Thirteenth Amendment to the Receivables Transfer Agreement, dated January 12, 2018, among Bunge Securitization B.V., as Seller, Koninklijke Bunge B.V., as Master Servicer, Bunge Limited, as Performance Undertaking Provider, and Coperatieve Rabobank U.A., as Administrative Agent, Committed Purchaser and Purchaser Agent on behalf of the other Committed Purchasers, the other Purchaser Agents and the Conduit Purchasers
EX-10.12 2 thirteenthamendmentex1012.htm EXHIBIT 10.12 Exhibit
Dated January 12, 2018
(1) BUNGE SECURITIZATION B.V., as Seller
(2) KONINKLIJKE BUNGE B.V., as Master Servicer
(3) COÖPERATIEVE RABOBANK U.A., as Administrative Agent, Committed Purchaser and Purchaser Agent and on behalf of the other Committed Purchasers, the other Purchaser Agents and the Conduit Purchasers
(4) BUNGE LIMITED, as Performance Undertaking Provider
THIRTEENTH AMENDMENT TO THE RECEIVABLES TRANSFER AGREEMENT
Definitions and interpretation 1
Amendment of the Receivables Transfer Agreement 2
Further Assurance 7
Notices, etc 7
Execution in counterparts 7
Governing law; submission to jurisdiction 7
No proceeding; limited recourse 8
THIS THIRTEENTH AMENDMENT TO THE RECEIVABLES TRANSFER AGREEMENT (this “Amendment”) is dated January 12, 2018 and made among:
BUNGE SECURITIZATION B.V., a private limited liability company organized under the laws of the Netherlands, as Seller (the “Seller”);
KONINKLIJKE BUNGE B.V., a private limited liability company organized under the laws of the Netherlands, as Master Servicer (the “Master Servicer”);
COÖPERATIEVE RABOBANK U.A., as Administrative Agent (the “Administrative Agent”), Committed Purchaser and Purchaser Agent and on behalf of the other Committed Purchasers, the other Purchaser Agents, and the Conduit Purchasers; and
BUNGE LIMITED, a company formed under the laws of Bermuda, as Performance Undertaking Provider (the “Performance Undertaking Provider”),
collectively referred to as the “Parties” and each of them a “Party”.
This Amendment is supplemental to and amends the receivables transfer agreement dated June 1, 2011 (as amended and restated on May 26, 2016, as further amended on June 30, 2016, October 11, 2016, May 31, 2017 and October 31, 2017) made among the Parties to this Amendment (the "Receivables Transfer Agreement").
The Parties have agreed to further amend the Receivables Transfer Agreement on the terms set out below.
This Amendment is a Transaction Document as defined in the Receivables Transfer Agreement.
IT IS AGREED that:
DEFINITIONS AND INTERPRETATION
Unless otherwise defined herein, capitalized terms which are used herein shall have the meanings assigned to such terms in Section 1.1 (Certain defined terms) of the Receivables Transfer Agreement. The principles of interpretation set forth in Section 1.2 (Other terms) and Section 1.3 (Computation of time periods) of the Receivables Transfer Agreement shall apply to this Amendment as if fully set forth herein.
AMENDMENT OF THE RECEIVABLES TRANSFER AGREEMENT
With effect from the date hereof, the Receivables Transfer Agreement shall be amended as follows:
(a) In Section 1.1 (Definitions) the definition of "Loss Reserve Floor" shall be deleted and replaced with the following:
“Loss Reserve Floor” means, at any time, the percentage not less than 8.0% and not greater than 15.0% specified by the Master Servicer in the most recent Portfolio Report; provided that the percentage cannot be less than the higher of the Outstanding Balance of all of the Portfolio Receivables relating to Conagra Foods, Inc. or Kraft Heinz Company that qualify as Eligible Receivables at such time, in each case as a percentage of the Outstanding Balance of all of the Portfolio Receivables that qualify as Eligible Receivables at such time.
(b) With effect from the date hereof, the address details of Albion Capital Corporation S.A. in Schedule 1 (Purchaser Groups). shall be deleted and replaced with the following:
"Albion Capital Corporation S.A
6, rue Eugène Ruppert
Grand Duchy of Luxembourg".
All other details in relation to Albion Capital Corporation S.A shall remain the same.
