of a Servicer Default, Bunge agrees that it will (i) terminate and, cause each existing Sub-Servicer to terminate, its collection activities in a manner and to the extent requested by the Administrative Agent to facilitate the transition to a new Master Servicer and (ii) subject to
Section 2.4(c)
transfer as soon as practicable all Records with respect to the Portfolio Receivables to the new Master Servicer.
(b)
At any time a Facility Termination Event has occurred and is continuing, Bunge shall, upon request of the Administrative Agent and to the extent permitted by applicable Law and subject to the restrictions contained in any license with respect thereto, transfer as soon as reasonably practical to the Administrative Agent (or its designee), or license, or cause to be licensed, to the Administrative Agent (or its designee) an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all computer tapes, software and programs, data processing software and storage media used by Bunge to account for the Portfolio Receivables, to the extent necessary to permit the applicable Seller Party or the Administrative Agent to exercise its ownership and other interests in the Portfolio Receivables and Related Security, and to administer or service such Portfolio Receivables and Related
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Security, whether such computer tapes, software and programs, data processing software and storage media are owned by the Master Servicer or are owned by others and used by the Master Servicer under license agreements with respect thereto;
provided
,
however
, that Bunge shall not be required, to the extent it has an ownership interest in any computer tapes, software, programs, storage media or licenses, to transfer, assign, set-over or otherwise convey such ownership interests to the Administrative Agent (or its designee). In recognition of Bunge’s need to have access to any such computer tapes, software, programs, storage media, documents, instruments and other records that may be transferred to the Administrative Agent (or its designee), whether as a result of its continuing responsibility as a servicer of accounts receivable that are not sold under the Transaction Documents or otherwise, the Administrative Agent (or its designee) shall provide to Bunge reasonable access to such computer tapes, software, programs, storage media, documents, instruments and other records transferred by Bunge to it in connection with any activity arising in the ordinary course of Bunge’s business;
provided
that Bunge shall not disrupt or otherwise interfere with the Administrative Agent’s (or its designee’s) use of and access to such computer tapes, software, programs, storage media, documents, instruments and other records. To the extent that compliance with this
Section 2.4(b)
shall require Bunge to disclose to the Administrative Agent (or its designee) information of any kind that Bunge reasonably deems to be confidential, the Administrative Agent (and its designee) shall be required to enter into such customary licensing and confidentiality agreements as Bunge shall reasonably deem necessary to protect its interests. Any such license granted hereby shall be irrevocable, and shall not terminate until the Final Payout Date. To the extent any such transfer or license would require the payment of any license fee or other amount, Bunge agrees to pay such fee or other amount out of its own funds promptly upon demand by the Administrative Agent. In addition, to the extent the Master Servicer contracts with Finacity or any other entity to perform information services within respect to the Portfolio Receivables, the agreement with such entity shall provide that such entity will cooperate with the Administrative Agent in connection with (i) any transition to a successor Master Servicer and (ii) Portfolio Receivable information requests following the occurrence of Facility Event or Portfolio Event.
(c)
Bunge shall reasonably cooperate with and assist any successor Master Servicer in the performance of its responsibilities as Master Servicer hereunder and under the other Transaction Documents, including taking any actions described in
Section 2.4(b)
and, subject to applicable Law, transferring to such successor Master Servicer all records and other items of the type described in
Section 2.2(d)
(
Duties of Master Servicer
);
provided
, that to the extent Bunge is prohibited by applicable Law from transferring such records or other items, Bunge shall (to the extent permitted by applicable Law and subject to the restrictions contained in any license with respect thereto), upon the reasonable request of the Seller or the Administrative Agent, provide a copy of such records or other items to the Seller or the Administrative Agent (or its designee).
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(d)
Prior to the occurrence of the Final Payout Date, in the event Bunge ceases to be the Master Servicer, Bunge shall download, prepare and distribute, promptly and effectively, all data relating to the Receivables and Related Security in usable form as reasonably requested by any successor Master Servicer and/or the Administrative Agent from time to time.
2.5
Sub-Servicers
(a)
The Master Servicer may, with the prior written consent of the Administrative Agent and the Required Committed Purchasers, subcontract or delegate with any other Person for the servicing, administration, collection or management of part or all of the Portfolio Receivables, the Related Security and the Collateral (each such Person (including for the avoidance of doubt the Original Sub-Servicers as defined in
Section 2.5(b)
) a
“Sub-Servicer”
);
provided
that:
(i)
in the case of each such subcontract or delegation, such Sub-Servicer shall agree in writing (including, in the case of the Original Sub-Servicers, by becoming a party hereto) in favor of the other parties hereto to perform and be bound by the duties and obligations of the Master Servicer so delegated or subcontracted pursuant to the terms hereof and the duties and obligations of the Sub-Servicer hereunder and agrees to make the representations and warranties set forth in
Section 3.1
(
Representations and Warranties of the Master Servicer
) with respect to it
mutatis mutandi
;
(ii)
the Master Servicer may, subject to
Section 2.5(a)(i)
, without such consent delegate its duties as Master Servicer hereunder to any Affiliate; and
(iii)
all Collections continue to be credited to a Collection Account as otherwise required under the Transaction Documents.
Notwithstanding any such subcontract or delegation (including any subcontract or delegation to the Original Sub-Servicers pursuant to
Section 2.5(b)
), the Master Servicer shall continue to remain solely liable for the performance of the duties and obligations of the Master Servicer (whether or not such duty or obligation is also required to be performed by a Sub-Servicer) pursuant to the terms hereof. Without limiting the generality of the foregoing and notwithstanding the provision of
Section 2.5(c)
, any action taken or omitted to be taken by any Person that has entered into a subcontract with the Master Servicer or to whom the Master Servicer has delegated any of its duties (including any Original Sub-Servicer) shall be deemed to be an action or omission by the Master Servicer (including for purposes of determining whether any Portfolio Receivable is a Diluted Receivable and for purposes of
Section 2.6
(
Indemnities by Master Servicer
) of this Agreement and
Sections 2.6
(
Collections prior to Facility Termination Date
) or
Section 2.7
(
Collections after Facility Termination Date
) of the Receivables Transfer Agreement). The terms of any agreement with any Sub-Servicer shall provide that, unless the Administrative Agent notifies any Sub-Servicer in writing otherwise, its appointment as Sub-Servicer shall automatically (without any
10
requirement for the giving of notice) be terminated upon the termination of the Master Servicer hereunder.
(b)
As the initial Master Servicer, Bunge hereby appoints (with the consent of the Seller and the Administrative Agent (on behalf of the Purchasers)) each Originator (each, in such capacity, an
“Original Sub-Servicer”
) as its Sub-Servicer and delegates to service, administer, collect and manage all of the Portfolio Receivables, the Related Security and the Collateral originated by such Original Sub-Servicer. Each Original Sub-Servicer hereby accepts such appointment and delegation and hereby:
(i)
agrees to perform and be bound by the duties and obligations of the Master Servicer and the duties and obligations of a Sub-Servicer, in each case, in accordance with the terms and conditions set forth herein and in the other Transaction Documents to which it is a party; and
(ii)
makes, on the Closing Date and as of the date of each Investment (the proceeds of which will be used to purchase or otherwise acquire Receivables from such Original Sub-Servicer) under the Receivables Transfer Agreement and as of each Reporting Date, the representations and warranties set forth in
Section 3.1
(
Representations and Warranties of the Master Servicer
);
in each case, to the extent that such duties and obligations relate to such Original Sub-Servicer, the Portfolio Receivables, the Related Security and the Collateral originated by such Original Sub-Servicer or the servicing, administration, collection or management of the Portfolio Receivables, the Related Security and the Collateral originated by such Original Sub-Servicer.
(c)
Each Sub-Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect the Portfolio Receivables and Related Security for which it acts as Sub-Servicer, with reasonable care and diligence, all in accordance with this Agreement and the other Transaction Documents, applicable Laws and the applicable Credit and Collection Policies. In performing its duties as Sub-Servicer, each Sub-Servicer shall use the same care and apply the same policies as it would exercise and apply if it owned such Portfolio Receivables and shall act in such manner as it reasonably determines to be in the best interests of the Purchasers, Agents and the other Secured Parties as Persons having an interest in the Portfolio Receivables. No Sub-Servicer shall hold itself or allow any of its employees, directors or representatives to hold themselves out as being entitled to represent the Seller or the Administrative Agent or the Purchasers (as assignees of the Seller) or legally bind the Seller or the Administrative Agent or the Purchasers (as assignees of the Seller). Each Sub-Servicer will only act within the scope of this Agreement and the other Transaction Documents, applicable Laws and the applicable Credit and Collection Policies and will ask for prior written approval from the Administrative Agent and the Seller (or the Master Servicer on behalf of the Seller) in case of a material deviation therefrom. Without limiting the generally of the foregoing, the German Sub-Servicer is in particular not entitled to originate any Receivables on behalf of the Seller.
11
(d)
If a Facility Termination Event or a Specified Seller Termination Event has occurred and is continuing, the Administrative Agent shall have the sole right to direct the Sub-Servicer with respect to which a Specified Seller Termination Event has occurred and is continuing or, in the event of a Facility Termination Event, all of the Sub-Servicers to commence or settle any legal action to enforce collection of any Portfolio Receivable or any Related Security with respect thereto. Each Sub-Servicer agrees to be bound by the provisions of
Section 2.2(c)
to the same extent as if it were the Master Servicer.
(e)
Each Sub-Servicer shall perform and shall comply with, and agrees to be bound by, the terms of the Receivables Transfer Agreement, the Intermediate Transfer Agreements, the Originator Sale Agreements and the other Transaction Documents which are specifically expressed to be applicable to it as a Sub-Servicer (or to the Master Servicer (with respect to any matter delegated to such Sub-Servicer by the Master Servicer)) in the same manner as if they were a party thereto and agrees to perform and to be bound by all covenants and other undertakings required of it as Sub-Servicer (as defined herein or therein) pursuant to the terms of such agreements or which the Seller Parties, as applicable, agree to cause or direct a Sub-Servicer (as applicable) to do or perform (or perform through such Sub-Servicer) under any such agreement.
(f)
Each Sub-Servicer shall maintain for the benefit of the Seller, the Administrative Agent, the Purchaser Agents and each Purchaser all documents, purchase orders, invoices, agreements, books, records and other information which evidence or relate to the Portfolio Receivables originated by such Sub-Servicer, and Related Security with respect thereto, the applicable Contracts and the related Obligors whether now existing or hereafter arising. Each Sub-Servicer shall mark its master data processing records evidencing the Portfolio Receivables originated by such Sub-Servicer with a legend, reasonably acceptable to the Administrative Agent, that such Portfolio Receivables have been sold to the Administrative Agent (for the benefit of the Purchasers).
(g)
Each Sub-Servicer shall, as soon as practicable following receipt thereof, and in any event within two (2) Local Business Days after receipt thereof, turn over to the applicable Originator or such other Person as may be entitled thereto any cash collections or other cash proceeds received in the Facility Accounts and not constituting Collections of Portfolio Receivables, Related Security with respect thereto or any other Collateral.
(h)
Each Servicer Party (including any Original Sub-Servicer) hereby appoints the Administrative Agent, as their agent, at any time a Servicer Default has occurred and is continuing, to (if it so elects) itself perform, or cause the performance of, any obligations of such Servicer Party which have not been performed by such Servicer Party in accordance herewith; and the Administrative Agent’s costs and expenses reasonably incurred in connection therewith shall be payable by the Sub-Servicer.
(i)
To the extent the Administrative Agent is entitled to exercise any rights or remedies with respect to the Master Servicer, each Sub-Servicer acknowledges
12
and agrees that the Administrative Agent may exercise the same rights and remedies against such Sub-Servicer with respect to the Portfolio Receivables and Related Security for which it acts as Sub-Servicer from time to time.
(j)
Without limiting the generality of
Section 2.5(i)
, each Sub-Servicer hereby acknowledges and agrees that its appointment as Sub-Servicer shall, unless the Administrative Agent notifies it in writing otherwise, be automatically (without any requirement for the giving of notice) terminated upon the termination of the Master Servicer pursuant to
Section 2.9
.
(k)
If terminated as Sub-Servicer following the occurrence of a Servicer Default, each Sub-Servicer agrees that it will (i) terminate its collection activities in a manner and to the extent reasonably requested by the Administrative Agent to facilitate the transition to a new Master Servicer and (ii) subject to
Section 2.5(m)
transfer as soon as practicable all Records with respect to the Portfolio Receivables to the new Master Servicer.
(l)
At any time a Facility Termination Event or a Specified Seller Termination Event (but only with respect to the Portfolio Receivables and Related Security originated by the Originators with respect to which such Specified Seller Termination Event relates) has occurred and is continuing, each Sub-Servicer shall, upon request of the Administrative Agent and to the extent permitted by applicable Law and subject to the restrictions contained in any license with respect thereto, transfer as soon as reasonably practical to the Administrative Agent (or its designee), or license, or cause to be licensed, to the Administrative Agent (or its designee) an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all computer tapes, software and programs, data processing software and storage media used by such Sub-Servicer to account for the Receivables, to the extent necessary to permit the applicable Seller Party or Administrative Agent to exercise its ownership and other interests in the Portfolio Receivables and any Related Security, and to administer or service such Portfolio Receivables and Related Security, whether such computer tapes, software and programs, data processing software and storage media are owned by such Sub-Servicer or are owned by others and used by such Sub-Servicer under license agreements with respect thereto;
provided
,
however
, no Sub-Servicer shall be required, to the extent it has an ownership interest in any computer tapes, software, programs, storage media or licenses, to transfer, assign, set-over or otherwise convey such ownership interests to the Administrative Agent (or its designee). In recognition of each Sub-Servicer’s need to have access to any such computer tapes, software, programs, storage media, documents, instruments and other records that may be transferred to the Administrative Agent (or its designee), whether as a result of its continuing responsibility as a servicer of accounts receivable that are not sold under the Transaction Documents or otherwise, the Administrative Agent (or its designee) shall provide to each Sub-Servicer reasonable access to such computer tapes, software, programs, storage media, documents, instruments and other records transferred by such Sub-Servicer to it in connection with any activity arising in the ordinary course of such Sub-Servicer’s business;
provided
that no Sub-Servicer shall disrupt or otherwise interfere with the Administrative Agent’s (or its designee’s) use of and access
13
to such computer tapes, software, programs, storage media, documents, instruments and other records. To the extent that compliance with this
Section 2.5(l)
shall require any Sub-Servicer to disclose to the Administrative Agent (or its designee) information of any kind that such Sub-Servicer reasonably deems to be confidential, the Administrative Agent (and its designee) shall be required to enter into such customary licensing and confidentiality agreements as such Sub-Servicer shall reasonably deem necessary to protect its interests. Any such license granted hereby shall be irrevocable, and shall not terminate until the Final Payout Date or, in the case of an Original Sub-Servicer, the Seller Payout Date with respect to it. To the extent any such transfer or license would require the payment of any license fee or other amount, the applicable Sub-Servicer agrees to pay such fee or other amount out of its own funds promptly upon demand by the Administrative Agent.
(m)
Each Sub-Servicer shall reasonably cooperate with and assist any successor Master Servicer in the performance of its responsibilities as Master Servicer hereunder and under the other Transaction Documents, including taking any actions described in
Section 2.5(l)
and, subject to applicable Law, transferring to such successor Master Servicer all records and other items of the type described in
Section 2.5(f)
;
provided
, that to the extent any Sub-Servicer is prohibited by applicable Law from transferring such records or other items, such Sub-Servicer shall (to the extent permitted by applicable Law and subject to the restrictions contained in any license with respect thereto), upon the reasonable request of the Seller or the Administrative Agent, provide a copy of such records or other items to the Seller or the Administrative Agent (or its designee).
(n)
In the event that Bunge is no longer the Master Servicer (other than as a result of the appointment of a successor Master Servicer pursuant to, and in accordance with,
Section 2.1(a)(ii)
), each Sub-Servicer (in the case of an Original Sub-Servicer, provided that the Seller Payout Date has not occurred with respect to such Sub-Servicer) hereby agrees to download, prepare and distribute, promptly and effectively all data relating to the Portfolio Receivables originated by it and any Related Security with respect thereto in usable form as requested by the Seller or the Administrative Agent from time to time.
(o)
Upon the occurrence of an Event of Bankruptcy with respect to an Originator, the appointment of such Originator as Sub-Servicer, and its collection authority with respect to the Portfolio Receivables and Related Security for which it acts as Sub-Servicer, shall automatically (without any requirement for the giving of notice) and promptly terminate.
(p)
The Seller and the Administrative Agent hereby authorize Bunge Italia S.p.A., in its capacity as Sub-Servicer, to promptly notify the relevant Obligors with the Italian First Notice of Assignment and any further Italian Monthly Notice of Assignment (respectively in the forms attached hereto as
Exhibit D
and
Exhibit E
), in accordance with the provisions set forth under Section 2.1(d) (A) (B) of the Italian RPA.
14
2.6
Indemnities by Master Servicer
Without limiting any other rights that the Indemnified Parties (as defined below) may have hereunder, under any other Transaction Document or under applicable Law the Master Servicer hereby agrees to indemnify and keep indemnified each Indemnified Party (as defined in the Receivables Transfer Agreement) and each Seller Party (collectively, the
“Indemnified Parties”
) from and against any and all damages, losses, claims, liabilities, deficiencies, costs, disbursements and expenses, including interest, penalties, amounts paid in settlement and reasonable attorneys’ fees and expenses (all of the foregoing being collectively referred to as
“Indemnified Amounts”
) awarded against or properly incurred by any Indemnified Party (including in connection with or relating to any investigation by an Official Body, litigation or lawsuit (actual or threatened) or order, consent, decree, judgment, claim or other action of whatever sort (including the preparation of any defense with respect thereto)), in each case, arising out of or resulting from this Agreement or any other Transaction Document or any transaction contemplated hereby or thereby, excluding, however (a) Indemnified Amounts to the extent that such Indemnified Amounts resulted from the gross negligence, fraud or wilful misconduct on the part of such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement or any other Transaction Document) for Uncollectible Portfolio Receivables and Related Security with respect thereto, (c) any Excluded Taxes, and (d) any Indemnified Amount to the extent the same has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document.
2.7
Facility Accounts
The Master Servicer shall cause all Collections deposited into any Facility Account or otherwise received by the Master Servicer or any other Transaction Party to be applied at the times and in the manner provided in the Receivables Transfer Agreement and the other Transaction Documents and, in the case of any Collections received by the Master Servicer, shall hold any such Collections in trust for the Seller and the Administrative Agent (for the benefit of the Purchasers). If the bank at which a Facility Account is maintained ceases to be an Eligible Account Bank (each Facility Account maintained at any such Eligible Account Bank, a
“Downgraded Account”
), the Master Servicer shall promptly and in any event within thirty (30) days (or such longer period as the Administrative Agent may agree) establish a new account or accounts to replace such Downgraded Accounts at an Eligible Account Bank, shall cause to be delivered to the Administrative Agent, Account Security Agreements or other Security Documents, reasonably acceptable to the Administrative Agent, covering such new accounts and shall instruct the applicable Obligors to pay Collections to the new accounts. Upon such establishment and delivery, all funds on deposit in any Downgraded Account shall be transferred to such replacement Facility Account.
2.8
Investments
(a)
The Seller may invest funds on deposit in any Seller Operating Account, reinvest proceeds of any such investments which may mature or be sold, and invest interest or other income received from any such investments, in each case in such Permitted Investments (i) prior to the Facility Termination Date
15
and so long as no Facility Termination Event has occurred and is continuing, as the Master Servicer may select (or, in the absence of any such selection by the Master Servicer, as the Administrative Agent may select in its sole discretion) and (ii) at any other time, as the Administrative Agent may select in its sole discretion;
provided
that each such Permitted Investment shall have a maturity date no later than the next succeeding Settlement Date. Such proceeds, interest or income which are not so invested or reinvested in Permitted Investments shall, except as otherwise provided in this Agreement, be deposited and held in the applicable Seller Operating Account and applied as Collections in accordance with the Receivables Transfer Agreement. Neither the Administrative Agent nor any of its Affiliates shall be liable to any Transaction Party, any Agent, and Purchaser, any Secured Party or any other Person for, or with respect to, any decline in value of amounts on deposit in any Seller Operating Account.
(b)
Except as provided in
Section 2.8(a)
, funds on deposit from time to time in any Facility Account may not be invested without the prior written consent of the Administrative Agent, and in the event the Administrative Agent so consents, may only then be invested in Permitted Investments.
(c)
Permitted Investments from time to time purchased and held pursuant to this
Section 2.8
shall be referred to as
“Collateral Securities”
and shall, for purposes of this Agreement and each other Transaction Document, constitute part of the funds held in the applicable Facility Account. Each such Permitted Investment shall be made in the name of the Seller.
(d)
Except as specifically provided in any Transaction Document, no Transaction Party or any Person claiming on behalf of or through a Transaction Party shall have any right to withdraw any of the funds held in any Facility Account.
(e)
Subject to the terms and conditions of the Receivables Transfer Agreement and the other Transaction Documents, any funds remaining on deposit in any Facility Account on the Final Payout Date shall be paid to (or at the direction of) the Seller.
2.9
Servicer Default
If any one or more of the following events shall occur (each, a
“Servicer Default”
):
(a)
the Master Servicer shall fail to make any payment or deposit required to be made by it hereunder or under any other Transaction Document to which it is a party when due hereunder or thereunder and such failure remains unremedied for two (2) Business Days from the earlier to occur of (i) the date upon which a Responsible Officer of the Master Servicer obtains knowledge of such failure or (ii) the date on which written notice of such failure requiring the same to be remedied, shall have been given to the Master Servicer by the Administrative Agent or any Purchaser Agent;
(b)
the Master Servicer shall fail to deliver (i) any Monthly Report, Weekly Report or Outstanding Receivables Report within
two (2) Business Days of the date when due or (ii) any other report required to be delivered by it
16
hereunder or under any other Transaction Document on the date when due and such failure remains unremedied for two (2) Business Days after a Responsible Officer of the Master Servicer obtained knowledge or received notice thereof;
(c)
any representation, warranty, certification or statement made by the Master Servicer in this Agreement or any other Transaction Document to which the Master Servicer is a party shall prove to have been incorrect in any material respect when made or deemed made (other than any breach of a representation, warranty, certification or statement solely relating to a Portfolio Receivable for which the entire Deemed Collection amount required to be paid under the applicable Specified Deemed Collection Section has been paid) and the Master Servicer shall have failed to remedy such circumstances in a manner such that such representation, warranty, certification or statement is true and correct in all material respects within thirty (30) days after a Responsible Officer of the Master Servicer obtained knowledge or received notice thereof;
(d)
other than as addressed in
Sections 2.9(a)
and
(b)
, the Master Servicer shall fail to perform or observe any term, covenant, undertaking or agreement contained in this Agreement or any other Transaction Document to which the Master Servicer is a party in any material respect and the Master Servicer shall have failed to remedy such failure within thirty (30) days after a Responsible Officer of the Master Servicer obtained knowledge or received notice thereof; or
(e)
a Facility Termination Event shall occur under the Receivables Transfer Agreement;
then, and in any such event, the Administrative Agent may, in its discretion, and shall, at the direction of the Majority Committed Purchasers, designate another Person to succeed Bunge as the Master Servicer;
provided
, that the appointment of the Master Servicer hereunder shall automatically (without any requirement for the giving of notice) be terminated upon the occurrence of any Event of Bankruptcy with respect to the Master Servicer; provided, further, however, that a default by Bunge Finance B.V. in any payment required under the Subordinated Loan Agreement shall not constitute a Servicer Default hereunder.
2.10
Servicing Fee
The Master Servicer shall be entitled to receive a fee (the
“Servicing Fee”
) from the Seller on the weighted average daily Outstanding Balance of the Portfolio Receivables, payable in arrears on each Settlement Date at a rate per annum equal to the Servicing Fee Percentage;
provided
that so long as the Master Servicer is Bunge, the Servicing Fee shall be the lesser or (i) the amount described above and (ii) the servicing fee invoiced by Bunge for such services. Notwithstanding anything herein to the contrary, the Servicing Fee shall be payable only from Collections pursuant to, and subject to the priority of payments set forth in,
Sections 2.6
(
Collections prior to the Facility Termination Date
) and
2.7
(
Collections after Facility Termination Date
) of the Receivables Transfer Agreement. The Sub-Servicers shall be paid such fees as the Master Servicer and the Sub-Servicers shall agree to from time to time;
provided
17
that such fees shall be the sole responsibility of the Master Servicer and neither the Selling Parties nor the Secured Parties shall have any liability therefor.
2.11
Power of Attorney
Each of the Master Servicer, the Sub-Servicer and the Selling Parties (each a
“Grantor”
) hereby agrees that the Administrative Agent and the Seller (each a
“Grantee”
) may, following the occurrence and during the continuance of a Specified Seller Termination Event (but only with respect to the Originators with respect to which such Specified Seller Termination Event relates) or a Facility Termination Event, take any and all steps in such Grantor’s name and on behalf of such Grantor that are necessary or desirable, in the determination of the applicable Grantee or any designee thereof, to collect all amounts due under the Portfolio Receivables, any Related Security with respect thereto, any Facility Account or any other Collateral, including (a) endorsing such Grantor’s name on checks and other instruments representing Collections and giving instructions and other directions in respect of the Facility Accounts, (b) enforcing the Portfolio Receivables, the Related Security, and the related Contracts, including to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection therewith and (c) filing any claims or taking any action or instituting any proceedings that the applicable Grantee (or such designee) may deem to be necessary or desirable for the collection thereof or enforcing compliance with the terms and conditions of, or performing any obligations or enforcing any rights of the applicable Seller Party in respect of, the Portfolio Receivables, the Related Security, the Facility Accounts, the Collateral and the other Transaction Documents. In furtherance of the foregoing, each of the Grantors hereby agrees to execute and deliver, on or prior to the Closing Date, to the Grantees a power of attorney substantially in the form of
Exhibit C
(
Form of Administrative Agent and Seller Power of Attorney
) hereto. In case of a power of attorney granted by a German Originator, such power of attorney will be granted under release of the restriction of section 181 of the German Civil Code (
Bürgerliches Gesetzbuch
).
2.12
Receivables Transfer Agreement provisions
Each party to this Agreement hereby acknowledges and agrees that (i) Collections shall be applied as provided in
Sections 2.6
(
Collections prior to Facility Termination Date
) and
2.7
(
Collections after Facility Termination Date
) of the Receivables Transfer Agreement and (ii) any right or claim of such party to receive any payment from such Collections is subject to the terms, conditions and priorities of such Sections and the other applicable terms and conditions of the Transaction Documents.
2.13
Deemed Collections
(a)
If on any day it is determined that any of the representations or warranties in
Section 3.1(i)
(
Representations and warranties of the Master Servicer
) was untrue with respect to a Portfolio Receivable, the Master Servicer shall be deemed to have received on such day a Collection of such Portfolio Receivable in an amount equal to the Unpaid Balance thereof.
(b)
Not later than the Settlement Date related to the Calculation Period in which such Collection is deemed to have been received pursuant to this
Section 2.13
18
(and, if a Facility Event has occurred and is continuing, not later than the second (2
nd
) Local Business Day after a Responsible Officer of the Master Servicer is notified in writing or otherwise becomes aware that it has been deemed pursuant to this
Section 2.13
to have received a Deemed Collection), the Master Servicer shall deposit (or shall cause the applicable Sub-Servicer which was the source of such error to deposit) in a Collection Account or Seller Operating Account, in same day funds, the amount of such Deemed Collection;
provided
that prior to the occurrence of a Facility Event or Portfolio Event the amount so payable by the Master Servicer shall not exceed the amount (if any) required (after giving effect to any Deemed Collection to be paid by any other Transaction Party on such day) in order to cause the Aggregate Invested Amount to be less than or equal to the Funding Base (determined by reference to the most recent Portfolio Report delivered under this Agreement). To the extent the Master Servicer is required to deposit any Deemed Collection into a Collection Account or Seller Operating Account pursuant to this
Section 2.13(b)
, the applicable Sub-Servicer that was the source of such error shall be required to make such deposit directly to the Collection Account or Seller Operating Account within the timeframe specified above or reimburse the Master Servicer for any such deposit (if the Master Servicer has made such deposit).
3.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and warranties of the Master Servicer
The Master Servicer hereby represents and warrants that, on the Closing Date and as of the date of each Investment under the Receivables Transfer Agreement and as of each Reporting Date:
(a)
The Master Servicer (i) is duly organized and validly existing under the laws of its jurisdiction of organisation, (ii) is duly qualified to do business in every jurisdiction where the nature of its business requires it to be so qualified, unless the failure to be so qualified would not have a Material Adverse Effect and (iii) has all corporate or other organizational power and authority required to perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted unless the failure to have such power and authority would not have a Material Adverse Effect.
(b)
The execution, delivery and performance by the Master Servicer of this Agreement and any other Transaction Document to which it is a party (i) are within the Master Servicer’s corporate powers, (ii) have been duly authorised by all necessary corporate action, (iii) do not contravene or constitute a default under (A) its Organizational Documents, (B) any applicable Law, (C) any contractual restriction binding on or affecting the Master Servicer or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting the Master Servicer or its property except in each case where any such contravention or default would not have a Material Adverse Effect and (iv) do not result in or require the creation or imposition of any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to any Portfolio Receivable, any Related Security, any Collateral or any Facility
19
Account. This Agreement and each other Transaction Document to which the Master Servicer is a party has been duly executed and delivered by the Master Servicer.
(c)
No authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any Official Body or official thereof or any third party is required for the due execution, delivery and performance by the Master Servicer of this Agreement or any other Transaction Document to which it is a party or any other document to be delivered by it hereunder or thereunder, except for the actions taken or referred to in
Schedule 4
(
Conditions precedent documents
) to the Receivables Transfer Agreement, all of which have been (or on or before the initial Investment Date will have been) duly made or taken, as the case may be, and are in full force and effect, except where the failure to have obtained any such authorization or approval or taken any such action or made any such filing, notice or registration would not have a Material Adverse Effect.
(d)
This Agreement and each of the other Transaction Documents to which it is a party constitutes the legal, valid and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with its terms, subject to any limitation on the enforceability thereof against the Master Servicer arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law).
(e)
There are no actions, suits, investigations, litigation or proceedings at law or in equity or by or before any Official Body or in arbitration now pending against or affecting the Master Servicer or its Subsidiaries or any of its or their business, revenues or other property (i) which question the validity of this Agreement or any other Transaction Document to which it is a party or any of the transactions contemplated hereby or thereby (excluding any litigation or proceeding against any Obligor), or (ii) which individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The Master Servicer is not in default or violation of any order, judgement or decree of any Official Body or arbitrator which could reasonably be expected to have a Material Adverse Effect.
(f)
No event has occurred and is continuing which constitutes a Servicer Default or Potential Servicer Default which has not been (i) notified to the Administrative Agent and each Purchaser Agent pursuant to, and in accordance with, the Transaction Documents (including
Section 2.3(f)
) or (ii) remedied or waived, in each case, in accordance with the Transaction Documents.
(g)
The Master Servicer has the systems and data processing capabilities to enable it to report, monitor and administer the Portfolio Receivables on a timely basis and as required hereby and by the other Transaction Documents, including the ability to report on or otherwise identify the Unpaid Balance of any Receivable, the receipt of any collections or other proceeds with respect to any Receivable, whether or not any Receivable is an Eligible Receivable and any other relevant information, in each case, on a Receivable by Receivable basis.
20
(h)
(i) Each Portfolio Report and Outstanding Receivables Report is complete and accurate in all material respects as of its date and (ii) all other information, exhibits, data, documents, books, records and reports (
“Information”
) furnished by or on behalf of the Master Servicer in connection with this Agreement, any other Transaction Document or any transaction contemplated hereby or thereby is complete and accurate in all material respects as of its date and no such Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not materially misleading,
provided
that, with respect to projected financial information provided by or on behalf of the Master Servicer, the Master Servicer represents only that such information was prepared in good faith by management of the Master Servicer on the basis of assumptions believed by such management to be reasonable as of the time made, and (iii) all financial statements which have been furnished by or on behalf of the Master Servicer (A) have been prepared in accordance with GAAP consistently applied (except as approved by the external auditors and as disclosed therein, if any), and (B) fairly present, in all material aspects, the financial condition of the Master Servicer and, if applicable, its consolidated Subsidiaries as of the dates set forth therein and the results of any operations of the Master Servicer and, if applicable, its consolidated Subsidiaries for the periods ended on such dates, subject to year end adjustments in the case of unaudited statements.
(i)
Each Portfolio Receivable represented or treated as an Eligible Receivable in any Portfolio Report was an Eligible Receivable as of the date of such Portfolio Report, and the Aggregate Invested Amount does not exceed the Funding Base at the time of any Investment.
(j)
The Master Servicer has (i) timely filed or caused to be filed all material Tax returns required to be filed, and (ii) paid or made adequate provision for the payment of all Taxes, assessments and other governmental charges due and payable by it, except (A) any such Taxes, assessments or other governmental charges that are being contested in good faith by appropriate proceedings and for which the Master Servicer has set aside in its books adequate reserves in accordance with GAAP as reasonably determined by the Master Servicer, or (B) to the extent that such failure to do so would not reasonably be expected to result in a Material Adverse Effect.
(k)
The Master Servicer’s obligations under this Agreement and the other Transaction Documents to which it is a party rank at least
pari passu
with all of its unsecured unsubordinated Indebtedness (other than any such Indebtedness that is preferred by mandatory provision of laws).
(l)
The Master Servicer is exclusively resident for Tax purposes in the Netherlands and, for the purposes of this Agreement and the other Transaction Documents to which it is a party, will not act through any branch or permanent establishment located outside the Netherlands.
(m)
The Master Servicer is not required to make any deduction for or on account of Taxes from any payment made by it under a Transaction Document.
21
4.
COVENANTS
4.1
Covenants of the Master Servicer
Until the Final Payout Date:
(a)
Compliance with Laws, etc.
The Master Servicer will comply in all respects with all applicable Laws and preserve and maintain its corporate existence, rights, franchises, qualifications and privileges except to the extent that the failure so to comply with such Laws or the failure so to preserve and maintain such existence, rights, franchises, qualifications, and privileges would not have a Material Adverse Effect.
(b)
Records and Procedures
The Master Servicer will keep its records concerning the Portfolio Receivables and the Related Security at (i) the address of the relevant Master Servicer Parties specified in
Section 5.2
(
Notices
) as of the Closing Date or (ii) upon fifteen (15) days’ prior written notice to the Administrative Agent and each Purchaser Agent, at any other locations in jurisdictions where all actions reasonably requested by the Administrative Agent to protect and perfect its security interest in the Portfolio Receivables, the Related Security with respect thereto and the other Collateral have been taken and completed. The Master Servicer also will maintain and implement administrative and operating procedures (including an ability to recreate records evidencing Receivables, any Related Security with respect thereto and related Contracts in the event of the loss or destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables, Related Security with respect thereto, the Facility Accounts and the other Collateral (including records adequate to permit the daily identification of each Receivable and all Collections thereof and adjustments thereto).
(c)
Performance and compliance with Contracts and Credit and Collection Policies
The Master Servicer will, at its expense (i) timely and fully perform and comply with all provisions, covenants and other promises required to be observed by it under the Contracts related to the Portfolio Receivables and the Related Security with respect thereto, except to the extent that the failure to perform or comply would not have a Material Adverse Effect and (ii) timely and fully comply in all material respects with the Credit and Collection Policies, in each case, other than where non-performance or non-compliance therewith could not reasonably be expected to adversely affect the validity, collectability, enforceability or credit quality of any Portfolio Receivable or Receivables Property.
22
(d)
Sales, liens, etc
The Master Servicer will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (except for Permitted Adverse Claims) upon or with respect to, the Portfolio Receivables, the Related Security with respect thereto or any other Collateral or the Facility Accounts, or any of its rights, title and interest in, to and under any of them (including any right to receive income in respect thereof) except pursuant to, and in accordance with, the Transaction Documents.
(e)
Extension or amendment of Receivables and Contracts
Except as provided in
Section 2.2(c)
(
Duties of the Master Servicer
), the Master Servicer will not (i) extend, amend or otherwise modify the terms and conditions of any Portfolio Receivable or any Related Security, or (ii) amend, modify or waive any term or condition of any Contract related thereto, except (A) in accordance with the applicable Credit and Collection Policies, (B) as required by Law or (C) otherwise in a manner that would not have a Material Adverse Effect or materially adversely effect the interests or remedies of the Secured Parties.
(f)
Change in Credit and Collection Policies
The Master Servicer will not make any material change in the Credit and Collection Policies, except (i) as required by Law or (ii) with the prior written consent of the Required Committed Purchasers (which consent shall not be unreasonably withheld).
(g)
Amendments
The Master Servicer will not make any amendment or other modification to any Transaction Document to which it is a party except in accordance with the amendment provisions thereof.
(h)
Change in payment instructions to Obligors; deposits to Collection Accounts
The Master Servicer will not take any action inconsistent with, or that if taken by any Originator or any other Transaction Party would be a breach of,
Section 5.1(g)
(
Change in payment instructions to Obligors
) or 5.1(h) (
Deposits to Seller Operating Accounts
) of the Receivables Transfer Agreement or any corresponding or similar Section of any other Transaction Document, and if the Master Servicer shall receive any Collections directly, the Master Servicer shall promptly (and in any event within two (2) Business Days) cause such Collections to be deposited into a Collection Account or Seller Operating Account.
(i)
[Reserved.]
(j)
Taxes
The Master Servicer will file all material Tax returns and reports required by Law to be filed by it and will within the time period required by applicable
23
Law or regulation pay all Taxes and governmental charges at any time then due and payable by it (including, without limitation, all Taxes payable by the Master Servicer in connection with any Portfolio Receivable), except to the extent such Taxes or governmental charges are being contested in good faith by appropriate proceedings and the Master Servicer has set aside in its books adequate reserves in accordance with GAAP as reasonably determined by the Master Servicer or the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(k)
[Reserved.]
(l)
Servicing changes
The Master Servicer will not make any material change to its administration, servicing or collection systems which are applicable to the Portfolio Receivables unless such change is permitted by the Credit and Collection Policies or would not reasonably be expected to have a Material Adverse Effect.
(m)
Inspections; annual agreed upon procedures audit
(i)
The Master Servicer shall, at its expense (subject to the proviso to this
Section 4.1(m)
), from time to time during regular business hours and upon receipt of reasonable advance notice as requested by the Administrative Agent and/or any Purchaser Agent, permit the Administrative Agent, any Purchaser Agent, or their respective agents or representatives (including independent public accountants, which may not be the Seller’s or any Servicer Party’s external auditors), (A) to conduct audits of the Portfolio Receivables, the Related Security, the other Collateral and the related books and records, including the Contracts, and collections systems of the Master Servicer, (B) to examine and make copies of and abstracts from all documents, purchase orders, invoices, agreements, books, records and other information (including computer programs, tapes, discs, punch cards, data processing software, storage media and related property and rights) relating to the Portfolio Receivables, the Related Security and the other Collateral, including the related Contracts and (C) to visit the offices and properties of the Master Servicer for the purpose of examining such materials described in
Sections 4.1(m)(i)(A)
and
(B)
, and to discuss matters relating to the Portfolio Receivables, the Related Security and the other Collateral or the Master Servicer’s performance hereunder and under the other Transaction Documents to which it is a party or under the Contracts with any of the officers or employees of the Master Servicer, having knowledge of such matters;
provided
that, unless a Servicer Default has occurred, only one such audit examination and visit in any calendar year shall be at the expense of the Master Servicer.
(ii)
The Master Servicer shall assist the Seller in preparing the Accountants’ Letter under and as defined in
Section 5.2(b)
(
Inspections; Annual Agreed Upon Procedures Audit
) of the
24
Receivables Transfer Agreement and take any other action in connection therewith as the Seller shall reasonably request.
(n)
Separateness
The Master Servicer will not take any action or omit to take any action that would cause the Seller to cease to be in compliance with
Section 5.1(j)
(
Separateness
) of the Receivables Transfer Agreement or, in the case of any other Seller Party, any corresponding or similar Section of any other Transaction Document.
(o)
Merger, Etc.
Except to the extent expressly permitted by the Transaction Documents, the Master Servicer shall not liquidate or dissolve or enter into any amalgamation, merger or consolidation with any Person (other than any amalgamation, consolidation or merger of the Master Servicer with or into Bunge Limited or any Subsidiary of Bunge Limited) or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions), all or substantially all of the property (whether now owned or hereafter acquired) of the Master Servicer and its consolidated Subsidiaries (taken as a whole) to any Person, (each a
“Restricted Transaction”
), unless (a) the Master Servicer shall, subject to applicable Law, have given the Administrative Agent and each Purchaser Agent fifteen (15) days prior written notice of such Restricted Transaction, (b) if applicable, the surviving entity provides an acknowledgment or reaffirmation of its obligations hereunder and under the other Transaction Documents to which it is (or the applicable non-surviving entity was) a party, together with such opinions of counsel as the Administrative Agent or any Purchaser Agent may reasonably request, in each case, in form and substance reasonably satisfactory to such Agent, (c) no Material Adverse Effect would occur as a result of such Restricted Transaction, (d) no Facility Event or Portfolio Event exists after giving effect to such Restricted Transaction and (e) the Required Committed Purchasers have consented thereto.
(p)
Change in Auditors or Accounting Policies
The Master Servicer shall promptly notify the Administrative Agent of (i) any change in its auditors or (ii) any material change in its accounting policies to the extent such change in accounting policies could reasonably be expected to have a Material Adverse Effect.
(q)
Power of attorney
The Master Servicer will not voluntarily revoke or attempt to revoke any power of attorney granted by it in connection with the transactions contemplated by the Transaction Documents (unless such revocation results from mandatory application of applicable Law).
25
(r)
Negotiable Instruments
Unless delivered to the Administrative Agent, the Master Servicer shall not take any action to cause any Portfolio Receivable not evidenced by a negotiable instrument upon origination to become evidenced by a negotiable instrument, except in connection with the enforcement or collection of a Defaulted Receivable.
(s)
Licenses, etc.
The Master Servicer shall maintain in full force and effect all licenses, approvals, authorizations, consents, registrations and notifications which are at any time required in connection with the performance of its duties and obligations hereunder and under the other Transaction Documents to which it is a party, except to the extent failure to do so would not have a Material Adverse Effect.
5.
MISCELLANEOUS
5.1
Waiver; amendments, etc.
(a)
No failure or delay on the part of the Administrative Agent in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any such, power, right or remedy preclude any further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and non-exclusive of any rights and remedies provided by Law.
(b)
Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Administrative Agent and the Required Committed Purchasers (and, in the case of any amendment, also signed by the Master Servicer and others party hereto), and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
5.2
Notices
All communications and notices provided for hereunder shall be provided in the manner described in
Schedule 2
(
Address and Notice Information
) to the Receivables Transfer Agreement.
5.3
Assignments
(a)
Except as provided herein, no Servicer Party may assign any of its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Required Committed Purchasers; provided that the Seller Parties may assign their rights hereunder to the Administrative Agent on behalf of the Secured Parties or, in the case of an Intermediate Transferor, to the Seller, in each case, pursuant to the Transaction Documents. The Administrative Agent may assign any of its rights or
26
obligations hereunder or any interest herein to any successor Administrative Agent appointed pursuant to the terms of the Receivables Transfer Agreement.
(b)
Each Servicer Party and each Intermediate Transferor party hereto acknowledges that the Seller has assigned and will assign to the Administrative Agent, for the benefit of the Secured Parties, all of its rights, remedies, powers and privileges under this Agreement, and that each Secured Party may further assign such rights, remedies, powers and privileges to the extent permitted in the Receivables Transfer Agreement. The Servicer Parties and each Intermediate Transferor party hereto agree that the Administrative Agent, as the assignee of the Seller, shall have the right to enforce this Agreement and to exercise directly all of the Seller’s rights, remedies, powers and privileges under this Agreement (including the right to give or withhold any consents or approvals to be given or withheld by the Seller under this Agreement) and each of the Servicer Parties and each Intermediate Transferor party hereto agrees to cooperate fully with the Administrative Agent in the exercise of such rights, remedies, powers and privileges, provided that each of the Secured Parties shall only enforce or otherwise take action under this Agreement by acting through the Administrative Agent.
5.4
No proceedings; limited recourse
Each of the parties hereto hereby agrees that:
(i)
it will not institute against, or join any other Person in instituting against, any Seller Party any proceeding of the type referred to in the definition of Event of Bankruptcy so long as there shall not have elapsed two years plus one day since the Final Payout Date;
(ii)
it will not institute against any Conduit Purchaser any proceeding of the type referred to in the definition of Event of Bankruptcy so long as any Commercial Paper or other senior indebtedness issued by such Conduit Purchaser (or its related commercial paper issuer) shall be outstanding or there shall not have elapsed two years plus one day since the last day on which any such Commercial Paper or other senior indebtedness shall have been outstanding;
(iii)
notwithstanding anything to the contrary contained herein or in any other Transaction Document, the obligations of each Conduit Purchaser under the Transaction Documents are solely the corporate obligations of such Conduit Purchaser and shall be payable only at such time as funds are actually received by, or are available to, such Conduit Purchaser in excess of funds necessary to pay in full all outstanding Commercial Paper issued by such Conduit Purchaser and, to the extent such excess funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Conduit Purchaser; and
(iv)
notwithstanding anything contained herein or in any other Transaction Document to the contrary, the obligations of each Seller Party under the Transaction Documents are solely the corporate obligations of such
27
Seller Party and shall be payable solely to the extent of funds which are received by such Seller Party pursuant to the Transaction Documents and available for such payment in accordance with the terms of the Transaction Documents and, to the extent such excess funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Seller Party.
5.5
Execution in counterparts
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by electronic file in a format that is accessible by the recipient shall be effective as delivery of a manually executed counterpart of this Agreement.
5.6
Integration; binding effect; survival of termination; severability
This Agreement and the other Transaction Documents executed by the parties hereto contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy). Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until the Final Payout Date (or, in the case of any Originator, the Seller Payout Date with respect to such Originator);
provided
,
however
, that the provisions of
Sections 2.6
(
Indemnities by Master Servicer
),
5.4
(
No proceedings; limited recourse
),
5.7
(
Governing law; consent to jurisdiction; waiver of jury trial
) and
5.9
(
Waiver of Setoff
)
shall survive any termination of this Agreement. If any one or more of the provisions of this Agreement shall for any reason whatsoever be held invalid, then such provisions shall be deemed severable from the remaining provisions of this Agreement and shall in no way affect the validity or enforceability of such other provisions.
5.7
Governing law; consent to jurisdiction; waiver of jury trial
(a)
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(b)
Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan and of the
28
United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably waives, to the fullest extent that it may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c)
Each of the parties hereto consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to it at its address specified herein. Nothing in this
Section 5.7
shall affect the right of any party to serve legal process in any manner permitted by law.
(d)
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
5.8
Judgment Currency
(a)
If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
(b)
The obligations of the Servicer Parties in respect of any sum due to any party hereto or any holder of the obligations owing hereunder (the
“Applicable Creditor”
) shall, notwithstanding any judgment in a currency (the
“Judgment Currency”
) other than the currency in which such sum is stated to be due hereunder (the
“Agreement Currency”
), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor
29
of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, each Servicer Party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss; and if the amount of the Agreement Currency so purchased is more than the sum originally due to the Applicable Creditor in the Agreement Currency, such Applicable Creditor agrees to return any such excess to the applicable Servicer Party.
5.9
Waiver of setoff
Except as otherwise provided herein, the obligations, liabilities and indemnities of each Servicer Party under this Agreement (collectively, the
“Servicer Obligations”
) shall not be subject to deduction of any kind or type, except by payment in full of the amount thereof in accordance with the terms thereof. Each Servicer Party hereby waives any right it may now or at any time hereafter have to set-off any Servicer Obligation against any obligations of the Seller Parties, the Administrative Agent or any other Secured Party.
5.10
No guarantee or indemnity
No Servicer Party, Transaction Party, the Administrative Agent or any other Secured Party shall have any liability for the obligations of an Obligor under any Contract and nothing in this Agreement shall constitute the giving of a guarantee or the assumption of a similar obligation by any such Person in respect thereof.
5.11
Limited Recourse
No claim may be made by any party against any other party or their respective Affiliates, directors, officers, employees, attorneys or agents (each a
“Default Party”
) for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection herewith or therewith, except with respect to any claim arising out of the willful misconduct or gross negligence of such Default Party; and each party hereto hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
5.12
Responsible officer certificates; No recourse
Any certificate executed and delivered by a Responsible Officer of a Servicer Party pursuant to the terms of the Transaction Documents shall be executed by such Responsible Officer not in an individual capacity but solely in his or her capacity as an officer of such Servicer Party, and such Responsible Officer will not be subject to personal liability as to the matters contained in any such certificate. A director, officer, employee or shareholder, as such, of any Servicer Party shall not have liability for any obligation of such Servicer Party hereunder or under any Transaction
30
Document for any claim based on, in respect of, or by reason of, any Transaction Document, unless such claim results from the gross negligence, fraudulent acts or wilful misconduct of such director, officer, employee or shareholder.
31
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EXECUTION of Servicing Agreement:
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The Master Servicer
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BUNGE FINANCE B.V.
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By:
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/s/
Steven Claassens
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Name: Steven Claassens
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Title: Director
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By:
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/s/
Luc Dekkers
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Name: Luc Dekkers
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Title: Director
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S-1
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EXECUTION of Servicing Agreement:
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The Seller
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BUNGE SECURITIZATION B.V.
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By:
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/s/ Frans M.J. van Rijn
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Name: Frans M.J. van Rijn
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Title: Director
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By:
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/s/ L.F.S. Bagchus
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Name: L.F.S. Bagchus
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Title: Proxy holder
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S-2
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EXECUTION of Servicing Agreement:
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Italian Intermediate Transferor
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
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By:
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/s/
James Han
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Name: James Han
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Title: Executive Director
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S-3
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EXECUTION of Servicing Agreement:
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U.S. Intermediate Transferor
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BUNGE NORTH AMERICA CAPITAL, INC.
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By:
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/s/
John P. Gilsinn
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Name: John P. Gilsinn
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Title: Treasurer
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S-4
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EXECUTION of Servicing Agreement:
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The Administrative Agent
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
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By:
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/s/
James Han
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Name: James Han
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Title: Executive Director
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S-5
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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BUNGE NORTH AMERICA INC.
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By:
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/s/
John P. Gilsinn
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Name: John P. Gilsinn
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Title: Treasurer
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S-6
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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BUNGE OILS INC.
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By:
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/s/
John P. Gilsinn
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Name: John P. Gilsinn
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Title: Treasurer
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S-7
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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BUNGE NORTH AMERICA (EAST), LLC
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By:
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/s/ John P. Gilsinn
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Name: John P. Gilsinn
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Title: Treasurer
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S-8
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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BUNGE MILLING, INC.
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By:
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/s/ John P. Gilsinn
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Name: John P. Gilsinn
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Title: Treasurer
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S-9
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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BUNGE NORTH AMERICA (OPD WEST), INC.
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By:
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/s/ John P. Gilsinn
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Name: John P. Gilsinn
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Title: Treasurer
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S-10
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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BUNGE CANADA, by its general partner,
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BUNGE CANADA HOLDINGS I ULC
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By:
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/s/ John P. Gilsinn
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Name: John P. Gilsinn
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Title: Assistant Treasurer
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By:
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/s/ Gregory L. Thebeau
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Name: Gregory L. Thebeau
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Title: Assistant Controller
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S-11
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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WALTER RAU LEBENSMITTELWERKE GMBH
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By:
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/s/ Manfred Hübschmann
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Name: Manfred Hübschmann
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Title: Managing Director
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By:
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/s/
Thomas Mussweiler
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Name: Thomas Mussweiler
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Title: Managing Director
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S-12
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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BUNGE ITALIA S.P.A.
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By:
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/s/
Maurizio Corcelli
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Name: Maurizio Corcelli
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Title: Managing Director
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By:
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/s/
Pierluigi Brunello
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Name: Pierluigi Brunello
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Title: Administrative Director
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S-13
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EXECUTION of Servicing Agreement:
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Sub-Servicer
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BUNGE IBÉRICA PORTUGAL, S.A.
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By:
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/s/
Vesselina Shaleva
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Name: Vesselina Shaleva
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Title: Director
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By:
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/s/
Jordi Costa
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Name: Jordi Costa
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Title: Director
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S-14
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EXECUTION of Servicing Agreement:
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Sub-Servicer
|
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BUNGE IBÉRICA, S.A.U.
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By:
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/s/
Joan Recasens
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Name: Joan Recasens
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Title: C.E.O.
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By:
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/s/
Mario Arroyo
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Name: Mario Arroyo
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Title: C.F.O.
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S-15
SCHEDULE 1
INITIAL SUB-SERVICERS
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1.
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Bunge North America Inc.
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2.
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Bunge Oils Inc.
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3.
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Bunge North America (East), LLC
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4.
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Bunge Milling, Inc.
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5.
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Bunge North America (OPD West), Inc.
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6.
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Bunge Canada
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7.
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Walter Rau Lebensmittelwerke GmbH
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8.
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Bunge Italia S.p.A.
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9.
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Bunge Ibérica Portugal, S.A.
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10.
