Bermuda
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001-16625
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98-0231912
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(I.R.S. Employer
Identification Number)
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50 Main Street
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White Plains
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New York
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10606
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(Address of principal executive offices)
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(Zip code)
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(914)
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684-2800
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(Registrant’s telephone number, including area code)
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N.A.
(Former name or former address, if changes since last report)
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Shares, $0.01 par value per share
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BG
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New York Stock Exchange
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Item 1.01
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Entry into a Material Definitive Agreement
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Item 2.03
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
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BUNGE LIMITED
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By:
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/s/ John W. Neppl
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Name:
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John W. Neppl
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Title:
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Executive Vice President, Chief Financial Officer
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FOR
BUNGE FINANCE EUROPE B.V.
AS BORROWER
ARRANGED BY
ABN AMRO BANK N.V., BNP PARIBAS, HSBC FRANCE, ING BANK N.V., NATIXIS AND SUMITOMO MITSUI BANKING CORPORATION
WITH
ABN AMRO BANK N.V., BNP PARIBAS, NATIXIS
AND COÖPERATIEVE RABOBANK U.A. (RABOBANK) AS SUSTAINABILITY CO-ORDINATORS
WITH
ABN AMRO BANK N.V.
ACTING AS AGENT
AS AMENDED AND RESTATED PURSUANT TO AN AMENDMENT AND RESTATEMENT AGREEMENT DATED 16 DECEMBER 2019
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REVOLVING FACILITY AGREEMENT
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CONTENTS
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Clause
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Page
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1.
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Definitions and Interpretation 1
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2.
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The Facility 28
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3.
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Purpose 30
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4.
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Conditions of Utilisation 31
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5.
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Utilisation 32
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6.
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Repayment 33
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7.
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Prepayment and Cancellation 34
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8.
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Interest 37
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9.
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Interest Periods 38
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10.
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Changes to the Calculation of Interest 38
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11.
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Fees 39
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12.
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Tax Gross Up and Indemnities 41
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13.
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Increased Costs 46
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14.
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Other Indemnities 47
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15.
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Mitigation by the Lenders 48
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16.
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Costs And Expenses 49
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17.
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Representations 50
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18.
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Positive Covenants 54
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19.
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Negative Covenants 57
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20.
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Acknowledgement 60
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21.
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Covenant of Agent and Lenders and Patriot Act notice 61
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22.
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Events of Default 62
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23.
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Use of Websites 66
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24.
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Changes to the Lenders 68
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25.
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Changes to the Borrower 72
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26.
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Role of the Agent and the Arrangers and the Reference Banks 73
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27.
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Conduct of Business by the Finance Parties 82
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28.
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Sharing Among the Finance Parties 82
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29.
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Payment Mechanics 84
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30.
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Set-Off 86
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31.
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Notices 87
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32.
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Calculations and Certificates 90
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33.
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Partial Invalidity 90
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34.
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Remedies and Waivers 90
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35.
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Amendments and Waivers 91
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36.
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Confidentiality 94
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37.
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Confidentiality of Reference Bank Quotations 98
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38.
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Contractual Recognition of Bail-In 100
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39.
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Counterparts 100
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40.
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Governing Law 101
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41.
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Enforcement 101
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Schedule 1 Applicable Margin
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102
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Schedule 2 Sustainability Benchmark
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105
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Schedule 3 The Original Lenders *
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107
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Schedule 4 Conditions Precedent to Initial Utilisation
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110
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Schedule 5 Utilisation Request
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113
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Schedule 6 Form of Transfer Certificate
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114
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Schedule 7 Timetables
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116
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Schedule 8 Form of Accordion Increase Certificate
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117
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Schedule 9 Form of Sustainability Certificate
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119
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Exhibit
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Form of Parent Guarantee 122
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(1)
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BUNGE FINANCE EUROPE B.V. a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands having its corporate seat (statutaire zetel) in Rotterdam, The Netherlands and its registered office at 1391 Timberlake Manor Parkway, Chesterfield, Missouri 63017, United States of America and registered with the Dutch Commercial Register (Handelsregister) under number 24347428 (the "Borrower");
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(2)
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ABN AMRO BANK N.V., BNP PARIBAS, HSBC FRANCE, ING BANK N.V., NATIXIS and SUMITOMO MITSUI BANKING CORPORATION as mandated lead arrangers and bookrunners (each an "Arranger" and together the "Arrangers");
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(3)
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THE FINANCIAL INSTITUTIONS listed in Schedule 3 (The Original Lenders) as lenders (the "Original Lenders"); and
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(4)
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ABN AMRO BANK N.V. as agent of the other Finance Parties (the "Agent").
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1.
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DEFINITIONS AND INTERPRETATION
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1.1
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Definitions
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(a)
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a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB+ or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or Baa1 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or
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(b)
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any other bank or financial institution approved by the Agent.
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1
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(a)
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the proposed Accordion Increase Date specified in the relevant Accordion Increase Certificate; and
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(b)
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the date on which the Agent executes the relevant Accordion Increase Certificate,
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(a)
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in relation to Crédit Agricole Corporate and Investment Bank, the term "Affiliate" shall include any Caisse Régionale of the Crédit Agricole Group and/or LCL;
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(b)
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in relation to ABN AMRO Bank N.V., the term "Affiliate" shall exclude the state of The Netherlands and any of its subsidiaries other than ABN AMRO Bank N.V., but include any entity that acquires the business of ABN AMRO Bank N.V. to which the Dutch state is entitled; and
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(c)
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in relation to Natixis, the term "Affiliate" shall include any members of the Banque Populaire and Caisse d'Epargne networks within the meaning of articles L.512-11, L.512-86 and L.512-106 of the French Monetary and Financial Code (Code Monétaire et Financier).
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2
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(a)
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its participation in any outstanding Loans on such date; and
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(b)
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in relation to any proposed Utilisation, its participation in any Loans that are due to be made on or before the proposed Utilisation Date,
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(a)
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in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
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(b)
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in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
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(a)
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the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee
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3
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(b)
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the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
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(c)
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any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
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(a)
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the interest minus the Applicable Margin which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount of that Loan or Unpaid Sum received been paid on the last day of that Interest Period;
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(b)
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the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of that Loan or Unpaid Sum received by it on deposit with a leading bank in the London interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of that Interest Period.
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4
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(a)
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the Parent becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the United States Securities Exchange Act of 1934 (the "Exchange Act"), proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination, of 50% or more of the total voting power of the Voting Stock of the Parent then outstanding;
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(b)
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the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Parent and its Subsidiaries, taken as a whole, to any Person that is not a Subsidiary of the Parent;
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(c)
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the first day on which a majority of the members of the Parent's Board of Directors are not Continuing Directors; or
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(d)
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the Borrower shall not be directly, or indirectly wholly-owned by the Parent.
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(a)
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in relation to an Original Lender as at the Effective Time, the amount set opposite its name under the heading "Commitment" in Schedule 3 (The Original Lenders) and the amount of any other Commitment transferred to it under this Agreement or assumed by it under Clause 2.2 (Accordion Increase); and
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(b)
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in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement or assumed by it under Clause 2.2 (Accordion Increase),
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(a)
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any member of the Group or any of its advisers; or
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(b)
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another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
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5
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(i)
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information that:
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(A)
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is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 36 (Confidentiality); or
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(B)
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is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
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(C)
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is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (A) or (B) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
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(ii)
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any Reference Bank Quotation.
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(a)
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Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 ("CRR"); and
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(b)
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Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.
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6
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(a)
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which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation); or
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(b)
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which has otherwise rescinded or repudiated a Finance Document,
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(i)
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its failure to pay is caused by:
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(A)
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administrative or technical error; or
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(B)
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a Disruption Event; and
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(ii)
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the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
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(a)
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a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out)
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7
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(b)
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the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
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(i)
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from performing its payment obligations under the Finance Documents; or
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(ii)
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from communicating with other Parties in accordance with the terms of the Finance Documents,
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(a)
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sections 1471 to 1474 of the Code or any associated US Treasury Regulations or other official guidance;
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8
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(b)
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any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
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(c)
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any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
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(a)
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in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or
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(b)
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in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.
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(a)
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any letter or letters dated on or about the date of this Agreement between the Arrangers and the Borrower (or the Agent and the Borrower) setting out any of the fees referred to in Clause 11 (Fees);
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(b)
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any letter or letters dated on or about the date of the Amendment and Restatement Agreement between any Finance Party and the Borrower setting out any fees in respect of the Amendment and Restatement Agreement; and
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(c)
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any other agreement dated after the date of this Agreement setting out fees payable to a Finance Party referred to in this Agreement or under any other Finance Document.
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9
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(a)
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it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
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(b)
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the Agent otherwise rescinds or repudiates a Finance Document;
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10
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(c)
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(if the Agent is also a Lender) it is a Defaulting Lender; or
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(d)
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an Insolvency Event has occurred and is continuing with respect to the Agent;
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(i)
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its failure to pay is caused by:
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(A)
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administrative or technical error; or
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(B)
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a Disruption Event; and
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(ii)
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the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
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(a)
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all obligations of such Person for borrowed money;
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(b)
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all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
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(c)
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all obligations of such Person to pay the deferred purchase price of property, except trade accounts payable arising in the ordinary course of business;
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(d)
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all obligations of such Person as lessee which are capitalised in accordance with GAAP other than any liability in respect of a lease which would, in accordance with GAAP in effect prior to 15 December 2018, have been treated as an operating lease;
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(e)
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all obligations of such Person created or arising under any conditional sales or other title retention agreement with respect to any property acquired by such Person (including, without limitation, obligations under any such agreement which provides that the rights and remedies of the seller or lender thereunder in the event of default are limited to repossession or sale of such property);
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(f)
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all obligations of such Person with respect to letters of credit and similar instruments including, without limitation, obligations under reimbursement agreements;
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(g)
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all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien on any asset of such Person, whether or not such indebtedness is assumed by such Person; and
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(h)
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all Guarantee Obligations of such Person (other than guarantees of obligations of direct or indirect Subsidiaries of such Person).
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11
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(a)
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is dissolved (other than pursuant to a consolidation, amalgamation or merger);
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(b)
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becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
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(c)
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makes a general assignment, arrangement or composition with or for the benefit of its creditors;
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(d)
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institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
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(e)
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has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
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(i)
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results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or
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(ii)
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is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
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(f)
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has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
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(g)
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has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
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(h)
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seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (in each case other than by way of an Undisclosed Administration);
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(i)
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has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
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12
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(j)
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causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or
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(k)
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takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
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(a)
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the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
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(b)
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the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
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(a)
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any Original Lender; and
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(b)
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any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 2.2 (Accordion Increase) or Clause 24 (Changes to the Lenders) or the Amendment and Restatement Agreement,
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(a)
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the applicable Screen Rate;
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(b)
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(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
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(c)
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if:
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(i)
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no Screen Rate is available for dollars; or
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(ii)
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no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,
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13
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(a)
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if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate more than 66⅔% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔% of the Total Commitments immediately prior to the reduction); or
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(b)
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at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate more than 66⅔% of all the Loans then outstanding.
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(a)
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a material adverse effect on the business, property, operations, condition (financial or otherwise) or prospects of the Borrower or of the Parent and its consolidated Subsidiaries taken as a whole;
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(b)
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a material impairment of the collectability of the Purchased Loans taken as a whole; or
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(c)
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a material impairment of the validity or enforceability of this Agreement or any of the other Finance Documents or of the Transaction Documents or the rights or remedies of the Agent or the Lenders against the Borrower or the Parent hereunder or under the other Finance Documents.
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(a)
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(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar
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14
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(b)
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if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
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(c)
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if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
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(a)
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an entity that provides repayable funds to the Borrower for a minimum amount of EUR 100,000 (or its equivalent), and to the extent the amount of EUR 100,000 (or its equivalent) does not result in such entity not qualifying as forming part of the ''public'' (as referred to in Article 4, subsection 1 under (1) of the CRR), such other amount or such criterion as a result of which such entity shall qualify as not forming part of the public; and
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(b)
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following the publication of any interpretation of public by the relevant authority/ies, such amount or such criterion as a result of which such entity shall qualify as not forming part of the public.
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(a)
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Indebtedness for borrowed money, the proceeds of which are used to either increase the Series 2003-1 Invested Amount, refinance Indebtedness originally used for such purpose, and/or pay expenses incurred in connection with this Agreement or any such other Indebtedness; and
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15
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(b)
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indebtedness incurred in connection with Hedge Agreements entered into in connection with the Loans hereunder and any Pari Passu Indebtedness described in paragraph (a) above,
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(a)
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Indebtedness of the Borrower pursuant to this Agreement; and
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(b)
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Pari Passu Indebtedness.
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16
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(a)
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if:
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(i)
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the Reference Bank is a contributor to the Screen Rate; and
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(ii)
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it consists of a single figure,
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(b)
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in any other case, the rate at which the relevant Reference Bank could fund itself in dollars for the relevant period with reference to the unsecured wholesale funding market.
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(a)
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formally designated, nominated or recommended as the replacement for a Screen Rate by:
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17
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(i)
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the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or
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(ii)
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any Relevant Nominating Body,
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(b)
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in the opinion of the Majority Lenders and the Obligors, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
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(c)
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in the opinion of the Majority Lenders and the Obligors, an appropriate successor to a Screen Rate.
