TABLE OF CONTENTS

 

ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions		1
Section 1.02. Incorporation by Reference of Trust Indenture Act		12
Section 1.03. Rules of Construction		12
ARTICLE 2
The Notes
Section 2.01. Form, Dating and Terms		12
Section 2.02. Execution and Authentication		15
Section 2.03. Registrar and Paying Agent		16
Section 2.04. Paying Agent to Hold Money in Trust		17
Section 2.05. Noteholder Lists		17
Section 2.06. Transfer and Exchange		17
Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes		19
Section 2.08. Outstanding Notes		19
Section 2.09. Temporary Notes		20
Section 2.10. Cancellation		20
Section 2.11. Payment of Interest; Defaulted Interest		20
Section 2.12. Computation of Interest		21
Section 2.13. CUSIP and ISIN Numbers		22
Section 2.14. Tax Treatment		22
ARTICLE 3
Covenants
Section 3.01. Payment of Notes		22
Section 3.02. Limitation and Restrictions on Activities of the Company		22

 

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Section 3.03. Limitation on Liens		23
Section 3.04. Limitation on Sale-Leaseback Transactions		24
Section 3.05. Exclusion from Limitations		24
Section 3.06. Maintenance of Office or Agency		24
Section 3.07. Corporate Existence		25
Section 3.08. Maintenance of Properties; Insurance		25
Section 3.09. Payment of Taxes and Other Claims		25
Section 3.10. Payments for Consent		25
Section 3.11. Compliance Certificate		26
Section 3.12. Further Instruments and Acts		26
Section 3.13. Statement by Officers as to Default		26
Section 3.14. Notice of Change in Bermuda Law, Debt Ratings		26
Section 3.15. Offer to Repurchase Upon Change of Control		26
ARTICLE 4
Successor Guarantor
Section 4.01. Consolidation, Merger, Amalgamation and Sale of Assets by the Guarantor		29
ARTICLE 5
Optional Redemption of Notes
Section 5.01. Optional Redemption by the Company		30
Section 5.02. Applicability of Article		30
Section 5.03. Election to Redeem; Notice to Trustee		30
Section 5.04. Selection by Trustee of Notes to Be Redeemed		31
Section 5.05. Notice of Redemption		31
Section 5.06. Deposit of Redemption Price		32
Section 5.07. Notes Payable on Redemption Date		32
Section 5.08. Notes Redeemed in Part		32

 

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ARTICLE 6
Defaults and Remedies
Section 6.01. Events of Default		33
Section 6.02. Acceleration		34
Section 6.03. Other Remedies		35
Section 6.04. Waiver of Past Defaults		35
Section 6.05. Control by Majority		35
Section 6.06. Limitation on Suits		35
Section 6.07. Rights of Holders to Receive Payment		36
Section 6.08. Collection Suit by Trustee		36
Section 6.09. Trustee May File Proofs of Claim		36
Section 6.10. Priorities		36
Section 6.11. Undertaking for Costs		37
ARTICLE 7
Trustee
Section 7.01. Duties of Trustee		37
Section 7.02. Rights of Trustee		38
Section 7.03. Individual Rights of Trustee		40
Section 7.04. Trustee’s Disclaimer		40
Section 7.05. Notice of Defaults		40
Section 7.06. Report by Trustee to Holders		40
Section 7.07. Compensation and Indemnity		41
Section 7.08. Replacement of Trustee		41
Section 7.09. Successor Trustee by Merger		42
Section 7.10. Eligibility; Disqualification		42
Section 7.11. Preferential Collection of Claims Against Company		43

 

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Section 7.12. Trustee’s Application for Instruction from the Company		43
ARTICLE 8
Discharge of Indenture; Defeasance
Section 8.01. Discharge of Liability on Notes; Defeasance		43
Section 8.02. Conditions to Defeasance		44
Section 8.03. Application of Trust Money		46
Section 8.04. Repayment to Company		46
Section 8.05. Indemnity for U.S. Government Securities		46
Section 8.06. Reinstatement		46
ARTICLE 9
Amendments
Section 9.01. Without Consent of Holders		46
Section 9.02. With Consent of Holders		47
Section 9.03. Compliance with Trust Indenture Act		48
Section 9.04. Revocation and Effect of Consents and Waivers		48
Section 9.05. Notation on or Exchange of Notes		49
Section 9.06. Trustee to Sign Amendments		49
ARTICLE 10
Guarantee
Section 10.01. Guarantee		49
Section 10.02. No Subrogation		50
Section 10.03. Consideration		51
ARTICLE 11
Miscellaneous
Section 11.01. Trust Indenture Act Controls		51
Section 11.02. Notices		51
Section 11.03. Communication by Holders with Other Holders		52

 

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Section 11.04. Certificate and Opinion as to Conditions Precedent		53
Section 11.05. Statements Required in Certificate or Opinion		53
Section 11.06. When Notes Disregarded		53
Section 11.07. Rules by Trustee, Paying Agent and Registrar		53
Section 11.08. Legal Holidays		53
Section 11.09. Governing Law		54
Section 11.10. No Recourse Against Others		54
Section 11.11. Successors		54
Section 11.12. Consent to Jurisdiction		54
Section 11.13. Appointment for Agent for Service of Process		54
Section 11.14. Waiver of Immunities		54
Section 11.15. Additional Amounts		55
Section 11.16. Judgment Currency		55
Section 11.17. No Bankruptcy Petition Against the Company; Liability of the Company		55
Section 11.18. Multiple Originals		56
Section 11.19. Qualification of Indenture		56
Section 11.20. Table of Contents; Headings		56

 

EXHIBIT A	Form of the Initial Notes and Subsequent Notes
SCHEDULE 1.1	Designated Obligors and Material Subsidiaries
SCHEDULE 3.4	Existing Liens

 

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CROSS-REFERENCE TABLE

 

Trust Indenture
Act Section					Indenture
310(a)	(1)				Section 7.10.
(a)	(2)				Section 7.10.
(a)	(3)				N.A.
(a)	(4)				N.A.
(b)					Section 7.08., Section 7.10.
(c)					N.A.
311(a)					Section 7.11.
(b)					Section 7.11.
(c)					N.A.
312(a)					Section 2.05.
(b)					Section 11.03.
(c)					Section 11.03.
313(a)					Section 11.06.
(b)	(1)				N.A.
(b)	(2)				Section 7.06.
(c)					Section 7.06.
(d)					Section 7.06.
314(a)					Section 3.10., Section 11.02. Section 11.05.
(b)					N.A.
(c)	(1)				Section 11.04.
(c)	(2)				Section 11.04.
(c)	(3)				N.A.
(d)					N.A.
(e)					Section 11.05.
315(a)					Section 7.01.
(b)					Section 7.05., Section 11.02.
(c)					Section 7.01.
(d)					Section 7.01.
(e)					Section 6.11.
316(a)	(last sentence)				Section 11.06.
(a)	(1)(A)				Section 6.05.
(a)	(1)(B)				Section 6.04.
(a)	(2)				N.A.
(b)					Section 6.08.
317(a)	(1)				Section 6.08.
(a)	(2)				Section 6.09.
(b)					Section 2.04.
318(a)					Section 11.01.