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Bunge Ibérica, S.A.U.
|
EXHIBIT A-1
FORM OF MONTHLY REPORT
(Attached)
Exhibit A-1 - Servicing Agreement
SERVICER REPORT
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Applicable Settlement Period:
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31-12-2010
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to
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31-01-2011
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Aggregate Commitment:
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700,000,000
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Investment Requested by Seller:
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[***]
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Prior Settlement Period Investment as of 31-12-2010:
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[***]
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Loss Reserve Floor Requested (Min 10%, max 15%):
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14.5%
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Bunge Ltd S&P Rating:
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BBB-
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Bunge Master Trust Moody’s Rating:
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Baa2
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Weighted Average Dilution Lag in Last Collateral Audit (Days):
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[***]
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(1)
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Aggregate Account Receivable Calculation (Rolforward Calculation)
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(A1)
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Beginning Aggregate A/R Balance
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[***]
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(B1)
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Period Sales
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[***]
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(C1)
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less Period Collections
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[***]
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(D1)
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less Credit Memos
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[***]
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(E1)
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less Write-offs
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[***]
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(F1)
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less Other Miscellaneous Debits/(Credits)
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[***]
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(G1)
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Outstanding Balance of all Receivables
[Sum (A1):(F1)]
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[***]
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(2)
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Calculation of Ineligible Receivables
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(A2)
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Payment Terms greater than 60 days
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—
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(B2)
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Cross-Aged Receivables
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—
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(C2)
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Bankrupt Obligors
|
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—
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(D2)
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Other Ineligibles
|
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—
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(E2)
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Non-US Government Receivables
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—
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(F2)
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Receivables > 60 days past due
|
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[***]
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(G2)
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Intercompany Receivables
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[***]
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(H2)
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Total Ineligible Receivables
[Sum of (A2):(G2)]
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[***]
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(3)
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Calculation of Net Eligible Receivables Balance
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(A3)
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Credit Note Reduction
|
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—
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(B3)
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Total Amounts already netted against Receivables Balance [Sum of (A3)]
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—
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(C3)
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Outstanding Balance of all Receivables
|
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[***]
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(D3)
|
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less Total Ineligible Receivables [(H2)]
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[***]
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(E3)
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Outstanding Balance of all Eligible Receivables
[Sum of (C3):(D3)]
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[***]
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(F3)
|
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less Excess Obligor Concentrations
|
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[***]
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(G3)
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less Excess Country Concentrations
|
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[***]
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(H3)
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less Excess 31-60 Day Term Concentrations
|
|
—
|
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(I3)
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less Excess Government Receivables Concentrations
|
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[***]
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(J3)
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less Excess Non-Investment Grade Country Concentrations
|
|
—
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(K3)
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less Excess Sparkasse Concentrations
|
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—
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(L3)
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less Excess Banco Comercial Portugues Concentrations
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—
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(M3)
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less Excess Non-Contract Jurisdiction Concentrations
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—
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(N3)
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less Accrual Reserve
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—
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(O3)
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less Obligor Payables
|
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—
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(P3)
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Net Eligible Receivables Balance
[Sum of (E3):(O3)]
|
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[***]
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***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
(4)
|
Calculation of Reserves
|
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Loss Reserve Ratio Calculation:
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(A4)
|
Peak Default Ratio (Highest 3-mo. Rolling Avg. in the last 12 mos.)
|
|
[***]
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(B4)
|
Stress Factor
|
|
[***]
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(C4)
|
Loss Horizon Ratio
|
|
[***]
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(D4)
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Loss Reserve Ratio
[(A4)*(B4)*(C4)]
|
|
[***]
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Dilution Reserve Ratio Calculation:
|
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(E4)
|
Expected Dilution (12 mo. Rolling Avg. Dilution Ratio)
|
|
[***]
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(F4)
|
Dilution Spike (Highest 1-Month Dilution Ratio in the last 12 months)
|
|
[***]
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(G4)
|
Dilution Volatility [((F4)-(E4))*(F4)/(E4))]
|
|
[***]
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(H4)
|
Stress Factor
|
|
[***]
|
|
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(I4)
|
Dilution Horizon Ratio
|
|
[***]
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(J4)
|
Dilution Reserve Ratio
[((E4)*(H4)+(G4))*(I4)]
|
|
[***]
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|
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(K4)
|
Dynamic Loss and Dilution Reserve Percentage
[(D4)+(J4)]
|
|
15.00
|
%
|
|
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|
|
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|
Floor Reserve Calculation
|
|
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|
|
(L4)
|
Minimum Loss Reserve (5 times non-rated obligor limit)
|
|
14.50
|
%
|
|
(M4)
|
Expected Dilution multiplied by Dilution Ratio [(E4)*(I4)]
|
|
[***]
|
|
|
(N4)
|
Floor Reserve Percentage
[(L4)+(M4)]
|
|
[***]
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|
Yield and Servicer Fee Reserve Calculation:
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|
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|
(O4)
|
CP Rate + Margin of 1.3% + Servicing Fee of 0.5%
|
|
[***]
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|
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(P4)
|
DSO
|
|
[***]
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|
|
(Q4)
|
Stress Factor
|
|
[***]
|
|
|
(R4)
|
Yield Reserve Ratio
[((O4)/360)*(P4)*(Q4)]
|
|
[***]
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|
(S4)
|
Required Reserve Percentage
[(R4) plus greater of (K4) and (N4)]
|
|
[***]
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(T4)
|
Required Reserve Amount [(S4)*(P3)]
|
|
[***]
|
|
|
|
|
$
|
|
%
|
|
|
Current
|
|
[***]
|
|
[***]
|
|
|
31-60 Days Past Due
|
|
[***]
|
|
[***]
|
|
|
61-90 Days Past Due
|
|
[***]
|
|
[***]
|
|
|
91-120 Days Past Due
|
|
[***]
|
|
[***]
|
|
|
>120 Days Past Due
|
|
[***]
|
|
[***]
|
|
|
Unapplied Cash and Credits
|
|
—
|
|
[***]
|
|
|
Total Agings
|
|
[***]
|
|
[***]
|
|
|
|
|
Actual
|
|
Trigger
|
|
Comply?
|
|
|
Dilution Ratio Test
|
|
[***]
|
|
2.50
|
%
|
[***]
|
|
|
Write-off Rate Test
|
|
[***]
|
|
1.00
|
%
|
[***]
|
|
|
Delinquency Ratio Test
|
|
[***]
|
|
2.00
|
%
|
[***]
|
|
|
Days Sales Outstanding Test
|
|
[***]
|
|
45.0
|
%
|
[***]
|
|
|
Asset Coverage Test [(D8)/(P3)-(P3)*(S4))]
|
|
[***]
|
|
100.00
|
%
|
[***]
|
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
(7)
|
|
Excess Concentrations Calculations
|
|
|
|
|
|
ST (or LT)
|
|
Eligible AR O/S
|
|
% of Eligible
|
|
|
|
|
|
|
|
|
10 Largest Obligors
|
|
Ratings
|
|
Balance
|
|
Receivables
|
|
Applicable Limit
|
|
Excess
|
|
|
1
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
—
|
|
|
2
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
—
|
|
|
3
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
4
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
5
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
6
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
7
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
8
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
9
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
10
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
[***]
|
|
|
|
[***]
|
|
[***]
|
|
|
|
[***]
|
|
|
|
|
A/R of all Eligible Receivables [(E3)]
|
|
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
|
Eligible AR O/S
|
|
% of Eligible
|
|
|
|
|
|
|
|
|
Other Excess Concentrations
|
|
Balance
|
|
Receivables
|
|
Applicable Limit
|
|
Excess
|
|
|
|
|
Excess Country Concentrations
|
|
|
|
|
|
[***]
|
|
[***]
|
|
|
|
|
31-60 Day Term
|
|
—
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
US Government Receivables
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Receivables* in Non-Investment Grade Countries
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Receivables with Collections at Sparkasse
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Receivables with Collections at Banco Comercial Port
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Receivables in Non-Contract Jurisdictions
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
* After applying individual country concentration limits
|
|
(8)
|
|
Investment Calculations
|
|
(A8)
|
|
Funding Base [(P3)-(T4)]
|
|
[***]
|
|
|
|
|
|
|
(B8)
|
|
Maximum Investment
|
|
[***]
|
|
|
|
|
|
|
(C8)
|
|
Investment (requested by Seller)
|
|
[***]
|
|
|
|
|
|
|
(D8)
|
|
Investment [Minimum of (B8), (C8)] (Roundown to nearest 10,000)
|
|
[***]
|
|
|
|
|
|
|
(9)
|
|
Investment Requests as of Last Settlement Period
|
|
(A9)
|
|
Prior Settlement Period Investment as of 31-12-2010
|
|
[***]
|
|
|
|
|
|
|
(B9)
|
|
New Settlement Period Investment [(D8)]
|
|
[***]
|
|
|
|
|
|
|
(C9)
|
|
Increase / (Decrease) in Settlement Period Commitment
[(B9) - (A9)]
|
|
[***]
|
|
|
|
|
|
|
(D9)
|
|
Amounts Payable to Conduit Purchasers
[(C9) if negative, else “0”]
|
|
[***]
|
|
|
|
|
|
|
(E9)
|
|
Amounts Payable to Main SPV
[(C9) if positive, else “0”]
|
|
[***]
|
|
|
|
|
|
|
(F9)
|
|
CAD / USD
|
|
[***]
|
|
USD / CAD
|
|
[***]
|
|
|
(G9)
|
|
EUR / USD
|
|
[***]
|
|
USD / EUR
|
|
[***]
|
|
|
(H9)
|
|
HUF / USD
|
|
[***]
|
|
USD / HUF
|
|
[***]
|
|
|
(I9)
|
|
USD / USD
|
|
[***]
|
|
USD / USD
|
|
[***]
|
|
|
Currency Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
|
|
(J9)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
|
|
(K9)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
|
|
(L9)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
|
|
(M9)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
(10)
|
|
Investment Requests per Originator
|
|
|
|
|
|
|
|
|
|
|
In Currency
|
|
In USD
|
|
|
(A10)
|
|
New Settlement Period Investment Request for Canada in CAD
|
|
[***]
|
|
[***]
|
|
|
(B10)
|
|
New Settlement Period Investment Request for Germany in EUR
|
|
[***]
|
|
[***]
|
|
|
(C10)
|
|
New Settlement Period Investment Request for Hungary in EUR
|
|
[***]
|
|
[***]
|
|
|
(D10)
|
|
New Settlement Period Investment Request for Italy in EUR
|
|
[***]
|
|
[***]
|
|
|
(E10)
|
|
New Settlement Period Investment Request for Portugal in EUR
|
|
[***]
|
|
[***]
|
|
|
(F10)
|
|
New Settlement Period Investment Request for Spain in EUR
|
|
[***]
|
|
[***]
|
|
|
(G10)
|
|
New Settlement Period Investment Request for Hungary in HUF
|
|
[***]
|
|
[***]
|
|
|
(H10)
|
|
New Settlement Period Investment Request for Canada in USD
|
|
[***]
|
|
[***]
|
|
|
(I10)
|
|
New Settlement Period Investment Request for Portugal in USD
|
|
[***]
|
|
[***]
|
|
|
(J10)
|
|
New Settlement Period Investment Request for Spain in USD
|
|
[***]
|
|
[***]
|
|
|
(K10)
|
|
New Settlement Period Investment Request for the US in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
(11)
|
|
Investment Requests
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rabobank Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(A11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(B11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(C11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(D11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
Credit Agricole Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(E11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(F11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(G11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(H11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(I11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(J11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(K11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(L11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
HSBC Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(M11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(N11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(O11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(P11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
Subordinated Loan Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(M11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(N11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(O11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(P11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
The undersigned hereby represents and warrants that the foregoing is true and accurate accounting with respect to outstanding receivables as of 31-1-2011 in accordance with the Receivables Transfer Agreement dated June 1, 2011 and that all representations and warranties related to such Agreement are restated and reaffirmed.
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
EXHIBIT A-2
FORM OF WEEKLY REPORT
(Attached)
Exhibit A-2 - Servicing Agreement
SERVICER REPORT*
|
|
|
|
|
|
|
|
|
|
|
|
|
Applicable Settlement Period:
|
|
31/12/2010
|
to
|
31/01/2011
|
|
|
Aggregate Commitment:
|
|
|
|
700,000,000
|
|
|
|
|
|
|
|
|
|
Investment Requested by Seller:
|
|
|
|
[***]
|
|
|
Prior Settlement Period Investment as of 31-12-2010:
|
|
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Loss Reserve Floor Requested (Min 10%, max 15%):
|
|
|
|
14.5%
|
|
|
|
|
|
|
|
|
|
Bunge Ltd S&P Rating:
|
|
|
|
BBB-
|
|
|
Bunge Master Trust Moody’s Rating:
|
|
|
|
Baa2
|
|
|
|
|
|
|
|
|
|
Weighted Average Dilution Lag in Last Collateral Audit (Days):
|
|
|
|
[***]
|
|
|
(1)
|
|
Aggregate Account Receivable Calculation (Rolforward Calculation)
|
|
|
|
|
|
|
|
|
|
|
|
(A1)
|
|
Beginning Aggregate A/R Balance
|
|
[***]
|
|
|
(B1)
|
|
Period Sales
|
|
[***]
|
|
|
(C1)
|
|
less Period Collections
|
|
[***]
|
|
|
(D1)
|
|
less Credit Memos
|
|
[***]
|
|
|
(E1)
|
|
less Write-offs
|
|
[***]
|
|
|
(F1)
|
|
less Other Miscellaneous Debits/(Credits)
|
|
[***]
|
|
|
(G1)
|
|
Outstanding Balance of all Receivables
[Sum (A1):(F1)]
|
|
[***]
|
|
|
(2)
|
|
Calculation of Ineligible Receivables
|
|
|
|
|
|
|
|
|
|
|
|
(A2)
|
|
Payment Terms greater than 60 days
|
|
—
|
|
|
(B2)
|
|
Cross-Aged Receivables
|
|
—
|
|
|
(C2)
|
|
Bankrupt Obligors
|
|
—
|
|
|
(D2)
|
|
Other Ineligibles
|
|
—
|
|
|
(E2)
|
|
Non-US Government Receivables
|
|
—
|
|
|
(F2)
|
|
Receivables > 60 days past due
|
|
[***]
|
|
|
(G2)
|
|
Intercompany Receivables
|
|
[***]
|
|
|
(H2)
|
|
Total Ineligible Receivables
[Sum of (A2):(G2)]
|
|
[***]
|
|
|
(3)
|
|
Calculation of Net Eligible Receivables Balance
|
|
|
|
|
|
|
|
|
|
|
|
(A3)
|
|
Credit Note Reduction
|
|
—
|
|
|
(B3)
|
|
Total Amounts already netted against Receivables Balance [Sum of (A3)]
|
|
—
|
|
|
|
|
|
|
|
|
|
(C3)
|
|
Outstanding Balance of all Receivables
|
|
[***]
|
|
|
(D3)
|
|
less Total Ineligible Receivables [(H2)]
|
|
[***]
|
|
|
(E3)
|
|
Outstanding Balance of all Eligible Receivables
[Sum of (C3):(D3)]
|
|
[***]
|
|
|
(F3)
|
|
less Excess Obligor Concentrations
|
|
[***]
|
|
|
(G3)
|
|
less Excess Country Concentrations
|
|
[***]
|
|
|
(H3)
|
|
less Excess 31-60 Day Term Concentrations
|
|
—
|
|
|
(I3)
|
|
less Excess Government Receivables Concentrations
|
|
[***]
|
|
|
(J3)
|
|
less Excess Non-Investment Grade Country Concentrations
|
|
—
|
|
|
(K3)
|
|
less Excess Sparkasse Concentrations
|
|
—
|
|
|
(L3)
|
|
less Excess Banco Comercial Portugues Concentrations
|
|
—
|
|
|
(M3)
|
|
less Excess Non-Contract Jurisdiction Concentrations
|
|
—
|
|
|
(N3)
|
|
less Accrual Reserve
|
|
—
|
|
|
(O3)
|
|
less Obligor Payables
|
|
[***]
|
|
|
(P3)
|
|
Net Eligible Receivables Balance
[Sum of (E3):(O3)]
|
|
[***]
|
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
(4)
|
Calculation of Reserves
|
|
|
|
|
|
Loss Reserve Ratio Calculation:
|
|
|
|
|
(A4)
|
Peak Default Ratio (Highest 3-mo. Rolling Avg. in the last 12 mos.)
|
|
[***]
|
|
|
(B4)
|
Stress Factor
|
|
[***]
|
|
|
(C4)
|
Loss Horizon Ratio
|
|
[***]
|
|
|
(D4)
|
Loss Reserve Ratio
[(A4)*(B4)*(C4)]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Dilution Reserve Ratio Calculation:
|
|
|
|
|
(E4)
|
Expected Dilution (12 mo. Rolling Avg. Dilution Ratio)
|
|
[***]
|
|
|
(F4)
|
Dilution Spike (Highest 1-Month Dilution Ratio in the last 12 months)
|
|
[***]
|
|
|
(G4)
|
Dilution Volatility [((F4)-(E4))*(F4)/(E4))]
|
|
[***]
|
|
|
(H4)
|
Stress Factor
|
|
[***]
|
|
|
(I4)
|
Dilution Horizon Ratio
|
|
[***]
|
|
|
(J4)
|
Dilution Reserve Ratio
[((E4)*(H4)+(G4))*(I4)]
|
|
[***]
|
|
|
|
|
|
|
|
|
(K4)
|
Dynamic Loss and Dilution Reserve Percentage
[(D4)+(J4)]
|
|
15.00
|
%
|
|
|
|
|
|
|
|
|
Floor Reserve Calculation
|
|
|
|
|
(L4)
|
Minimum Loss Reserve (5 times non-rated obligor limit)
|
|
14.50
|
%
|
|
(M4)
|
Expected Dilution multiplied by Dilution Ratio [(E4)*(I4)]
|
|
[***]
|
|
|
(N4)
|
Floor Reserve Percentage
[(L4)+(M4)]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
Yield and Servicer Fee Reserve Calculation:
|
|
|
|
|
(O4)
|
CP Rate + Margin of 1.3% + Servicing Fee of 0.5%
|
|
[***]
|
|
|
(P4)
|
DSO
|
|
[***]
|
|
|
(Q4)
|
Stress Factor
|
|
[***]
|
|
|
(R4)
|
Yield Reserve Ratio
[((O4)/360)*(P4)*(Q4)]
|
|
[***]
|
|
|
|
|
|
|
|
|
(S4)
|
Required Reserve Percentage
[(R4) plus greater of (K4) and (N4)]
|
|
[***]
|
|
|
|
|
|
|
|
|
(T4)
|
Required Reserve Amount [(S4)*(P3)]
|
|
[***]
|
|
|
|
|
$
|
|
%
|
|
|
Current
|
|
[***]
|
|
[***]
|
|
|
31-60 Days Past Due
|
|
[***]
|
|
[***]
|
|
|
61-90 Days Past Due
|
|
[***]
|
|
[***]
|
|
|
91-120 Days Past Due
|
|
[***]
|
|
[***]
|
|
|
>120 Days Past Due
|
|
[***]
|
|
[***]
|
|
|
Unapplied Cash and Credits
|
|
[***]
|
|
[***]
|
|
|
Total Agings
|
|
[***]
|
|
[***]
|
|
|
|
|
Actual
|
|
Trigger
|
|
Comply?
|
|
|
Dilution Ratio Test
|
|
[***]
|
|
2.50
|
%
|
[***]
|
|
|
Write-off Rate Test
|
|
[***]
|
|
1.00
|
%
|
[***]
|
|
|
Delinquency Ratio Test
|
|
[***]
|
|
2.00
|
%
|
[***]
|
|
|
Days Sales Outstanding Test
|
|
[***]
|
|
45.0
|
|
[***]
|
|
|
Asset Coverage Test [(D8)/(P3)-(P3)*(S4))]
|
|
[***]
|
|
100.00
|
%
|
[***]
|
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
(7)
|
|
Excess Concentrations Calculations
|
|
|
|
|
|
ST (or LT)
|
|
Eligible AR O/S
|
|
% of Eligible
|
|
|
|
|
|
|
|
|
10 Largest Obligors
|
|
Ratings
|
|
Balance
|
|
Receivables
|
|
Applicable Limit
|
|
Excess
|
|
|
1
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
2
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
3
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
4
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
5
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
6
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
7
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
8
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
9
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
10
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Subtotal
|
|
|
|
[***]
|
|
[***]
|
|
|
|
[***]
|
|
|
|
|
A/R of all Eligible Receivables [(E3)]
|
|
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
|
Eligible AR O/S
|
|
% of Eligible
|
|
|
|
|
|
|
|
|
Other Excess Concentrations
|
|
Balance
|
|
Receivables
|
|
Applicable Limit
|
|
Excess
|
|
|
|
|
Excess Country Concentrations
|
|
|
|
|
|
[***]
|
|
[***]
|
|
|
|
|
31-60 Day Term
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
US Government Receivables
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Receivables* in Non-Investment Grade Countries
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Receivables with Collections at Sparkasse
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Receivables with Collections at Banco Comercial Port
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
Receivables in Non-Contract Jurisdictions
|
|
[***]
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
|
|
* After applying individual country concentration limits
|
|
(8)
|
|
Investment Calculations
|
|
(A8)
|
|
Funding Base [(P3)-(T4)]
|
|
[***]
|
|
|
|
|
|
|
(B8)
|
|
Maximum Investment
|
|
[***]
|
|
|
|
|
|
|
(C8)
|
|
Investment (requested by Seller)
|
|
[***]
|
|
|
|
|
|
|
(D8)
|
|
Investment [Minimum of (B8), (C8)] (Roundown to nearest 10,000)
|
|
[***]
|
|
|
|
|
|
|
(9)
|
|
Investment Requests as of Last Settlement Period
|
|
(A9)
|
|
Prior Settlement Period Investment as of 31-12-2010
|
|
[***]
|
|
|
|
|
|
|
(B9)
|
|
New Settlement Period Investment [(D8)]
|
|
[***]
|
|
|
|
|
|
|
(C9)
|
|
Increase / (Decrease) in Settlement Period Commitment
[(B9) - (A9)]
|
|
[***]
|
|
|
|
|
|
|
(D9)
|
|
Amounts Payable to Conduit Purchasers
[(C9) if negative, else “0”]
|
|
[***]
|
|
|
|
|
|
|
(E9)
|
|
Amounts Payable to Main SPV
[(C9) if positive, else “0”]
|
|
[***]
|
|
|
|
|
|
|
(F9)
|
|
CAD / USD
|
|
[***]
|
|
USD / CAD
|
|
[***]
|
|
|
(G9)
|
|
EUR / USD
|
|
[***]
|
|
USD / EUR
|
|
[***]
|
|
|
(H9)
|
|
HUF / USD
|
|
[***]
|
|
USD / HUF
|
|
[***]
|
|
|
(I9)
|
|
USD / USD
|
|
[***]
|
|
USD / USD
|
|
[***]
|
|
|
Currency Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
|
|
(J9)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
|
|
(K9)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
|
|
(L9)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
|
|
(M9)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
|
(10)
|
|
Investment Requests per Originator
|
|
|
|
|
|
|
|
|
|
|
In Currency
|
|
In USD
|
|
|
(A10)
|
|
New Settlement Period Investment Request for Canada in CAD
|
|
[***]
|
|
[***]
|
|
|
(B10)
|
|
New Settlement Period Investment Request for Germany in EUR
|
|
[***]
|
|
[***]
|
|
|
(C10)
|
|
New Settlement Period Investment Request for Hungary in EUR
|
|
[***]
|
|
[***]
|
|
|
(D10)
|
|
New Settlement Period Investment Request for Italy in EUR
|
|
[***]
|
|
[***]
|
|
|
(E10)
|
|
New Settlement Period Investment Request for Portugal in EUR
|
|
[***]
|
|
[***]
|
|
|
(F10)
|
|
New Settlement Period Investment Request for Spain in EUR
|
|
[***]
|
|
[***]
|
|
|
(G10)
|
|
New Settlement Period Investment Request for Hungary in HUF
|
|
[***]
|
|
[***]
|
|
|
(H10)
|
|
New Settlement Period Investment Request for Canada in USD
|
|
[***]
|
|
[***]
|
|
|
(I10)
|
|
New Settlement Period Investment Request for Portugal in USD
|
|
[***]
|
|
[***]
|
|
|
(J10)
|
|
New Settlement Period Investment Request for Spain in USD
|
|
[***]
|
|
[***]
|
|
|
(K10)
|
|
New Settlement Period Investment Request for the US in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
(11)
|
|
Investment Requests
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rabobank Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(A11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(B11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(C11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(D11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
Credit Agricole Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(E11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(F11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(G11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(H11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(I11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(J11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(K11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(L11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
HSBC Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(M11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(N11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(O11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(P11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
|
|
|
|
|
|
|
|
|
|
Subordinated Loan Investment Requests
|
|
In Currency
|
|
In USD
|
|
|
(M11)
|
|
New Settlement Period Investment Request in CAD
|
|
[***]
|
|
[***]
|
|
|
(N11)
|
|
New Settlement Period Investment Request in EUR
|
|
[***]
|
|
[***]
|
|
|
(O11)
|
|
New Settlement Period Investment Request in HUF
|
|
[***]
|
|
[***]
|
|
|
(P11)
|
|
New Settlement Period Investment Request in USD
|
|
[***]
|
|
[***]
|
|
The undersigned hereby represents and warrants that the foregoing is true and accurate accounting with respect to outstanding receivables as of 31-1-2011 in accordance with the Receivables Transfer Agreement dated June 1, 2011 and that all representations and warranties related to such Agreement are restated and reaffirmed.
* The Weekly Report will be similar to the Monthly Report but some of the calculations such as the Obligor Concentrations and the Required Reserve Percentage will be based on monthly calculations instead of weekly calculations.
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
EXHIBIT A-3
FORM OF OUTSTANDING RECEIVABLES REPORT
(Attached)
Exhibit A-3 - Servicing Agreement
Outstanding Receivables Report
|
Bunge
Subsidiary
|
|
Customer
Name
|
|
Customer
Address
|
|
Customer
Number
|
|
Invoice
Number
|
|
Invoice
Date
|
|
Due Date
|
|
Currency
|
|
Invoice Amount
(incl VAT if
applicable)
|
|
|
|
|
|
|
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EXHIBIT B
FORM OF SERVICER POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS
, that [
GRANTOR
] (the
“Principal”
), a company organised under the laws of [
·
] by and through its duly elected representative, [NAME OF SIGNATORY], does hereby nominate, constitute and appoint
BUNGE FINANCE B.V.
(the
“Grantee”
), and each officer of the Grantee from time to time authorised by the Grantee and each other person or entity from time to time designated by a Grantee or such officer (each an
“Attorney-in-Fact”
) [under release from the restrictions of section 181 of the German Civil Code (
Bürgerliches Gesetzbuch
)] with full power of substitution, to act, together or alone, as the Principal’s true and lawful agent and attorney-in-fact, for it and in its name, place and stead, to take any and all steps in such Principal’s name and on behalf of such Principal as are necessary or desirable, in the reasonable determination of the Grantee (1) to collect all amounts due under any and all Portfolio Receivables, any Related Security with respect thereto and any other Collateral, including endorsing the Principal’s name on checks and other instruments representing Collections, giving instructions and other directions in respect of the Facility Accounts and enforcing the Portfolio Receivables, the Related Security and the related Contracts and (2) to otherwise service, administer, collect and manage the Portfolio Receivables and the Related Security with respect thereto in accordance with the terms of the Servicing Agreement dated on or about the date hereof between, among others, the Principal, the Grantee and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. and the Sub-Servicers from time to time party thereto (the
“Servicing Agreement”
).
Unless otherwise defined herein, capitalized terms which are used herein shall have the meanings assigned to such terms in the Servicing Agreement.
Each Attorney-in-Fact shall have full power and authority to do and perform any and all acts and things requisite for the purposes set forth hereinabove as fully for all intents and purposes as the undersigned might or could do in person.
This limited power of attorney is irrevocable and coupled with an interest.
This limited power of attorney may be assigned by each Attorney-in-Fact and any such person or entity designated by each Attorney-in-Fact.
The Principal hereby agrees that any person to whom this limited power of attorney is presented, as authority for an Attorney-in-Fact to take any action or actions contemplated hereby, may rely hereon without further inquiry and shall not be required to inquire into or seek confirmation from the Principal as to the authority of such Attorney-in-Fact to take any action described above, or as to the existence of or fulfillment of any condition to this limited power of attorney, which is intended to grant to each Attorney-in-Fact unconditionally the authority to take and perform the actions contemplated herein, and the Principal irrevocably waives any right to commence any suit or action, in law or equity, against any person or entity that acts in reliance upon or acknowledges the authority granted under this limited power of attorney.
Exhibit B - Servicing Agreement
This limited power of attorney shall be governed by and construed in accordance with the laws of
[
·
]
.
IN WITNESS WHEREOF
, the Principal has executed this Power of Attorney on this day of , 2011.
|
|
[NAME OF GRANTOR]
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
the foregoing instrument was acknowledged before me this day of , 2011, by of [NAME OF GRANTOR].
WITNESS my hand and official seal.
|
|
|
|
|
Notary Public
|
|
|
|
|
|
|
|
[NOTARIAL SEAL]
|
|
|
|
|
|
My commission expires:
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT C
FORM OF ADMINISTRATIVE AGENT AND SELLER POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS
, that [
GRANTOR
] (the
“Principal”
), a company organised under the laws of [
·
] by and through its duly elected representative,
[NAME OF SIGNATORY]
, does hereby nominate, constitute and appoint each of
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
(the
“Administrative Agent”
) and
BUNGE SECURITIZATION B.V.
(the
“Seller”
), (each a
“Grantee”
) and each officer of a Grantee from time to time authorised by such Grantee and each other person or entity from time to time designated by a Grantee or such officer (each an
“Attorney-in-Fact”
) [under release from the restrictions of section 181 of the German Civil Code (
Bürgerliches Gesetzbuch
)] with full power of substitution, to act, together or alone, as the Principal’s true and lawful agent and attorney-in-fact, for it and in its name, place and stead, to take any and all steps in such Principal’s name and on behalf of such Principal as are necessary or desirable, in the determination of the applicable Attorney-in-Fact, to collect all amounts due under the Portfolio Receivables, any Related Security with respect thereto, any Facility Account or any other Collateral, including:
(1)
endorsing the Principal’s name on checks and other instruments representing Collections and giving instructions and other directions in respect of the Facility Accounts;
(2)
enforcing the Portfolio Receivables, the Related Security and the related Contracts, including to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection therewith; and
(3)
filing any claims or taking any action or instituting any proceedings that the applicable Attorney-in Fact may deem to be necessary or desirable for the collection thereof or to enforce compliance with the terms and conditions of, or to perform any obligations or enforce any rights of any Seller Party in respect of, the Portfolio Receivables, the Related Security, the Facility Accounts, the Collateral and the other Transaction Documents.
Unless otherwise defined herein, capitalized terms which are used herein shall have the meanings assigned to such terms in the Servicing Agreement dated on or about the date hereof between, among others, the Principal, the Administrative Agent and the Sub-Servicers from time to time party thereto (the
“Servicing Agreement”
).
Each Attorney-in-Fact shall have full power and authority to do and perform any and all acts and things requisite for the purposes set forth hereinabove as fully for all intents and purposes as the undersigned might or could do in person.
This limited power of attorney is irrevocable and coupled with an interest.
This limited power of attorney may be assigned by each Attorney-in-Fact and any such person or entity designated by each Attorney-in-Fact.
Exhibit C - Servicing Agreement
The Principal hereby agrees that any person to whom this limited power of attorney is presented, as authority for an Attorney-in-Fact to take any action or actions contemplated hereby, may rely hereon without further inquiry and shall not be required to inquire into or seek confirmation from the Principal as to the authority of such Attorney-in-Fact to take any action described above, or as to the existence of or fulfillment of any condition to this limited power of attorney, which is intended to grant to each Attorney-in-Fact unconditionally the authority to take and perform the actions contemplated herein, and the Principal irrevocably waives any right to commence any suit or action, in law or equity, against any person or entity that acts in reliance upon or acknowledges the authority granted under this limited power of attorney.
This limited power of attorney shall be governed by and construed in accordance with the laws of [
·
].
IN WITNESS WHEREOF
, the Principal has executed this Power of Attorney on this day of , 2011.
|
|
[NAME OF GRANTOR]
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
the foregoing instrument was acknowledged before me this day of , 2011, by of [NAME OF GRANTOR].
WITNESS my hand and official seal.
|
|
|
|
|
Notary Public
|
|
|
|
|
|
|
|
[NOTARIAL SEAL]
|
|
|
|
|
|
My commission expires:
|
|
|
|
|
|
|
|
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|
|
EXHIBIT D
FORM OF ITALIAN FIRST NOTICE OF ASSIGNMENT
(Attached)
Exhibit D — Italian First Notice of Assignment
FORM OF NOTICE OF ASSIGNMENT
(ENGLISH)
To: [
·
] (Assigned Debtor)
[PLEASE INSERT THE RELEVANT DETAILS OF EACH OBLIGOR]
From:
Bunge Italia S.p.A.
Viale G. di Vittorio, 62
Ravenna
Italy
, 2011
Dear Sirs,
Re: Notice of assignment of receivables in accordance with Articles 1248, 1264 and 1265 of the Italian Civil Code - Instructions of payment - Information relating to personal data
We hereby inform you that, on 1
st
June 2011, in the context of a securitization transaction,
Bunge Italia S.p.A.
(the “
Company
”) has assigned, by entering into an assignment agreement named “Italian Receivables Purchase Agreement”, also pursuant to law 52/91, such Receivables to Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., a bank having registered office in
Croeselaan, 18, Utrecht 3521 CB, Netherlands
(hereinafter, “
Rabobank Nederland
”):
·
all the receivables
existing at the date hereof
originated from commercial agreements entered into between you and our Company, as better detailed under Schedule 1 attached to this notice (the “
Existing Receivables
”); and
·
any future receivables
originated from commercial agreements in place or that might be entered into between us, starting from the date hereof 2011 up to 31 May 2013 (the “
Future Receivables
” and together with the Existing Receivables, the “
Receivables
”).
In the context of the above mentioned securitization as described above and in compliance with the agreement named “Italian Intermediate Transfer Agreement” also dated 1
st
June 2011, the Receivables have been subsequently assigned by Rabobank Nederland to Bunge Securitization B.V. (hereinafter “
Bunge Securitization
”), a company having registered office in De Lairessestraat 154, 1075 HL Amsterdam, The Netherlands.
In order to guarantee the correct execution of any obligations of Bunge Securitization for the good outcome of the transaction, nonetheless the latter has (re)assigned by way of security all the
Receivables to Rabobank Nederland, in its capacity as administrative agent
(mandatario)
of the
secured parties (the “
Administrative Agent
”).
As a result of the abovementioned assignments, Rabobank Nederland is the ultimate holder of the Receivables and has appointed our Company — as sub-servicer — to conduct, in the name and on behalf of the Administrative Agent,
the servicing, administration, collection and management of the assigned Receivables, also on the basis of our business relations.
As a consequence, we kindly ask you, as of the date hereof,
to make/[continue to make] any payment, due in relation to the agreements specified in Schedule 1 hereto, as well as any agreement which might be entered into with our Company
, up to any other subsequent different notice, if any,
on the following bank account IBAN [•] opened in the name of Bunge Italia S.p.A. with [•], [as already communicated with previous correspondence]
.
Please note that, as of today and up to different notice, pursuant to article 1260 of the Italian Civil Code,
any payment made to an entity other than Bunge Italia S.p.A. (on the Bank Account designated above) shall not be considered able to redeem your debt.
We hereby also inform you that your personal data will be treated in compliance with the relevant laws and regulations, pursuant to the provisions of the Privacy Code (legislative decree 196/2003). For further information concerning such issue, we invite you to refer to Schedule 2 of this letter.
|
Yours faithfully,
|
|
|
|
|
|
|
|
|
BUNGE ITALIA S.P.A.
|
|
|
|
|
|
|
|
Schedule 1
LIST OF THE RECEIVABLES [PLEASE INSERT THE RELEVANT DETAILS OF THE RECEIVABLES]
|
Customer
name
|
|
Customer
address
|
|
Customer
number
|
|
Invoice
number
|
|
Due date
|
|
Currency
|
|
Invoice
date
|
|
Invoice
amount
|
|
|
|
|
|
|
|
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Schedule 2
Information relating to personal data in accordance with Article 13 of
Legislative Decree No. 196 of 30 June 2003
Pursuant to article 13, paragraphs 1 and 2 of Legislative Decree No 196 of 30 June 2003 (known as the “
Privacy Code
”), and in relation to the processing of your personal data, our Company notifies you the following.
As a consequence of the transfer hereto, also the personal data connected to the assigned receivables, the related assigned debtors and the related guarantors (the “
Personal Data
”) have been transferred to
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. (“
Rabobank Nederland
”
), which has become “
Data Controller
” (
Titolare del trattamento
) as provided for by article 28 of the Privacy Code.
Rabobank Nederland
, in its capacity as Data Controller, shall provide to the assigned debtors, the related guarantors and related successors (the “
Interest Parties
”) the privacy notice provided for pursuant to article 13 of the Privacy Code and complies with this obligation through such communication carried out by our Company, upon a specific mandate duly given to it.
In the light of the foregoing, your Personal Data will be processed in printed, computing and telematic form for the following purposes: (i) in connection with the ordinary business of the Data Controller; (ii) performance of contractual and lawful obligations and (iii) purposes connected with relationship with the debtors and related guarantor.
Your Personal Data may be disclosed at any time, and consequently processed, strictly in accordance with the above-mentioned purposes, by the following subjects: (i) Bunge Securitization, for the sole purposes of carrying out the Factoring Transaction and exercising the rights connected to the Receivables, as well as (ii) other entities for the purposes above mentioned and for the collection and payment services and any advice activity (including legal advice activity) in relation thereto.
The subjects belonging to the categories allowed to receive Personal Data shall use the same Personal Data as autonomous Data Controller, in full autonomy and in compliance with the Privacy Code. In particular Bunge Finance B.V., acting in its capacity as servicer for the management of the Receivables and the relevant cash and the Company acting in its capacity as sub-servicer, duly appointed by the servicer, will be entitled to process the Personal Data in their capacities as Data Processors. Personal Data may also be known by individuals belonging to the categories of consultants and/or employees of the Data Controller or Data Processors themselves in their capacity as persons in charge of the processing — and within the limits of the activities assigned and carried by them. The complete and updated list of the subjects whom Personal Data can be communicated or those who may have knowledge of them can be consulted in every moment filing a specific request to the Data Controller or the Data Processors. Personal Data can be communicated abroad for the above mentioned purposes, but only to subjects acting in countries which are member of the European Union. Personal Data shall not be disclosed.
Ultimately, our Company hereby informs you that Italian Law grants to each of the Interest Parties the specific rights pursuant to article 7 of the Privacy Code that can be exercised turning, in their capacities as Data Processor, to (i) Bunge Finance B.V., at its registered office in
Weena 320
,
3012 NJ Rotterdam, the Netherlands
or to the following numbers: fax number +31 10 217 6652 and phone number +31 10 217 6652, or, alternatively, (ii) Bunge Italia S.p.A., at its registered office in Viale G. di
Vittorio, 62, Ravenna, Italia, or to the following numbers: fax number +39 0544539030 and phone number +39 0544696311.
Our offices remain at your disposal for whats0ever need.
|
Best regards,
|
|
|
|
|
|
BUNGE ITALIA S.P.A.
|
|
|
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|
FORM OF NOTICE OF ASSIGNMENT
(ITALIAN)
A:
[
·
]
[PLEASE INSERT THE RELEVANT DETAILS OF EACH OBLIGOR]
Da:
Bunge Italia S.p.A.
Viale G. di Vittorio, 62
Ravenna
Italia
, 2011
Egregi Signori,
Oggetto:
Notifica di cessione di crediti ai sensi e per gli effetti degli articoli 1248, 1264 e 1265 del Codice Civile — Istruzioni di pagamento — Informativa in materia di dati personali
Con la presente, La informiamo che in data 1° giugno 2011, nell’ambito di un’operazione di
factoring
, Bunge Italia S.p.A. (la “
Società
”), in forza di un contratto denominato “
Italian Receivables Purchase Agreement
” ha ceduto, ai sensi e per gli effetti della l. 52/91, i Crediti a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., una banca avente sede legale in Croeselaan, 18, Utrecht 3521 CB, Netherlands (“
Rabobank Nederland
”):
·
i crediti esistenti
alla data odierna derivanti dai taluni contratti di natura commerciali stipulati tra Lei e la Nostra Società, come meglio dettagliati
sub
Allegato 1 alla presente notifica (i “
Crediti Esistenti
”); nonché
·
tutti i crediti futuri
che sorgeranno dai contratti in essere alla data odierna e/o che d’ora innanzi saranno stipulati tra Lei e la Nostra Società, nel corso dei prossimi mesi sino al 31 maggio 2013 (i “
Crediti Futuri
”, ed insieme ai Crediti Esistenti, i “
Crediti
”).
Nel contesto della medesima operazione di cessione di crediti commerciali, ai sensi di un contratto denominato “
Italian
Intermediate Transfer Agreement
” stipulato in pari data, i Crediti sono stati oggetto di un’ulteriore cessione da Rabobank Nederland in favore di Bunge Securitization B.V. (
“
Bunge Securitization
”) una società con sede sociale in De Lairessestraat 154, 1075 HL Amsterdam, The Netherlands.
Al fine di garantire il corretto adempimento delle obbligazioni poste in capo a Bunge Securitization per il buon esito dell’operazione in oggetto, tuttavia quest’ultima ha (ri)ceduto in garanzia tutti i Crediti a Rabobank Nederland, nella sua qualità di mandatario (
administrative agent
) delle controparti contrattuali garantite (l’”
Administrative Agent
”).
A seguito di tali cessioni,
Rabobank Nederland è il titolare ultimo dei Crediti
vantati nei Suoi confronti ed ha conferito alla nostra Società — in qualità di
sub-servicer
— l’incarico d’incassare, in nome e per conto dell’Admnistrative Agent, tutte le somme dovute in relazione ai Crediti, alla luce dei nostri reciproci rapporti commerciali.
Per l’effetto, La informiamo altresì del fatto che, con decorrenza dalla data della presente, ogni e qualsiasi Suo futuro pagamento dovuto ai sensi dei contratti indicati in allegato, nonché di ogni ulteriore contratto che verrà stipulato con la Nostra Società - dovrà da Lei essere effettuato/[continuare ad essere effettuato], sino ad eventuale e diversa comunicazione, sul conto corrente IBAN [
·
], aperto in nome di Bunge Italia S.p.A. presso [
·
].
La preghiamo di notare che, a far data dalla data odierna e salvo diversa successiva istruzione, ai sensi e per gli effetti dell’art. 1264, cod. civ.,
ogni pagamento effettuato nei confronti di soggetto diverso da Bunge Italia S.p.A. (nel conto corrente indicato al paragrafo che precede)
non potrà essere considerato liberatorio della Sua posizione debitoria
.
Con l’occasione, La informiamo altresì che i Suoi dati personali verranno trattati nel rispetto della normativa vigente conformemente a quanto previsto dal Codice in Materia di Dati Personali (d. lgs. 196/2003). Per ulteriori informazioni al riguardo, La invitiamo a far riferimento all’Allegato 2 alla presente lettera.
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Cordiali saluti,
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BUNGE ITALIA S.P.A.
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(1)
Allegato 1
(2)
LISTA DEI CREDITI [PLEASE INSERT THE RELEVANT DETAILS OF THE RECEIVABLES]
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Customer
name
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Customer
address
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Customer
number
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Invoice
number
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Due date
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Currency
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Invoice date
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Invoice
amount
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(3)
Allegato 2
(4)
Informativa Privacy ai sensi dell’art.
13 del d.lgs. 196/2003
La cessione dei Crediti, di cui alla presente notifica, ha comportato necessariamente il trasferimento a Rabobank Nederland anche dei dati personali - anagrafici, patrimoniali e reddituali - contenuti nei documenti e nelle evidenze informatiche connessi ai crediti e relativi ai debitori ceduti ed ai rispettivi garanti (i “
Dati Personali
”). Ciò premesso, Rabobank Nederland, in qualità di titolare del trattamento (il “
Titolare
”), è tenuta a fornire ai debitori ceduti, ai rispettivi garanti, ai loro successori ed aventi causa (gli “
Interessati
”) l’informativa di cui all’art. 13 del d.lgs. 196/2003 meglio noto come “Codice in materia di Protezione dei Dati Personali” (il “
Codice Privacy
”) ed assolve tale obbligo mediante la presente comunicazione effettuata a mezzo della Nostra Società, previo apposito incarico.
Pertanto, ai sensi e per gli effetti dell’art. 13 del Codice Privacy, la Nostra Società - in nome e per conto proprio nonché di Rabobank Nederland e degli altri soggetti di seguito individuati - informa che i Dati Personali degli Interessati contenuti nei documenti relativi a ciascun credito ceduto saranno trattati esclusivamente nell’ambito della ordinaria attività del Titolare e,
inter alia,
per adempiere agli obblighi previsti dalla legge o dai regolamenti nonché con finalità connesse e strumentali ai rapporti con i debitori/garanti.
Il trattamento dei Dati Personali avverrà mediante elaborazioni manuali o strumenti elettronici e comunque, in modo da garantire la sicurezza e la riservatezza dei Dati Personali stessi.
I Dati Personali potranno, altresì, essere comunicati - in ogni momento — a Bunge Securitization, per la sola realizzazione dell’operazione di
factoring
e dell’esercizio dei diritti ad essa spettanti in relazione ai Crediti, nonché a soggetti volti a realizzare le finalità sopra elencate nonché le finalità relative, tra le altre, all’espletamento dei servizi di cassa e pagamento e ad ogni attività di consulenza anche legale che dovesse rendersi necessaria in questo ambito.
I soggetti appartenenti alle categorie ai quali i dati potranno essere comunicati utilizzeranno i dati in qualità di autonomi titolari del trattamento, in piena autonomia e nel rispetto delle disposizioni del Codice Privacy. In particolare, Bunge Finance B.V., operando in qualità di
servicer
per la gestione dei crediti e del relativo incasso, e la Nostra Società nella sua qualità di
sub-servicer
, su apposita delega del
servicer
, tratteranno i dati in qualità di Responsabili del trattamento. Possono altresì venire a conoscenza dei Dati Personali in qualità di incaricati del trattamento — nei limiti dello svolgimento delle mansioni assegnate — persone fisiche appartenenti alle categorie dei consulenti e/o dei dipendenti del Titolare e/o dei Responsabili stessi. L’elenco completo ed aggiornato dei soggetti ai quali i Dati Personali possono essere comunicati e di quelli che ne possono venire a conoscenza possono essere consultati in ogni momento inoltrando apposita richiesta al Titolare o ai Responsabili del trattamento. I Dati Personali potranno anche essere comunicati all’estero per dette finalità ma solo a soggetti che operino in Paesi appartenenti all’Unione Europea. I Dati Personali non saranno oggetto di diffusione.
La Nostra Società informa, infine, che la legge attribuisce a ciascuno degli Interessati gli specifici diritti di cui all’art. 7 del Codice in materia di Protezione dei Dati Personali che possono essere esercitati rivolgendosi ai Responsabili del Trattamento ed in particolare: a Bunge Finance B.V., presso la propria sede legale in Weena 320,3012 NJ Rotterdam, the Netherlandsor o ai seguenti recapiti: numero di fax +31 10 217 6652 e numero di telefono +31 10 217 6652, o, alternativamente, a Bunge Italia S.p.A., presso la propria sede legale in Viale G. di Vittorio, 62, Ravenna, Italia o ai seguenti recapiti: numero di fax +39 0544539030 e numero di telefono +39 0544696311.
I nostri uffici resteranno a Vostra disposizione per qualunque esigenza ai recapiti anzidetti.
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Con i migliori saluti,
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BUNGE ITALIA S.P.A.
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EXHIBIT E
FORM OF ITALIAN MONTHLY NOTICE OF ASSIGNMENT
(Attached)
Exhibit D — Italian First Notice of Assignment
FORM OF NOTICE OF ASSIGNMENT
(ENGLISH)
To: [
·
] (Assigned Debtor)
[PLEASE INSERT THE RELEVANT DETAILS OF EACH OBLIGOR]
From:
Bunge Italia S.p.A.
Viale G. di Vittorio, 62
Ravenna
Italy
, 2011
Dear Sirs,
Re: Notice of assignment of receivables in accordance with Articles 1248, 1264 and 1265 of the Italian Civil Code - Instructions of payment - Information relating to personal data
We hereby inform to you that, in the context of the securitization transaction (whose implementation by
Bunge Italia S.p.A.
(the “
Company
”) has been communicated to you by our letter dated [
·
] 2011, the Company has assigned:
·
all the receivables originated from our commercial agreements in place during the last previous month (i.e. from [
·
] to [
·
]) — as also evidenced in each invoice sent to you during the last previous month (the “
Receivables
”),
to Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., a bank having registered office in
Croeselaan, 18, Utrecht 3521 CB, Netherlands
(hereinafter, “
Rabobank Nederland
”) pursuant to an agreement named “Italian Receivables Purchase Agreement” date 1
st
June 2011, governed by law 52/91. We also inform you, that in the context of the above mentioned securitization and in compliance with the agreement named “Italian Intermediate Transfer Agreement” also dated 1
st
June 2011, the Receivables have been subsequently assigned by Rabobank Nederland to Bunge Securitization B.V. (hereinafter “
Bunge Securitization
”), a company having registered office in De Lairessestraat 154, 1075 HL Amsterdam, The Netherlands and at the end, have been (re)assigned by way of security to Rabobank Nederland (
which is the ultimate owner of the Receivables
), in its capacity as administrative agent
(mandatario)
of the
secured parties (the “
Administrative Agent
”).
In our capacity as sub-servicer, we continue to conduct, in the name and on behalf of the Administrative Agent, the servicing, collection and administration of the Receivables and for such
reason we kindly ask you to continue to make any payments, due in relation to the Receivables on
the following bank account IBAN [
·
] opened in the name of Bunge Italia S.p.A. with [
·
]
.
Please note that, as of today and up to different notice, pursuant to article 1260 of the Italian Civil Code,
any payment made to an entity other than Bunge Italia S.p.A. (on the Bank Account designated above) shall not be considered able to redeem your debt.
We hereby also inform you that your personal data will be continued to be treated in compliance with the relevant laws and regulations, pursuant to the provisions of the Privacy Code (legislative decree 196/2003), as already communicated to you with our previous correspondence. For your convenience the information already given to you for data protection purposes is (re)attached hereto as Schedule 1.
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Yours faithfully,
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BUNGE ITALIA S.P.A.
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Schedule 1
Information relating to personal data in accordance with Article 13 of
Legislative Decree No. 196 of 30 June 2003
Pursuant to article 13, paragraphs 1 and 2 of Legislative Decree No 196 of 30 June 2003 (known as the “
Privacy Code
”), and in relation to the processing of your personal data, our Company notifies you the following.
As a consequence of the transfer hereto, also the personal data connected to the assigned receivables, the related assigned debtors and the related guarantors (the “
Personal Data
”) have been transferred to
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. (“
Rabobank Nederland
”
), which has become “
Data Controller
” (
Titolare del trattamento
) as provided for by article 28 of the Privacy Code.
Rabobank Nederland
, in its capacity as Data Controller, shall provide to the assigned debtors, the related guarantors and related successors (the “
Interest Parties
”) the privacy notice provided for pursuant to article 13 of the Privacy Code and complies with this obligation through such communication carried out by our Company, upon a specific mandate duly given to it.
In the light of the foregoing, your Personal Data will be processed in printed, computing and telematic form for the following purposes: (i) in connection with the ordinary business of the Data Controller; (ii) performance of contractual and lawful obligations and (iii) purposes connected with relationship with the debtors and related guarantor.
Your Personal Data may be disclosed at any time, and consequently processed, strictly in accordance with the above-mentioned purposes, by the following subjects: (i) Bunge Securitization, for the sole purposes of carrying out the Factoring Transaction and exercising the rights connected to the Receivables, as well as (ii) other entities for the purposes above mentioned and for the collection and payment services and any advice activity (including legal advice activity) in relation thereto.
The subjects belonging to the categories allowed to receive Personal Data shall use the same Personal Data as autonomous Data Controller, in full autonomy and in compliance with the Privacy Code. In particular Bunge Finance B.V., acting in its capacity as servicer for the management of the Receivables and the relevant cash and the Company acting in its capacity as sub-servicer, duly appointed by the servicer, will be entitled to process the Personal Data in their capacities as Data Processors. Personal Data may also be known by individuals belonging to the categories of consultants and/or employees of the Data Controller or Data Processors themselves in their capacity as persons in charge of the processing — and within the limits of the activities assigned and carried by them. The complete and updated list of the subjects whom Personal Data can be communicated or those who may have knowledge of them can be consulted in every moment filing a specific request to the Data Controller or the Data Processors. Personal Data can be communicated abroad for the above mentioned purposes, but only to subjects acting in countries which are member of the European Union. Personal Data shall not be disclosed.
Ultimately, our Company hereby informs you that Italian Law grants to each of the Interest Parties the specific rights pursuant to article 7 of the Privacy Code that can be exercised turning, in their capacities as Data Processor, to (i) Bunge Finance B.V., at its registered office in
Weena 320
,
3012 NJ Rotterdam, the Netherlands
or, or to the following numbers: fax number +31 10 217 6652 and phone
number +31 10 217 6652, or, alternatively, (ii) Bunge Italia S.p.A., at its registered office in Viale G. di Vittorio, 62, Ravenna, Italia, or to the following numbers: fax number +39 0544539030 and phone number +39 0544696311.
Our offices remain at your disposal for whats0ever need.
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Best regards,
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BUNGE ITALIA S.P.A.
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FORM OF NOTICE OF ASSIGNMENT
(ENGLISH)
A:
[
·
]
[PLEASE INSERT THE RELEVANT DETAILS OF EACH OBLIGOR]
Da:
Bunge Italia S.p.A.
Viale G. di Vittorio, 62
Ravenna
Italia
, 2011
Gentile Cliente,
Oggetto:
Notifica di cessione di crediti ai sensi e per gli effetti degli articoli 1248, 1264 e 1265 del Codice Civile — Istruzioni di pagamento — Informativa in materia di dati personali
Con la presente, Le confermiamo e ulteriormente notifichiamo che nell’ambito del programma di cessione di crediti commerciali
(la cui realizzazione da parte di Bunge Italia S.p.A. (la “
Società
”) Le è stata precedentemente notificata con lettera inviata in data [
·
] 2011), la Società ha ceduto:
·
tutti i crediti
derivanti dai contratti in essere tra Voi e la nostra Società nel corso degli ultimi 30 giorni (i.e. da [
·
] a [
·
]) — così come anche specificati ed ulteriormente identificati in ciascuna fattura che Le abbiamo inviato nel corso degli ultimi 30 giorni (i “
Crediti
”),
a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., una banca avente sede legale in Croeselaan, 18, Utrecht 3521 CB, Netherlands (“
Rabobank Nederland
”), ai sensi di un contratto denominato “
Italian Receivables Purchase Agreement
”, datato 1 giugno 2011 e regolato dalla l. 52/91. La informiamo altresì che nel contesto della medesima operazione di cessione di crediti commerciali, nonché ai sensi di un contratto denominato “
Italian
Intermediate Transfer Agreement
” stipulato in pari data, i Crediti sono stati oggetto di un’ulteriore cessione da Rabobank Nederland in favore di Bunge Securitization B.V. (“
Bunge Securitization
”) una società con sede sociale in De Lairessestraat 154, 1075 HL Amsterdam, The Netherlands, e, infine, (ri)ceduti in garanzia a Rabobank Nederland (
il quale è il titolare ultimo dei Crediti
), nella sua qualità di mandatario (
administrative agent
) delle controparti contrattuali garantite (l’”
Administrative Agent
”).
In qualità di
sub-servicer
, abbiamo continuato a svolgere, in nome e per conto dell’Administrative Agent, l’incarico di gestire, incassare e amministrare i Crediti, e, pertanto, La preghiamo di continuare ad effettuare qualsiasi pagamento, dovuto in relazione ai Crediti,
sul conto corrente IBAN [
·
], aperto in nome di Bunge Italia S.p.A. presso [
·
]
.
Per l’effetto, Le chiediamo la gentilezza di continuare ad effettuare ogni e qualsiasi Vostro futuro pagamento dovuto in relazione ai Crediti, sino ad eventuale e diversa comunicazione, sul conto corrente IBAN [
·
], aperto in nome di Bunge Italia S.p.A. presso [
·
], come comunicatole con precedente corrispondenza.
La preghiamo di notare che, ai sensi e per gli effetti dell’art. 1260, cod. civ.,
ogni pagamento effettuato nei confronti di soggetto diverso da Bunge Italia S.p.A. (nel conto corrente indicato al paragrafo che precede)
non potrà essere considerato liberatorio della Sua posizione debitoria
.
Con l’occasione, La informiamo altresì che i Suoi dati personali verranno trattati nel rispetto della normativa vigente conformemente a quanto previsto dal Codice in Materia di Dati Personali (d. lgs. 196/2003), come comunicatoLe con precedente corrispondenza. Per Sua comodità, le informazioni al riguardo, precedentemente trasmesse, sono nuovamente allegate alla presente lettera all’Allegato 1.
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Cordiali saluti,
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BUNGE ITALIA S.P.A.
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Allegato 1
(5)
Informativa Privacy ai sensi dell’art.
13 del d.lgs. 196/2003
La cessione dei Crediti, di cui alla presente notifica, ha comportato necessariamente il trasferimento a Rabobank Nederland anche dei dati personali - anagrafici, patrimoniali e reddituali - contenuti nei documenti e nelle evidenze informatiche connessi ai crediti e relativi ai debitori ceduti ed ai rispettivi garanti (i “
Dati Personali
”). Ciò premesso, Rabobank Nederland, in qualità di titolare del trattamento (il “
Titolare
”), è tenuta a fornire ai debitori ceduti, ai rispettivi garanti, ai loro successori ed aventi causa (gli “
Interessati
”) l’informativa di cui all’art. 13 del d.lgs. 196/2003 meglio noto come “Codice in materia di Protezione dei Dati Personali” (il “
Codice Privacy
”) ed assolve tale obbligo mediante la presente comunicazione effettuata a mezzo della Nostra Società, previo apposito incarico.
Pertanto, ai sensi e per gli effetti dell’art. 13 del Codice Privacy, la Nostra Società - in nome e per conto proprio nonché di Rabobank Nederland e degli altri soggetti di seguito individuati - informa che i Dati Personali degli Interessati contenuti nei documenti relativi a ciascun credito ceduto saranno trattati esclusivamente nell’ambito della ordinaria attività del Titolare e,
inter alia,
per adempiere agli obblighi previsti dalla legge o dai regolamenti nonché con finalità connesse e strumentali ai rapporti con i debitori/garanti.
Il trattamento dei Dati Personali avverrà mediante elaborazioni manuali o strumenti elettronici e comunque, in modo da garantire la sicurezza e la riservatezza dei Dati Personali stessi.
I Dati Personali potranno, altresì, essere comunicati - in ogni momento — a Bunge Securitization, per la sola realizzazione dell’operazione di
factoring
e dell’esercizio dei diritti ad essa spettanti in relazione ai Crediti, nonché a soggetti volti a realizzare le finalità sopra elencate nonché le finalità relative, tra le altre, all’espletamento dei servizi di cassa e pagamento e ad ogni attività di consulenza anche legale che dovesse rendersi necessaria in questo ambito.
I soggetti appartenenti alle categorie ai quali i dati potranno essere comunicati utilizzeranno i dati in qualità di autonomi titolari del trattamento, in piena autonomia e nel rispetto delle disposizioni del Codice Privacy. In particolare, Bunge Finance B.V., operando in qualità di
servicer
per la gestione dei crediti e del relativo incasso, e la Nostra Società nella sua qualità di
sub-servicer
, su apposita delega del
servicer
, tratteranno i dati in qualità di Responsabili del trattamento. Possono altresì venire a conoscenza dei Dati Personali in qualità di incaricati del trattamento — nei limiti dello svolgimento delle mansioni assegnate — persone fisiche appartenenti alle categorie dei consulenti e/o dei dipendenti del Titolare e/o dei Responsabili stessi. L’elenco completo ed aggiornato dei soggetti ai quali i Dati Personali possono essere comunicati e di quelli che ne possono venire a conoscenza possono essere consultati in ogni momento inoltrando apposita richiesta al Titolare o ai Responsabili del trattamento. I Dati Personali potranno anche essere comunicati all’estero per dette finalità ma solo a soggetti che operino in Paesi appartenenti all’Unione Europea. I Dati Personali non saranno oggetto di diffusione.
La Nostra Società informa, infine, che la legge attribuisce a ciascuno degli Interessati gli specifici diritti di cui all’art. 7 del Codice in materia di Protezione dei Dati Personali che possono essere esercitati rivolgendosi ai Responsabili del Trattamento ed in particolare: a Bunge Finance B.V., presso la propria sede legale in Weena 320,3012 NJ Rotterdam, the Netherlandsor o ai seguenti recapiti: numero di fax +31 10 217 6652 e numero di telefono +31 10 217 6652, o, alternativamente, a Bunge Italia S.p.A., presso la propria sede legale in Viale G. di Vittorio, 62, Ravenna, Italia o ai seguenti recapiti: numero di fax +39 0544539030 e numero di telefono +39 0544696311.
I nostri uffici resteranno a Vostra disposizione per qualunque esigenza ai recapiti anzidetti.
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Con i migliori saluti,
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BUNGE ITALIA S.P.A.
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EXHIBIT F
FORM JOINDER AGREEMENT
(Attached).
Exhibit F — Form of Joinder Agreement
FORM OF JOINDER AGREEMENT
Dated [
·
] 20[
·
]
Reference is made to the Servicing Agreement, dated as of June 1, 2011 (the
“
Servicing Agreement
”
), by and among Bunge Securitization B.V. (the
“
Seller
”
), Bunge North America Capital, Inc. (the “
U.S. Intermediate Transferor
”), Cooperatieve Centrale Raiffeisen-Boerenleenbank (the
“
Italian Intermediate Transferor
”
), the Persons set forth on Schedule 1 thereto as Sub-Servicers, as Bunge Finance B.V. (the
“
Master Servicer
”
), and Cooperatieve Centrale Raiffeisen-Boerenleenbank (the
“
Administrative Agent
”
). Terms defined in the Servicing Agreement are used herein with the same meaning.
[
·
] (the “
Sub-Servicer
”) hereby agrees as follows:
1.
By execution and delivery of this
Joinder Agreement
, the Sub-Servicer elects to become a “Sub-Servicer” and “Originator” under the Servicing Agreement.
2.