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(a)
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listed on, or owned 50% or more by or controlled by a Person listed on any applicable Sanctions List; or
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(b)
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located in, a resident of, organised under the laws of, or owned or controlled by, or acting on behalf of, a Person located in or organised under the laws of a country or territory that is or whose government is the target of any applicable country-wide Sanctions.
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18
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(a)
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made or to be made on the same day that a maturing Loan is due to be repaid;
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(b)
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the aggregate amount of which is equal to or less than the maturing Loan; and
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(c)
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made or to be made for the purpose of refinancing a maturing Loan.
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(a)
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the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders, and the Obligors materially changed;
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19
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(A)
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the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or
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(B)
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information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent,
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(ii)
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the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate;
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(iii)
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the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or
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(iv)
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the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or
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(c)
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the administrator of that Screen Rate determines that that Screen Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:
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(i)
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the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Obligors) temporary; or
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(ii)
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that Screen Rate is calculated in accordance with any such policy or arrangement for a period no less than the Screen Rate Contingency Period; or
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(d)
|
in the opinion of the Majority Lenders and the Obligors, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
20
|
|
|
21
|
|
|
22
|
|
|
(a)
|
the proposed transfer date specified in the Transfer Certificate; and
|
(b)
|
the date on which the Agent executes the Transfer Certificate.
|
23
|
|
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
(a)
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
(b)
|
in relation to any other applicable Bail-In Legislation:
|
(i)
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
(ii)
|
any similar or analogous powers under that Bail-In Legislation; and
|
(c)
|
in relation to any UK Bail-In Legislation:
|
(i)
|
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a
|
24
|
|
|
(ii)
|
any similar or analogous powers under that UK Bail-In Legislation.
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears any reference in this Agreement to:
|
(i)
|
the "Agent", any "Arranger", any "Finance Party", any "Lender", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;
|
(ii)
|
"assets" of any Person shall be construed as a reference to the whole or any part of its business, undertaking, property, assets, rights and revenues (including any right to receive revenues);
|
(iii)
|
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, restated, supplemented or novated;
|
(iv)
|
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
(v)
|
a provision of law is a reference to that provision as amended or re-enacted; and
|
(vi)
|
a time of day is a reference to London time.
|
(b)
|
The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
|
(c)
|
Section, Clause and Schedule headings are for ease of reference only.
|
(d)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
25
|
|
|
(e)
|
A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been remedied or waived.
|
(f)
|
In this Agreement, a reference to "the date of this Agreement" shall be a reference to 12 December 2017.
|
(g)
|
In this Agreement, where it relates to a Dutch entity, a reference to:
|
(i)
|
a necessary action to authorise where applicable, includes without limitation:
|
(A)
|
any action required to comply with the Dutch Works Councils Act (Wet op de ondernemingsraden); and
|
(B)
|
obtaining an unconditional positive advice (advies) from the competent works council(s);
|
(ii)
|
a winding-up, administration or dissolution includes a Dutch entity being:
|
(A)
|
declared bankrupt (failliet verklaard);
|
(B)
|
dissolved (ontbonden);
|
(iii)
|
a trustee in bankruptcy includes a curator;
|
(iv)
|
an administrator includes a bewindvoerder;
|
(v)
|
a(n) (administrative) receiver does not include a curator or bewindvoerder;
|
(vi)
|
an attachment includes a beslag;
|
(vii)
|
"gross negligence" includes grove schuld;
|
(viii)
|
"negligence" includes schuld;
|
(ix)
|
"wilful misconduct" includes opzet; and
|
(x)
|
any "step" or "procedure" taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Article 36(2) of the Tax Collection Act of the Netherlands (Invorderingswet 1990).
|
1.3
|
Currency Symbols and Definitions
|
26
|
|
|
1.4
|
Third party rights
|
(a)
|
Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b)
|
Subject to Clause 35.3 (Other Exceptions) but otherwise not withstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
27
|
|
|
2.
|
THE FACILITY
|
2.1
|
The Facility
|
2.2
|
Accordion Increase
|
(a)
|
Subject to this Clause 2.2, the Borrower may request an increase in the Total Commitments (an "Accordion Increase") in an aggregate amount which when aggregated with the amount of all other Accordion Increases made under this Clause 2.2 does not exceed $250,000,000 (the "Additional Commitments").
|
(b)
|
The Borrower may invite:
|
(i)
|
any one or more Lenders to provide Additional Commitments in such amount as may be agreed by the Borrower and such Lender (each such Lender that is invited to and wishes to provide such Additional Commitments, an "Accordion Lender"); and/or
|
(ii)
|
any one or more bank or financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making loans, securities or other financial assets and which is acceptable to the Agent (acting reasonably) (each a "New Accordion Lender") to provide Additional Commitments in such amount as may be agreed by the Borrower and such New Accordion Lender,
|
(c)
|
For the avoidance of doubt no Lender shall (unless otherwise agreed by that Lender) be obliged to provide any Additional Commitment.
|
(d)
|
The Borrower shall, promptly following agreement with the Accordion Lenders and New Accordion Lenders and in any event not later than 45 Business Days (or such other period as the Agent and the Borrower may agree) prior to the proposed date of the Accordion Increase, deliver to the Agent a notice (an "Accordion Request") signed by a Responsible Officer of the Borrower which shall specify:
|
(i)
|
the aggregate amount of the proposed Additional Commitments;
|
(ii)
|
the identity of, and the amount of the proposed Additional Commitment of, each Accordion Lender and each New Accordion Lender that wishes to provide an Additional Commitment;
|
(iii)
|
the proposed Accordion Increase Date which shall be a Business Day within the Availability Period and shall be the last date of the Interest Period of each Loan then outstanding; and
|
28
|
|
|
(iv)
|
the fees relating to the proposed Additional Commitments.
|
(e)
|
Following receipt by the Agent of an Accordion Request, it shall promptly forward a copy to each Lender for information purposes.
|
(f)
|
An Accordion Increase will only become effective if, on the date of the Accordion Request and the proposed Accordion Increase Date, no Default is continuing or would result from the proposed Accordion Increase.
|
(i)
|
Subject to the conditions set out in this Clause 2.2, an Accordion Increase will become effective in accordance with paragraph (h) below when the Agent executes an otherwise duly completed Accordion Increase Certificate delivered to it by the Borrower and the Additional Commitment Lenders. The Agent shall, subject to sub-paragraph (ii) below, as soon as reasonably practicable after receipt by it of a duly completed Accordion Increase Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Accordion Increase Certificate.
|
(ii)
|
The Agent shall only be obliged to execute an Accordion Increase Certificate delivered to it by the Borrower and the Additional Commitment Lenders once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to each New Accordion Lender.
|
(h)
|
On the Accordion Increase Date:
|
(i)
|
the amount of the Additional Commitment of each Additional Commitment Lender will be as set out in the relevant column opposite its name in the Accordion Increase Certificate;
|
(ii)
|
each of the Obligors and each Additional Commitment Lender shall assume obligations towards one another and acquire rights against one another as they would have acquired and assumed had each Additional Commitment Lender been an Original Lender with the rights and obligations acquired and assumed by it as a result of it providing its Additional Commitment;
|
(iii)
|
the Agent, the Arrangers, the New Accordion Lenders and the other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Accordion Lenders been Original Lenders with the rights and obligations acquired and assumed by them as a result of their participation in the Additional Commitments; and
|
(iv)
|
each New Accordion Lender shall become a Party as a "Lender".
|
29
|
|
|
(i)
|
The Borrower shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.
|
(j)
|
Any amounts payable to the Lenders by any Obligor on or before the Accordion Increase Date (including, without limitation, all interest, fees and commission payable up to (but excluding) the Accordion Increase Date) in respect of any period ending on or prior to the Accordion Increase Date shall be for the account of the Lenders party to this Agreement prior to the Accordion Increase Date and no Additional Commitment Lender shall have any interest in, or any rights in respect of, any such amount (save in respect of their Commitments up to (but excluding) the Accordion Increase Date).
|
(k)
|
Each New Accordion Lender, by executing the relevant Accordion Increase Certificate confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Accordion Increase Certificate becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Original Lenders.
|
2.3
|
Finance Parties' rights and obligations
|
(a)
|
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b)
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
|
(c)
|
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
30
|
|
|
3.2
|
Monitoring
|
4.
|
CONDITIONS OF UTILISATION
|
4.1
|
Initial conditions precedent
|
(a)
|
The Borrower may not deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Schedule 4 (Conditions Precedent to Initial Utilisation) and copies of any other document, authorisation, opinion or assurance reasonably requested by the Agent in form and substance reasonably satisfactory to the Agent. The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.
|
(b)
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
4.2
|
Further conditions precedent
|
(a)
|
in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and
|
(b)
|
the Repeating Representations to be made by the Borrower under this Agreement and the representations to be made by the Parent under Section 7 of the Parent Guarantee are true in all material respects.
|
4.3
|
Maximum number of Loans
|
31
|
|
|
5.
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
5.2
|
Completion of a Utilisation Request
|
(a)
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i)
|
the proposed Utilisation Date is a Business Day within the Availability Period;
|
(ii)
|
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
|
(iii)
|
the proposed Interest Period complies with Clause 9 (Interest Periods).
|
(b)
|
Only one Loan may be requested in each Utilisation Request.
|
5.3
|
Currency and amount
|
(a)
|
The currency specified in a Utilisation Request must be dollars.
|
(b)
|
The amount of the proposed Loan must be a minimum of $10,000,000 or, if less, the Available Facility.
|
5.4
|
Lenders' participation
|
(a)
|
If the conditions set out in this Agreement have been met, and subject to Clause 6 (Repayment), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
(b)
|
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
|
(c)
|
The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan and the amount of the payment to be made available in accordance with Clause 29.1 (Payments to the Agent), in each case by the Specified Time.
|
5.5
|
Cancellation of Commitment
|
32
|
|
|
6.
|
REPAYMENT
|
(a)
|
The Borrower shall repay each Loan on the last day of its Interest Period.
|
(b)
|
Without prejudice to the Borrower's obligation under paragraph (a) above, if:
|
(i)
|
one or more Loans are to be made to the Borrower:
|
(A)
|
on the same day that a maturing Loan is due to be repaid by the Borrower; and
|
(B)
|
in whole or in part for the purpose of refinancing the maturing Loan; and
|
(ii)
|
the proportion borne by each Lender's participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender's participation in the new Loans to the aggregate amount of those new Loans,
|
(A)
|
if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:
|
(1)
|
the Borrower will only be required to make a payment under Clause 29.1 (Payments to the Agent) in an amount equal to that excess; and
|
(2)
|
each Lender's participation (if any) in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation (if any) in the maturing Loan and that Lender will not be required to make a payment under Clause 29.1 (Payments to the Agent) in respect of its participation in the new Loans; and
|
(B)
|
if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:
|
(1)
|
the Borrower will not be required to make a payment under Clause 29.1 (Payments to the Agent); and
|
(2)
|
each Lender will be required to make a payment under Clause 29.1 (Payments to the Agent) in respect of its participation in the new Loans only to the extent that its participation (if any) in the new Loans exceeds that Lender's participation (if any) in the maturing Loan and the remainder of that Lender's participation in the new
|
33
|
|
|
7.
|
PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
(a)
|
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
(b)
|
upon the Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
(c)
|
to the extent that the Lender's participation has not been transferred pursuant to paragraph (d) of Clause 7.5 (Right of replacement or repayment and cancellation in relation to a single Lender), the Borrower shall repay that Lender's participation in the Loans made to the Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participations repaid.
|
7.2
|
Change of control
|
(a)
|
the Borrower shall promptly notify the Agent upon becoming aware of that event; and
|
(b)
|
the Agent, acting on the instructions of the Majority Lenders, shall by not less than 5 days' notice to the Borrower, cancel the Facility and declare all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all such outstanding amounts will become immediately due and payable.
|
7.3
|
Voluntary cancellation
|
34
|
|
|
7.4
|
Voluntary Prepayment of Loans
|
7.5
|
Right of repayment and cancellation in relation to a single Lender
|
(a)
|
If:
|
(i)
|
any sum payable to any Lender by the Borrower is required to be increased under paragraph (c) of Clause 12.2 (Tax gross-up);
|
(ii)
|
any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs),
|
(b)
|
On receipt of a notice referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
|
(c)
|
On the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in that Loan.
|
(d)
|
If
|
(i)
|
any of the circumstances set out in paragraph (a) above apply to a Lender; or
|
(ii)
|
the Borrower becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to any Lender,
|
35
|
|
|
(e)
|
The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:
|
(i)
|
the Borrower shall have no right to replace the Agent;
|
(ii)
|
neither the Agent nor any Lender shall have any obligation to find a replacement Lender;
|
(iii)
|
in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and
|
(iv)
|
the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.
|
(f)
|
A Lender shall perform the checks described in sub-paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.
|
7.6
|
Restrictions
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
(c)
|
Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.
|
(d)
|
The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e)
|
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f)
|
If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.
|
7.7
|
Application of prepayments
|
36
|
|
|
8.
