Exhibit 10.ii.e
[on PhosChem
letterhead]
Date:
To: Cargill Financial Services
International, Inc.,
From: Phosphate Chemicals Export
Association, Inc. (“PhosChem”)
Re: Letter Agreement Concerning the
Participation in International Trade Flows (the
“Agreement”)
Dear Sir,
We, PhosChem are exporters and
distributors of fertilizer products to select countries overseas
and in such capacity are willing to offer certain international
export trades in fertilizer products to India for the participation
by Cargill Financial Services International, Inc. and its related
entity, CFSIT, Inc. (hereinafter “Cargill”), subject to
the following terms:
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1.
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At our
discretion, we will provide you with the opportunity to participate
in our fertilizer export trades to India prior to our purchaser in
India (“ End Buyer ”) clearing the same through
Customs Stations in ports in India (“ Trade Flow
”).
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2.
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Prior to any
export sales to an End Buyer in India being commenced by PhosChem,
PhosChem may notify and seek your interest regarding participation
in such Trade Flow via Email. PhosChem will use its reasonable
efforts to notify you at least thirty (30) days in advance of
the estimated shipment date. You shall thereafter indicate your
consent in writing within ten (10) days to participate in the
nominated Trade Flow.
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3.
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Upon receipt of
your acceptance for participation in the nominated Trade Flow,
PhosChem will proceed to work with you and the relevant End Buyer
to incorporate Cargill’s participation in the Trade Flow,
subject to compliance with any applicable law. You will inform
PhosChem of your documentation requirements at least seven
(7) days prior to vessel loading. You will remit to
PhosChem the full purchase price no later (7) days from the
date of presentation of trade documents to Cargill.
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4.
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Cargill
represents and warrants to PhosChem that Cargill’s
participation in the Trade Flow does not violate any US (federal,
state or local), Indian or other foreign law. Cargill will
indemnify, defend and hold harmless PhosChem from all liability
that may arise from any breach, default or violation of any US,
Indian or other foreign law as a result of Cargill’s
participation in the Trade Flow.
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5.
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PhosChem will
bear all product related risks (such as quality, quantity, freight
and dispatch/demurrage) arising out of its sale and delivery of
product under the contract with the End Buyer and will indemnify,
defend and hold harmless Cargill against and from any claims or
losses arising from such risks. Cargill will bear all other
transactional structure related risks of the Trade-Flows, such as
foreign exchange risks, and will indemnify, defend and hold
harmless PhosChem against and from any claims or losses arising
from such risks.
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6.
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All payments to
PhosChem by Cargill are without recourse. Cargill waives all rights
of setoff and counterclaim with respect to Cargill’s payment
of any amounts due hereunder by Cargill.
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7.
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Within seven
(7) days after payment of the product invoice to PhosChem,
Cargill will pay to PhosChem a Fee calculated at the minimum rate
of 0.475% of the value of each Trade Flow provided by PhosChem.
This Fee is inclusive of all taxes (direct or indirect) that may be
payable by PhosChem on such fee.
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8.
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All
correspondence under this Agreement should be sent via Email or Fax
/ Courier to
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For Notices to Cargill:
Kind Attn:
(at CFSI)
CFSI
,
Fax number :
Email address:
With Copy to :
Mr.
(at Cargill India)
Fax number :
Email address:
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9.
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All payments
under the Agreement shall be made as per following payment
instructions:
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For Payments to Cargill:
Account number :
Bank -
(Full payment instructions)
For payments to PhosChem:
Account number :
Bank -
(Full payment instructions)
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10.
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The initial
term of this Agreement shall be for a period of one (1) year
from the Date of this Agreement (the “Initial Term”),
and shall be automatically extended for subsequent renewal terms of
one year unless terminated by either party on thirty days advance
written notice.
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11.
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PhosChem makes
no representation, assumes no obligation and provides no opinion
with respect to the effect or treatment of the transactions
contemplated by this Agreement under any applicable laws,
regulations or accounting principles. It is Cargill’s
responsibility to conduct its own independent investigation and
analysis of the transaction and documentation and obtain any
professional advice and/or approvals that you consider
appropriate.
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12.
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This Agreement
shall be construed in accordance with and governed by the laws of
the State of Illinois without reference to the conflicts of law
provisions thereof. Any proceeding to enforce any term of this
Agreement shall be brought in any State or Federal Court sitting in
Cook County in the State of Illinois, and the parties irrevocably
consent to the jurisdiction of such courts. The parties hereto each
waive the right to trial by jury.
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We request you to affix your
signature on the second copy of this communication and return it to
us for our records if the above terms are consented to.
We look forward to a fruitful
business relationship.
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Thanking
you
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Sincerely
Yours
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For
PhosChem
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Authorized
Signatories
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Agreed and
accepted for Cargill Financial Services International, Inc.
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[DATE]
Phosphate Chemicals Export
Association, Inc.
Attention: Treasurer
Lincolnshire Corporate Center
One Overlook Point
Suite 110
Lincolnshire, IL 60069
1. Our subsidiary, Cargill Financial
Services International, Inc has entered into a structuring
agreement with Phosphate Chemicals Export Association, Inc., a
Delaware non-stock corporation (the “Counterparty”),
whereby the Counterparty may make available to Cargill Financial
Services International, Inc. and CFSIT, Inc. (collectively the
“Subsidiary”) its export flows destined to India (the
“Agreement”) dated [
]. Agreement.
2. In consideration of the
Counterparty entering into the Agreement, Cargill, Incorporated
(the “Guarantor”) hereby unconditionally guarantees the
full and prompt payment of any and all amounts due and payable by
the Subsidiary to the Counterparty when due, whether by
acceleration or otherwise, or (if earlier) at the time the
Subsidiary becomes the subject of bankruptcy or other insolvency
proceedings. The Guarantor shall pay such amounts (subject to the
terms
