EXHIBIT 10.1
June 23, 2003
RiceX Company
0000 Xxxx'x Xxxxxx Xxxxx
Xxxxx 000
Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention:
Ladies and Gentlemen:
Re: Overseas Private Investment Corporation ("OPIC") Commitment to
Provide a Credit Facility to RiceX Central America (the "COMPANY")
Ladies and Gentlemen:
This letter (this "LETTER") and the Summary of Terms and Conditions
(the "TERM SHEET"), attached hereto as Annex A (this Letter, together with the
Term Sheet, the "COMMITMENT LETTER"), constitute and set forth the terms and
conditions of OPIC's commitment to provide a loan facility in the aggregate
principal amount of up to US$6,000,000, pursuant to Section 234(c) of the
Foreign Assistance Act of 1961, as amended, to RiceX Central America, an entity
to be formed as a wholly-owned subsidiary of RiceX Company (the "CREDIT
FACILITY"). OPIC is willing to provide the Credit Facility on the terms and
conditions set forth in this Commitment Letter. By signing this Commitment
Letter, RiceX Company (the "SPONSOR") (i) confirms its intention to form the
Company as a wholly-owned subsidiary of the Sponsor, (ii) confirms its intention
to cause the Company to borrow a loan or loans (the "LOAN") under the Credit
Facility on the terms and conditions set forth herein, and (iii) acknowledges
and agrees to its obligations hereunder.
The Sponsor represents and warrants to OPIC, as to itself and as to the
Company, where appropriate, that:
(a) the execution and delivery of this Commitment Letter has been duly
authorized by the Sponsor, and this Commitment Letter constitutes a valid,
legal, and binding obligation of such party;
(b) all of the information, data, representations, or other materials
that have been or will be made available to OPIC by the Company, the Sponsor, or
their respective representatives is, or will be at the time such information is
made available, complete and correct in all material respects and does not, or
will not at the time such information is made available, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein not misleading in light of the
circumstances under which such statements are made; and
(c) the Sponsor, and its officers, directors, employees, and agents,
(i) have complied with the Foreign Corrupt Practices Act of 1977 (Pub. L. No.
95-213, ss.ss.101-104), as amended, and all other laws, regulations, orders,
decrees, or directives having the force of law and relating to bribery,
kick-backs, or similar business practices (collectively, the "CORRUPT PRACTICES
LAWS") in obtaining any consents, licenses, approvals, authorizations, rights,
or privileges in respect of the Project; (ii) have the internal management and
accounting practices and controls adequate to ensure compliance with applicable
Corrupt Practices Laws; and (iii) are otherwise conducting their respective
businesses in compliance with all applicable Corrupt Practices Laws.
The Sponsor covenants and agrees for so long as this Commitment Letter
is in effect, to comply with all applicable Corrupt Practices Laws and to
maintain internal management and accounting practices and controls adequate to
ensure compliance with applicable Corrupt Practices Laws
The Sponsor and the Company shall, jointly and severally, pay when due
the Facility Fee (as defined in the Term Sheet) that becomes due and payable on
or prior to the date of execution of a definitive loan agreement between OPIC
and the Company setting forth the terms and conditions of the Credit Facility
(the "LOAN AGREEMENT").
Each of the Sponsor and the Company shall, jointly and severally, pay
or, at OPIC's discretion, reimburse OPIC or such persons as OPIC may direct on
demand by OPIC for all expenses (including fees and expenses for outside legal
counsel and consultants) incurred by OPIC in connection with the issuance of
this Commitment Letter and the negotiation and preparation of the Loan Agreement
and the documents, instruments, and approvals required to be delivered
thereunder, and for all other reasonable out of pocket expenses incurred by
OPIC, as well as any costs of collecting any amount due under this Commitment
Letter.
The Company shall at all times indemnify and hold harmless (the
"INDEMNITY"), OPIC and its directors, officers, controlling persons, employees,
advisors, agents, and servants (each, an "INDEMNIFIED PERSON") from and against
and reimburse such Indemnified Persons for (i) any and all losses, claims,
damages, liabilities, penalties, costs and expenses of any kind or nature
whatsoever in any way relating to or arising out of or in connection with this
Commitment Letter to which an Indemnified Person may become subject (each, a
"LOSS"); and (ii) any and all claims, litigation, investigations, or proceedings
relating to any Loss regardless of whether any Indemnified Person is a party
thereto, and any and all costs and expenses incurred by an Indemnified Person in
defending, analyzing, settling, or resolving a Loss (the "COSTS OF DEFENSE").
The Indemnity shall not apply to the extent that a court or arbitral tribunal of
competent jurisdiction renders a final determination that a Loss or a Cost of
Defense resulted from (i) the gross negligence or willful misconduct of an
Indemnified Person, or (ii) OPIC's failure to perform any act required of it
under this Commitment Letter. The foregoing indemnity is independent of and in
addition to any other rights of any Indemnified Person in connection with any
Loss or Costs of Defense hereunder, under any other agreement, or at law. OPIC
and each other Indemnified Person shall have the right to control its, his, or
her defense; provided, however, that (a) outside (i.e., non-government) counsel
selected by OPIC and each other Indemnified Person shall be reasonably
acceptable to the Company, and (b) each Indemnified
Person shall (i) notify the Company in writing as soon as practicable of any
Loss or Cost of Defense, and (ii) keep the Company reasonably informed of
material developments with respect thereto.