|
INTEREST
|
8.1
|
Calculation of interest
|
(a)
|
Applicable Margin; and
|
(b)
|
LIBOR.
|
8.2
|
Payment of interest
|
8.3
|
Default interest
|
(a)
|
If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgement) at a rate which, subject to paragraph (b) below, is two per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 8.3 shall be immediately payable by the Borrower on demand by the Agent.
|
(b)
|
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
(i)
|
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
(ii)
|
the rate of interest applying to the overdue amount during that first Interest Period shall be two per cent. per annum higher than the rate which would have applied if the overdue amount had not become due.
|
(c)
|
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
8.4
|
Notification of rates of interest
|
37
|
|
|
9.
|
INTEREST PERIODS
|
9.1
|
Selection of Interest Periods
|
(a)
|
The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan.
|
(b)
|
Subject to this Clause 9, the Borrower may select an Interest Period of one, two, three or six Months or any other period agreed between the Borrower and the Agent (acting on the instructions of all the Lenders).
|
(c)
|
An Interest Period for a Loan shall not extend beyond the Final Maturity Date.
|
(d)
|
Each Interest Period for a Loan shall start on the Utilisation Date of such Loan.
|
(e)
|
A Loan has one Interest Period only.
|
9.2
|
Non-Business Days
|
10.
|
CHANGES TO THE CALCULATION OF INTEREST
|
10.1
|
Absence of quotations
|
10.2
|
Market disruption
|
(a)
|
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then subject to Clause 10.3 (Alternative basis of interest or funding) the rate of interest on each Lender's share of that Loan for the Interest Period shall be the rate per annum which is the sum of:
|
(i)
|
the Applicable Margin; and
|
(ii)
|
the rate notified to the Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
(b)
|
In this Agreement "Market Disruption Event" means:
|
(i)
|
at or about noon on the Quotation Day for the relevant Interest Period LIBOR is to be determined by reference to the Reference Banks and none
|
38
|
|
|
(ii)
|
before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of obtaining matching deposits in the London interbank market would be in excess of LIBOR.
|
10.3
|
Alternative basis of interest or funding
|
(a)
|
If a Market Disruption Event occurs and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
|
(b)
|
Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.
|
10.4
|
Break Costs
|
(a)
|
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent or the Borrower, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
11.
|
FEES
|
11.1
|
Commitment fee
|
(a)
|
The Borrower shall pay to the Agent (for the account of each Lender) a fee computed at the rate of 35 per cent. of the Applicable Margin on the Available Facility.
|
(b)
|
The accrued commitment fee is payable in arrears on 31 December 2017 and thereafter on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
|
(c)
|
No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.
|
11.2
|
Utilisation fee
|
(a)
|
The Borrower shall pay to the Agent (for the account of each Lender) a fee computed at the applicable rate on each Lender's participation in the Loans for
|
39
|
|
|
(i)
|
is less than 33 per cent. of the amount of its Commitment on that day is 0.10 per cent. per annum;
|
(ii)
|
is equal to or exceeds 33 per cent. but is less than 66 per cent. of the amount of its Commitment on that day is 0.20 per cent. per annum; and
|
(iii)
|
is equal to or exceeds 66 per cent. of the amount of its Commitment on that day is 0.40 per cent. per annum.
|
(b)
|
The utilisation fee shall begin to accrue on the CP Satisfaction Date and is payable on 31 December 2017 and thereafter on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period and at the time the cancellation of the relevant Lender's Commitment is effective or, if later, the last day on which any part of its participation in the Loans becomes repayable.
|
11.3
|
Participation fee
|
11.4
|
Agency fee
|
40
|
|
|
12.
|
TAX GROSS UP AND INDEMNITIES
|
12.1
|
Definitions
|
(a)
|
In this Agreement:
|
(b)
|
Unless a contrary indication appears, in this Clause 12 a reference to "determines" or "determined" means a determination made in the reasonable discretion of the person making the determination.
|
12.2
|
Tax gross-up
|
(a)
|
The Borrower shall make all payments to be made by it under any Finance Document without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b)
|
The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Borrower.
|
(c)
|
If a Tax Deduction is required by law to be made by the Borrower, the amount of the payment due from the Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d)
|
A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction if and to the extent the obligation to make a Tax Deduction (i) was required by law on the date of this Agreement or (ii) results from a Finance Party's failure to comply with paragraph (g) below.
|
(e)
|
If the Borrower is required by law or regulation to make a Tax Deduction, the Borrower shall make that Tax Deduction and any payment required in connection
|
41
|
|
|
(f)
|
Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
(g)
|
The Borrower hereby confirms to each Lender that it has made an election to be disregarded as an entity separate from its parent, Bunge N.A. Holdings, Inc., for U.S. federal income tax purposes. Each Lender shall, to the extent permitted by law, deliver to the Agent for transmission to the Borrower (on or before the date of the first interest payment after such Lender becomes a party to this Agreement) or as otherwise reasonably requested by the Borrower a duly completed copy of Internal Revenue Service Form W-9, W-8BEN, or Form W-ECI, as applicable, or any successor forms, or any other forms as may be necessary to establish a reduction in, or complete exemption from, US or other withholding tax on payments under the Series 2003-1 VFC Certificate or, as the case may be, on payments of interest on the Loans. To the extent that any such forms become obsolete as a result of lapse in time or change in circumstance, each Lender shall (promptly upon the request of the Borrower in the case of such form becoming obsolete as a result of lapse in time), to the extent permitted by law, deliver to the Agent for transmission to the Borrower, revised forms as may be necessary to establish a reduction in, or complete exemption from, US or other withholding tax on such payments.
|
12.3
|
Tax indemnity
|
(a)
|
The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b)
|
Paragraph (a) above shall not apply:
|
(i)
|
with respect to any loss, liability or cost related to any Tax assessed on a Finance Party:
|
(A)
|
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B)
|
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
42
|
|
|
(ii)
|
to the extent a loss, liability or cost:
|
(A)
|
is compensated for by an increased payment under Clause 12.2 (Tax gross-up);
|
(B)
|
would have been compensated for by an increased payment under Clause 12.2 (Tax gross-up) but was not so compensated because one of the exclusions in paragraph (d) of Clause 12.2 (Tax gross up) applied;
|
(C)
|
relates to a FATCA Deduction required to be made by a Party;
|
(D)
|
arises under the law of any jurisdiction in which the Finance Party is subject to non-resident taxation in respect of amounts received in or from that jurisdiction; or
|
(E)
|
is related to any Tax assessed on the Finance Party resulting from an assignment or transfer by the Finance Party of any of its rights and obligations under the Finance Documents or a change by the Finance Party of its Facility Office to the extent provided in paragraph (f) of Clause 24.2 (Conditions of assignment or transfer).
|
(c)
|
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.
|
(d)
|
A Protected Party shall, on receiving a payment from the Borrower under this Clause 12.3, notify the Agent.
|
12.4
|
Tax Credit
|
(a)
|
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and
|
(b)
|
that Finance Party has obtained and utilised that Tax Credit,
|
12.5
|
Stamp taxes
|
43
|
|
|
12.6
|
Value added tax
|
(a)
|
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party shall pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to that Party).
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Subject Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i)
|
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Subject Party shall also pay to the Supplier (at the same time as paying such amount) an amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Subject Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii)
|
(where the Recipient is the person required to account to the relevant tax authority for VAT) the Subject Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT,
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this Clause 12.6 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
|
44
|
|
|
(e)
|
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.
|
12.7
|
FATCA Information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party; and
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA (including its applicable "passthru payment percentage" or other information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA.
|
(b)
|
If a Party confirms to another Party pursuant to sub-paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:
|
(i)
|
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party, then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and
|
(ii)
|
if that Party failed to confirm its applicable "passthru payment percentage", then such Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable "passthru payment percentage" is 100%,
|
45
|
|
|
12.8
|
FATCA Deduction
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Borrower, the Agent and the other Finance Parties.
|
13.
|
INCREASED COSTS
|
13.1
|
Increased costs
|
(a)
|
Subject to Clause 13.2 (Increased cost claims) and Clause 13.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement, or, if later, the date on which the relevant Finance Party became a Party to this Agreement (provided, however, that for the purposes of this Agreement and the other Finance Documents and to the extent permitted by applicable laws, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith are deemed to have gone into effect and adopted after the date of this Agreement) or (iii) the implementation or application of, or compliance with, Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV (including, for the avoidance of doubt, the Dodd-Frank Wall Street Reform and Consumer Protection Act).
|
(b)
|
In this Agreement "Increased Costs" means:
|
(i)
|
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
|
(ii)
|
an additional or increased cost; or
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
46
|
|
|
13.2
|
Increased cost claims
|
(a)
|
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower. The Borrower shall not be required to compensate a Lender pursuant to Clause 13 (Increased costs) for any amounts incurred more than six months prior to the date the Borrower receives notification of such claim; provided, that if the circumstances giving rise to such claim have a retroactive effect, then such six month period shall be extended to include the period of such retroactive effect.
|
(b)
|
Each Finance Party shall, as soon as practicable after a demand by the Agent or the Borrower, provide a certificate confirming the amount of its Increased Costs (setting out reasonable information showing the basis for the calculation of such amount).
|
13.3
|
Exceptions
|
(a)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b)
|
attributable to a FATCA Deduction required to be made by a Party;
|
(c)
|
compensated for by Clause 12.3 (Tax Indemnity) (or would have been compensated for under Clause 12.3 (Tax Indemnity) but was not so compensated because the exclusions in paragraph (b) of Clause 12.3 (Tax Indemnity) applied); or
|
(d)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;
|
14.
|
OTHER INDEMNITIES
|
14.1
|
Currency indemnity
|
(a)
|
If any sum due from the Borrower under the Finance Documents (a "Sum"), or any order, judgement or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
(i)
|
making or filing a claim or proof against the Borrower;
|
(ii)
|
obtaining or enforcing an order, judgement or award in relation to any litigation or arbitration proceedings,
|
47
|
|
|
(b)
|
The Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
14.2
|
Other indemnities
|
(a)
|
the occurrence of any Event of Default;
|
(b)
|
a failure by the Borrower to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 28 (Sharing among the Finance Parties);
|
(c)
|
funding, or making arrangements to fund, its participation in a Loan requested by it in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone);
|
(d)
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or
|
(e)
|
any claim by the Agent against any of the Lenders pursuant to Clause 26.11 (Lenders' indemnity to the Agent).
|
14.3
|
Indemnity to the Agent
|
(a)
|
investigating any event which it reasonably believes is a Default; or
|
(b)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised,
|
15.
|
MITIGATION BY THE LENDERS
|
15.1
|
Mitigation
|
(a)
|
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross-up and indemnities) or Clause 13 (Increased costs) including (but not limited to) transferring its rights and
|
48
|
|
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of the Borrower under the Finance Documents.
|
15.2
|
Limitation of liability
|
(a)
|
The Borrower shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
|
(b)
|
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
16.
|
COSTS AND EXPENSES
|
16.1
|
Transaction expenses
|
(a)
|
this Agreement and any other documents referred to in this Agreement; and
|
(b)
|
any other Finance Documents executed after the date of this Agreement.
|
16.2
|
Amendment costs
|
16.3
|
Enforcement costs
|
49
|
|
|
17.
|
REPRESENTATIONS
|
17.1
|
Existence; Compliance with Law
|
17.2
|
Power; Authorisation; Enforcement Obligations
|
17.3
|
No Legal Bar
|
50
|
|
|
17.4
|
Governing law and enforcement
|
(a)
|
The choice of English law as the governing law of this Agreement and New York law as the governing law of the Parent Guarantee will be recognised and enforced in its jurisdiction of incorporation; and
|
(b)
|
Any judgement obtained in England in relation to this Agreement and in New York in relation to the Parent Guarantee will be recognised and enforced in its jurisdiction of incorporation.
|
17.5
|
Litigation
|
17.6
|
No Default
|
17.7
|
Ownership of Property; Liens
|
17.8
|
Taxes
|
17.9
|
Deduction of Tax
|
51
|
|
|
17.10
|
No filing or stamp taxes
|
17.11
|
No misleading information
|
17.12
|
No Subsidiaries
|
17.13
|
Use of Proceeds
|
17.14
|
Pari passu ranking
|
17.15
|
Solvency
|
17.16
|
Limited Purpose
|
52
|
|
|
17.17
|
No Change
|
17.18
|
Dutch FSA
|
17.19
|
Tax Status
|
17.20
|
Sanctions
|
(a)
|
The Borrower is, to the extent applicable, in compliance with Sanctions and with the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the "FCPA") and any other applicable anti-corruption law, in all material respects.
|
(b)
|
The Borrower is not, and no director or senior officer of the Borrower is, any of the following:
|
(i)
|
a Restricted Person;
|
(ii)
|
a Person owned 50% or more or controlled by, or acting on behalf of, any Restricted Person; or
|
(iii)
|
a Person that commits, threatens or conspires to commit or support "terrorism" as defined in the Executive Order.
|
17.21
|
Sustainability Certificate
|
17.22
|
Repetition
|
53
|
|
|
18.