 

N.A. means Not Applicable.

Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture.

 

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INDENTURE dated as of June 9, 2009, among BUNGE  LIMITED FINANCE CORP., a Delaware corporation (the “ Company ”), as issuer, BUNGE LIMITED, a company formed under the laws of Bermuda with limited liability (the “ Guarantor ”), as guarantor, and U.S. BANK NATIONAL ASSOCIATION, a national banking association (the “ Trustee ”), as trustee.

 

Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of (i) the Company’s 8.50% Senior Notes Due 2019 issued on the date hereof and the guarantees thereof by the Guarantor (the “ 2019 Notes ” or the “ Initial Notes ”) and (ii) if and when issued, additional 2019 Notes which may be offered subsequent to the Issue Date and the guarantees thereof by the Guarantor (the “ Subsequent Notes ” and together with the Initial Notes, the “ Notes ”).

 

ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01.  Definitions.

 

“Affiliate” means, with respect to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing; provided, however, that the existence of a management contract by the Company or an Affiliate of the Company to manage another entity shall not be deemed to be control.

 

“ Agent Member ” has the meaning ascribed to it in Section 2.01(d)(iii) hereof.

 

“Attributable Indebtedness” means, when used with respect to any Sale-Leaseback Transaction, as at the time of determination, the present value (discounted at the rate of interest set forth in or implicit in the terms of the lease) of the total obligations of the lessee for rental payments (other than amounts required to be paid on account of property taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items that do not constitute payments for property rights) during the remaining term of the lease included in such Sale-Leaseback Transaction (including any period for which such lease has been extended).

 

“Authenticating Agent” has the meaning ascribed to it in Section 2.02 hereof.

 

“ Below Investment Grade Rating Event ” means the Notes are rated below an Investment Grade Rating by both Rating Agencies on any date from the date of the public notice of an event that would, if consummated, result in a Change of Control until the end of the sixty (60) day period following public notice of the occurrence of the Change of Control, which sixty (60) day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by both of the Rating Agencies.

 

“Board of Directors” means, with respect to any Person, the board of directors of such Person or any duly authorized committee thereof.

 

 

“Bunge Master Trust” means the trust created pursuant to the Pooling Agreement, a beneficial interest in the assets of which the Company has acquired through the Series 2002-1 VFC.

 

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in The City of New York, New York.

 

“Capital Stock” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) the equity (which includes, but is not limited to, common stock or shares, preferred stock or shares and partnership and joint venture interests) of such Person (excluding any debt securities convertible into, or exchangeable for, such equity).

 

“ Change of Control ” means the occurrence of any of the following:

 

(1)           the Guarantor becomes aware (by way of report or any other filing pursuant to Section 13(d) of the Exchange Act or written notice) 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 Guarantor then outstanding;

 

(2)           the sale, lease or transfer of all or substantially all of the assets of the Guarantor and its Subsidiaries, taken as a whole, to any Person that is not a Subsidiary of the Guarantor; or

 

(3)           the first day on which a majority of the members of the Guarantor’s Board of Directors are not Continuing Directors.

 

“ Change of Control Offer ” has the meaning ascribed to it in Section 3.15 hereof.

 

“ Change of Control Payment ” has the meaning ascribed to it in Section 3.15 hereof.

 

“ Change of Control Payment Date ” has the meaning ascribed to it in Section 3.15 hereof.

 

“ Change of Control Triggering Event ” means the occurrence of both a Change of Control that results in a Below Investment Grade Rating Event.

 

“ Code ” means the U.S. Internal Revenue Code of 1986, as amended.

 

“ Company ” means Bunge Limited Finance Corp. or its successor.

 

“ Company Order ” has the meaning ascribed to it in Section 2.02 hereof.

 

“ Company Permitted Lien ” means:

 

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(1) Liens for current taxes, assessments or other governmental charges which are not delinquent or remain payable without any penalty, or the validity of which is contested in good faith by appropriate proceedings upon stay of execution of the enforcement thereof or upon posting a bond in connection therewith;

 

(2) any Lien pursuant to any order or attachment or similar legal process arising in connection with court proceedings; provided that the execution or other enforcement thereof is effectively stayed or a sufficient bond had been posted and the claims secured thereby are being contested at the time in good faith by appropriate proceedings;

 

(3) any Liens securing bonds posted with respect to and in compliance with clauses (1) and (2) above;

 

(4) Liens to secure bonds posted in order to obtain stays of judgments, attachments or orders, the existence of which bonds would not otherwise constitute an Event of Default; and

 

(5) Liens securing obligations under a Hedge Agreement.

 

“ Consolidated Net Tangible Assets ” means, at any date of determination, the total amount of assets of the Guarantor and its consolidated Subsidiaries after deducting therefrom:

 

(1)           all current liabilities (excluding any current liabilities that by their terms are extendable or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed);

 

(2)           total prepaid expenses and deferred charges; and

 

(3)           all goodwill, trade names, trademarks, patents, licenses, copyrights and other intangible assets, all as set forth, or on a pro forma basis would be set forth, on the consolidated balance sheet of the Guarantor and its consolidated Subsidiaries for its most recently completed fiscal quarter, prepared in accordance with U.S. GAAP.

 

“ Continuing Directors ” means, as of any date of determination, any member of the Board of Directors of the Guarantor who (1) was a member of such Board of Directors on the date of the issuance of the Initial Notes; or (2) was nominated for election, appointed or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Guarantor’s proxy statement in which such member was named as a nominee for election as a director).

 

“ Corporate Trust Office ” has the meaning ascribed to it in Section 3.05 hereof.

 

“ covenant defeasance option ” has the meaning ascribed to it in Section 8.01(b) hereof.

 

“ Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

 

“ Defaulted Interest ” has the meaning ascribed to it in Section 2.11 hereof.

 

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“ Definitive Notes ” means certificated Notes.

 

“ Designated Obligor ” means the Guarantor and the Subsidiaries of the Guarantor set forth on Schedule 1.1 hereto and any other Subsidiary designated by the Guarantor from time to time, and each of their successors.

 

“ DTC ” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company.

 

“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.