The effective date (the “
Effective Date
”) of this Joinder Agreement shall be the later of (i) the date on which a fully executed copy of this Joinder Agreement is delivered to the Administrative Agent and (ii) the date of this Joinder Agreement.
3.
By executing and delivering this Joinder Agreement, the Sub-Servicer confirms to and agrees with each other party to the Servicing Agreement that (i) it has received a copy of the Servicing Agreement; (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Servicing Agreement and the documents or agreements to be delivered thereunder are required to be performed by it as a Sub-Servicer (including, without limitation, those obligations and duties set forth in Section 2.5 of the Servicing Agreement); (iv) its address and telecopier number for notices shall be the office set forth beneath its name on the signature pages of this Joinder Agreement; and (v) this Joinder Agreement has been duly authorized, executed and delivered by it pursuant to its applicable corporate powers and constitutes the legal, valid and binding obligation of the Sub-Servicer, subject to any limitation on the enforceability thereof against the Sub-Servicer arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law).
4.
This Joinder Agreement may be executed by one or more of the parties on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
5.
This Joinder Agreement and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the law of the State of New York, other than those conflict of law provisions that would defer to the substantive laws of another jurisdiction. This governing law election has been made by the parties in reliance (at least in part) on Section 5-1401 of the General Obligation Law of the State of New York, as amended (as and to the extent applicable), and other applicable Law.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
EXECUTION:
The parties hereto have caused this Joinder Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
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SUB-SERVICER:
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[NAME(S)]
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By:
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Name:
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Title:
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Address and telecopier number for notices:
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[Address]
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[Telecopier No.]
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CONFIDENTIAL TREATMENT FOR PORTIONS OF THIS EXHIBIT HAS BEEN REQUESTED
FROM THE SECURITIES AND EXCHANGE COMMISSION
Exhibit 10.7
EXECUTION COPY
Dated June 1, 2011
(1)
BUNGE NORTH AMERICA, INC.
, as a Seller
(2)
BUNGE OILS, INC.
, as a Seller
(3)
BUNGE NORTH AMERICA (EAST), LLC
, as a Seller
(4)
BUNGE MILLING, INC.
, as a Seller
(5)
BUNGE NORTH AMERICA (OPD WEST), INC.
, as a Seller
(6)
BUNGE FINANCE B.V.
, as Seller Agent
(7)
BUNGE NORTH AMERICA CAPITAL, INC.
, as the Buyer
U.S. RECEIVABLES PURCHASE AGREEMENT
CONTENTS
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Section
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Page
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1.
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DEFINITIONS AND INTERPRETATION
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1
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1.1
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Defined Terms
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1
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1.2
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Receivables Transfer Agreement
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5
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2.
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AMOUNTS AND TERMS OF PURCHASES
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5
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2.1
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Agreement to Purchase
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5
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2.2
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Payment for the Purchases
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7
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2.3
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Deemed Collections
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9
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2.4
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Payments and Computations, Etc.
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10
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2.5
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Records
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11
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2.6
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Characterization; Grant of Security Interest
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12
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2.7
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Repurchases
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13
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2.8
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Certain Allocations
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14
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2.9
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No Recourse
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15
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3.
|
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CONDITIONS TO PURCHASES
|
15
|
|
|
|
|
|
|
|
|
3.1
|
Conditions Precedent to Initial Purchase from the Sellers
|
15
|
|
|
|
3.2
|
Condition Precedent to Each Seller’s Obligations
|
15
|
|
|
|
3.3
|
Conditions Precedent to the Addition of an Additional Seller
|
15
|
|
|
|
|
|
|
|
4.
|
|
REPRESENTATIONS AND WARRANTIES
|
18
|
|
|
|
|
|
|
|
|
4.1
|
Representations and Warranties of the Sellers
|
18
|
|
|
|
4.2
|
Representations and Warranties of the Buyer
|
23
|
|
|
|
4.3
|
Perfection Representations, Warranties and Covenants
|
24
|
|
|
|
|
|
|
|
5.
|
|
COVENANTS OF THE SELLERS
|
24
|
|
|
|
|
|
|
|
|
5.1
|
Compliance with Laws, Etc.
|
24
|
|
|
|
5.2
|
Records and Procedures
|
25
|
|
|
|
5.3
|
Performance and Compliance with Contracts and Credit and Collection Policies
|
25
|
|
|
|
5.4
|
Sales, Liens, Etc.
|
25
|
|
|
|
5.5
|
Extension or Amendment of Receivables and Contracts
|
25
|
|
|
|
5.6
|
Change in Credit and Collection Policies
|
26
|
|
|
|
5.7
|
Change in U.S. Collection Accounts
|
26
|
|
|
|
5.8
|
U.S. Account Security Agreements
|
26
|
|
|
|
5.9
|
[Reserved.]
|
26
|
|
|
|
5.10
|
[Reserved.]
|
26
|
|
|
|
5.11
|
Amendments
|
26
|
|
|
|
5.12
|
Deposits to U.S. Collection Accounts
|
26
|
|
|
|
5.13
|
Inspections; Annual Agreed Upon Procedures
|
27
|
|
|
|
5.14
|
Further Assurances; Change in Name or Jurisdiction of Organization, Etc.
|
28
|
|
|
|
5.15
|
Reporting Requirements
|
29
|
|
|
|
5.16
|
Mergers, Etc.
|
30
|
i
CONTENTS
|
Section
|
|
Page
|
|
|
|
|
|
|
5.17
|
Taxes
|
31
|
|
|
5.18
|
[Reserved.]
|
31
|
|
|
5.19
|
Licenses, Etc.
|
31
|
|
|
5.20
|
[Reserved.]
|
31
|
|
|
5.21
|
Change in Auditors or Accounting Policies
|
31
|
|
|
5.22
|
Power of Attorney
|
31
|
|
|
5.23
|
Negotiable Instruments
|
32
|
|
|
5.24
|
Separateness
|
32
|
|
|
5.25
|
Treatment as Sales
|
33
|
|
|
|
|
|
|
6.
|
ADMINISTRATION AND COLLECTION
|
33
|
|
|
|
|
|
|
6.1
|
Designation of Master Servicer
|
33
|
|
|
6.2
|
Certain Rights of the Buyer
|
33
|
|
|
6.3
|
Rights and Remedies
|
35
|
|
|
|
|
|
|
7.
|
SELLER TERMINATION EVENTS; EFFECT OF TERMINATION DATE
|
36
|
|
|
|
|
|
|
7.1
|
Seller Termination Events
|
36
|
|
|
7.2
|
Effect of Termination Date
|
37
|
|
|
|
|
|
|
8.
|
INDEMNIFICATION
|
38
|
|
|
|
|
|
|
8.1
|
Indemnities by the Sellers
|
38
|
|
|
8.2
|
Taxes
|
39
|
|
|
|
|
|
|
9.
|
MISCELLANEOUS
|
41
|
|
|
|
|
|
|
9.1
|
Waiver, Amendments, Etc.
|
41
|
|
|
9.2
|
Notices, Etc.
|
42
|
|
|
9.3
|
Binding effect; Assignability
|
42
|
|
|
9.4
|
Costs and Expenses
|
43
|
|
|
9.5
|
Judgment Currency
|
43
|
|
|
9.6
|
No Proceedings
|
44
|
|
|
9.7
|
Governing Law
|
44
|
|
|
9.8
|
Third Party Beneficiary
|
45
|
|
|
9.9
|
Restriction on Payments; Waiver of Setoff
|
46
|
|
|
9.10
|
Entire Agreement; Severability; Execution in Counterparts
|
46
|
|
|
9.11
|
Consent to Jurisdiction
|
46
|
|
|
9.12
|
Additional Sellers
|
47
|
|
|
9.13
|
Termination of Seller
|
47
|
|
|
9.14
|
Waiver of Jury Trial
|
47
|
|
|
9.15
|
Responsible Officer Certificates; No Recourse
|
48
|
ii
Schedule
|
1.
|
Seller Information
|
|
|
|
|
2.
|
Perfection Representations, Warranties and Covenants
|
Exhibits
|
A.
|
Form of Assignment of Repurchased Receivables
|
|
|
|
|
B.
|
Form of U.S. Account Security Agreement
|
|
|
|
|
C.
|
Form of Additional Seller Supplement
|
iii
THIS AGREEMENT
is dated June 1, 2011 and made by and between:
(1)
BUNGE NORTH AMERICA, INC.
, a corporation organized under the laws of the State of New York;
(2)
BUNGE OILS, INC.
, a corporation organized under the laws of the State of Delaware;
(3)
BUNGE NORTH AMERICA (EAST), LLC
, a limited liability company organized under the laws of the State of Delaware;
(4)
BUNGE MILLING, INC.
, a corporation organized under the laws of the State of Illinois;
(5)
BUNGE NORTH AMERICA (OPD WEST), INC.
, a corporation organized under the laws of the State of Delaware (each of the foregoing Persons in
clauses (1)
-
(5)
and any Person that becomes a party hereto as an Additional Seller, a
“
Seller
”
and, collectively, together with such Additional Sellers, the
“
Sellers
”
);
(6)
BUNGE FINANCE B.V.
, a private limited liability company organized under the laws of the Netherlands (the
“
Seller Agent
”
); and
(7)
BUNGE NORTH AMERICA CAPITAL, INC.
, a corporation organized under the laws of the State of Delaware (the
“
Buyer
”
).
BACKGROUND:
(A)
Subject to the terms and conditions of this Agreement, the Sellers intend to irrevocably transfer to the Buyer from time to time all of their respective right, title and interest in, to and under certain Receivables and Receivables Property related thereto.
(B)
Subject to the terms and conditions of this Agreement, the Buyer desires to irrevocably acquire from time to time all of the Sellers’ right, title and interest in, to and under such Receivables and Receivables Property from the Sellers.
(C)
The Sellers and the Buyer intend that the transfers of such Receivables and Receivables Property from the Sellers to the Buyer be true sales (and not a secured financing) providing the Buyer with the full benefits of ownership of the Receivables and Receivables Property.
(D)
Each Seller has been, or in the case of any Additional Seller will be, appointed to act as Sub-Servicer in respect of the Acquired Receivables originated by such Seller, in each case, pursuant to the Servicing Agreement.
IT IS AGREED that:
1.
DEFINITIONS AND INTERPRETATION
1.1
Defined Terms
The following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Acquired Receivable”
means each and every Receivable that existed and was owing to a Seller as of the opening of such Seller’s business on the Initial Purchase Date applicable to such Seller and each Receivable created or originated by such Seller from the opening of such Seller’s business on the Initial Purchase Date applicable to such Seller to and including such Seller’s Termination Date; provided that (i) no Receivable the Obligor of which is included on Schedule 9 (
Excluded Obligors
) attached to the Receivables Transfer Agreement on the Effective Date or created or acquired by a Seller on or after the date the Administrative Agent has received written notice from such Seller or the Seller Agent including such Obligor on the revised Schedule 9 (
Excluded Obligors
) shall be an Acquired Receivable hereunder unless in either case, the Administrative Agent has received written notice from such Seller or the Seller Agent removing such Obligor from the revised Schedule 9 (
Excluded Obligors
) and (ii) no Receivable constituting a Repurchased Receivable shall be considered an Acquired Receivable hereunder after such Repurchased Receivable’s Repurchase Date.
“Additional Seller”
means any direct or indirect Subsidiary of Bunge Limited which is organized under the laws of a State in the United States of America and becomes a party hereto in accordance with
Section 3.3
(
Conditions Precedent to the Addition of an Additional Seller
) and
Section 9.12
(
Additional Sellers
).
“Additional Seller Supplement”
means an instrument, substantially in the form of Exhibit C (
Form of Additional Seller Supplement
) hereto (with such additional provisions as may be reasonably requested by the Buyer, the Seller Agent or the Administrative Agent), pursuant to which an Additional Seller becomes a Seller party hereto.
“Advanced Purchase Price”
has the meaning specified in
Section 2.2(b)
.
“Assignment of Repurchased Receivables”
means an assignment in the form attached hereto as
Exhibit A
(
Form of Assignment of Repurchased Receivables
).
“Deferred Purchase Price”
has the meaning specified in
Section 2.2(b)
.
“Discount Percentage”
means, with respect to the Purchase of any Receivable and any period, a percentage equal to the percentage equivalent of Bunge Securitization B.V.’s expected cost of funds for such period (including Yield under the Receivables Transfer Agreement, interest under the Subordinated Loan Agreement, Servicing Fees, and other fees, costs and expenses of Bunge Securitization B.V. for such period);
provided
that the Buyer and a Seller may agree in writing to increase or decrease the Discount Percentage for future Purchases if the Buyer and such Seller, in their reasonable good faith judgment, determine that the adjusted Discount Percentage would more accurately reflect the fair market value of the Receivables being sold hereunder.
“Effective Date”
means, with respect to (a) each Seller that is a party hereto on the date hereof, the Closing Date and (b) each Additional Seller, the Seller Addition Date with respect to such Additional Seller.
“ERISA”
means the United States Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, together with the regulations
2
thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.
“ERISA Affiliate”
means a corporation, trade or business that is, along with a Seller, a member of a controlled group of corporations or a controlled group of trades or businesses, as described in section 414(b), (c), (m) and (o) of the Internal Revenue Code of 1986, as amended, or section 4001(b) of ERISA.
“Indemnified Amounts”
has the meaning specified in
Section 8.1
(
Indemnities by the Sellers
).
“Indemnified Party”
has the meaning specified in
Section 8.1
(
Indemnities by the Sellers
).
“Information”
has the meaning specified in
Section 4.1(j)
(
Representations and Warranties of the Sellers
).
“Initial Purchase Date”
means the initial Purchase Date (as agreed upon between the Seller and the Buyer) on which a Seller sells Receivables and the related Receivables Property to the Buyer pursuant to
Section 2
(
Amounts and Terms of Purchases
).
“
Plan
”
means any employee pension benefit plan (other than a multiemployer plan as defined in section 4001(a)(3) of ERISA) subject to the provisions of Title IV of ERISA or section 412 of the IRC and in respect of which any Seller or any ERISA Affiliate is (or, if such plan were terminated, would under section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Potential Seller Termination Event”
means an event that but for notice or lapse of time or both would constitute a Seller Termination Event.
“Purchase”
means a purchase by the Buyer of Receivables and the related Receivables Property from a Seller pursuant to
Section 2
(
Amounts and Terms of Purchases
).
“Purchase Date”
means each day on which a Purchase is made pursuant to
Section 2
(
Amounts and Terms of Purchases
).
“Purchase Price”
for any Purchase pursuant to
Section 2
(
Amounts and Terms of Purchases
) means an amount equal to the product of (a) the aggregate Unpaid Balance of all of the Receivables of the relevant Seller that are the subject of such Purchase, and (b) 100% minus the Discount Percentage.
“Receivables Property”
has the meaning specified in
Section 2.1(a)
(
Agreement to Purchase
).
“Receivables Transfer Agreement”
means the Receivables Transfer Agreement, dated the date hereof, made between (1) Bunge Securitization B.V., (2) Bunge Finance B.V., as the Master Servicer, (3) Bunge Limited, as the Performance Undertaking Provider, (4) the Persons from time to time party thereto as Conduit Purchasers, Committed Purchasers
3
and Purchaser Agents, and (5) Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., as the Administrative Agent.
“Records”
has the meaning specified in
Section 2.5(a)
(
Records
).
“Repurchase Date”
has the meaning specified in
Section 2.7(d)(i)
(
Repurchases
).
“Repurchase Price”
has the meaning specified in
Section 2.7(c)
(
Repurchases
).
“Repurchased Receivable”
means any Receivable which has been retransferred to or otherwise reacquired by a Seller pursuant to, and in accordance with,
Section 2.7
(
Repurchases
).
“Seller Addition Date”
has the meaning specified in
Section 3.3
(
Conditions Precedent to the Addition of an Additional Seller
).
“Seller Event”
means a Seller Termination Event or Potential Seller Termination Event (including any Potential Facility Termination Event).
“Seller Payout Date”
means, with respect to any Seller, the earlier of (a) the Final Payout Date or (b) the latest of (i) the date described in
Section 9.13
(
Termination of Seller
) on which such Seller shall cease to have the right to transfer Receivables to the Buyer hereunder, (ii) the date on which each Acquired Receivable originated by such Seller has been paid in full or such Acquired Receivable has become a Defaulted Receivable and the Buyer has received all amounts it reasonably expects to receive in respect of such Defaulted Receivable and its Related Security (including the proceeds of any claim under a credit insurance policy), or (iii) the date on which such Seller has made all payments and deposits required to be made by it under this Agreement and the other Transaction Documents to which it is a party.
“Seller Termination Event”
has the meaning specified in
Section 7.1
(
Seller Termination Events
).
“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 salable 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 such 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 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.
4
“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.
“Termination Date”
means, with respect to any Seller, the earliest of (a) the Facility Termination Date, (b) the date on which the Termination Date is declared or automatically occurs with respect to such Seller pursuant to
Section 7.1
(
Seller Termination Events
), or (c) the date described in
Section 9.13
(
Termination of Seller
) on which such Seller shall cease to have the right to transfer Receivables to the Buyer hereunder.
“Uncollectible”
means an Acquired Receivable which is not collectible because of the financial inability of the relevant Obligor to pay such Acquired Receivable.
“U.S. Account Security Agreement”
means an account control agreement substantially in the form of
Exhibit B
(
Form of U.S. Account Security Agreement
) hereto.
1.2
Receivables Transfer Agreement
Unless otherwise defined herein, capitalized terms which are used herein shall have the meanings assigned to such terms in
Section 1.1
(
Certain Defined Terms
) of the Receivables Transfer Agreement. In the case of any inconsistency between such terms and the terms defined in
Section 1.1
of this Agreement, the terms defined in
Section 1.1
of this Agreement shall prevail for all purposes of this Agreement. The principles of interpretation set forth in
Section 1.2
(
Other Terms
) and
1.3
(
Computation of Time Periods
) of the Receivables Transfer Agreement shall apply to this Agreement as if fully set forth herein.
2.
AMOUNTS AND TERMS OF PURCHASES
2.1
Agreement to Purchase
(a)
Subject to the terms and conditions of this Agreement, each Seller, on the Initial Purchase Date applicable to such Seller and on each Purchase Date thereafter, will sell and otherwise assign, transfer and convey to the Buyer, and the Buyer hereby agrees to purchase and otherwise acquire without recourse except to the extent provided herein, all of such Seller’s present and future right, title and interest in, to and under the following:
(i)
each and every Acquired Receivable;
(ii)
all Collections with respect to such Acquired Receivables;
(iii)
all Related Security with respect to such Acquired Receivables; and
5
(iv)
all proceeds of or payments in respect of any and all of the foregoing clauses (i) through (iii) (including Collections);
(the property described in
Section 2.1(a)(ii)
,
(iii)
and
(iv)
is collectively referred to as the
“
Receivables Property
”
).
(b)
Upon the origination of any Acquired Receivable by a Seller on or after the Initial Purchase Date of such Seller, all of the applicable Sellers’ right, title and interest in, to and under each and every Acquired Receivable and all Receivables Property with respect thereto shall be and hereby is immediately and automatically sold and otherwise assigned, transferred and conveyed to the Buyer without any further action by the applicable Seller or the Buyer or any other Person.
(c)
The Receivables to be purchased on any Purchase Date shall be identified on the books and records of the applicable Seller.
(d)
Notwithstanding anything herein to the contrary, the Buyer shall not, and shall not be obligated to, purchase or pay any Purchase Price for or otherwise purchase or acquire any Receivable or any Receivables Property, and no Seller shall accept the payment of the Purchase Price of any Receivable or any Receivables Property, unless at the time of such Purchase no Termination Date has occurred with respect to the applicable Seller or Sellers.
(e)
It is the intention of the parties hereto that each Purchase of Receivables and Receivables Property pursuant to this Agreement shall be treated as a purchase by the Buyer and a sale by the applicable Seller of such Receivables and Receivables Property with respect thereto, which sales are absolute and irrevocable and provide the Buyer with the full benefits of ownership of such Receivables and Receivables Property. Each sale of Receivables and Receivables Property hereunder is made without recourse to the applicable Seller;
provided
,
however
, that (i) each Seller shall be liable to the Buyer for all representations, warranties, covenants, deemed collection obligations and indemnities made or entered into by such Seller in or pursuant to the terms of this Agreement or the other Transaction Documents and (ii) no such sale constitutes, nor is it intended to result in, an assumption by the Buyer or any assignee thereof of, and the Buyer and such assignees shall not have, any obligation or liability of any Seller or any other Person to any Obligor or other customer or client of any Seller or otherwise arising in connection with the Receivables or Receivables Property or any other obligations of any Seller (including any obligation to perform any obligation of any Seller pursuant to or under any Receivables, Contract or other Receivables Property).
(f)
In connection with the foregoing sales, each Seller hereby authorizes the Buyer and its assigns to record and file from time to time, at such Seller’s expense, a financing statement or statements or other similar instruments (and continuation statements with respect to such financing statements and other similar instruments) with respect to (i) the Receivables sold or to be sold by such Seller to
6
the Buyer from time to time pursuant hereto and (ii) the Receivables Property with respect thereto, in each case, meeting the requirements of applicable Law in such manner and in such jurisdictions as are necessary or desirable to perfect and protect the interests of the Buyer created hereby under the UCC or any other applicable Law against all creditors of the Sellers. In addition, each Seller agrees that from time to time, at its expense, it will promptly, upon request, execute and deliver all further instruments and documents, and take all further actions that the Buyer or any Agent may reasonably request, in order to perfect, protect or more fully evidence the purchase of, or ownership by, the Buyer of the Acquired Receivables and the Receivables Property with respect thereto and its security interest in the U.S. Collection Accounts, including by filing a financing statement under the UCC or such other similar documents pursuant to any other applicable Law. In view of the intention of the parties hereto that the Purchases of Receivables and Receivables Property made hereunder shall constitute sales of such Receivables and Receivables Property, as applicable, rather than a loan secured by such Receivables and Receivables Property, each Seller agrees, at its own expense, on or prior to each Purchase Date, to (i) indicate clearly and unambiguously in its computer files, with a legend reasonably acceptable to the Buyer and the Administrative Agent, that the applicable Receivables and all Receivables Property with respect thereto have been transferred to the Buyer pursuant to this Agreement, further assigned by the Buyer to Bunge Securitization B.V. and further assigned by Bunge Securitization B.V. to the Administrative Agent (on behalf of the Purchasers) and (ii) note in its accounting records, with a legend reasonably acceptable to the Buyer, Bunge Securitization B.V. and the Administrative Agent, that the applicable Receivables and Receivables Property have been sold to the Buyer, assigned by the Buyer to Bunge Securitization B.V. and assigned by Bunge Securitization B.V. to the Administrative Agent (on behalf of the Purchasers).
2.2
Payment for the Purchases
(a)
Subject to the terms and conditions of this Agreement and the provisions specified in
Section 2.2(b)
below with respect to the permitted Deferred Purchase Price, the Purchase Price for each Purchase shall be paid by the Buyer in full on the applicable Purchase Date (including the Initial Purchase Date) in the manner specified in
Section 2.2(d)
.
(b)
The parties hereto intend the Purchase Price with respect to any Acquired Receivables and Receivables Property related thereto to represent fair consideration, reasonably equivalent value and fair market value of such Acquired Receivables and Receivables Property. In the event the parties determine that the calculation of the Purchase Price no longer represents fair market value, the parties hereto agree to adjust the calculation of the Discount Percentage to the extent necessary to cause such Purchase Price for any future Purchases of Receivables and Receivables Property to be such fair market value. The Sellers and the Buyer acknowledge and agree that the Purchase Price for any Purchase of Receivables shall be due and payable on the applicable Purchase Date for such
7
Receivable subject to the following provisions with respect to Advanced Purchase Price and Deferred Purchase Price. In the event that Collections on any date related to any Acquired Receivables previously sold by any Seller to the Buyer exceed the aggregate Purchase Prices payable by the Buyer to such Seller on such date, the Buyer may pay to such Seller or the Seller Agent on behalf of such Seller an amount equal to such excess as an advance payment on account of any Purchase Price that will or may be payable by the Buyer to such Seller on any following Purchase Date during the same Calculation Period (any such excess payment, an “
Advanced Purchase Price
”). The Seller Agent and each Seller acknowledges and agrees that any funds received by it from the Buyer as an Advanced Purchase Price for the Purchase of Receivables shall remain the Buyer’s property until applied to the future payment of a Purchase Price for Acquired Receivables on a Purchase Date. In the event that the aggregate amount of the Advanced Purchase Prices paid by the Buyer to any Seller or to the Seller Agent for the benefit of such Seller during any Calculation Period exceeds the aggregate Purchase Prices owed by the Buyer to such Seller during such Calculation Period, such Seller or the Seller Agent on its behalf shall on the Settlement Date immediately following the end of such Calculation Period repay to the Buyer an amount equal to such excess Advanced Purchase Prices. In addition, the Seller Agent shall track all funds received by each Seller and the Seller Agent from the Buyer as Advanced Purchase Prices and shall at no time permit the Buyer to transfer Advanced Purchase Prices (which have not been applied to the Purchase Price for Acquired Receivables) in excess of 10% of the Unpaid Balance of Acquired Receivables that qualify as Eligible Receivables with respect to each applicable Seller as set forth in the most-recent Portfolio Report. In the event that Collections on any date related to any Acquired Receivables previously sold by any Seller to the Buyer are less than the aggregate Purchase Prices payable by the Buyer to such Seller on such date, the Buyer may defer payment to such Seller or the Seller Agent on behalf of such Seller in an amount equal to such shortfall (any such shortfall, a “
Deferred Purchase Price
”), which Deferred Purchase Price shall be payable on the earlier of the date the Buyer has funds available therefor pursuant to
Section 2.2(d)
below and the immediately following Settlement Date. In addition, the Seller Agent shall track all such Deferred Purchase Price amounts and shall at no time permit the amount for any single Seller to exceed 10% of the Unpaid Balance of Acquired Receivables that qualify as Eligible Receivables of such Seller as set forth in the most-recent Portfolio Report. If at any time such 10% limitation would be exceeded, the Buyer shall immediately request a Subordinated Loan under the Subordinated Loan Agreement and pay the Seller or Seller Agent on its behalf such excess.
(c)
All amounts payable by the Buyer in respect of the Purchase Price of Receivables and Receivables Property shall be paid by the Buyer to an account designated by the Seller Agent on behalf of the applicable Seller (which direction may consist of standing instructions provided by the applicable Seller or Seller Agent to the Buyer that shall remain in effect until changed by the applicable Seller or Seller Agent in writing). Each of the Sellers hereby appoints the Seller Agent as its agent for purposes of receiving such payments and taking any actions hereunder
8
on its behalf and hereby authorizes the Buyer to make payments due to such Seller directly to, or as directed by, the Seller Agent. The Seller Agent hereby accepts and agrees to such appointment. Any such payment by the Buyer to or at the direction of the Seller Agent shall constitute a full and complete discharge of the Buyer’s liability for the amounts so paid, whether or not the proceeds of such payment are properly distributed by the Seller Agent to the applicable Seller for whose account such payment was made.
(d)
The Purchase Price for any Acquired Receivables and Receivables Property related thereto purchased hereunder shall be discharged by the Buyer on the applicable Purchase Date (including the Initial Purchase Date), subject to
Section 2.3(c)
, as follows:
(i)
any Advanced Purchase Price made by the Buyer to the applicable Seller during the then applicable Calculation Period which has not previously been applied to the Purchase Price for an Acquired Receivable shall be applied to the Purchase Price for such Acquired Receivables;
(ii)
to the extent available for such purpose, in cash from Collections received by the Buyer for reinvestment in Acquired Receivables in accordance with the Transaction Documents; and
(iii)
to the extent available for such purpose in accordance with the U.S. Intermediate Transfer Agreement, in cash from proceeds received thereunder.
(e)
Prior to the date on which the Master Servicer must prepare and deliver any Portfolio Report or Outstanding Receivables Report or assist in the preparation of, or take such action as required with respect to, any Portfolio Report or Outstanding Receivables Report pursuant to the Servicing Agreement and the Receivables Transfer Agreement, each Seller and the Buyer will make available to the Master Servicer all information necessary for the preparation of such Portfolio Report or Outstanding Receivables Report, including (i) with respect to any Portfolio Report, (x) information regarding all Purchases hereunder and Deemed Collections occurring during the period to be covered in such report, and (y) the aggregate original Unpaid Balance of the Receivables transferred by such Seller during such period and the aggregate Purchase Price for such Receivables sold by such Seller and (ii) with respect to any Outstanding Receivables Report, (x) the name of each Obligor of the Portfolio Receivables then outstanding and (y) the Unpaid Balance of the Portfolio Receivables of such Obligor.
2.3
Deemed Collections
(a)
If on any day an Acquired Receivable or any part thereof becomes a Diluted Receivable, the applicable Seller shall be deemed to have received on such day a
9
Collection of such Acquired Receivable in the amount of such Diluted Receivable or part thereof.
(b)
If on any day it is determined that any of the representations or warranties in
Section 4.1
(
Representations and Warranties of the Sellers
) was untrue with respect to an Acquired Receivable on the date of transfer hereunder to the Buyer, the applicable Seller shall be deemed to have received on such day a Collection of such Acquired Receivable in an amount equal to the Unpaid Balance thereof.
(c)
Not later than the Settlement Date related to the Calculation Period in which such Collection is deemed to have been received pursuant to this
Section 2.3
(and, if a Seller Event or Portfolio Event has occurred and is continuing or the Termination Date has occurred, not later than the second (2
nd
) Local Business Day after a Responsible Officer of a Seller is notified in writing or otherwise becomes aware that it has been deemed pursuant to this
Section 2.3
to have received a Collection) such Seller shall deposit in a U.S. Collection Account, in same day funds, the amount of such Deemed Collection. Notwithstanding the foregoing, so long as no Seller Event or Portfolio Event has occurred and is continuing and the Termination Date has not occurred with respect to a Seller, such Seller may make payments for such Deemed Collections on a net basis against the Purchase Price payable to such Seller by the Buyer in accordance with
Section 2.2
. (
Payment for the Purchases
). Any such amount shall be applied as a Collection in accordance with
Section 2.6
(
Collections Prior to Facility Termination Date
) or
2.7
(
Collections After Facility Termination Date
) of the Receivables Transfer Agreement, as applicable.
2.4
Payments and Computations, Etc.
(a)
All amounts to be paid or deposited by the Buyer hereunder shall be paid or deposited in accordance with the terms hereof by no later than the end of the day when due in same day funds to the account designated from time to time by the applicable Seller or Seller Agent. All amounts to be paid or deposited by any Seller hereunder shall be paid or deposited in accordance with the terms hereof by no later than the end of the day when due in same day funds to the account designated from time to time by the Buyer or as otherwise directed by the Buyer. All payments hereunder shall be made solely in U.S. Dollars unless otherwise specified herein. Each Seller shall, to the extent permitted by Law, pay interest on any amount not paid or deposited by such Seller when due hereunder (after, as well as before, judgment), at an interest rate equal to the Default Rate, payable on demand. All computations of interest payable hereunder shall be made on the basis of a year of 365 (or 366, as applicable) days and the actual number of days (including the first but excluding the last day) elapsed and interest shall accrue from day to day and shall not be compounded. In the event that any payment owed by any Person hereunder becomes due on a day which is not a Business Day or Local Business Day, as applicable, such payment shall be made on the next succeeding Business Day or Local Business Day, as applicable, and such extension of time shall be included in the computation of such payment.
10
(b)
Notwithstanding anything herein to the contrary, any payments or deposits to be made by the Buyer under this Agreement shall be made solely from funds available to the Buyer that are not otherwise required to be applied or set aside for the payment of any obligations of the Buyer under any Transaction Document and shall be non-recourse other than with respect to such available funds and, without limiting
Section 9.6
(
No Proceedings
), if ever and until such time as the Buyer has sufficient funds to make such payment shall not constitute a claim against the Buyer.
2.5
Records
(a)
In connection with the conveyances of Receivables and Receivables Property hereunder, each Seller, subject to applicable Law, hereby sells, assigns and otherwise transfers and conveys to the Buyer all of such Seller’s right and title to and interest in all documents, purchase orders, invoices, agreements, books, records and other information relating to the Acquired Receivables and Receivables Property with respect thereto, the applicable Contracts and the related Obligors whether now existing or hereafter arising (collectively, the
“
Records
”
), without the need for any further documentation in connection therewith. To the extent any Seller is prohibited by applicable Law from selling, assigning or otherwise transferring or conveying any Records, such Seller shall (to the extent permitted by applicable Law), upon the reasonable request of the Buyer or the Administrative Agent at any time a Seller Termination Event has occurred and is continuing with respect to such Seller, provide a copy of such Records to the Buyer or the Administrative Agent, as applicable. Among the Records, each Seller shall at all times maintain available to the Buyer and the Agents the computer systems and records where information on the Acquired Receivables and the Contracts is stored (including at least, with respect to the Contracts, the Contract number and the Obligor’s name and address; and with respect to the Acquired Receivables, the invoice date and number, amount and currency, Obligor’s name and address, and due date).
(b)
At any time a Seller Termination Event has occurred and is continuing, each Seller with respect to which such Seller Termination Event applies shall, upon request of the Buyer or the Administrative Agent and to the extent permitted by applicable Law and subject to the restrictions contained in any license with respect thereto, transfer as soon as reasonably practicable to the Administrative Agent (or its designee), or license, or cause to be licensed, to the Administrative Agent (or its designee) an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all computer tapes, software and programs, data processing software and storage media used by such Seller to account for the Acquired Receivables, to the extent necessary to permit the Buyer to exercise its ownership and other interests acquired under or pursuant to this Agreement, and to administer or service the Acquired Receivables, whether such computer tapes, software and programs, data processing software and storage media are owned by such Seller or are owned by others and used by such Seller under license agreements with respect thereto. Any such license granted hereby shall be
11
irrevocable, and shall not terminate until the Seller Payout Date with respect to such Seller. To the extent any such transfer or license would require the payment of any license fee or other amount, such Seller agrees to pay such fee or other amount out of its own funds promptly upon demand by the Administrative Agent.
(c)
Each Seller shall reasonably cooperate with and assist the Master Servicer in the performance of its responsibilities as Master Servicer under the Servicing Agreement and under the other Transaction Documents, including (to the extent permitted by applicable Law and subject to the restrictions contained in any license with respect thereto) providing access to and transferring to the Master Servicer all Records related to the Acquired Receivables and Receivables Property and allowing (to the extent permitted by applicable Law and subject to the restrictions contained in any license with respect thereto) the Master Servicer to use all licenses, hardware or software necessary or reasonably desirable to collect, service, obtain or store information regarding the Acquired Receivables.
(d)
Prior to the occurrence of the Seller Payout Date with respect to a Seller, if such Seller ceases to be a Sub-Servicer, such Seller shall download, prepare and distribute, promptly and effectively, all data relating to the Acquired Receivables in usable form as reasonably requested by the Buyer and/or the Master Servicer from time to time.
(e)
With the exception of the notifications and other actions referred to in
Section 6.2
(
Certain Rights of the Buyer
), each Seller shall take such action requested from time to time hereafter by the Buyer and/or any of the Buyer’s assignees (including the Administrative Agent or any Purchaser Agent), that may be necessary to ensure that the Buyer and its assignees have an enforceable ownership interest in the Records relating to the Acquired Receivables and Receivables Property purchased from such Seller hereunder.
2.6
Characterization; Grant of Security Interest
If, notwithstanding the intention of the parties expressed in
Section 2.1(e)
, the conveyance by any Seller to the Buyer of Acquired Receivables and Receivables Property hereunder shall be characterized as a secured loan and not a sale (any of the foregoing being a “
Recharacterization
”), this Agreement shall constitute a security agreement under applicable Law. For this purpose, each Seller hereby grants to the Buyer a security interest in all of such Seller’s right, title and interest in, to and under all Acquired Receivables, Receivables Property related thereto and all proceeds with respect thereto, which security interest shall secure all obligations of such Seller hereunder. Each Seller and the Buyer shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in, and not to constitute a sale of, the Acquired Receivables and Receivables Property, such security interest would be deemed to be a perfected security interest in favor of the Buyer under the UCC or other applicable Law and shall be maintained as such throughout the term of this Agreement. In the event of such Recharacterization, after any Seller Termination Event, the Buyer and its assignees shall have, in addition to
12
the rights and remedies which they may have under this Agreement, all other rights and remedies against the Seller with respect to which such Seller Termination Event applies provided to a secured creditor after default under the UCC and other applicable Law, which rights and remedies shall be cumulative. In the case of any Recharacterization, each of the applicable Seller and the Buyer represents and warrants as to itself that each remittance of Collections by the applicable Seller to the Buyer hereunder will have been (i) in payment of a debt incurred by the applicable Seller in the ordinary course of business or financial affairs of the applicable Seller and the Buyer and (ii) made in the ordinary course of business or financial affairs of the applicable Seller.
2.7
Repurchases
(a)
Except to the extent expressly set forth herein, no Seller shall have any right or obligation under this Agreement, by implication or otherwise, to repurchase from the Buyer any Acquired Receivables or any Receivables Property with respect thereto or to rescind or otherwise retroactively affect any conveyances of any Acquired Receivable or any Receivables Property with respect thereto after it is conveyed to the Buyer hereunder.
(b)
Subject to
Section 2.7(d)
below, each Seller shall have the right (but in any event shall not be obligated) to repurchase or otherwise reacquire any Acquired Receivable (and all Related Property with respect thereto) originated by such Seller that has become a Defaulted Receivable or in respect of which the Seller has paid a Deemed Collection equal to the Unpaid Balance thereof.
(c)
The repurchase price with respect to any Acquired Receivable to be repurchased or otherwise reacquired pursuant to
Section 2.7(b)
above shall be (i) if such Acquired Receivable is a Defaulted Receivable, an amount equal to the fair market value of such Acquired Receivable at the time of repurchase (provided that if any Facility Event or Portfolio Event has occurred and is continuing, the prior written consent of the Required Committed Purchasers shall be required for any sale of a Defaulted Receivable) and (ii) with respect to any other Acquired Receivable, an amount equal to the Unpaid Balance of such Acquired Receivable at the time of repurchase thereof less the amount of any Deemed Collection paid by such Seller in respect of such Receivable (with respect to any Receivable, the
“Repurchase Price”
).
(d)
The repurchase of any Acquired Receivable pursuant to
Section 2.7(b)
above is subject to the conditions precedent that:
(i)
the applicable Seller shall have provided to the Administrative Agent written notice of its election to repurchase such Acquired Receivable on or prior to the day on which such Acquired Receivable is to be repurchased (with respect to any repurchase, the
“Repurchase Date”
);
(ii)
such Seller shall have (simultaneously with delivery of the notice pursuant to
Section 2.7(d)(i)
), delivered a duly completed (other than
13
with respect to the execution thereof by the Buyer) Assignment of Repurchased Receivables to the Buyer;
(iii)
on the Repurchase Date for such Acquired Receivable the applicable Seller shall have deposited an amount equal to the Repurchase Price payable in respect of such Acquired Receivable into a U.S. Collection Account; and
(iv)
the aggregate Unpaid Balance of all Defaulted Receivables reacquired by a Seller pursuant to
Section 2.7(b)
shall not exceed 5% of the aggregate Unpaid Balance of all Acquired Receivables transferred by such Seller to the Buyer hereunder.
(e)
Subject to
Section 2.7(d)
above and the payment of the Repurchase Price for the applicable Acquired Receivable pursuant to, and in accordance with, such
Section 2.7(d)
, the Buyer shall execute and deliver to the applicable Seller or the Seller Agent the Assignment of Repurchased Receivables delivered to the Buyer pursuant to
Section 2.7(d)(ii)
above. Such Seller or the Seller Agent shall promptly (and, in any event within five (5) Local Business Days after receipt thereof) deliver a copy of any such Assignment of Repurchased Receivables to the Administrative Agent.
(f)
Upon the delivery of an Assignment of Repurchased Receivables to any Seller or the Seller Agent pursuant to, and in accordance with,
Section 2.7(e)
, all of the applicable Buyer’s right, title and interest in, to and under each and every Acquired Receivable and any Receivables Property related thereto included in such Assignment of Repurchased Receivables shall be immediately and automatically sold, assigned, transferred and conveyed to the applicable Seller without any further action by the Buyer or any other Person.
(g)
Each Seller hereby agrees that it shall indicate clearly and unambiguously in its computer files that such Acquired Receivable and any Receivables Property related thereto has been repurchased and shall at all times maintain the capability to identify each Repurchased Receivable and any Collections related thereto.
(h)
Notwithstanding anything herein to the contrary, each retransfer of Acquired Receivables and any Receivables Property related thereto by the Buyer pursuant to this
Section 2.7
shall be without recourse to, or representation or warranty by, the Buyer other than a representation by the Buyer that it has not disposed of any interest in the Acquired Receivables and any Receivables Property related thereto or created any Adverse Claim over them (other than an Adverse Claim created under the Security Documents or the other Transaction Documents).
2.8
Certain Allocations
Each Seller and the Buyer hereby agree that, unless otherwise required by contract or applicable Law or clearly indicated by facts or circumstances or unless an Obligor designates that a payment be applied to a specific Receivable, all Collections from an
14
Obligor shall be applied in the order of maturity of the Receivables of such Obligor starting with the Receivables of such Obligor having the earliest maturity date (whether or not such Receivables are Acquired Receivables).
2.9
No Recourse
Except as specifically provided in this Agreement (including, without limitation,
Sections 2.3
(
Deemed Collections
) and
8.1
(
Indemnities by the Sellers
)), the purchase and sale of Acquired Receivables and Receivables Property hereunder shall be without recourse to any Seller.
3.
CONDITIONS TO PURCHASES
3.1
Conditions Precedent to Initial Purchase from the Sellers
The Buyer’s obligation to pay the Purchase Price for the initial Purchase of Receivables from the Sellers hereunder is subject to the conditions precedent that the Buyer shall have received on or before the date of such Purchase all of the instruments, documents, agreements, certificates and opinions specified in
Schedule 4
(
Condition Precedent Documents
) to the Receivables Transfer Agreement, each (unless otherwise indicated in
Schedule 4
(
Conditions Precedent Documents
) of the Receivables Transfer Agreement) dated such date, in form and substance reasonably satisfactory to the Buyer and the Administrative Agent.
3.2
Condition Precedent to Each Seller’s Obligations
No Seller shall sell Receivables and any Receivables Property related thereto to the Buyer on any date (including on the Initial Purchase Date) that a voluntary or involuntary bankruptcy, insolvency, reorganization or other similar case or proceeding is pending against such Seller or the Buyer under any applicable Insolvency Law.
3.3
Conditions Precedent to the Addition of an Additional Seller
The obligation of the Buyer to acquire Receivables hereunder from an Additional Seller is subject to the conditions precedent that the Buyer, the Administrative Agent and each Purchaser Agent shall have received on or before the date designated for the addition of such Additional Seller (the
“Seller Addition Date”
) and in form and substance reasonably satisfactory to the Buyer, the Administrative Agent and each Purchaser Agent:
(a)
Additional Seller Supplement
an Additional Seller Supplement (with a copy for the Buyer and each Purchaser Agent) duly executed and delivered by such Additional Seller;
(b)
Secretary’s Certificate
a certificate of the secretary or other Responsible Officer of such Additional Seller, dated the Seller Addition Date, and certifying (i) that attached thereto is a
15
true and complete copy of the Organizational Documents (including all amendments or other modifications thereto) of such Additional Seller, as in effect on the Seller Addition Date and at all times since a date prior to the date of the resolutions described in
Section 3.3(b)(ii)
herein, (ii) that attached thereto is a true and complete copy of the resolutions of the Board of Directors (or committee thereof), directors or shareholders, as the case may be, of such Additional Seller authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party and the transactions contemplated hereby and thereby, and that such resolutions have not been amended, modified, revoked or rescinded and are in full force and effect, and (iii) the authority and specimen signature of each officer executing the Additional Seller Supplement and any other Transaction Documents or any other document delivered in connection therewith on behalf of such Additional Seller (on which certificates the Buyer may conclusively rely until such time as the Buyer shall receive from such Additional Seller a revised certificate with respect to such Additional Seller meeting the requirements of this
Section 3.3(b)
);
(c)
Performance Undertaking
a reaffirmation from the Performance Undertaking Provider in form and substance reasonably satisfactory to the Administrative Agent and each Purchaser Agent pursuant to which the Performance Undertaking Provider reaffirms its obligations under the Performance Undertaking after giving effect to the addition of such Additional Seller hereunder, together with any opinions and certificates in connection with such reaffirmation from the Performance Undertaking Provider reasonably requested by the Administrative Agent, any Purchaser Agent, the Seller Agent or the Buyer;
(d)
Organizational Documents
the Organizational Documents, including all amendments or other modifications thereto, of such Additional Seller, certified as of a recent date by the appropriate authority of the jurisdiction of such Additional Seller;
(e)
Good Standing Certificates
certificates of compliance, of status or of good standing (if applicable), dated as of a recent date, from the Secretary of State or other appropriate authority of such Additional Seller’s jurisdiction of organization;
(f)
UCC Financing Statements
copies of a proper financing statement, filed and recorded at such Additional Seller’s expense prior to the related Seller Addition Date, naming such Additional Seller as the seller and the Buyer as the purchaser of the Acquired Receivables of such Additional Seller, in proper form for filing in the appropriate jurisdiction to perfect the Buyer’s ownership interest in such Acquired Receivables under the UCC;
16
(g)
UCC Searches
written search reports, listing all effective financing statements that name such Additional Seller as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to
Section 3.3(f)
and in any other jurisdictions that the Buyer or the Administrative Agent reasonably determines are necessary or appropriate, together with copies of such financing statements (none of which, except for those described in
Section 3.3(f)
, shall cover any Acquired Receivables of such Additional Seller or any Receivables Property with respect thereto), and tax and judgment lien searches showing no such liens exist that are not Permitted Adverse Claims or otherwise permitted by the Transaction Documents;
(h)
Opinions
legal opinions with respect to such Additional Seller substantially conforming to the legal opinions delivered in respect of the Sellers on the date hereof pursuant to
Section 3.1
(
Conditions Precedent to Initial Incremental Investment
) of the Receivables Transfer Agreement;
(i)
Schedule 2 and Schedule 5
an amended
Schedule 2
(
Address and Notice Information
) and
Schedule 5
(
Facility Accounts and Account Banks
) to the Receivables Transfer Agreement incorporating the relevant information for such Additional Seller;
(j)
Systems; Due Diligence
evidence, reasonably satisfactory to the Buyer, the Administrative Agent and each Purchaser Agent that such Additional Seller’s systems, procedures and recordkeeping relating to its Receivables are in all material respects sufficient and satisfactory in order to permit the purchase and administration of such Receivables in accordance with the terms and intent of this Agreement and the Servicing Agreement and the results of any other due diligence process or procedures shall be satisfactory to the Buyer, the Administrative Agent and each Purchaser Agent;
(k)
Consent
the written consent, not to be unreasonably withheld, to the addition of such Additional Seller from the Administrative Agent and the Required Committed Purchasers (other than any such Additional Seller which has been pre-approved by the Agents on the date hereof);
(l)
U.S. Control Agreements
an executed U.S. Account Security Agreement with respect to each U.S. Collection Account added to
Schedule 5
(
Facility Accounts and Account Banks
) to the Receivables Transfer Agreement pursuant to any amendment delivered
17
pursuant to
Section 3.3(i)
and, if applicable or otherwise necessary, an executed amendment to any existing U.S. Account Security Agreement with respect to any other U.S. Collection Account;
(m)
Pro Forma Monthly Report
a pro forma Monthly Report showing the aging and roll forward history of the Receivables of such Additional Seller for the period beginning not less than fourteen (14) months prior to the relevant Seller Addition Date and a pro forma Monthly Report for the most recently ended Calculation Period prior to the relevant Seller Addition Date;
(n)
Consents, Licenses, Approvals, Etc.
a certificate dated as of the applicable Seller Addition Date of a Responsible Officer of such Additional Seller either (i) attaching copies of all licenses, authorizations, consents, approvals and qualifications required in connection with the execution, delivery and performance by such Additional Seller of the Additional Seller Supplement and the validity and enforceability of this Agreement and the Servicing Agreement against such Additional Seller, and certifying that such consents, licenses and approvals are in full force and effect or (ii) stating that no such consents, licenses or approvals are so required;
(o)
No Litigation
confirmation in writing that there is no pending or, to the knowledge of a Responsible Officer of such Additional Seller, threatened action, suit, investigation, litigation or proceeding at law or in equity affecting such Additional Seller before any Official Body that could reasonably be expected to have a Material Adverse Effect; and
(p)
Rating Agency Condition
confirmation that the Rating Agency Condition is satisfied with respect to the addition of such Additional Seller as a party hereto and to the other Transaction Documents.
4.
REPRESENTATIONS AND WARRANTIES
4.1
Representations and Warranties of the Sellers
Each Seller represents and warrants, with respect to itself and any Acquired Receivable sold by such Seller only, that on the applicable Effective Date, the date of each Purchase hereunder and on each Reporting Date:
(a)
such Seller (i) is duly organized and validly existing under the laws of its jurisdiction of organization, (ii) is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so
18
qualified, unless the failure to be so qualified would not have a Material Adverse Effect and (iii) has all corporate or other organizational power and authority required to perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted, unless the failure to have such power and authority would not have a Material Adverse Effect;
(b)
the execution, delivery and performance by such Seller of this Agreement and any other Transaction Document to which it is a party, including such Seller’s sales of Receivables and Receivables Property related thereto hereunder and such Seller’s use of the proceeds thereof (i) are within such Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) are in such Seller’s interest and such Seller will receive the corporate benefit as a result of the transactions contemplated by this Agreement and the other Transaction Documents and the Purchase Price paid for the Receivables and Receivables Property sold by it hereunder constitutes fair market value, (iv) do not contravene or constitute a default under (A) such Seller’s Organizational Documents, (B) any applicable Law, (C) any contractual restriction binding on or affecting such Seller or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting such Seller or its property, except in each case where any such contravention or default would not have a Material Adverse Effect and (v) do not result in or require the creation or imposition of any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to any Acquired Receivable, Receivables Property related thereto or any U.S. Collection Account. This Agreement and each other Transaction Document to which such Seller is a party has been duly executed and delivered by such Seller;
(c)
no authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any Official Body or official thereof or any third party is required for the due execution, delivery and performance by such Seller of this Agreement or any other Transaction Document to which it is a party or any other document to be delivered by it hereunder or thereunder, except for the filing or registration of UCC financing statements and other actions taken or referred to in
Schedule 4
(
Conditions Precedent Documents
) to the Receivables Transfer Agreement, all of which have been (or on or before the applicable Initial Purchase Date will have been) duly made or taken, as the case may be, and are in full force and effect, except where the failure to have obtained any such authorization or approval or taken any such action or made any such filing, notice or registration would not have a Material Adverse Effect;
(d)
this Agreement and each of the other Transaction Documents to which such Seller is a party constitutes the legal, valid and binding obligation of such Seller enforceable against such Seller in accordance with its terms, subject to any limitation on the enforceability thereof against such Seller arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law);
19
(e)
there are no actions, suits, investigations, litigation or proceedings at law or in equity or by or before any Official Body or in arbitration now pending against or affecting such Seller or its Subsidiaries or any of its or their business, revenues or other property (i) which question the validity of this Agreement or any other Transaction Document to which it is a party or any of the transactions contemplated hereby or thereby (excluding any litigation or proceeding against any Obligor) or (ii) which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Such Seller is not in default or violation of any order, judgment or decree of any Official Body or arbitrator which could reasonably be expected to have a Material Adverse Effect;
(f)
no event has occurred and is continuing which constitutes a Seller Event which has not been (i) notified to the Buyer and each Agent pursuant to
Section 5.15(a)
or (ii) remedied or waived, in each case, in accordance with the Transaction Documents;
(g)
no proceeds of any Purchase will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, “margin stock” within the meaning of Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time;
(h)
no transaction contemplated hereby or by any Transaction Document requires compliance with any bulk sales act or similar law to which such Seller is subject;
(i)
immediately prior to each sale of such Seller’s right, title and interest to, in and under any Receivables to the Buyer, such Seller was the owner of such Receivables and all Receivables Property with respect thereto, free and clear of any Adverse Claim (other than Permitted Adverse Claims). Upon each Purchase of the Seller’s right, title and interest to, in and under any Acquired Receivables, the Buyer shall have acquired a valid first priority ownership interest ranking ahead of any other ownership interest, security interest and other interest of any creditor of such Seller in each of such Acquired Receivables and in the Receivables Property with respect thereto and the proceeds of the foregoing, in each case free and clear of any Adverse Claim (other than Permitted Adverse Claims). No effective financing statement or other instrument similar in effect is filed in any recording office listing such Seller as debtor, covering any such Acquired Receivable, related Receivables Property, U.S. Collection Account or any interest therein or proceeds thereof, other than in respect of a Permitted Adverse Claim;
(j)
(i) each Portfolio Report and Outstanding Receivables Report (in each case, as it relates to Receivables originated by such Seller) is complete and accurate in all material respects as of its date, (ii) all other information, data, exhibits, documents, books, records and reports (“
Information
”) furnished by or on behalf of such Seller in connection with this Agreement, any other Transaction Document or any transaction contemplated hereby or thereby is complete and accurate in all material respects as of its date and no such Information contains
20
any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not materially misleading;
provided
, that, with respect to projected financial information provided by or on behalf of such Seller, such Seller represents only that such information was prepared in good faith by management of such Seller on the basis of assumptions believed by such management to be reasonable as of the time made, and (iii) all financial statements which have been furnished by or on behalf of such Seller (A) have been prepared in accordance with GAAP consistently applied (except as approved by the external auditors and as disclosed therein, if any) and (B) fairly present, in all material aspects, the financial condition of such Seller and, if applicable, its consolidated Subsidiaries as of the dates set forth therein and the results of any operations of such Seller and, if applicable, its consolidated Subsidiaries for the periods ended on such dates.
(k)
such Seller has (i) timely filed or caused to be filed all material Tax returns required to be filed and (ii) paid or made adequate provision for the payment of all Taxes, assessments and other governmental charges due and payable by it, except (A) any such Taxes, assessments or other governmental charges that are being contested in good faith by appropriate proceedings and for which such Seller has set aside in its books adequate reserves in accordance with GAAP as reasonably determined by such Seller, or (B) to the extent that such failure to do so would not reasonably be expected to result in a Material Adverse Effect;
(l)
such Seller is located in the jurisdiction specified for such Seller on
Schedule 1
(
Seller Information
) for the purposes of Section 9-307 of the UCC as in effect in the State of New York;
(m)
(i) the names and addresses of all the U.S. Collection Account Banks, together with the account numbers of such U.S. Collection Accounts, as applicable, maintained at such U.S. Collection Account Banks which receive collections related to the Acquired Receivables sold by such Seller, are as specified in
Schedule 5
(
Facility Accounts and Account Banks
) to the Receivables Transfer Agreement (as the same may be updated from time to time pursuant to
Section 5.7
(
Changes in U.S. Collection Accounts
)). Each U.S. Collection Account is subject to a valid and enforceable U.S. Account Security Agreement and the Administrative Agent (or its designee), on behalf of the Secured Parties, has a valid and perfected security interest or pledge over each U.S. Collection Account, free and clear of Adverse Claims (other than Permitted Adverse Claims). Obligors have been directed to make all payments to the U.S. Collection Accounts. Only Collections and other amounts payable in respect of Acquired Receivables are deposited into the U.S. Collection Accounts. Each of the U.S. Account Banks is an Eligible Account Bank;
(n)
(i) since its formation, such Seller has not used any corporate name, tradename or doing-business-as name other than the name in which it has executed this Agreement and the other names listed on
Schedule 1
(
Seller Information
); (ii)
21
such Seller’s Federal Employer Identification Number and, if organized in a jurisdiction other than Delaware or Texas, its organizational identification number, if any, is as set forth on
Schedule 1
; (iii) such Seller’s principal place of business and chief executive office for the last five (5) years and its jurisdiction of organization are listed on
Schedule 1
; (iv) the exact legal name of each entity to which such Seller is the successor by merger or other operation of law (each a
“
Predecessor Entity
”
) during the preceding five (5) years is listed on
Schedule 1
; and (v) for each Predecessor Entity, the principal place of business and chief executive office for each for the last five (5) years and the jurisdiction of organization of each are listed on
Schedule 1
;
(o)
such Seller is not an “investment company” as defined in, or is exempt from the registration requirements of, the Investment Company Act of 1940, as amended;
(p)
such Seller is, individually and together with its Subsidiaries, Solvent;
(q)
each Acquired Receivable was an Eligible Receivable as of the applicable Purchase Date for such Acquired Receivable;
(r)
the Purchase Price paid for the Acquired Receivables and related Receivables Property purchased hereunder constitutes reasonably equivalent value and fair market value. No Purchase hereunder has been made for or on account of an antecedent debt owed by such Seller to the Buyer and no such sale is voidable or subject to avoidance under any Section of any Insolvency Law. The sale of Receivables by such Seller to the Buyer pursuant to this Agreement, and all other transactions between such Seller and the Buyer, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of such Seller or any of its Affiliates;
(s)
each Seller is in compliance with the applicable provisions of ERISA and the provisions of the IRC relating to its Plans, except for such noncompliance that would not have a Material Adverse Effect. During the twelve-consecutive-month period prior to the applicable Effective Date, the date of each Purchase or other conveyance hereunder and each Reporting Date, no steps have been taken to terminate any Plan (other than any termination not reasonably likely to have a Material Adverse Effect), and no contribution failure has occurred with respect to any Plan sufficient to give rise to a lien under section 302(f) of ERISA. No condition exists or event or transaction has occurred with respect to any Plan which is reasonably likely to result in the Seller or any ERISA Affiliate incurring any material liability, fine or penalty that could reasonably likely have a Material Adverse Effect;
(t)
such Seller’s obligations under this Agreement and the other Transaction Documents to which it is a party rank at least
pari passu
with all of its unsecured unsubordinated Indebtedness (other than any such Indebtedness that is preferred by mandatory provisions of law);
22
(u)
such Seller has the capability to identify each Receivable sold hereunder or included in the Portfolio Reports;
(v)
such Seller is not required to account to any Official Body for any value added or other substantially similar Tax in respect of the assignment by it of any Receivable or any Receivables Property related thereto and no withholding or other Tax is deductible or payable on any payment made by an Obligor with respect to any Receivable or any Receivables Property related thereto;
(w)
no selection procedure was used by such Seller in selecting the Receivables to be transferred to the Buyer hereunder which is materially adverse to the interests of the Buyer, the Administrative Agent or any Purchaser; and
(x)
to the extent applicable, with respect to the transactions contemplated hereunder, such Seller is in compliance with all Laws promulgated by the U.S. Treasury Department Office of Foreign Assets Control pursuant to the International Emergency Economic Powers Act, 50 U.S.C. §§1701 et. seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et. seq., the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (the “
PATRIOT Act
”) and any executive order promulgated thereunder (including, without limitation, having in full force and effect any required licenses thereunder).