|
POSITIVE COVENANTS
|
18.1
|
Information Miscellaneous
|
18.2
|
Bunge Master Trust information
|
(a)
|
Daily Reports prepared by the Servicer pursuant to Clause 18.14 (Submission of Daily Report) below;
|
(b)
|
notices of Series 2003-1 Early Amortization Events; and
|
(c)
|
Monthly Settlement Statements;
|
18.3
|
Taxes
|
18.4
|
Compliance
|
18.5
|
Audited financial statements
|
54
|
|
|
18.6
|
Unaudited financial statements
|
18.7
|
Financial statements certificate
|
18.8
|
Corporate existence, Conduct of business
|
(a)
|
Except as otherwise permitted by the Finance Documents, preserve, renew and keep in full force and effect its corporate existence; and
|
(b)
|
take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business.
|
18.9
|
Notification of default
|
(a)
|
Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence, and
|
(b)
|
development or event which has had, or which the Borrower in its good faith judgement believes will have, a Material Adverse Effect.
|
55
|
|
|
18.10
|
Proceeds
|
(a)
|
Use the proceeds from the Loans to:
|
(i)
|
make advances under the Series 2003-1 VFC Certificate;
|
(ii)
|
repay Permitted Indebtedness outstanding from time to time; or
|
(iii)
|
pay expenses incurred in connection with the Facility and any Pari Passu Indebtedness; or
|
(b)
|
Use the proceeds from any Pari Passu Indebtedness to:
|
(i)
|
make advances under the Series 2003-1 VFC Certificate;
|
(ii)
|
repay Permitted Indebtedness outstanding from time to time; or
|
(iii)
|
pay expenses incurred in connection with this Agreement and any such Pari Passu Indebtedness.
|
18.11
|
Notification of amounts due
|
18.12
|
Notification of Applicable Rating
|
18.13
|
Direction of Trustee
|
18.14
|
Submission of Daily Report
|
56
|
|
|
18.15
|
Sanctions Investigations
|
18.16
|
Anti-Money Laundering Information
|
18.17
|
Provision and contents of Sustainability Certificate
|
(a)
|
The Borrower shall supply a Sustainability Certificate to the Agent on an annual basis, with the first Sustainability Certificate being supplied by the date falling no later than 120 days from 31 December 2019 and, thereafter, each subsequent Sustainability Certificate being supplied by the date falling no later than 120 days from 31 December of each subsequent year (the "Sustainability Certificate Due Date").
|
(b)
|
Each Sustainability Certificate shall be signed by an authorised signatory of the Borrower and shall:
|
(i)
|
certify the score of each Sustainability Performance Target; and
|
(ii)
|
certify the associated third party verifications for each applicable Sustainability Performance Target detailed in the Sustainability Benchmark; and
|
(iii)
|
subject to paragraph (c) below, append evidence of the third party verification for each relevant Sustainability Performance Target.
|
(c)
|
For the avoidance of doubt:
|
(i)
|
no third party verification for Sustainability Performance Target 1 will be provided in the Sustainability Certificate delivered on the Sustainability Certificate Due Date in 2020; and
|
(ii)
|
no third party verification will be provided for Sustainability Performance Target 2.
|
19.
|
NEGATIVE COVENANTS
|
57
|
|
|
19.1
|
Series 2003-1 Allocated Loan Amount
|
(a)
|
adding (i) the aggregate principal amount of and accrued interest on the Loans outstanding hereunder and (ii) all other Pari Passu Indebtedness outstanding (including any net payment obligations of the Borrower related to Hedge Agreements, but excluding all Hedge Termination Amounts due and owing by the Borrower) calculated by converting any Master Trust Approved Currency other than dollars into dollars at the Rate of Exchange;
|
(b)
|
and deducting therefrom, the aggregate amount of any Master Trust Approved Currency (including any net receipts from Hedge Agreements, but excluding any Hedge Termination Amounts received by the Borrower) on deposit in any Borrower Account or the Series 2003-1 Collection Subaccount (or any sub-subaccount thereof), calculated by converting any Master Trust Approved Currencies other than dollars into dollars at the Rate of Exchange, that are unconditionally available to repay the aggregate amount of the Indebtedness and interest accrued thereon described in the foregoing sub-paragraphs (a)(i) and (a)(ii) of this Clause 19.1 (or with respect to the Series 2003-1 Collection Subaccount (or any sub-subaccount thereof), unconditionally available to repay the principal and accrued interest on the Series 2003-1 VFC Certificate which Master Trust Approved Currency amounts are in turn unconditionally available to make such payments on the principal of and accrued interest on the Loans and other Pari Passu Indebtedness in the foregoing sub-paragraphs (a)(i) and (a)(ii) of this Clause 19.1.
|
19.2
|
Negative Pledge
|
19.3
|
Indebtedness
|
19.4
|
Loans and Guarantees
|
58
|
|
|
19.5
|
Merger
|
19.6
|
Other Agreements
|
(a)
|
Enter into or be a party to any agreement or instrument other than the Finance Documents, the Transaction Documents to which it is a party, and any agreement or instrument related to the incurrence of Pari Passu Indebtedness; or
|
(b)
|
Enter into or be a party to any agreement or instrument related to the incurrence of Pari Passu Indebtedness that does not include a provision substantially to the effect set forth in Clause 21.1 (No Bankruptcy Petition against the Borrower; Liability of the Borrower).
|
19.7
|
Expenditure
|
19.8
|
Restriction of business
|
19.9
|
Constitutional Documents
|
19.10
|
Amendments to Transaction Documents
|
(a)
|
render the Series 2003-1 VFC Certificate subordinate in payment to any other Series under the Bunge Master Trust;
|
(b)
|
reduce in any manner the amount of, or delay the timing of, distributions which are required to be made on the Series 2003-1 VFC Certificate; or
|
(c)
|
change the definition of or the manner of calculating the interest of the Borrower in the assets of the Bunge Master Trust; and
|
59
|
|
|
19.11
|
Powers of Attorney
|
19.12
|
Increase in Series 2003-1 Invested Amount
|
19.13
|
Servicer
|
19.14
|
Hedge Agreements
|
19.15
|
Use of proceeds
|
20.
|
ACKNOWLEDGEMENT
|
(a)
|
Each Party acknowledges and agrees that the Borrower does not:
|
(i)
|
represent under Clause 17.20 (Sanctions); nor
|
(ii)
|
undertake under Clause 19.15 (Use of proceeds),
|
60
|
|
|
(b)
|
Each Party further acknowledges that the representations and warranties included in Clause 18.20 (Sanctions) given by, and the undertaking included in Clause 19.15 (Use of proceeds) of, the Borrower to any Lender resident in Germany (Inländer) within the meaning of Section 2 Paragraph 15 of the German Foreign Trade and Payments Regulation ("AWV") are made only to the extent that such Lender would be permitted to make or receive such representations and warranties or undertakings, as applicable, pursuant to Section 7 of the AWV.
|
(c)
|
Each Party further acknowledges that the representations and warranties included in Clause 17.20 (Sanctions) and the undertaking included in Clause 19.15 (Use of proceeds) shall be given by and apply to the Borrower for the benefit of any Finance Party only to the extent that giving, complying with or receiving the benefit of (as applicable) such representation or undertaking does not result in any violation of the Blocking Regulation.
|
21.
|
COVENANT OF AGENT AND LENDERS AND PATRIOT ACT NOTICE
|
21.1
|
No Bankruptcy Petition Against the Borrower; Liability of the Borrower
|
(a)
|
Each of the Agent and the Lenders hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all Loans and other amounts payable hereunder and all Pari Passu Indebtedness, it will not institute against, or join with or assist any other Person in instituting against, the Borrower, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any applicable insolvency laws. This Clause 21.1 shall survive the termination of this Agreement.
|
(b)
|
Notwithstanding any other provision hereof or of any other Finance Documents, the sole remedy of the Agent, any Lender or any other Person against the Borrower in respect of any obligation, covenant, representation, warranty or agreement of the Borrower under or related to this Agreement or any other Finance Document shall be against the assets of the Borrower. Neither the Agent, nor any Lender nor any other Person shall have any claim against the Borrower to the extent that such assets are insufficient to meet such obligations, covenant, representation, warranty or agreement (the difference being referred to herein as a "shortfall") and all claims in respect of the shortfall shall be extinguished; provided, however, that the provisions of this Clause 21.1 apply solely to the obligations of the Borrower and shall not extinguish such shortfall or otherwise restrict such Person's rights or remedies against the Parent.
|
21.2
|
PATRIOT Act Notice
|
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|
|
22.
|
EVENTS OF DEFAULT
|
22.1
|
Non-payment
|
22.2
|
Misrepresentation
|
22.3
|
Other Obligations
|
(a)
|
The Borrower shall default in the observance or performance of any agreement contained in Clause 19 (Negative Covenants) of this Agreement or the Parent shall default in the observance or performance of any agreement contained in Sections 8.1(c), 8.1(g)(i), 8.1(h), 8.1(i) or 8.2 of the Parent Guarantee; or
|
(b)
|
the Borrower or the Parent shall default in the observance or performance of any other agreement contained in this Agreement or any other Finance Document (other than as provided in Clause 22.1 (Non-payment) or paragraph (a) above), and if capable of being remedied such default shall continue unremedied for a period of 30 days after the earlier of (i) the date on which a Responsible Officer of the Borrower or the Parent has knowledge of such default and (ii) the Borrower or the Parent receives written notice thereof from the Agent or the Majority Lenders; or
|
22.4
|
Cross default
|
(a)
|
default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; or
|
(b)
|
default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or
|
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|
|
|
(c)
|
default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable;
|
(i)
|
a default, event or condition described in paragraphs (a), (b) or (c) of this Clause 22.4 shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in paragraphs (a), (b) or (c) of this Clause 22.4 shall have occurred and be continuing with respect to Indebtedness, the outstanding principal amount of which together exceeds in the aggregate $100,000,000; provided further that the proviso specified in this sub-paragraph (i) shall be deemed inapplicable at any time that any Purchased Loan shall constitute a Defaulted Loan or shall have constituted a Delinquent Loan for a period of more than three (3) successive Business Days; and
|
(ii)
|
this paragraph (c) shall be deemed inapplicable if the occurrence of such event or condition referred to above gives rise to an obligation to make a mandatory prepayment without further demand of any person on terms agreed prior to the occurrence of such event or condition; or
|
22.5
|
Group default
|
(a)
|
default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; or
|
(b)
|
default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or
|
(c)
|
default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the
|
63
|
|
|
(i)
|
a default, event or condition described in paragraphs (a), (b) or (c) of this Clause 22.5 shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in paragraphs (a), (b) or (c) of this Clause 22.5 shall have occurred and be continuing with respect to Indebtedness, the outstanding principal amount of which together exceeds in the aggregate $100,000,000; and
|
(ii)
|
this paragraph (c) shall be deemed inapplicable if the occurrence of such event or condition referred to above gives rise to an obligation to make a mandatory prepayment without further demand of any person on terms agreed prior to the occurrence of such event or condition; or
|
22.6
|
Insolvency and Insolvency Proceedings
|
(a)
|
Any member of the Group or Bunge Funding Inc. shall commence any case, proceedings or other action (i) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganisation or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganisation, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seeking appointment of a receiver, trustee in bankruptcy, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any member of the Group or Bunge Funding Inc. shall make a general assignment for the benefit of its creditors; or
|
(b)
|
there shall be commenced against any member of the Group or Bunge Funding Inc. any case, proceeding or other action of a nature referred to in paragraph (a) above that (i) results in the entry of an order for relief or any such adjudication or appointment or (ii) remains undismissed, undischarged or unbonded for a period of 60 days; or
|
(c)
|
there shall be commenced against any member of the Group or Bunge Funding Inc. any case, proceeding or other action seeking issuance of a warrant of expropriation, attachment, sequestration, distress, execution, distrait or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
|
(d)
|
any member of the Group or Bunge Funding, Inc. shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in paragraphs (a), (b), or (c) above; or
|
(e)
|
any member of the Group or Bunge Funding, Inc. shall generally not, or shall be unable to, or shall admit in writing its inability to pay its debts as they become due.
|
64
|
|
|
22.7
|
Final Judgement against Group
|
22.8
|
Final Judgement against Borrower
|
22.9
|
Unlawfulness
|
22.10
|
Repudiation
|
22.11
|
Effectiveness
|
22.12
|
Tax Status
|
22.13
|
Sustainability
|
22.14
|
Acceleration
|
(a)
|
cancel the Total Commitments whereupon they shall immediately be cancelled;
|
65
|
|
|
(b)
|
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or
|
(c)
|
with the consent of the Majority Lenders, the Agent may, or upon the request of the Majority Lenders, the Agent shall, by notice to the Borrower, instruct the Borrower to, and in such event the Borrower shall, instruct the trustee of the Bunge Master Trust to declare the principal and accrued interest in respect of the Purchased Loans to be due and payable. Except as expressly provided above in this Clause, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower,
|
23.
|
USE OF WEBSITES
|
(a)
|
The Borrower may satisfy its obligation to deliver any public information to the Lenders by posting this information onto an electronic website designated by the Borrower and the Agent (the "Designated Website") by notifying the Agent (i) of the address of the website together with any relevant password specifications and (ii) that such information has been posted on the website.
