TABLE OF CONTENTS

 

		Page
SECTION 1.	DEFINITIONS	1
1.1	Defined Terms	1
1.2	Other Definitional Provisions	18
SECTION 2.	AMOUNT AND TERMS OF COMMITMENTS	19
2.1	Commitments	19
2.2	Procedure for Loan Borrowing	21
2.3	Commitment Fees, etc	22
2.4	Termination or Reduction of Commitments	22
2.5	Prepayments	22
2.6	Conversion and Continuation Options	23
2.7	Limitations on Eurocurrency Borrowings	24
2.8	Interest Rates and Payment Dates	24
2.9	Computation of Interest and Fees	25
2.10	Inability to Determine Interest Rate	25
2.11	Pro Rata Treatment and Payments	26
2.12	Requirements of Law	27
2.13	Taxes	29
2.14	Indemnity	30
2.15	Change of Lending Office	31
2.16	Illegality	31
2.17	Replacement of Lenders	31
2.18	Judgment Currency	32
SECTION 3.	REPRESENTATIONS AND WARRANTIES	32
3.1	No Change	33
3.2	Existence; Compliance with Law	33
3.3	Power; Authorization; Enforceable Obligations	33
3.4	No Legal Bar	33
3.5	Litigation	34
3.6	No Default	34
3.7	Ownership of Property; Liens	34
3.8	Taxes	34
3.9	Federal Regulations	34
3.10	Investment Company Act; Other Regulations	34
3.11	No Subsidiaries	34
3.12	Use of Proceeds	34
3.13	Solvency	34
3.14	Limited Purpose	35
3.15	Financial Condition	35

 

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		Page
SECTION 4.	CONDITIONS PRECEDENT	35
4.1	Conditions to Effectiveness	35
4.2	Conditions to Each Loan	37
SECTION 5.	COVENANTS	37
5.1	Affirmative Covenants	37
5.2	Negative Covenants	40
5.3	Use of Websites	43
SECTION 6.	EVENTS OF DEFAULT	43
SECTION 7.	THE AGENTS	46
7.1	Appointment	46
7.2	Delegation of Duties	47
7.3	Exculpatory Provisions	47
7.4	Reliance by Administrative Agent	47
7.5	Notice of Default	47
7.6	Non-Reliance on Agents and Other Lenders	48
7.7	Indemnification	48
7.8	Agent in Its Individual Capacity	49
7.9	Successor Administrative Agent	49
7.10	Syndication Agent and Documentation Agent	49
7.11	Agent Communications	49
SECTION 8.	MISCELLANEOUS	50
8.1	Amendments and Waivers	50
8.2	Notices	51
8.3	No Waiver; Cumulative Remedies	52
8.4	Survival of Representations and Warranties	52
8.5	Payment of Expenses and Taxes	52
8.6	Successors and Assigns; Participations and Assignments	53
8.7	Adjustments; Set-off	56
8.8	Counterparts	56
8.9	Severability	56
8.10	Integration	57
8.11	Governing Law	57
8.12	Submission To Jurisdiction; Waivers	57
8.13	Acknowledgements	57
8.14	Confidentiality	58
8.15	WAIVERS OF JURY TRIAL	58
8.16	No Bankruptcy Petition Against the Borrower; Liability of the Borrower	59
8.17	Conversion of Approved Currencies into Dollars	59
8.18	U.S.A. Patriot Act	59

 

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SCHEDULES :
1.1	Commitments
1.1A	Mandatory Cost Formula
3.3	Consents, Authorizations, Filings and Notices
EXHIBITS :
A	Form of Guaranty Agreement
B-1	Form of Borrower Responsible Officer’s Certificate
B-2	Form of Borrower Secretary Certificate
B-3	Form of Guarantor Responsible Officer’s Certificate
B-4	Form of Guarantor Secretary Certificate
C	Form of Assignment and Acceptance
D-1	Form of Legal Opinion of Reed Smith LLP
D-2	Form of Legal Opinion of Conyers Dill & Pearman
E	Form of Exemption Certificate
F	Form of Commitment Increase Supplement
G	Form of Additional Lender Supplement

 

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REVOLVING CREDIT AGREEMENT (as amended, supplemented or otherwise modified in accordance with the terms hereof and in effect from time to time, this “ Agreement ”), dated as of June 3, 2009, among BUNGE LIMITED FINANCE CORP., a Delaware corporation (the “ Borrower ”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “ Lenders ”), CITIBANK, N.A., as syndication agent (the “ Syndication Agent ”), BNP PARIBAS, CALYON NEW YORK BRANCH and COBANK, ACB, each as a documentation agent, (each, a “ Documentation Agent ” and collectively, the “ Documentation Agents ”) and JPMORGAN CHASE BANK, N.A., as administrative agent.