4.2
Representations and Warranties of the Buyer
The Buyer represents and warrants as follows on each Effective Date, each Purchase Date and each Repurchase Date by reference to the facts and circumstances existing on the Effective Date, the Purchase Date and the Repurchase Date:
(a)
It (i) is a corporation duly organized and validly existing under the laws of its jurisdiction of organization, (ii) is duly qualified to do business in every other jurisdiction where the nature of its business requires it to be so qualified, unless the failure to be so qualified would not have a Material Adverse Effect, and (iii) has all corporate or other organizational power and authority required to perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted unless the failure to have such power and authority would not have a Material Adverse Effect;
(b)
the execution, delivery and performance by the Buyer of this Agreement and each other Transaction Document to which it is a party, including the Buyer’s purchase of Acquired Receivables and Receivables Property hereunder, (i) are within the Buyer’s corporate powers, (ii) have been duly authorized by all necessary corporate action and (iii) do not contravene or constitute a default under (A) the Buyer’s Organizational Documents, (B) any Law applicable to the Buyer, (C) any contractual restriction binding on or affecting the Buyer or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting the Buyer or its property, except in each case where any such contravention or default
23
would not have a Material Adverse Effect and (iv) do not result in or require the creation or imposition of any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to any Acquired Receivable, Receivables Property or any U.S. Collection Account. Each of the Transaction Documents to which the Buyer is a party has been duly executed and delivered by the Buyer;
(c)
no authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any Official Body or official thereof or any third party is required for the due execution, delivery and performance by the Buyer of this Agreement or any other Transaction Documents to which it is a party or any other document to be delivered by it hereunder or thereunder, except for the filing of UCC financing statements and other actions taken or referred to in
Schedule 4
(
Conditions Precedent Documents
) to the Receivables Transfer Agreement all of which have been (or on or before the applicable Initial Purchase Date will have been) duly made or taken, as the case may be, and are in full force and effect and except where the failure to have obtained any such authorization or approval or taken any such action or made any such filing or notice would not have a Material Adverse Effect; and
(d)
this Agreement and each other Transaction Document to which the Buyer is a party constitutes the legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms, subject to any limitation on the enforceability thereof against the Buyer arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is in a proceeding in equity or law).
4.3
Perfection Representations, Warranties and Covenants
Each Seller makes the perfection representations, warranties and covenants set forth on
Schedule 2
(
Perfection Representations, Warranties and Covenants
) hereto, with respect to itself and any Acquired Receivable sold by such Seller only, on the date of each Purchase by the Buyer from such Seller hereunder and on each Reporting Date.
5.
COVENANTS OF THE SELLERS
Until the applicable Seller Payout Date, each Seller covenants and agrees on its own behalf and with respect to itself only as set out in this
Section 5
.
5.1
Compliance with Laws, Etc.
Such Seller will comply in all respects with all applicable Laws and preserve and maintain its corporate or other organizational existence, rights, franchises, qualifications and privileges except to the extent that the failure so to comply with such Laws or the failure so to preserve and maintain such existence, rights, franchises, qualifications and privileges would not have a Material Adverse Effect.
24
5.2
Records and Procedures
Such Seller will keep its records concerning the Acquired Receivables and Receivables Property related thereto at (a) the address of such Seller applicable for the purposes of
Schedule 2
(
Address and Notice Information
) to the Receivables Transfer Agreement on the applicable Effective Date or (b) upon fifteen (15) days’ prior written notice to the Buyer and the Administrative Agent, at any other locations in jurisdictions where all actions reasonably requested by the Buyer and the Administrative Agent to protect and perfect the Buyer’s (and its assignees’) interest in the Acquired Receivables and Receivables Property have been taken and completed. Such Seller also will maintain and implement administrative and operating procedures (including an ability to recreate records evidencing Acquired Receivables, the Receivables Property related thereto and related Contracts in the event of the loss or destruction of the originals thereof) and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Acquired Receivables and Receivables Property (including records adequate to permit the daily identification of each Acquired Receivable and all Collections thereof and adjustments thereto).
5.3
Performance and Compliance with Contracts and Credit and Collection Policies
Such Seller will, at its expense, (a) timely and fully perform and comply with all provisions, covenants, undertakings and other promises required to be observed by it under the Contracts related to the Acquired Receivables and Receivables Property with respect thereto except to the extent that the failure to perform or comply would not have a Material Adverse Effect and (b) timely and fully comply in all material respects with the Credit and Collection Policies, in each case, other than where non-performance or non-compliance therewith could not reasonably be expected to adversely affect the validity, collectability, enforceability or credit quality of any Acquired Receivable or Receivables Property assigned by such Seller pursuant hereto.
5.4
Sales, Liens, Etc.
Such Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (except for Permitted Adverse Claims) upon or with respect to, any Acquired Receivable or Receivables Property or any U.S. Collection Account, or any of its rights, title and interest in, to and under any of them (including any right to receive income in respect thereof) except pursuant to, or in accordance with, the Transaction Documents.
5.5
Extension or Amendment of Receivables and Contracts
Except as provided in
Section 2.2(c)
(
Duties of the Master Servicer
) of the Servicing Agreement, such Seller will not (a) extend, amend or otherwise modify the terms and conditions of any Acquired Receivable or Receivables Property, or (b) amend, modify or waive any term or condition of any Contract related thereto except (i) in accordance with the applicable Credit and Collection Policies, (ii) as required by Law or (iii) otherwise in
25
a manner that would not have a Material Adverse Effect or materially adversely affect the interests or remedies of the Buyer (or its assignees).
5.6
Change in Credit and Collection Policies
Such Seller will not make any material change in the Credit and Collection Policies, except (i) as required by Law or (ii) with the prior written consent of the Purchaser Agents (such consent not to be unreasonably withheld).
5.7
Change in U.S. Collection Accounts
Such Seller will not add or terminate any U.S. Collection Account from those listed in
Schedule 5
(
Facility Accounts and Account Banks
) to the Receivables Transfer Agreement, unless (i) the Buyer and the Administrative Agent shall have received at least fifteen (15) days’ prior written notice of such addition or termination (including an updated
Schedule 5
(
Facility Accounts and Account Banks
) to the Receivables Transfer Agreement) and a fully executed U.S. Account Security Agreement with respect to each new U.S. Collection Account to which such Obligors have been instructed to make such payments has been delivered to the Buyer and the Administrative Agent and (ii) the Purchaser Agents have provided their prior written consent (such consent not to be unreasonably withheld).
5.8
U.S. Account Security Agreements
Such Seller will cause all U.S. Collection Accounts which receive Collections related to the Acquired Receivables sold by such Seller to be subject at all times to a U.S. Account Security Agreement duly executed by such Seller.
5.9
[Reserved.]
5.10
[Reserved.]
5.11
Amendments
Such Seller will not make any amendment or other modification to any Transaction Document to which it is a party except in accordance with the amendment provisions thereof.
5.12
Deposits to U.S. Collection Accounts
(a)
Such Seller will instruct all Obligors to remit all payments in respect of the Acquired Receivables to a U.S. Collection Account that is subject to a valid and enforceable U.S. Account Security Agreement;
provided
that nothing in this
Section 5.12(a)
shall limit the obligations or liability of any Seller pursuant to
Section 5.12(b)
through (e) or
Section 8.1
(
Indemnities by the Sellers
).
(b)
If any Seller shall receive any Collections or other amount payable in respect of an Acquired Receivable directly, such Seller shall promptly (and in any event
26
within two (2) Local Business Days) deposit such Collections or other amount into a U.S. Collection Account.
(c)
No Seller will permit moneys other than Collections and other amounts payable in respect of Acquired Receivables to be deposited into any U.S. Collection Account.
(d)
No Seller will permit funds on deposit from time to time in any U.S. Collection Account to be withdrawn, transferred or otherwise applied except in accordance with the Receivables Transfer Agreement and the other Transaction Documents.
(f)
Each Seller shall, as soon as practicable following receipt and identification thereof, and in any event within two (2) Local Business Days after receipt and identification thereof, turn over or cause to be turned over to the applicable Person as may be entitled thereto any cash collections or other cash proceeds received in any U.S. Collection Account and not constituting Collections of Acquired Receivables, Related Security with respect thereto or any other Collateral.
5.13
Inspections; Annual Agreed Upon Procedures
Until the applicable Seller Payout Date:
(a)
such Seller shall, at its expense (subject to the proviso in this
Section 5.13(a)
) from time to time during regular business hours and upon receipt of reasonable advance notice as requested by the Buyer or its assigns (including, without limitation, any Agent), permit the Buyer and its assigns (including, without limitation, any Agent), or their respective agents or representatives (including independent accountants, which may not be the Buyer’s or any Seller’s external auditors) (i) to conduct audits of the Acquired Receivables and Receivables Property and the related books and records, including the Contracts, and collections systems of such Seller, (ii) to examine and make copies of and abstracts from all documents, purchase orders, invoices, agreements, books, records and other information (including computer programs, tapes, discs, punch cards, data processing software, storage media and related property and rights) relating to the Acquired Receivables and Receivables Property, including related Contracts and (iii) to visit the offices and properties of such Seller for the purpose of examining such materials described in
Sections 5.13(a)(i)
and
(ii)
herein, and to discuss matters relating to the Acquired Receivables and Receivables Property or such Seller’s performance hereunder and under the other Transaction Documents to which it is a party or under the Contracts with any of the officers or employees of such Seller having knowledge of such matters;
provided
that, unless a Portfolio Event has occurred and is continuing or a Seller Termination Event has occurred with respect to such Seller, only one such examination and visit in any calendar year by the Agents or the Purchasers shall be at the expense of such Seller; and
(b)
such Seller shall assist the Master Servicer in preparing the Accountants’ Letter under and as defined in
Section 5.2(b)
(
Inspections; Annual Agreed Upon
27
Procedures Audit
) of the Receivables Transfer Agreement and take any other action in connection therewith as the Master Servicer, the Buyer or the Administrative Agent shall reasonably request.
5.14
Further Assurances; Change in Name or Jurisdiction of Organization, Etc.
(a)
Such Seller agrees from time to time, at its expense, promptly to execute and deliver all further instruments and documents, and to take all further actions, that may be reasonably necessary or desirable, or that have been reasonably requested by the Buyer or any of its assigns (including, without limitation, any Agent), to confirm, perfect, protect or more fully evidence the Buyer’s ownership of (or any of its or its assigns’ interest in) the Acquired Receivables and Receivables Property related thereto and security interest in the U.S. Collection Accounts, or to enable the Buyer or its assigns to exercise and enforce their respective rights and remedies under this Agreement and the other Transaction Documents. Without limiting the foregoing, such Seller will, at its expense, duly execute, file or serve in or on the appropriate filing office, Official Body or other Person, in each jurisdiction necessary, all registrations, notices, instruments and other documents that may be necessary or desirable, or that the Buyer or its assigns (including, without limitation, any Agent) may reasonably request, to confirm, perfect, protect or evidence the Buyer’s ownership of the Acquired Receivables and the Receivables Property and security interest in the U.S. Collection Accounts, Bunge Securitization B.V.’s ownership of the Acquired Receivables and the related Receivables Property (as transferee of the Buyer thereof), and the Administrative Agent’s ownership (on behalf of the Purchasers) or security interest (on behalf of the Secured Parties) therein. Such Seller authorizes the Buyer, Bunge Securitization B.V., the Administrative Agent or any of their respective assignees to file any registrations, notices of charge or other instruments similar in effect in any jurisdiction, and amendments thereto, relating to the Acquired Receivables, the Receivables Property and the U.S. Collection Accounts without the signature of such Seller. A photocopy or other reproduction of this Agreement shall be sufficient for such purpose where permitted by law.
(b)
Such Seller shall not, and will not take any action to, change its jurisdiction of organization (within the same country) unless the Buyer and the Administrative Agent shall have received at least fifteen (15) days’ advance written notice of such change and all action by such Seller necessary or appropriate to confirm, perfect, protect or maintain the Buyer’s (and its assigns’) interest in the Acquired Receivables, Receivables Property and the U.S. Collection Accounts (including, without limitation, the filing of all financing statements and the taking of such other action as the Buyer and the Administrative Agent may reasonably request in connection with such change) shall have been duly taken.
(c)
Such Seller will not change its name, identity, corporate structure, location or tax identification number or make any other change which could render any financing statement or similar instrument filed in connection with any Transaction Document seriously misleading or otherwise ineffective under applicable Law,
28
unless the Buyer and the Administrative Agent shall have received at least fifteen (15) days’ advance written notice (or twenty (20) Business Days’ advance written notice in the case of a change in corporate structure) of such change prior to the effectiveness thereof and all action by such Seller necessary or appropriate to confirm, perfect, protect or maintain the perfection of the Buyer’s (and its assigns’) interest in the Acquired Receivables, Receivables Property related thereto, and the U.S. Collection Accounts (including the filing of all financing statements and the taking of such other action as the Buyer, Bunge Securitization B.V. and the Administrative Agent or any Purchaser Agent may request in connection with such change) shall have been duly taken.
5.15
Reporting Requirements
Such Seller will provide to the Buyer and the Administrative Agent the following:
(a)
Notice of Seller Event
as soon as possible and in any event within three (3) Local Business Days after a Responsible Officer of such Seller obtains knowledge of the occurrence of any Seller Event, a statement of a Responsible Officer of such Seller setting forth the details of such event and, if a Seller Event related to such Seller, the action that such Seller has taken and proposes to take with respect thereto;
(b)
ERISA
promptly after a Responsible Officer of such Seller obtains knowledge thereof, notice of the institution of any steps by the Seller or any other Person to terminate any Plan, or the failure to make a required contribution to a Plan if such failure is sufficient to give rise to a lien under section 302(f) of ERISA, or the taking of any action with respect to a Plan which is reasonably likely to result in the requirement that the Seller or any ERISA Affiliate furnish a bond or other security to the Pension Benefit Guaranty Corporation or such Plan, or the occurrence of any event with respect to any Plan which is reasonably likely to result in the Seller or any ERISA Affiliate incurring any material liability, fine or penalty;
(c)
Change in Credit and Collection Policies
at least (i) thirty (30) days prior to any material change and (ii) promptly after any immaterial change, in each case, to the Credit and Collection Policies a full and complete copy of such Credit and Collection Policies and the effective date thereof;
(d)
Litigation; Material Adverse Effect
promptly (and in any event within three (3) Local Business Days) after a Responsible Officer of such Seller obtains knowledge thereof, notice of:
29
(i)
(A) the filing or commencement of, or any written threat or notice of intention (which threat or notice in the reasonable discretion of such Seller has not been made on frivolous or otherwise wholly unjustifiable grounds) of any Person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity or by or before any Official Body or in arbitration against, or any investigation by any Official Body that may exist with respect to such Seller, the Transaction Documents or the transactions contemplated thereby, in each case, which could reasonably be expected to have a Material Adverse Effect or (B) any material adverse development that has occurred with respect to any such previously disclosed litigation, investigation or proceeding; or
(ii)
any other event or condition with respect to such Seller that has had, or in the reasonable discretion of such Seller would have, a Material Adverse Effect; and
(e)
Other Information
as soon as reasonably practical (and in any event no later than ten (10) Business Days) after a request by the Buyer or the Administrative Agent or any Purchaser Agent, such other information with respect to (i) the Acquired Receivables, the Receivables Property, the related Obligors (including any information needed for purposes of the notice to Obligors referred to in
Section 6.2(b)
) and the U.S. Collection Accounts as the Buyer or the Administrative Agent or any Purchaser Agent may from time to time reasonably request, or (ii) any Seller Event or Material Adverse Effect related to such Seller as the Buyer or the Administrative Agent or any Purchaser Agent may from time to time reasonably request (which shall include an explanation of the reason for such request).
(f)
PATRIOT ACT
such information as is reasonably requested by any Purchaser in order to assist such Purchaser in maintaining compliance with the PATRIOT Act.
5.16
Mergers, Etc.
Except to the extent expressly permitted by the Transaction Documents, such Seller shall not liquidate or dissolve or e
nter into any amalgamation, merger or consolidation with any Person
, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions), all or substantially all of the property (whether now owned or hereafter acquired) of such Seller and its consolidated Subsidiaries (taken as a whole) to, any Person (each, a
“
Restricted Transaction
”
), unless (a) such Seller shall, subject to applicable Law, have given the Administrative Agent and each Purchaser Agent twenty (20) Business Days prior written notice of such Restricted Transaction, (b) except if an existing Seller is the surviving entity of any such amalgamation, merger or consolidation with or into any Subsidiary of Bunge Limited which is organized under the laws of the
30
United States of America, the surviving entity provides an acknowledgment or reaffirmation of its obligations hereunder and under the other Transaction Documents to which it (or the applicable non-surviving entity) was a party, together with such opinions of counsel as the Administrative Agent or any Purchaser Agent may reasonably request, in each case, in form and substance reasonably satisfactory to such Agent, (c) no Material Adverse Effect would occur as a result of such Restricted Transaction, (d) no Seller Event or Portfolio Event exists after giving effect to such Restricted Transaction, and (e) the surviving entity is an existing Seller hereunder or a Subsidiary of Bunge Limited organized under the laws of a State in the United States of America.
5.17
Taxes
Such Seller will file all material Tax returns and reports required by Law to be filed by it and will within the time period required by applicable Law or regulation pay all Taxes and governmental charges at any time then due and payable by it (including, without limitation, all Taxes payable by such Seller in connection with any Acquired Receivable and Receivables Property transferred by such Seller to the Buyer hereunder), except to the extent such Taxes or governmental charges are being contested in good faith by appropriate proceedings and such Seller has set aside in its books adequate reserves in accordance with GAAP as reasonably determined by such Seller or the failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.18
[Reserved.]
5.19
Licenses, Etc.
Such Seller shall maintain in full force and effect all licenses, approvals, authorizations, consents, registrations and notifications which are at any time required in connection with the performance of its duties and obligations hereunder and under the other Transaction Documents to which it is a party, except to the extent the failure to do so would not have a Material Adverse Effect.
5.20
[Reserved.]
5.21
Change in Auditors or Accounting Policies
Such Seller shall promptly notify the Administrative Agent of (i) any change in its auditors or (ii) any material change in its accounting policies to the extent such change in accounting policies could reasonably be expected to have a Material Adverse Effect.
5.22
Power of Attorney
Such Seller will not voluntarily revoke or attempt to revoke any power of attorney granted by it in connection with the transactions contemplated by the Transaction Documents (unless such revocation results from mandatory application of applicable Law).
31
5.23
Negotiable Instruments
Unless delivered to the Buyer (who shall deliver to the Administrative Agent under the Receivables Transfer Agreement), such Seller shall not take any action to cause any Acquired Receivable not evidenced by a negotiable instrument upon origination to become evidenced by a negotiable instrument, except in connection with the enforcement or collection of a Defaulted Receivable.
5.24
Separateness
Such Seller shall:
(a)
maintain corporate records and books of account separate from those of the Buyer;
(b)
ensure that the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained as official records;
(c)
maintain an arm’s-length relationship with the Buyer and not hold itself out as being liable for any Indebtedness of the Buyer;
(d)
keep its assets and its liabilities wholly separate from those of the Buyer;
(e)
not mislead third parties by conducting or appearing to conduct business on behalf of the Buyer or expressly or impliedly representing or suggesting that such Seller is liable or responsible for any Indebtedness of the Buyer or that the assets of such Seller are available to pay the creditors of the Buyer;
(f)
not hold the Buyer out to third parties as other than an entity with assets and liabilities distinct from such Seller or any Affiliate or Subsidiary thereof;
(g)
not hold itself out to be responsible for any decisions or actions relating to the Buyer;
(h)
take such other actions as are necessary on its part to ensure that all corporate procedures required by its Organizational Documents are duly and validly taken;
(i)
keep correct and complete records and books of account and corporate minutes;
(j)
not act in any manner that could foreseeably mislead others with respect to the Buyer’s separate identity;
(k)
at all times limit its transactions with the Buyer only to those expressly permitted hereunder or under any other Transaction Document;
32
(l)
not take any action that would cause Bunge Securitization B.V. to cease to be in compliance with
Section 5.1(j)
(S
eparateness
) of the Receivables Transfer Agreement; and
(m)
take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken by it in order to (I) ensure that the assumptions and factual recitations set forth in the true sale opinion and non-consolidation opinion, each dated the date hereof, of Reed Smith LLP remain true and correct in all material respects with respect to it and the Buyer and (II) comply in all material respects with those procedures described in such provisions which are applicable to it.
5.25
Treatment as Sales.
Such Seller shall not account for or treat (whether in financial statements or otherwise) the transactions contemplated by this Agreement in any manner other than as a sale and absolute conveyance of the Acquired Receivables and Receivables Property by such Seller to the Buyer.
6.
ADMINISTRATION AND COLLECTION
6.1
Designation of Master Servicer
Consistent with the Buyer’s ownership of the Acquired Receivables and Receivables Property related thereto, each Seller acknowledges and agrees that the servicing, administration and collection of the Acquired Receivables and Receivables Property related thereto shall be the responsibility and right of the Buyer and its assigns. The Buyer has advised the Sellers that (a) the Buyer has conveyed and will convey its right, title and interest in the Acquired Receivables and the Receivables Property related thereto to Bunge Securitization B.V., and Bunge Securitization B.V. has transferred such interest to the Administrative Agent on behalf of the Purchasers and the Buyer has also granted and will grant a security interest therein to Bunge Securitization B.V., and Bunge Securitization has transferred such interest to
the Administrative Agent, for the benefit of the Secured Parties under and pursuant to the Receivables Transfer Agreement and (b) the servicing, administration and collection of the Acquired Receivables, and Receivables Property shall be conducted by the Person designated as the Master Servicer pursuant to the Servicing Agreement from time to time. Pursuant to the Servicing Agreement (i) the Buyer has requested Bunge Finance B.V., and
Bunge Finance B.V. has agreed that it will, act as the initial Master Servicer and (ii) Bunge Finance B.V. has appointed each Seller to act as its Sub-Servicer with respect to the Acquired Receivables originated by such Seller and the Receivables Property related thereto and each Seller has accepted such appointment.
6.2
Certain Rights of the Buyer
(a)
Each Seller and the Buyer hereby agree that the Administrative Agent may (and, if so directed by the Majority Committed Purchasers, shall) at any time following the occurrence and during the continuation of a Seller Event with respect to such
33
Seller or any Portfolio Event, assume exclusive control of the U.S. Collection Accounts related to such Seller or otherwise exercise its rights under the U.S. Account Security Agreements related to such Seller, and, in each case, may take such actions to effect such assumption as it may determine to be necessary or appropriate (including delivering the notices attached to such U.S. Account Security Agreements).
(b)
At any time following the occurrence and during the continuation of a Specified Seller Termination Event:
(i)
at the Buyer’s or (acting either on its own initiative or at the request of the Administrative Agent or the Majority Committed Purchasers) the Administrative Agent’s request and at the applicable Sellers’ expense, the applicable Seller shall (and, if that Seller shall fail to do so within two (2) Local Business Days, the Buyer or the Administrative Agent may) (A) notify each Obligor of Acquired Receivables originated or acquired by such Seller of the sale, assignment, transfer and conveyance of the Acquired Receivables and Receivables Property with respect thereto pursuant hereto and of the Buyer’s or the Administrative Agent’s (for the benefit of the Purchasers) ownership of, and the Administrative Agent’s security interest in, the Acquired Receivables and Receivables Property with respect thereto, (B) direct such Obligors that payments under any such Acquired Receivable or any Receivables Property with respect thereto be made directly to the Buyer or the Administrative Agent or their designees, and (C) execute any power of attorney or other similar instrument and/or take any other action necessary or desirable to give effect to such notification and directions, including any action required (x) to convey or perfect the Buyer’s title or the Administrative Agent’s title or security interest in the Acquired Receivables and Receivables Property, or (y) to be taken so that the obligations or other indebtedness of such Obligors in respect of any Acquired Receivables and any Receivables Property with respect thereto may no longer be legally satisfied by payment to the applicable Seller or any of its Affiliates; and
(ii)
at the Buyer’s or (acting either on its own initiative or at the request of the Majority Committed Purchasers) the Administrative Agent’s request and at the applicable Seller’s expense, the applicable Seller shall (A) assemble all of the Contracts, documents, instruments and other Records (including computer tapes and disks) that evidence or relate to the Acquired Receivables of that Seller and any Receivables Property with respect thereto, or that are otherwise necessary or desirable to collect such Acquired Receivables and any Receivables Property with respect thereto, and shall make the same available to the Buyer and the Administrative Agent at a place selected by the Administrative Agent or its designee and (B) segregate all cash, checks and other instruments received by it from time to time
34
constituting Collections of such Acquired Receivables in a manner acceptable to the Administrative Agent and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Administrative Agent or its designee.
(c)
Each Seller hereby authorizes the Buyer and the Administrative Agent, following the occurrence and during the continuation of a Specified Seller Termination Event, to take any and all steps in such Seller’s name and on behalf of such Seller that are necessary or desirable, in the determination of the Buyer or the Administrative Agent (in its own discretion or upon instruction of the Majority Committed Purchasers), to collect amounts due under the Acquired Receivables and any Receivables Property with respect thereto, including (i) endorsing in such Seller’s name and in favor of or otherwise to the order of the Buyer checks and other instruments representing Collections, and (ii) enforcing the Acquired Receivables and any Receivables Property with respect thereto, including to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection therewith and to file any claims or take any action or institute any proceedings that the Buyer. the Administrative Agent or any Purchaser Agent (or any designee) may deem to be necessary or desirable for the collection thereof or to enforce compliance with the terms and conditions of, or to perform any obligations or enforce any rights of such Seller in respect of, the Acquired Receivables and any Receivables Property with respect thereto and the other Transaction Documents.
6.3
Rights and Remedies
(a)
If any Seller fails to perform any of its obligations under this Agreement or any other Transaction Document to which it is a party and a Specified Seller Termination Event has occurred and is continuing with respect to such Seller, the Buyer (or the Administrative Agent, as its designee) may (but shall not be required to) itself perform, or cause performance of, such obligation; and the costs and expenses of the Buyer (or the Administrative Agent, as its designee) reasonably incurred in connection therewith shall be payable by such Seller.
(b)
Each Seller shall perform its obligations under the Contracts and in respect of the Acquired Receivables and Receivables Property to the same extent as if they had not been sold to the Buyer. The exercise by the Buyer of its rights under or in connection with this Agreement shall not release any Seller from any of its duties or obligations with respect to any Contracts or in respect of the Acquired Receivables and Receivables Property. The Buyer shall not have any obligation or liability with respect to any Acquired Receivable, Receivables Property or Contracts, nor shall it be obligated to perform the obligations of any Seller thereunder or in respect thereof.
35
(c)
Each Seller shall cooperate with the Master Servicer in collecting amounts due from Obligors in respect of the Acquired Receivables and Receivables Property related thereto.
7.
SELLER TERMINATION EVENTS; EFFECT OF TERMINATION DATE
7.1
Seller Termination Events
If any of the following events (each a
“
Seller Termination Event
”
) shall occur and be continuing:
(a)
a Seller shall fail to make any payment or deposit required to be made by it hereunder or under any other Transaction Document to which it is a party when due hereunder or thereunder and such failure remains unremedied for two (2) Local Business Days from the earlier to occur of (i) the date upon which a Responsible Offer of such Seller obtains knowledge of such failure or (ii) the date on which written notice of such failure requiring the same to be remedied, shall have been given to such Seller by the Buyer, the Administrative Agent or any Purchaser Agent; or
(b)
any representation, warranty, certification or statement made by a Seller in this Agreement or any other Transaction Document to which such Person is a party shall prove to have been incorrect in any material respect when made or deemed made (other than any breach of a representation, warranty, certification or statement solely relating to an Acquired Receivable for which the entire Deemed Collection amount required to be paid under the applicable Specified Deemed Collection Section has been paid) and such Person shall have failed to remedy such circumstances in a manner such that such representation, warranty, certification or statement is true and correct in all material respects within thirty (30)
days after a Responsible Officer of such Person obtained knowledge or received notice thereof; or
(c)
other than as addressed in
Section 7.1(a)
, a Seller shall fail to perform or observe any term, covenant, undertaking or agreement contained in this Agreement or any other Transaction Document to which such Person is a party in any material respect, and such Person shall have failed to remedy such failure within thirty (30) days after a Responsible Officer of such Person obtained knowledge or received notice thereof; or
(d)
the Administrative Agent, on behalf of the Secured Parties, shall, for any reason, fail or cease to have a valid and perfected first priority security interest or pledge prior to all other interests in the Acquired Receivables, the Receivables Property or any U.S. Collection Account; or
(e)
a Seller shall fail to be a direct or indirect Subsidiary of Bunge Limited; or
(f)
the failure by a Seller to pay one or more final judgments requiring such Seller to pay a sum or sums of money aggregating in excess of $50,000,000
or the Dollar
36
Equivalent thereof in any other currency, which judgments are not discharged or effectively vacated, discharged, bonded, waived or stayed (including by appeal within thirty (30) days from the entry thereof) for a period of thirty (30) consecutive days (unless fully covered by insurance as to which the relevant insurance company has acknowledged coverage), or any action shall be legally taken by a judgment creditor to levy upon assets or properties of such Seller to enforce any such judgment; or
(g)
except in the case of a termination expressly permitted under
Section 9.13
(
Termination of Seller
) or under
Section 5.7
(
Change in U.S. Collection Accounts
), this Agreement or any U.S. Account Security Agreement or any material provision hereof or thereof shall cease, for any reason, to be in full force and effect, or a Seller shall so assert in writing or shall otherwise seek to terminate or disaffirm its material obligations hereunder or under any other Transaction Document to which it is a party; or
(h)
the occurrence of an event or circumstance which has a Material Adverse Effect on a Seller; or
(i)
a Facility Termination Event shall occur under the Receivables Transfer Agreement;
then the Buyer (or the Administrative Agent acting on behalf of the Buyer) may (and if so directed by the Required Committed Purchasers shall), declare the Termination Date to have occurred with respect to each Seller with respect to which a Seller Termination Event has occurred, or, in the case of a Seller Termination Event specified in
Section 7.1(i)
all Sellers, upon notice to such Seller or Sellers;
provided
that, automatically upon the occurrence of any event (without any requirement for the giving of notice) specified in
Section 7.1(i)
that occurs as a result of an event specified in
Section 7.1(e)
(
Facility Termination Events
) of the Receivables Transfer Agreement, the Termination Date shall occur with respect to all Sellers. Upon any such declaration or upon such automatic termination following the occurrence of a Specified Seller Termination Event, the Buyer and its assignees shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided after default under applicable Law, which rights and remedies shall be cumulative.
7.2
Effect of Termination Date
Following the occurrence of the Termination Date in respect of any Seller or Sellers, the applicable Sellers shall not sell, and the Buyer shall not purchase from such Sellers, any Receivables or Receivables Property. No termination or rejection or failure to assume the executory obligations of this Agreement in any Event of Bankruptcy with respect to any Seller or the Buyer (or its assignees) shall be deemed to impair or affect the obligations pertaining to any executed sales or other executed obligations or undertakings, including pre-termination breaches of representations and warranties by the Sellers or the Buyer. Notwithstanding anything herein or any other Transaction Document to the contrary
37
(a) the occurrence of the Termination Date in respect of any Seller or Sellers shall not discharge any Person from any obligations incurred prior to the Termination Date, including any obligations to make any payments with respect to the interest of the Buyer in any Receivable or other Receivables Property sold, assigned and otherwise conveyed by the applicable Seller to the Buyer prior to the Termination Date, and (b) the rights and remedies with respect to any breach of any representation and warranty made by any Seller pursuant to
Section 4
(
Representations and Warranties
), and the provisions of
Section 2.3
(
Deemed Collections
),
Section 8
(
Indemnification
) and
Section 9
(
Miscellaneous
) shall survive the occurrence of the Termination Date or any termination of this Agreement.
8.
INDEMNIFICATION
8.1
Indemnities by the Sellers
Without limiting any other rights that the Buyer and its respective officers, directors, agents, employees, assigns (including the Administrative Agent, each Purchaser and each Secured Party), controlling Persons or Affiliates of any of the foregoing (each, an
“
Indemnified Party
”
) may have hereunder, under any other Transaction Document or under applicable Law, each Seller hereby agrees (on the basis specified in
Section 9.4(b)
(
Costs and Expenses
)) to indemnify and hold harmless each Indemnified Party from and against any and all damages, losses, claims, liabilities, deficiencies, costs, disbursements and expenses, including interest, penalties, amounts paid in settlement and reasonable lawyers’ fees and expenses (all of the foregoing being collectively referred to as
“
Indemnified Amounts
”
) awarded against or incurred by any Indemnified Party (including in connection with or relating to any investigation, litigation or lawsuit (actual or threatened) or order, consent, decree, judgment, claim or other action of whatever sort (including the preparation of any defence with respect thereto)), in each case, to the extent arising out of or resulting from this Agreement or any other Transaction Document (including any and all amounts paid or payable by Bunge Securitization B.V. pursuant to
Sections 2.11
(
Breakage Costs
),
2.14
(
Indemnity for Reserves and Expenses
),
2.15
(
Indemnity for Taxes
),
10
(
Indemnities by the Seller
),
11.4
(
Costs and Expenses
) and
11.15
(
Judgement Currency
) of the Receivables Transfer Agreement and any and all amounts paid or payable by the Buyer pursuant to Section 8.1 or 8.2 of the U.S. Intermediate Transfer Agreement), or any transaction contemplated hereby or thereby, including, without limitation, Indemnified Amounts awarded against or incurred by any Indemnified Party in connection with, as a result or related to:
(i)
any investigation, litigation or lawsuit (actual or threatened) or order, consent decree, judgment, claim or other action of whatever sort (including the preparation of any defense with respect thereto), in each case, in any way arising out of, resulting from or related to the purchase or maintenance or financing, either directly or indirectly, by any Indemnified Party of the Acquired Receivables, the Receivables Property or interest therein, or the use of the proceeds thereof, or the enforcement, servicing, administration or collection of any Acquired Receivable, or any other transaction contemplated hereby or thereby;
38
(ii)
the occurrence of any Seller Termination Event or Servicer Default;
(iii)
the failure to vest in the relevant Buyer absolute ownership of each Acquired Receivable originated by such Seller and the Receivables Property related thereto, free of any Adverse Claims;
(iv)
the failure to vest in the Administrative Agent a first priority perfected ownership or security interest prior to all other interests in all of the Acquired Receivables originated by such Seller and the Receivables Property related thereto, free and clear of any Adverse Claim;
(v)
any dispute, claim, setoff or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Acquired Receivable (including a defense based on such Acquired Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise, goods or services related to such Acquired Receivable or the furnishing or failure to furnish such merchandise, goods or services or relating to collection activities with respect to such Acquired Receivable or from any breach or alleged breach of any provision of the Acquired Receivables or any Contracts related thereto restricting assignment of any Receivables; or
(vi)
the commingling by such Seller of Collections of Acquired Receivables at any time with any other funds, the payment of any Collections into an account other than a U.S. Collection Account, or any failure of a U.S. Collection Account Bank to remit any amounts held in the U.S. Accounts or any related lock-boxes pursuant to applicable instructions whether by reason of the exercise of setoff rights, insolvency or otherwise;
excluding, however (a) Indemnified Amounts to the extent that such Indemnified Amounts resulted from the gross negligence, fraud or wilful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction by a final non-appealable judgment, (b) recourse (except as otherwise specifically provided in this Agreement or any other Transaction Document) for Uncollectible Acquired Receivables and Receivables Property with respect thereto, (c) any Excluded Taxes, and (d) any Indemnified Amount to the extent the same has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document.
8.2
Taxes
(a)
Any and all payments and distributions made in respect of the Acquired Receivables and Receivables Property related thereto, and all payments and distributions made or deemed made by any Seller to the Buyer, the Administrative
39
Agent or any other Person, whether pursuant hereto or pursuant to any other Transaction Document, shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided
that if such Seller shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this
Section 8.2
) the recipient of such payment receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Seller shall make such deductions, and (iii) such Seller shall pay the full amount deducted to the relevant Official Body in accordance with applicable Law.
(b)
In addition, such Seller shall (on the basis specified in Section 9.4(b)) pay any Other Taxes to the relevant Official Body in accordance with applicable Law.
(c)
The Sellers shall (on the basis specified in Section 9.4(b)) indemnify each Indemnified Party, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by such Indemnified Party on or with respect to the purchase of Receivables and Receivables Property under this Agreement and any payment by or on account of any obligation of the Sellers hereunder or where payment of any Indemnified Taxes or Other Taxes is otherwise made by an Indemnified Party pursuant to or in connection with this Agreement (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 8.2
) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Official Body (other than those resulting from the Indemnified Party’s gross negligence, fraud or wilful misconduct). A certificate (along with a copy of the applicable documents from the relevant Official Body) as to the amount of such payment or liability delivered to the Sellers by an Indemnified Party, or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Purchaser, shall be conclusive absent manifest error.
(d)
As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Seller to an Official Body, such Seller shall deliver to the applicable Indemnified Party the original or a certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to such Indemnified Party.
(e)
Upon the reasonable request of Seller, any Indemnified Party that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the relevant Seller is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement, shall deliver to such Seller (with a copy to the Administrative Agent) such properly completed and executed documentation prescribed by applicable Law (and, so far as is practicable, within
40
the time or times required by applicable Law) as will permit such payments to be made without withholding or at a reduced rate.
(f)
If an Indemnified Party determines, in its sole good-faith discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by a Seller or with respect to which a Seller has paid additional amounts pursuant to this
Section 8.2
, it shall pay over such refund to such Seller (but only to the extent of indemnity payments made, or additional amounts paid, by a Seller under this
Section 8.2
with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Indemnified Party and without interest (other than any interest paid by the relevant Official Body with respect to such refund net of any applicable Taxes payable in respect of such interest);
provided
that such Seller, upon the request of such Indemnified Party, agrees to repay the amount paid over to such Seller (plus any penalties, interest or other charges imposed by the relevant Official Body) to such Indemnified Party in the event such Indemnified Party is required to repay such refund to such Official Body. This
Section 8.2
shall not be construed to require any Indemnified Party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to such Seller or any other Person.
(g)
Each Indemnified Party agrees that after it becomes aware of the occurrence of any event that would cause a Seller to pay an additional amount pursuant to this
Section 8.2
with respect to Taxes or Other Taxes such Indemnified Party will use reasonable efforts to notify such Seller of such event and, to the extent not inconsistent with such Indemnified Party’s internal policies, will use its reasonable efforts to take such action, if as a result thereof the additional monies which would otherwise be required to be paid by reason of this
Section 8.2
would be materially reduced or eliminated, and, if, as determined by such Indemnified Party, in its sole good-faith discretion, such action would not subject it to any unreimbursed cost or expense or otherwise be disadvantageous to such Indemnified Party. Each Seller hereby agrees to pay all reasonable costs and expenses incurred by any Indemnified Party in connection with any action taken by such Indemnified Party pursuant to, or in connection with, this
Section 8.2(g)
.
(h)
Notwithstanding anything in this
Section 8.2
to the contrary, no Seller shall be required to pay to any Indemnified Party any amount pursuant to this
Section 8.2
to the extent such amount has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document.
9.
MISCELLANEOUS
9.1
Waiver, Amendments, Etc.
(a)
No failure or delay on the part of the Buyer or the Administrative Agent in exercising any power or other right or remedy under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any such power or
41
other right or remedy preclude any further exercise thereof or the exercise of any other power or other right or remedy. The rights and remedies herein provided shall be cumulative and non-exclusive of any rights and remedies provided by Law.
(b)
Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Buyer, the Sellers and the Seller Agent and consented to by the Administrative Agent (with the consent of the Required Committed Purchasers), and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
9.2
Notices, Etc.
(a)
All communications and notices provided for hereunder shall be provided in the manner described in
Schedule 2
(
Address and Notice Information
) to the Receivables Transfer Agreement.
(b)
Each Seller hereby appoints the Seller Agent as its agent and irrevocably authorizes the Seller Agent to execute and deliver all notices required hereunder on its behalf. Any notice required to be delivered to any Seller hereunder shall be deemed delivered to such Seller if delivered to the Seller Agent in accordance with the terms hereof. The Seller Agent accepts such appointment as agent of each Seller and agrees to act thereas until the date on which this Agreement has terminated in accordance with its terms. Each Seller agrees not to revoke, modify or withdraw such appointment until terminated pursuant to the preceding sentence.
9.3
Binding effect; Assignability
(a)
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successor and assigns. No Seller may assign or transfer its rights and obligations hereunder or any interest therein without the prior written consent of the Buyer, the Administrative Agent and each Purchaser Agent.
(b)
This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until, with respect to any Seller, the Seller Payout Date with respect to such Seller;
provided
,
however
, that the rights and remedies with respect to any breach of any representation and warranty made by any Seller pursuant to
Section 4
(
Representations and Warranties
), and the provisions of
Section 2.3
(
Deemed Collections
),
Section 8
(
Indemnification
) and
Sections 9.4
to
9.7
shall be continuing and shall survive any termination of this Agreement.
42
9.4
Costs and Expenses
(a)
In addition to the rights of indemnification granted to the Indemnified Parties pursuant to
Section 8
(
Indemnification
) hereof and the other obligations herein, the Sellers (on the basis specified in
Section 9.4(b)
) agree to pay on written demand all reasonable costs and expenses properly incurred by any Indemnified Party in connection with the preparation, execution, delivery and administration of this Agreement and the other documents and agreements to be delivered hereunder or in connection herewith, including (i) subject to
Section 5.2(a)
(
Inspections; Annual Agreed Upon Procedures Audit
) of the Receivables Transfer Agreement, all reasonable fees and expenses associated with any audits and other due diligence conducted prior to or after the Closing Date and (ii) any amendments, waivers or consents under the Transaction Documents. In addition, the Sellers (on the basis specified in
Section 9.4(b)
) agree to pay on written demand all costs and expenses of the Indemnified Parties (including reasonable lawyers’ fees and expenses), incurred in connection with the enforcement of, or any dispute, work-out, litigation or preparation for litigation involving, this Agreement and the other documents to be delivered hereunder.
(b)
Any amount payable by any Seller pursuant to this
Section 9.4
,
Section 8.1
(
Indemnities by the Sellers
) or
Section 8.2
(
Taxes
) shall be payable by the relevant Seller (i) severally but not jointly, and (ii) unless the Buyer and the Sellers agree otherwise, on a
pro rata
basis based on the aggregate Unpaid Balance of Acquired Receivables sold by each Seller to the Buyer.
9.5
Judgment Currency
(a)
If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
(b)
The obligations of a Seller in respect of any sum due to any party hereto (or their respective assigns) or any holder of the obligations owing hereunder (the “
Applicable Creditor
”) shall, notwithstanding any judgment in a currency (the “
Judgment Currency
”) other than the currency in which such sum is stated to be due hereunder (the “
Agreement Currency
”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, such Seller agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
43
Creditor against such loss; and if the amount of the Agreement Currency so purchased is more than the sum originally due to the Applicable Creditor in the Agreement Currency, such Applicable Creditor agrees to return any such excess to the applicable Seller.
9.6
No Proceedings
Each of the parties hereto hereby agrees that:
(a)
it will not institute against, or join any other Person in instituting against, any Transaction SPV any proceeding of the type referred to in the definition of Event of Bankruptcy so long as there shall not have elapsed two years plus one day since the Final Payout Date;
(b)
it will not institute against any Conduit Purchaser any proceeding of the type referred to in the definition of Event of Bankruptcy so long as any Commercial Paper or other senior indebtedness issued by such Conduit Purchaser (or its related commercial paper issuer) shall be outstanding or there shall not have elapsed two years plus one day since the last day on which any such Commercial Paper or other senior indebtedness shall have been outstanding;
(c)
notwithstanding anything to the contrary contained herein or in any other Transaction Document, the obligations of each Conduit Purchaser under the Transaction Documents are solely the corporate obligations of such Conduit Purchaser and shall be payable only at such time as funds are actually received by, or are available to, such Conduit Purchaser in excess of funds necessary to pay in full all outstanding Commercial Paper issued by such Conduit Purchaser and, to the extent such excess funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Conduit Purchaser; and
(d)
notwithstanding anything contained herein or in any other Transaction Document to the contrary, the obligations of each Transaction SPV under the Transaction Documents are solely the corporate obligations of such Transaction SPV and shall be payable solely to the extent of funds which are received by such Transaction SPV pursuant to the Transaction Documents and available for such payment in accordance with the terms of the Transaction Documents and, to the extent funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Transaction SPV.
9.7
Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
44
9.8
Third Party Beneficiary
(a)
Each of the parties hereto hereby acknowledges that the Buyer may assign or otherwise transfer all or any portion of its rights under and pursuant to this Agreement and the U.S. Account Security Agreements to Bunge Securitization B.V. and Bunge Securitization B.V. shall transfer such interest to the Administrative Agent on behalf of the Purchasers and Secured Parties. In addition, each of the parties hereto hereby acknowledges that such assigns may further assign, or grant security interests in, their rights under this Agreement, and each Seller hereby consents to any such assignment or grant. All such assigns and secured parties shall be third party beneficiaries of, and shall be entitled to enforce the Buyer’s rights and remedies under, this Agreement to the same extent as if they were parties hereto.
(b)
Without limiting the generality of the foregoing, each Seller hereby acknowledges that the Buyer has sold, transferred and otherwise assigned and will sell, transfer or otherwise assign to Bunge Securitization B.V. and Bunge Securitization B.V. has transferred such interest to
the Administrative Agent on behalf of the Purchasers all of its rights, title and interest in the Acquired Receivables and related Receivables Property and has granted and will grant a security interest in all of its powers and other rights and remedies under and pursuant to this Agreement and under each U.S. Account Security Agreement to Bunge Securitization B.V. and Bunge Securitization B.V. has transferred such interest to
the Administrative Agent for the benefit of the Secured Parties, and that each Secured Party may further assign such powers and other rights and remedies to the extent permitted in the Receivables Transfer Agreement and other Transaction Documents. Each Seller agrees that the Administrative Agent (for the benefit of the Purchasers and the Secured Parties under the Security Documents) shall, subject to the terms of the Receivables Transfer Agreement, have the right to enforce this Agreement and each U.S. Account Security Agreement and to exercise directly all of the Buyer’s rights and remedies under this Agreement and each U.S. Account Security Agreement (including the right to give or withhold any consents or approvals of the Buyer to be given or withheld hereunder) and each Seller agrees to cooperate fully with the Administrative Agent in the exercise of such rights and remedies, provided that each of the Secured Parties shall only enforce or otherwise take action under this Agreement by acting through the Administrative Agent. Each Seller (or the Seller Agent on their behalf) further agrees to give to the Administrative Agent copies of all notices and reports it is required to give to the Buyer hereunder.
(c)
Notwithstanding anything herein to the contrary, (i) no declaration of the Termination Date in respect of a Seller, and no other amendment, waiver, consent, request or other modification made or granted by the Buyer hereunder, shall in any case be effective unless the same shall have been made or granted by, or approved in writing by, the Administrative Agent (which may make, grant or approve the Termination Date, and which shall, at the direction of the Required Committed Purchasers make, grant or approve the Termination Date), and (ii) no
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declaration of the Termination Date in respect of a Seller by such Seller shall in any case be effective unless notice of such declaration shall have been received by the Administrative Agent.
9.9
Restriction on Payments; Waiver of Setoff
Except as otherwise expressly provided herein, the obligations of each Seller to make the deposits and other payments contemplated by this Agreement is absolute and unconditional and all payments to be made by such Seller under or in connection with this Agreement or the Servicing Agreement, including in their capacities as Servicer Parties under the Servicing Agreement, shall be made free and clear of, and each Seller hereby irrevocably and unconditionally waives all rights of, any counterclaim, set-off, deduction or other analogous rights or defenses, which such Seller may have against the Buyer, the Administrative Agent, the Purchasers, the Secured Parties or otherwise (including any obligation of the Buyer in respect of the payment of the Purchase Price for any Receivable sold hereunder), whether under this Agreement, the Transaction Documents, applicable Law, in equity or otherwise.
9.10
Entire Agreement; Severability; Execution in Counterparts
(a)
Subject to any terms implied by law, this Agreement and the other Transaction Documents together represent the entire agreement between the parties in relation to the subject matter of this Agreement and the other Transaction Documents and supersede any previous agreement between the parties in relation to the subject matter.
(b)
If, at any time, any provision of this Agreement or any transaction hereunder is or becomes, illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof or any remaining transaction hereunder, nor the legality, validity or enforceability of such remaining provision or transaction under the law of any jurisdiction, shall in any way be affected or impaired thereby.
(c)
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.
9.11
Consent to Jurisdiction
(a)
Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably waives, to the fullest extent that it may legally do so, the defense of an inconvenient forum to the maintenance of such
46
action or proceeding. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(b)
Each of the Sellers, the Seller Agent and the Buyer consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to it at its address specified herein. Nothing in this
Section 9.11
shall affect the right of any party to serve legal process in any manner permitted by law.
9.12
Additional Sellers
Subject to the terms and conditions hereof and of
Section 11.14
(
Limitations on the Addition and Termination of Originators
) of the Receivables Transfer Agreement, from time to time any direct or indirect Subsidiary of Bunge Limited that is organized under the laws of a State of the United States of America may with the prior written consent of each Purchaser Agent (such consent not to be unreasonably withheld) become an Additional Seller party hereto. If any such Subsidiary wishes to become an Additional Seller, the Seller Agent shall submit a request to such effect in writing to the Buyer and the Administrative Agent. Such Subsidiary shall become an Additional Seller party hereto on the related Seller Addition Date upon satisfaction of the conditions set forth in
Section 3.3
(
Conditions Precedent to the Addition of an Additional Seller
).
9.13
Termination of Seller
Any Seller or the Seller Agent (on behalf of the applicable Seller) may, upon 10 Business Days’ prior written notice to the Buyer and the Administrative Agent, irrevocably terminate its right to sell Receivables to the Buyer pursuant to this Agreement, in which case the Termination Date shall occur with respect to such Seller on the date specified by such Seller;
provided
,
however
, that, for the avoidance of doubt,
Section 7.2
(
Effect of Termination Date
) shall apply with respect to such terminating Seller. Notwithstanding the foregoing, no Seller shall terminate its right to sell Receivables to the Buyer pursuant to this Agreement at a time a non-waiving Purchaser is exiting the Receivables Transfer Agreement pursuant to
Section 11.1
(
Amendments, etc.
).
9.14
Waiver of Jury Trial
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE
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PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
9.15
Responsible Officer Certificates; No Recourse
Any certificate executed and delivered by a Responsible Officer of a Seller or the Buyer pursuant to the terms of the Transaction Documents shall be executed by such Responsible Officer not in an individual capacity but solely in his or her capacity as an officer of such Seller or the Buyer, as applicable, and such Responsible Officer will not be subject to personal liability as to the matters contained in any such certificate. A director, officer, employee or shareholder, as such, of any Seller or the Buyer shall not have liability for any obligation of any Seller or the Buyer hereunder or under any Transaction Document for any claim based on, in respect of, or by reason of, any Transaction Document, unless such claim results from the gross negligence, fraudulent acts or wilful misconduct of such director, officer, employee or shareholder.
[signatures appear on the following pages]
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IN WITNESS WHEREOF
, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
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BUNGE NORTH AMERICA, INC.
, as a Seller
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By:
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/s/ John P. Gilsinn
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Name:
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John P. Gilsinn
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Title:
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Treasurer
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Address:
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BUNGE OILS, INC.
, as a Seller
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By:
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/s/ John P. Gilsinn
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Name:
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John P. Gilsinn
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Title:
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Treasurer
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Address:
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BUNGE NORTH AMERICA (EAST), LLC
, as a Seller
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By:
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/s/ John P. Gilsinn
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Name:
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John P. Gilsinn
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Title:
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Treasurer
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Address:
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BUNGE MILLING, INC.
, as a Seller
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By:
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/s/ John P. Gilsinn
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Name:
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John P. Gilsinn
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Title:
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Treasurer
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Address:
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U.S. Receivables Purchase Agreement
S-1
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BUNGE NORTH AMERICA (OPD WEST), INC.
, as a Seller
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By:
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/s/ John P. Gilsinn
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Name:
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John P. Gilsinn
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Title:
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Treasurer
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Address:
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BUNGE FINANCE B.V.,
as Seller Agent
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By:
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/s/ Steven Claassens
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Name:
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Steven Claassens
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Title:
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Director
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By:
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/s/ Luc Dekkers
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Name:
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Luc Dekkers
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Title:
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Director
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Address:
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BUNGE NORTH AMERICA CAPITAL, INC.
, as Buyer
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By:
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/s/ John P. Gilsinn
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Name:
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John P. Gilsinn
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Title:
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Treasurer
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Address:
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U.S. Receivables Purchase Agreement
S-2
SCHEDULE 1
Seller Information
1.1
Name: Bunge North America, Inc.
Jurisdiction of formation / Location for purposes of 9-307 of UCC: New York
Corporate Names, tradenames and d/b/a (since formation): (i) Bunge North American Grain Corporation, (ii) Bunge Corporation and (iii) Bunge North America, Inc.
Tax ID # 13-4977260
Principal place of business and chief executive office for last five years: 11720 Borman Drive, St. Louis, MO 63146
Predecessor Entities (as defined in Section 4.1(n)) during the preceding five years: None
1.2
Name: Bunge Oils, Inc.
Jurisdiction of formation / Location for purposes of 9-307 of UCC: Delaware
Corporate Names, tradenames and d/b/a (since formation): (i) Carlin Foods Corporation, (ii) Bunge Foods Corporation and (iii) Bunge Oils, Inc.
Tax ID # 36-3253825
Principal place of business and chief executive office for last five years: 11720 Borman Drive, St. Louis, MO 63146
Predecessor Entities (as defined in Section 4.1(n)) during the preceding five years: None
1.3
Name: Bunge North America (East), L.L.C.
Jurisdiction of formation / Location for purposes of 9-307 of UCC: Delaware
Corporate Names, tradenames and d/b/a (since formation): Bunge North America (East), L.L.C.
Tax ID # 20-0537386
Principal place of business and chief executive office for last five years: 11720 Borman Drive, St. Louis, MO 63146
Predecessor Entities (as defined in Section 4.1(n)) during the preceding five years: None
1.4
Name: Bunge Milling, Inc.
Jurisdiction of formation / Location for purposes of 9-307 of UCC: Illinois
Corporate Names, tradenames and d/b/a (since formation): (i) Lauhoff Grain Company, (ii) Bunge Lauhoff Grain Company and (iii) Bunge Milling, Inc.
Tax ID # 37-0614689
Principal place of business and chief executive office for last five years: 11720 Borman Drive, St. Louis, MO 63146
Predecessor Entities (as defined in Section 4.1(n)) during the preceding five years: None
1.5
Name: Bunge North America (OPD West), Inc.
Jurisdiction of formation / Location for purposes of 9-307 of UCC: Delaware
Corporate Names, tradenames and d/b/a (since formation): (i) Bunge Corporation (Emporia), (ii) Bunge North America (Emporia), Inc., (iii) Bunge North America (SPD West), Inc. and (iv) Bunge North America (OPD West), Inc.
Tax ID # 36-3927910
Principal place of business and chief executive office for last five years: 11720 Borman Drive, St. Louis, MO 63146
Predecessor Entities (as defined in Section 4.1(n)) during the preceding five years: None
SCHEDULE 2
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in this Agreement, each Seller hereby represents, warrants, and covenants as follows with respect to itself and the Acquired Receivables sold by such Seller hereunder only:
General
1.
This Agreement creates a valid and continuing ownership or security interest (as defined in UCC Section 9-102) in the Acquired Receivables and Receivables Property related thereto in favor of the Buyer (and the Administrative Agent as assignee thereof), which security interest is prior to all other Adverse Claims (except for Permitted Adverse Claims), and is enforceable as such as against creditors of and purchasers from the Seller.
2.
The Acquired Receivables constitute “accounts” within the meaning of UCC Section 9-102.
3.
Each U.S. Collection Account constitutes a deposit account.
Creation
4.
Immediately prior to (or concurrent with) the transfer and assignment herein contemplated, the Seller had good title to each Acquired Receivable, and was the sole owner thereof, free and clear of all Adverse Claims (except for Permitted Adverse Claims) and, upon the transfer thereof, the Buyer shall have good title to each such Receivable, and will (i) be the sole owner thereof, free and clear of all Adverse Claims (except for Permitted Adverse Claims), or (ii) have a first priority security interest in such Acquired Receivables, and the transfer or security interest will be perfected under the UCC. Seller has not taken any action to convey any right to any Person that would result in such Person having a right to payments due under the Acquired Receivables.
Perfection
5.
The Seller has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable Law in order to perfect the sale of, or security interest in, the Acquired Receivables.
6.
With respect to the U.S. Collection Accounts, the Seller has delivered to the Administrative Agent a fully executed agreement pursuant to which the related account bank has agreed to comply with all instructions originated by the Administrative Agent relating to each of the U.S. Collection Accounts without further consent by the Seller.
Priority
7.
Other than the transfer of the Acquired Receivables to the Buyer under this Agreement, the Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Acquired Receivables and Receivables Property related thereto. The Seller has not authorized the filing of, or is aware of, any financing statements against the Seller that include a description of collateral covering the Acquired Receivables and Receivables Property related thereto other than any financing statement relating to the transfers under this Agreement or that has been terminated.