|
(b)
|
In any event the Borrower shall supply the Agent with one copy in paper form of any information which is posted onto the website.
|
23.2
|
The Agent shall supply each Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrower and the Agent.
|
23.3
|
The Borrower shall promptly upon becoming aware of its occurrence notify the Agent if:
|
(a)
|
the Designated Website cannot be accessed due to technical failure;
|
(b)
|
the password specifications for the Designated Website change;
|
(c)
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(d)
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(e)
|
the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
66
|
|
|
23.4
|
"Know your customer" checks
|
(a)
|
If:
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii)
|
any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or
|
(iii)
|
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b)
|
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
67
|
|
|
24.
|
CHANGES TO THE LENDERS
|
24.1
|
Assignments and transfers by the Lenders
|
(a)
|
assign any of its rights; or
|
(b)
|
transfer by novation any of its rights and obligations,
|
24.2
|
Conditions of assignment or transfer
|
(a)
|
The consent of the Borrower (not to be unreasonably withheld or delayed) is required for an assignment or transfer by a Lender, unless the assignment or transfer is to another Lender or an Affiliate of a Lender, or is made at a time when an Event of Default has occurred and has not been waived.
|
(b)
|
The Borrower will be deemed to have given its consent five Business Days after the Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
(c)
|
An assignment will only be effective:
|
(i)
|
on receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender; and
|
(ii)
|
performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.
|
(d)
|
A transfer will only be effective if the procedure set out in Clause 24.5 (Procedure for transfer) is complied with.
|
(e)
|
If:
|
(i)
|
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii)
|
as a result of circumstances existing at the date the assignment, transfer or change occurs, the Borrower would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax gross-up and indemnities) or Clause 13 (Increased costs),
|
68
|
|
|
(f)
|
An assignment or transfer of part (but not all) of a Lender's Commitment and Loans must (unless such transfer or assignment is to an Existing Lender or is made at a time when an Event of Default has occurred and is continuing) be in a minimum aggregate amount of $10,000,000.
|
(g)
|
Without prejudice to paragraph (f) above, the amount transferred to a New Lender in relation to a Loan or a Commitment shall be at least the dollar equivalent of EUR100,000 or, if it is less, the New Lender shall confirm in writing to the Borrower that it is a PMP.
|
(h)
|
The Borrower hereby designates the Agent to serve as the Borrower’s agent, solely for the purpose of this paragraph (h), to maintain a register (the "Register") on which the Agent will record each Lender’s Commitment, the Loans made by each Lender and each repayment in respect of the principal amount of the Loans of each Lender and annexed to which the Agent shall retain a copy of each Transfer Certificate delivered to the Agent pursuant to this Clause 24 (Changes to the Lenders). Failure to make any recordation, or any error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans. The entries in the Register shall be conclusive (provided, however, that any failure to make any recordation or any error in such recordation shall be corrected by the Agent upon notice or discovery thereof), and the Borrower, the Agent and the Lenders shall treat each Person in whose name a Loan is registered as the Lender thereof for all purposes of this Agreement, notwithstanding notice or any provision herein to the contrary. A Lender’s Commitment and the Loans made pursuant thereto may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer in the Register. Any assignment or transfer of a Lender’s Commitment or the Loans made pursuant thereto shall be registered in the Register only upon delivery to the Agent of a Transfer Certificate duly executed by the assignor thereof. No assignment or transfer of a Lender’s Commitment or the Loans made pursuant thereto shall be effective unless such assignment or transfer shall have been recorded in the Register by the Agent, acting promptly, as provided in this paragraph (h). The Agent shall supply a copy of the Register to the Borrower upon request. It is intended that the procedures described in this paragraph (h) will cause the Loans to be treated as being in "registered form" within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code of 1986, as amended.
|
24.3
|
Assignment or transfer fee
|
69
|
|
|
24.4
|
Limitation of responsibility of Existing Lenders
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
(ii)
|
the financial condition of any Obligor;
|
(iii)
|
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of any member of the Group and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
(c)
|
Nothing in any Finance Document obliges an Existing Lender to:
|
(i)
|
accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 24; or
|
(ii)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
24.5
|
Procedure for transfer
|
(a)
|
Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (b) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
70
|
|
|
(b)
|
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c)
|
On the Transfer Date:
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the "Discharged Rights and Obligations");
|
(ii)
|
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii)
|
the Agent, the Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Existing Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arrangers and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and
|
(iv)
|
the New Lender shall become a Party as a "Lender".
|
24.6
|
Security over Lenders' rights
|
(a)
|
any charge, assignment or other Security to secure obligations to a federal reserve or central bank or government authority, department or agency including HM Treasury or equivalent or any other authorised government body; and
|
(b)
|
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
71
|
|
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii)
|
require any payments to be made by the Borrower other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
25.
|
CHANGES TO THE BORROWER
|
72
|
|
|
26.
|
ROLE OF THE AGENT AND THE ARRANGERS AND THE REFERENCE BANKS
|
26.1
|
Appointment of the Agent
|
(a)
|
Each other Finance Party appoints the Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each other Finance Party authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
26.2
|
Instructions
|
(a)
|
The Agent shall:
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders; and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.
|
(b)
|
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
(d)
|
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
|
73
|
|
|
(e)
|
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
(f)
|
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
|
26.3
|
Duties of the Agent
|
(a)
|
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
(c)
|
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d)
|
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(e)
|
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arrangers) under this Agreement it shall promptly notify the other Finance Parties.
|
(f)
|
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
26.4
|
Role of the Arrangers
|
26.5
|
No fiduciary duties
|
(a)
|
Nothing in any Finance Document constitutes the Agent or the Arrangers as a trustee or fiduciary of any other person.
|
(b)
|
Neither the Agent nor the Arrangers shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
26.6
|
Business with the Group
|
74
|
|
|
26.7
|
Rights and discretions
|
(a)
|
The Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii)
|
rely on a certificate from any person;
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b)
|
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 22.1 (Non-payment));
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
|
(iii)
|
any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c)
|
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d)
|
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary.
|
(e)
|
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs
|
75
|
|
|
(f)
|
The Agent may act in relation to the Finance Documents through its officers, employees and agents.
|
(g)
|
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
(h)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i)
|
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
26.8
|
Responsibility for documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
26.9
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
76
|
|
|
(c)
|
whether any other event specified in any Finance Document has occurred.
|
26.10
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent will not be liable for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or
|
(iii)
|
without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever but not including any claim based on the gross negligence or wilful misconduct of the Agent) arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act.
|
(c)
|
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to
|
77
|
|
|
(d)
|
Nothing in this Agreement shall oblige the Agent or the Arranger to carry out:
|
(i)
|
any "know your customer" or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender,
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
26.11
|
Lenders' indemnity to the Agent
|
26.12
|
Resignation of the Agent
|
(a)
|
The Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the Lenders and the Borrower.
|
(b)
|
Alternatively the Agent may resign by giving notice to the Lenders and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Agent.
|
78
|
|
|
(c)
|
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the Agent (after consultation with the Borrower) may appoint a successor Agent.
|
(d)
|
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
(e)
|
The Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(f)
|
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit of Clause 14.3 (Indemnity to the Agent) and this Clause 26 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g)
|
After consultation with the Borrower, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.
|
(h)
|
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i)
|
the Agent fails to respond to a request under Clause 12.7 (FATCA Information) and the Borrower or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii)
|
the information supplied by the Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii)
|
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,
|
79
|
|
|
26.13
|
Replacement of the Agent
|
(a)
|
With the consent of the Borrower (not to be unreasonably withheld or delayed), the Majority Lenders may, by giving 30 days' notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent.
|
(b)
|
The Borrower will be deemed to have given its consent five Business Days after the Lenders have requested it unless consent is expressly refused by the Borrower within that time.
|
(c)
|
The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
(d)
|
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from such date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 26.13 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
|
(e)
|
Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
26.14
|
Confidentiality
|
(a)
|
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b)
|
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
|
26.15
|
Relationship with the Lenders
|
(a)
|
entitled to or liable for any payment due under this Agreement on that day; and
|
(b)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
80
|
|
|
26.16
|
Credit appraisal by the Lenders
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(c)
|
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
26.17
|
Deduction from amounts payable by the Agent
|
26.18
|
Role of Reference Banks
|
(a)
|
No Reference Bank is under any obligation to provide a quotation or any other information to the Agent.
|
(b)
|
No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.
|
(c)
|
No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this Clause 26.18 subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act.
|
81
|
|
|
26.19
|
Third party Reference Banks
|
27.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
28.
|
SHARING AMONG THE FINANCE PARTIES
|
28.1
|
Payments to Finance Parties
|
(a)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
(b)
|
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 29 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 29.6 (Partial payments).
|
28.2
|
Redistribution of payments
|
82
|
|
|
28.3
|
Recovering Finance Party's rights
|
(a)
|
On a distribution by the Agent under Clause 28.2 (Redistribution of payments), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.
|
(b)
|
If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the Borrower shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.
|
28.4
|
Reversal of redistribution
|
(a)
|
each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 28.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and
|
(b)
|
that Recovering Finance Party's rights of subrogation in respect of any reimbursement shall be cancelled and the Borrower will be liable to the reimbursing Finance Party for the amount so reimbursed.
|
28.5
|
Exceptions
|
(a)
|
This Clause 28 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the Borrower.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
83
|
|
|
29.
|
PAYMENT MECHANICS
|
29.1
|
Payments to the Agent
|
29.2
|
Distributions by the Agent
|
29.3
|
Distributions to the Borrower
|
29.4
|
Clawback
|
(a)
|
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b)
|
Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
(c)
|
If the Agent is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:
|
(i)
|
the Borrower shall on demand refund it to the Agent; and
|
84
|
|
|
(ii)
|
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower shall within three Business Days from demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
29.5
|
Impaired Agent
|
(a)
|
If, at any time, the Agent becomes an Impaired Agent, the Borrower or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 29.1 (Payments to the Agent) may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of "Acceptable Bank" and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Borrower or the Lender making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents.
|
(b)
|
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.
|
(c)
|
A Party which has made a payment in accordance with this Clause 29.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
|
(d)
|
Promptly upon the appointment of a successor Agent in accordance with Clause 26.13 (Replacement of the Agent), each Party which has made a payment to a trust account in accordance with this Clause 29.5 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution in accordance with Clause 29.2 (Distributions by the Agent).
|
29.6
|
Partial payments
|
(a)
|
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents, the Agent shall apply that payment towards the obligations of the Borrower under the Finance Documents in the following order:
|
(i)
|
first, in or towards payment pro rata of any unpaid amount owing to the Agent and the Arrangers under the Finance Documents;
|
(ii)
|
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
|
85
|
|
|
(iii)
|
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
(iv)
|
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
(b)
|
The Agent shall, if so directed by the Majority Lenders, vary the order set out in sub-paragraphs (a)(ii) to (a)(iv) above.
|
(c)
|
Paragraphs (a) and (b) above will override any appropriation made by the Borrower.
|
29.7
|
No set-off by the Borrower
|
29.8
|
Business Days
|
(a)
|
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b)
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
29.9
|
Currency of account
|
(a)
|
Subject to paragraphs (b) to (e) below, dollars is the currency of account and payment for any sum due from the Borrower under any Finance Document.
|
(b)
|
A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date.
|
(c)
|
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.
|
(d)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(e)
|
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
|
30.
|
SET-OFF
|
86
|
|
|
31.
|
NOTICES
|
31.1
|
Communications in writing
|
31.2
|
Addresses
|
(a)
|
in the case of the Borrower, that identified with its name below;
|
(b)
|
in the case of each Lender, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and
|
(c)
|
in the case of the Agent, that identified with its name below,
|
87
|
|
|
31.3
|
Delivery
|
(a)
|
Except as otherwise provided in Clause 23 (Use of Websites), any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i)
|
if by way of fax, when received in legible form;
|
(ii)
|
if by way of e-mail, when actually received in legible form and addressed in the manner specified by the recipient; or
|
(iii)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
(b)
|
Except as otherwise provided in Clause 23 (Use of Websites), any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).
|
(c)
|
All notices from or to the Borrower shall be sent through the Agent.
|
88
|
|
|
31.4
|
Notification of address and fax number
|
31.5
|
Communication when Agent is Impaired Agent
|
31.6
|
Electronic communication
|
(a)
|
Any communication to be made between the Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including without limitation, by way of posting to a secure website) if those two Parties:
|
(i)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
|
(ii)
|
notify each other of any change to their address or any other such information supplied by them.
|
(b)
|
Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.
|
(c)
|
Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.
|
(d)
|
Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5:00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.
|
(e)
|
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 31.6.
|
89
|
|
|
31.7
|
English language
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
(i)
|
in English; or
|
(ii)
|
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
32.
|
CALCULATIONS AND CERTIFICATES
|
32.1
|
Accounts
|
32.2
|
Certificates and Determinations
|
32.3
|
Day count convention
|
33.
|
PARTIAL INVALIDITY
|
34.
|
REMEDIES AND WAIVERS
|
90
|
|
|
35.