 

The parties hereto hereby agree as follows:

 

SECTION 1.   DEFINITIONS

 

1.1           Defined Terms .  As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

 

“ ABR ”:  for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%.  For the purposes of clause (c) above, the Administrative Agent shall assume that the reference Eurocurrency Loan would be denominated in Dollars.  For purposes hereof, “ Prime Rate ” shall mean the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank, N.A. in connection with extensions of credit to debtors).  Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or the one month Adjusted LIBO Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the one month Adjusted LIBO Rate, respectively.

 

“ ABR Loans ”:  Loans the rate of interest applicable to which is based upon the ABR.

 

“ Additional Lender ”:  as defined in Section 2.1(b)(ii).

 

“ Additional Lender Supplement ”:  as defined in Section 2.1(b)(ii).

 

“ Adjusted LIBO Rate ”:  with respect to any Eurocurrency Loan for each day during each Interest Period (or, as applicable, for purposes of determining ABR with respect to an ABR Loan for any day by reference to a one month Interest Period), an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that, with respect to any Eurocurrency Loan denominated in the Optional Currency, the Adjusted LIBO Rate shall mean the LIBO Rate.

 

“ Administrative Agent ”:  JPMorgan Chase Bank, N.A., together with its Affiliates, as the arranger of the Commitments and as the administrative agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors.

 

 

“ Administrative Agent (London Office) ”:  for designated notice purposes only, J.P. Morgan Europe Limited.

 

“ Affiliate ”:  with respect to any specified Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified Person.  For purposes of this definition “control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“ Agents ”:  the collective reference to the Syndication Agent, the Documentation Agent and the Administrative Agent.

 

“ Aggregate Exposure ”:  with respect to any Lender at any time, an amount (expressed in the Base Currency) equal to the amount of such Lender’s Commitment then in effect or, if the Commitments have been terminated, the Dollar Equivalent of such Lender’s Loans then outstanding.

 

“ Aggregate Exposure Percentage ”:  with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.

 

“ Agreement ”:  as defined in the preamble hereto.

 

“ Annex X ”:  Annex X (as amended, supplemented or otherwise modified and in effect from time to time) attached to the Pooling Agreement.

 

“ Applicable Margin ”:  the greater of (i) the per annum rate calculated as a percentage of the CDX Index and (ii) the per annum floor rate, in each case as set forth in the applicable row of the table below:

 

Rating		Percentage of the CDX Index		Applicable Floor Rate
Level I		85	%	2.00	%
Level II		100	%	2.50	%
Level III		125	%	3.00	%
Level IV		150	%	3.75	%
Level V		175	%	4.50	%

 

“ Applicable Moody’s Rating ”: the senior long-term unsecured debt rating that Moody’s provides of (i) the Guarantor or (ii) if Moody’s does not provide such a rating of the Guarantor, then the Master Trust or (iii) if Moody’s does not provide such a rating of the Guarantor or the Master Trust, then the Borrower.

 

“ Applicable S&P Rating ”: the senior long-term unsecured debt rating that S&P provides of (i) the Guarantor or (ii) if S&P does not provide such a rating of the Guarantor, then

 

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the Master Trust or (iii) if S&P does not provide such a rating of the Guarantor or the Master Trust, then the Borrower.

 

“ Assignee ”:  as defined in Section 8.6(c).

 

“ Assignment and Acceptance ”:  an Assignment and Acceptance, substantially in the form of Exhibit C.

 

“ Assignor ”:  as defined in Section 8.6(c).