8.
The Seller has no knowledge of any judgment, ERISA or tax lien filings against it which would reasonably be expected to have a Material Adverse Effect.
9.
Notwithstanding any other provision of this Agreement, the Perfection Representations contained in this Schedule shall be continuing, and remain in full force and effect until such time as all obligations under this Agreement have been finally and fully paid and performed.
10.
The Buyer shall not, without obtaining a confirmation of the Administrative Agent, waive any of the Perfection Representations.
EXHIBIT A
FORM OF ASSIGNMENT OF REPURCHASED RECEIVABLES
This Assignment of Repurchased Receivables (this
“
Assignment
”
) is delivered pursuant to the U.S. Receivables Purchase Agreement, dated as of May , 2011 (the
“
Receivables Purchase Agreement
”
), by and among Bunge North America, Inc., Bunge Oils, Inc., Bunge North America (East), LLC, Bunge Milling, Inc., Bunge North America (OPD West), Inc.
(each of the foregoing, a
“
Seller
”
), Bunge Finance B.V. (the
“
Seller Agent
”
), and Bunge North America Capital, Inc. (the
“
Buyer
”
).
The Buyer hereby sells and otherwise assigns, transfers and conveys to the Seller and the Seller hereby purchases and otherwise acquires, without recourse, representation or warranty, all of the Buyer’s present and future right, title and interest in, to and under:
(a)
each and every Receivable listed in
Annex I
to this Assignment;
(b)
all Collections with respect to such Receivables;
(c)
all Related Security with respect to such Receivables; and
(d)
all proceeds of or payments in respect of any and all of the foregoing clauses (a) through (c) (including Collections).
(the property described in the foregoing Sections (b), (c) and (d) is hereinafter collectively referred to as the
“
Receivables Property
”
).
It is the intention of the parties hereto that the sale of the Receivables and the Receivables Property pursuant hereto shall be treated as a purchase by the Seller and a sale by the Buyer of such Receivables and the Receivables Property with respect thereto, which sales are absolute and irrevocable and provide the Seller with the full benefits of ownership of such Receivables and Receivables Property. The sale of Receivables and the Receivables Property pursuant to this Assignment is made without recourse to the Buyer and the Buyer does not undertake to perform any covenant or agreement or make any representation or warranty (other than the representation that it has not disposed of any interest in the Receivables or Receivables Property or created any Adverse Claim on or over them (other than an Adverse Claim created under the Security Documents or other Transaction Documents)).
This Assignment is made pursuant to the Receivables Purchase Agreement and is to be governed by the Receivables Purchase Agreement.
The Buyer hereby represents that aggregate Unpaid Balance of the Receivables listed on
Annex I
hereto is [
·
].
This Assignment shall be governed and construed in accordance with the law of the State of New York.
Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in, or incorporated by reference into, the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly executed as of
[Date]
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[U.S. ORIGINATOR]
, as Seller
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By:
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Name:
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Title:
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BUNGE FINANCE B.V.,
as Seller Agent
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By:
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Name:
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Title:
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BUNGE NORTH AMERICA CAPITAL, INC.
, as Buyer
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By:
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Name:
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Title:
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EXHIBIT B
FORM OF U.S. ACCOUNT SECURITY AGREEMENT
2
DEPOSIT ACCOUNT CONTROL AGREEMENT
(Secured Party Notification)
(WITH OPTIONAL RESCISSION OF NOTICE - SPECIAL HANDLING)
UMB BANK, N.A.
, a national banking association as depositary bank (the “
Bank
”),
BUNGE NORTH AMERICA CAPITAL, INC.
, a Delaware corporation and the Bank’s depositary banking customer (the “
Company
”), and
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
, a company organized and existing under the laws of the Kingdom of The Netherlands as Administrative Agent (the “
Secured Party
”) have entered into this DEPOSIT ACCOUNT CONTROL AGREEMENT as of this
1st
day of
June 2011
(this “
Agreement
”).
Statement of Facts
The Bank acknowledges that, as of the date hereof, it maintains in the name of the Company the deposit account(s) identified in
Exhibit A
attached hereto and made a part hereof (each an “
Account
”). An Account may be served by one or more lockboxes operated by the Bank, which lockboxes (if any) also are identified on
Exhibit A
(each a “
Lockbox
”). The Account(s) are governed by the terms and conditions of the Company’s commercial deposit account agreement published by the Bank from time to time, and with respect to any additional banking service to an Account (
e.g.
, Lockbox), also will be governed by a service description between the Bank and the Company (collectively, with all such services descriptions and/or agreements, the “
Deposit Agreement
”).
The Company hereby confirms to the Bank that the Company has granted to Bunge Securitization B.V., a company organized under the laws of the Kingdom of the Netherlands and which has transferred to the Secured Party, a security interest in the following (collectively, the “
Account Collateral
”): (a) the Account(s), (b) the Lockbox(es) and (c) the Items Collateral. “
Items
Collateral
” means, collectively, all checks, drafts, instruments, cash and other items at any time received in a Lockbox or for deposit in an Account (subject to specific Lockbox instructions in effect for processing items), wire transfers of funds, automated clearing house (“
ACH
”) entries, credits from merchant card transactions, and other electronic funds transfers or other funds deposited in, credited to, or held for deposit in or credit to, an Account.
The parties desire to enter into this Agreement in order to set forth their relative rights and obligations with respect to the Account Collateral. In consideration of the mutual covenants herein as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.
Control of the Account(s)
(a)
The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company confirms and the Bank acknowledges that each Account is a “deposit account”. Each party hereto acknowledges that this Agreement is an “authenticated record”, and that the arrangements established under this Agreement are intended to constitute “control” of
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each Account. Each of these terms is used in this Agreement as defined or used in Article 9 of the Uniform Commercial Code as adopted by the State of New York (the “New York UCC”).
(b)
The Company represents and warrants to the Secured Party that
Exhibit A
contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not instruct the Bank to close any Account without the prior written consent of the Secured Party. Nothing in this Agreement shall impose upon the Bank any obligation to monitor or assure the Company’s compliance with this Section 1(b).
(c)
The Bank confirms that, as of the date of this Agreement, the Bank has not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of other Account Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of other Account Collateral.
(d)
The Company authorizes and directs the Bank to comply, and the Bank agrees to comply, with all instructions delivered by the Secured Party to the Bank in accordance with and subject to this Agreement and with which the Bank would be obligated contractually to implement under the Deposit Agreement, including directing the disposition of funds in an Account or as to any other matter relating to an Account or other Account Collateral, without further consent by the Company. The Secured Party’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank against an Account even if the instruction results in dishonor of the item presented against the Account.
(e)
The Secured Party authorizes and instructs the Bank to: (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement; and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and other Account Collateral until the implementation by the Bank of the written instruction by the Secured Party to the Bank in the form and text of
Exhibit B
attached hereto and made a part hereof, and completed in full (a “
Notice
”), and delivered to the Bank in accordance with and subject to the provisions of Section 7 below. The Bank shall be obligated to implement the Notice only if the Notice: (A) shall be in the form and text of
Exhibit B
and completed in full; (B) shall have attached to it a copy of this Agreement as fully executed (together with all amendments thereto); and (C) shall have been delivered to the Bank in accordance with Section 7 (
provided, however,
the Bank shall be fully authorized, in its exercise of its sole discretion, to implement the Notice even if the conditions of clause (B) shall not have been fulfilled).
(f)
Upon implementation of a Notice by the Bank as provided in Section 7, the Bank shall not permit any officer, agent or other representative of the Company or its affiliates to direct the disposition of funds in any Account, withdraw or transfer any amount from any Account, or otherwise exercise any authority or power with respect to any Account, Lockbox or other Account Collateral until such time, if any, that the Bank shall have implemented a Rescission of Notice in accordance with Section 1(g). Upon implementation of a Notice by the Bank, all available funds in any Account shall only be withdrawn or transferred therefrom based on instructions delivered
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by the Secured Party to the Bank in accordance with Section 7. Each other instruction that the Secured Party shall deliver to the Bank in connection with an Account or other Account Collateral must be delivered to the Bank in accordance with the provisions of Section 7, and shall either accompany delivery of a Notice by the Secured Party to the Bank or subsequently shall be delivered by the Secured Party to the Bank. Any instruction by the Secured Party to the Bank to remit or transfer funds from an Account to any recipient account of the Secured Party or any other recipient account, and which recipient account shall not be an account maintained by the Bank, must only be an instruction to the Bank to remit or transfer funds from the Account
via
wire transfer in accordance with the Bank’s procedures governing wire transfers of funds. The Secured Party shall not instruct the Bank to remit or transfer funds from any Account
via
ACH.
(g)
At any time after the Bank shall have implemented a Notice, the Secured Party may rescind a Notice by the written instruction by the Secured Party to the Bank in the form and text of
Exhibit C
attached hereto and made a part hereof, and completed in full (a
“
Rescission
of
Notice
”
), and delivered to the Bank in accordance with and subject to the provisions of Section 7 below. The Bank shall be obligated to implement a Rescission of Notice only if the Rescission of Notice: (A) shall be in the form and text of
Exhibit C
and completed in full; (B) shall have attached to it a copy of this Agreement as fully executed (together with all amendments thereto); and (C) shall have been delivered to the Bank in accordance with Section 7 (
provided, however,
the Bank shall be fully authorized, in its exercise of its sole discretion, to implement a Rescission of Notice even if the conditions of clause (B) shall not have been fulfilled). Upon the delivery of a Rescission of Notice by the Secured Party to the Bank, the Secured Party shall have authorized and instructed the Bank to: (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement; and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and other Account Collateral until such time as the Bank shall have implemented any subsequent Notice that the Bank shall have received from the Secured Party.
During the term of this Agreement the Secured Party shall not deliver a Rescission of Notice to the Bank on more than two (2) separate occurrences, and if the Secured Party shall deliver a Rescission of Notice to the Bank on a third or successive occurrence, such third or successive Rescission of Notice shall be null, void and of no effect and shall not be implemented by the Bank.
(h)
Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules, other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which each respective Account
is located as specified in
Exhibit A
(the “
Applicable UCC
”)), and the Deposit Agreement also shall apply to the Secured Party’s exercise of control over each Account and the Account Collateral and to the performance by the Bank of its obligations under this Agreement. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s or the Secured Party’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to an Account.
2.
Statements and Other Account Information
If so requested of the Bank by the Secured Party in writing, the Bank will send to the Secured Party (in a manner consistent with the Bank’s standard practices) at the Secured Party’s address specified in Section 7, copies of all Account statements (but not canceled checks) that the Bank is required to send to the Company under the Deposit Agreement. The Bank also shall provide to each of the Company and the Secured Party when so requested (solely as a service to the Company under the Deposit
5
Agreement) copies of Account statements and other Account information, including balances, by telephone and computer communication, to the extent practicable, when requested by the Company or the Secured Party. The Company consents to the Bank’s release of all such Account information to the Secured Party. The Bank’s liability for its failure to comply with this Section 2 shall not exceed the Bank’s cost of providing such information.
3.
Subordination, Permitted Debits and Returned Items
(a)
The Bank will not exercise any security interest, lien, right of setoff, deduction, recoupment or banker’s lien, or any other interest in or against any Account or any other Account Collateral, and the Bank hereby subordinates to the security interest of the Secured Party any such security interest, lien or right that the Bank may have in or against any Account or other Account Collateral. The subordination by the Bank in the preceding sentence shall not apply to any security interest that the Bank may have as a collecting Bank in any Items Collateral as provided in Article 4 of the Applicable UCC. Notwithstanding the preceding text of this Section 3(a), the Secured Party and the Company agree that the Bank at all times (including following commencement of any bankruptcy or insolvency proceeding by or against the Company) may set off and charge against any Account (regardless of any agreement by the Company to compensate the Bank by means of balances in the Account) all of the following as provided in the Deposit Agreement (each a “
Permitted Debit
”): (i) the face amount of each Returned Item (defined below), (ii) the Bank’s usual and customary service charges and fees including, but not limited to, account maintenance fees and funds transfer fees, and (iii) out-of-pocket fees and expenses (including attorneys’ reasonable fees) incurred by the Bank in connection with the Account(s) and other Account Collateral as provided in the Deposit Agreement; whether any Permitted Debit shall have accrued or been incurred before or after the date of this Agreement. “
Returned Item
” means any (i) Items Collateral deposited in or credited to an Account before or after the date of this Agreement and returned unpaid or otherwise uncollected or subject to an adjustment entry, whether for insufficient funds or any other reason, and without regard to the timeliness of such return or adjustment or the occurrence or timeliness of any other party’s notice of nonpayment or adjustment; (ii) adjustments or corrections of posting or encoding errors; (iii) Items Collateral subject to a claim against the Bank for breach of transfer, presentment, encoding, retention or other warranty under Federal Reserve Regulations or Operating Circulars, ACH or other clearing house rules, or applicable law (including, without limitation, Articles 3, 4 and 4A of the Applicable UCC); and (iv) demand for chargeback in connection with a merchant card transaction. For avoidance of doubt, the Bank’s rights under this Section 3(a) or provisions of the Deposit Agreement shall not permit the Bank to set off against and charge an Account as a Permitted Debit any obligation of the Company to the Bank in connection with any (A) deposit account that the Company may have with the Bank and that is not an Account or (B) other agreement between the Company and the Bank; Permitted Debits shall be solely those relating to the Account(s) and Account Collateral.
(b)
If (i) the Bank were unable to set off or charge any Permitted Debit against an Account because of insufficient funds in the Account, or (ii) the Bank were to believe in good faith that any legal process or applicable law prohibited such setoff or charge against an Account, or (iii) the Account were closed, then: (A) the Bank may charge such Permitted Debit to and set off same against any other Account (and other deposit account(s) of the Company maintained with the Bank and that are not subject to this Agreement, if any, and against which other deposit account(s) of the Company the Bank is not otherwise prohibited from exercising its right of setoff); and (B)
6
if there were insufficient funds in the Account(s) against which to charge or set off such Permitted Debits, then the Bank shall demand (unless the Bank shall believe in good faith that any legal process or applicable law prohibits such demand) that the Company pay, and the Company shall pay, to the Bank promptly upon the Company’s receipt of the Bank’s written demand therefor, the full amount of all unpaid Permitted Debits.
(c)
If (i) a Notice shall have been implemented by the Bank, and (ii) there shall be insufficient funds in the Account(s) against which the Bank could charge or set off Permitted Debits, and (iii) the Company shall have failed to pay to the Bank the full amount of unpaid Permitted Debits, then the Bank may demand that the Secured Party pay, and the Secured Party shall pay, to the Bank within ten (10) calendar days of the Secured Party’s receipt of the Bank’s written demand therefor, the full amount of unpaid Permitted Debits. The obligation of the Secured Party to pay the Bank for any unpaid Permitted Debit shall be limited to the aggregate amount of funds that shall be withdrawn or transferred from the Account(s) pursuant to the Secured Party’s instruction(s) to the Bank as contemplated by this Agreement.
(d)
Subject to the provisions of the last sentence of Section 3(c), in the event that the Bank shall implement a Rescission of Notice, the Secured Party shall remain liable for payment of all Permitted Debits; provided that (i) as to unpaid Permitted Debits that are service charges, fees or expenses described in clauses (ii) and (iii) of the definition of Permitted Debit in Section 3(a), the Secured Party shall be required to pay to the Bank only those service charges, fees or expenses attributable to any Account that shall have been incurred in connection with any Account on or before the date of implementation of a Rescission of Notice and (ii) as to unpaid Permitted Debits that are Returned Items, the Secured Party shall be required to pay to the Bank only those Returned Items with respect to Items Collateral deposited in the account on or before the date of implementation of a Rescission of Notice, regardless of (A) the date such Returned Items are returned unpaid or otherwise uncollected or subject to an adjustment entry, (B) the date of any adjustment or correction of posting or encoding errors, (C) the date any Items Collateral are subject to a claim against the Bank for breach of transfer, presentment, encoding, retention or other warranty or (D) the date of any demand for chargeback in connection with a merchant card transaction. If a Notice shall have been implemented by the Bank at any time following implementation of a Rescission of Notice by the Bank, then the provisions of Section 3(c) above thereupon shall be applicable again.
4
.
Exculpation of the Bank
(a)
At all times the Bank shall be entitled to rely upon any communication that the Bank shall receive from (or shall believe in good faith to be from) the Company in connection with the Deposit Agreement and this Agreement. At all times the Bank shall be entitled to rely upon any communication that the Bank shall receive from (or shall believe in good faith to be from) the Secured Party in connection with this Agreement, and the Bank shall have no obligation to investigate or verify the authenticity or correctness of any such communication. The Bank shall have no liability to the Company or the Secured Party for the Bank: (i)
not
honoring or following any instruction that the Bank shall receive from (or shall believe in good faith to be from) the Secured Party prior to the implementation of a Notice by the Bank or following implementation of any Rescission of Notice by the Bank; (ii) honoring or following any instruction the Bank shall receive from (or shall believe in good faith to be from) the Secured Party in accordance with this Agreement; (iii) honoring or following any instruction the Bank shall receive from (or shall
7
believe in good faith to be from) the Company in accordance with this Agreement prior to the implementation of a Notice by the Bank or after the implementation of a Rescission of Notice by the Bank; or (iv) not honoring or following any instruction that the Bank shall receive from (or shall believe in good faith to be from) the Company after implementation of a Notice by the Bank or prior to the implementation of a Rescission of Notice by the Bank. The Bank shall not be responsible for the validity, priority or enforceability of the Secured Party’s security interest in any Account Collateral, nor shall the Bank be responsible to have any knowledge of or for any enforcement of any agreement between the Company and the Secured Party.
(b)
The Bank shall be responsible only for the actual loss that a court having jurisdiction over the Account(s) shall have determined had been incurred by the Company or the Secured Party and caused by the Bank’s gross negligence or willful misconduct in its performance of its obligations under this Agreement. The Bank shall have no liability for failure of, or delay in, its performance under this Agreement resulting from any “act of God”, war or terrorism, fire, other catastrophe or
force majeure
, electrical or computer or telecommunications failure, any event beyond the control of the Bank, or fraud committed by any third party. Nothing in this Agreement shall create any agency, fiduciary, joint venture or partnership relationship between the Bank and the Company or between the Bank and the Secured Party. Except as specifically required by this Agreement or the Deposit Agreement or applicable law, the Bank shall have no obligation whatsoever to the Company in connection with the subject matter of this Agreement. Except as specifically required by this Agreement or applicable law, the Bank shall have no obligation whatsoever to the Secured Party in connection with the subject matter of this Agreement.
5.
Indemnification of the Bank
(a)
The Company hereby indemnifies the Bank and holds it harmless against, and shall reimburse the Bank for, every loss, damage or expense (including attorneys’ reasonable fees and expenses, court costs and other expenses) that the Bank shall incur in connection with this Agreement including, but not limited to, (i) all unpaid Permitted Debits, and (ii) every loss, damage or expense that the Bank shall incur as a result of the Bank (A) entering into or acting pursuant to this Agreement, (B) honoring and following any instruction the Bank may receive from (or shall believe in good faith to be from) the Secured Party or the Company under this Agreement, and (C) upon its implementation of a Notice, not honoring or following any instruction that the Bank shall receive from the Company in connection with any Account Collateral. The Company shall not be responsible for any loss, damage, or expense that a court having jurisdiction shall have determined had been caused by the Bank’s gross negligence or willful misconduct in its performance of its obligations under this Agreement.
(b)
Without limiting any obligation of the Secured Party to pay the Bank for unpaid Permitted Debits and unpaid Fees and Expenses (defined in Section 9(a) below), the Secured Party hereby indemnifies the Bank and holds it harmless against every loss, damage or expense (including attorneys’ reasonable fees and expenses, court costs and other expenses) that the Bank shall incur as a result of its honoring or following any instruction (including a Notice or any Rescission of Notice) that the Bank shall receive from (or shall believe in good faith to be from) the Secured Party as provided by this Agreement. The Secured Party’s indemnification obligation to the Bank as provided by this Section 5(b) shall be reduced by those amounts that the Company shall have paid to the Bank pursuant to the provisions of clause (ii)(B) of Section 5(a) above;
provided, however,
such reduced indemnification obligation of the Secured Party to the Bank shall be
8
reinstated automatically and to the extent that any amount paid by the Company to the Bank pursuant to clause (ii)(B) of Section 5(a) above shall be required to be disgorged by the Bank. The Secured Party shall not be responsible for any loss, damage, or expense that a court having jurisdiction shall have determined had been caused by the Bank’s gross negligence or willful misconduct in its performance of its obligations under this Agreement.
(c)
No party to this Agreement shall be liable to any other party hereto for lost profits or special, indirect, exemplary, consequential or punitive damages incurred in connection with this Agreement, even if such party shall have been advised of the possibility of such damages.
6.
Third Party Claims Against an Account; Insolvency of the Company
(a)
If the Bank shall receive notice that any third party shall have asserted an adverse claim by legal process against an Account or funds on deposit therein, any Lockbox, or other Account Collateral, whether such claim shall have arisen by tax lien, execution of judgment, statutory attachment, garnishment, levy, claim of a trustee in bankruptcy, debtor-in-possession, post-bankruptcy petition lender, court appointed receiver, or other judicial or regulatory order or process (each, a “
Claim
”), the Bank may, in addition to other remedies it may possess under the Deposit Agreement, this Agreement or at law or in equity, suspend disbursements from such Account without any liability until the Bank shall have received an appropriate court order or other assurances acceptable to the Bank in its sole discretion establishing that funds may continue to be disbursed according to instructions then applicable to such Account. The Bank’s costs, expenses and attorneys’ reasonable fees incurred in connection with any Claim are Permitted Debits and shall be reimbursed to the Bank in accordance with Section 3 above.
(b)
If a bankruptcy or insolvency proceeding shall be commenced by or against the Company, the Bank shall be entitled, without any liability, to refuse to (i) permit any withdrawal or transfer from any Account or (ii) implement a Notice or a Rescission of Notice or follow any other instruction delivered by the Company or the Secured Party to the Bank until the Bank shall have received an appropriate court order or other assurances acceptable to the Bank in its sole discretion establishing that (A) continued withdrawals or transfers from the Account(s) or the Bank honoring or following any instruction by the Company or the Secured Party shall be authorized and shall not violate any law, regulation, or order of any court and (B) the Bank shall be authorized to set off against or charge any Account and to otherwise be reimbursed for all Permitted Debits.
7.
Notice, Rescission of Notice and Other Communications
(a)
All communications given by any party to this Agreement to another as required or provided by this Agreement must be in writing, directed to the respective party’s designated office or officer (“
Designated
Office[r]
”) identified under Section 7(c) below, and delivered to each recipient party at its address (or at such other address or to such other Designated Office(r) as such party shall designate in writing to the other parties in accordance with this Section 7) either by U.S. Mail, receipted delivery service or
via
telecopier or “
PDF
” electronic facsimile transmission. All communications given by the Secured Party to the Bank must be addressed and delivered contemporaneously to both the Bank’s Designated Office and the Bank’s “
with copy to
” addressee at their respective addresses set forth below.
9
(b)
Any communication (including a Notice and a Rescission of Notice) made by (or believed in good faith by the Bank to be made by) the Company or the Secured Party to the Bank in connection with this Agreement shall be deemed delivered to the Bank only if delivered: (i) by U.S. Mail, on the date that such communication shall have been delivered to the Bank’s Designated Office; (ii) by receipted delivery service, on the date and time that such communication shall have been delivered to the Bank’s Designated Office and receipted by the delivery service; or (iii)
via
telecopier or “
PDF
” electronic facsimile transmission, on the date and at the time that such communication shall have been delivered to the Bank’s Designated Office and receipt of such delivery shall have been acknowledged by the recipient electronic facsimile equipment. Any communication delivered to the Bank that is an instruction (including a Notice or a Rescission of Notice) to the Bank and made by (or believed by the Bank in good faith to be made by) the Company or the Secured Party shall be deemed received by the Bank when actually delivered to the Bank’s Designated Office if delivered before 2:00 PM Central time on a banking day or, if such communication were delivered after 2:00 PM Central time on a banking day or delivered on a day that is not a banking day, then such communication shall be deemed delivered to the Bank’s Designated Office at 9:00 AM Central time on the next succeeding banking day. A “
banking day
” means any day other than any Saturday or Sunday or other day on which the Bank is authorized or required by law to close.
(c)
A Notice or a Rescission of Notice shall be implemented by the Bank by the close of the Bank’s business on the banking day that shall be one (1) banking day after the banking day on which a Notice or a Rescission of Notice shall have been delivered to the Bank’s Designated Office. Any other instruction delivered to the Bank shall be implemented by the Bank by the close of the Bank’s business on the banking day that shall be two (2) banking days after the banking day on which such instruction shall have been delivered to the Bank’s Designated Office.
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Address for Secured Party:
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Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.
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c/o Rabobank International
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245 Park Avenue
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New York, New York 10167
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Attn:
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Mr. Christopher Lew, Designated Officer
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Fax:
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914. 304. 9324
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PDF
:
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naconduit@rabobank.com
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with copy to
:
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Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.
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Thames Court, 1 Queenhithe
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EC4V 3RL, London, England
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United Kingdom
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Attn:
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Ms. Donna Kunzig, Executive Director
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Fax:
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011. 44. (0)20. 7809. 3450
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PDF
:
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Donna.Kunzig@Rabobank.com
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10
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Address for Bank:
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UMB Bank, n.a.
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1010 Grand Boulevard
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Mail code 1020215
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Kansas City, Missouri 64106
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Attn: TS Risk Mgmt DACA Team, Designated Office
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Fax: 816. 860. 3643
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PDF
:
James.Rundberg@UMB.com
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with copy to:
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UMB Bank, n.a.
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2 South Broadway
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Mail Code 5410001
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St. Louis, Missouri 63102
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Attn: Mr. Cecil Wood, Executive Vice President
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Fax: 314. 612. 8150
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PDF
: Cecil.Wood@UMB.com
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Address for Company:
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Bunge North America Capital, Inc.
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c/o Bunge North America, Inc.
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11720 Borman Drive
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St. Louis, Missouri 63146
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Attn:
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Treasurer, Designated Officer
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Fax:
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314. 292. 4314
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with copy to
:
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Bunge North America, Inc.
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11720 Borman Drive
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St. Louis, Missouri 63146
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Attn: General Counsel
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Fax:
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314. 292. 2521
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8.
Termination of this Agreement; Closing an Account
(a)
The Secured Party may terminate this Agreement at any time upon receipt by the Bank of the Secured Party’s written notice of termination issued in the form and text of
Exhibit D
attached
11
hereto and made a part hereof, and completed in full, together with a copy of this Agreement as fully executed. The Company may terminate this Agreement only with the express prior written consent of the Secured Party and, in that case, the Secured Party and the Company shall jointly so notify the Bank thereof in writing together with a copy of this Agreement as fully executed.
(b)
The Bank may terminate this Agreement at any time (i) on not less than thirty (30) calendar days’ prior written notice thereof to each of the Company and the Secured Party, or (ii) upon not less than ten (10) calendar days’ prior written notice thereof to the Company and the Secured Party if (A) the Company shall have breached the Deposit Agreement or this Agreement as the Bank shall have determined or (B) the Secured Party shall have breached this Agreement as the Bank shall have determined. The Bank also may close any Account and/ or terminate this Agreement immediately if the Bank shall be instructed to do so by any court or governmental authority having jurisdiction over the Bank or the Account Collateral, or if the Bank shall suspect in good faith that the Account has been or is being used for a fraudulent or illegal purpose. The Bank shall notify the Company and the Secured Party of any such closing of any Account by the Bank unless the Bank shall be prohibited from notifying the Company or the Secured Party by order of such court or governmental authority.
(c)
The Bank shall not be responsible for the Company closing any Lockbox or any Account, or for the remittance by the Bank of any funds therein directly to, or on the instructions of, the Company prior to implementation of a Notice by the Bank or following implementation of a Rescission of Notice by the Bank. The Company shall notify the Secured Party promptly of the Company’s closing of any Lockbox or any Account.
(d)
The Bank’s rights to demand and receive reimbursement from the Company under Sections 3(b), 9(a) and 9(b) hereof and the Company’s indemnification of the Bank under Section 5(a) hereof shall survive termination of this Agreement. The Bank’s right to demand reimbursement from the Secured Party under Sections 3(c) and 9(a) hereof shall survive termination of this Agreement for a period of ninety (90) calendar days after the date of termination of this Agreement. The Bank’s right to demand indemnification of the Bank from the Secured Party under Section 5(b) above shall survive termination of this Agreement for a period of one hundred eighty (180) calendar days after the date of termination of this Agreement. The obligations of the Bank and the Secured Party under Section 9(b) hereof shall survive termination of this Agreement.
9.
Miscellaneous Provisions
(a)
The Company shall pay to the Bank all fees (including, but not limited to, out-of-pocket and allocable internal legal fees) and expenses incurred by the Bank in connection with its negotiation and administration of this Agreement (“
Fees and Expenses
”) promptly upon the Company’s receipt of the Bank’s written demand therefor. The Bank also is hereby authorized to set off and charge Fees and Expenses against the Account(s) (and other deposit account(s) of the Company maintained with the Bank and that are not subject to this Agreement, if any, and against which other deposit account(s) of the Company the Bank is not otherwise prohibited from exercising its right of setoff). If the Company shall fail to pay Fees and Expenses and there shall be insufficient funds in the Account(s) (and other deposit accounts of the Company maintained with the Bank and that are not subject to this Agreement, if any, and against which other deposit account(s) of the Company the Bank is not otherwise prohibited from exercising its right of setoff) to pay Fees and Expenses, and the Bank shall have implemented a Notice then the Secured
12
Party shall pay to the Bank the full amount of such unpaid Fees and Expenses;
provided, however
, the obligation of the Secured Party to pay the Bank for unpaid Fees and Expenses shall be limited to the aggregate amount of funds that shall be withdrawn or transferred from the Account(s) pursuant to the Secured Party’s instruction(s) to the Bank as contemplated by this Agreement. The combined obligations of the Secured Party to pay the Bank for unpaid Fees and Expenses as provided in this Section 9(a) and to pay the Bank for unpaid Permitted Debits as provided in Section 3(c) above shall be limited to the aggregate amount of funds that shall be withdrawn or transferred from the Account(s) pursuant to the Secured Party’s instructions to the Bank as contemplated by this Agreement.
(b)
The Company shall pay to the Bank all fees (including, but not limited to, out-of-pocket and allocable internal legal fees) and expenses incurred by the Bank in connection with any action or proceeding undertaken by the Bank to enforce, or preserve its rights under, any provision of this Agreement against the Company. The Bank also is hereby authorized to set off and charge all such amounts so incurred by the Bank against the Account(s) (and other deposit account(s) of the Company maintained with the Bank and that are not subject to this Agreement, if any, and against which other deposit account(s) of the Company the Bank is not otherwise prohibited from exercising its right of setoff). If any action or proceeding shall be commenced by the Bank or by the Secured Party to enforce, or preserve such party’s rights under, any provision of this Agreement against the other and: (i) the Bank shall prevail in such action or proceeding, then the Secured Party shall pay to the Bank all fees (including, but not limited to, out-of-pocket and allocable internal legal fees) and expenses incurred by the Bank in connection with such action or proceeding in addition to all other amounts that shall be awarded to the Bank in such action or proceeding; or (ii) the Secured Party shall prevail in such action or proceeding, then the Bank shall pay to the Secured Party all fees (including, but not limited to, out-of-pocket and allocable internal legal fees) and expenses incurred by the Secured Party in connection with such action or proceeding in addition to all other amounts that shall be awarded to the Secured Party in such action or proceeding.
(c)
The Company shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Bank and the Secured Party. The Secured Party shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Bank. The Bank shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Secured Party and the Company, except that the Bank may transfer its rights and obligations under this Agreement to any direct or indirect depositary subsidiary of UMB Financial Corporation or, in the event of a merger or acquisition of the Bank, to the Bank’s successor depositary institution (which subsidiary or successor shall be a “bank” as defined in Section 9-102 of the New York UCC).
(d)
This Agreement shall be governed by the laws of the State of New York (without regard to its conflicts of laws principles)
.
The law governing perfection and priority of the Secured Party’s security interest in the Account Collateral shall be the law of the State of New York, which State shall also be the “jurisdiction” of the Bank within the meaning of Section 9-304 of the New York UCC. The Account(s), Items Collateral, operation of the Account(s), and Deposit Agreement shall be governed by the Applicable UCC, Federal Regulations and Operating Circulars, ACH or other clearing house rules, and other applicable law.
13
(e)
This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same Agreement. Delivery of an executed signature page counterpart to this Agreement
via
telecopier or “
PDF
” electronic facsimile transmission shall be effective as if it were delivery of a manually delivered, original, executed counterpart thereof. This Agreement can be modified or amended only by written agreement of all of the parties hereto evidencing such modification or amendment.
(f)
To the extent that any conflict may exist between the provisions of any other agreement between the Company and the Bank (including the Deposit Agreement) and the provisions of this Agreement, then this Agreement shall control. This Agreement shall not give the Secured Party or any third party any benefit or legal or equitable right, remedy or claim against the Bank under the Deposit Agreement.
(g)
Each of the Secured Party and the Bank shall not cite or refer to this Agreement as precedent in any negotiation of any other Deposit Account Control Agreement to which the Secured Party or any of its affiliates and the Bank shall be parties.
(h)
Each party to this Agreement: (i) submits and consents to the jurisdiction of The United States District Court of the Southern District of New York located in the City, County and State of New York; (ii) irrevocably agrees that all claims in any action, suit or proceeding brought in connection with this Agreement may be heard and determined by such court; and (iii) irrevocably waives any objection such party may have to the venue of any such action, suit or proceeding brought in such court in connection with this Agreement or that such court is an inconvenient forum.
10.
Waiver of Jury Trial
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN WHICH ANOTHER PARTY HERETO SHALL BE A PARTY AS TO ALL MATTERS DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT. EACH PARTY HERETO CONFIRMS THAT THIS SECTION OF THIS AGREEMENT IS AND HAS BEEN A MATERIAL INDUCEMENT UPON WHICH SUCH PARTY HAS RELIED AND WILL RELY IN ENTERING INTO THIS AGREEMENT.
IN WITNESS WHEREOF,
each of the parties hereto by its respective duly authorized officer has executed and delivered this Agreement as of the day and year first written above.
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Name:
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Title:
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COMPANY:
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BUNGE NORTH AMERICA CAPITAL, INC.
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By:
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Name:
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Title:
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SECURED PARTY:
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COÖPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., as Administrative Agent
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By:
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Name:
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Title:
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15
EXHIBIT A
ACCOUNT(S) OF THE COMPANY
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Account Number
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Related Lockbox
Number (if any)
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Account Name
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State in Which
Account is Located
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[***]
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[***]
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Bunge North America Capital, Inc.
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Missouri
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***
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Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
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16
EXHIBIT B
[To be Issued on Letterhead of the Secured Party]
20
UMB BANK, N. A.
1010 Grand Boulevard
Mail Code 1020215
Kansas City, Missouri 64106
Attn: TS Risk Mgmt DACA Team,
Designated Office
NOTICE PURSUANT TO DEPOSIT ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
Pursuant to the Deposit Account Control Agreement (Secured Party Notification) (With Optional Rescission of Notice) among
Bunge North America Capital, Inc
., you, and us dated as of June 1, 2011 (the “
Agreement
”), a fully executed copy of which is attached hereto, this letter shall serve as a Notice as described in and contemplated by the Agreement. Capitalized terms used but not defined in this letter shall have the meanings given them in the Agreement.
You are hereby instructed not to permit any access to or disposition over the Account(s) or other Account Collateral by, and not to honor or follow any instruction with regard to any Account or other Account Collateral from, any person other than the Secured Party (except as otherwise provided in Section 6 of the Agreement or required by law).
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Very truly yours,
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., as Administrative Agent
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By
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Name:
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Title:
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Attachment
cc:
[
insert “with copy to” addressee of the Bank as per Section 7 of the Agreement
]
EXHIBIT C
[To be Issued on Letterhead of the Secured Party]
20
UMB BANK, N. A.
1010 Grand Boulevard
Mail Code 1020215
Kansas City, Missouri 64106
Attn: TS Risk Mgmt DACA Team,
Designated Office
RESCISSION OF NOTICE PURSUANT TO DEPOSIT
ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
Pursuant to the Deposit Account Control Agreement (Secured Party Notification) (With Optional Rescission of Notice) among
Bunge North America Capital, Inc
. (the “
Company
”), you, and us dated as of June 1, 2011 (the “
Agreement
”), a fully executed copy of which is attached hereto, this letter shall serve as a Rescission of Notice as described in and contemplated by the Agreement. Capitalized terms used but not defined in this letter shall have the meanings given them in the Agreement.
Secured Party hereby rescinds the Notice dated , 20 delivered by the Secured Party to the Bank. You are hereby instructed to hereafter permit access to and disposition over the Account(s) or other Account Collateral by, and to honor or follow any you instruction that you shall receive from, the Company with regard to any Account or other Account Collateral (as if the Notice had not been delivered to you).
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Very truly yours,
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COÖPERATIEVE CENTRALE RAIFFEISEN —BOERENLEENBANK B.A., as Administrative Agent
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By
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Name:
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Title:
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Attachment
cc:
[
insert “with copy to” addressee of the Bank as per Section 7 of the Agreement
]
18
EXHIBIT D
[To be Issued on Letterhead of the Secured Party]
20
UMB BANK, N. A.
1010 Grand Boulevard
Mail Code 1020215
Kansas City, Missouri 64106
Attention: TS Risk Mgmt DACA Team,
Designated Office
BUNGE NORTH AMERICA CAPITAL, INC.
c/o Bunge North America, Inc.
11720 Berman Drive
St. Louis, Missouri 63146
Attention: Treasurer, Designated Officer
NOTICE OF TERMINATION OF DEPOSIT ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
We refer you to the Deposit Account Control Agreement (Secured Party Notification) (With Optional Rescission of Notice) among Bunge North America Capital, Inc., UMB Bank, n.a. (the “
Bank
”), and us dated as of June 1, 2011 (the “
Agreement
”), a fully executed copy of which is attached hereto.
We hereby notify you that we are exercising our right under Section 8(a) of the Agreement (subject to your rights as set forth in the Agreement) to terminate the Agreement in accordance with its terms. Accordingly, the Agreement shall terminate at the close of the Bank’s business
[
this day
]
[
on , 20
]
, subject to those undertakings that shall survive termination of the Agreement.
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Very truly yours,
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COÖPERATIEVE CENTRALE RAIFFEISEN — BOERENLEENBANK B.A., as Administrative Agent
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By
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Name:
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Title:
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19
Attachment
cc:
[
Insert “with copy to” addressee of the Bank as per Section 7 of the Agreement
]
20
DEPOSIT ACCOUNT CONTROL AGREEMENT
PARTIES
This Deposit Account Control Agreement (the “Agreement”) is entered into as of June 1, 2011, and made by and between Bunge North America Capital, Inc. (the “Debtor”), Commerce Bank, N.A. (the “Bank”), and Coöperatieve Centrale Raiffeisen-Boerenleenbank, B.A. (the “Secured Party”).”
BACKGROUND
The Debtor is the Bank’s customer with respect to one or more demand deposit accounts identified by the account numbers specified below (individually and collectively, as re-numbered and including any funds from time to time in the account or accounts, the “
Deposit Account
”). The Debtor has granted the Secured Party a security interest in the Deposit Account
.
The Debtor is requesting that the Bank enter into this Agreement
.
The Bank is willing to do so upon the terms contained in this Agreement.
This Agreement includes the General Terms, the Specific Terms and the Exhibit, each as defined or referred to below.
AGREEMENTS
A.
GENERAL TERMS
.
This Agreement is subject to the General Terms for Deposit Account Control Agreement version 1 dated February 13, 2006, developed by a special task force of the American Bar Association’s Business Law Section and available from the Business Law Section at http://www.abanet.org/dch/committee.cfm?com=CL710060 (the “
General Terms
”). The General Terms are incorporated in this Agreement by reference and without modification except as may be provided in Section 10 of the Specific Terms.
B.
SPECIFIC TERMS
. The following terms (the “
Specific Terms
”) complete, supplement or modify the General Terms:
1.
Deposit Account
(see “Background” above)
. The following account or accounts comprise the Deposit Account [
list by account number
]:
21
2.
Business Day
(see definition of “Business Day” in Section 1 of the General Terms)
:
A day will not be considered as a “Business Day” if commercial banks in the following city or cities are closed on that day:
Kansas City, Missouri or St. Louis, Missouri.
3.
Outside Time
(see definition of “Outside Time” in Section 1 of the General Terms)
:
4.
Disposition of less than all or multi-disposition of funds
(see Section 4(a)(ii)(E) of the General Terms)
:
A Disposition Instruction originated by the Secured Party must be for a disposition of all of the funds. A Disposition Instruction originated by the Secured Party must require that the funds be sent to a single recipient.
5.
Reimbursement Claim Period
(see Section 6(b) of the General Terms)
:
The number of days following the termination of the Agreement in which a reimbursement claim must be made against the Secured Party under Section 6(b) of the General Terms is 90.
6.
Electronic Records
(see definition of “writing” in Section 1 of the General Terms)
:
The parties do not permit a writing to include an electronic record and do not permit communications by email.
7.
Governing Law
(see Section 13(a) of the General Terms)
:
The jurisdiction whose law governs this Agreement is New York.
8.
Bank’s Jurisdiction for UCC Purposes
(see Section 13(b) of the General Terms)
:
The Bank’s jurisdiction for purposes of part 3 of UCC Article 9 is New York.
9.
Delivery of Executed Copy
(see Part D)
:
Checking this line
x
means that the delivery of an executed copy of this Agreement may be made by electronic transmission in addition to a transmission by facsimile. Otherwise, delivery of an executed copy of this Agreement may not be made by a form of electronic transmission other than facsimile.
22
10.
Additional Provisions
(see Section 12(b) of the General Terms)
:
The following provisions modify or supplement the General Terms:
Notwithstanding paragraph 9(a) of the General Terms, Bank may close the Deposit Account and open a substitute account without prior notice in the event Bank reasonably believes account information has been compromised and the potential for fraudulent activity in the Deposit Account poses an immediate threat. In such event, the “Deposit Account” as used in this Agreement shall be deemed to mean the substitute account, and Bank shall promptly notify the other parties of the new account number.
Paragraph 9(a) is modified by the deletion of the phrase “upon five Business Days’ notice” and the substitution of the phrase “upon ten Business Days’ notice” in lieu thereof.
C.
EXHIBIT
. The parties have completed and attach hereto the Exhibit to be used as the form of the Initial Instruction. [
Note to person completing this Agreement: the Exhibit requires the designation of the person or persons or department at the Bank to receive the Initial Instruction. See Note 1 to the Exhibit.]
D.
SINGLE AGREEMENT; COUNTERPARTS
. The General Terms, the Specific Terms and the Exhibit shall be read and construed together with the other provisions of this Agreement as a single agreement. Delivery of executed copies of this Agreement may be made by facsimile or, if so permitted in Section 9 of Part B, by another form of electronic transmission. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which collectively shall constitute a single agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
23
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Debtor:
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BUNGE NORTH AMERICA CAPITAL, INC.
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By:
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Name:
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Title:
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Address:
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c/o Bunge North America, Inc.
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11720 Borman Drive
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St. Louis, MO 63146
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Attention: Treasurer
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Telephone Number (for information only): 314-292-2314
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Facsimile Number: 314-292-4314
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Electronic mail address (if Section 6 of Part B permits): N/A
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with a copy to:
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Bunge Finance B.V.
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Address:
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Weena 320
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3012 NJ
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Rotterdam, the Netherlands
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Attention: Director
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Telephone Number (for information only): +31 10 217 6652
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Facsimile Number: +31 10 433 0035
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Electronic mail address (if Section 6 of Part B permits): N/A
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24
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Secured Party
:
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A.
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By:
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Name:
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Title:
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Address:
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P.O. Box: 17100, 3500 HG Utrecht
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Netherlands
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Attention: Eugene van Esveld, Director
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Telephone Number (for information only): +31 (0)30 216 9398
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Facsimile Number: +44 (0)20 7809 3450
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Electronic mail address (if Section 6 of Part B permits): N/A
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with a copy to:
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Coöperatieve Centrale Raiffeisen-Boerenleenbank, B.A.
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Address:
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Thames Court, 1 Queenhithe
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EC4V 3RL, London
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U.K.
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Attention: Donna Kunzig, Executive Director
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Telephone Number (for information only): +44 (0)20 7809 3647
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Facsimile Number: +44 (0)20 7809 3450
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Electronic mail address (if Section 6 of Part B permits): N/A
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25
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Bank:
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COMMERCE BANK, N.A.
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By:
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Name:
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Title:
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Address:
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8000 Forsyth
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Clayton, MO 63105
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Attention: T. William White
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Telephone Number (for information only): 314-746-3959
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Facsimile Number: 314-746-3783
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Electronic mail address (if Section 6 of Part B permits): N/A
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with a copy to:
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Commerce Bank, N.A.
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Address:
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8000 Forsyth
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Clayton, MO 63105
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Attention: Legal Department, attorney in charge
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Telephone Number (for information only): 314-746-7316
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Facsimile Number: 314-746-8710
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Electronic mail address (if Section 6 of Part B permits): N/A
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26
Exhibit
[LETTERHEAD OF THE SECURED PARTY]
DEPOSIT ACCOUNT CONTROL AGREEMENT
INITIAL INSTRUCTION
[Date]
Commerce Bank, N.A.
8000 Forsyth
Clayton, MO 63105
Attention: Legal Department, attorney in charge
[See Note 1 below]
Telephone Number (for information only): 314-746-7316
Facsimile Number: 314-746-8710
with a copy to:
Commerce Bank, N.A.
[Address of Bank]
|
Attention:
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[Person or Persons or Department]
|
Ladies and Gentlemen:
This is the Initial Instruction as defined in the Deposit Account Control Agreement dated , 20 , among you, us and [Debtor] (the “
Debtor
”) (as currently in effect , the “
Control Agreement
”). A copy of the Control Agreement as fully executed is attached. Capitalized terms used in this Initial Instruction have the meanings given them in the Control Agreement
This Initial Instruction directs the Bank no longer to comply with the Debtor’s Disposition Instructions.
[As an included Disposition Instruction, we direct you to send the funds in the Deposit Account to us by the method and at the address indicated below. We recognize that, as a condition to your complying with this Disposition Instruction and to the extent that we have not already done so, we must provide to you evidence
27
reasonably required by you as to the authority of the person giving this Disposition Instruction to act for us. We also recognize that your obligation to comply with this Disposition Instruction is subject to the other provisions of Section 4(a)(ii) of the General Terms.
[See Note 2 below]
Funds transfer instructions:
Receiving bank: .
ABA routing number for domestic wire: .
ABA routing number for ACH transaction: .
International: Swift Code No. .
Reference details: .]
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Very truly yours,
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[SECURED PARTY]
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By:
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Title:
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Notes to the person completing this form of Initial Instruction:
1.
The “attention” line should be completed with particular care. Until the Initial Instruction is actually received by the person or persons or department at the Bank designated in the “attention” line, the time period by which the Bank must comply with the Initial Instruction will not commence. Accordingly, it is advisable to provide in the “attention” line a specific department or specific officer or officers at the Bank by title rather than by name. If an individual at the Bank is to be designated by title or even by name, it is advisable that one or more additional individuals at the Bank be designated as alternatives to receive the Initial Instruction if the first individual is not available.
28
2.
The bracketed language relating to a Disposition Instruction (including funds transfer instructions) is optional. Not including this language does not preclude the Secured Party from subsequently giving a Disposition Instruction.
29
GENERAL TERMS FOR THE DEPOSIT ACCOUNT CONTROL AGREEMENT
version 1 dated February 13, 2006
available from the American Bar Association’s Section of Business Law at
http://www.abanet.org/dch/committee.cfm?com=CL710060
1
This Deposit Account Control Agreement (the “Agreement”) is entered into as of June 1, 2011, and made by and between Bunge North America Capital, Inc. (the “Debtor”), Commerce Bank, N.A. (the “Bank”), and Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. (the “Secured Party”).
1
This document is a model form produced by the Joint Task Force on Deposit Account Control Agreements of the ABA Section of Business Law. The provisions of the form have not been approved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.
1.
Definitions and Rules of Interpretation
. In this Agreement (a) terms defined in the UCC and not otherwise defined in this Agreement have the same meanings in this Agreement as in the UCC, (b) the rules of interpretation in Article 1 of the UCC apply to the interpretation of this Agreement and (c) the term “or” is not exclusive. Unless otherwise stated, section references are to sections of these General Terms. In addition, the following terms in this Agreement have the following meanings or interpretations:
This “
Agreement
” means the Deposit Account Control Agreement dated the Agreement Date among the Secured Party, the Debtor and the Bank. The Deposit Account Control Agreement includes these
General Terms
(incorporated by reference), the
Specific Terms
and the
Exhibit
read and construed together as a single agreement.
“
Agreement Date
” means the date set forth at the beginning of this Agreement as the date as of which this Agreement was executed and delivered by the parties.
An “
address
” includes the person or persons or department of the Bank on an “attention” line.
“
Bank
” means the organization signing this Agreement as the Bank.
“
Business Day
” means:
(i)
for communications to the Bank, a day other than a day (A) that is not a “business day” as defined in Federal Reserve Board Regulation CC, 12 CFR Part 229, (B) on which the office, branch or department of the Bank specified as the Bank’s address in the
Exhibit
is closed, or (C) on which commercial banks are closed in the city or cities set forth in the
Specific Terms
; and
(ii)
for communications to any other party, a day, other than a Saturday or Sunday, on which the other party is open for business at the location to which the communication is sent.
“
Claim
” means a claim, loss, cost or expense, and includes out-of-pocket or allocable internal legal fees and expenses incurred in bringing or defending a claim.
A “
communication
” includes the Initial Instruction, a Disposition Instruction or a notice.
“
Debtor
” means the person signing this Agreement as the Debtor.
“
Deposit Account
” has the meaning set forth in the “Background” of this Agreement. The Deposit Account is identified in Section 1 of the
Specific Terms
.
“
Deposit-related Agreements
” means, collectively, the deposit account agreement and any other agreements between the Bank and the Debtor governing the Deposit Account and any cash management or similar services provided by the Bank to the Debtor in connection with the Deposit Account.
“
Disposition Instruction
” means an instruction to the Bank directing the disposition of the funds in the Deposit Account.
“
Exhibit
” means the
Exhibit
referred to in Part C of and attached to this Agreement as the form to be used as the Initial Instruction.
“
Initial Instruction
” means the first instruction to the Bank originated by the Secured Party directing that the Bank no longer comply with the Debtor’s Disposition Instructions. The Initial Instruction may also contain a Disposition Instruction originated by the Secured Party.
“
Order or Process
” means an order, judgment, decree or injunction, or a garnishment, restraining notice or other legal process, directing, or prohibiting or otherwise restricting, the disposition of the funds in the Deposit Account.
“
Outside Time
” means, unless an earlier Outside Time is stated in the
Specific Terms
, the opening of business on the second Business Day after the Business Day on which the Initial Instruction in substantially the form of the
Exhibit
is actually received at the address for the Bank specified in the Exhibit. If the Initial Instruction is actually received at that address after 12:00 noon, local time, at that address, then in determining the Outside Time, the Initial Instruction will be considered to have been actually received on the following Business Day.
“
Secured Party
” means the person signing this Agreement as the Secured Party, whether the person is acting in a representative capacity or otherwise.
“
Specific Terms
” means the terms contained in Part B of this Agreement.
“
UCC
” means the Uniform Commercial Code of the jurisdiction whose law governs this Agreement or, if relevant to any matter other than the meaning of a defined term, the Uniform Commercial Code of the jurisdiction whose law applies to the matter under the choice of law rules of the jurisdiction whose law governs this Agreement.
A “
writing
” means a tangible writing, including a facsimile and, if the
Specific
Terms
, permit, an electronic record; “
written
” refers to a communication in the form of a writing.
2.
The Debtor’s Dealings with the Deposit Account.
(a)
Except as provided in Section 2(b), the Bank may comply with the Debtor’s Disposition Instructions in accordance with the Deposit-related Agreements.
(b)
The Bank will not comply with the Debtor’s Disposition Instructions after the Outside Time. In its discretion the Bank may cease complying with the Debtor’s Disposition Instructions at an earlier time as permitted by Section 4(a)(iv).
3.
The Secured Party’s Right to Give Instructions as to the Deposit Account.
The Bank will comply with the Initial Instruction, and with any Disposition Instructions originated by the Secured Party, in each case (i) without the Debtor’s further consent, and (ii) even if following the instruction results in the dishonoring by the Bank of items presented for payment from the Deposit Account or the Bank otherwise not complying with the Debtor’s Disposition
Instructions. The Initial Instruction may not be rescinded or otherwise modified without the Bank’s consent.
4.
Exculpation of the Bank.
(a)
Notwithstanding the Bank’s agreements in Sections 2 and 3, the Bank will not be liable to any other party for:
(i)
either failing to follow an Initial Instruction that (A) is not in the form of the
Exhibit
, (B) does not specify the address to which the Initial Instruction was to have been sent, (C) is not otherwise completed, or (D) does not have attached to it a copy of this Agreement as fully executed or, as a result of any such defect in the Initial Instruction, continuing to comply with the Debtor’s Disposition Instructions;
(ii)
failing to follow a Disposition Instruction originated by the Secured Party (A) before the Outside Time, (B) that requires the disposition of the funds in the Deposit Account by a method not available to the Debtor under the Deposit-related Agreements, (C) that the Bank determines would result in the bank’s failing to comply with a statute, rule or regulation, or an Order or Process, binding upon this Bank, (D) that requires the disposition of funds that are not immediately available in the Deposit Account, (E) that, unless otherwise set forth in the
Specific
Terms
, directs the disposition of less than all the funds in the Deposit Account or directs that the funds be sent to more than one recipient, or (F) for which the Bank has not received evidence reasonably required by the Bank as to the authority of the person giving the Disposition Instruction to act for the Secured Party;
(iii)
complying with the Debtor’s Disposition Instructions, or otherwise completing a transaction involving the Deposit Account, that the Bank or an affiliate had started to process before the Outside Time; or
(iv)
after the Bank becomes aware that the Secured Party has sent the Initial Instruction, but before the Outside Time, complying with the Initial Instruction or a Disposition Instruction originated by the Secured Party, notwithstanding any fact or circumstance and even if the Initial Instruction (A ) has not been actually received at the address specified in the
Exhibit
, (B) fails to have attached to it a copy of this Agreement as fully executed, or (C) is not completed or otherwise fails to be in the form of Initial Instruction set forth on the
Exhibit
.
(b)
The Bank will not be liable to any other party for:
(i)
wrongful dishonor of any item as a result of the Bank following the Initial Instruction or any Disposition Instruction originated by the Secured Party,
(ii)
failing to comply or delaying in complying with the Initial Instruction, any Disposition Instruction or any provision of this Agreement due to a computer malfunction, interruption of communication facilities, labor difficulties, act of God, war, terrorist attack, or other cause, in each case beyond the Bank’s reasonable control,
(iii)
any other Claim, except to the extent directly caused by the Bank’s gross negligence or willful misconduct, or
(iv)
any indirect, special, consequential or punitive damages.
(c)
The Bank will have no fiduciary duties under this Agreement to any other party, whether as trustee, agent, bailee or otherwise. The Bank will have no duties to the Secured Party except as expressly set forth in this Agreement. The Bank will have no duty to inquire into or determine the existence or enforceability of the Debtor’s obligations to the Secured Party or whether, under any separate agreement between the Debtor and the Secured Party, the Debtor’s obligations to the Secured Party are in default, the Debtor may originate a Disposition Instruction or the Secured Party may originate the Initial Instruction or any Disposition Instruction.
5.
The Bank’s Recourse to the Deposit Account.
(a)
Except for amounts referred to in Section 5(b), the Bank (i) subordinates any security interest, lien or other encumbrance against the Deposit Account to the Secured Party’s security interest and (ii) will not exercise any right of recoupment, setoff or debit against the Deposit Account. This subordination will not apply to any security interest that the Bank has in an item under UCC Article 4 as a collecting bank.
(b)
Notwithstanding Section 5(a), and regardless of any agreement of the Debtor to compensate the Bank by means of balances in the Deposit Account, the Bank may charge the Deposit Account, to the extent permitted by any of the Deposit-related Agreement or applicable law, for:
(i)
the face amount of check, draft, money order, instrument, wire transfer of funds, automated clearing house entry, credit from a merchant card transaction, other electronic transfer of funds or other item (A) deposited in or credited to the Deposit Account, whether before or after the Agreement Date, and returned unpaid or otherwise uncollected or subject to an adjustment entry, whether for insufficient funds or for any other reason and without regard to the timeliness of the return or adjustment or the occurrence or timeliness of any other person’s notice of nonpayment or adjustment, (B) subject to a claim against the Bank for breach of transfer, presentment, encoding, retention or other warranty under Federal Reserve Regulations or Operating Circulars, clearing house rules, the UCC or other applicable law, or (C) for a merchant card transaction, against which a contractual demand for chargeback has been made;
(ii)
normal service charges or fees payable to the Bank in connection with the Deposit Account or any related services;
(iii)
any adjustments or corrections of any posting or encoding errors; and
(iv)
reimbursements for out-of-pocket or allocable internal legal fees and expenses in connection with the negotiation, administration or enforcement of this Agreement by the Bank.
6.
Indemnification and Reimbursement.
(a)
The Debtor indemnifies the Bank against all Claims incurred, sustained or payable by the Bank arising out of this Agreement except to the extent directly caused by the Bank’s gross negligence or willful misconduct.