|
AMENDMENTS AND WAIVERS
|
35.1
|
Required consents
|
(a)
|
Subject to Clause 35.2 (Exceptions) and Clause 35.3 (Other Exceptions) any term of this Agreement may be amended or waived only with the consent of the Majority Lenders and the Borrower and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
|
35.2
|
Exceptions
|
(a)
|
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
(b)
|
an extension to the date of payment of any amount under this Agreement;
|
(c)
|
a reduction in the Applicable Margin or the Sustainability Premium, an increase in the Sustainability Discount or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
(d)
|
a change in currency of payment of any amount under the Finance Documents;
|
(e)
|
except as provided in Clause 2.2 (Accordion Increase), an increase in or an extension of any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
(f)
|
a change to the Borrower;
|
(g)
|
any provision which expressly requires the consent of all the Lenders;
|
(h)
|
Clause 2.3 (Finance Parties' rights and obligations), Clause 19.5 (Merger), Clause 5.1 (Delivery of a Utilisation Request), Clause 7.1 (Illegality), Clause 7.2 (Change of control), Clause 20 (Acknowledgment), Clause 24 (Changes to the Lenders), Clause 25 (Changes to the Borrower), Clause 28 (Sharing among the Finance Parties), this Clause 35, Clause 40 (Governing law) or Clause 41.1 (Jurisdiction); or
|
(i)
|
any release of the Parent Guarantee or change to the Guarantor (as defined therein),
|
91
|
|
|
35.3
|
Other Exceptions
|
35.4
|
Replacement of Screen Rate
|
(a)
|
Subject to Clause 35.3 (Other exceptions), if a Screen Rate Replacement Event has occurred in relation to any Screen Rate for dollars, any amendment or waiver which relates to:
|
(i)
|
providing for the use of a Replacement Benchmark; and
|
(A)
|
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
(B)
|
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);
|
(C)
|
implementing market conventions applicable to that Replacement Benchmark;
|
(D)
|
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
|
(E)
|
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
(b)
|
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 5 Business Days (unless the Borrower and the Agent agree to a longer time period in relation to any request) of that request being made:
|
(i)
|
its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
|
92
|
|
|
(ii)
|
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
35.5
|
Disenfranchisement of Defaulting Lenders
|
(a)
|
For so long as a Defaulting Lender has any Commitment or participations in the Loans, in ascertaining whether Majority Lenders approval has been obtained for any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender's Available Commitment shall be disregarded; provided that a Defaulting Lender's consent will still be required where any consent, waiver, amendment or other vote under the Finance Documents expressly requires the consent of all Lenders.
|
(b)
|
For the purposes of this Clause 35.5 (Disenfranchisement of Defaulting Lenders), the Agent may assume that the following Lenders are Defaulting Lenders:
|
(i)
|
any Lender which has notified the Agent that it has become a Defaulting Lender;
|
(ii)
|
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a) or (b) of the definition of "Defaulting Lender" has occurred,
|
35.6
|
Replacement of a Defaulting Lender
|
(a)
|
The Borrower may, at any time a Lender has become and continues to be a Defaulting Lender, by giving at least 5 Business Days' prior written notice to the Agent and such Lender:
|
(i)
|
replace such Lender by requiring such Lender to (and such Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement;
|
(ii)
|
require such Lender to (and such Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of the undrawn Commitment of the Lender; or
|
(iii)
|
require such Lender to (and such Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations in respect of the Facility,
|
93
|
|
|
(b)
|
Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause shall be subject to the following conditions:
|
(i)
|
the Borrower shall have no right to replace the Agent;
|
(ii)
|
the Defaulting Lender shall not have any obligation to the Borrower to find a Replacement Lender;
|
(iii)
|
the transfer must take place no later than 15 Business Days after the notice referred to in paragraph (a) above; and
|
(iv)
|
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents.
|
36.
|
CONFIDENTIALITY
|
36.1
|
Confidential Information
|
36.2
|
Disclosure of Confidential Information
|
(a)
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, service providers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b)
|
to any person:
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially
|
94
|
|
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(iii)
|
appointed by any Finance Party or by a person to whom sub-paragraph (b)(i) or (b)(ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (b)(i) or (b)(ii) above;
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
(vii)
|
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 24.6 (Security over Lenders' rights);
|
(viii)
|
who is an insurer or insurance broker of, or direct or indirect provider of credit protection to that Finance Party or any of its Affiliates or its brokers;
|
(ix)
|
who is a Party; or
|
(x)
|
with the consent of the Borrower;
|
(A)
|
in relation to sub-paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B)
|
in relation to sub-paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a
|
95
|
|
|
(C)
|
in relation to sub-paragraphs (b)(v), (b)(vi), (b)(vii) and (b)(viii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c)
|
to any person appointed by that Finance Party or by a person to whom sub-paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Finance Party;
|
(d)
|
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors; and
|
(e)
|
to any financial information agency such information as may be necessary (but limited to the: names of the Obligors, the country of domicile of the Obligors, the place of incorporation of the Obligors, the sector and business type of the Obligors, the date and governing law of this Agreement, the names of the Agent and the Arrangers, the amount of the Total Commitments, the purpose for which the amounts that have been borrowed under the Facility will be applied, the currency of the Facility, the type of the Facility and the Termination Date of the Facility) for the purpose of such financial information agency compiling league table data in relation to transactions and participants. The Parties acknowledge and agree that any such league table data compiled by a financial information agency may be disclosed to users of its service in accordance with the standard terms and conditions of that financial information agency.
|
36.3
|
Disclosure to numbering service providers
|
(a)
|
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:
|
96
|
|
|
(i)
|
names of Obligors;
|
(ii)
|
country of domicile of Obligors;
|
(iii)
|
place of incorporation of Obligors;
|
(iv)
|
date of this Agreement;
|
(v)
|
the date of each amendment and restatement of this Agreement;
|
(vi)
|
Clause 40 (Governing Law);
|
(vii)
|
the names of the Agent and the Arrangers;
|
(viii)
|
date of each amendment and restatement of this Agreement;
|
(ix)
|
amount of Total Commitments;
|
(x)
|
currency of the Facility;
|
(xi)
|
type of Facility;
|
(xii)
|
ranking of Facility;
|
(xiii)
|
Final Maturity Date for Facility;
|
(xiv)
|
changes to any of the information previously supplied pursuant to sub-paragraphs (i) to (xi) above; and
|
(xv)
|
such other information agreed between such Finance Party and the Borrower,
|
(b)
|
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c)
|
The Borrower represents that none of the information set out in sub-paragraphs (a)(i) to (a)(xiii) above is, nor will at any time be, unpublished price-sensitive information.
|
(d)
|
The Agent shall notify the Borrower and the other Finance Parties of:
|
(i)
|
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and
|
97
|
|
|
(ii)
|
the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider.
|
36.4
|
Entire agreement
|
36.5
|
Inside information
|
36.6
|
Notification of disclosure
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (b)(v) of Clause 36.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 36.
|
36.7
|
Continuing obligations
|
(a)
|
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b)
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
37.
|
CONFIDENTIALITY OF REFERENCE BANK QUOTATIONS
|
37.1
|
Confidentiality and disclosure
|
(a)
|
The Agent agrees to keep each Reference Bank Quotation confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.
|
98
|
|
|
(b)
|
The Agent may disclose any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Reference Bank.
|
(c)
|
The Agent may disclose any Reference Bank Quotation to:
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Reference Bank Quotation is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent it is not practicable to do so in the circumstances;
|
(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent it is not practicable to do so in the circumstances; and
|
(iv)
|
any person with the consent of the relevant Reference Bank.
|
(d)
|
The Agent's obligations in this Clause 37 are without prejudice to its obligations to make notifications under Clause 8.4 (Notification of rates of interest) provided that the Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.
|
99
|
|
|
37.2
|
Related obligations
|
(a)
|
The Agent acknowledges that each Reference Bank Quotation is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent undertakes not to use any Reference Bank Quotation for any unlawful purpose.
|
(b)
|
The Agent agrees (to the extent permitted by law and regulation) to inform the relevant Reference Bank:
|
(i)
|
of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 37.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 37.
|
37.3
|
No Event of Default
|
38.
|
CONTRACTUAL RECOGNITION OF BAIL-IN
|
(a)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii)
|
a cancellation of any such liability; and
|
(b)
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
39.
|
COUNTERPARTS
|
100
|
|
|
40.
|
GOVERNING LAW
|
41.
|
ENFORCEMENT
|
41.1
|
Jurisdiction
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity) or any non-contractual obligations arising out of or in connection with this Agreement (a "Dispute").
|
(b)
|
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
(c)
|
The Borrower waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Clause 41.1 any special exemplary, punitive or consequential damages.
|
(d)
|
Notwithstanding paragraph (a) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
41.2
|
Service of process
|
(a)
|
irrevocably appoints Bunge Corporation Limited, (company number 03132265, Room 113, 65 London Wall, London EC2M 5TU) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(b)
|
agrees that failure by a process agent to notify the Borrower of the process will not invalidate the proceedings concerned.
|
101
|
|
|
1.
|
Applicable Margin
|
(a)
|
Subject to the other provisions of this Schedule, the Applicable Margin is 0.60 per cent. per annum unless:
|
(i)
|
an Event of Default has occurred and is continuing and/or neither an Applicable Moody's Rating nor an Applicable S&P Rating is available, in which case the Applicable Margin shall be 1.30 per cent. per annum; or
|
(ii)
|
Moody's are publishing an Applicable Moody's Rating and/or S&P are publishing an Applicable S&P Rating, in which case the Applicable Margin is the percentage rate per annum that corresponds to that rating, as in effect from time to time as set out in the following table:
|
(b)
|
If the Applicable Moody's Rating and the Applicable S&P Rating appear on different lines of the table at paragraph (a) of this Clause 1, the Applicable Margin will be determined as follows:
|
(i)
|
if there is a split Rating of one notch, the Applicable Margin shall be the average of the Applicable Margin of the two notches;
|
(ii)
|
if there is a split Rating of two notches, the Applicable Margin shall be the Applicable Margin for the intermediate notch;
|
(iii)
|
if there is a split rating of more than two notches, the Applicable Margin should be average of the Applicable Margin of the two notches; and
|
(iv)
|
if only one of the Rating Agencies has provided an Applicable Rating then the Applicable Margin shall be calculated by assuming that the Rating Agency that did not provide an Applicable Rating would provide an Applicable Rating two notches below the Applicable Rating that was provided.
|
102
|
|
|
(c)
|
Any change to the Applicable Margin in respect of any change in rating pursuant to this Clause 1 shall take effect on the first Business Day after the announcement of the change in rating by the relevant Rating Agency.
|
(d)
|
If the long term unsecured debt ratings service provided by S&P or Moody's ceases to be available, the Agent can, after consultation with the Borrower and the Lenders, specify an alternative provider of an equivalent service for the purposes of calculating the Applicable Margin.
|
2.
|
Sustainability Adjustments
|
(a)
|
The Applicable Margin shall be reduced by 0.5 basis points per annum for each Sustainability Performance Target (as detailed in the Sustainability Benchmark) that has been achieved as demonstrated by the most recently delivered Sustainability Certificate (the "Margin Discount"). The Applicable Margin shall be reduced by an additional 0.5 basis points per annum if the stretch target in respect of Sustainability Performance Target 3 (as detailed in the Sustainability Benchmark) is achieved as demonstrated by the most recently delivered Sustainability Certificate (the "Stretch Discount", together with the Margin Discount, the "Sustainability Discount").
|
(b)
|
The Applicable Margin shall be increased by 0.5 basis points per annum for each Sustainability Performance Target for which the penalty level has been reached as demonstrated by the most recently delivered Sustainability Certificate (the "Sustainability Premium").
|
(c)
|
The Applicable Margin shall be reset (such that it is not subject to any Sustainability Discount or Sustainability Premium) on:
|
(i)
|
if the most recent Sustainability Certificate has been delivered by the relevant Sustainability Certificate Due Date, the date falling 12 months from the date of delivery of the most recent Sustainability Certificate; or
|
(ii)
|
if the most recent Sustainability Certificate has not been delivered by the relevant Sustainability Certificate Due Date, the subsequent Sustainability Certificate Due Date.
|
(d)
|
In the event of:
|
(i)
|
a failure by the Borrower to deliver a Sustainability Certificate by the relevant Sustainability Certificate Due Date; or
|
(ii)
|
the Borrower delivering a Sustainability Certificate which is or proves to have been incorrect or inaccurate in any respect,
|
(A)
|
no Sustainability Discount will be applied to the Applicable Margin; and
|
103
|
|
|
(B)
|
the maximum Sustainability Premium shall be applied to the Applicable Margin,
|
(e)
|
At no point shall the Applicable Margin be:
|
(i)
|
reduced by more than 3.0 basis points per annum as a result of the Sustainability Discount; or
|
(ii)
|
increased by more than 2.5 basis points per annum as a result of the Sustainability Premium.
|
(f)
|
Subject to paragraph (d) above, any change in the Applicable Margin pursuant to this Clause 2 shall become effective on and from the first day of the Interest Period immediately following the date the Agent receives the most recent Sustainability Certificate.
|
(g)
|
No Sustainability Discount or Sustainability Premium shall apply at any time an Event of Default has occurred and is continuing.