 

“ Event of Default ” has the meaning ascribed to it in Section 6.01 hereof.

 

“ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended.

 

“ Fair Market Value ” means, with respect to any property, the sale value of such property that would be realized in an arms-length sale at such time between an informed and willing buyer, and an informed and willing seller, under no compulsion to buy or sell, respectively.

 

“ Fiscal Year ” means the fiscal year of the Company ending on December 31 of each year.

 

“ Global Note ” has the meaning ascribed to it in Section 2.01(a) hereof.

 

“ guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:

 

(1)           to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or

 

(2)           entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);

 

provided, however, that the term “guarantee” will not include endorsements for collection or deposit in the ordinary course of business. The term “guarantee,” when used as a verb, has a corresponding meaning.

 

“ Guarantee ” means any guarantee of payment of the Notes and any other obligations of the Company by the Guarantor pursuant to the terms of this Indenture.

 

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“ Guarantor ” means Bunge Limited.

 

“ Guaranty ” means the Sixth Amended and Restated Guaranty, dated as of June 11, 2007, by the Guarantor to Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., JPMorgan Chase Bank, N.A. and the Master Trust Trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, subject to Section 3.02(f) hereof.

 

“ Hedge Agreements ” means all interest rate swaps, caps or collar agreements or similar arrangements dealing with interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.

 

“ Holder ” or “ Noteholder ” means the Person in whose name a Note is registered in the Note Register.

 

“ Indebtedness ” means, as to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property, except trade accounts payable arising in the ordinary course of business, (d) all obligations of such Person as lessee which are capitalized in accordance with U.S. GAAP, (e) all obligations of such Person created or arising under any conditional sales or other title retention agreement with respect to any property acquired by such Person (including without limitation, obligations under any such agreement which provides that the rights and remedies of the seller or lender thereunder in the event of default are limited to repossession or sale of such property), (f) all obligations of such Person with respect to letters of credit and similar instruments, including without limitation obligations under reimbursement agreements, (g) all Indebtedness of others secured by (or for which the holder of such Indebtedness has 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 (h) all guarantees of such Person (other than guarantees of obligations of direct or indirect Subsidiaries of such Person).

 

“ Indenture ” means this Indenture, as amended or supplemented from time to time in accordance with its terms.

 

“ Initial Notes ” has the meaning ascribed to it in the second introductory paragraph of this Indenture.

 

“ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

 

“ Issue Date ” means the date on which the Initial Notes are originally issued.

 

“ legal defeasance option ” has the meaning ascribed to it in Section 8.01(b) hereof.

 

“ Legal Holiday ” has the meaning ascribed to it in Section 11.08 hereof.

 

“ Lien ” means any mortgage, lien, security interest, pledge, charge or other encumbrance.

 

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“ Master Trust Transaction Documents ” means the collective reference to the Pooling Agreement, the Series 2002-1 Supplement, the Series 2002-1 VFC, the Sale Agreement, the Servicing Agreement and the Guaranty.

 

“ Master Trust Trustee ” means The Bank of New York Mellon, as trustee under, and for the purposes of, the Master Trust Transaction Documents, and any successor thereto.

 

“ Material Adverse Effect ” means a material adverse effect, or any development involving a prospective material adverse effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Guarantor and its consolidated Subsidiaries taken as a whole.

 

“ Material Subsidiary ” means, at any time, any Subsidiary of the Guarantor which at such time is a “Significant Subsidiary” under Regulation S-X of the Exchange Act.  The Material Subsidiaries as of the date hereof are set forth on Schedule 1.1 hereto.

 

“ Moody’s ” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

 

“ Note Register ” means the register of Notes, maintained by the Registrar, pursuant to Section 2.03 hereof.

 

“ Notes ” means the collective reference to the Initial Notes and the Subsequent Notes.

 

“ Obligations ” has the meaning ascribed to it in Section 10.01 hereof.

 

“ Officer ” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller or the Secretary of the Company or the Guarantor, as applicable.

 

“ Officer’s Certificate ” means a certificate signed by an Officer or attorney-in-fact of the Company or the Guarantor, as applicable.

 

“ Opinion of Counsel ” means a written opinion from legal counsel, which counsel may be an employee of or counsel to the Company, who shall be acceptable to the Trustee.  The form and substance of such Opinion of Counsel shall likewise be acceptable to the Trustee.

 

“ Pari Passu Indebtedness ” means Indebtedness for borrowed money, the proceeds of which are used to either purchase interests in the Series 2002-1 VFC, refinance Indebtedness originally used for such purpose and/or pay expenses incurred in connection with this Indenture or any such other Indebtedness, and indebtedness incurred in connection with Hedge Agreements, in each case which ranks not greater than pari passu (in priority of payment) with the Notes.

 

“ Paying Agent ” means the Person (including the Company, the Guarantor or any Subsidiary) authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Notes on behalf of the Company.

 

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“ Permitted Indebtedness ” means (a) Indebtedness of the Company under the Notes and (b) Pari Passu Indebtedness.

 

“ Permitted Liens ” means:

 

(1)           Liens for current taxes, assessments or other governmental charges which are not delinquent or remain payable without any penalty, or the validity of which is contested in good faith by appropriate proceedings upon stay of execution of the enforcement thereof or upon posting a bond in connection therewith;

 

(2)           any Lien pursuant to any order or attachment or similar legal process arising in connection with court proceedings; provided that the execution or other enforcement thereof is effectively stayed or a sufficient bond had been posted and the claims secured thereby are being contested at the time in good faith by appropriate proceedings;

 

(3)           any Liens securing bonds posted with respect to and in compliance with clauses (1) and (2) above;

 

(4)           any Liens securing the claims of mechanics, laborers, workmen, repairmen, materialmen, suppliers, carriers, warehousemen, landlords, or vendors or other claims provided for by mandatory provisions of law which are not yet due and delinquent, or are being contested in good faith by appropriate proceedings;

 

(5)           any Lien on any Restricted Property securing Indebtedness incurred or assumed solely for the purpose of financing all or any part of the cost of constructing or acquiring such Restricted Property, which Lien attaches to such Restricted Property concurrently with or within 120 days after construction, acquisition or completion of a series of related acquisitions thereof;

 

(6)           Liens existing immediately prior to the execution and delivery of this Indenture (and listed on Schedule 3.4 hereto);

 

(7)           Liens to secure bonds posted in order to obtain stays of judgments, attachments or orders, the existence of which bonds would not otherwise constitute an Event of Default;

 