(b)
The Secured Party agrees to reimburse the Bank for any charge against the Deposit Account under Section 5(b) for which there were insufficient funds in the Deposit Account to satisfy the charge. Such reimbursement will be limited to the aggregate amount transferred from the Deposit Account as a result of the Bank’s acting upon Disposition Instruction originated by the Secured Party or pursuant to Section 9(b). Any demand by the Bank for reimbursement must be made within the number of days after the termination of this Agreement set forth in the
Specific
Terms
. The Bank may not make a Claim for reimbursement under this subsection unless (i) the Debtor fails to satisfy the Claim within 15 days after the Bank makes a demand on the Debtor under Section 6(a) or (ii) the Bank is enjoined, stayed or prohibited by operation of law from making the demand on the Debtor.
(c)
The Secured Party’s reimbursement obligations under Section 6(b) will not apply to (i) a charge for reimbursement of or indemnification for any out-of-pocket or allocable internal legal fees and expenses incurred by the Bank in connection with any claim or defense by the Bank against the Secured Party relating to this Agreement or (ii) the amount of any loss incurred by the Bank to the extent directly caused by the Bank’s gross negligence or willful misconduct. If the Bank satisfies any Claim against the Debtor referred to in the foregoing clause (i) by charging the Deposit Account, the amount of the Secured Party’s maximum liability for reimbursement obligations under Section 6(b) will be reduced by the amount of the Claim so satisfied.
(d)
If the Secured Party fails to reimburse the Bank for any amount under Section 6(b), the Secured Party will pay the Bank’s out-of-pocket or allocable internal legal fees and expenses in collecting from the Secured Party the amount payable.
(e)
The Secured Party indemnifies the Bank against all other Claims incurred, sustained or payable by the Bank arising from the Bank following an Initial Instruction or a Disposition Instruction originated by the Secured Party, or from the Bank’s remittance of funds pursuant to Section 9(b), except to the extent directly caused by the Bank’s gross negligence or willful misconduct.
7.
Representations and Warranties; Agreements with Other Persons.
The Bank represents and warrants to the Secured Party that the Bank (i) is an organization engaged in the business of banking, (ii) maintains the Deposit Account as a demand deposit account or accounts in the ordinary course of the Bank’s business and (iii) has not entered into any currently effective agreement with any person under which the Bank may be obligated to comply with Disposition Instructions originated by a person other than the Debtor or the Secured Party. The Bank will not enter into any agreement with any person under which the Bank may be obligated to comply with Disposition Instructions originated by a person other than the Debtor or the Secured Party.
8.
Deposit Account Information
. If the Secured Party so requests, to the extent that the Bank has the operational ability to do so, the Bank will provide to the Secured Party, whether by Internet access or otherwise, a copy of each periodic account statement relating to the Deposit Account ordinarily furnished by the Bank to the Debtor. The Bank’s liability for failing to provide the account statement will not exceed the Bank’s cost of providing the statement. The Debtor authorizes the Bank to provide the Secured Party, whether by Internet access or
otherwise, any other information concerning the Deposit Account that the Bank may agree to provide to the Secured Party at the Secured Party’s request.
9.
Termination; Closure of the Deposit Account.
(a)
Neither the Debtor nor the Bank will close the Deposit Account prior to termination of this Agreement. This Agreement may not be terminated by the Debtor except by a notice to the Bank given jointly by the other parties. This Agreement may be terminated (i) by the Secured Party at any time by notice to the other parties and (ii) by the Bank (A) immediately upon notice to the other parties if the Bank becomes obligated to terminate this Agreement or to close the Deposit Account under any statute, rule or regulation, or any Order or Process, binding upon the Bank, (B) upon five Business Days’ notice to the other parties if any other party is in material breach of any of the Deposit-related Agreements or this Agreement, and (C) otherwise upon 30 days’ notice to the other parties.
(b)
If the Bank terminates this Agreement pursuant to clause (A) of Section 9(a)(ii), the Bank will remit any funds in the Deposit Account on the date of termination (i) at the direction of the Secured Party if the direction is received by the Bank prior to the date of termination of this Agreement or (ii) if no such direction is received by the Bank prior to such date, by check mailed to the address of the Secured Party for receiving communications under this Agreement. If the Bank terminates this Agreement pursuant to clause (B) or (C) of Section 9(a)(ii), the Bank will remit any funds in the Deposit Account on the date of termination at the direction of the Secured Party only if the direction is received by the Bank prior to the date of termination of this Agreement. Any obligation of the Bank to remit any funds to or at the direction of the Secured Party under this subsection is subject to clauses (B) through (F) of Section 4(a)(ii).
(c)
Except as provided in Section 9(b) and in any event if the Secured Party has communicated to the Bank that the Secured Party does not wish to receive or direct the disposition of the funds, the Secured Party will not receive from the Bank any remittance of funds from the Deposit Account upon termination of this Agreement by the Bank.
(d)
The termination of this Agreement will not affect any rights created or obligations incurred under this Agreement before the termination. Sections 4 and 6 will survive the termination of this Agreement for actions taken or omitted before the termination. Sections 9(b) and (c) will survive the termination of this Agreement, and Section 5 will survive the termination of this Agreement solely for any funds to be remitted to or at the direction of the Secured Party pursuant to Section 9(b).
10.
Communications.
(a)
All communications under this Agreement must be in writing and must be delivered by hand or overnight courier service, mailed by certified or registered mail, or sent by facsimile to the party addressee. If the
Specific
Terms
permit a writing to include an electronic record, a communication, other than the Initial Instruction, may be sent by email.
(b)
For a communication under this Agreement to be effective, it must be received (i) for the Initial Instruction, at the Bank’s address specified on the
Exhibit
and (ii) in all other cases, at the party’s address indicated below the party’s signature to this Agreement, in each case subject to
any change in address provided in Section 10(c). Receipt of the Initial Instruction does not occur until it is received by the person or persons or department specified on the “attention” line on the
Exhibit
. If more than one person is specified, receipt occurs when the Initial Instruction is received by one of the persons.
(c)
The Bank may communicate to the Secured Party changes in the address for the Initial Instruction, and any party may communicate to the other parties changes in its address for communications under this Agreement.
11.
Successors and Transferees.
(a)
This Agreement will inure to the benefit of, and be binding upon, the parties and their respective successors and other transferees permitted under this Section. Except as provided in this Section, a voluntary transfer of a party’s rights or duties under this Agreement without the written consent of the other parties will be void.
(b)
The Bank may transfer is rights and duties under this Agreement to a transferee to which, by contract or operation of law, the Bank transfers substantially all of its rights and duties under the Deposit-related Agreements.
(c)
The Secured Party may transfer its rights and duties under this Agreement to (i) a transferee to which, by contract or operation of law, the Secured Party transfers substantially all of its rights and duties under the financing or other arrangements between the Secured Party and the Debtor for which the Deposit Account acts as collateral security or (ii) if the Secured Party is acting as a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest is created or provided for, a transferee that is a successor trustee, indenture trustee, agent, collateral agent, or other representative.
(d)
No transfer under this Section will be binding upon a non-transferring party until the transferring party or the transferee notifies the non-transferring parties of the transfer in a writing signed by the transferee that identifies the transferee, gives the transferee’s address for communications under this Agreement, and states that the transferee is a successor of the transferor or other transferee permitted under this Section and is entitled to the benefit of the transferring party’s rights and has assumed all of the transferring party’s duties under this Agreement.
(e)
A non-transferring party need not request proof of any transfer or that the transferee is a successor of the transferor or other transferee permitted by this Section. If requested by a non-transferring party, however, the transferring party or the transferee will provide reasonable proof thereof. If the Bank or the Secured Party, as a non-transferring party, requests such proof, then the effectiveness of the notification of transfer as to the non-transferring party will be suspended until the proof is provided.
(f)
When a transfer becomes binding on the non-transferring parties, the transferring party will not be entitled to exercise any rights, and will be relieved of its obligations, accruing under this Agreement from and after that time. Those rights may be exercised and those obligations will be incurred by the transferee.
(g)
The provisions of subsections (d) and (e) requiring notification for a transfer to be binding on the non-transferring parties and suspending the effectiveness of the notification of transfer until reasonable proof of the transfer has been provided do not apply to the Bank as the transferring party if the transfer is by operation of law and by operation of the law (i) the transferee succeeds to all or substantially all of the rights and becomes generally bound by all of the duties of the Bank, including the Bank’s duties under this Agreement, and (ii) the Bank ceases to exist.
12.
Entire Agreement; Relation to Other Agreements.
(a)
This Agreement constitutes the entire agreement of the parties, and supersedes all previous and contemporaneous negotiations, understandings and agreements, with respect to its subject matter, all of which have become merged and finally integrated into this Agreement.
(b)
If a term in the
Specific
Terms
conflicts with a term of this Agreement not in the
Specific
Terms
, the term in the
Specific
Terms
controls.
(c)
If this Agreement conflicts with any of the Deposit-related Agreements, this Agreement will control. However, this Agreement will not (i) derogate from any Claim or defense that the Bank may have against the Debtor under any of the Deposit-related Agreements or (ii) create any third party beneficiary rights under any of the Deposit-related Agreements in favor of the Secured Party.
(d)
This Agreement does not amend or otherwise modify any of the agreements between the Debtor and the Secured Party or provide any rights for the Debtor to originate a Disposition Instruction in contravention of any agreement between the Debtor and the Secured Party.
13.
Governing Law, Depositary Bank’s Jurisdiction and Waiver of Jury Trial.
(a)
Except as otherwise required by Article 9 of the UCC, this Agreement will be governed by the law of that jurisdiction set forth in the
Specific
Terms
without giving effect to an) choice of law rule that would require the application of the law of another jurisdiction.
(b)
If the
Specific
Terms
are completed expressly to designate the Bank’s jurisdiction for purposes of part 3 of Article 9 of the UCC, then the Deposit-related Agreements are amended to provide that for those purposes that jurisdiction is the Bank’s jurisdiction so designated.
(c)
To the extent permitted by applicable law, each party waives all rights to trial by jury in any action, claim or proceeding (including any counterclaim) of any type arising out of or directly or indirectly relating to this Agreement.
14.
Miscellaneous.
(a)
No amendment to this Agreement will be binding on any party unless it is in writing and signed by all of the parties. Any provision of this Agreement benefiting a party may be waived only by a writing signed by that party.
(b)
If a provision of this Agreement is held invalid or unenforceable in any respect, the validity or enforceability of the remaining provisions will not in any way be affected, it being understood that the validity or unenforceability of an affected provision in a particular jurisdiction will not in and of itself affect the validity or enforceability of the provision in any other jurisdiction.
EXHIBIT C
FORM OF ADDITIONAL SELLER SUPPLEMENT
EXHIBIT C
FORM OF ADDITIONAL SELLER SUPPLEMENT
Dated [
·
] 20[
·
]
Reference is made to the U.S. Receivables Purchase Agreement, dated as of May , 2011 (the
“
Receivables Purchase Agreement
”
), by and among Bunge North America, Inc., Bunge Oils, Inc., Bunge North America (East), LLC, Bunge Milling, Inc., Bunge North America (OPD West), Inc.
(each of the foregoing, a
“
Seller
”
), Bunge Finance B.V. (the
“
Seller Agent
”
), and Bunge North America Capital, Inc. (the
“
Buyer
”
). Terms defined in the Receivables Purchase Agreement are used herein with the same meaning.
[
·
] (the “
Additional Seller
”) hereby agrees as follows:
1.
By execution and delivery of this
Additional Seller Supplement
and pursuant to Section 3.3 (
Conditions Precedent to the Addition of an Additional Seller
) of the Receivables Purchase Agreement, the Additional Seller elects to become a “Seller” under the Receivables Purchase Agreement.
2.
The effective date (the “
Effective Date
”) of this Additional Seller Supplement shall be the later of (i) the date on which a fully executed copy of this Additional Seller Supplement is delivered to the Administrative Agent and (ii) the date of this Additional Seller Supplement.
3.
By executing and delivering this Additional Seller Supplement, the Additional Seller confirms to and agrees with each other party to the Receivables Purchase Agreement that (i) it has received a copy of the Receivables Purchase Agreement; (ii) it has satisfied each of the conditions precedent set forth in Section 3.3 (
Conditions Precedent to the Addition of an Additional Seller
) of the Receivables Purchase Agreement; (iii) it will perform in accordance with their terms all of the obligations which by the terms of the Receivables Purchase Agreement and the documents or agreements to be delivered thereunder are required to be performed by it as a Seller; (iv) its address (including email address) and telecopier number for notices shall be the office set forth beneath its name on the signature pages of this Additional Seller Supplement; and (v) this Additional Seller Supplement has been duly authorized, executed and delivered by it pursuant to its applicable corporate powers and constitutes the legal, valid and binding obligation of the Additional Seller, subject to any limitation on the enforceability thereof against the Additional Seller arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law).
4.
Schedules 2 and 5 to the Receivables Transfer Agreement shall be amended to incorporate the relevant information of the Additional Seller.
5.
This Additional Seller Supplement may be executed by one or more of the parties on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
6.
This Additional Seller Supplement and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the law of the State of New York, other than those conflict of law provisions that would defer to the substantive laws of another jurisdiction. This governing law election has been made by the parties in reliance (at least in part) on Section 5-1401 of the General Obligation Law of the State of New York, as amended (as and to the extent applicable), and other applicable Law.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
EXECUTION:
The parties hereto have caused this Additional Seller Supplement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
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ADDITIONAL SELLER:
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[NAME(S)]
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By:
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Name:
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Title:
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Address and telecopier number for notices:
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[Address]
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[Email]
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[Telecopier No.]
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CONFIDENTIAL TREATMENT FOR PORTIONS OF THIS EXHIBIT HAS BEEN REQUESTED
FROM THE SECURITIES AND EXCHANGE COMMISSION
Exhibit 10.8
EXECUTION COPY
Dated June 1, 2011
(1)
BUNGE NORTH AMERICA CAPITAL, INC.
, as the Transferor
(2)
BUNGE FINANCE B.V.
, as the Transferor Agent
(3)
BUNGE SECURITIZATION B.V.
, as the Transferee
U.S. INTERMEDIATE TRANSFER AGREEMENT
CONTENTS
|
Section
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Page
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1.
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DEFINITIONS AND INTERPRETATION
|
1
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1.1
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Defined Terms
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1
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1.2
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Receivables Transfer Agreement
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4
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2.
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AMOUNTS AND TERMS OF PURCHASES
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4
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2.1
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Agreement to Purchase
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4
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2.2
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Payment for the Purchases
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6
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2.3
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Deemed Collections
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9
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2.4
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Payments and Computations, Etc.
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10
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2.5
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Records
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10
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2.6
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Characterization; Grant of Security Interest
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11
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2.7
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Repurchases
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11
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2.8
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Certain Allocations
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13
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2.9
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No Recourse
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13
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3.
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CONDITIONS TO PURCHASES
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14
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3.1
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Conditions Precedent to Initial Purchase from the Transferor
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14
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3.2
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Condition Precedent to The Transferor’s Obligations
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14
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4.
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REPRESENTATIONS AND WARRANTIES
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14
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4.1
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Representations and Warranties of the Transferor
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14
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4.2
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Representations and Warranties of the Transferee
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19
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4.3
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Perfection Representations, Warranties and Covenants
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20
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5.
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COVENANTS OF THE TRANSFEROR
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20
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5.1
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Compliance with Laws, Etc.
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20
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5.2
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Records and Procedures
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20
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5.3
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[Reserved]
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21
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5.4
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Sales, Liens, Etc.
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21
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5.5
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Extension or Amendment of Receivables and Contracts
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21
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5.6
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[Reserved]
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21
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5.7
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Change in U.S. Collection Accounts
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21
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5.8
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U.S. Account Security Agreements
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21
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5.9
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[Reserved.]
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22
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5.10
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[Reserved.]
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22
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5.11
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Amendments
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22
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5.12
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Deposits to U.S. Collection Accounts
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22
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5.13
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Inspections; Annual Agreed Upon Procedures
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22
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5.14
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Further Assurances; Change in Name or Jurisdiction of Organization, Etc.
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23
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5.15
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Reporting Requirements
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24
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5.16
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Mergers, Etc.
|
26
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5.17
|
Taxes
|
26
|
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5.18
|
[Reserved.]
|
26
|
i
CONTENTS
|
Section
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Page
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5.19
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Licenses, Etc.
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26
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5.20
|
[Reserved.]
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27
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5.21
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Change in Auditors or Accounting Policies
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27
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5.22
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Power of Attorney
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27
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5.23
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Negotiable Instruments
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27
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5.24
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Separateness
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27
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5.25
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Treatment as Sales
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28
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6.
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ADMINISTRATION AND COLLECTION
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28
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6.1
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Designation of Master Servicer
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28
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6.2
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Certain Rights of the Transferee
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29
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6.3
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Rights and Remedies
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30
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7.
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TERMINATION
|
31
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7.1
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Termination
|
31
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7.2
|
Effect of Termination Date
|
31
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8.
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INDEMNIFICATION
|
31
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8.1
|
Indemnities by the Transferor
|
31
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8.2
|
Taxes
|
33
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9.
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MISCELLANEOUS
|
35
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9.1
|
Waiver, Amendments, Etc.
|
35
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9.2
|
Notices, Etc.
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35
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9.3
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Binding effect; Assignability
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36
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9.4
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Costs and Expenses
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36
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9.5
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Judgment Currency
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36
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9.6
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No Proceedings
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37
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9.7
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Governing Law
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38
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9.8
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Third Party Beneficiary
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38
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9.9
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Restriction on Payments; Waiver of Setoff
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39
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9.10
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Entire Agreement; Severability; Execution in Counterparts
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39
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9.11
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Consent to Jurisdiction
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39
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9.12
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[Reserved]
|
40
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9.13
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[Reserved]
|
40
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9.14
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Waiver of Jury Trial
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40
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9.15
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Responsible Officer Certificates; No Recourse
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40
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ii
Schedule
1.
Transferor Information
2.
Perfection Representations, Warranties and Covenants
Exhibits
A.
Form of Assignment of Repurchased Receivables
B.
Form of U.S. Account Security Agreement
iii
THIS AGREEMENT
is dated June 1, 2011 and made by and between:
(1)
BUNGE NORTH AMERICA CAPITAL, INC.
, a corporation organized under the laws of the State of Delaware (the
“
Transferor
”
);
(2)
BUNGE FINANCE B.V.
, a private limited liability company organized under the laws of the Netherlands (the
“
Transferor Agent
”
); and
(3)
BUNGE SECURITIZATION B.V.
, a private limited liability company organized under the laws of the Netherlands (the
“
Transferee
”
).
BACKGROUND:
(A)
The Transferor has agreed to purchase certain Receivables and Receivables Property related thereto from the Sellers from time to time on the terms and conditions set forth in the U.S. RPA.
(B)
The Transferor wishes to transfer and assign to the Transferee and the Transferee has agreed to acquire from time to time all of the Transferor’s right, title and interest in, to and under the Receivables and Receivables Property acquired by the Transferor pursuant to the U.S. RPA.
IT IS AGREED that:
1.
DEFINITIONS AND INTERPRETATION
1.1
Defined Terms
The following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Acquired Receivable”
means each Receivable acquired by the Transferor under the U.S. RPA; provided that no Receivable constituting a Repurchased Receivable shall be considered an Acquired Receivable hereunder after such Repurchased Receivable’s Repurchase Date.
“Advanced Purchase Price”
has the meaning specified in
Section 2.2(b)
.
“Assignment of Repurchased Receivables”
means an assignment in the form attached hereto as
Exhibit A
(
Form of Assignment of Repurchased Receivables
).
“Deferred Purchase Price”
has the meaning specified in
Section 2.2(b)
.
“Discount Percentage”
has the meaning set forth in the U.S. RPA.
“ERISA”
means the United States Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.
“ERISA Affiliate”
means a corporation, trade or business that is, along with the Transferor, a member of a controlled group of corporations or a controlled group of trades or businesses, as described in section 414(b), (c), (m) and (o) of the Internal Revenue Code of 1986, as amended, or section 4001(b) of ERISA.
“Excluded Taxes”
means (a) income taxes based on (or measured by) net income or net profits (or franchise taxes imposed in lieu of net income taxes) that are imposed on the Transferee, any Agent, Purchaser or other recipient of any payment to be made by or on account of any Transaction Party Obligation as a result of a present or former connection between such Transferee, Agent, Purchaser or other recipient and the jurisdiction of the Official Body imposing such tax or any political subdivision or taxing authority thereof (other than any such connection arising solely from the Transferee, Agent, Purchaser or other recipient having executed, delivered or performed is obligations or received a payment hereunder, or enforced, this Agreement), (b) any branch profits taxes that are imposed on the Transferee, any Agent, Purchaser or other recipient of any payment to be made by or on account of any Transaction Party Obligation by any jurisdiction described in
clause (a)
above, and (c) any Tax imposed on the Transferee or any Agent to the extent such Tax is attributable to such Transferee’s or Agent’s failure to comply with relevant requirements set forth in
Section 8.2(e)
(
Indemnity for Taxes
) (or analogous provision of any other Transaction Document), unless such failure is due to a Change in Law.
“Indemnified Amounts”
has the meaning specified in
Section 8.1
(
Indemnities by the Transferor
).
“Indemnified Party”
has the meaning specified in
Section 8.1
(
Indemnities by the Transferor
).
“Indemnified Taxes”
mean Taxes other than Excluded Taxes and Other Taxes.
“Information”
has the meaning specified in
Section 4.1(j)
(
Representations and Warranties of the Transferor
).
“Initial Purchase Date”
means the initial Purchase Date (as agreed upon between the Transferor and the Transferee) on which the Transferor sells Receivables and the related Receivables Property to the Transferee pursuant to
Section 2
(
Amounts and Terms of Purchases
).
“Other Taxes”
means any and all present or future stamp or documentary taxes or any other excise, sales, goods and services or transfer taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, any Transaction Document, in each case, other than Excluded Taxes.
“
Plan
”
means any employee pension benefit plan (other than a multiemployer plan as defined in section 4001(a)(3) of ERISA) subject to the provisions of Title IV of ERISA or section 412 of the IRC and in respect of which the Transferor or any ERISA Affiliate is (or, if such plan were terminated, would under section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
2
“Purchase”
means a purchase by the Transferee of Receivables and the related Receivables Property from the Transferor pursuant to
Section 2
(
Amounts and Terms of Purchases
).
“Purchase Date”
means each day on which a Purchase is made pursuant to
Section 2
(
Amounts and Terms of Purchases
).
“Purchase Price”
for any Purchase pursuant to
Section 2
(
Amounts and Terms of Purchases
) means an amount equal to the product of (a) the aggregate Unpaid Balance of all of the Receivables of the Transferor that are the subject of such Purchase, and (b) 100% minus the Discount Percentage.
“Receivables Property”
has the meaning specified in
Section 2.1(a)
(
Agreement to Purchase
).
“Receivables Transfer Agreement”
means the Receivables Transfer Agreement, dated the date hereof, made between (1) Bunge Securitization B.V., (2) Bunge Finance B.V., as the Master Servicer, (3) Bunge Limited, as the Performance Undertaking Provider, (4) the Persons from time to time party thereto as Conduit Purchasers, Committed Purchasers and Purchaser Agents, and (5) Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., as the Administrative Agent.
“Records”
has the meaning specified in
Section 2.5(a)
(
Records
).
“Repurchase Date”
has the meaning specified in
Section 2.7(d)(i)
(
Repurchases
).
“Repurchase Price”
has the meaning specified in
Section 2.7(c)
(
Repurchases
).
“Repurchased Receivable”
means any Receivable which has been retransferred to or otherwise reacquired by the Transferor pursuant to, and in accordance with,
Section 2.7
(
Repurchases
).
“Seller”
means a “Seller” under, and as defined in, the U.S. RPA.
“Seller Event”
means a “Seller Event” under, and as defined in, the U.S. RPA.
“Seller Termination Event”
means a “Seller Termination Event” under, and as defined in, the U.S. RPA.
“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 salable 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 such 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
3
unreasonably small capital. The amount of contingent liabilities at any 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.
“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.
“Taxes”
means any and all present or future taxes (including social security contributions and value added taxes), levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges), withholdings or other charges of any nature whatsoever imposed by any Official Body.
“Termination Date”
means the earlier of (a) the Facility Termination Date, and (b) the date on which the Termination Date (as defined in the U.S. RPA) is declared or automatically occurs with respect to all Sellers pursuant to the U.S. RPA.
“Uncollectible”
means an Acquired Receivable which is not collectible because of the financial inability of the relevant Obligor to pay such Acquired Receivable.
“U.S. Account Security Agreement”
means an account control agreement substantially in the form of
Exhibit B
(
Form of U.S. Account Security Agreement
) hereto.
1.2
Receivables Transfer Agreement
Unless otherwise defined herein, capitalized terms which are used herein shall have the meanings assigned to such terms in
Section 1.1
(
Certain Defined Terms
) of the Receivables Transfer Agreement. In the case of any inconsistency between such terms and the terms defined in
Section 1.1
of this Agreement, the terms defined in
Section 1.1
of this Agreement shall prevail for all purposes of this Agreement. The principles of interpretation set forth in
Section 1.2
(
Other Terms
) and
1.3
(
Computation of Time Periods
) of the Receivables Transfer Agreement shall apply to this Agreement as if fully set forth herein.
2.
AMOUNTS AND TERMS OF PURCHASES
2.1
Agreement to Purchase
(a)
Subject to the terms and conditions of this Agreement on the Initial Purchase Date and each Purchase Date thereafter, the Transferor will sell and otherwise assign, transfer and convey to the Transferee, and the Transferee hereby agrees to purchase and otherwise acquire without recourse except to the extent provided
4
herein, all of the Transferor’s present and future right, title and interest in, to and under the following:
(i)
each and every Acquired Receivable;
(ii)
all Collections with respect to such Acquired Receivables;
(iii)
all Related Security with respect to such Acquired Receivables; and
(iv)
all proceeds of or payments in respect of any and all of the foregoing clauses (i) through (iii) (including Collections);
(the property described in
Section 2.1(a)(ii)
,
(iii)
and
(iv)
is collectively referred to as the
“
Receivables Property
”
).
(b)
On each Purchase Date (as defined under the U.S. RPA) under the U.S. RPA, all of the Transferor’ right, title and interest in, to and under each and every Acquired Receivable and all Receivables Property with respect thereto shall be and hereby is immediately and automatically sold and otherwise assigned, transferred and conveyed to the Transferee without any further action by the Transferor or the Transferee or any other Person.
(c)
The Receivables to be purchased on any Purchase Date shall be identified on the books and records of the Transferor.
(d)
Notwithstanding anything herein to the contrary, the Transferee shall not, and shall not be obligated to, purchase or pay any Purchase Price for or otherwise purchase or acquire any Receivable or any Receivables Property, and the Transferor shall not accept the payment of the Purchase Price of any Receivable or any Receivables Property, unless at the time of such Purchase the Termination Date has not occurred.
(e)
It is the intention of the parties hereto that each Purchase of Receivables and Receivables Property pursuant to this Agreement shall be treated as a purchase by the Transferee and a sale by the Transferor of such Receivables and Receivables Property with respect thereto, which sales are absolute and irrevocable and provide the Transferee with the full benefits of ownership of such Receivables and Receivables Property. Each sale of Receivables and Receivables Property hereunder is made without recourse to the Transferor;
provided
,
however
, that (i) the Transferor shall be liable to the Transferee for all representations, warranties, covenants, deemed collection obligations and indemnities made or entered into by the Transferor in or pursuant to the terms of this Agreement or the other Transaction Documents and (ii) no such sale constitutes, nor is it intended to result in, an assumption by the Transferee or any assignee thereof of, and the Transferee and such assignees shall not have, any obligation or liability of the Transferor or any other Person to any Obligor or other customer or client of any Seller or otherwise arising in connection with the Receivables or Receivables Property or any other obligations of the Transferor or any Seller (including any
5
obligation to perform any obligation of any Seller pursuant to or under any Receivables, Contract or other Receivables Property).
(f)
In connection with the foregoing sales, the Transferor hereby authorizes the Transferee and its assigns to record and file from time to time, at the Transferor’s expense, a financing statement or statements or other similar instruments (and continuation statements with respect to such financing statements and other similar instruments) with respect to (i) the Receivables sold or to be sold by the Transferor to the Transferee from time to time pursuant hereto and (ii) the Receivables Property with respect thereto, in each case, meeting the requirements of applicable Law in such manner and in such jurisdictions as are necessary or desirable to perfect and protect the interests of the Transferee created hereby under the UCC or any other applicable Law against all creditors of the Transferor. In addition, the Transferor agrees that from time to time, at its expense, it will promptly, upon request, execute and deliver all further instruments and documents, and take all further actions that the Transferee or any Agent may reasonably request, in order to perfect, protect or more fully evidence the purchase of, or ownership by, the Transferee of the Acquired Receivables and the Receivables Property with respect thereto and its security interest in the U.S. Collection Accounts, including by filing a financing statement under the UCC or such other similar documents pursuant to any other applicable Law. In view of the intention of the parties hereto that the Purchases of Receivables and Receivables Property made hereunder shall constitute sales of such Receivables and Receivables Property, as applicable, rather than a loan secured by such Receivables and Receivables Property, the Transferor agrees, at its own expense, on or prior to each Purchase Date, to (i) indicate clearly and unambiguously in its computer files, with a legend reasonably acceptable to the Transferee and the Administrative Agent, that the applicable Receivables and all Receivables Property with respect thereto have been transferred to the Transferee pursuant to this Agreement and further assigned by the Transferee to the Administrative Agent (on behalf of the Purchasers) and (ii) note in its accounting records, with a legend reasonably acceptable to the Transferee and the Administrative Agent, that the applicable Receivables and Receivables Property have been sold to the Transferee and assigned to the Administrative Agent (on behalf of the Purchasers).
2.2
Payment for the Purchases
(a)
Subject to the terms and conditions of this Agreement
and the provisions specified in
Section 2.2(b)
below with respect to the permitted Deferred Purchase Price
, the Purchase Price for each Purchase shall be paid by the Transferee in full on the applicable Purchase Date (including the Initial Purchase Date) in the manner specified in
Section 2.2(d)
.
(b)
The parties hereto intend the Purchase Price with respect to any Acquired Receivables and Receivables Property related thereto to represent fair consideration, reasonably equivalent value and fair market value of such Acquired
6
Receivables and Receivables Property. In the event the parties determine that the calculation of the Purchase Price no longer represents fair market value, the parties hereto agree to adjust the calculation of the Discount Percentage to the extent necessary to cause such Purchase Price for any future Purchases of Receivables and Receivables Property to be such fair market value. The Transferor and the Transferee acknowledge and agree that the Purchase Price for any Purchase of Receivables shall be due and payable on the applicable Purchase Date for such Receivable
subject to the following provisions with respect to Advanced Purchase Price and Deferred Purchase Price
. In the event that Collections on any date related to any Acquired Receivables previously sold by the Transferor to the Transferee exceed the aggregate Purchase Prices payable by the Transferee to the Transferor on such date, the Transferee may pay to the Transferor an amount equal to such excess as an advance payment on account of any Purchase Price that will or may be payable by the Transferee to the Transferor on any following Purchase Date during the same Calculation Period (any such excess payment, an “
Advanced Purchase Price
”). The Transferor acknowledges and agrees that any funds received by it from the Transferee as an Advanced Purchase Price for the Purchase of Receivables shall remain the Transferee’s property until applied to the future payment of a Purchase Price for Acquired Receivables on a Purchase Date. In the event that the aggregate amount of the Advanced Purchase Prices paid by the Transferee to the Transferor during any Calculation Period exceeds the aggregate Purchase Prices owed by the Transferee to the Transferor during such Calculation Period, the Transferor shall on the Settlement Date immediately following the end of such Calculation Period repay to the Transferee an amount equal to such excess Advanced Purchase Prices. In addition, the Transferor shall track all funds received by the Transferor from the Transferee as Advanced Purchase Prices and shall at no time permit any amounts received by the Transferor as an Advanced Purchase Price to be applied under the U.S. RPA to any Seller (as an “Advanced Purchase Price” under, and as defined in, the U.S. RPA) (which have not been applied to the Purchase Price for Acquired Receivables) in excess of 10% of the Unpaid Balance of Acquired Receivables
that qualify as Eligible Receivables
then outstanding with respect to such Seller under the U.S. RPA
as set forth in the most-recent Portfolio Report
.
In the event that Collections on any date related to any Acquired Receivables previously sold by the Transferor to the Transferee are less than the aggregate Purchase Prices payable by the Transferee to the Transferor on such date, the Transferee may defer payment to the Transferor or the Seller Agent on behalf of Transferor in an amount equal to such shortfall (any such shortfall, a “
Deferred Purchase Price
”), which Deferred Purchase Price shall be payable on the earlier of the date the Transferee has funds available therefor pursuant to
Section 2.2(d)
below and the immediately following Settlement Date. In addition, the Transferor (or the Seller Agent on its behalf) shall track all such Deferred Purchase Price amounts and shall at no time permit the amount for any single Seller under the U.S. RPA to exceed 10% of the Unpaid Balance of Acquired Receivables that qualify as Eligible Receivables of such Seller as set forth in the most-recent Portfolio Report. If at any time such 10% limitation would be exceeded, the
7
Transferee shall immediately request a Subordinated Loan under the Subordinated Loan Agreement and pay the Transferor or Seller Agent on its behalf such excess.
(c)
All amounts payable by the Transferee in respect of the Purchase Price of Receivables and Receivables Property shall be paid by the Transferee to an account designated by the Transferor Agent on behalf of the Transferor (which direction may consist of standing instructions provided by the Transferor or the Transferor Agent on behalf of the Transferor to the Transferee that shall remain in effect until changed by the Transferor or the Transferor Agent in writing. The Transferor hereby appoints the Transferor Agent as its agent for purposes of receiving such payments and taking any actions hereunder on its behalf and hereby authorizes the Transferee to make payments due to the Transferor directly to, or as directed by, the Transferor Agent. The Transferor Agent hereby accepts and agrees to such appointment. Any such payment by the Transferee to or at the direction of the Transferor Agent shall constitute a full and complete discharge of the Transferee’s liability for the amounts so paid, whether or not the proceeds of such payment are properly distributed by the Transferor Agent to the Transferor.
(d)
The Purchase Price for any Acquired Receivables and Receivables Property related thereto purchased hereunder shall be discharged by the Transferee on the applicable Purchase Date (including the Initial Purchase Date), subject to
Section 2.3(c)
, as follows:
(i)
any Advanced Purchase Price made by the Transferee to the Transferor during the then applicable Calculation Period which has not previously been applied to the Purchase Price for an Acquired Receivable shall be applied to the Purchase Price for such Acquired Receivables;
(ii)
to the extent available for such purpose, in cash from Collections received by the Transferee for reinvestment in Acquired Receivables in accordance with the Transaction Documents;
(iii)
to the extent available for such purpose in accordance with the Receivables Transfer Agreement, in cash from proceeds received thereunder; and
(iv)
to the extent sufficient cash is not available under the Receivables Transfer Agreement, in cash through a drawing under the Subordinated Loan Agreement.
(e)
Prior to the date on which the Master Servicer must prepare and deliver any Portfolio Report or Outstanding Receivables Report or assist in the preparation of, or take such action as required with respect to, any Portfolio Report or Outstanding Receivables Report pursuant to the Servicing Agreement and the Receivables Transfer Agreement, the Transferor and the Transferee will make available to the Master Servicer all information necessary for the preparation of
8
such Portfolio Report or Outstanding Receivables Report, including (i) with respect to any Portfolio Report, (x) information regarding all Purchases hereunder and Deemed Collections occurring during the period to be covered in such report, and (y) the aggregate original Unpaid Balance of the Receivables transferred by the Transferor during such period and the aggregate Purchase Price for such Receivables sold by the Transferor and (ii) with respect to any Outstanding Receivables Report, (x) the name of each Obligor of the Portfolio Receivables then outstanding and (y) the Unpaid Balance of the Portfolio Receivables of such Obligor.
2.3
Deemed Collections
(a)
If on any day an Acquired Receivable or any part thereof becomes a Diluted Receivable, the Transferor shall be deemed to have received on such day a Collection of such Acquired Receivable in the amount of such Diluted Receivable or part thereof.
(b)
If on any day it is determined that any of the representations or warranties in
Section 4.1
(
Representations and Warranties of the Transferor
) was untrue with respect to an Acquired Receivable on the date of transfer hereunder to the Transferee, the Transferor shall be deemed to have received on such day a Collection of such Acquired Receivable in an amount equal to the Unpaid Balance thereof.
(c)
Not later than the Settlement Date related to the Calculation Period in which such Collection is deemed to have been received pursuant to this
Section 2.3
(and, if a Seller Event has occurred with respect to a Seller under the U.S. RPA or Portfolio Event has occurred and is continuing or the Termination Date has occurred, not later than the second (2
nd
) Local Business Day after a Responsible Officer of the Transferor is notified in writing or otherwise becomes aware that it has been deemed pursuant to this
Section 2.3
to have received a Collection with respect to a Receivable the Transferor acquired from such Seller, as applicable) the Transferor shall deposit (or shall cause the applicable Seller under the U.S. RPA to deposit) in a U.S. Collection Account, in same day funds, the amount of such Deemed Collection. Notwithstanding the foregoing, so long as no Seller Event (with respect to the applicable Seller) or Portfolio Event has occurred and is continuing and the Termination Date has not occurred, the Transferor may make payments for such Deemed Collections on a net basis against the Purchase Price payable to the Transferor by the Transferee in accordance with
Section 2.2
. (
Payment for the Purchases
). Any such amount shall be applied as a Collection in accordance with
Section 2.6
(
Collections Prior to Facility Termination Date
) or
2.7
(
Collections After Facility Termination Date
) of the Receivables Transfer Agreement, as applicable.
9
2.4
Payments and Computations, Etc.
(a)
All amounts to be paid or deposited by the Transferee hereunder shall be paid or deposited in accordance with the terms hereof by no later than the end of the day when due in same day funds to the account designated from time to time by the Transferor or Transferor Agent. All amounts to be paid or deposited by the Transferor hereunder shall be paid or deposited in accordance with the terms hereof by no later than the end of the day when due in same day funds to the account designated from time to time by the Transferee or as otherwise directed by the Transferee. All payments hereunder shall be made solely in U.S. Dollars unless otherwise specified herein. The Transferor shall, to the extent permitted by Law, pay interest on any amount not paid or deposited by the Transferor when due hereunder (after, as well as before, judgment), at an interest rate equal to the Default Rate, payable on demand. All computations of interest payable hereunder shall be made on the basis of a year of 365 (or 366, as applicable) days and the actual number of days (including the first but excluding the last day) elapsed and interest shall accrue from day to day and shall not be compounded. In the event that any payment owed by any Person hereunder becomes due on a day which is not a Business Day or Local Business Day, as applicable, such payment shall be made on the next succeeding Business Day or Local Business Day, as applicable, and such extension of time shall be included in the computation of such payment.
(b)
Notwithstanding anything herein to the contrary, any payments or deposits to be made by the Transferee under this Agreement shall be made solely from funds available to the Transferee that are not otherwise required to be applied or set aside for the payment of any obligations of the Transferee under any Transaction Document and shall be non-recourse other than with respect to such available funds and, without limiting
Section 9.6
(
No Proceedings
), if ever and until such time as the Transferee has sufficient funds to make such payment shall not constitute a claim against the Transferee.
2.5
Records
(a)
In connection with the conveyances of Receivables and Receivables Property hereunder, the Transferor, subject to applicable Law, hereby sells, assigns and otherwise transfers and conveys to the Transferee all of the Transferor’s right and title to and interest in all documents, purchase orders, invoices, agreements, books, records and other information relating to the Acquired Receivables and Receivables Property with respect thereto, the applicable Contracts and the related Obligors whether now existing or hereafter arising (collectively, the
“
Records
”
), without the need for any further documentation in connection therewith.
(b)
[Reserved]
(c)
The Transferor shall reasonably cooperate with and assist the Master Servicer in the performance of its responsibilities as Master Servicer under the Servicing Agreement and under the other Transaction Documents, including (to the extent
10
permitted by applicable Law and subject to the restrictions contained in any license with respect thereto) providing access to and transferring to the Master Servicer all Records related to the Acquired Receivables and Receivables Property and allowing (to the extent permitted by applicable Law and subject to the restrictions contained in any license with respect thereto) the Master Servicer to use all licenses, hardware or software necessary or reasonably desirable to collect, service, obtain or store information regarding the Acquired Receivables.
(d)
With the exception of the notifications and other actions referred to in
Section 6.2
(
Certain Rights of the Transferee
), the Transferor shall take such action requested from time to time hereafter by the Transferee and/or any of the Transferee’s assignees, that may be necessary to ensure that the Transferee and its assignees have an enforceable ownership interest in the Records relating to the Acquired Receivables and Receivables Property purchased from the Transferor hereunder.
2.6
Characterization; Grant of Security Interest
If, notwithstanding the intention of the parties expressed in
Section 2.1(c)
, the conveyance by any Transferor to the Transferee of Acquired Receivables and Receivables Property hereunder shall be characterized as a secured loan and not a sale (any of the foregoing being a
“
Recharacterization
”
), this Agreement shall constitute a security agreement under applicable Law. For this purpose, the Transferor hereby grants to the Transferee a security interest in all of the Transferor’s right, title and interest in, to and under all Acquired Receivables, Receivables Property related thereto and all proceeds with respect thereto, which security interest shall secure all obligations of the Transferor hereunder. The Transferor and the Transferee shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in, and not to constitute a sale of, the Acquired Receivables and Receivables Property, such security interest would be deemed to be a perfected security interest in favor of the Transferee under the UCC or other applicable Law and shall be maintained as such throughout the term of this Agreement. In the event of such Recharacterization, after any Seller Termination Event, the Transferee and its assignees shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies against the Transferor provided to a secured creditor after default under the UCC and other applicable Law, which rights and remedies shall be cumulative. In the case of any Recharacterization, each of the Transferor and the Transferee represents and warrants as to itself that each remittance of Collections by the Transferor to the Transferee hereunder will have been (i) in payment of a debt incurred by the Transferor in the ordinary course of business or financial affairs of the Transferor and the Transferee and (ii) made in the ordinary course of business or financial affairs of the Transferor.
2.7
Repurchases
(a)
Except to the extent expressly set forth herein, the Transferor shall not have any right or obligation under this Agreement, by implication or otherwise, to repurchase from the Transferee any Acquired Receivables or any Receivables
11
Property with respect thereto or to rescind or otherwise retroactively affect any conveyances of any Acquired Receivable or any Receivables Property with respect thereto after it is conveyed to the Transferee hereunder.
(b)
Subject to
Section 2.7(d)
below, the Transferor shall have the right (but in any event shall not be obligated) to repurchase or otherwise reacquire any Acquired Receivable (and all Related Property with respect thereto) that has become a Defaulted Receivable or in respect of which the Transferor has paid a Deemed Collection equal to the Unpaid Balance thereof.
(c)
The repurchase price with respect to any Acquired Receivable to be repurchased or otherwise reacquired pursuant to
Section 2.7(b)
above shall be (i) if such Acquired Receivable is a Defaulted Receivable, an amount equal to the fair market value of such Acquired Receivable at the time of repurchase (provided that if any Facility Event or Portfolio Event has occurred and is continuing, the prior written consent of the Required Committed Purchasers shall be required for any sale of a Defaulted Receivable) and (ii) with respect to any other Acquired Receivable, an amount equal to the Unpaid Balance of such Acquired Receivable at the time of repurchase thereof less the amount of any Deemed Collection paid by the Transferor in respect of such Receivable (with respect to any Receivable, the
“
Repurchase Price
”
).
(d)
The repurchase of any Acquired Receivable pursuant to
Section 2.7(b)
above is subject to the conditions precedent that:
(i)
the Transferor (or the applicable Seller under the U.S. RPA) shall have provided to the Administrative Agent written notice of its election to repurchase such Acquired Receivable on or prior to the day on which such Acquired Receivable is to be repurchased (with respect to any repurchase, the “
Repurchase Date
”);
(ii)
the Transferor shall have (simultaneously with delivery of the notice pursuant to
Section 2.7(d)(i)
), delivered a duly completed (other than with respect to the execution thereof by the Transferee) Assignment of Repurchased Receivables to the Transferee;
(iii)
on the Repurchase Date for such Acquired Receivable the Transferor shall have deposited an amount equal to the Repurchase Price payable in respect of such Acquired Receivable into a U.S. Collection Account; and
(iv)
the aggregate Unpaid Balance of all Defaulted Receivables reacquired by the Transferor pursuant to
Section 2.7(b)
shall not exceed 5% of the aggregate Unpaid Balance of all Acquired Receivables transferred by the Transferor to the Transferee hereunder.
(e)
Subject to
Section 2.7(d)
above and the payment of the Repurchase Price for the applicable Acquired Receivable pursuant to, and in accordance with, such
12
Section 2.7(d)
, the Transferee shall execute and deliver to the Transferor or the Transferor Agent the Assignment of Repurchased Receivables delivered to the Transferee pursuant to
Section 2.7(d)(ii)
above. The Transferor or the Transferor Agent shall promptly (and, in any event within five (5) Local Business Days after receipt thereof) deliver a copy of any such Assignment of Repurchased Receivables to the Administrative Agent.
(f)
Upon the delivery of an Assignment of Repurchased Receivables to the Transferor or the Transferor Agent pursuant to, and in accordance with,
Section 2.7(e)
, all of the Transferee’s right, title and interest in, to and under each and every Acquired Receivable and any Receivables Property related thereto included in such Assignment of Repurchased Receivables shall be immediately and automatically sold, assigned, transferred and conveyed to the Transferor without any further action by the Transferee or any other Person.
(g)
The Transferor hereby agrees that it shall indicate clearly and unambiguously in its computer files that such Acquired Receivable and any Receivables Property related thereto has been repurchased and shall at all times maintain the capability to identify each Repurchased Receivable and any Collections related thereto.
(h)
Notwithstanding anything herein to the contrary, each retransfer of Acquired Receivables and any Receivables Property related thereto by the Transferee pursuant to this
Section 2.7
shall be without recourse to, or representation or warranty by, the Transferee other than a representation by the Transferee that it has not disposed of any interest in the Acquired Receivables and any Receivables Property related thereto or created any Adverse Claim over them (other than an Adverse Claim created under the Security Documents or the other Transaction Documents).
2.8
Certain Allocations
The Transferor and the Transferee hereby agree that, unless otherwise required by contract or applicable Law or clearly indicated by facts or circumstances or unless an Obligor designates that a payment be applied to a specific Receivable, all Collections from an Obligor shall be applied in the order of maturity of the Receivables of such Obligor starting with the Receivables of such Obligor having the earliest maturity date (whether or not such Receivables are Acquired Receivables).
2.9
No Recourse
Except as specifically provided in this Agreement
(including, without limitation,
Sections 2.3
(
Deemed Collections
) and
8.1
(
Indemnities by the Transferor
))
, the purchase and sale of Acquired Receivables and Receivables Property hereunder shall be without recourse to the Transferor.
13
3.
CONDITIONS TO PURCHASES
3.1
Conditions Precedent to Initial Purchase from the Transferor
The Transferee’s obligation to pay the Purchase Price for the initial Purchase of Receivables from the Transferor hereunder is subject to the conditions precedent that the Transferee shall have received on or before the date of such Purchase all of the instruments, documents, agreements, certificates and opinions specified in
Schedule 4
(
Condition Precedent Documents
) to the Receivables Transfer Agreement, each (unless otherwise indicated in
Schedule 4
(
Conditions Precedent Documents
) of the Receivables Transfer Agreement) dated such date, in form and substance reasonably satisfactory to the Transferee and the Administrative Agent.
3.2
Condition Precedent to The Transferor’s Obligations
The Transferor shall not sell Receivables and any Receivables Property related thereto to the Transferee on any date (including on the Initial Purchase Date) that a voluntary or involuntary bankruptcy, insolvency, reorganization or other similar case or proceeding is pending against the Transferor or the Transferee under any applicable Insolvency Law.
4.
REPRESENTATIONS AND WARRANTIES
4.1
Representations and Warranties of the Transferor
The Transferor represents and warrants, with respect to itself and any Acquired Receivable sold by the Transferor, that on the Closing Date, the date of each Purchase hereunder and on each Reporting Date:
(a)
the Transferor (i) is duly organized and validly existing under the laws of its jurisdiction of organization, (ii) is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, unless the failure to be so qualified would not have a Material Adverse Effect and (iii) has all corporate or other organizational power and authority required to perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted, unless the failure to have such power and authority would not have a Material Adverse Effect;
(b)
the execution, delivery and performance by the Transferor of this Agreement and any other Transaction Document to which it is a party, including the Transferor’s sales of Receivables and Receivables Property related thereto hereunder and the Transferor’s use of the proceeds thereof (i) are within the Transferor’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) are in the Transferor’s interest and the Transferor will receive the corporate benefit as a result of the transactions contemplated by this Agreement and the other Transaction Documents and the Purchase Price paid for the Receivables and Receivables Property sold by it hereunder constitutes fair market value, (iv) do not contravene or constitute a default under (A) the Transferor’s Organizational
14
Documents, (B) any applicable Law, (C) any contractual restriction binding on or affecting the Transferor or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting the Transferor or its property, except in each case where any such contravention or default would not have a Material Adverse Effect and (v) do not result in or require the creation or imposition of any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to any Acquired Receivable, Receivables Property related thereto or any U.S. Collection Account. This Agreement and each other Transaction Document to which the Transferor is a party has been duly executed and delivered by the Transferor;
(c)
no authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any Official Body or official thereof or any third party is required for the due execution, delivery and performance by the Transferor of this Agreement or any other Transaction Document to which it is a party or any other document to be delivered by it hereunder or thereunder, except for the filing or registration of UCC financing statements and other actions taken or referred to in
Schedule 4
(
Conditions Precedent Documents
) to the Receivables Transfer Agreement, all of which have been (or on or before the Initial Purchase Date will have been) duly made or taken, as the case may be, and are in full force and effect, except where the failure to have obtained any such authorization or approval or taken any such action or made any such filing, notice or registration would not have a Material Adverse Effect;
(d)
this Agreement and each of the other Transaction Documents to which the Transferor is a party constitutes the legal, valid and binding obligation of the Transferor enforceable against the Transferor in accordance with its terms, subject to any limitation on the enforceability thereof against the Transferor arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law);
(e)
there are no actions, suits, investigations, litigation or proceedings at law or in equity or by or before any Official Body or in arbitration now pending against or affecting the Transferor or its Subsidiaries or any of its or their business, revenues or other property (i) which question the validity of this Agreement or any other Transaction Document to which it is a party or any of the transactions contemplated hereby or thereby (excluding any litigation or proceeding against any Obligor) or (ii) which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The Transferor is not in default or violation of any order, judgment or decree of any Official Body or arbitrator which could reasonably be expected to have a Material Adverse Effect;
(f)
[Reserved];
(g)
no proceeds of any Purchase will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, “margin stock” within the
15
meaning of Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time;
(h)
no transaction contemplated hereby or by any Transaction Document requires compliance with any bulk sales act or similar law to which the Transferor is subject;
(i)
immediately prior to each sale of the Transferor’s right, title and interest to, in and under any Receivables to the Transferee, the Transferor was the owner of such Receivables and all Receivables Property with respect thereto, free and clear of any Adverse Claim (other than Permitted Adverse Claims). Upon each Purchase of the Transferor’s right, title and interest to, in and under any Acquired Receivables, the Transferee shall have acquired a valid first priority ownership interest ranking ahead of any other ownership interest, security interest and other interest of any creditor of the Transferor in each of such Acquired Receivables and in the Receivables Property with respect thereto and the proceeds of the foregoing, in each case free and clear of any Adverse Claim (other than Permitted Adverse Claims). No effective financing statement or other instrument similar in effect is filed in any recording office listing the Transferor as debtor, covering any such Acquired Receivable, related Receivables Property, U.S. Collection Account or any interest therein or proceeds thereof, other than in respect of a Permitted Adverse Claim;
(j)
(i) each Portfolio Report and Outstanding Receivables Report (in each case, as it relates to Receivables acquired by the Transferor) is complete and accurate in all material respects as of its date, (ii) all other information, data, exhibits, documents, books, records and reports (“
Information”
) furnished by or on behalf of the Transferor in connection with this Agreement, any other Transaction Document or any transaction contemplated hereby or thereby is complete and accurate in all material respects as of its date and no such Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not materially misleading;
provided
, that, with respect to projected financial information provided by or on behalf of the Transferor, the Transferor represents only that such information was prepared in good faith by management of the Transferor on the basis of assumptions believed by such management to be reasonable as of the time made, and (iii) all financial statements which have been furnished by or on behalf of the Transferor (A) have been prepared in accordance with GAAP consistently applied (except as approved by the external auditors and as disclosed therein, if any) and (B) fairly present, in all material aspects, the financial condition of the Transferor and, if applicable, its consolidated Subsidiaries as of the dates set forth therein and the results of any operations of the Transferor and, if applicable, its consolidated Subsidiaries for the periods ended on such dates;
(k)
the Transferor has (i) timely filed or caused to be filed all material Tax returns required to be filed and (ii) paid or made adequate provision for the payment of
16
all Taxes, assessments and other governmental charges due and payable by it, except (A) any such Taxes, assessments or other governmental charges that are being contested in good faith by appropriate proceedings and for which the Transferor has set aside in its books adequate reserves in accordance with GAAP as reasonably determined by the Transferor, or (B) to the extent that such failure to do so would not reasonably be expected to result in a Material Adverse Effect;
(l)
the Transferor is located in the jurisdiction specified for the Transferor on
Schedule 1
(
Transferor Information
) for the purposes of Section 9-307 of the UCC as in effect in the State of New York;
(m)
(i) the names and addresses of all the U.S. Collection Account Banks, together with the account numbers of such U.S. Collection Accounts, as applicable, maintained at such U.S. Collection Account Banks which receive collections related to the Acquired Receivables sold by the Transferor, are as specified in
Schedule 5
(
Facility Accounts and Account Banks
) to the Receivables Transfer Agreement (as the same may be updated from time to time pursuant to
Section 5.7
(
Changes in U.S. Collection Accounts
)). Each U.S. Collection Account is subject to a valid and enforceable U.S. Account Security Agreement and the Administrative Agent (or its designee), on behalf of the Secured Parties, has a valid and perfected security interest or pledge over each U.S. Collection Account, free and clear of Adverse Claims (other than Permitted Adverse Claims). Obligors have been directed to make all payments to the U.S. Collection Accounts. Only Collections and other amounts payable in respect of Acquired Receivables are deposited into the U.S. Collection Accounts. Each of the U.S. Account Banks is an Eligible Account Bank;
(n)
(i) since its formation, the Transferor has not used any corporate name, tradename or doing-business-as name other than the name in which it has executed this Agreement and the other names listed on
Schedule 1
(
Transferor Information
); (ii) the Transferor’s Federal Employer Identification Number is as set forth on
Schedule 1
; (iii) the Transferor’s principal place of business and chief executive office for the last five (5) years and its jurisdiction of organization are listed on
Schedule 1
; (iv) the exact legal name of each entity to which the Transferor is the successor by merger or other operation of law (each a
“
Predecessor Entity
”
) during the preceding five (5) years is listed on
Schedule 1
; and (v) for each Predecessor Entity, the principal place of business and chief executive office for each for the last five (5) years and the jurisdiction of organization of each are listed on
Schedule 1
;
(o)
the Transferor is not an “investment company” as defined in, or is exempt from the registration requirements of, the Investment Company Act of 1940, as amended;
(p)
the Transferor is, individually and together with its Subsidiaries, Solvent;
17
(q)
each Acquired Receivable was an Eligible Receivable as of the applicable Purchase Date for such Acquired Receivable;
(r)
the Purchase Price paid for the Acquired Receivables and related Receivables Property purchased hereunder constitutes reasonably equivalent value and fair market value. No Purchase hereunder has been made for or on account of an antecedent debt owed by the Transferor to the Transferee and no such sale is voidable or subject to avoidance under any Section of any Insolvency Law. The sale of Receivables by the Transferor to the Transferee pursuant to this Agreement, and all other transactions between the Transferor and the Transferee, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Transferor or any of its Affiliates;
(s)
the Transferor is in compliance with the applicable provisions of ERISA and the provisions of the IRC relating to its Plans, except for such noncompliance that would not have a Material Adverse Effect. During the twelve-consecutive-month period prior to the Closing Date, the date of each Purchase or other conveyance hereunder and each Reporting Date, no steps have been taken to terminate any Plan (other than any termination not reasonably likely to have a Material Adverse Effect), and no contribution failure has occurred with respect to any Plan sufficient to give rise to a lien under section 302(f) of ERISA. No condition exists or event or transaction has occurred with respect to any Plan which is reasonably likely to result in the Transferor or any ERISA Affiliate incurring any material liability, fine or penalty that could reasonably likely have a Material Adverse Effect;
(t)
the Transferor’s obligations under this Agreement and the other Transaction Documents to which it is a party rank at least
pari passu
with all of its unsecured unsubordinated Indebtedness (other than any such Indebtedness that is preferred by mandatory provisions of law);
(u)
the Transferor has the capability to identify each Receivable sold hereunder or included in the Portfolio Reports;
(v)
the Transferor is not required to account to any Official Body for any value added or other substantially similar Tax in respect of the assignment by it of any Receivable or any Receivables Property related thereto and no withholding or other Tax is deductible or payable on any payment made by an Obligor with respect to any Receivable or any Receivables Property related thereto; and
(w)
to the extent applicable, with respect to the transactions contemplated hereunder, the Transferor is in compliance with all Laws promulgated by the U.S. Treasury Department Office of Foreign Assets Control pursuant to the International Emergency Economic Powers Act, 50 U.S.C. §§1701 et. seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et. seq., the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (the “
PATRIOT Act
”)
18
and any executive order promulgated thereunder (including, without limitation, having in full force and effect any required licenses thereunder)
4.2
Representations and Warranties of the Transferee
The Transferee represents and warrants as follows on the Closing Date, each Purchase Date and each Repurchase Date by reference to the facts and circumstances existing on the Closing Date, the Purchase Date and the Repurchase Date:
(a)
It (i) is a private limited liability company duly organized and validly existing under the laws of its jurisdiction of organization, (ii) is duly qualified to do business in every other jurisdiction where the nature of its business requires it to be so qualified, unless the failure to be so qualified would not have a Material Adverse Effect, and (iii) has all corporate or other organizational power and authority required to perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted unless the failure to have such power and authority would not have a Material Adverse Effect;
(b)
the execution, delivery and performance by the Transferee of this Agreement and each other Transaction Document to which it is a party, including the Transferee’s purchase of Acquired Receivables and Receivables Property hereunder, (i) are within the Transferee’s corporate powers, (ii) have been duly authorized by all necessary corporate action and (iii) do not contravene or constitute a default under (A) the Transferee’s Organizational Documents, (B) any Law applicable to the Transferee, (C) any contractual restriction binding on or affecting the Transferee or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting the Transferee or its property, except in each case where any such contravention or default would not have a Material Adverse Effect and (iv) do not result in or require the creation or imposition of any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to any Acquired Receivable, Receivables Property or any U.S. Collection Account. Each of the Transaction Documents to which the Transferee is a party has been duly executed and delivered by the Transferee;
(c)
no authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any Official Body or official thereof or any third party is required for the due execution, delivery and performance by the Transferee of this Agreement or any other Transaction Documents to which it is a party or any other document to be delivered by it hereunder or thereunder, except for the filing of UCC financing statements and other actions taken or referred to in
Schedule 4
(
Conditions Precedent Documents
) to the Receivables Transfer Agreement all of which have been (or on or before the Initial Purchase Date will have been) duly made or taken, as the case may be, and are in full force and effect and except where the failure to have obtained any such authorization or approval or taken any such action or made any such filing or notice would not have a Material Adverse Effect; and
19
(d)
this Agreement and each other Transaction Document to which the Transferee is a party constitutes the legal, valid and binding obligation of the Transferee enforceable against the Transferee in accordance with its terms, subject to any limitation on the enforceability thereof against the Transferee arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is in a proceeding in equity or law).