|
(h)
|
Subject to paragraph (i) below, for the avoidance of doubt if any Sustainability Certificate does not certify the score of one or more of the Sustainability Performance Targets or does not certify or provide any required third-party verification for any relevant Sustainability Performance Target, the rest of the information in that Sustainability Certificate will still be considered to be valid.
|
(i)
|
If any Sustainability Certificate delivered by the Borrower:
|
(i)
|
does not certify the score of any Sustainability Performance Target; or
|
(ii)
|
does not certify or provide any required third-party verification for any relevant Sustainability Performance Target,
|
(i)
|
no Sustainability Discount will be applied to the Applicable Margin in respect of such Sustainability Performance Target; and
|
(ii)
|
the Sustainability Premium shall be applied to the Applicable Margin in respect of such Sustainability Performance Target.
|
104
|
|
|
Sustainability Performance Targets
|
Baseline 2018
|
Goal
|
Verification
|
||
Target
|
Penalty
|
||||
Sustainability Performance Target 1
|
[***]
|
[***]
|
[***]
2019: [***]
2020: [***]
2021: [***]
|
[***]
2019: [***]
2020: [***]
2021: [***]
|
To be assured by 3rd party in 2021 in respect of the calendar year ending 31 December 2020 and each subsequent year thereafter
|
Sustainability Performance Target 2
|
[***]
|
[***]%
|
≥ [***]% (maintain baseline level)
|
≤ [***]%
|
n/a
|
Sustainability Performance Target 3
|
[***]
|
[***]
|
2019: [***]
2020: [***]
2021: [***]
Stretch:
2019: [***]
2020: [***]
2021: [***]
|
≤ [***]
|
[***]* (current)
Other valid certification: [***]
|
Sustainability Performance Target 4
|
[***]
|
[***]%
|
2019: [***]%
2020: [***]%
2021: [***]%
|
≤ [***]%
|
Verified by [***]
|
Sustainability Performance Target 5
|
[***]
|
[***]%
|
2019: [***]%
2020: [***]%
2021: [***]%
|
≤ [***]%
|
Verified by [***]
|
1.
|
The Borrower may change the identity of (or, in the case of Sustainability Performance Target 1 only, appoint) any third-party verification provider with the prior written consent of the Sustainability Co-ordinators (which consent shall not be unreasonably withheld).
|
2.
|
In respect of Sustainability Performance Target 3, a list of certificate numbers (not the actual certificate) will be provided as part of the Sustainability Certificate.
|
105
|
|
|
106
|
|
|
Name of Original Lender
|
Commitment (US$)
|
ABN AMRO Bank N.V.
|
55,000,000
|
BNP Paribas
|
55,000,000
|
Crédit Agricole Corporate and Investment Bank
|
55,000,000
|
HSBC France
|
55,000,000
|
ING Bank N.V.
|
55,000,000
|
Australia and New Zealand Banking Group Limited
|
50,000,000
|
Bank of Montreal
|
50,000,000
|
MUFG Bank Ltd., London Branch
|
50,000,000
|
Citibank, N.A., London Branch
|
50,000,000
|
Deutsche Bank Luxembourg S.A.
|
50,000,000
|
Industrial and Commercial Bank of China Limited, New York Branch
|
50,000,000
|
Mizuho Bank (USA)
|
50,000,000
|
Natixis
|
50,000,000
|
Coöperatieve Rabobank U.A. (Rabobank)
|
50,000,000
|
Société Générale
|
50,000,000
|
Standard Chartered Bank
|
50,000,000
|
U.S. Bank National Association
|
50,000,000
|
UniCredit Bank AG, New York Branch
|
50,000,000
|
Wells Fargo Bank, National Association
|
50,000,000
|
Bank of China (New York Branch)
|
80,000,000
|
Banco Santander, S.A., New York Branch
|
40,000,000
|
Sumitomo Mitsui Banking Corporation, NY Branch
|
40,000,000
|
Barclays Bank PLC
|
40,000,000
|
Commerzbank AG, New York Branch
|
40,000,000
|
Credit Suisse AG, Cayman Islands Branch
|
40,000,000
|
Intesa Sanpaolo Bank Luxembourg S.A. - Amsterdam Branch
|
40,000,000
|
Truist Bank
|
40,000,000
|
Zürcher Kantonalbank
|
40,000,000
|
Banco Bilbao Vizcaya Argentaria S.A., New York Branch
|
30,000,000
|
DBS Bank Ltd.
|
40,000,000
|
KfW IPEX-Bank GmbH
|
30,000,000
|
Oversea-Chinese Banking Corporation Limited, New York Agency
|
30,000,000
|
PNC Bank National Association
|
30,000,000
|
Agricultural Bank of China Ltd., New York Branch
|
25,000,000
|
Banco do Brasil S.A., New York Branch
|
30,000,000
|
Abanca Corporacion Bancaria S.A.
|
35,000,000
|
DZ Bank AG Deutsche Zentral-Genossenschaftsbank New York Branch
|
25,000,000
|
Erste Group Bank AG, London Branch
|
25,000,000
|
KBC Bank NV Nederland
|
25,000,000
|
Landesbank Baden-Württemberg
|
25,000,000
|
Westpac Banking Corporation
|
25,000,000
|
TOTAL
|
1,750,000,000
|
107
|
|
|
1.
|
Obligors
|
(a)
|
A copy of the constitutional documents of each Obligor or, in the case of the Borrower, a copy of the articles of association (statuten) and deed of incorporation (oprichtingsakte) as well as an extract (uittreksel) from the Dutch Chamber of Commerce (Kamer van Koophandel) of the Borrower.
|
(b)
|
A copy of a resolution of the board of directors of each Obligor:
|
(i)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(ii)
|
if applicable, authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(iii)
|
if applicable, authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
(c)
|
To the extent required under Dutch law or Borrower’s articles of association, a copy of the resolution of the general meeting (algemene vergadering) of the Borrower approving the resolutions of the board of managing directors referred to under paragraph (b) above.
|
(d)
|
To the extent required under Dutch law or Borrower’s articles of association, a copy of the resolution of the board of supervisory directors (raad van commissarissen) of the Borrower approving the resolutions of the board of managing directors referred to under paragraph (b) above.
|
(e)
|
If applicable, a copy of (i) the request for advice from each (central or European) works council (centrale of Europese) ondernemingsraad) with jurisdiction over the transactions contemplated by this Agreement and (ii) the positive advice from such works council which contains no condition, which if complied with, could result in a breach of any of the Finance Documents.
|
(f)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above in relation to the Finance Documents.
|
(g)
|
A certificate of each Obligor (signed by a Responsible Officer) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not violate any borrowing or, guaranteeing limit set forth in any Contractual Obligation or Requirement of Law binding on the respective Obligor.
|
(h)
|
A certificate of an authorised signatory of the Obligor certifying that each copy document relating to it specified in this Schedule 4 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
108
|
|
|
2.
|
Legal opinions
|
(a)
|
A legal opinion of Clifford Chance LLP, legal advisers to the Arrangers and the Agent as to matters of English law, opining notably as to the validity under English law of the obligations of the Borrower under this Agreement.
|
(b)
|
A legal opinion of Clifford Chance LLP, legal advisers to the Arrangers and the Agent as to matters of Dutch law, opining notably as to (i) the capacity of the Borrower to enter into and perform its obligations under the Finance Documents, (ii) the recognition under Dutch law of the validity of such obligations of the Borrower under this Agreement and (iii) the recognition and enforcement in The Netherlands of any judgement rendered against the Borrower pursuant to the jurisdiction provisions of the Finance Documents.
|
(c)
|
A legal opinion of Conyers Dill & Pearman Limited, special legal counsel to the Parent as to matters of Bermuda law, opining notably as to (i) the capacity of the Parent to enter into and perform its obligations under the Parent Guarantee, (ii) the recognition under Bermuda law of the validity of such obligations and the choice of law expressed in the Parent Guarantee and (iii) the recognition and enforcement in Bermuda of any judgement rendered against the Parent pursuant to the jurisdiction provisions of the Parent Guarantee.
|
(d)
|
A legal opinion of Reed Smith LLP, legal advisor to the Parent as to matters of New York law, opining notably as to the validity under New York law of the obligations of the Parent under the Parent Guarantee.
|
(e)
|
A legal opinion of Reed Smith LLP, legal advisor to the Borrower as to matters of New York law, opining notably as to the enforceability of the Transaction Documents.
|
3.
|
Other documents and evidence
|
(a)
|
One signed original of the Parent Guarantee.
|
(b)
|
Delivery of a copy of each of the Transaction Documents.
|
(c)
|
Evidence that any process agent referred to in Clause 41.2 (Service of process), has accepted its appointment.
|
(d)
|
A certificate of the Parent confirming the prevalent Ratings in respect of the Parent on the date of this Agreement.
|
(e)
|
The latest annual consolidated audited and certified financial statements of the Parent.
|
(f)
|
Evidence that the 2014 Facility has been, or will have been on or by the first Utilisation Date, unconditionally and irrevocably prepaid or repaid and cancelled in full.
|
(g)
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
|
109
|
|
|
(h)
|
A copy of any other document, authorisation, opinion or assurance reasonably requested by the Agent.
|
110
|
|
|
1.
|
This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2.
|
We wish to borrow a Loan on the following terms:
|
Proposed Utilisation Date:
|
[•] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
[•] or, if less, the Available Facility
|
Interest Period:
|
[•]
|
3.
|
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
|
4.
|
[This Loan is to be made in [whole]/[part] for the purpose of refinancing [identify maturing Loan]. / [The proceeds of this Loan should be credited to [account]].
|
5.
|
This Utilisation Request is irrevocable.
|
111
|
|
|
From:
|
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
|
1.
|
This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2.
|
We refer to Clause 24.5 (Procedure for transfer):
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 24.5 (Procedure for transfer).
|
(b)
|
The proposed Transfer Date is [•].
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 31.2 (Addresses) are set out in the Schedule.
|
3.
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders).
|
4.
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5.
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
112
|
|
|
[Existing Lender]
|
[New Lender]
|
By:
|
By
|
This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [•].
|
|
ABN AMRO BANK N.V.
|
|
113
|
|
|
|
Loans in dollars
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)
|
U-3
4:00 p.m. Amsterdam time
|
Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders' participation)
|
U-3
6:00 p.m. Amsterdam time
|
LIBOR
|
Quotation Day as of 11:00 a.m. London time
|
114
|
|
|
From:
|
Bunge Finance Europe B.V. as Borrower, [•] (the "Accordion Lenders") and [•] (the "New Accordion Lenders")
|
1.
|
This is an Accordion Increase Certificate. Terms defined in the Agreement have the same meaning in this Accordion Increase Certificate unless given a different meaning in this Accordion Increase Certificate.
|
2.
|
We refer to Clause 2.2 (Accordion Increase) of the Agreement:
|
(a)
|
Each Additional Commitment Lender agrees to provide the Additional Commitment as set out in the Schedule opposite its name and in accordance with paragraphs (g) and (h) of Clause 2.2 (Accordion Increase).
|
(b)
|
The proposed Accordion Increase Date is [•]1.
|
(c)
|
The Facility Office and address, fax number and attention details for notices of each New Accordion Lender for the purposes of Clause 31.2 (Addresses) are set out in the Schedule.
|
3.
|
This Accordion Increase Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Accordion Increase Certificate.
|
4.
|
This Accordion Increase Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
115
|
|
|
Accordion Lender/New Accordion Lender
|
Additional Commitment
|
Total Commitment
|
[•]
|
[•]
|
[•]
|
[Accordion Lenders]
|
[New Accordion Lenders]
|
By:
|
By:
|
By:
|
By:
|
By:
|
By:
|
|
|
Bunge Finance Europe B.V. as Borrower
|
|
By:
|
|
This Accordion Increase Certificate is accepted by the Agent and the Accordion Increase Date is confirmed as [•].
|
|
ABN AMRO BANK N.V.
|
|
116
|
|
|
To:
|
ABN AMRO Bank N.V as Agent
|
1.
|
We refer to the Agreement. This is a Sustainability Certificate. Terms defined in the Agreement have the same meaning in this Sustainability Certificate.
|
2.
|
In relation to the Borrower's Sustainability Performance Target scores for the calendar year ending 31 December [·], it is hereby certified:
|
117
|
|
|
3.
|
The associated verifications in respect of the scores for each of the Sustainability Performance Targets are appended to this Sustainability Certificate.
|
4.
|
Based on the above scores, a [Sustainability Discount / Sustainability Premium] of [·]% shall be applied to the Applicable Margin, such that the Applicable Margin shall be [·]% commencing on the first day of the Interest Period immediately following the date of this Sustainability Certificate and ending on the Sustainability Certificate Due Date of the following year.
|
118
|
|
|
119
|
|
|
120
|
|
|
|
||
|
Exhibit 10.2
|
||
|
|
||
|
|||
AMENDMENT AND RESTATEMENT AGREEMENT
DATED 16 DECEMBER 2019
FOR
BUNGE FINANCE EUROPE B.V.
THE BORROWER
WITH
ABN AMRO BANK N.V., BNP PARIBAS AND ING BANK N.V.