 

“ Available Commitment ”:  as to any Lender at any time, an amount equal to such Lender’s Commitment then in effect minus:

 

(a)                                   the Dollar Equivalent of the principal amount of its outstanding Loans on such date; and

 

(b)                                  for purposes of Section 2.2 only, in relation to any proposed borrowing or Loan, the Dollar Equivalent of the principal amount of any Loans that are due to be made by such Lender on or before the proposed Borrowing Date.

 

“ BAFC ”:  Bunge Asset Funding Corp., a Delaware corporation, and its successors and permitted assigns.

 

“ Base Currency ”:  Dollars.

 

“ Benefitted Lender ”:  as defined in Section 8.7(a).

 

“ BFE ”:  Bunge Finance Europe B.V., a company organized under the laws of The Netherlands, and its successors and permitted assigns.

 

“ Board ”:  the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

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

 

“ Borrower ”:  as defined in the preamble hereto.

 

“ Borrower Account ”:  any account established by or for the Borrower, other than the Series 2002-1 Collection Subaccount (or any sub-subaccount thereof), for the purpose of depositing funds borrowed hereunder or under any Pari Passu Indebtedness, any amounts paid pursuant to the Series 2002-1 VFC and all amounts received with respect to Hedge Agreements.

 

“ Borrower Permitted Lien ”:  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 and reserves to the extent required by GAAP with respect thereto have been provided on the books of the Borrower.

 

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“ Borrowing ”:  Loans of the same Type and currency, made, converted or continued on the same date to the Borrower and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.

 

“ Borrowing Date ”:  any Business Day specified by the Borrower as a date on which the Borrower requests the Lenders to make Loans hereunder.

 

“ Borrowing Time ”:  as defined in Section 2.2.

 

“ Bunge Funding ”:  Bunge Funding, Inc., a Delaware corporation, and its successors and permitted assigns.

 

“ Business Day ”:  a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close, provided , that (a) with respect to notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Loans, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in the currency in which such Eurocurrency Loan is denominated in the London interbank market and (b) when used in connection with any Eurocurrency Loan denominated in the Optional Currency, the term “Business Day” shall also exclude any day on which the TARGET payment system is not open for the settlement of payment in Euro.

 

“ Capital Stock ”:  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).

 

“ CDX Index ”:  the rate per annum determined by the Administrative Agent (i) with respect to any Eurocurrency Loan, three (3) Business Days prior to the commencement of each Interest Period applicable to such Eurocurrency Loan, and thereafter, in the case of any Eurocurrency Loan having an Interest Period greater than three (3) months, at the end of each successive three (3) month period during such Interest Period, and (ii) with respect to any ABR Loan, on the Closing Date and on the last Business Day of each calendar quarter, in each case by reference to the closing Markit CDX.NA.IG Series 12 or any successor series (5 year period) for such day; provided that, to the extent the Administrative Agent determines that a rate is not ascertainable pursuant to the foregoing provisions of this definition, the “CDX Index” on any date of determination shall be the rate most recently determined by the Administrative Agent unless and until the Borrower and each of the Lenders agree on an alternative method of calculating the Applicable Margin.

 

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

 

(1)                                   the Guarantor becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) 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

 

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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, in one or a series of related transactions, 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.

 

“ Closing Date ”:  the date on which the conditions precedent set forth in Section 4.1 shall have been satisfied, which date is June 3, 2009.

 

“ Code ”:  the United States Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

 

“ Commitment ”:  as to any Lender, the obligation of such Lender to make Loans in an aggregate Dollar Equivalent principal amount not to exceed the amount set forth in the Base Currency under the heading “Commitment” opposite such Lender’s name on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such Lender became a party hereto, as the same may be increased or reduced from time to time pursuant to the terms hereof.  The original amount of the Total Commitments is $645,000,000.

 

“ Commitment Fee Rate ”:  the rate per annum set forth in the applicable row of the table below:

 

Rating		Commitment Fee Rate
Level I		0.375	%
Level II		0.50	%
Level III		0.625	%
Level IV		0.75	%
Level V		1.00	%

 

“ Commitment Increase Supplement ”:  as defined in Section 2.1(b)(ii).

 

“ Commitment Period ”:  the period from and including the Closing Date to the earlier of (a) the Termination Date or (b) the date of termination of the Commitments in accordance with the terms hereof.