(8)           Liens on Restricted Property or with respect to the shares of stock or Indebtedness of any Restricted Subsidiary, that either (i) existed prior to the acquisition of (A) such Restricted Property, (B) any Subsidiary that is the owner of such Restricted Property or (C) with respect to the shares of stock or Indebtedness of any Restricted Subsidiary, any such Restricted Subsidiary, or (ii) arises as a result of contractual commitments to grant a Lien relating to (A) such Restricted Property, (B) any Subsidiary that is the owner of such Restricted Subsidiary or (C) with respect to the shares of stock or Indebtedness of any Restricted Subsidiary, any such Restricted Subsidiary, in each of (A), (B) and (C) existing prior to such acquisition;

 

(9)           Liens created by a Restricted Subsidiary in favor of the Company, the Guarantor or a Subsidiary;

 

(10)         Liens on any accounts receivable from or invoices to export customers (including, but not limited to, Subsidiaries) and the proceeds thereof;

 

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(11)         Liens on rights under contracts to sell, purchase or receive commodities to or from export customers (including, but not limited to, Subsidiaries) and the proceeds thereof;

 

(12)         Liens on cash deposited as collateral in connection with financings where Liens are permitted under clause (10) and (11) of this definition;

 

(13)         Liens extending, renewing or replacing, in whole or in part Liens permitted pursuant to (i) clauses (1) through (5) and (7) through (12), so long as the principal amount of the Indebtedness secured by such Lien does not exceed its original principal amount and (ii) in the case of clause (6), so long as the principal amount of the Indebtedness secured by such Lien does not exceed the principal amount thereof outstanding immediately prior to the execution and delivery of the Indenture;

 

(14)         minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties that constitute Restricted Property, which are necessary for the conduct of the activities of the Guarantor or any Restricted Subsidiary or which customarily exist on properties of corporations engaged in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the business of the Guarantor or any Restricted Subsidiary;

 

(15)         Liens on accounts receivable and other related assets arising in connection with transfers thereof to the extent that such transfers are treated as sales of financial assets under FASB Statement No. 140, as in effect from time to time;

 

(16)         Liens on intercompany loans made to the Guarantor or its Subsidiaries or on any notes or other instruments representing an interest in such intercompany loans in each case as set forth in the Master Trust Transaction Documents; and

 

(17)         Liens securing obligations under a Hedge Agreement or swap, cap or collar agreement or similar arrangement related to equity or commodities.

 

For purposes of this definition above, (A) the phrases “accounts receivable from or invoices to export customers” and “contracts to sell, purchase or receive commodities to (from) export customers” shall refer to invoices or accounts receivable derived from the sale of, or contracts to sell, purchase or receive wheat, soybeans or other commodities or products derived from the processing of wheat, soybeans or other commodities, by or to the Guarantor or a Restricted Subsidiary that have been or are to be exported from the country of origin whether or not such sale is made by a Restricted Subsidiary or to any of its Subsidiaries; and (B) property of a party to a corporate reorganization which is not the Guarantor or a Restricted Subsidiary shall be deemed to be or have been “acquired” by the Guarantor or such Restricted Subsidiary as part of such corporate reorganization even if the Guarantor or such Restricted Subsidiary, as the case may be, is not the surviving or continuing entity.

 

“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision hereof or any other entity.

 

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“ Pooling Agreement ” means the Fifth Amended and Restated Pooling Agreement, dated as of June 28, 2004, among Bunge Funding, Inc., Bunge Management Services, Inc., as servicer, and The Bank of New York, in its capacity as Master Trust Trustee, as amended, modified or supplemented from time to time in accordance with its terms, subject to Section 3.02(f) hereof.

 

“ Principal Trust Office ” means the Corporate Trust Office or such other trust office or agency as may be designated by the Trustee in writing to the Company from time to time.  The initial Principal Trust Office shall be the office of the Trustee to which notices are to be sent as set forth in Section 11.02 hereof.

 

“ Property ” means any property, whether presently owned or hereafter acquired, including any asset, revenue, or right to receive income or any other property, whether tangible or intangible, real or personal.

 

“ Rating Agencies ” means Moody’s and S&P or if Moody’s or S&P, or both, cease to rate the Notes or fails to make a rating of the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by Bunge Limited which shall be substituted for Moody’s or S&P, or both of them, as the case may be.

 

“ Redemption Date ” means, with respect to any redemption of Notes, the date of redemption with respect thereto.

 

“ Redemption Price ” has the meaning ascribed to it under the section entitled “Optional Redemption by the Company” on the reverse side of the Notes, the forms of which are attached as Exhibits A and B hereto.

 

“ Registrar ” has the meaning ascribed to it in Section 2.03 hereof.

 

“ Representatives to the Underwriters ” means J.P. Morgan Securities Inc., BNP Paribas Securities Corp., HSBC Securities (USA) Inc. and RBS Securities Inc.

 

“ Restricted Property ” means any building, mine, structure or other facility (together with the land on which it is erected and fixtures comprising a part thereof) and inventories now owned or hereafter acquired by the Guarantor or any Subsidiary and used for oilseed or grain origination, processing, transportation or storage, mining or fertilizer refining or storage.

 

“ Restricted Subsidiary ” means (a) any Subsidiary that has been designated by the Guarantor as eligible for intercompany loans to be made by the master trust under the Master Trust Transaction Documents, (b) any other Subsidiary which is a “significant subsidiary” under Regulation S-X under the Securities Act, or (c) any other Subsidiary that owns or leases any Restricted Property the aggregate Fair Market Value of which, as determined by the Board of Directors of the Guarantor, exceeds three percent of Consolidated Net Tangible Assets.  Notwithstanding the foregoing, Fertilizantes Fosfatados S.A.-Fosfertil shall not be deemed a Restricted Subsidiary of the Guarantor for the purpose of the covenants described under Section 3.02 and Section 3.03.

 

“ Sale-Leaseback Transaction ” means the sale or transfer by the Guarantor or any Restricted Subsidiary of any Restricted Property to a Person (other than the Guarantor or a

 

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Restricted Subsidiary) and the taking back by the Guarantor or any Restricted Subsidiary, as the case may be, of a lease of such Restricted Property.

 

“ S&P ” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor to its rating agency business.

 

“ SEC ” means the U.S. Securities and Exchange Commission.

 

“ Securities Act ” means the U.S. Securities Act of 1933, as amended.

 

“ Securities Custodian ” means the custodian with respect to the Global Note (as appointed by DTC), or any successor Person thereto and shall initially be the Trustee.

 

“ Series 2002-1 Supplement ” means the Fourth Amended and Restated Series 2002-1 Supplement to the Pooling Agreement, dated as of February 15, 2008, among the Company, Bunge Funding, Inc., Bunge Management Services, Inc. and the Master Trust Trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, subject to Section 3.02(f) hereof.