AS CONTINUING ARRANGERS
AND
HSBC FRANCE, NATIXIS AND SUMITOMO MITSUI BANKING CORPORATION
AS ACCEDING ARRANGERS
AND
ABN AMRO BANK N.V.
ACTING AS AGENT
|
|||
|
RELATING TO A FACILITY AGREEMENT
DATED 12 DECEMBER 2017
|
|
|
|
|
|
CONTENTS
|
|
Clause
|
Page
|
1.
|
Definitions and Interpretation 2
|
2.
|
Representations 3
|
3.
|
Amendment and Restatement 3
|
4.
|
Arrangers and Lenders 4
|
5.
|
Continuity and Further Assurance 4
|
6.
|
Fees, Costs and Expenses 5
|
7.
|
Miscellaneous 5
|
8.
|
Governing Law 5
|
Schedule 1 The Lenders
|
6
|
Schedule 2 Conditions Precedent
|
9
|
Schedule 3 Restated Agreement
|
12
|
|
i
|
|
(1)
|
BUNGE FINANCE EUROPE B.V. a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands having its corporate seat (statutaire zetel) in Rotterdam, The Netherlands and its registered office at 1391 Timberlake Manor Parkway, Chesterfield, Missouri 63017, United States of America and registered with the Dutch Commercial Register (Handelsregister) under number 24347428 (the "Borrower");
|
(2)
|
ABN AMRO BANK N.V., BNP PARIBAS and ING BANK N.V. (whether acting individually or together the "Continuing Arrangers");
|
(3)
|
HSBC FRANCE, NATIXIS and SUMITOMO MITSUI BANKING CORPORATION (whether acting individually or together the "Acceding Arrangers");
|
(4)
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK and HSBC BANK PLC (whether acting individually or together the "Retiring Arrangers");
|
(5)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as the continuing lenders (the "Continuing Lenders");
|
(6)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as the new lenders (the "New Lenders");
|
(7)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as the departing lenders (the "Departing Lenders");
|
(8)
|
ABN AMRO BANK N.V., BNP PARIBAS, NATIXIS and COÖPERATIEVE RABOBANK U.A. (RABOBANK) (the "Sustainability Co-ordinators"); and
|
(9)
|
ABN AMRO BANK N.V. as agent of the other Finance Parties (the "Agent").
|
(A)
|
This Agreement is supplemental to and amends and restates the Original Facility Agreement (as defined below).
|
(B)
|
The Parties have agreed to amend and restate the Original Facility Agreement on the terms of this Agreement.
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
1
|
|
1.2
|
Incorporation of defined terms
|
(a)
|
Unless a contrary indication appears, a term defined in the Amended Facility Agreement has the same meaning in this Agreement.
|
(b)
|
The principles of construction set out in clauses 1.2 (Construction) and 1.3 (Currency Symbols and Definitions) of the Amended Facility Agreement shall have effect as if set out in this Agreement.
|
1.3
|
Clauses
|
1.4
|
Third party rights
|
1.5
|
Designation
|
2.
|
REPRESENTATIONS
|
(a)
|
the date of this Agreement; and
|
(b)
|
the Effective Date,
|
2
|
|
3.
|
AMENDMENT AND RESTATEMENT
|
3.1
|
Restatement of the Original Facility Agreement
|
3.2
|
Effective Date
|
(a)
|
The Agent will notify the Borrower, the Continuing Lenders, the New Lenders and the Departing Lenders promptly when all the conditions precedent listed in Schedule 2 (Conditions Precedent) have been fulfilled to its satisfaction.
|
(b)
|
If the Effective Time has not occurred by 23:59 (London time) on 17 December 2019 (or any later date which the Agent and the Borrower may agree), then Clause 3.1 (Restatement of Original Facility Agreement) will lapse and none of the amendments to the Original Facility Agreement will take effect.
|
3.3
|
Commitments
|
4.
|
ARRANGERS AND LENDERS
|
4.1
|
Arrangers
|
4.2
|
New Lenders
|
(a)
|
At the Effective Time:
|
(i)
|
each New Lender becomes a Party to the Amended Facility Agreement as a "Lender" with the Commitments set out opposite its name in the Amended Commitment Schedule, and it will obtain all of the rights, and undertakes to perform all obligations, of a Lender under the Finance Documents with such Commitments;
|
3
|
|
(ii)
|
the Commitments of each Departing Lender shall be zero and each Departing Lender will cease to be a Lender under the Amended Facility Agreement; and
|
(iii)
|
each of the Agent, the Departing Lenders, the New Lenders and the Continuing Lenders agree that each Departing Lender's Commitments (as defined in the Original Facility Agreement), rights and obligations will be deemed to have been transferred by novation in accordance with clause 25.5 (Procedure for transfer) of the Original Facility Agreement to the extent necessary to give effect to paragraphs (i) and (ii) above, and Clause 3.3 (Commitments).
|
(b)
|
Each New Lender confirms that it has delivered to the Agent its Facility Office details and address, fax number and attention details for the purposes of clause 31 (Notices) of the Amended Facility Agreement.
|
(c)
|
Clause 25.3 (Assignment or transfer fee) of the Original Facility Agreement shall not apply to transactions described in this Clause 4.2.
|
5.
|
CONTINUITY AND FURTHER ASSURANCE
|
5.1
|
Continuing obligations
|
5.2
|
Reservation of rights
|
5.3
|
Further assurance
|
6.
|
FEES, COSTS AND EXPENSES
|
6.1
|
Fee Letters
|
6.2
|
Transaction expenses
|
4
|
|
7.
|
MISCELLANEOUS
|
7.1
|
Incorporation of terms
|
7.2
|
Counterparts
|
8.
|
GOVERNING LAW
|
5
|
|
6
|
|
7
|
|
8
|
|
1.
|
Obligors
|
(a)
|
A copy of the constitutional documents of each Obligor or, in the case of the Borrower, a copy of the articles of association (statuten) and deed of incorporation (oprichtingsakte) as well as an extract (uittreksel) from the Dutch Chamber of Commerce (Kamer van Koophandel) of the Borrower or a certificate of an authorised signatory of the relevant Obligor certifying that the constitutional documents previously delivered to the Agent for the purposes of the Original Facility Agreement have not been amended and remain in full force and effect.
|
(b)
|
A copy of a resolution of the board of directors of each Obligor:
|
(i)
|
approving the terms of, and the transactions contemplated by this Agreement, the Amended and Restated Guaranty and the Finance Documents to which it is a party and resolving that it execute this Agreement, the Amended and Restated Guaranty and the Finance Documents to which it is a party; and
|
(ii)
|
if applicable, authorising a specified person or persons to execute this Agreement, the Amended and Restated Guaranty and the Finance Documents to which it is a party on its behalf.
|
(c)
|
To the extent required under Dutch law or the Borrower’s articles of association, a copy of the resolution of the general meeting (algemene vergadering) of the Borrower approving the resolutions of the board of managing directors referred to under paragraph (b) above.
|
(d)
|
To the extent required under Dutch law or the Borrower’s articles of association, a copy of the resolution of the board of supervisory directors (raad van commissarissen) of the Borrower approving the resolutions of the board of managing directors referred to under paragraph (b) above.
|
(e)
|
If applicable, a copy of (i) the request for advice from each (central or European) works council (centrale of Europese) ondernemingsraad) with jurisdiction over the transactions contemplated by this Agreement and (ii) the positive advice from such works council which contains no condition, which if complied with, could result in a breach of any of the Finance Documents.
|
(f)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above in relation to this Agreement.
|
(g)
|
A certificate of each Obligor (signed by a Responsible Officer) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not violate any borrowing or, guaranteeing limit set forth in any Contractual Obligation or Requirement of Law binding on the respective Obligor.
|
9
|
|
(h)
|
A certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Effective Date.
|
2.
|
Finance Document
|
(a)
|
A copy of this Agreement executed by the Parties thereto.
|
(b)
|
A copy of the Amended and Restated Guaranty executed by the Parties thereto.
|
(c)
|
A copy of the relevant Fee Letters executed by the Parties thereto.
|
3.
|
Legal opinions
|
(a)
|
A legal opinion of Clifford Chance LLP, legal advisers to the Arrangers and the Agent as to matters of English law, opining notably as to the validity under English law of the obligations of the Borrower under this Agreement.
|
(b)
|
A legal opinion of Clifford Chance LLP, legal advisers to the Arrangers and the Agent as to matters of Dutch law, opining notably as to (i) the capacity of the Borrower to enter into and perform its obligations under this Agreement, (ii) the recognition under Dutch law of the validity of such obligations of the Borrower under this Agreement and (iii) the recognition and enforcement in The Netherlands of any judgement rendered against the Borrower pursuant to the jurisdiction provisions of this Agreement.
|
(c)
|
A legal opinion of Conyers Dill & Pearman Limited, special legal counsel to the Parent as to matters of Bermuda law, opining notably as to (i) the capacity of the Parent to enter into and perform its obligations under the Amended and Restated Guaranty, (ii) the recognition under Bermuda law of the validity of such obligations and the choice of law expressed in the Amended and Restated Guaranty and (iii) the recognition and enforcement in Bermuda of any judgement rendered against the Parent pursuant to the jurisdiction provisions of the Amended and Restated Guaranty.
|
(d)
|
A legal opinion of Reed Smith LLP, legal advisor to the Parent as to matters of New York law, opining notably as to the validity under New York law of the obligations of the Parent under the Amended and Restated Guaranty.
|
(e)
|
A legal opinion of Reed Smith LLP, legal advisor to the Borrower as to matters of New York law, opining notably as to the enforceability of the Transaction Documents.
|
4.
|
Other documents and evidence
|
(a)
|
Delivery of a copy of each of the Transaction Documents or a certificate of an authorised signatory of the Borrower certifying that the Transaction Documents previously delivered to the Agent by the Borrower for the purposes of the Original Facility Agreement have not been amended and remain in full force and effect.
|
10
|
|
(b)
|
A certificate of the Parent confirming the prevalent Ratings in respect of the Parent as at the Effective Date.
|
(c)
|
The latest annual consolidated audited and certified financial statements of the Parent.
|
(d)
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to the Original Facility Agreement, Clause 6 (Fees, Costs and Expenses) of this Agreement or any Fee Letter have been paid or will be paid by the Effective Date.
|
(e)
|
Evidence that any process agent referred to in clause 41.2 (Service of process) of the Amended Facility Agreement has accepted its appointment.
|
(f)
|
A copy of any other document, authorisation, opinion or assurance reasonably requested by the Agent.
|
11
|
|
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
3
|
|
|
4
|
|
|
5
|
|
|
6
|
|
|
7
|
|
|
8
|
|
|
9
|
|
|
10
|
|
(A)
|
a Restricted Party;
|
(B)
|
a Person owned 50% or more or controlled by, or acting on behalf of, any Restricted Party; or
|
(C)
|
a Person that commits, threatens or conspires to commit or support “terrorism” as defined in the Executive Order.
|
|
11
|
|
|
12
|
|
|
13
|
|
|
14
|
|
|
15
|
|
|
16
|
|
|
17
|
|
|
18
|
|
|
19
|
|
|
20
|
|
|
21
|
|
|
22
|
|
|
23
|
|
|
24
|
|
|
1
|
|
|
1
|
|
|
1
|
|
Name
|
|
|
Percentage Directly or
Indirectly Owned by BL
|
Bunge Limited
|
|
|
--
|
Bunge Global Markets Inc.
|
|
|
100%
|
Bunge N.A. Holdings, Inc.
|
|
|
100%
|
Bunge North America, Inc.
|
|
|
100%
|
Koninklijke Bunge B.V.
|
|
|
100%
|
Bunge Alimentos S.A.
|
|
|
100%
|
Bunge Argentina S.A.
|
|
|
100%
|
Bunge S.A.
|
|
|
100%
|
Bunge Fertilizantes S.A. (Brazil)
|
|
|
100%
|
Bunge International Commerce Ltd.
|
|
|
100%
|
Bunge Trade Limited (successor to Bunge Fertilizantes International Limited)
|
|
|
100%
|
|
|
|
|
|
1
|
|
|
SV-1
|
|
|
SVI-1
|
|
|
1
|
|
|
2
|
|
|
3
|
|
|
4
|
|
Agent:
|
|
ABN AMRO BANK N.V.
Agency Desk – Syndicated Loans (HQ 8042)
Attention: M. Meijer
Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands
PO Box 283, 1000 EA Amsterdam, The Netherlands
Tel. No: +31 10 4016047
Telecopy No.: +31.20.628 69 85
|
Guarantor:
|
|
BUNGE LIMITED
11720 Borman Drive
St. Louis, Missouri 63146
Attention: Treasurer
Tel. No: (914) 684-3442
Telecopy No.: (914) 684-3283
|
|
5
|
|
(b)
|
on the "Specially Designated Nationals and Blocked Persons" list maintained by OFAC; or
|
|
6
|
|
(c)
|
in any successor list to either of the foregoing.
|
|
7
|
|
Investor Contact:
|
Ruth Ann Wisener
|
|
Bunge Limited
|
|
914-684-3273
|
|
ruthann.wisener@bunge.com
|
|
|
Media Contact:
|
Bunge News Bureau
|
|
Bunge Limited
|
|
914-659-9209
|
|
news@bunge.com
|