 

“ Conduit Lender ”:  any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided , that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and

 

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responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and provided , further , that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Section 2.12, 2.13, 2.14 or 8.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Commitment.

 

“ Continuing Directors ”: as of any date of determination, any member of the Board of Directors of the Guarantor who (a) was a member of such Board of Directors on the Closing Date; or (b) 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).

 

“ Contractual Obligation ”:  as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

“ Daily Report ”:  a report prepared by the Servicer on each Business Day required pursuant to Section 4.01 of the Servicing Agreement or Section 5.1(n) of this Agreement, in substantially the form of Exhibit B attached to the Series 2002-1 Supplement.

 

“ Default ”:  any of the events specified in Section 6, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

 

“ Defaulted Loan ”:  any Purchased Loan with respect to which the related Obligor or the Guarantor has failed to make any payment due and owing (whether at the stated maturity, by acceleration or otherwise) for a period of at least eight (8) days or more.

 

“ Defaulting Lender ”:  any Lender that (a) has failed to fund any portion of its Loans required to be funded by it hereunder within three (3) Business Days of the date required to be funded by it hereunder, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement, (c) has otherwise failed to pay over to the Administrative Agent any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless the subject of a good faith dispute, or (d) (i) is insolvent or (ii) has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided , that a Lender shall not become a “Defaulting Lender” solely as a result of the acquisition or maintenance of an ownership interest in such Lender or Person controlling such Lender or the exercise of control over a Lender or Person controlling such Lender by a Governmental Authority or instrumentality thereof.

 

“ Delinquent Loan ”:  any Purchased Loan (a) with respect to which the related Obligor or the Guarantor has failed to make any payment due and owing (whether at the stated

 

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maturity, by acceleration or otherwise) for a period of at least one (1) day but not greater than seven (7) days or (b) as to which an Insolvency Event has occurred with respect to the related Obligor.

 

“ Designated Obligors ”:  the Guarantor and the Subsidiaries of the Guarantor set forth on Schedule IV to the Guaranty Agreement hereto (and their successors) and any other Subsidiaries of the Guarantor designated by the Guarantor from time to time that satisfy the conditions set forth in the definition of “Eligible Obligor” in Annex X to the Pooling Agreement.  Notwithstanding the immediately preceding sentence, with the prior written consent of the Required Lenders (which consent shall not be unreasonably withheld), the Guarantor may from time to time identify the Guarantor and certain Subsidiaries that shall not be classified as Designated Obligors.

 

“ Designated Website ”: as defined in Section 5.3(a).

 

“ Dollar Equivalent ”:  on any date of determination (a) with respect to any amount denominated in the Base Currency, such amount, and (b) with respect to any amount denominated in the Optional Currency or any other Master Trust Approved Currency, the equivalent in Dollars of such amount, determined by the Administrative Agent pursuant to Section 1.2(e) using the Rate of Exchange with respect to such currency on such date in effect under the provisions of such Section.

 

“ Dollars ” and “ $ ”:  dollars in lawful currency of the United States.

 

“ EMU Legislation ”:  the legislative measures of the European Council for the introduction of, change over to or operation of a single unified European currency.

 

“ Environmental Laws ”:  any and all foreign, Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time hereafter be in effect.

 

“ ERISA ”:  the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

“ ERISA Affiliate ”:  with respect to any Person, any trade or business (whether or not incorporated) that is a member of a group of which such Person is a member and which is treated as a single employer under Section 414 of the Code.

 

“ ERISA Event ”:  (a) (i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) any failure by any Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether

 

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or not waived, the filing of an application for a minimum funding waiver with respect to a Plan, or the failure to make by its due date a required installment under Section 412(m) of the Code with respect to any Plan or the failure by the Borrower or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of the Borrower or any of its ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any of its ERISA Affiliates from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan; (i) a determination that any Plan is, or is expected to be, in “at risk” status, within the meaning of Section 430 of the Code; or (j) the receipt by the Borrower or any of its ERISA Affiliates of a determination that a Multiemployer Plan is in endangered or critical status, within the meaning of Section 432 of the Code or Section 305 of ERISA.