4.3
Perfection Representations, Warranties and Covenants
The Transferor makes the perfection representations, warranties and covenants set forth on
Schedule 2
(
Perfection Representations, Warranties and Covenants
) hereto, with respect to itself and any Acquired Receivable sold by the Transferor, on the date of each Purchase by the Transferee from the Transferor hereunder and on each Reporting Date.
5.
COVENANTS OF THE TRANSFEROR
Until the Seller Payout Date (as defined in the U.S. RPA) for each Seller has occurred, the Transferor covenants and agrees as set out in this
Section 5
.
5.1
Compliance with Laws, Etc.
The Transferor will comply in all respects with all applicable Laws and preserve and maintain its corporate or other organizational existence, rights, franchises, qualifications and privileges except to the extent that the failure so to comply with such Laws or the failure so to preserve and maintain such existence, rights, franchises, qualifications and privileges would not have a Material Adverse Effect.
5.2
Records and Procedures
The Transferor will keep its records concerning the Acquired Receivables and Receivables Property related thereto at (a) the address of the Transferor applicable for the purposes of
Schedule 2
(
Address and Notice Information
) to the Receivables Transfer Agreement on the Closing Date or (b) upon fifteen (15) days’ prior written notice to the Transferee and the Administrative Agent, at any other locations in jurisdictions where all actions reasonably requested by the Transferee and the Administrative Agent to protect and perfect the Transferee’s (and its assignees’) interest in the Acquired Receivables and Receivables Property have been taken and completed. The Transferor also will maintain and implement administrative and operating procedures (including an ability to recreate records evidencing Acquired Receivables, the Receivables Property related thereto and related Contracts in the event of the loss or destruction of the originals thereof) and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Acquired Receivables and Receivables Property (including records adequate to permit the daily identification of each Acquired Receivable and all Collections thereof and adjustments thereto).
20
5.3
[Reserved].
5.4
Sales, Liens, Etc.
The Transferor will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (except for Permitted Adverse Claims) upon or with respect to, any Acquired Receivable or Receivables Property or any U.S. Collection Account, or any of its rights, title and interest in, to and under any of them (including any right to receive income in respect thereof) except pursuant to, or in accordance with, the Transaction Documents.
5.5
Extension or Amendment of Receivables and Contracts
Except as provided in
Section 2.2(c)
(
Duties of the Master Servicer
) of the Servicing Agreement, the Transferor will not (a) extend, amend or otherwise modify the terms and conditions of any Acquired Receivable or Receivables Property, or (b) amend, modify or waive any term or condition of any Contract related thereto except (i) in accordance with the applicable Credit and Collection Policies, (ii) as required by Law or (iii) otherwise in a manner that would not have a Material Adverse Effect or materially adversely affect the interests or remedies of the Transferee (or its assignees).
5.6
[Reserved]
5.7
Change in U.S. Collection Accounts
The Transferor will not add or terminate any U.S. Collection Account from those listed in
Schedule 5
(
Facility Accounts and Account Banks
) to the Receivables Transfer Agreement, unless (i) the Transferee and the Administrative Agent shall have received at least fifteen (15) days’ prior written notice of such addition or termination (including an updated
Schedule 5
(
Facility Accounts and Account Banks
) to the Receivables Transfer Agreement) and a fully executed U.S. Account Security Agreement with respect to each new U.S. Collection Account to which such Obligors have been instructed to make such payments has been delivered to the Transferee and the Administrative Agent and (ii) the Purchaser Agents have provided their prior written consent (such consent not to be unreasonably withheld).
5.8
U.S. Account Security Agreements
The Transferor will cause all U.S. Collection Accounts which receive Collections related to the Acquired Receivables sold by the Transferor to be subject at all times to a U.S. Account Security Agreement duly executed by the Transferor.
21
5.9
[Reserved.]
5.10
[Reserved.]
5.11
Amendments
The Transferor will not make any amendment or other modification to any Transaction Document to which it is a party except in accordance with the amendment provisions thereof.
5.12
Deposits to U.S. Collection Accounts
(a)
The Transferor will instruct all Obligors to remit all payments in respect of the Acquired Receivables to a U.S. Collection Account that is subject to a valid and enforceable U.S. Account Security Agreement;
provided
that nothing in this
Section 5.12(a)
shall limit the obligations or liability of the Transferor pursuant to
Section 5.12(b)
through (e) or
Section 8.1
(
Indemnities by the Transferor
).
(b)
If the Transferor shall receive any Collections or other amount payable in respect of an Acquired Receivable directly, the Transferor shall promptly (and in any event within two (2) Local Business Days) deposit such Collections or other amount into a U.S. Collection Account.
(c)
The Transferor will not permit moneys other than Collections and other amounts payable in respect of Acquired Receivables to be deposited into any U.S. Collection Account.
(d)
The Transferor will not permit funds on deposit from time to time in any U.S. Collection Account to be withdrawn, transferred or otherwise applied except in accordance with the Receivables Transfer Agreement and the other Transaction Documents.
(f)
The Transferor shall, as soon as practicable following receipt and identification thereof, and in any event within two (2) Local Business Days after receipt and identification thereof, turn over or cause to be turned over to the applicable Person as may be entitled thereto any cash collections or other cash proceeds received in any U.S. Collection Account and not constituting Collections of Acquired Receivables, Related Security with respect thereto or any other Collateral.
5.13
Inspections; Annual Agreed Upon Procedures
Until the Seller Payout Date (as defined in the U.S. RPA) for each Seller has occurred:
(a)
the Transferor shall, at its expense (subject to the proviso in this
Section 5.13(a)
) from time to time during regular business hours and upon receipt of reasonable advance notice as requested by the Transferee or its assigns (including, without limitation, any Agent), permit the Transferee and its assigns (including, without limitation, any Agent), or their respective agents or representatives (including
22
independent accountants, which may not be the Transferee’s or the Transferor’s external auditors) (i) to conduct audits of the Acquired Receivables and Receivables Property and the related books and records, including the Contracts, and collections systems of the Transferor, (ii) to examine and make copies of and abstracts from all documents, purchase orders, invoices, agreements, books, records and other information (including computer programs, tapes, discs, punch cards, data processing software, storage media and related property and rights) relating to the Acquired Receivables and Receivables Property, including related Contracts and (iii) to visit the offices and properties of the Transferor for the purpose of examining such materials described in
Sections 5.13(a)(i)
and
(ii)
herein, and to discuss matters relating to the Acquired Receivables and Receivables Property or the Transferor’s performance hereunder and under the other Transaction Documents to which it is a party or under the Contracts with any of the officers or employees of the Transferor having knowledge of such matters;
provided
that, unless a Portfolio Event has occurred and is continuing or the Seller Termination Event has occurred with respect to a Seller under the U.S. RPA, only one such examination and visit in any calendar year by the Agents or the Purchasers shall be at the expense of the Transferor; and
(b)
the Transferor shall assist the Master Servicer in preparing the Accountants’ Letter under and as defined in
Section 5.2(b)
(
Inspections; Annual Agreed Upon Procedures Audit
) of the Receivables Transfer Agreement and take any other action in connection therewith as the Master Servicer, the Transferee or the Administrative Agent shall reasonably request.
5.14
Further Assurances; Change in Name or Jurisdiction of Organization, Etc.
(a)
The Transferor agrees from time to time, at its expense, promptly to execute and deliver all further instruments and documents, and to take all further actions, that may be reasonably necessary or desirable, or that have been reasonably requested by the Transferee or any of its assigns (including, without limitation, any Agent), to confirm, perfect, protect or more fully evidence the Transferee’s ownership of (or any of its or its assigns’ interest in) the Acquired Receivables and Receivables Property related thereto and security interest in the U.S. Collection Accounts, or to enable the Transferee or its assigns to exercise and enforce their respective rights and remedies under this Agreement and the other Transaction Documents. Without limiting the foregoing, the Transferor will, at its expense, duly execute, file or serve in or on the appropriate filing office, Official Body or other Person, in each jurisdiction necessary, all registrations, notices, instruments and other documents that may be necessary or desirable, or that the Transferee or its assigns (including, without limitation, any Agent) may reasonably request, to confirm, perfect, protect or evidence the Transferee’s ownership of the Acquired Receivables and the related Receivables Property and security interest in the U.S. Collection Accounts and the Administrative Agent’s ownership (on behalf of the Purchasers) or security interest (on behalf of the Secured Parties) therein. The Transferor authorizes the Transferee, the Administrative Agent or any of their respective assignees to file any registrations, notices of charge or other
23
instruments similar in effect in any jurisdiction, and amendments thereto, relating to the Acquired Receivables, the Receivables Property and the U.S. Collection Accounts without the signature of the Transferor. A photocopy or other reproduction of this Agreement shall be sufficient for such purpose where permitted by law.
(b)
The Transferor shall not, and will not take any action to, change its jurisdiction of organization (within the same country) unless the Transferee and the Administrative Agent shall have received at least fifteen (15) days’ advance written notice of such change and all action by the Transferor necessary or appropriate to confirm, perfect, protect or maintain the Transferee’s (and its assigns’) interest in the Acquired Receivables, Receivables Property and the U.S. Collection Accounts (including, without limitation, the filing of all financing statements and the taking of such other action as the Transferee and the Administrative Agent may reasonably request in connection with such change) shall have been duly taken.
(c)
The Transferor will not change its name, identity, corporate structure, location or tax identification number or make any other change which could render any financing statement or similar instrument filed in connection with any Transaction Document seriously misleading or otherwise ineffective under applicable Law, unless the Transferee and the Administrative Agent shall have received at least fifteen (15) days’ advance written notice (or twenty (20) Business Days’ advance notice in the case of a change in corporate structure) of such change prior to the effectiveness thereof and all action by the Transferor necessary or appropriate to confirm, perfect, protect or maintain the perfection of the Transferee’s (and its assigns’) interest in the Acquired Receivables, Receivables Property related thereto, and the U.S. Collection Accounts (including the filing of all financing statements and the taking of such other action as the Transferee and the Administrative Agent or any Purchaser Agent may request in connection with such change) shall have been duly taken.
5.15
Reporting Requirements
The Transferor will provide to the Transferee and the Administrative Agent the following:
(a)
Notice of Seller Events
as soon as possible and in any event within three (3) Local Business Days after a Responsible Officer of the Transferor obtains knowledge of the occurrence of any Seller Event, a statement of a Responsible Officer of the Transferor setting forth the details of such event;
(b)
ERISA
promptly after a Responsible Officer of the Transferor obtains knowledge thereof, notice of the institution of any steps by the Transferor or any other Person to
24
terminate any Plan, or the failure to make a required contribution to a Plan if such failure is sufficient to give rise to a lien under section 302(f) of ERISA, or the taking of any action with respect to a Plan which is reasonably likely to result in the requirement that the Transferor or any ERISA Affiliate furnish a bond or other security to the Pension Benefit Guaranty Corporation or such Plan, or the occurrence of any event with respect to any Plan which is reasonably likely to result in the Transferor or any ERISA Affiliate incurring any material liability, fine or penalty;
(c)
[Reserved];
(d)
Litigation; Material Adverse Effect
promptly (and in any event within three (3) Local Business Days) after a Responsible Officer of the Transferor obtains knowledge thereof, notice of:
(i)
(A) the filing or commencement of, or any written threat or notice of intention (which threat or notice in the reasonable discretion of the Transferor has not been made on frivolous or otherwise wholly unjustifiable grounds) of any Person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity or by or before any Official Body or in arbitration against, or any investigation by any Official Body that may exist with respect to the Transferor, the Transaction Documents or the transactions contemplated thereby, in each case, which could reasonably be expected to have a Material Adverse Effect or (B) any material adverse development that has occurred with respect to any such previously disclosed litigation, investigation or proceeding; or
(ii)
any other event or condition with respect to the Transferor that has had, or in the reasonable discretion of the Transferor would have, a Material Adverse Effect; and
(e)
Other Information
as soon as reasonably practical (and in any event no later than ten (10) Business Days) after a request by the Transferee or the Administrative Agent or any Purchaser Agent, such other information with respect to (i) the Acquired Receivables, the Receivables Property, the related Obligors (including any information needed for purposes of the notice to Obligors referred to in
Section 6.2(b)
) and the U.S. Collection Accounts as the Transferee or the Administrative Agent or any Purchaser Agent may from time to time reasonably request, or (ii) any Material Adverse Effect related to the Transferor as the Transferee or the Administrative Agent or any Purchaser Agent may from time to time reasonably request (which shall include an explanation of the reason for such request).
25
(f)
PATRIOT ACT
such information as is reasonably requested by any Purchaser in order to assist such Purchaser in maintaining compliance with the PATRIOT Act.
5.16
Mergers, Etc.
Except to the extent expressly permitted by the Transaction Documents, the Transferor shall not liquidate or dissolve or enter
into any amalgamation, merger or consolidation with any Person
, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions), all or substantially all of the property (whether now owned or hereafter acquired) of the Transferor and its consolidated Subsidiaries (taken as a whole) to, any Person (each, a
“
Restricted Transaction
”
), unless (a) the Transferor shall, subject to applicable Law, have given the Administrative Agent and each Purchaser Agent twenty (20) Business Days’ prior written notice of such Restricted Transaction, (b) if applicable, the surviving entity provides an acknowledgment or reaffirmation of its obligations hereunder and under the other Transaction Documents to which it (or the applicable non-surviving entity) was a party, together with such opinions of counsel as the Administrative Agent or any Purchaser Agent may reasonably request, in each case, in form and substance reasonably satisfactory to such Agent, (c) no Material Adverse Effect would occur as a result of such Restricted Transaction, (d) no Seller Event or Portfolio Event exists after giving effect to such Restricted Transaction, and (e) the surviving entity is the Transferor hereunder or a Subsidiary of Bunge Limited organized under the laws of a State in the United States of America.
5.17
Taxes
The Transferor will file all material Tax returns and reports required by Law to be filed by it and will within the time period required by applicable Law or regulation pay all Taxes and governmental charges at any time then due and payable by it (including, without limitation, all Taxes payable by the Transferor in connection with any Acquired Receivable and Receivables Property transferred by the Transferor to the Transferee hereunder), except to the extent such Taxes or governmental charges are being contested in good faith by appropriate proceedings and the Transferor has set aside in its books adequate reserves in accordance with GAAP as reasonably determined by the Transferor or the failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.18
[Reserved.]
5.19
Licenses, Etc.
The Transferor shall maintain in full force and effect all licenses, approvals, authorizations, consents, registrations and notifications which are at any time required in connection with the performance of its duties and obligations hereunder and under the other Transaction Documents to which it is a party, except to the extent the failure to do so would not have a Material Adverse Effect.
26
5.20
[Reserved.]
5.21
Change in Auditors or Accounting Policies
The Transferor shall promptly notify the Administrative Agent of (i) any change in its auditors or (ii) any material change in its accounting policies to the extent such change in accounting policies could reasonably be expected to have a Material Adverse Effect.
5.22
Power of Attorney
The Transferor will not voluntarily revoke or attempt to revoke any power of attorney granted by it in connection with the transactions contemplated by the Transaction Documents (unless such revocation results from mandatory application of applicable Law).
5.23
Negotiable Instruments
Unless delivered to the Transferee (who shall deliver to the Administrative Agent under the Receivables Transfer Agreement), the Transferor shall not take any action to cause any Acquired Receivable not evidenced by a negotiable instrument upon origination to become evidenced by a negotiable instrument, except in connection with the enforcement or collection of a Defaulted Receivable.
5.24
Separateness
The Transferor shall:
(a)
maintain corporate records and books of account separate from those of the Transferee;
(b)
ensure that the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained as official records;
(c)
maintain an arm’s-length relationship with the Transferee and not hold itself out as being liable for any Indebtedness of the Transferee;
(d)
keep its assets and its liabilities wholly separate from those of the Transferee;
(e)
not mislead third parties by conducting or appearing to conduct business on behalf of the Transferee or expressly or impliedly representing or suggesting that the Transferor is liable or responsible for any Indebtedness of the Transferee or that the assets of the Transferor are available to pay the creditors of the Transferee;
(f)
not hold the Transferee out to third parties as other than an entity with assets and liabilities distinct from the Transferor or any Affiliate or Subsidiary thereof;
27
(g)
not hold itself out to be responsible for any decisions or actions relating to the Transferee;
(h)
take such other actions as are necessary on its part to ensure that all corporate procedures required by its Organizational Documents are duly and validly taken;
(i)
keep correct and complete records and books of account and corporate minutes;
(j)
not act in any manner that could foreseeably mislead others with respect to the Transferee’s separate identity;
(k)
at all times limit its transactions with the Transferee only to those expressly permitted hereunder or under any other Transaction Document;
(l)
not take any action that would cause the Transferee to cease to be in compliance with
Section 5.1(j)
(S
eparateness
) of the Receivables Transfer Agreement; and
(m)
take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken by it in order to (I) ensure that the assumptions and factual recitations set forth in the true sale opinion and non-consolidation opinion, each dated the date hereof, of Reed Smith LLP remain true and correct in all material respects with respect to it and the Transferee and (II) comply in all material respects with those procedures described in such provisions which are applicable to it.
5.25
Treatment as Sales.
The Transferor shall not account for or treat (whether in financial statements or otherwise) the transactions contemplated by this Agreement in any manner other than as a sale and absolute conveyance of the Acquired Receivables and Receivables Property by the Transferor to the Transferee.
6.
ADMINISTRATION AND COLLECTION
6.1
Designation of Master Servicer
Consistent with the Transferee’s ownership of the Acquired Receivables and Receivables Property related thereto, the Transferor acknowledges and agrees that the servicing, administration and collection of the Acquired Receivables and Receivables Property related thereto shall be the responsibility and right of the Transferee and its assigns. The Transferee has advised the Transferor that (a) the Transferee has conveyed and will convey its right, title and interest in the Acquired Receivables and the Receivables Property related thereto to the Administrative Agent on behalf of the Purchasers and the Transferee has also granted and will grant a security interest therein to the Administrative Agent, for the benefit of the Secured Parties under and pursuant to the Receivables Transfer Agreement and (b) the servicing, administration and collection of the Acquired Receivables, and Receivables Property shall be conducted by the Person designated as the Master Servicer pursuant to the Servicing Agreement from time to time. Pursuant to
28
the Servicing Agreement (i) the Transferee has requested Bunge Finance B.V., and
Bunge Finance B.V. has agreed that it will, act as the initial Master Servicer and (ii) Bunge Finance B.V. has appointed each Seller to act as its Sub-Servicer with respect to the Acquired Receivables originated by such Seller and the Receivables Property related thereto and each Seller has accepted such appointment.
6.2
Certain Rights of the Transferee
(a)
The Transferor and the Transferee hereby agree that the Administrative Agent may (and, if so directed by the Majority Committed Purchasers, shall) at any time following the occurrence and during the continuation of a Seller Event with respect to a Seller under the U.S. RPA or any Portfolio Event, assume exclusive control of the U.S. Collection Accounts related to such Seller, as applicable, or otherwise exercise its rights under the U.S. Account Security Agreements related to such Seller, as applicable, and, in each case, may take such actions to effect such assumption as it may determine to be necessary or appropriate (including delivering the notices attached to such U.S. Account Security Agreements).
(b)
At any time following the occurrence and during the continuation of a Specified Seller Termination Event with respect to a Seller under the U.S. RPA:
(i)
at the Transferee’s or (acting either on its own initiative or at the request of the Administrative Agent or the Majority Committed Purchasers) the Administrative Agent’s request and at the Transferor’s expense, the Transferor shall (and, if the Transferor shall fail to do so within two (2) Local Business Days, the Transferee or the Administrative Agent may) (A) notify each Obligor of Acquired Receivables acquired by the Transferor from such Seller of the sale, assignment, transfer and conveyance of the Acquired Receivables and Receivables Property with respect thereto pursuant hereto and of the Transferee’s or the Administrative Agent’s (for the benefit of the Purchasers) ownership of, and the Administrative Agent’s security interest in, the Acquired Receivables and Receivables Property with respect thereto, (B) direct such Obligors that payments under any such Acquired Receivable or any Receivables Property with respect thereto be made directly to the Transferee or the Administrative Agent or their designees, and (C) execute any power of attorney or other similar instrument and/or take any other action necessary or desirable to give effect to such notification and directions, including any action required (x) to convey or perfect the Transferee’s title or the Administrative Agent’s title or security interest in the Acquired Receivables and Receivables Property, or (y) to be taken so that the obligations or other indebtedness of such Obligors in respect of any Acquired Receivables and any Receivables Property with respect thereto may no longer be legally satisfied by payment to the Transferor or any of its Affiliates; and
29
(ii)
at the Transferee’s or (acting either on its own initiative or at the request of the Majority Committed Purchasers) the Administrative Agent’s request and at the Transferor’s expense, the Transferor shall (A) assemble all of the Contracts, documents, instruments and other Records (including computer tapes and disks) that evidence or relate to the Acquired Receivables acquired by the Transferor from such Seller and any Receivables Property with respect thereto, or that are otherwise necessary or desirable to collect such Acquired Receivables and any Receivables Property with respect thereto, and shall make the same available to the Transferee and the Administrative Agent at a place selected by the Administrative Agent or its designee and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of such Acquired Receivables in a manner acceptable to the Administrative Agent and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Administrative Agent or its designee.
(c)
The Transferor hereby authorizes the Transferee and the Administrative Agent, following the occurrence and during the continuation of a Specified Seller Termination Event with respect to a Seller under the U.S. RPA, to take any and all steps in the Transferor’s name and on behalf of the Transferor that are necessary or desirable, in the determination of the Transferee or the Administrative Agent (in its own discretion or at the direction of the Majority Committed Purchasers), to collect amounts due under the Acquired Receivables acquired by the Transferor from such Seller and any Receivables Property with respect thereto, including (i) endorsing in the Transferor’s name and in favor of or otherwise to the order of the Transferee checks and other instruments representing Collections, and (ii) enforcing such Acquired Receivables and any Receivables Property with respect thereto, including to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection therewith and to file any claims or take any action or institute any proceedings that the Transferee or the Administrative Agent or any Purchaser Agent (or any designee) may deem to be necessary or desirable for the collection thereof or to enforce compliance with the terms and conditions of, or to perform any obligations or enforce any rights of the Transferor in respect of, the Acquired Receivables and any Receivables Property with respect thereto and the other Transaction Documents.
6.3
Rights and Remedies
(a)
If the Transferor fails to perform any of its obligations under this Agreement or any other Transaction Document to which it is a party and a Specified Seller Termination Event has occurred and is continuing with respect to any Seller under the U.S. RPA, the Transferee (or the Administrative Agent, as its designee) may (but shall not be required to) itself perform, or cause performance of, such obligation; and the costs and expenses of the Transferee (or the Administrative
30
Agent, as its designee) reasonably incurred in connection therewith shall be payable by the Transferor.
(b)
The Transferor shall cooperate with the Master Servicer in collecting amounts due from Obligors in respect of the Acquired Receivables and Receivables Property related thereto.
7.
TERMINATION
7.1
Termination
This Agreement shall terminate upon the occurrence of the Termination Date.
7.2
Effect of Termination Date
Following the occurrence of the Termination Date, the Transferor shall not sell, and the Transferee shall not purchase from the Transferor, any Receivables or Receivables Property. No termination or rejection or failure to assume the executory obligations of this Agreement in any Event of Bankruptcy with respect to the Transferor or the Transferee (or its assignees) shall be deemed to impair or affect the obligations pertaining to any executed sales or other executed obligations or undertakings, including pre-termination breaches of representations and warranties by the Transferor or the Transferee. Notwithstanding anything herein or any other Transaction Document to the contrary (a) the occurrence of the Termination Date shall not discharge any Person from any obligations incurred prior to the Termination Date, including any obligations to make any payments with respect to the interest of the Transferee in any Receivable or other Receivables Property sold, assigned and otherwise conveyed by the Transferor to the Transferee prior to the Termination Date, and (b) the rights and remedies with respect to any breach of any representation and warranty made by the Transferor pursuant to
Section 4
(
Representations and Warranties
), and the provisions of
Section 2.3
(
Deemed Collections
),
Section 8
(
Indemnification
) and
Section 9
(
Miscellaneous
) shall survive the occurrence of the Termination Date or any termination of this Agreement.
8.
INDEMNIFICATION
8.1
Indemnities by the Transferor
Without limiting any other rights that the Transferee and its respective officers, directors, agents, employees, assigns (including the Administrative Agent, each Purchaser and each Secured Party), controlling Persons or Affiliates of any of the foregoing (each, an
“
Indemnified Party
”
) may have hereunder, under any other Transaction Document or under applicable Law, the Transferor hereby agrees to indemnify and hold harmless each Indemnified Party from and against any and all damages, losses, claims, liabilities, deficiencies, costs, disbursements and expenses, including interest, penalties, amounts paid in settlement and reasonable lawyers’ fees and expenses (all of the foregoing being collectively referred to as
“
Indemnified Amounts
”
) awarded against or incurred by any Indemnified Party (including in connection with or relating to any investigation, litigation or lawsuit (actual or threatened) or order, consent, decree, judgment, claim or other action
31
of whatever sort (including the preparation of any defence with respect thereto)), in each case, to the extent arising out of or resulting from this Agreement or any other Transaction Document (including any and all amounts paid or payable by the Transferee pursuant to
Sections 2.11
(
Breakage Costs
),
2.14
(
Indemnity for Reserves and Expenses
),
2.15
(
Indemnity for Taxes
),
10
(
Indemnities by the Transferor
),
11.4
(
Costs and Expenses
) and
11.15
(
Judgement Currency
) of the Receivables Transfer Agreement), or any transaction contemplated hereby or thereby, including, without limitation, Indemnified Amounts awarded against or incurred by any Indemnified Party in connection with, as a result or related to:
(i)
any investigation, litigation or lawsuit (actual or threatened) or order, consent decree, judgment, claim or other action of whatever sort (including the preparation of any defense with respect thereto), in each case, in any way arising out of, resulting from or related to the purchase or maintenance or financing, either directly or indirectly, by any Indemnified Party of the Acquired Receivables, the Receivables Property or interest therein, or the use of the proceeds thereof, or the enforcement, servicing, administration or collection of any Acquired Receivable, or any other transaction contemplated hereby or thereby;
(ii)
the occurrence of any Seller Termination Event or Servicer Default;
(iii)
the failure to vest in the Transferee absolute ownership of each Acquired Receivable acquired by the Transferor under the U.S. RPA and the Receivables Property related thereto, free of any Adverse Claims;
(iv)
the failure to vest in the Administrative Agent a first priority perfected ownership or security interest prior to all other interests in all of the Acquired Receivables acquired by the Transferor under the U.S. RPA and the Receivables Property related thereto, free and clear of any Adverse Claim;
(v)
any dispute, claim, setoff or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Acquired Receivable (including a defense based on such Acquired Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise, goods or services related to such Acquired Receivable or the furnishing or failure to furnish such merchandise, goods or services or relating to collection activities with respect to such Acquired Receivable or from any breach or alleged breach of any provision of the Acquired Receivables or any Contracts related thereto restricting assignment of any Receivables; or
32
(vi)
the commingling by the Transferor of Collections of Acquired Receivables at any time with any other funds, the payment of any Collections into an account other than a U.S. Collection Account, or any failure of a U.S. Collection Account Bank to remit any amounts held in the U.S. Accounts or any related lock-boxes pursuant to applicable instructions whether by reason of the exercise of setoff rights, insolvency or otherwise;
excluding, however (a) Indemnified Amounts to the extent that such Indemnified Amounts resulted from the gross negligence, fraud or wilful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction by a final non-appealable judgment, (b) recourse (except as otherwise specifically provided in this Agreement or any other Transaction Document) for Uncollectible Acquired Receivables and Receivables Property with respect thereto, (c) any Excluded Taxes, and (d) any Indemnified Amount to the extent the same has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document.
8.2
Taxes
(a)
Any and all payments and distributions made in respect of the Acquired Receivables and Receivables Property related thereto, and all payments and distributions made or deemed made by the Transferor to the Transferee, the Administrative Agent or any other Person, whether pursuant hereto or pursuant to any other Transaction Document, shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided
that if the Transferor shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this
Section 8.2
) the recipient of such payment receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Transferor shall make such deductions, and (iii) the Transferor shall pay the full amount deducted to the relevant Official Body in accordance with applicable Law.
(b)
In addition, the Transferor shall pay any Other Taxes to the relevant Official Body in accordance with applicable Law.
(c)
The Transferor shall indemnify each Indemnified Party, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by such Indemnified Party on or with respect to the purchase of Receivables and Receivables Property under this Agreement and any payment by or on account of any obligation of the Transferor hereunder or where payment of any Indemnified Taxes or Other Taxes is otherwise made by an Indemnified Party pursuant to or in connection with this Agreement (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 8.2
) and any penalties, interest and reasonable expenses arising therefrom
33
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Official Body (other than those resulting from the Indemnified Party’s gross negligence, fraud or wilful misconduct). A certificate (along with a copy of the applicable documents from the relevant Official Body) as to the amount of such payment or liability delivered to the Transferor by an Indemnified Party, or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Purchaser, shall be conclusive absent manifest error.
(d)
As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Transferor to an Official Body, the Transferor shall deliver to the applicable Indemnified Party the original or a certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to such Indemnified Party.
(e)
(i) Upon the reasonable request of the Transferor, any Indemnified Party that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Transferor is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement, shall deliver to the Transferor (with a copy to the Administrative Agent) such properly completed and executed documentation prescribed by applicable Law (and, so far as is practicable, within the time or times required by applicable Law) as will permit such payments to be made without withholding or at a reduced rate.
(ii) The Transferee shall deliver to the Transferor (with a copy to the Transferor Agent and the Administrative Agent) a properly completed and executed Internal Revenue Service (“IRS”) Form W-8BEN. Such IRS form shall be delivered by the Transferee no later than the date on which this Agreement is entered into, and also upon the obsolescence or invalidity of any previously delivered IRS Form W-8BEN.
(f)
If an Indemnified Party determines, in its sole good-faith discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Transferor or with respect to which the Transferor has paid additional amounts pursuant to this
Section 8.2
, it shall pay over such refund to the Transferor (but only to the extent of indemnity payments made, or additional amounts paid, by the Transferor under this
Section 8.2
with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Indemnified Party and without interest (other than any interest paid by the relevant Official Body with respect to such refund net of any applicable Taxes payable in respect of such interest);
provided
that the Transferor, upon the request of such Indemnified Party, agrees to repay the amount paid over to the Transferor (plus any penalties, interest or other charges imposed by the relevant Official Body) to such Indemnified Party in the event such Indemnified Party is required to repay such refund to such Official Body. This
Section 8.2
shall not be construed to require any Indemnified Party to make available its Tax returns (or
34
any other information relating to its Taxes which it deems confidential) to the Transferor or any other Person.
(g)
Each Indemnified Party agrees that after it becomes aware of the occurrence of any event that would cause the Transferor to pay an additional amount pursuant to this
Section 8.2
with respect to Taxes or Other Taxes such Indemnified Party will use reasonable efforts to notify the Transferor of such event and, to the extent not inconsistent with such Indemnified Party’s internal policies, will use its reasonable efforts to take such action, if as a result thereof the additional monies which would otherwise be required to be paid by reason of this
Section 8.2
would be materially reduced or eliminated, and, if, as determined by such Indemnified Party, in its sole good-faith discretion, such action would not subject it to any unreimbursed cost or expense or otherwise be disadvantageous to such Indemnified Party. The Transferor agrees to pay all reasonable costs and expenses incurred by any Indemnified Party in connection with any action taken by such Indemnified Party pursuant to, or in connection with, this
Section 8.2(g)
.
(h)
Notwithstanding anything in this
Section 8.2
to the contrary, the Transferor shall not be required to pay to any Indemnified Party any amount pursuant to this
Section 8.2
to the extent such amount has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document.
9.
MISCELLANEOUS
9.1
Waiver, Amendments, Etc.
(a)
No failure or delay on the part of the Transferee or the Administrative Agent in exercising any power or other right or remedy under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any such power or other right or remedy preclude any further exercise thereof or the exercise of any other power or other right or remedy. The rights and remedies herein provided shall be cumulative and non-exclusive of any rights and remedies provided by Law.
(b)
Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Transferee, the Transferor and the Transferor Agent and consented to by the Administrative Agent (with the consent of the Required Committed Purchasers), and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
9.2
Notices, Etc.
All communications and notices provided for hereunder shall be provided in the manner described in
Schedule 2
(
Address and Notice Information
) to the Receivables Transfer Agreement.
35
9.3
Binding effect; Assignability
(a)
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successor and assigns. The Transferor may not assign or transfer its rights and obligations hereunder or any interest therein without the prior written consent of the Transferee, the Administrative Agent and each Purchaser Agent.
(b)
This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the Seller Payout Date (as defined in the U.S. RPA) of each Seller under the U.S. RPA has occurred;
provided
,
however
, that the rights and remedies with respect to any breach of any representation and warranty made by the Transferor pursuant to
Section 4
(
Representations and Warranties
), and the provisions of
Section 2.3
(
Deemed Collections
),
Section 8
(
Indemnification
) and
Sections 9.4
to
9.7
shall be continuing and shall survive any termination of this Agreement.
9.4
Costs and Expenses
In addition to the rights of indemnification granted to the Indemnified Parties pursuant to
Section 8
(
Indemnification
) hereof and the other obligations herein, the Transferor agrees to pay on written demand all reasonable costs and expenses properly incurred by any Indemnified Party in connection with the preparation, execution, delivery and administration of this Agreement and the other documents and agreements to be delivered hereunder or in connection herewith, including (i) subject to
Section 5.2(a)
(
Inspections; Annual Agreed Upon Procedures Audit
) of the Receivables Transfer Agreement, all reasonable fees and expenses associated with any audits and other due diligence conducted prior to or after the Closing Date and (ii) any amendments, waivers or consents under the Transaction Documents. In addition, the Transferor agrees to pay on written demand all costs and expenses of the Indemnified Parties (including reasonable lawyers’ fees and expenses), incurred in connection with the enforcement of, or any dispute, work-out, litigation or preparation for litigation involving, this Agreement and the other documents to be delivered hereunder.
9.5
Judgment Currency
(a)
If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
36
(b)
The obligations of the Transferor in respect of any sum due to any party hereto (or their respective assigns) or any holder of the obligations owing hereunder (the “
Applicable Creditor
”) shall, notwithstanding any judgment in a currency (the “
Judgment Currency
”) other than the currency in which such sum is stated to be due hereunder (the “
Agreement Currency
”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Transferor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss; and if the amount of the Agreement Currency so purchased is more than the sum originally due to the Applicable Creditor in the Agreement Currency, such Applicable Creditor agrees to return any such excess to the Transferor.
9.6
No Proceedings
Each of the parties hereto hereby agrees that:
(a)
it will not institute against, or join any other Person in instituting against, any Transaction SPV any proceeding of the type referred to in the definition of Event of Bankruptcy so long as there shall not have elapsed two years plus one day since the Final Payout Date;
(b)
it will not institute against any Conduit Purchaser any proceeding of the type referred to in the definition of Event of Bankruptcy so long as any Commercial Paper or other senior indebtedness issued by such Conduit Purchaser (or its related commercial paper issuer) shall be outstanding or there shall not have elapsed two years plus one day since the last day on which any such Commercial Paper or other senior indebtedness shall have been outstanding;
(c)
notwithstanding anything to the contrary contained herein or in any other Transaction Document, the obligations of each Conduit Purchaser under the Transaction Documents are solely the corporate obligations of such Conduit Purchaser and shall be payable only at such time as funds are actually received by, or are available to, such Conduit Purchaser in excess of funds necessary to pay in full all outstanding Commercial Paper issued by such Conduit Purchaser and, to the extent such excess funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Conduit Purchaser; and
(d)
notwithstanding anything contained herein or in any other Transaction Document to the contrary, the obligations of each Transaction SPV under the Transaction Documents are solely the corporate obligations of such Transaction SPV and shall be payable solely to the extent of funds which are received by such Transaction
37
SPV pursuant to the Transaction Documents and available for such payment in accordance with the terms of the Transaction Documents and, to the extent funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Transaction SPV.
9.7
Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
9.8
Third Party Beneficiary
(a)
Each of the parties hereto hereby acknowledges that the Transferee may assign or otherwise transfer all or any portion of its rights under and pursuant to this Agreement and the U.S. Account Security Agreements to the Administrative Agent on behalf of the Purchasers and Secured Parties. In addition, each of the parties hereto hereby acknowledges that such assigns may further assign, or grant security interests in, their rights under this Agreement, and the Transferor hereby consents to any such assignment or grant. All such assigns and secured parties shall be third party beneficiaries of, and shall be entitled to enforce the Transferee’s rights and remedies under, this Agreement to the same extent as if they were parties hereto.
(b)
Without limiting the generality of the foregoing, the Transferor hereby acknowledges that the Transferee has sold, transferred and otherwise assigned and will sell, transfer or otherwise assign to the Administrative Agent on behalf of the Purchasers all of its rights, title and interest in the Acquired Receivables and related Receivables Property and has granted and will grant a security interest in all of its powers and other rights and remedies under and pursuant to this Agreement and under each U.S. Account Security Agreement to the Administrative Agent for the benefit of the Secured Parties, and that each Secured Party may further assign such powers and other rights and remedies to the extent permitted in the Receivables Transfer Agreement and other Transaction Documents. The Transferor agrees that the Administrative Agent (for the benefit of the Purchasers and the Secured Parties under the Security Documents) shall, subject to the terms of the Receivables Transfer Agreement, have the right to enforce this Agreement and each U.S. Account Security Agreement and to exercise directly all of the Transferee’s rights and remedies under this Agreement and each U.S. Account Security Agreement (including the right to give or withhold any consents or approvals of the Transferee to be given or withheld hereunder) and the Transferor agrees to cooperate fully with the Administrative Agent in the exercise of such rights and remedies, provided that each of the Secured Parties shall only enforce or otherwise take action under this Agreement by acting through the Administrative Agent. The Transferor further agrees to give to the Administrative Agent copies of all notices and reports it is required to give to the Transferee hereunder.
38
(c)
Notwithstanding anything herein to the contrary, (i) no waiver, consent, request or other modification made or granted by the Transferee hereunder shall in any case be effective unless the same shall have been made or granted by, or approved in writing by, the Administrative Agent (which may make, grant or approve the Termination Date, and which shall, at the direction of the Required Committed Purchasers make, grant or approve the Termination Date), and (ii) no declaration of the Termination Date by the Transferor shall in any case be effective unless notice of such declaration shall have been received by the Administrative Agent.
9.9
Restriction on Payments; Waiver of Setoff
Except as otherwise expressly provided herein, the obligations of the Transferor to make the deposits and other payments contemplated by this Agreement is absolute and unconditional and all payments to be made by the Transferor under or in connection with this Agreement or the Servicing Agreement shall be made free and clear of, and the Transferor hereby irrevocably and unconditionally waives all rights of, any counterclaim, set-off, deduction or other analogous rights or defenses, which the Transferor may have against the Transferee, the Administrative Agent, the Purchasers, the Secured Parties or otherwise (including any obligation of the Transferee in respect of the payment of the Purchase Price for any Receivable sold hereunder), whether under this Agreement, the Transaction Documents, applicable Law, in equity or otherwise.
9.10
Entire Agreement; Severability; Execution in Counterparts
(a)
Subject to any terms implied by law, this Agreement and the other Transaction Documents together represent the entire agreement between the parties in relation to the subject matter of this Agreement and the other Transaction Documents and supersede any previous agreement between the parties in relation to the subject matter.
(b)
If, at any time, any provision of this Agreement or any transaction hereunder is or becomes, illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof or any remaining transaction hereunder, nor the legality, validity or enforceability of such remaining provision or transaction under the law of any jurisdiction, shall in any way be affected or impaired thereby.
(c)
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.
9.11
Consent to Jurisdiction
(a)
Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan and of the United States District
39
Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably waives, to the fullest extent that it may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(b)
Each of the Transferor, the Transferor Agent and the Transferee consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to it at its address specified herein. Nothing in this
Section 9.11
shall affect the right of any party to serve legal process in any manner permitted by law.
9.12
[Reserved]
9.13
[Reserved]
9.14
Waiver of Jury Trial
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
9.15
Responsible Officer Certificates; No Recourse
Any certificate executed and delivered by a Responsible Officer of the Transferor or the Transferee pursuant to the terms of the Transaction Documents shall be executed by such Responsible Officer not in an individual capacity but solely in his or her capacity as an officer of the Transferor or the Transferee, as applicable, and such Responsible Officer will not be subject to personal liability as to the matters contained in any such certificate. A director, officer, employee or shareholder, as such, of any Transferor or the Transferee shall not have liability for any obligation of any Transferor or the Transferee hereunder or
40
under any Transaction Document for any claim based on, in respect of, or by reason of, any Transaction Document, unless such claim results from the gross negligence, fraudulent acts or wilful misconduct of such director, officer, employee or shareholder.
[signatures appear on the following pages]
41
IN WITNESS WHEREOF
, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
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BUNGE NORTH AMERICA CAPITAL, INC.
,
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as the Transferor
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By:
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/s/ John P. Gilsinn
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Name:
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John P. Gilsinn
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Title:
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Treasurer
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Address:
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[U.S. Intermediate Transfer Agreement]
S-1
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BUNGE SECURITIZATION B.V.
, as Transferee,
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By:
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/s/ Frans M.J. van Rijn
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Name:
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Frans M.J. van Rijn
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Title:
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Director
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By:
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/s/ L.F.S. Bagchus
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Name:
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L.F.S. Bagchus
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Title:
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Proxy holder
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Address:
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[U.S. Intermediate Transfer Agreement]
S-2
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BUNGE FINANCE B.V.
, as Transferor Agent
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By:
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/s/ S.A.H. Claassens
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Name:
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S.A.H. Claassens
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Title:
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Director
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By:
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/s/ Luc Dekkers
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Name:
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Luc Dekkers
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Title:
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Director
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Address:
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Weena 320
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3012 NJ
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Rotterdam
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The Netherlands
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[U.S. Intermediate Transfer Agreement]
S-3
SCHEDULE 1
Transferor Information
1.1
Transferor (exact legal name): BUNGE NORTH AMERICA CAPITAL, INC.
Location for purposes of 9-307 of UCC: Delaware
Jurisdiction of formation: Delaware
Corporate name, tradename, and doing-business-as names:
Bunge North America Capital, Inc.
Tax ID Number:
30-0090140
Principal place of business and chief executive office for last five years:
725 N. Kinzie, Bradley, Illinois 60915
Predecessor Entities:
n/a
SCHEDULE 2
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in this Agreement, the Transferor hereby represents, warrants, and covenants as follows with respect to itself and the Acquired Receivables:
General
1.
This Agreement creates a valid and continuing ownership or security interest (as defined in UCC Section 9-102) in the Acquired Receivables and Receivables Property related thereto in favor of the Transferee (and the Administrative Agent as assignee thereof), which security interest is prior to all other Adverse Claims (except for Permitted Adverse Claims), and is enforceable as such as against creditors of and purchasers from the Transferor.
2.
The Acquired Receivables constitute “accounts” within the meaning of UCC Section 9-102.
3.
Each U.S. Collection Account constitutes a deposit account.
Creation
4.
Immediately prior to (or concurrent with) the transfer and assignment herein contemplated, the Transferor had good title to each Acquired Receivable, and was the sole owner thereof, free and clear of all Adverse Claims (except for Permitted Adverse Claims) and, upon the transfer thereof, the Transferee shall have good title to each such Receivable, and will (i) be the sole owner thereof, free and clear of all Adverse Claims (except for Permitted Adverse Claims), or (ii) have a first priority security interest in such Acquired Receivables, and the transfer or security interest will be perfected under the UCC. The Transferor has not taken any action to convey any right to any Person that would result in such Person having a right to payments due under the Acquired Receivables.
Perfection
5.
The Transferor has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable Law in order to perfect the sale of, or security interest in, the Acquired Receivables.
6.
With respect to the U.S. Collection Accounts, the Transferor has delivered to the Administrative Agent a fully executed agreement pursuant to which the related account bank has agreed to comply with all instructions originated by the Administrative Agent relating to each of the U.S. Collection Accounts without further consent by the Transferor.
Priority
7.
Other than the transfer of the Acquired Receivables to the Transferee under this Agreement, the Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Acquired Receivables and Receivables Property related thereto. The Transferor has not authorized the filing of, or is aware of, any financing statements against the Transferor that include a description of collateral covering the Acquired Receivables and Receivables Property related thereto other than any financing statement relating to the transfers under this Agreement or that has been terminated.
8.
The Transferor has no knowledge of any judgment, ERISA or tax lien filings against it which would reasonably be expected to have a Material Adverse Effect.
9.
Notwithstanding any other provision of this Agreement, the Perfection Representations contained in this Schedule shall be continuing, and remain in full force and effect until such time as all obligations under this Agreement have been finally and fully paid and performed.
10.
The Transferee shall not, without obtaining a confirmation of the Administrative Agent, waive any of the Perfection Representations.
EXHIBIT A
FORM OF ASSIGNMENT OF REPURCHASED RECEIVABLES
This Assignment of Repurchased Receivables (this
“
Assignment
”
) is delivered pursuant to the U.S. Intermediate Transfer Agreement, dated as of May , 2011 (the
“
Intermediate Transfer Agreement
”
), between Bunge North America Capital, Inc.
(the
“
Transferor
”
), and Bunge Securitization B.V. (the
“
Transferee
”
).
The Transferee hereby sells and otherwise assigns, transfers and conveys to the Transferor and the Transferor hereby purchases and otherwise acquires, without recourse, representation or warranty, all of the Transferee’s present and future right, title and interest in, to and under:
(a)
each and every Receivable listed in
Annex I
to this Assignment;
(b)
all Collections with respect to such Receivables;
(c)
all Related Security with respect to such Receivables; and
(d)
all proceeds of or payments in respect of any and all of the foregoing clauses (a) through (c) (including Collections).
(the property described in the foregoing Sections (b), (c) and (d) is hereinafter collectively referred to as the
“
Receivables Property
”
).
It is the intention of the parties hereto that the sale of the Receivables and the Receivables Property pursuant hereto shall be treated as a purchase by the Transferor and a sale by the Transferee of such Receivables and the Receivables Property with respect thereto, which sales are absolute and irrevocable and provide the Transferor with the full benefits of ownership of such Receivables and Receivables Property. The sale of Receivables and the Receivables Property pursuant to this Assignment is made without recourse to the Transferee and the Transferee does not undertake to perform any covenant or agreement or make any representation or warranty (other than the representation that it has not disposed of any interest in the Receivables or Receivables Property or created any Adverse Claim on or over them (other than an Adverse Claim created under the Security Documents or other Transaction Documents)).
This Assignment is made pursuant to the Intermediate Transfer Agreement and is to be governed by the Intermediate Transfer Agreement.
The Transferee hereby represents that aggregate Unpaid Balance of the Receivables listed on
Annex I
hereto is [
·
].
This Assignment shall be governed and construed in accordance with the law of the State of New York.
Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in, or incorporated by reference into, the Intermediate Transfer Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly executed as of
[Date]
.
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BUNGE NORTH AMERICA CAPITAL, INC.
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as Transferor
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By:
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Name:
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Title:
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BUNGE SECURITIZATION B.V.
,
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as Transferee
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By:
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Name:
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Title:
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BUNGE FINANCE B.V.
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as Transferor Agent
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By:
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Name:
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Title:
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EXHIBIT B
FORM OF U.S. ACCOUNT SECURITY AGREEMENT
DEPOSIT ACCOUNT CONTROL AGREEMENT
(Secured Party Notification)
(WITH OPTIONAL RESCISSION OF NOTICE - SPECIAL HANDLING)
UMB BANK, N.A.
, a national banking association as depositary bank (the “
Bank
”),
BUNGE NORTH AMERICA CAPITAL, INC.
, a Delaware corporation and the Bank’s depositary banking customer (the “
Company
”), and
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
, a company organized and existing under the laws of the Kingdom of The Netherlands as Administrative Agent (the “
Secured Party
”) have entered into this DEPOSIT ACCOUNT CONTROL AGREEMENT as of this
1st
day of
June 2011
(this “
Agreement
”).
Statement of Facts
The Bank acknowledges that, as of the date hereof, it maintains in the name of the Company the deposit account(s) identified in
Exhibit A
attached hereto and made a part hereof (each an “
Account
”). An Account may be served by one or more lockboxes operated by the Bank, which lockboxes (if any) also are identified on
Exhibit A
(each a “
Lockbox
”). The Account(s) are governed by the terms and conditions of the Company’s commercial deposit account agreement published by the Bank from time to time, and with respect to any additional banking service to an Account (
e.g.
, Lockbox), also will be governed by a service description between the Bank and the Company (collectively, with all such services descriptions and/or agreements, the “
Deposit Agreement
”).
The Company hereby confirms to the Bank that the Company has granted to Bunge Securitization B.V., a company organized under the laws of the Kingdom of the Netherlands and which has transferred to the Secured Party, a security interest in the following (collectively, the “
Account Collateral
”): (a) the Account(s), (b) the Lockbox(es) and (c) the Items Collateral. “
Items
Collateral
” means, collectively, all checks, drafts, instruments, cash and other items at any time received in a Lockbox or for deposit in an Account (subject to specific Lockbox instructions in effect for processing items), wire transfers of funds, automated clearing house (“
ACH
”) entries, credits from merchant card transactions, and other electronic funds transfers or other funds deposited in, credited to, or held for deposit in or credit to, an Account.
The parties desire to enter into this Agreement in order to set forth their relative rights and obligations with respect to the Account Collateral. In consideration of the mutual covenants herein as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.
Control of the Account(s)
(a)
The Statement of Facts is incorporated herein by reference. The Bank represents that it is a “bank”. The Company confirms and the Bank acknowledges that each Account is a “deposit account”. Each party hereto acknowledges that this Agreement is an “authenticated record”, and that the arrangements established under this Agreement are intended to constitute “control” of
each Account. Each of these terms is used in this Agreement as defined or used in Article 9 of the Uniform Commercial Code as adopted by the State of New York (the “New York UCC”).
(b)
The Company represents and warrants to the Secured Party that
Exhibit A
contains a complete and accurate list of all Accounts and Lockboxes maintained by the Company with the Bank and subject to this Agreement. The Company covenants for the benefit of the Secured Party that the Company shall not instruct the Bank to close any Account without the prior written consent of the Secured Party. Nothing in this Agreement shall impose upon the Bank any obligation to monitor or assure the Company’s compliance with this Section 1(b).
(c)
The Bank confirms that, as of the date of this Agreement, the Bank has not entered into any agreement (other than the Deposit Agreement) with any person pursuant to which the Bank is obligated to comply with instructions from such person as to the disposition of funds in any Account or of other Account Collateral. During the term of this Agreement the Bank will not enter into any agreement with any person other than the Secured Party pursuant to which the Bank will be obligated to comply with instructions from such person as to the disposition of funds in any Account or of other Account Collateral.
(d)
The Company authorizes and directs the Bank to comply, and the Bank agrees to comply, with all instructions delivered by the Secured Party to the Bank in accordance with and subject to this Agreement and with which the Bank would be obligated contractually to implement under the Deposit Agreement, including directing the disposition of funds in an Account or as to any other matter relating to an Account or other Account Collateral, without further consent by the Company. The Secured Party’s right to give instructions to the Bank regarding any Account Collateral also shall include (but is not limited to) the right to give “stop payment orders” to the Bank for any item presented to the Bank against an Account even if the instruction results in dishonor of the item presented against the Account.
(e)
The Secured Party authorizes and instructs the Bank to: (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement; and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and other Account Collateral until the implementation by the Bank of the written instruction by the Secured Party to the Bank in the form and text of
Exhibit B
attached hereto and made a part hereof, and completed in full (a “
Notice
”), and delivered to the Bank in accordance with and subject to the provisions of Section 7 below. The Bank shall be obligated to implement the Notice only if the Notice: (A) shall be in the form and text of
Exhibit B
and completed in full; (B) shall have attached to it a copy of this Agreement as fully executed (together with all amendments thereto); and (C) shall have been delivered to the Bank in accordance with Section 7 (
provided, however,
the Bank shall be fully authorized, in its exercise of its sole discretion, to implement the Notice even if the conditions of clause (B) shall not have been fulfilled).
(f)
Upon implementation of a Notice by the Bank as provided in Section 7, the Bank shall not permit any officer, agent or other representative of the Company or its affiliates to direct the disposition of funds in any Account, withdraw or transfer any amount from any Account, or otherwise exercise any authority or power with respect to any Account, Lockbox or other Account Collateral until such time, if any, that the Bank shall have implemented a Rescission of
Notice in accordance with Section 1(g). Upon implementation of a Notice by the Bank, all available funds in any Account shall only be withdrawn or transferred therefrom based on instructions delivered by the Secured Party to the Bank in accordance with Section 7. Each other instruction that the Secured Party shall deliver to the Bank in connection with an Account or other Account Collateral must be delivered to the Bank in accordance with the provisions of Section 7, and shall either accompany delivery of a Notice by the Secured Party to the Bank or subsequently shall be delivered by the Secured Party to the Bank. Any instruction by the Secured Party to the Bank to remit or transfer funds from an Account to any recipient account of the Secured Party or any other recipient account, and which recipient account shall not be an account maintained by the Bank, must only be an instruction to the Bank to remit or transfer funds from the Account
via
wire transfer in accordance with the Bank’s procedures governing wire transfers of funds. The Secured Party shall not instruct the Bank to remit or transfer funds from any Account
via
ACH.
(g)
At any time after the Bank shall have implemented a Notice, the Secured Party may rescind a Notice by the written instruction by the Secured Party to the Bank in the form and text of
Exhibit C
attached hereto and made a part hereof, and completed in full (a
“
Rescission
of
Notice
”
), and delivered to the Bank in accordance with and subject to the provisions of Section 7 below. The Bank shall be obligated to implement a Rescission of Notice only if the Rescission of Notice: (A) shall be in the form and text of
Exhibit C
and completed in full; (B) shall have attached to it a copy of this Agreement as fully executed (together with all amendments thereto); and (C) shall have been delivered to the Bank in accordance with Section 7 (
provided, however,
the Bank shall be fully authorized, in its exercise of its sole discretion, to implement a Rescission of Notice even if the conditions of clause (B) shall not have been fulfilled). Upon the delivery of a Rescission of Notice by the Secured Party to the Bank, the Secured Party shall have authorized and instructed the Bank to: (i) permit the Company to have access to and disposition over the Account(s) and Account Collateral and to otherwise deal with same as provided in the Deposit Agreement; and (ii) act upon the instructions that the Bank shall receive from the Company concerning the Lockbox and other Account Collateral until such time as the Bank shall have implemented any subsequent Notice that the Bank shall have received from the Secured Party.
During the term of this Agreement the Secured Party shall not deliver a Rescission of Notice to the Bank on more than two (2) separate occurrences, and if the Secured Party shall deliver a Rescission of Notice to the Bank on a third or successive occurrence, such third or successive Rescission of Notice shall be null, void and of no effect and shall not be implemented by the Bank.
(h)
Federal Reserve Regulations and Operating Circulars, ACH or other clearing house rules, other applicable law (including, without limitation, the Uniform Commercial Code as adopted by the State in which each respective Account
is located as specified in
Exhibit A
(the “
Applicable UCC
”)), and the Deposit Agreement also shall apply to the Secured Party’s exercise of control over each Account and the Account Collateral and to the performance by the Bank of its obligations under this Agreement. Each of the Company and the Secured Party authorizes and instructs the Bank to supply the Company’s or the Secured Party’s endorsement, as appropriate, to any Items Collateral that the Bank shall receive for deposit to an Account.
2.
Statements and Other Account Information
If so requested of the Bank by the Secured Party in writing, the Bank will send to the Secured Party (in a manner consistent with
the Bank’s standard practices) at the Secured Party’s address specified in Section 7, copies of all Account statements (but not canceled checks) that the Bank is required to send to the Company under the Deposit Agreement. The Bank also shall provide to each of the Company and the Secured Party when so requested (solely as a service to the Company under the Deposit Agreement) copies of Account statements and other Account information, including balances, by telephone and computer communication, to the extent practicable, when requested by the Company or the Secured Party. The Company consents to the Bank’s release of all such Account information to the Secured Party. The Bank’s liability for its failure to comply with this Section 2 shall not exceed the Bank’s cost of providing such information.
3.