(c) With effect from the date hereof, the address details of Crédit Agricole Corporate and Investment Bank in Schedule 1 (Purchaser Groups) shall be deleted and replaced with the following:
"Crédit Agricole Corporate and Investment Bank
12, Place des Etats-Unis
92547 Montrouge Cedex".
All other details in relation to Crédit Agricole Corporate and Investment Bank shall remain the same.
Each of the Seller, the Master Servicer and the Performance Undertaking Provider represents and warrants to the other Parties hereto that, after giving effect to this Amendment, each of its representations and warranties set forth in the Receivables Transfer Agreement, as such representations and warranties apply to such Person, is true and correct in all material respects on and as of the date hereof as though made on and as of such date except for representations and warranties stated to refer to a specific earlier date, in which case such representations and warranties are true and correct as of such earlier date.
The Parties hereby confirm that the provisions of the Receivables Transfer Agreement and the other Transaction Documents shall continue in full force and effect, subject only to the amendments effected thereto by this Amendment.
The Parties shall, upon request of the Administrative Agent, and at the cost of the Seller, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected by this Amendment. Each of the Parties thereto hereby ratifies and confirms each of the Transaction Documents to which it is a party.
All communications and notices provided for hereunder shall be provided in the manner described in Schedule 2 (Address and Notice Information) to the Receivables Transfer Agreement.
EXECUTION IN COUNTERPARTS
This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or by electronic file in a format that is accessible by the recipient shall be effective as delivery of a manually executed counterpart of this Amendment.
GOVERNING LAW; SUBMISSION TO JURISDICTION
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Amendment. Each party hereto hereby irrevocably waives, to the fullest extent that it may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
NO PROCEEDING; LIMITED RECOURSE
Each of the parties hereto hereby agrees that (i) it will not institute against any Conduit Purchaser any proceeding of the type referred to in the definition of Event of Bankruptcy until there shall have elapsed two years plus one day since the Final Payout Date and (ii) notwithstanding anything contained herein or in any other Transaction Document to the contrary, the obligations of the Conduit Purchasers under the Transaction Documents are solely the corporate obligations of the Conduit Purchasers and shall be payable solely to the extent of funds which are received by the Conduit Purchasers pursuant to the Transaction Documents and available for such payment in accordance with the terms of the Transaction Documents and shall be non-recourse other than with respect to such available funds and, without limiting this Section 11, if ever and until such time as any Conduit Purchaser has sufficient funds to pay such obligation shall not constitute a claim against such Conduit Purchaser.
No recourse under any obligation, covenant or agreement of any Conduit Purchaser contained in this Amendment or any other Transaction Document shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of such Conduit Purchaser by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Amendment and the other Transaction Documents are solely a corporate obligation of such Conduit Purchaser, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of such Conduit Purchaser or any of them under or by reason of any of the obligations, covenants or agreements of such Conduit Purchaser contained in this Amendment or any other Transaction Document, or implied therefrom, and that any and all personal liability for breaches by such Conduit Purchaser of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Amendment; provided that the foregoing shall not relieve any such Person from any liability it might otherwise have as a result of fraudulent actions taken or fraudulent omissions made by them.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year first above written.
BUNGE SECURITIZATION B.V., as Seller
By:/s/ Y.M Theuns, Proxyholder A
Name: Vistra B.V.
By:/s/ Wouter Swierstra, Proxy Holder B
Name: Vistra B.V.
KONINKLIJKE BUNGE B.V., as Master Servicer
By: /s/ A.J. de Lange
Name: A.J. de Lange
By: /s/ J.J. Kloet
Name: J.J. Kloet
BUNGE LIMITED, as Performance Undertaking Provider
By: /s/ David G. Kabbes
Name: David G. Kabbes
Title: Chief Legal Officer
By: /s/ Carla Heiss
Name: Carla Heiss
COÖPERATIEVE RABOBANK U.A., as Administrative Agent, Committed Purchaser and Purchaser Agent, and on behalf of the other Committed Purchasers, the other Purchaser Agents and the Conduit Purchasers
By: /s/ Eugene Van Esveld
Name: Eugene Van Esveld
By: /s/ Jennifer Vervoorn
Name: Jennifer Vervoorn