 

“ Series 2002-1 VFC ” means the interest in the Bunge Master Trust created and authorized pursuant to a supplement to the Pooling Agreement that is designated as the “Series 2002-1 VFC Certificate” in which the Company will acquire a beneficial interest with the net proceeds of the Notes and other Permitted Indebtedness.

 

“ Servicing Agreement ” means the Third Amended and Restated Servicing Agreement, dated as of December 23, 2003 among Bunge Funding, Inc., Bunge Management Services, Inc., as the servicer, and The Bank of New York, in its capacity as the Master Trust Trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, subject to Section 3.02(f) hereof.

 

“ Special Interest Payment Date ” has the meaning ascribed to it in Section 2.11 hereof.

 

“ Special Record Date ” has the meaning ascribed to it in Section 2.11 hereof.

 

“ Stated Maturity ” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.

 

“ Subsequent Notes ” has the meaning ascribed to it in the second introductory paragraph of this Indenture.

 

“ Subsidiary ” means any corporation, limited liability company or other business entity of which the requisite number of shares of stock or other equity ownership interests having ordinary voting power (without regard to the occurrence of any contingency) to elect a majority of the directors, managers or trustees thereof, or any partnership of which more than 50% of the partners’ equity interests (considering all partners’ equity interests as a single class) is, in each

 

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case, at the time owned or controlled, directly or indirectly, by a Person, one or more of the Subsidiaries of such Person, or combination thereof.

 

“ Substitute Rating Agency ” means a ‘‘nationally recognized statistical rating organization’’ within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company (as certified by an officer of the Company and reasonably acceptable to the Trustee) as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

 

“ Successor Guarantor ” has the meaning ascribed to it in Section 4.01 hereof.

 

“ Trust Indenture Act ” means the U.S. Trust Indenture Act of 1939, as in effect on the date of this Indenture.

 

“ Trust Officer ” means, with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the individuals who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such individual’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“ Trustee ” means the party named as such in this Indenture until a successor replaces it and, thereafter, such successor.

 

“ Underwriters ” means, collectively, J.P. Morgan Securities Inc., HSBC Securities (USA) Inc., BNP Paribas Securities Corp., RBS Securities Inc., BBVA Securities Inc., Calyon Securities (USA) Inc., Citigroup Global Markets, Inc., ING Financial Markets LLC, Mitsubishi UFJ Securities (USA), Inc., Rabo Securities USA, Inc., SG Americas Securities, LLC and Standard Chartered Bank.

 

“ U.S. GAAP ” means generally accepted accounting principles in the United States, as in effect from time to time.

 

“ U.S. Government Securities ” means securities that are (a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Securities or a specific payment of principal of or interest on any such U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Securities or the specific payment of principal of or interest on the U.S. Government Securities evidenced by such depository receipt.

 

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“ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

Section 1.02.  Incorporation by Reference of Trust Indenture Act.  This Indenture is subject to the mandatory provisions of the Trust Indenture Act which are incorporated by reference in and made a part of this Indenture.  The following Trust Indenture Act terms have the following meanings:

 

“Commission” means the SEC.

 

“indenture securities” means the Notes.

 

“indenture security holder” means a Noteholder.

 

“indenture to be qualified” means this Indenture.

 

“indenture trustee” or “institutional trustee” means the Trustee.

 

“obligor” on the indenture securities means the Company and any other obligor on the indenture securities.

 

All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined in the Trust Indenture Act by reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.

 

Section 1.03.  Rules of Construction.  Unless the context otherwise requires:

 

(1)                                   a term has the meaning assigned to it;

 

(2)                                   an accounting term not otherwise defined has the meaning assigned to it in accordance with U.S. GAAP;

 

(3)                                   “or” is not exclusive;

 

(4)                                   “including” means including without limitation;

 

(5)                                   words in the singular include the plural and words in the plural include the singular; and

 

(6)                                   the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date and prepared in accordance with U.S. GAAP.

 

ARTICLE 2
THE NOTES

 

Section 2.01.  Form, Dating and Terms.  (a)  The Initial Notes are being offered and sold by the Company pursuant to an Underwriting Agreement, dated June 4, 2009 among the Company, the Guarantor and Representatives to the Underwriters.

 

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The Initial Notes offered and sold to the Underwriters will be issued on the Issue Date in the form of a permanent global Note, without interest coupons, substantially in the form of Exhibit A hereto, which is hereby incorporated by reference and made a part of this Indenture, including appropriate legends as set forth in Section 2.01(c) hereof (the “ Global Note ”), deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided.  The Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate.  The aggregate principal amount of the Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.

 

Except as described in the succeeding two sentences, the principal of and premium, if any, and interest on the Notes shall be payable at the office or agency of the Company maintained for such purpose in The City of New York, or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.03 hereof; provided, however, that, at the option of the Company, each installment of interest may be paid by check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Note Register.  Payments in respect of Notes represented by a Global Note (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC.  Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least U.S.$1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

 

Any Subsequent Notes shall be in the form of Exhibit A hereto.

 

The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A hereto and in Section 2.01(c) hereof.  The Company and the Trustee shall approve the forms of the Notes and any notation, endorsement or legend on them.  Each Note shall be dated the date of its authentication.  The terms of the Notes set forth in Exhibit A hereto are part of the terms of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms.

 

The Notes shall be subject to repurchase by the Company pursuant to a Change of Control Offer as provided in Section 3.15 hereof.  The Notes shall not be redeemable, other than as provided in Article V.

 

(b)                                                          Denominations .  The Notes shall be issuable only in fully registered form, without coupons, and only in denominations of U.S.$1,000 and any integral multiple thereof.

 

(c)                                                           Legends .  Each of the Global Notes, whether or not an Initial Note, shall bear the following legend on the face thereof:

 

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“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.”

 

(d)                                                          Book-Entry Provisions .  (i) This Section 2.01(d) shall apply only to Global Notes deposited with the Trustee, as custodian for DTC.

 

(ii)                                                           Each Global Note initially shall (A) be registered in the name of DTC or the nominee of DTC, (B) be delivered to the Trustee as custodian for DTC and (C) bear legends as set forth in Section 2.01(c) hereof.

 

(iii)                                                        Members of, or participants in, DTC (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Trustee as the custodian of DTC or under such Global Note, and DTC may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of a Holder of a beneficial interest in any Global Note.

 

(iv)                                                       In connection with any transfer of a portion of the beneficial interest in a Global Note pursuant to Section 2.01(e) hereof to beneficial owners who are required to hold Definitive Notes, the Securities Custodian shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Notes of like tenor and amount.

 

(v)                                                          In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.01(e) hereof, such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by DTC in

 

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exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.

