"forward contract," each party thereto constitutes a "forward
contract merchant"; (ii) a "commodity contract," each party thereto constitutes
a "commodity broker," (iii) a "swap agreement," each party thereto constitutes a
"swap participant," and (iv) a "master netting agreement," each party thereto
constitutes a "master netting agreement participant," within the meaning of, and
as such terms are used in, the Bankruptcy Code or any law applicable to the
Parties' rights herein, whether now or hereafter enacted or made applicable.
The Parties agree that the Cargill Goods and Services Agreements and all of the
transactions hereunder and thereunder form a single integrated agreement among
the Parties and PTE.
The Parties hereby acknowledge and agree that the
BLE-Cargill Agreements and the PTE-Cargill Agreements were
8
negotiated and entered into simultaneously as integrated parts of one unified
transaction with a common purpose.
Without limiting the generality of the
forgoing, (i) the Parties would not have entered into one of the BLE-Cargill
Agreements or one of the PTE-Cargill Agreements without entering into all of the
BLE-Cargill Agreements and the PTE-Cargill Agreements (ii) the consideration for
such agreements is not separate and distinct, but interrelated and incorporated
by reference between all of the BLE-Cargill Agreements and the PTE-Cargill
Agreements and (iii) in the event that any of the Parties files a petition under
the Bankruptcy Code, the Parties intend that all of the BLE-Cargill Agreements
and the PTE-Cargill Agreements will either be assumed or rejected together as
one executory contract and unexpired lease under section 365 of the Bankruptcy
Code.
3.3
RESTRICTIONS ON PAYMENTS.
BLE, PTE AND ANY
PARENT OR AFFILIATED COMPANY SHALL NOT DECLARE OR PAY ANY DIVIDEND,
DISTRIBUTION, OR RETURN OF CAPITAL PRIOR TO THE EXPIRATION OF THE TERM OF THE
CONCESSIONARY PERIOD.
FOR THE AVOIDANCE OF DOUBT, THE PREVIOUS SENTENCE SHALL
NOT BE CONSTRUED TO AFFECT THE ABILITY OF BLE TO MAKE PAYMENTS OF PRINCIPAL AND
INTEREST IN THE ORDINARY COURSE OF BUSINESS TO ITS SECURED CREDITORS.
3.4
ACCOUNTING AND AUDIT RIGHTS.
WITHOUT
LIMITING THE OBLIGATIONS OF BLE IN THE MASTER AGREEMENT (INCLUDING, WITHOUT
LIMITATION, SECTION 10(Q) THEREOF), DURING THE CONCESSIONARY PERIOD, (A) BLE
SHALL PROVIDE TO CARGILL COPIES OF ALL FINANCIAL STATEMENTS, FINANCIAL
FORECASTS, FINANCIAL MODELS, BUSINESS PLANS, MATERIAL CORRESPONDENCE, AND
OPERATIONS REPORTS ("INFORMATION") FURNISHED BY BLE OR ITS REPRESENTATIVES TO
ITS OTHER LENDERS AND TRADE CREDITORS, (B) BLE SHALL FURNISH THE INFORMATION TO
CARGILL AT THE SAME TIME SUCH INFORMATION IS FURNISHED TO BLE'S OTHER LENDERS
AND TRADE CREDITORS, (C) BLE SHALL FROM TIME TO TIME PROVIDE CARGILL WITH SUCH
FINANCIAL INFORMATION AND COPIES OF RELEVANT FORBEARANCE AND STAND-STILL
AGREEMENTS AS CARGILL MAY REQUEST AND (D) CARGILL AND ITS ACCOUNTING FIRM SHALL
HAVE THE RIGHT, FROM TIME TO TIME AND AT CARGILL'S EXPENSE, TO AUDIT BLE'S
BOOKS, RECORDS, AND FINANCIAL STATEMENTS.
3.5
EFFECTIVENESS.
THIS OMNIBUS AGREEMENT SHALL
BECOME EFFECTIVE ON THE DATE ON WHICH BLE PROVIDES EVIDENCE TO CARGILL THAT THE
EXECUTION AND DELIVERY OF THIS OMNIBUS AGREEMENT BY BLE AND CARGILL HAS BEEN
CONSENTED TO IN WRITING BY THE