Exhibit 10.ii.d.
Date: August 08, 2002
To
Cargill Fertilizantes S/A.,
Avenida Morumbi, 8234, Sao Paulo,
SP
Federative Republic of
Brazil
Master Agency
Agreement
Convertibility Enhanced Note
Issuance Program
Dear Sirs:
We hereby agree to, act as the Issuing,
Placement and Paying Agent (hereinafter, the “Agent”),
in respect of the issuance of various fixed rate notes
(hereinafter, the “Notes”) by CARGILL FERTILIZANTES
S.A., a Brazilian corporation established at Avenida Morumbi, 8234,
in the city of Sao Paulo, State of Sao Paulo (hereinafter, the
“Issuer”), up to the total principal amount of USD
100,000,000, pursuant to Brazilian Central Bank Circular No. 3027,
of February 22, 2001, and subject to the following:
01. Under this Master Agency
Agreement, the principal terms and conditions of the Convertibility
Enhanced Note Issuance Program applying to all Notes to be issued
hereunder are set forth in Schedule A attached hereto, and the
specific terms and conditions of each Note will be detailed in each
Notice to the Agent substantially in the form of Schedule C
hereto.
02. Subject to the receipt by the
Agent, from time to time during the term hereof, of written Notice
to the Agent from the Issuer, specifying all terms and conditions
specifically applying to each such Note(s) and including the date
of issue, which date shall be at least one Business Day after the
date of receipt by the Agent of such instructions, the Agent will
issue, authenticate, and deliver to each relevant Note Purchaser
the Notes in the aggregate principal amount of the issue
substantially in the form attached hereto as Schedule B. For the
purposes of this Master Agreement, “Business Day” shall
mean any day on which banks are open for business in the cities of
London, New York, and Sao Paulo, Brazil. In the event any payment
to be made hereunder shall be scheduled for a day that is not a
Business Day, such payment shall be made on the Business Day
immediately following such scheduled payment date.
03. Except as provided for in
section 6 below, the Issuer shall pay all amounts of principal and
interest on the Notes, as well as any amounts owing hereunder, to
the Agent at its account No. 38490869 with Citibank NA, New York,
on the Business Day on which such amounts fall due.
Page 1 of 11
04. Any or all of the Notes may be
sold, transferred or endorsed at any time, or from time to time by
the Note Purchaser prior to their respective maturity to a new
purchaser, with notice to the Agent, subject to the new Note
Purchaser’s acknowledgement in writing to the Agent, prior to
any sale or transfer of the Notes, of its acceptance of the terms
and conditions of this Agency Agreement.
05. The Issuer shall pay all stamp
and other documentary taxes, fees or duties, if any, to which this
Agreement or the issue of any Notes may be subject to and shall
indemnify the Agent against any claim, demand, action, liability,
damages, costs, loss or expense (including, without limitation,
legal fees and any applicable value added tax) which the Agent may
incur as a result or arising out of or in relation to any failure
to pay or delay in paying any of the same. All payments of
principal or interest on the Notes, as well as all payments to be
made to the Agent hereunder, shall be made without set-off,
counterclaim, fees, liabilities or similar deductions, and free and
clear of, and without deduction or withholding for, taxes, levies,
duties or charges of any nature now or hereafter imposed, levied,
collected, withheld or assessed in any jurisdiction through or from
which such payments are made or any political subdivision or taxing
authority thereof or therein (“Taxes”). If the Issuer
or any agent thereof is required by law or regulation to make any
deduction or withholding for or on account of Taxes, the Issuer
shall pay such additional amounts as shall be necessary in order
that the net amounts received by the Agent after such deduction or
withholding shall equal the amount which would have been receivable
hereunder or under the Notes in the absence of such deduction or
withholding, and as soon as practicable after the date of any
payment of taxes or required deductions, the Issuer will furnish to
the Agent the original or a certified copy of a receipt evidencing
payment thereof.