 

(vi)                                                       The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.

 

(e)                                                           Definitive Notes .

 

(i)                                                              Except as provided below, owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes.  If required to do so pursuant to any applicable law or regulation, beneficial owners may obtain Definitive Notes in exchange for their beneficial interests in a Global Note upon written request in accordance with DTC’s and the Registrar’s procedures.  In addition, Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (a) DTC notifies the Company that it is unwilling or unable to continue as depositary for such Global Note or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Company within 90 days of such notice, or (b) subject to the procedures of DTC, the Company or the Guarantor executes and delivers to the Trustee and Registrar an Officer’s Certificate stating that such Global Note shall be so exchangeable or (c) an Event of Default has occurred and is continuing and the Registrar has received a request from DTC.

 

(ii)                                                           In connection with the exchange of a portion of a Definitive Note for a beneficial interest in a Global Note, the Trustee shall cancel such Definitive Note, and the Company shall execute, and the Trustee shall authenticate and deliver, to the transferring Holder a new Definitive Note representing the principal amount not so transferred.

 

Section 2.02.  Execution and Authentication.  One Officer shall execute the Notes, on behalf of the Company, by manual or facsimile signature.  If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

 

A Note shall not be valid until an authorized signatory of the Trustee manually authenticates the Note.  The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture.  A Note shall be dated the date of its authentication.

 

The Trustee shall authenticate and make available for delivery: (1) at any time and from time to time after the execution and delivery of this Indenture, the Initial Notes for original issue on the Issue Date initially in an aggregate principal amount of U.S. $600,000,000; and (2) if and when issued, the Subsequent Notes, in each case upon a written order of the Company signed by two Officers or by an Officer and an Assistant Treasurer or an Assistant Secretary of the Company (the “ Company Order ”).  Such Company Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated and

 

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whether the Notes are to be Initial Notes or Subsequent Notes.  The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is initially limited to U.S. $600,000,000 outstanding (plus any Subsequent Notes), except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Notes of the same class pursuant to Section 2.06, Section 2.07, Section 2.09, Section 5.08 or Section 9.05 hereof.  All Notes issued on the Issue Date and all Subsequent Notes shall be identical in all respects other than issue date, issue price and the date from which interest accrues and any changes relating thereto.  Notwithstanding anything to the contrary contained in this Indenture, the Initial Notes and any Subsequent Notes of the same class will be treated as a single class of securities under this Indenture.  Without limiting the generality of the foregoing sentence, unless otherwise provided in this Indenture, all Notes issued under this Indenture shall vote and consent together on all matters as one class and no Notes will have the right to vote or consent as a separate class on any matter.

 

The Trustee may appoint an agent (the “ Authenticating Agent ”) reasonably acceptable to the Company to authenticate the Notes.  Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent.  An Authenticating Agent has the same rights as a Paying Agent to deal with Holders or an Affiliate of the Company.

 

Section 2.03.  Registrar and Paying Agent.  The Company shall cause to be kept a register for the Notes (the “ Note Register ”) in which, subject to such reasonable regulations as the Company may prescribe, the Company shall provide for the registration of the Notes and of all transfers and exchanges with respect thereto.  The Note Register shall be maintained by the Trustee or such other Person (including the Company or the Guarantor) appointed by the Company as the registrar (the “ Registrar ”).  The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange and an office or agency where Notes may be presented for payment (the “ Place of Payment ”).  The Company shall cause each of the Registrar and the Paying Agent to maintain an office or agency in the Borough of Manhattan, The City of New York.  The Company may have one or more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any additional paying agent.

 

The Company shall enter into an appropriate agency agreement with any Registrar and Paying Agent that is not a party to this Indenture, which shall incorporate the terms of the Trust Indenture Act.  The agreement shall implement the provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee of the name and address of each such agent.  If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07 hereof.  The Company, the Guarantor or any Subsidiary of the Company or the Guarantor may act as Paying Agent, Registrar, co registrar or transfer agent.

 

The Company initially appoints DTC to act as depository with respect to the Global Notes.  The Trustee is authorized to enter into a letter of representations with DTC in the form provided to the Trustee by the Company and to act in accordance with such letter.

 

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The Company initially appoints the Trustee as Registrar and Paying Agent for the Notes.

 

Section 2.04.  Paying Agent to Hold Money in Trust.  By at least 10:00 a.m. (New York City time) on the date on which any principal of and premium, if any, or interest on any Note is due and payable, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal, premium, if any, or interest when due.  The Company shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Noteholders or the Trustee all money held by such Paying Agent for the payment of principal of and premium, if any, or interest on the Notes and shall notify the Trustee in writing of any default by the Company or the Guarantor in making any such payment.  If the Company, the Guarantor or a Subsidiary of the Company or the Guarantor acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund.  The Company at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent.  Upon complying with this Section 2.04, the Paying Agent (if other than the Company or a Subsidiary of the Company or the Guarantor) shall have no further liability for the money delivered to the Trustee.  Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent for the Notes.

 

Section 2.05.  Noteholder Lists.  The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders and shall otherwise comply with Trust Indenture Act, Section 312(a).  If the Trustee is not the Registrar, or to the extent otherwise required under the Trust Indenture Act, the Company, on its own behalf and on behalf of the Guarantor, shall furnish to the Trustee, in writing at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Noteholders and the Company shall otherwise comply with Trust Indenture Act, Section 312(a).

 

Section 2.06.  Transfer and Exchange.

 

(a)                                                           The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.01 hereof or this Section 2.06.  The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable prior written notice to the Registrar.

 

(b)                                                          Obligations with Respect to Transfers and Exchanges of Notes .

 

(i)                                                              To permit registrations of transfers and exchanges, the Company shall, subject to the other terms and conditions of this Article 2, execute and the Trustee shall authenticate Definitive Notes and Global Notes at the Registrar’s or co-registrar’s request.

 

(ii)                                                           No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company or the Guarantor may require from a Holder payment of a sum sufficient to cover any transfer tax, assessments, or similar

 

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governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Section 3.15 and Section 9.05 hereof).

 

(iii)                                                        The Registrar or co-registrar shall not be required to register the transfer of, or exchange of, any Note for a period beginning (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an interest payment date and ending on such interest payment date.

 

(iv)                                                       Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent, the Registrar or any co registrar shall be affected by notice to the contrary.

 

(v)                                                          All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt, and shall be entitled to the same benefits under this Indenture, as the Notes surrendered upon such transfer or exchange.