Subordination, Permitted Debits and Returned Items
(a)
The Bank will not exercise any security interest, lien, right of setoff, deduction, recoupment or banker’s lien, or any other interest in or against any Account or any other Account Collateral, and the Bank hereby subordinates to the security interest of the Secured Party any such security interest, lien or right that the Bank may have in or against any Account or other Account Collateral. The subordination by the Bank in the preceding sentence shall not apply to any security interest that the Bank may have as a collecting Bank in any Items Collateral as provided in Article 4 of the Applicable UCC. Notwithstanding the preceding text of this Section 3(a), the Secured Party and the Company agree that the Bank at all times (including following commencement of any bankruptcy or insolvency proceeding by or against the Company) may set off and charge against any Account (regardless of any agreement by the Company to compensate the Bank by means of balances in the Account) all of the following as provided in the Deposit Agreement (each a “
Permitted Debit
”): (i) the face amount of each Returned Item (defined below), (ii) the Bank’s usual and customary service charges and fees including, but not limited to, account maintenance fees and funds transfer fees, and (iii) out-of-pocket fees and expenses (including attorneys’ reasonable fees) incurred by the Bank in connection with the Account(s) and other Account Collateral as provided in the Deposit Agreement; whether any Permitted Debit shall have accrued or been incurred before or after the date of this Agreement. “
Returned Item
” means any (i) Items Collateral deposited in or credited to an Account before or after the date of this Agreement and returned unpaid or otherwise uncollected or subject to an adjustment entry, whether for insufficient funds or any other reason, and without regard to the timeliness of such return or adjustment or the occurrence or timeliness of any other party’s notice of nonpayment or adjustment; (ii) adjustments or corrections of posting or encoding errors; (iii) Items Collateral subject to a claim against the Bank for breach of transfer, presentment, encoding, retention or other warranty under Federal Reserve Regulations or Operating Circulars, ACH or other clearing house rules, or applicable law (including, without limitation, Articles 3, 4 and 4A of the Applicable UCC); and (iv) demand for chargeback in connection with a merchant card transaction. For avoidance of doubt, the Bank’s rights under this Section 3(a) or provisions of the Deposit Agreement shall not permit the Bank to set off against and charge an Account as a Permitted Debit any obligation of the Company to the Bank in connection with any (A) deposit account that the Company may have with the Bank and that is not an Account or (B) other agreement between the Company and the Bank; Permitted Debits shall be solely those relating to the Account(s) and Account Collateral.
(b)
If (i) the Bank were unable to set off or charge any Permitted Debit against an Account because of insufficient funds in the Account, or (ii) the Bank were to believe in good faith that
any legal process or applicable law prohibited such setoff or charge against an Account, or (iii) the Account were closed, then: (A) the Bank may charge such Permitted Debit to and set off same against any other Account (and other deposit account(s) of the Company maintained with the Bank and that are not subject to this Agreement, if any, and against which other deposit account(s) of the Company the Bank is not otherwise prohibited from exercising its right of setoff); and (B) if there were insufficient funds in the Account(s) against which to charge or set off such Permitted Debits, then the Bank shall demand (unless the Bank shall believe in good faith that any legal process or applicable law prohibits such demand) that the Company pay, and the Company shall pay, to the Bank promptly upon the Company’s receipt of the Bank’s written demand therefor, the full amount of all unpaid Permitted Debits.
(c)
If (i) a Notice shall have been implemented by the Bank, and (ii) there shall be insufficient funds in the Account(s) against which the Bank could charge or set off Permitted Debits, and (iii) the Company shall have failed to pay to the Bank the full amount of unpaid Permitted Debits, then the Bank may demand that the Secured Party pay, and the Secured Party shall pay, to the Bank within ten (10) calendar days of the Secured Party’s receipt of the Bank’s written demand therefor, the full amount of unpaid Permitted Debits. The obligation of the Secured Party to pay the Bank for any unpaid Permitted Debit shall be limited to the aggregate amount of funds that shall be withdrawn or transferred from the Account(s) pursuant to the Secured Party’s instruction(s) to the Bank as contemplated by this Agreement.
(d)
Subject to the provisions of the last sentence of Section 3(c), in the event that the Bank shall implement a Rescission of Notice, the Secured Party shall remain liable for payment of all Permitted Debits; provided that (i) as to unpaid Permitted Debits that are service charges, fees or expenses described in clauses (ii) and (iii) of the definition of Permitted Debit in Section 3(a), the Secured Party shall be required to pay to the Bank only those service charges, fees or expenses attributable to any Account that shall have been incurred in connection with any Account on or before the date of implementation of a Rescission of Notice and (ii) as to unpaid Permitted Debits that are Returned Items, the Secured Party shall be required to pay to the Bank only those Returned Items with respect to Items Collateral deposited in the account on or before the date of implementation of a Rescission of Notice, regardless of (A) the date such Returned Items are returned unpaid or otherwise uncollected or subject to an adjustment entry, (B) the date of any adjustment or correction of posting or encoding errors, (C) the date any Items Collateral are subject to a claim against the Bank for breach of transfer, presentment, encoding, retention or other warranty or (D) the date of any demand for chargeback in connection with a merchant card transaction. If a Notice shall have been implemented by the Bank at any time following implementation of a Rescission of Notice by the Bank, then the provisions of Section 3(c) above thereupon shall be applicable again.
4
.
Exculpation of the Bank
(a)
At all times the Bank shall be entitled to rely upon any communication that the Bank shall receive from (or shall believe in good faith to be from) the Company in connection with the Deposit Agreement and this Agreement. At all times the Bank shall be entitled to rely upon any communication that the Bank shall receive from (or shall believe in good faith to be from) the Secured Party in connection with this Agreement, and the Bank shall have no obligation to investigate or verify the authenticity or correctness of any such communication. The Bank shall
have no liability to the Company or the Secured Party for the Bank: (i)
not
honoring or following any instruction that the Bank shall receive from (or shall believe in good faith to be from) the Secured Party prior to the implementation of a Notice by the Bank or following implementation of any Rescission of Notice by the Bank; (ii) honoring or following any instruction the Bank shall receive from (or shall believe in good faith to be from) the Secured Party in accordance with this Agreement; (iii) honoring or following any instruction the Bank shall receive from (or shall believe in good faith to be from) the Company in accordance with this Agreement prior to the implementation of a Notice by the Bank or after the implementation of a Rescission of Notice by the Bank; or (iv) not honoring or following any instruction that the Bank shall receive from (or shall believe in good faith to be from) the Company after implementation of a Notice by the Bank or prior to the implementation of a Rescission of Notice by the Bank. The Bank shall not be responsible for the validity, priority or enforceability of the Secured Party’s security interest in any Account Collateral, nor shall the Bank be responsible to have any knowledge of or for any enforcement of any agreement between the Company and the Secured Party.
(b)
The Bank shall be responsible only for the actual loss that a court having jurisdiction over the Account(s) shall have determined had been incurred by the Company or the Secured Party and caused by the Bank’s gross negligence or willful misconduct in its performance of its obligations under this Agreement. The Bank shall have no liability for failure of, or delay in, its performance under this Agreement resulting from any “act of God”, war or terrorism, fire, other catastrophe or
force majeure
, electrical or computer or telecommunications failure, any event beyond the control of the Bank, or fraud committed by any third party. Nothing in this Agreement shall create any agency, fiduciary, joint venture or partnership relationship between the Bank and the Company or between the Bank and the Secured Party. Except as specifically required by this Agreement or the Deposit Agreement or applicable law, the Bank shall have no obligation whatsoever to the Company in connection with the subject matter of this Agreement. Except as specifically required by this Agreement or applicable law, the Bank shall have no obligation whatsoever to the Secured Party in connection with the subject matter of this Agreement.
5.
Indemnification of the Bank
(a)
The Company hereby indemnifies the Bank and holds it harmless against, and shall reimburse the Bank for, every loss, damage or expense (including attorneys’ reasonable fees and expenses, court costs and other expenses) that the Bank shall incur in connection with this Agreement including, but not limited to, (i) all unpaid Permitted Debits, and (ii) every loss, damage or expense that the Bank shall incur as a result of the Bank (A) entering into or acting pursuant to this Agreement, (B) honoring and following any instruction the Bank may receive from (or shall believe in good faith to be from) the Secured Party or the Company under this Agreement, and (C) upon its implementation of a Notice, not honoring or following any instruction that the Bank shall receive from the Company in connection with any Account Collateral. The Company shall not be responsible for any loss, damage, or expense that a court having jurisdiction shall have determined had been caused by the Bank’s gross negligence or willful misconduct in its performance of its obligations under this Agreement.
(b)
Without limiting any obligation of the Secured Party to pay the Bank for unpaid Permitted Debits and unpaid Fees and Expenses (defined in Section 9(a) below), the Secured
Party hereby indemnifies the Bank and holds it harmless against every loss, damage or expense (including attorneys’ reasonable fees and expenses, court costs and other expenses) that the Bank shall incur as a result of its honoring or following any instruction (including a Notice or any Rescission of Notice) that the Bank shall receive from (or shall believe in good faith to be from) the Secured Party as provided by this Agreement. The Secured Party’s indemnification obligation to the Bank as provided by this Section 5(b) shall be reduced by those amounts that the Company shall have paid to the Bank pursuant to the provisions of clause (ii)(B) of Section 5(a) above;
provided, however,
such reduced indemnification obligation of the Secured Party to the Bank shall be reinstated automatically and to the extent that any amount paid by the Company to the Bank pursuant to clause (ii)(B) of Section 5(a) above shall be required to be disgorged by the Bank. The Secured Party shall not be responsible for any loss, damage, or expense that a court having jurisdiction shall have determined had been caused by the Bank’s gross negligence or willful misconduct in its performance of its obligations under this Agreement.
(c)
No party to this Agreement shall be liable to any other party hereto for lost profits or special, indirect, exemplary, consequential or punitive damages incurred in connection with this Agreement, even if such party shall have been advised of the possibility of such damages.
6.
Third Party Claims Against an Account; Insolvency of the Company
(a)
If the Bank shall receive notice that any third party shall have asserted an adverse claim by legal process against an Account or funds on deposit therein, any Lockbox, or other Account Collateral, whether such claim shall have arisen by tax lien, execution of judgment, statutory attachment, garnishment, levy, claim of a trustee in bankruptcy, debtor-in-possession, post-bankruptcy petition lender, court appointed receiver, or other judicial or regulatory order or process (each, a “
Claim
”), the Bank may, in addition to other remedies it may possess under the Deposit Agreement, this Agreement or at law or in equity, suspend disbursements from such Account without any liability until the Bank shall have received an appropriate court order or other assurances acceptable to the Bank in its sole discretion establishing that funds may continue to be disbursed according to instructions then applicable to such Account. The Bank’s costs, expenses and attorneys’ reasonable fees incurred in connection with any Claim are Permitted Debits and shall be reimbursed to the Bank in accordance with Section 3 above.
(b)
If a bankruptcy or insolvency proceeding shall be commenced by or against the Company, the Bank shall be entitled, without any liability, to refuse to (i) permit any withdrawal or transfer from any Account or (ii) implement a Notice or a Rescission of Notice or follow any other instruction delivered by the Company or the Secured Party to the Bank until the Bank shall have received an appropriate court order or other assurances acceptable to the Bank in its sole discretion establishing that (A) continued withdrawals or transfers from the Account(s) or the Bank honoring or following any instruction by the Company or the Secured Party shall be authorized and shall not violate any law, regulation, or order of any court and (B) the Bank shall be authorized to set off against or charge any Account and to otherwise be reimbursed for all Permitted Debits.
7.
Notice,
Rescission
of Notice and Other Communications
(a)
All communications given by any party to this Agreement to another as required or provided by this Agreement must be in writing, directed to the respective party’s designated office or officer (“
Designated
Office[r]
”) identified under Section 7(c) below, and delivered to each recipient party at its address (or at such other address or to such other Designated Office(r) as such party shall designate in writing to the other parties in accordance with this Section 7) either by U.S. Mail, receipted delivery service or
via
telecopier or “
PDF
” electronic facsimile transmission. All communications given by the Secured Party to the Bank must be addressed and delivered contemporaneously to both the Bank’s Designated Office and the Bank’s “
with copy to
” addressee at their respective addresses set forth below.
(b)
Any communication (including a Notice and a Rescission of Notice) made by (or believed in good faith by the Bank to be made by) the Company or the Secured Party to the Bank in connection with this Agreement shall be deemed delivered to the Bank only if delivered: (i) by U.S. Mail, on the date that such communication shall have been delivered to the Bank’s Designated Office; (ii) by receipted delivery service, on the date and time that such communication shall have been delivered to the Bank’s Designated Office and receipted by the delivery service; or (iii)
via
telecopier or “
PDF
” electronic facsimile transmission, on the date and at the time that such communication shall have been delivered to the Bank’s Designated Office and receipt of such delivery shall have been acknowledged by the recipient electronic facsimile equipment. Any communication delivered to the Bank that is an instruction (including a Notice or a Rescission of Notice) to the Bank and made by (or believed by the Bank in good faith to be made by) the Company or the Secured Party shall be deemed received by the Bank when actually delivered to the Bank’s Designated Office if delivered before 2:00 PM Central time on a banking day or, if such communication were delivered after 2:00 PM Central time on a banking day or delivered on a day that is not a banking day, then such communication shall be deemed delivered to the Bank’s Designated Office at 9:00 AM Central time on the next succeeding banking day. A “
banking day
” means any day other than any Saturday or Sunday or other day on which the Bank is authorized or required by law to close.
(c)
A Notice or a Rescission of Notice shall be implemented by the Bank by the close of the Bank’s business on the banking day that shall be one (1) banking day after the banking day on which a Notice or a Rescission of Notice shall have been delivered to the Bank’s Designated Office. Any other instruction delivered to the Bank shall be implemented by the Bank by the close of the Bank’s business on the banking day that shall be two (2) banking days after the banking day on which such instruction shall have been delivered to the Bank’s Designated Office.
|
Address for Secured Party:
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Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.
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c/o Rabobank International
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245 Park Avenue
New York, New York 10167
|
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Attn: Mr. Christopher Lew, Designated Officer
|
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|
|
Fax:
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914. 304. 9324
|
|
|
|
PDF
:
|
naconduit@rabobank.com
|
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with copy to
:
|
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Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.
|
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Thames Court, 1 Queenhithe
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EC4V 3RL, London, England
|
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|
|
United Kingdom
|
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Attn:
|
Ms. Donna Kunzig, Executive Director
|
|
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Fax:
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011. 44. (0)20. 7809. 3450
|
|
|
|
PDF
:
|
Donna.Kunzig@Rabobank.com
|
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|
|
|
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Address for Bank:
|
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UMB Bank, n.a.
|
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1010 Grand Boulevard
|
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Mail code 1020215
|
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|
Kansas City, Missouri 64106
|
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|
Attn:
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TS Risk Mgmt DACA Team, Designated Office
|
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|
Fax:
|
816. 860. 3643
|
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PDF
:
|
James.Rundberg@UMB.com
|
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with copy to:
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UMB Bank, n.a.
|
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2 South Broadway
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Mail Code 5410001
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St. Louis, Missouri 63102
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Attn: Mr. Cecil Wood, Executive Vice President
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Fax:
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314. 612. 8150
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PDF
:
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Cecil.Wood@UMB.com
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Address for Company:
|
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Bunge North America Capital, Inc.
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c/o Bunge North America, Inc.
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11720 Borman Drive
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St. Louis, Missouri 63146
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Attn:
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Treasurer, Designated Officer
|
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Fax:
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314. 292. 4314
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with copy to
:
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Bunge North America, Inc.
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11720 Borman Drive
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St. Louis, Missouri 63146
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Attn:
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General Counsel
|
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Fax:
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314. 292. 2521
|
8.
Termination of this Agreement; Closing an Account
(a)
The Secured Party may terminate this Agreement at any time upon receipt by the Bank of the Secured Party’s written notice of termination issued in the form and text of
Exhibit D
attached hereto and made a part hereof, and completed in full, together with a copy of this Agreement as fully executed. The Company may terminate this Agreement only with the express prior written consent of the Secured Party and, in that case, the Secured Party and the Company shall jointly so notify the Bank thereof in writing together with a copy of this Agreement as fully executed.
(b)
The Bank may terminate this Agreement at any time (i) on not less than thirty (30) calendar days’ prior written notice thereof to each of the Company and the Secured Party, or (ii) upon not less than ten (10) calendar days’ prior written notice thereof to the Company and the Secured Party if (A) the Company shall have breached the Deposit Agreement or this Agreement as the Bank shall have determined or (B) the Secured Party shall have breached this Agreement as the Bank shall have determined. The Bank also may close any Account and/ or terminate this Agreement immediately if the Bank shall be instructed to do so by any court or governmental authority having jurisdiction over the Bank or the Account Collateral, or if the Bank shall suspect in good faith that the Account has been or is being used for a fraudulent or illegal purpose. The Bank shall notify the Company and the Secured Party of any such closing of any Account by the Bank unless the Bank shall be prohibited from notifying the Company or the Secured Party by order of such court or governmental authority.
(c)
The Bank shall not be responsible for the Company closing any Lockbox or any Account, or for the remittance by the Bank of any funds therein directly to, or on the instructions of, the Company prior to implementation of a Notice by the Bank or following implementation of a Rescission of Notice by the Bank. The Company shall notify the Secured Party promptly of the Company’s closing of any Lockbox or any Account.
(d)
The Bank’s rights to demand and receive reimbursement from the Company under Sections 3(b), 9(a) and 9(b) hereof and the Company’s indemnification of the Bank under Section 5(a) hereof shall survive termination of this Agreement. The Bank’s right to demand reimbursement from the Secured Party under Sections 3(c) and 9(a) hereof shall survive termination of this Agreement for a period of ninety (90) calendar days after the date of termination of this Agreement. The Bank’s right to demand indemnification of the Bank from the Secured Party under Section 5(b) above shall survive termination of this Agreement for a period of one hundred eighty (180) calendar days after the date of termination of this Agreement.
The obligations of the Bank and the Secured Party under Section 9(b) hereof shall survive termination of this Agreement.
9.
Miscellaneous Provisions
(a)
The Company shall pay to the Bank all fees (including, but not limited to, out-of-pocket and allocable internal legal fees) and expenses incurred by the Bank in connection with its negotiation and administration of this Agreement (“
Fees and Expenses
”) promptly upon the Company’s receipt of the Bank’s written demand therefor. The Bank also is hereby authorized to set off and charge Fees and Expenses against the Account(s) (and other deposit account(s) of the Company maintained with the Bank and that are not subject to this Agreement, if any, and against which other deposit account(s) of the Company the Bank is not otherwise prohibited from exercising its right of setoff). If the Company shall fail to pay Fees and Expenses and there shall be insufficient funds in the Account(s) (and other deposit accounts of the Company maintained with the Bank and that are not subject to this Agreement, if any, and against which other deposit account(s) of the Company the Bank is not otherwise prohibited from exercising its right of setoff) to pay Fees and Expenses, and the Bank shall have implemented a Notice then the Secured Party shall pay to the Bank the full amount of such unpaid Fees and Expenses;
provided, however
, the obligation of the Secured Party to pay the Bank for unpaid Fees and Expenses shall be limited to the aggregate amount of funds that shall be withdrawn or transferred from the Account(s) pursuant to the Secured Party’s instruction(s) to the Bank as contemplated by this Agreement. The combined obligations of the Secured Party to pay the Bank for unpaid Fees and Expenses as provided in this Section 9(a) and to pay the Bank for unpaid Permitted Debits as provided in Section 3(c) above shall be limited to the aggregate amount of funds that shall be withdrawn or transferred from the Account(s) pursuant to the Secured Party’s instructions to the Bank as contemplated by this Agreement.
(b)
The Company shall pay to the Bank all fees (including, but not limited to, out-of-pocket and allocable internal legal fees) and expenses incurred by the Bank in connection with any action or proceeding undertaken by the Bank to enforce, or preserve its rights under, any provision of this Agreement against the Company. The Bank also is hereby authorized to set off and charge all such amounts so incurred by the Bank against the Account(s) (and other deposit account(s) of the Company maintained with the Bank and that are not subject to this Agreement, if any, and against which other deposit account(s) of the Company the Bank is not otherwise prohibited from exercising its right of setoff). If any action or proceeding shall be commenced by the Bank or by the Secured Party to enforce, or preserve such party’s rights under, any provision of this Agreement against the other and: (i) the Bank shall prevail in such action or proceeding, then the Secured Party shall pay to the Bank all fees (including, but not limited to, out-of-pocket and allocable internal legal fees) and expenses incurred by the Bank in connection with such action or proceeding in addition to all other amounts that shall be awarded to the Bank in such action or proceeding; or (ii) the Secured Party shall prevail in such action or proceeding, then the Bank shall pay to the Secured Party all fees (including, but not limited to, out-of-pocket and allocable internal legal fees) and expenses incurred by the Secured Party in connection with such action or proceeding in addition to all other amounts that shall be awarded to the Secured Party in such action or proceeding.
(c)
The Company shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Bank and the Secured Party. The Secured Party shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Bank. The Bank shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Secured Party and the Company, except that the Bank may transfer its rights and obligations under this Agreement to any direct or indirect depositary subsidiary of UMB Financial Corporation or, in the event of a merger or acquisition of the Bank, to the Bank’s successor depositary institution (which subsidiary or successor shall be a “bank” as defined in Section 9-102 of the New York UCC).
(d)
This Agreement shall be governed by the laws of the State of New York (without regard to its conflicts of laws principles)
.
The law governing perfection and priority of the Secured Party’s security interest in the Account Collateral shall be the law of the State of New York, which State shall also be the “jurisdiction” of the Bank within the meaning of Section 9-304 of the New York UCC. The Account(s), Items Collateral, operation of the Account(s), and Deposit Agreement shall be governed by the Applicable UCC, Federal Regulations and Operating Circulars, ACH or other clearing house rules, and other applicable law.
(e)
This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same Agreement. Delivery of an executed signature page counterpart to this Agreement
via
telecopier or “
PDF
” electronic facsimile transmission shall be effective as if it were delivery of a manually delivered, original, executed counterpart thereof. This Agreement can be modified or amended only by written agreement of all of the parties hereto evidencing such modification or amendment.
(f)
To the extent that any conflict may exist between the provisions of any other agreement between the Company and the Bank (including the Deposit Agreement) and the provisions of this Agreement, then this Agreement shall control. This Agreement shall not give the Secured Party or any third party any benefit or legal or equitable right, remedy or claim against the Bank under the Deposit Agreement.
(g)
Each of the Secured Party and the Bank shall not cite or refer to this Agreement as precedent in any negotiation of any other Deposit Account Control Agreement to which the Secured Party or any of its affiliates and the Bank shall be parties.
(h)
Each party to this Agreement: (i) submits and consents to the jurisdiction of The United States District Court of the Southern District of New York located in the City, County and State of New York; (ii) irrevocably agrees that all claims in any action, suit or proceeding brought in connection with this Agreement may be heard and determined by such court; and (iii) irrevocably waives any objection such party may have to the venue of any such action, suit or proceeding brought in such court in connection with this Agreement or that such court is an inconvenient forum.
10.
Waiver of Jury Trial
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (INCLUDING ANY COUNTERCLAIM) OF ANY
TYPE IN WHICH ANOTHER PARTY HERETO SHALL BE A PARTY AS TO ALL MATTERS DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT. EACH PARTY HERETO CONFIRMS THAT THIS SECTION OF THIS AGREEMENT IS AND HAS BEEN A MATERIAL INDUCEMENT UPON WHICH SUCH PARTY HAS RELIED AND WILL RELY IN ENTERING INTO THIS AGREEMENT.
IN WITNESS WHEREOF,
each of the parties hereto by its respective duly authorized officer has executed and delivered this Agreement as of the day and year first written above.
|
BANK:
|
|
UMB BANK, N.A.
|
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|
|
|
|
|
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|
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By:
|
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|
|
|
|
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Name:
|
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|
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Title:
|
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COMPANY:
|
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BUNGE NORTH AMERICA CAPITAL, INC.
|
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|
|
|
|
|
|
|
|
|
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By:
|
|
|
|
|
|
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Name:
|
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Title:
|
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SECURED PARTY:
|
|
COÖPERATIEVE CENTRALE RAIFFEISEN-
|
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|
|
|
|
|
|
BOERENLEENBANK B.A., as Administrative Agent
|
EXHIBIT A
ACCOUNT(S) OF THE COMPANY
|
Account Number
|
|
Related Lockbox
Number (if any)
|
|
Account Name
|
|
State in Which
Account is Located
|
|
|
|
|
|
|
|
|
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[***]
|
|
[***]
|
|
Bunge North America Capital, Inc.
|
|
Missouri
|
|
***
|
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
|
EXHIBIT B
[To be Issued on Letterhead of the Secured Party]
UMB BANK, N. A.
1010 Grand Boulevard
Mail Code 1020215
Kansas City, Missouri 64106
Attn: TS Risk Mgmt DACA Team,
Designated Office
NOTICE PURSUANT TO DEPOSIT ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
Pursuant to the Deposit Account Control Agreement (Secured Party Notification) (With Optional Rescission of Notice) among
Bunge North America Capital, Inc
., you, and us dated as of June 1, 2011 (the “
Agreement
”), a fully executed copy of which is attached hereto, this letter shall serve as a Notice as described in and contemplated by the Agreement. Capitalized terms used but not defined in this letter shall have the meanings given them in the Agreement.
You are hereby instructed not to permit any access to or disposition over the Account(s) or other Account Collateral by, and not to honor or follow any instruction with regard to any Account or other Account Collateral from, any person other than the Secured Party (except as otherwise provided in Section 6 of the Agreement or required by law).
|
|
Very truly yours,
|
|
|
|
|
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., as Administrative Agent
|
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|
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By
|
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Name:
|
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Title:
|
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Attachment
cc:
[
insert “with copy to” addressee of the Bank as per Section 7 of the Agreement
]
EXHIBIT C
[To be Issued on Letterhead of the Secured Party]
UMB BANK, N. A.
1010 Grand Boulevard
Mail Code 1020215
Kansas City, Missouri 64106
Attn: TS Risk Mgmt DACA Team,
Designated Office
RESCISSION OF NOTICE PURSUANT TO DEPOSIT
ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
Pursuant to the Deposit Account Control Agreement (Secured Party Notification) (With Optional Rescission of Notice) among
Bunge North America Capital, Inc
. (the “
Company
”), you, and us dated as of June 1, 2011 (the “
Agreement
”), a fully executed copy of which is attached hereto, this letter shall serve as a Rescission of Notice as described in and contemplated by the Agreement. Capitalized terms used but not defined in this letter shall have the meanings given them in the Agreement.
Secured Party hereby rescinds the Notice dated , 20 delivered by the Secured Party to the Bank. You are hereby instructed to hereafter permit access to and disposition over the Account(s) or other Account Collateral by, and to honor or follow any you instruction that you shall receive from, the Company with regard to any Account or other Account Collateral (as if the Notice had not been delivered to you).
|
|
Very truly yours,
|
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|
|
|
|
COÖPERATIEVE CENTRALE RAIFFEISEN —BOERENLEENBANK B.A., as Administrative Agent
|
|
|
|
|
|
By
|
|
|
|
Name:
|
|
|
|
Title:
|
|
Attachment
cc:
[
insert “with copy to” addressee of the Bank as per Section 7 of the Agreement
]
EXHIBIT D
[To be Issued on Letterhead of the Secured Party]
UMB BANK, N. A.
1010 Grand Boulevard
Mail Code 1020215
Kansas City, Missouri 64106
Attention: TS Risk Mgmt DACA Team,
Designated Office
BUNGE NORTH AMERICA CAPITAL, INC.
c/o Bunge North America, Inc.
11720 Berman Drive
St. Louis, Missouri 63146
Attention: Treasurer, Designated Officer
NOTICE OF TERMINATION OF DEPOSIT ACCOUNT CONTROL AGREEMENT
Ladies and Gentlemen:
We refer you to the Deposit Account Control Agreement (Secured Party Notification) (With Optional Rescission of Notice) among Bunge North America Capital, Inc., UMB Bank, n.a. (the “
Bank
”), and us dated as of June 1, 2011 (the “
Agreement
”), a fully executed copy of which is attached hereto.
We hereby notify you that we are exercising our right under Section 8(a) of the Agreement (subject to your rights as set forth in the Agreement) to terminate the Agreement in accordance with its terms. Accordingly, the Agreement shall terminate at the close of the Bank’s business
[
this day
]
[
on , 20
]
, subject to those undertakings that shall survive termination of the Agreement.
|
|
Very truly yours,
|
|
|
|
|
|
COÖPERATIEVE CENTRALE RAIFFEISEN —
|
|
|
BOERENLEENBANK B.A., as Administrative Agent
|
|
|
|
|
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By
|
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|
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Name:
|
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|
|
|
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|
Title:
|
|
Attachment
cc:
[
Insert “with copy to” addressee of the Bank as per Section 7 of the Agreement
]
DEPOSIT ACCOUNT CONTROL AGREEMENT
PARTIES
This Deposit Account Control Agreement (the “Agreement”) is entered into as of June 1, 2011, and made by and between Bunge North America Capital, Inc. (the “Debtor”), Commerce Bank, N.A. (the “Bank”), and Coöperatieve Centrale Raiffeisen-Boerenleenbank, B.A. (the “Secured Party”).”
BACKGROUND
The Debtor is the Bank’s customer with respect to one or more demand deposit accounts identified by the account numbers specified below (individually and collectively, as re-numbered and including any funds from time to time in the account or accounts, the “
Deposit Account
”). The Debtor has granted the Secured Party a security interest in the Deposit Account
.
The Debtor is requesting that the Bank enter into this Agreement
.
The Bank is willing to do so upon the terms contained in this Agreement.
This Agreement includes the General Terms, the Specific Terms and the Exhibit, each as defined or referred to below.
AGREEMENTS
A.
GENERAL TERMS
.
This Agreement is subject to the General Terms for Deposit Account Control Agreement version 1 dated February 13, 2006, developed by a special task force of the American Bar Association’s Business Law Section and available from the Business Law Section at http://www.abanet.org/dch/committee.cfm?com=CL710060 (the “
General Terms
”). The General Terms are incorporated in this Agreement by reference and without modification except as may be provided in Section 10 of the Specific Terms.
B.
SPECIFIC TERMS
. The following terms (the “
Specific Terms
”) complete, supplement or modify the General Terms:
1.
Deposit Account
(see “Background” above)
. The following account or accounts comprise the Deposit Account [
list by account number
]:
2.
Business Day
(see definition of “Business Day” in Section 1 of the General Terms)
:
A day will not be considered as a “Business Day” if commercial banks in the following city or cities are closed on that day:
Kansas City, Missouri or St. Louis, Missouri.
3.
Outside Time
(see definition of “Outside Time” in Section 1 of the General Terms)
:
4.
Disposition of less than all or multi-disposition of funds
(see Section 4(a)(ii)(E) of the General Terms)
:
A Disposition Instruction originated by the Secured Party must be for a disposition of all of the funds. A Disposition Instruction originated by the Secured Party must require that the funds be sent to a single recipient.
5.
Reimbursement Claim Period
(see Section 6(b) of the General Terms)
:
The number of days following the termination of the Agreement in which a reimbursement claim must be made against the Secured Party under Section 6(b) of the General Terms is 90.
6.
Electronic Records
(see definition of “writing” in Section 1 of the General Terms)
:
The parties do not permit a writing to include an electronic record and do not permit communications by email.
7.
Governing Law
(see Section 13(a) of the General Terms)
:
The jurisdiction whose law governs this Agreement is New York.
8.
Bank’s Jurisdiction for UCC Purposes
(see Section 13(b) of the General Terms)
:
The Bank’s jurisdiction for purposes of part 3 of UCC Article 9 is New York.
9.
Delivery of Executed Copy
(see Part D)
:
Checking this line
x
means that the delivery of an executed copy of this Agreement may be made by electronic transmission in addition to a transmission by facsimile. Otherwise, delivery of an executed copy of this Agreement may not be made by a form of electronic transmission other than facsimile.
10.
Additional Provisions
(see Section 12(b) of the General Terms)
:
The following provisions modify or supplement the General Terms:
Notwithstanding paragraph 9(a) of the General Terms, Bank may close the Deposit Account and open a substitute account without prior notice in the event Bank reasonably believes account information has been compromised and the potential for fraudulent activity in the Deposit Account poses an immediate threat. In such event, the “Deposit Account” as used in this Agreement shall be deemed to mean the substitute account, and Bank shall promptly notify the other parties of the new account number.
Paragraph 9(a) is modified by the deletion of the phrase “upon five Business Days’ notice” and the substitution of the phrase “upon ten Business Days’ notice” in lieu thereof.
C.
EXHIBIT
. The parties have completed and attach hereto the Exhibit to be used as the form of the Initial Instruction. [
Note to person completing this Agreement: the Exhibit requires the designation of the person or persons or department at the Bank to receive the Initial Instruction. See Note 1 to the Exhibit.]
D.
SINGLE AGREEMENT; COUNTERPARTS
. The General Terms, the Specific Terms and the Exhibit shall be read and construed together with the other provisions of this Agreement as a single agreement. Delivery of executed copies of this Agreement may be made by facsimile or, if so permitted in Section 9 of Part B, by another form of electronic transmission. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which collectively shall constitute a single agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
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Debtor:
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BUNGE NORTH AMERICA CAPITAL, INC.
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By:
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Name:
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Title:
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Address:
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c/o Bunge North America, Inc.
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11720 Borman Drive
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St. Louis, MO 63146
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Attention: Treasurer
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Telephone Number (for information only): 314-292-2314
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Facsimile Number: 314-292-4314
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Electronic mail address (if Section 6 of Part B permits): N/A
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with a copy to:
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Bunge Finance B.V.
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Address:
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Weena 320
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3012 NJ
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Rotterdam, the Netherlands
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Attention: Director
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Telephone Number (for information only): +31 10 217 6652
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Facsimile Number: +31 10 433 0035
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Electronic mail address (if Section 6 of Part B permits): N/A
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Secured Party
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A.
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By:
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Name:
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Title:
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Address:
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P.O. Box: 17100, 3500 HG Utrecht
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Netherlands
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Attention: Eugene van Esveld, Director
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Telephone Number (for information only): +31 (0)30 216 9398
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Facsimile Number: +44 (0)20 7809 3450
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Electronic mail address (if Section 6 of Part B permits): N/A
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with a copy to:
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Coöperatieve Centrale Raiffeisen-Boerenleenbank, B.A.
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Address:
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Thames Court, 1 Queenhithe
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EC4V 3RL, London
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U.K.
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Attention: Donna Kunzig, Executive Director
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Telephone Number (for information only): +44 (0)20 7809 3647
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Facsimile Number: +44 (0)20 7809 3450
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Electronic mail address (if Section 6 of Part B permits): N/A
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Bank:
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COMMERCE BANK, N.A.
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By:
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Name:
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Title:
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Address:
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8000 Forsyth
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Clayton, MO 63105
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Attention: T. William White
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Telephone Number (for information only): 314-746-3959
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Facsimile Number: 314-746-3783
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Electronic mail address (if Section 6 of Part B permits): N/A
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with a copy to:
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Commerce Bank, N.A.
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Address:
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8000 Forsyth
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Clayton, MO 63105
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Attention: Legal Department, attorney in charge
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Telephone Number (for information only): 314-746-7316
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Facsimile Number: 314-746-8710
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Electronic mail address (if Section 6 of Part B permits): N/A
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Exhibit
[LETTERHEAD OF THE SECURED PARTY]
DEPOSIT ACCOUNT CONTROL AGREEMENT
INITIAL INSTRUCTION
[Date]
Commerce Bank, N.A.
8000 Forsyth
Clayton, MO 63105
Attention: Legal Department, attorney in charge
[See Note 1 below]
Telephone Number (for information only): 314-746-7316
Facsimile Number: 314-746-8710
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with a copy to:
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Commerce Bank, N.A.
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[Address of Bank]
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Attention:
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[Person or Persons or Department]
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Ladies and Gentlemen:
This is the Initial Instruction as defined in the Deposit Account Control Agreement dated , 20 , among you, us and [Debtor] (the “
Debtor
”) (as currently in effect , the “
Control Agreement
”). A copy of the Control Agreement as fully executed is attached. Capitalized terms used in this Initial Instruction have the meanings given them in the Control Agreement
This Initial Instruction directs the Bank no longer to comply with the Debtor’s Disposition Instructions.
[As an included Disposition Instruction, we direct you to send the funds in the Deposit Account to us by the method and at the address indicated below. We recognize that, as a condition to your complying with this Disposition Instruction and to the extent that we have not already done so, we must provide to you evidence
reasonably required by you as to the authority of the person giving this Disposition Instruction to act for us. We also recognize that your obligation to comply with this Disposition Instruction is subject to the other provisions of Section 4(a)(ii) of the General Terms.
[See Note 2 below]
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Funds transfer instructions:
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Receiving bank: .
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ABA routing number for domestic wire: .
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ABA routing number for ACH transaction: .
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International: Swift Code No. .
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Reference details: .]
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Very truly yours,
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[SECURED PARTY]
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By:
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Title:
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Notes to the person completing this form of Initial Instruction:
1.
The “attention” line should be completed with particular care. Until the Initial Instruction is actually received by the person or persons or department at the Bank designated in the “attention” line, the time period by which the Bank must comply with the Initial Instruction will not commence. Accordingly, it is advisable to provide in the “attention” line a specific department or specific officer or officers at the Bank by title rather than by name. If an individual at the Bank is to be designated by title or even by name, it is advisable that one or more additional individuals at the Bank be designated as alternatives to receive the Initial Instruction if the first individual is not available.
2.
The bracketed language relating to a Disposition Instruction (including funds transfer instructions) is optional. Not including this language does not preclude the Secured Party from subsequently giving a Disposition Instruction.
GENERAL TERMS FOR THE DEPOSIT ACCOUNT CONTROL AGREEMENT
version 1 dated February 13, 2006
available from the American Bar Association’s Section of Business Law at
http://www.abanet.org/dch/committee.cfm?com=CL710060
1
This Deposit Account Control Agreement (the “Agreement”) is entered into as of June 1, 2011, and made by and between Bunge North America Capital, Inc. (the “Debtor”), Commerce Bank, N.A. (the “Bank”), and Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. (the “Secured Party”).
1
This document is a model form produced by the Joint Task Force on Deposit Account Control Agreements of the ABA Section of Business Law. The provisions of the form have not been approved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.
1.
Definitions and Rules of Interpretation
. In this Agreement (a) terms defined in the UCC and not otherwise defined in this Agreement have the same meanings in this Agreement as in the UCC, (b) the rules of interpretation in Article 1 of the UCC apply to the interpretation of this Agreement and (c) the term “or” is not exclusive. Unless otherwise stated, section references are to sections of these General Terms. In addition, the following terms in this Agreement have the following meanings or interpretations:
This “
Agreement
” means the Deposit Account Control Agreement dated the Agreement Date among the Secured Party, the Debtor and the Bank. The Deposit Account Control Agreement includes these
General Terms
(incorporated by reference), the
Specific Terms
and the
Exhibit
read and construed together as a single agreement.
“
Agreement Date
” means the date set forth at the beginning of this Agreement as the date as of which this Agreement was executed and delivered by the parties.
An “
address
” includes the person or persons or department of the Bank on an “attention” line.
“
Bank
” means the organization signing this Agreement as the Bank.
“
Business Day
” means:
(i)
for communications to the Bank, a day other than a day (A) that is not a “business day” as defined in Federal Reserve Board Regulation CC, 12 CFR Part 229, (B) on which the office, branch or department of the Bank specified as the Bank’s address in the
Exhibit
is closed, or (C) on which commercial banks are closed in the city or cities set forth in the
Specific Terms
; and
(ii)
for communications to any other party, a day, other than a Saturday or Sunday, on which the other party is open for business at the location to which the communication is sent.
“
Claim
” means a claim, loss, cost or expense, and includes out-of-pocket or allocable internal legal fees and expenses incurred in bringing or defending a claim.
A “
communication
” includes the Initial Instruction, a Disposition Instruction or a notice.
“
Debtor
” means the person signing this Agreement as the Debtor.
“
Deposit Account
” has the meaning set forth in the “Background” of this Agreement. The Deposit Account is identified in Section 1 of the
Specific Terms
.
“
Deposit-related Agreements
” means, collectively, the deposit account agreement and any other agreements between the Bank and the Debtor governing the Deposit Account and any cash management or similar services provided by the Bank to the Debtor in connection with the Deposit Account.
“
Disposition Instruction
” means an instruction to the Bank directing the disposition of the funds in the Deposit Account.
“
Exhibit
” means the
Exhibit
referred to in Part C of and attached to this Agreement as the form to be used as the Initial Instruction.
“
Initial Instruction
” means the first instruction to the Bank originated by the Secured Party directing that the Bank no longer comply with the Debtor’s Disposition Instructions. The Initial Instruction may also contain a Disposition Instruction originated by the Secured Party.
“
Order or Process
” means an order, judgment, decree or injunction, or a garnishment, restraining notice or other legal process, directing, or prohibiting or otherwise restricting, the disposition of the funds in the Deposit Account.
“
Outside Time
” means, unless an earlier Outside Time is stated in the
Specific Terms
, the opening of business on the second Business Day after the Business Day on which the Initial Instruction in substantially the form of the
Exhibit
is actually received at the address for the Bank specified in the Exhibit. If the Initial Instruction is actually received at that address after 12:00 noon, local time, at that address, then in determining the Outside Time, the Initial Instruction will be considered to have been actually received on the following Business Day.
“
Secured Party
” means the person signing this Agreement as the Secured Party, whether the person is acting in a representative capacity or otherwise.
“
Specific Terms
” means the terms contained in Part B of this Agreement.
“
UCC
” means the Uniform Commercial Code of the jurisdiction whose law governs this Agreement or, if relevant to any matter other than the meaning of a defined term, the Uniform Commercial Code of the jurisdiction whose law applies to the matter under the choice of law rules of the jurisdiction whose law governs this Agreement.
A “
writing
” means a tangible writing, including a facsimile and, if the
Specific
Terms
, permit, an electronic record; “
written
” refers to a communication in the form of a writing.
2.
The Debtor’s Dealings with the Deposit Account.
(a)
Except as provided in Section 2(b), the Bank may comply with the Debtor’s Disposition Instructions in accordance with the Deposit-related Agreements.
(b)
The Bank will not comply with the Debtor’s Disposition Instructions after the Outside Time. In its discretion the Bank may cease complying with the Debtor’s Disposition Instructions at an earlier time as permitted by Section 4(a)(iv).
3.
The Secured Party’s Right to Give Instructions as to the Deposit Account.
The Bank will comply with the Initial Instruction, and with any Disposition Instructions originated by the Secured Party, in each case (i) without the Debtor’s further consent, and (ii) even if following the instruction results in the dishonoring by the Bank of items presented for payment from the Deposit Account or the Bank otherwise not complying with the Debtor’s Disposition
Instructions. The Initial Instruction may not be rescinded or otherwise modified without the Bank’s consent.
4.
Exculpation of the Bank.
(a)
Notwithstanding the Bank’s agreements in Sections 2 and 3, the Bank will not be liable to any other party for:
(i)
either failing to follow an Initial Instruction that (A) is not in the form of the
Exhibit
, (B) does not specify the address to which the Initial Instruction was to have been sent, (C) is not otherwise completed, or (D) does not have attached to it a copy of this Agreement as fully executed or, as a result of any such defect in the Initial Instruction, continuing to comply with the Debtor’s Disposition Instructions;
(ii)
failing to follow a Disposition Instruction originated by the Secured Party (A) before the Outside Time, (B) that requires the disposition of the funds in the Deposit Account by a method not available to the Debtor under the Deposit-related Agreements, (C) that the Bank determines would result in the bank’s failing to comply with a statute, rule or regulation, or an Order or Process, binding upon this Bank, (D) that requires the disposition of funds that are not immediately available in the Deposit Account, (E) that, unless otherwise set forth in the
Specific
Terms
, directs the disposition of less than all the funds in the Deposit Account or directs that the funds be sent to more than one recipient, or (F) for which the Bank has not received evidence reasonably required by the Bank as to the authority of the person giving the Disposition Instruction to act for the Secured Party;
(iii)
complying with the Debtor’s Disposition Instructions, or otherwise completing a transaction involving the Deposit Account, that the Bank or an affiliate had started to process before the Outside Time; or
(iv)
after the Bank becomes aware that the Secured Party has sent the Initial Instruction, but before the Outside Time, complying with the Initial Instruction or a Disposition Instruction originated by the Secured Party, notwithstanding any fact or circumstance and even if the Initial Instruction (A ) has not been actually received at the address specified in the
Exhibit
, (B) fails to have attached to it a copy of this Agreement as fully executed, or (C) is not completed or otherwise fails to be in the form of Initial Instruction set forth on the
Exhibit
.
(b)
The Bank will not be liable to any other party for:
(i)
wrongful dishonor of any item as a result of the Bank following the Initial Instruction or any Disposition Instruction originated by the Secured Party,
(ii)
failing to comply or delaying in complying with the Initial Instruction, any Disposition Instruction or any provision of this Agreement due to a computer malfunction, interruption of communication facilities, labor difficulties, act of God, war, terrorist attack, or other cause, in each case beyond the Bank’s reasonable control,
(iii)
any other Claim, except to the extent directly caused by the Bank’s gross negligence or willful misconduct, or
(iv)
any indirect, special, consequential or punitive damages.
(c)
The Bank will have no fiduciary duties under this Agreement to any other party, whether as trustee, agent, bailee or otherwise. The Bank will have no duties to the Secured Party except as expressly set forth in this Agreement. The Bank will have no duty to inquire into or determine the existence or enforceability of the Debtor’s obligations to the Secured Party or whether, under any separate agreement between the Debtor and the Secured Party, the Debtor’s obligations to the Secured Party are in default, the Debtor may originate a Disposition Instruction or the Secured Party may originate the Initial Instruction or any Disposition Instruction.
5.
The Bank’s Recourse to the Deposit Account.
(a)
Except for amounts referred to in Section 5(b), the Bank (i) subordinates any security interest, lien or other encumbrance against the Deposit Account to the Secured Party’s security interest and (ii) will not exercise any right of recoupment, setoff or debit against the Deposit Account. This subordination will not apply to any security interest that the Bank has in an item under UCC Article 4 as a collecting bank.
(b)
Notwithstanding Section 5(a), and regardless of any agreement of the Debtor to compensate the Bank by means of balances in the Deposit Account, the Bank may charge the Deposit Account, to the extent permitted by any of the Deposit-related Agreement or applicable law, for:
(i)
the face amount of check, draft, money order, instrument, wire transfer of funds, automated clearing house entry, credit from a merchant card transaction, other electronic transfer of funds or other item (A) deposited in or credited to the Deposit Account, whether before or after the Agreement Date, and returned unpaid or otherwise uncollected or subject to an adjustment entry, whether for insufficient funds or for any other reason and without regard to the timeliness of the return or adjustment or the occurrence or timeliness of any other person’s notice of nonpayment or adjustment, (B) subject to a claim against the Bank for breach of transfer, presentment, encoding, retention or other warranty under Federal Reserve Regulations or Operating Circulars, clearing house rules, the UCC or other applicable law, or (C) for a merchant card transaction, against which a contractual demand for chargeback has been made;
(ii)
normal service charges or fees payable to the Bank in connection with the Deposit Account or any related services;
(iii)
any adjustments or corrections of any posting or encoding errors; and
(iv)
reimbursements for out-of-pocket or allocable internal legal fees and expenses in connection with the negotiation, administration or enforcement of this Agreement by the Bank.
6.
Indemnification and Reimbursement.
(a)
The Debtor indemnifies the Bank against all Claims incurred, sustained or payable by the Bank arising out of this Agreement except to the extent directly caused by the Bank’s gross negligence or willful misconduct.
(b)
The Secured Party agrees to reimburse the Bank for any charge against the Deposit Account under Section 5(b) for which there were insufficient funds in the Deposit Account to satisfy the charge. Such reimbursement will be limited to the aggregate amount transferred from the Deposit Account as a result of the Bank’s acting upon Disposition Instruction originated by the Secured Party or pursuant to Section 9(b). Any demand by the Bank for reimbursement must be made within the number of days after the termination of this Agreement set forth in the
Specific
Terms
. The Bank may not make a Claim for reimbursement under this subsection unless (i) the Debtor fails to satisfy the Claim within 15 days after the Bank makes a demand on the Debtor under Section 6(a) or (ii) the Bank is enjoined, stayed or prohibited by operation of law from making the demand on the Debtor.
(c)
The Secured Party’s reimbursement obligations under Section 6(b) will not apply to (i) a charge for reimbursement of or indemnification for any out-of-pocket or allocable internal legal fees and expenses incurred by the Bank in connection with any claim or defense by the Bank against the Secured Party relating to this Agreement or (ii) the amount of any loss incurred by the Bank to the extent directly caused by the Bank’s gross negligence or willful misconduct. If the Bank satisfies any Claim against the Debtor referred to in the foregoing clause (i) by charging the Deposit Account, the amount of the Secured Party’s maximum liability for reimbursement obligations under Section 6(b) will be reduced by the amount of the Claim so satisfied.
(d)
If the Secured Party fails to reimburse the Bank for any amount under Section 6(b), the Secured Party will pay the Bank’s out-of-pocket or allocable internal legal fees and expenses in collecting from the Secured Party the amount payable.
(e)
The Secured Party indemnifies the Bank against all other Claims incurred, sustained or payable by the Bank arising from the Bank following an Initial Instruction or a Disposition Instruction originated by the Secured Party, or from the Bank’s remittance of funds pursuant to Section 9(b), except to the extent directly caused by the Bank’s gross negligence or willful misconduct.
7.
Representations and Warranties; Agreements with Other Persons.
The Bank represents and warrants to the Secured Party that the Bank (i) is an organization engaged in the business of banking, (ii) maintains the Deposit Account as a demand deposit account or accounts in the ordinary course of the Bank’s business and (iii) has not entered into any currently effective agreement with any person under which the Bank may be obligated to comply with Disposition Instructions originated by a person other than the Debtor or the Secured Party. The Bank will not enter into any agreement with any person under which the Bank may be obligated to comply with Disposition Instructions originated by a person other than the Debtor or the Secured Party.
8.
Deposit Account Information
. If the Secured Party so requests, to the extent that the Bank has the operational ability to do so, the Bank will provide to the Secured Party, whether by Internet access or otherwise, a copy of each periodic account statement relating to the Deposit Account ordinarily furnished by the Bank to the Debtor. The Bank’s liability for failing to provide the account statement will not exceed the Bank’s cost of providing the statement. The Debtor authorizes the Bank to provide the Secured Party, whether by Internet access or
otherwise, any other information concerning the Deposit Account that the Bank may agree to provide to the Secured Party at the Secured Party’s request.
9.
Termination; Closure of the Deposit Account.
(a)
Neither the Debtor nor the Bank will close the Deposit Account prior to termination of this Agreement. This Agreement may not be terminated by the Debtor except by a notice to the Bank given jointly by the other parties. This Agreement may be terminated (i) by the Secured Party at any time by notice to the other parties and (ii) by the Bank (A) immediately upon notice to the other parties if the Bank becomes obligated to terminate this Agreement or to close the Deposit Account under any statute, rule or regulation, or any Order or Process, binding upon the Bank, (B) upon five Business Days’ notice to the other parties if any other party is in material breach of any of the Deposit-related Agreements or this Agreement, and (C) otherwise upon 30 days’ notice to the other parties.
(b)
If the Bank terminates this Agreement pursuant to clause (A) of Section 9(a)(ii), the Bank will remit any funds in the Deposit Account on the date of termination (i) at the direction of the Secured Party if the direction is received by the Bank prior to the date of termination of this Agreement or (ii) if no such direction is received by the Bank prior to such date, by check mailed to the address of the Secured Party for receiving communications under this Agreement. If the Bank terminates this Agreement pursuant to clause (B) or (C) of Section 9(a)(ii), the Bank will remit any funds in the Deposit Account on the date of termination at the direction of the Secured Party only if the direction is received by the Bank prior to the date of termination of this Agreement. Any obligation of the Bank to remit any funds to or at the direction of the Secured Party under this subsection is subject to clauses (B) through (F) of Section 4(a)(ii).
(c)
Except as provided in Section 9(b) and in any event if the Secured Party has communicated to the Bank that the Secured Party does not wish to receive or direct the disposition of the funds, the Secured Party will not receive from the Bank any remittance of funds from the Deposit Account upon termination of this Agreement by the Bank.
(d)
The termination of this Agreement will not affect any rights created or obligations incurred under this Agreement before the termination. Sections 4 and 6 will survive the termination of this Agreement for actions taken or omitted before the termination. Sections 9(b) and (c) will survive the termination of this Agreement, and Section 5 will survive the termination of this Agreement solely for any funds to be remitted to or at the direction of the Secured Party pursuant to Section 9(b).
10.
Communications.
(a)
All communications under this Agreement must be in writing and must be delivered by hand or overnight courier service, mailed by certified or registered mail, or sent by facsimile to the party addressee. If the
Specific
Terms
permit a writing to include an electronic record, a communication, other than the Initial Instruction, may be sent by email.
(b)
For a communication under this Agreement to be effective, it must be received (i) for the Initial Instruction, at the Bank’s address specified on the
Exhibit
and (ii) in all other cases, at the party’s address indicated below the party’s signature to this Agreement, in each case subject to
any change in address provided in Section 10(c). Receipt of the Initial Instruction does not occur until it is received by the person or persons or department specified on the “attention” line on the
Exhibit
. If more than one person is specified, receipt occurs when the Initial Instruction is received by one of the persons.
(c)
The Bank may communicate to the Secured Party changes in the address for the Initial Instruction, and any party may communicate to the other parties changes in its address for communications under this Agreement.
11.
Successors and Transferees.
(a)
This Agreement will inure to the benefit of, and be binding upon, the parties and their respective successors and other transferees permitted under this Section. Except as provided in this Section, a voluntary transfer of a party’s rights or duties under this Agreement without the written consent of the other parties will be void.
(b)
The Bank may transfer is rights and duties under this Agreement to a transferee to which, by contract or operation of law, the Bank transfers substantially all of its rights and duties under the Deposit-related Agreements.
(c)
The Secured Party may transfer its rights and duties under this Agreement to (i) a transferee to which, by contract or operation of law, the Secured Party transfers substantially all of its rights and duties under the financing or other arrangements between the Secured Party and the Debtor for which the Deposit Account acts as collateral security or (ii) if the Secured Party is acting as a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest is created or provided for, a transferee that is a successor trustee, indenture trustee, agent, collateral agent, or other representative.
(d)
No transfer under this Section will be binding upon a non-transferring party until the transferring party or the transferee notifies the non-transferring parties of the transfer in a writing signed by the transferee that identifies the transferee, gives the transferee’s address for communications under this Agreement, and states that the transferee is a successor of the transferor or other transferee permitted under this Section and is entitled to the benefit of the transferring party’s rights and has assumed all of the transferring party’s duties under this Agreement.
(e)
A non-transferring party need not request proof of any transfer or that the transferee is a successor of the transferor or other transferee permitted by this Section. If requested by a non-transferring party, however, the transferring party or the transferee will provide reasonable proof thereof. If the Bank or the Secured Party, as a non-transferring party, requests such proof, then the effectiveness of the notification of transfer as to the non-transferring party will be suspended until the proof is provided.
(f)
When a transfer becomes binding on the non-transferring parties, the transferring party will not be entitled to exercise any rights, and will be relieved of its obligations, accruing under this Agreement from and after that time. Those rights may be exercised and those obligations will be incurred by the transferee.
(g)
The provisions of subsections (d) and (e) requiring notification for a transfer to be binding on the non-transferring parties and suspending the effectiveness of the notification of transfer until reasonable proof of the transfer has been provided do not apply to the Bank as the transferring party if the transfer is by operation of law and by operation of the law (i) the transferee succeeds to all or substantially all of the rights and becomes generally bound by all of the duties of the Bank, including the Bank’s duties under this Agreement, and (ii) the Bank ceases to exist.
12.
Entire Agreement; Relation to Other Agreements.
(a)
This Agreement constitutes the entire agreement of the parties, and supersedes all previous and contemporaneous negotiations, understandings and agreements, with respect to its subject matter, all of which have become merged and finally integrated into this Agreement.
(b)
If a term in the
Specific
Terms
conflicts with a term of this Agreement not in the
Specific
Terms
, the term in the
Specific
Terms
controls.
(c)
If this Agreement conflicts with any of the Deposit-related Agreements, this Agreement will control. However, this Agreement will not (i) derogate from any Claim or defense that the Bank may have against the Debtor under any of the Deposit-related Agreements or (ii) create any third party beneficiary rights under any of the Deposit-related Agreements in favor of the Secured Party.
(d)
This Agreement does not amend or otherwise modify any of the agreements between the Debtor and the Secured Party or provide any rights for the Debtor to originate a Disposition Instruction in contravention of any agreement between the Debtor and the Secured Party.
13.
Governing Law, Depositary Bank’s Jurisdiction and Waiver of Jury Trial.
(a)
Except as otherwise required by Article 9 of the UCC, this Agreement will be governed by the law of that jurisdiction set forth in the
Specific
Terms
without giving effect to an) choice of law rule that would require the application of the law of another jurisdiction.
(b)
If the
Specific
Terms
are completed expressly to designate the Bank’s jurisdiction for purposes of part 3 of Article 9 of the UCC, then the Deposit-related Agreements are amended to provide that for those purposes that jurisdiction is the Bank’s jurisdiction so designated.
(c)
To the extent permitted by applicable law, each party waives all rights to trial by jury in any action, claim or proceeding (including any counterclaim) of any type arising out of or directly or indirectly relating to this Agreement.
14.
Miscellaneous.
(a)
No amendment to this Agreement will be binding on any party unless it is in writing and signed by all of the parties. Any provision of this Agreement benefiting a party may be waived only by a writing signed by that party.
(b)
If a provision of this Agreement is held invalid or unenforceable in any respect, the validity or enforceability of the remaining provisions will not in any way be affected, it being understood that the validity or unenforceability of an affected provision in a particular jurisdiction will not in and of itself affect the validity or enforceability of the provision in any other jurisdiction.