06. Under this Convertibility
Enhanced Note Issuance Program, the Notes will be issued with the
support of a Convertibility Support and Escrow Agreement. Upon the
occurrence of a default in payment of a Note by the Issuer, whether
at the Note’s original maturity or at an accelerated maturity
as a result of the exercise of a call or put option, as a result of
a Convertibility Event where a “Convertibility Event”
shall mean the failure of any Governmental Authority of Brazil, as
defined in the Convertibility Support and Escrow Agreement, to
approve or permit the exchange of Reais for U.S. Dollars to repay
the Convertibility Enhanced Notes (including, without limitation,
the inability to repay the Convertibility Enhanced Notes due to the
promulgation, operation or enforcement by any relevant Brazilian
Governmental Authority of any law, act, decree, regulation,
ordinance, order, policy or determination or modification of, or
change in the interpretation of any the foregoing, an effect of
which (i) restricts the exchange of Reais for U.S. Dollars, (ii)
prevents the transfer of U.S. Dollars outside of Brazil, or (iii)
makes U.S. Dollars generally unavailable in any legal exchange
market in Brazil), the Notes will be repaid through the collection
of export receivables in an offshore escrow account to be opened
and maintained with an escrow agent.
06.1. Exclusively upon the
occurrence of a Convertibility Event and the receipt of a written
request from the Agent in the form of Schedule D, Issuer will
conclude a Convertibility Support and Escrow Agreement
substantially in the form of Schedule E
Page 2 of 11
with Cargill Financial Services International,
Inc. as the Escrow Agent on behalf of the Note Purchasers under
which agreement the Issuer unconditionally and irrevocably agrees
that the proceeds of its Export Receivables under an Off-take
Contact with a designated buyer will be assigned and pledged to the
Escrow Agent on behalf of the Note Purchasers and will be paid by
the designated buyer to the Escrow Account with the Escrow Agent
for repayment of the Notes in accordance with Central Bank’s
regulation.
06.2. The original Maturity or
accelerated maturity of the Note(s) as a result of the exercise of
a call or put option shall be extended upon the occurrence of a
Convertibility Event as deemed reasonably necessary by the Agent to
enable Issuer to fulfill its payment obligations under the Note(s)
through the export of goods during shipment windows designated by
the Agent.
07. The Issuer does hereby undertake
to indemnify on demand the Agent, its legal representatives,
officers, directors and controlling persons (hereinafter,
“Indemnified Persons”), and to hold the Indemnified
Persons and each of them harmless against, any losses, liabilities,
costs, expenses, claims, actions or demands which the Agent or any
other of the Indemnified Persons may incur or which may be made
against the Agent or any other of the Indemnified Persons as a
result of or in connection with the appointment or the exercise of
the powers, discretion, authorities and duties of the Agent
hereunder, except such as may result from the Agent’s own
gross negligence or willful misconduct or that of its officers,
employees or agents.
08. The Agent shall cause all
original Notes to be held in custody on behalf of the Note
Purchaser(s). By virtue of this custody and considering that all
payments due under the Notes shall be made to the Agent, the Issuer
may not and do not need to be informed of the name(s) of the Note
Purchaser(s).
09. The parties may terminate this
Agency Agreement at anytime with at least 30 days prior written
notice to the other party. The termination of this Agency Agreement
shall have no effect on the duties, rights and obligations of the
parties in regards to any outstanding Notes.
10. Any notice, request, demand or
communication to be made by either party hereto to the other shall
be made in writing, by facsimile or otherwise, as
follows:
CARGILL FINANCIAL SERVICES
INTERNATIONAL, INC.
12700 Whitewater Drive
Minnetonka, MN, USA 55343
Fax #: 952-984-3926
Page 3 of 11
CARGILL FERTILIZANTES
S.A.
Avenida Morumbi, 8234, Sao Paulo,
SP
04703-002 - Brazil
Fax#: 55-11-5099-3717
or to such other address as either party may
designate by written notice to the other.
11. Except as otherwise provided for
herein, neither of the parties hereto may assign, transfer or
delegate any of its respective rights or obligations hereunder
without the prior written consent of the other.
12. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York, United States of America.
13. This Agreement may be executed
in any number of counterparts and by the different parties hereto
on separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together
shall constitute one and the same instrume