 

(vi)                                                       All Global Notes shall be registered in the name of DTC, or a nominee thereof, and all transfers of beneficial ownership interests therein will be made in accordance with the rules of DTC.  No investor or other party purchasing, selling or otherwise transferring beneficial ownership interests in Global Notes shall receive, hold or deliver any certificate representing the same.  The Company, the Guarantor and the Trustee shall have no responsibility or liability for transfers of beneficial ownership interests in any Global Note.

 

(c)                                                           No Obligation of the Trustee .

 

(i)                                                              The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, an Agent Member or any other Person with respect to (A) the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes, (B) the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes, or (C) the selection of the particular Notes or portions thereof to be redeemed or refunded in the event of a partial redemption or refunding of the Notes.  All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note).  The rights of beneficial owners in any Global Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC.  The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.

 

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(ii)                                                           The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among DTC, its Agent Members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture with respect to transfers between Holders, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

Section 2.07.  Mutilated, Destroyed, Lost or Stolen Notes.  If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the New York Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee.  If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Company, the Guarantor or the Trustee that such Note has been acquired by a bona fide purchaser, the Company shall execute and upon Company Order the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.

 

Upon the issuance of any new Note under this Section 2.07, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.

 

Every new Note issued pursuant to this Section 2.07 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, the Guarantor (if applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.

 

The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

 

Section 2.08.  Outstanding Notes.  Notes outstanding at any time are all Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding.  A Note ceases to be outstanding in

 

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the event the Company holds the Note, provided, however, that (i) for purposes of determining which are outstanding for consent or voting purposes hereunder, Notes shall cease to be outstanding in the event the Company or an Affiliate of the Company holds the Note and (ii) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of Holders of Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Trust Officer of the Trustee actually knows to be held by the Company or an Affiliate of the Company shall not be considered outstanding.

 

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a bona fide purchaser.

 

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a redemption date or maturity date money sufficient to pay all principal, premium, if any, and interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Noteholders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

 

Section 2.09.  Temporary Notes.  Until Definitive Notes are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that the Company considers appropriate for temporary Notes.  Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Definitive Notes.  After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Company for that purpose and such exchange shall be without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute, and the Trustee shall authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes.  Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a holder of Definitive Notes.

 

Section 2.10.  Cancellation.  The Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  The Trustee, and no one else, shall cancel and destroy all Notes surrendered for registration of transfer, exchange, payment or cancellation, in its customary manner.  The Company may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.

 

Section 2.11.  Payment of Interest; Defaulted Interest .  Interest on any Note which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Note (or one or more predecessor Notes) is registered at the close of business on the regular record date for such interest at the office or agency of the

 

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Company maintained for such purpose pursuant to Section 2.03 hereof.

 

Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date by virtue of having been such Holder, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “ Defaulted Interest ”) shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:

 

(a)                                                           The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30 days after such notice) of the proposed payment (the “ Special Interest Payment Date ”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a record date (the “ Special Record Date ”) for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the Special Interest Payment Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such Special Record Date, and in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 11.02 hereof, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).

 

(b)                                                          The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section 2.11, each Note delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.

 

Section 2.12.  Computation of Interest.  Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.

 

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Section 2.13.  CUSIP and ISIN Numbers.  The Company in issuing the Notes may use “CUSIP” and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such CUSIP or ISIN numbers.  The Company shall promptly notify the Trustee of any change in the CUSIP and ISIN numbers.

 

Section 2.14.  Tax Treatment.   The Company and the Holders intend, and will take all actions consistent with the intention, that the Notes be treated as indebtedness for all federal, state, local, and foreign income and franchise tax purposes.  The Company, by entering into this Indenture, and each Holder, by its acceptance of its Note, agree to treat the Notes as indebtedness for federal, state, local and foreign income and franchise tax purposes.

 

ARTICLE 3
COVENANTS

 

Section 3.01.  Payment of Notes.  The Company shall promptly pay the principal of and premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture.  Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Noteholders on that date.

 

The Company shall pay interest on overdue principal and premium, if any, at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.

 

Notwithstanding anything to the contrary contained in this Indenture and subject to Section 11.15, the Company may, to the extent it is required to do so by law, deduct or withhold income or other taxes imposed by the United States of America (or any political subdivision thereof) from principal or interest payments hereunder.

 

Section 3.02.  Limitation and Restrictions on Activities of the Company .  (a) The Company shall not engage in any business or enterprise or enter into or be a party to any transaction or agreement other than in connection with (i) the issuance and sale of the Notes, (ii) the incurrence of other Permitted Indebtedness, (iii) the entering into of Hedge Agreements relating to the Notes or the other Permitted Indebtedness having a notional amount not exceeding the aggregate principal amount of the Notes and such other Permitted Indebtedness then outstanding and (iv) the use of the net proceeds from the issuance of the Notes or the other Permitted Indebtedness to either increase its investment in the Series 2002-1 VFC, repay the Notes or other Permitted Indebtedness outstanding from time to time or pay expenses incurred in connection with such Permitted Indebtedness.

 

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(b)                                  The Company shall not acquire or own any subsidiary or other assets or property (either real or personal), except for (i) the Series 2002-1 VFC, (ii) Hedge Agreements, and (iii) instruments evidencing the interests in the foregoing.

 

(c)                                   The Company shall not create, incur, assume or suffer to exist any Indebtedness other than Permitted Indebtedness.

 

(d)                                  The Company shall not create, assume, incur or suffer to exist any Lien (other than Company Permitted Liens) upon or with respect to any of its Property; provided, however, it being understood, for the avoidance of doubt, that the Company shall not create, incur, assume or suffer to exist any Lien, including any Lien which would otherwise constitute a Permitted Lien in the case of the Guarantor or any Restricted Subsidiary, other than Company Permitted Liens.

 

(e)                                   The Company shall not enter into any consolidation, merger, amalgamation, joint venture, syndicate or other form of combination with any Person, and shall not sell, lease, convey or otherwise dispose of any of its assets or receivables, including, without limitation, the Series 2002-1 VFC or any interest in the Series 2002-1 VFC.

