BY THE FINANCING PARTIES UNDER THE CONSTRUCTION, TERM
AND WORKING CAPITAL CREDIT FACILITY LED BY BNP PARIBAS, AS ADMINISTRATIVE AGENT
AND BY DEUTSCHE BANK TRUST COMPANY AMERICAS OR ANY APPLICABLE ASSIGNEE OR
SUCCESSOR, AS COLLATERAL AGENT (SUCH DATE, THE "CONCESSION EFFECTIVE DATE").
SECTION 4
DEFAULT & REMEDIES
4.1
PTE DEFAULT.
EACH OF THE FOLLOWING SHALL
CONSTITUTE AN EVENT OF DEFAULT ON THE PART OF PTE (A "PTE EVENT OF DEFAULT")
UNDER THIS OMNIBUS AGREEMENT:
(a)
PTE defaults in the due performance of its
payment obligations under Section 3.1(b);
(b)
A Producer Event of Default occurs under any
of the PTE-Cargill Agreements;
(c)
PTE defaults in the due performance and
observance of any of its obligations hereunder (except its payment obligations
under Section 3.1(b);
9
(d)
PTE files a voluntary petition in
bankruptcy, has filed against it an involuntary petition in bankruptcy, makes an
assignment for the benefit of creditors or has a trustee or receiver appointed
for any or all of its assets; and
(e)
any "BLE Event of Default" as defined in
the BLE Omnibus Agreement.
4.2
REMEDIES.
IF A PTE EVENT OF DEFAULT OCCURS
FOR ANY REASON AND IS CONTINUING, IN ADDITION TO SUCH OTHER RIGHTS AND REMEDIES
CARGILL MAY HAVE UNDER THE PTE-CARGILL AGREEMENTS, THE OMNIBUS AGREEMENTS OR
APPLICABLE LAW, CARGILL MAY, UPON WRITTEN NOTICE TO PTE, TERMINATE THE
CONCESSIONARY PERIOD AND EXERCISE ALL RIGHTS AND REMEDIES AVAILABLE TO IT UNDER
THE PTE-CARGILL AGREEMENTS AND THIS OMNIBUS AGREEMENT; PROVIDED, THAT, UPON THE
OCCURRENCE OF A PTE EVENT OF DEFAULT AS DESCRIBED IN SECTION 4.1(D), NO SUCH
NOTICE SHALL BE REQUIRED TO BE DELIVERED.
UPON ANY TERMINATION OF THE
CONCESSIONARY PERIOD PURSUANT TO THIS SECTION 4.2, THE FULL AMOUNT OF THE
DEFERRED PAYMENT, TOGETHER WITH ANY INTEREST THAT HAS ACCRUED IN RESPECT OF THE
DEFERRED PAYMENT, SHALL BECOME IMMEDIATELY DUE AND PAYABLE.
SECTION 5
MISCELLANEOUS
5.1
REPRESENTATIONS AND WARRANTIES.
EACH OF THE
PARTIES HERETO REPRESENTS AND WARRANTS AS TO ITSELF THAT (A) THE EXECUTION,
DELIVERY AND PERFORMANCE BY SUCH PARTY OF THIS OMNIBUS AGREEMENT HAS BEEN DULY
AND VALIDLY AUTHORIZED BY ALL NECESSARY ACTION AND (B) THIS OMNIBUS AGREEMENT
HAS BEEN DULY AND VALIDLY EXECUTED AND DELIVERED BY SUCH PARTY AND CONSTITUTES
THE LEGAL, VALID AND BINDING OBLIGATION OF SUCH PARTY, ENFORCEABLE AGAINST SUCH
PARTY IN ACCORDANCE WITH ITS TERMS.
5.2
COSTS AND EXPENSES.
WITHOUT DUPLICATION OF
THE OBLIGATIONS OF BLE UNDER SECTION 5.2 OF THE BLE OMNIBUS AGREEMENT, PTE
AGREES TO PAY OR REIMBURSE CARGILL FOR ALL OF ITS DOCUMENTED OUT-OF-POCKET COSTS
AND EXPENSES INCURRED IN CONNECTION WITH THE PREPARATION AND EXECUTION OF THIS
OMNIBUS AGREEMENT AND ANY OTHER DOCUMENTS PREPARED IN CONNECTION THEREWITH, AND
THE CONSUMMATION AND ADMINISTRATION OF THE TRANSACTIONS CONTEMPLATED THEREBY,
INCLUDING THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL TO CARGILL.
5.3
LIMITED AMENDMENT.
THE AMENDMENTS SET FORTH
HEREIN SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCES DESCRIBED HEREIN AND
NOTHING HEREIN SHALL BE CONSTRUED TO LIMIT OR BAR ANY RIGHTS OR REMEDIES OF THE
PARTIES TO THE PTE-CARGILL AGREEMENTS.
FOR THE AVOIDANCE