The Sponsor shall indemnify and hold harmless (collectively, the
"Sponsor Indemnity"), at all times, each Indemnified Person for any Loss and any
Costs of Defense that arise from or in relation to (a) any impact on the
environment caused by or otherwise related to the Project if any final judgment
or arbitral award is entered against, or any settlement is entered into by the
Sponsor in connection with such Loss, and in connection with such Loss any final
judgment, or arbitral award is entered against, or settlement is entered into
by, an Indemnified Person, whether in the same or different proceedings or
settlement agreements, (b) fraud by the Company, the Sponsor, or an affiliate of
either of them, or (c) any dispute between or among the Sponsor, its
shareholders, or the Company.
If for any reason the Loan Agreement is not executed and delivered on
or before December 31, 2003, OPIC's obligations hereunder shall terminate. In
addition, by written notice to the Company and the Sponsor, OPIC may, at any
time, terminate its obligations hereunder and pursue any rights and remedies
then available to OPIC upon the occurrence of any of the following: (a) a
Sponsor or the Company fails or refuses to comply in a timely manner with any of
the terms, provisions, or conditions of this Commitment Letter; (b) OPIC, in its
sole judgment, determines that a material adverse change has occurred or is
reasonably likely to occur in (i) business, operations, property, condition
(financial or otherwise) or prospects of the Company, the Sponsor, or the
Project, (ii) the ability of the Company or any Sponsor to carry out the Project
or to perform its respective obligations hereunder or under the Loan Agreement
or under any other document executed in connection therewith, or (iii) the
condition or value of any security; (c) any of the information, data,
representations, or other materials submitted to OPIC by a Sponsor or the
Company contains any inaccuracy, omission, or misrepresentation that is material
to OPIC's decision to provide the Credit Facility on the terms set forth herein;
(d) it becomes unlawful for OPIC to make or maintain any commitment to extend
credit or allocate funds for the Project due to the adoption of, change in,
change in the interpretation of, or change in the effectiveness of, any
applicable law after the date of this Commitment Letter; or (e) OPIC, in its
sole judgment, is not satisfied with the results of its due diligence
investigation. Upon any such termination (except pursuant to clause (d)), the
Company or the Sponsor shall pay to OPIC on demand any fees, expenses, or other
amounts then due hereunder.
The representations and warranties, and the payment, reimbursement, and
indemnification provisions contained herein shall survive the execution of the
Loan Agreement and any modification, cancellation, termination, or expiration of
this Commitment Letter or the Credit Facility.
All payments due hereunder to OPIC shall be paid in U.S. dollars by
wire transfer as follows:
U.S. Treasury Department
New York, NY
ABA No. 0000-0000-0
TREAS NYC/CTR/BNF=AC-71000001
OBI=OPIC Loan Number 520-2003-468-DI.
All payments shall be made without withholding or deduction of any tax,
assessment, or other governmental charge (collectively, "TAX") unless required
by law. If the Company or any Sponsor is required to deduct or withhold any Tax,
it shall be obligated to pay to OPIC such additional amounts as are required to
result in OPIC's receipt of a net amount, from the Company or such Sponsor after
such deduction, withholding, or payment of the Tax, that is equal to the amount
otherwise due to OPIC hereunder.
The illegality or unenforceability of any provision of this Commitment
Letter shall not in any way affect or impair the legality or enforceability of
the remaining provisions hereof. If, and to the extent that, the obligations of
any party hereunder are unenforceable for any reason, such party shall make the
maximum contribution to the payment and satisfaction thereof as is permissible
under applicable law.
Neither the Company nor the Sponsor may assign this Commitment Letter
or any rights hereunder to any person or entity. This Commitment Letter is for
the sole benefit of the Company, the Sponsor, and OPIC, and no other person
(other than the Indemnified Persons) shall be a direct or indirect beneficiary
of, be entitled to rely on, or have any direct or indirect cause of action or
claim in connection with, this Commitment Letter.
THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Commitment Letter
or any document related hereto may be brought in the courts of the District of
Columbia, the State of New York, or the United States of America for the
Southern District of New York, and, by execution and delivery of this Commitment
Letter, each of the Sponsor and the Company accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each of the Sponsors and the Company hereby accepts venue in each such
court.
EACH OF THE SPONSOR AND THE COMPANY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, OR
RELATED TO, THIS COMMITMENT LETTER OR ANY OTHER INSTRUMENT, DOCUMENT, OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
This Commitment Letter may be executed in separate counterparts, each
of which shall be an original, and all of which taken together shall constitute
one and the same agreement.
If this Commitment Letter correctly sets forth our agreement, please
indicate your acceptance of the terms hereof by signing and returning to OPIC an
executed original counterpart of this Commitment Letter no later than July 15,
2003. Upon timely receipt of such signed counterpart (by facsimile with the
original to follow by overnight courier) by OPIC, this Commitment Letter shall
constitute an effective and legally binding agreement between us as of the date
hereof.
Very truly yours,
OVERSEAS PRIVATE INVESTMENT CORPORATION
By: /s/ XXXXX XXXXX
-----------------------------
Name: Xxxxx Xxxxx
Title:
ACKNOWLEDGED AND AGREED TO as of the date of this Commitment Letter:
RICEX COMPANY
By: /s/ XXXXXX X. XXXXXX, XX.
----------------------------------
Name: Xxxxxx XxXxxx, Xx.
Title: CEO/COB
ANNEX A*
*TERMS AND CONDITIONS GIVEN CONFIDENTIAL TREATMENT.