 

(f)                                     The Company shall not amend, supplement, waive or modify, or consent to any amendment, supplement, waiver or modification of, any Master Trust Transaction Document except in accordance with the provisions of this Section 3.02(f).  Any provision of any Master Trust Transaction Document may be amended, waived, supplemented, restated, discharged or terminated without the consent of the Holders so long as in each case, the Trustee shall have received prior notice thereof together with copies of any documentation related thereto; provided that such amendment, waiver, supplement or restatement does not (i) render the Series 2002-1 VFC subordinate in payment to any other Series under the Bunge Master Trust or otherwise adversely discriminate against the Series 2002-1 VFC relative to any other Series under the Bunge Master Trust, (ii) reduce in any manner the amount of, or delay the timing of, distributions which are required to be made on or in respect of the Series 2002-1 VFC, (iii) change the definition of, the manner of calculating, or in any way the amount of, the interest of the Company in the assets of the Bunge Master Trust, (iv) change the definition of “Eligible Loans” or, to the extent used in such definition, other defined terms used in such definition, (v) result in a Default or Event of Default, or (vi) terminate the Bunge Master Trust with respect to less than all of the then outstanding Series issued by the Bunge Master Trust; and provided, further, that, the Bunge Master Trust may be terminated at any time with respect to all Series then outstanding without the consent of the Holders.  Any amendment, waiver, supplement or restatement of a Master Trust Transaction Document (including any exhibit thereto) of the type described in clauses (i), (ii), (iii), (iv), (v) or (vi) of this Section 3.02(f) shall require the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding, including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes.

 

Section 3.03.  Limitation on Liens.  The Guarantor shall not, and shall not permit any Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien, other than a Permitted Lien, upon or with respect to any Restricted Property or upon any shares of stock or Indebtedness of any Restricted Subsidiary, to secure any Indebtedness incurred or guaranteed by

 

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the Guarantor or any Restricted Subsidiary (other than the Notes), unless all of the outstanding Notes and the Guarantee are secured equally and ratably with, or prior to, such Indebtedness for so long as such Indebtedness shall be so secured.

 

Section 3.04.  Limitation on Sale-Leaseback Transactions.  The Guarantor shall not, and shall not permit any Restricted Subsidiary to, enter into any Sale-Leaseback Transaction unless:

 

(a)                                                           the Sale-Leaseback Transaction occurs within six months from the date of the acquisition of the Restricted Property subject  thereto or the date of the completion of construction or commencement of full operations of such Restricted Property, whichever is later; or

 

(b)                                                          the Sale-Leaseback Transaction is between the Guarantor and a Restricted Subsidiary of the Guarantor, or between Restricted Subsidiaries of the Guarantor; or

 

(c)                                                           the Sale-Leaseback Transaction involves a lease for a period, including renewals, of not more than three years; or

 

(d)                                                          the Sale-Leaseback Transaction constitutes a Permitted Lien for the purposes of Section 3.03 hereof; or

 

(e)                                                           the Guarantor or such Restricted Subsidiary, within a one year period after such Sale-Leaseback Transaction, (i) applies or causes to be applied an amount not less than the Attributable Indebtedness from such Sale-Leaseback Transaction to the prepayment, repayment, redemption, reduction or retirement of any Indebtedness of the Guarantor or any Subsidiary having a maturity of more than one year that is not subordinated to the Notes or the Guarantee or (ii) enters into a bona fide commitment to expend an amount not less than the Attributable Indebtedness for such Sale-Leaseback Transaction during such one-year period to the acquisition, construction or development of other similar Property.

 

Section 3.05.  Exclusion from Limitations.  Notwithstanding Sections 3.03 and 3.04 hereof, the Guarantor may, and may permit any Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien (other than a Permitted Lien) upon any Restricted Property or the shares of stock or Indebtedness of any Restricted Subsidiary to secure Indebtedness incurred or guaranteed by the Guarantor or any Restricted Subsidiary (other than the Notes) or effect any Sale-Leaseback Transaction of a Restricted Property that is not excepted by Section 3.04(a), (b), (c), (d) or (e) hereof, without equally and ratably securing the Notes or the Guarantee provided that, after giving effect thereto, the aggregate principal amount of outstanding Indebtedness (other than the Notes) secured by Liens (other than Permitted Liens) upon Restricted Property and the shares of stock or Indebtedness of any Restricted Subsidiary plus the Attributable Indebtedness from Sale-Leaseback Transactions of Restricted Property not so excepted, do not exceed 15% of the Consolidated Net Tangible Assets.

 

Section 3.06.  Maintenance of Office or Agency .  The Company will maintain in The City of New York, an office or agency where the Notes may be presented or surrendered for payment, where, if applicable, the Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.  The office or agency (the “ Corporate Trust Office ”) used by the Trustee in The

 

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City of New York as its office or agency for receiving securities, as the same may from time to time be designated by the Trustee, shall be such office or agency of the Company, unless the Company shall designate and maintain some other office or agency for one or more of such purposes.  The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies (in or outside of The City of New York) where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in The City of New York for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.

 

Section 3.07.  Corporate Existence.   Subject to Article 4 hereof, each of the Company and the Guarantor will do or cause to be done all things necessary to preserve, renew and keep in full force and effect its corporate existence and take all reasonable action to maintain its corporate rights (charter and statutory), licenses, privileges and franchises; provided, however, that the Company and the Guarantor shall not be required to preserve any such right, license, privilege or franchise if the Board of Directors of the Company  or the Guarantor, as applicable, shall determine that the preservation thereof is no longer desirable in the conduct of its business and that the loss thereof is not, and will not be, disadvantageous in any material respect to the Holders; and provided further, the Guarantor may amalgamate or merge in accordance with Section 4.01 hereof.

 

Section 3.08.  Maintenance of Properties; Insurance.  The Guarantor shall, and shall cause each of its Subsidiaries to, keep all property useful and necessary in its business in good working order and condition, except where failure to do so would not have a Material Adverse Effect; and the Guarantor shall maintain with financially sound and reputable insurance companies insurance on all its property in at least such amounts and against at least such risks as are customary for the Guarantor’s type of business.

 

Section 3.09.  Payment of Taxes and Other Claims.  Each of the Company and the Guarantor shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all federal income and other material taxes, assessments and similar governmental charges imposed on it, except where (i) the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves to the extent required by U.S. GAAP with respect thereto have been provided on the books of the Company or the Guarantor or (ii) the nonpayment of such federal income and other material taxes, assessments and claims in the aggregate could not reasonably be expected to have a Material Adverse Effect.

 

Section 3.10.  Payments for Consent.  Neither the Company, the Guarantor nor any

 

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Subsidiaries of the Company or the Guarantor will, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fees or otherwise, to any Holder of any Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid or is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

 

Section 3.11.  Compliance Certificate.  The Company and the Guarantor shall deliver to the Trustee within 120 days after the end of each Fiscal Year of the Company and the Guarantor a certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and the Guarantor, respectively, stating that in the course of the performance by the signer of his or her duties as an officer of the Company and the Guarantor he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred during such period.  If he or she does, the certificate shall describe the Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.  The Company also shall comply with Trust Indenture Act, Section 314(a)(4).

 

Section 3.12.  Further Instruments and Acts.  Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.

 

Section 3.13.  Statement by Officers as to Default.   The Company shall deliver to the Trustee, as soon as possible and in any event within 10 days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officer&rs