 

“ Euro ” and “ EUR ”:  the single lawful currency introduced at the start of the third stage of the European Economic and Monetary Union pursuant to a treaty establishing the European Union (as amended from time to time).

 

“ Eurocurrency ”:  when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate (other than an ABR Loan that bears interest at the ABR determined by reference to the Adjusted LIBO Rate).

 

“ Event of Default ”:  any of the events specified in Section 6, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

 

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

 

“ Existing Credit Facilities ”:  (i) the revolving credit facility provided to the Borrower pursuant to that certain Revolving Credit Agreement, dated as of November 18, 2008, among the Borrower, Citibank, N.A., as syndication agent, BNP Paribas, as documentation agent, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders party thereto and (ii) the revolving credit facility provided to the Borrower pursuant to that certain Third Amended and Restated Revolving Credit Agreement, dated as of November 15, 2005, among the Borrower, Citibank, N.A., as syndication agent, BNP Paribas, Credit Suisse and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank International”, New York Branch, as documentation agents, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders party thereto.

 

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“ Federal Funds Effective Rate ”:  for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by JPMorgan Chase Bank, N.A. from three federal funds brokers of recognized standing selected by it.

 

“ Funding Office ”:  the office of the Administrative Agent specified in Section 8.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.

 

“ GAAP ”:  generally accepted accounting principles in the United States as in effect from time to time.

 

“ Governmental Authority ”:  any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

“ Group Members ”:  the collective reference to the Borrower, the Guarantor and the Designated Obligors.

 

“ Guaranty Agreement ”:  the Guaranty to be executed and delivered by the Guarantor, substantially in the form of Exhibit A.

 

“ Guarantee Obligation ”:  as to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) with respect to which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “ primary obligations ”) of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided , however , that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such

 

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guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

 

“ Guarantor ”:  Bunge Limited, a company incorporated under the laws of Bermuda, as guarantor pursuant to the Guaranty Agreement.

 

“ Hedge Agreements ”:  all 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.

 

“ Hedge Termination Amounts ”:  as the context requires hereunder, all amounts (i) due and owing by the Borrower or (ii) received by the Borrower, in each case in connection with the termination of a Hedge Agreement entered into by the Borrower.

 

“ Increasing Lender ”: as defined in Section 2.1(b)(ii).

 

“ Indebtedness ”:  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 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 an 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 Guarantee Obligations of such Person (other than guarantees of obligations of direct or indirect Subsidiaries of such Person).

 

“ Insolvency Event ”:  as defined in Annex X to the Pooling Agreement.

 

“ Interest Payment Date ”:  (a) as to any ABR Loan, the last day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurocurrency Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Eurocurrency Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan, the date of any repayment or prepayment made in respect thereof.

 

“ Interest Period ”:  as to any Eurocurrency Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurocurrency Loan, and ending one, two, three, four, five or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the immediately preceding Interest Period applicable to such Eurocurrency Loan, and ending one, two, three or

 

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six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than (x) with respect to a Eurocurrency Loan denominated in the Base Currency, 10:00 A.M., New York City time, on the date that is three (3) Business Days prior to the last day of the then current Interest Period with respect thereto and (y) with respect to a Eurocurrency Loan denominated in the Optional Currency, 10:00 A.M., New York City time, on the date that is four (4) Business Days prior to the last day of the then current Interest Period with respect thereto; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:

 

(i)                                      if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

 

(ii)                                   the Borrower may not select an Interest Period that would extend beyond the Termination Date;

 

(iii)                                any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; and

 

(iv)                               the Borrower shall select Interest Periods so as not to require a payment or prepayment of the principal of any Eurocurrency Loan during an Interest Period for such Loan.

 

“ Investor Certificateholder ”:  as defined in Annex X to the Pooling Agreement.

 

“ Lender Affiliate ”:  (a) any Affiliate of any Lender, (b) any Person that is administered or managed by any Lender or any Affiliate of any Lender and that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and (c) with respect to any Lender which is a fund that invests in commercial loans and similar extensions of credit, any other fund that invests in commercial loans and similar extensions of credit and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such Lender or investment advisor.

 

“ Lenders ”:  as defined in the preamble hereto; provided , that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender.

 

“ Level I ”, “ Level II ”, “ Level III ”, “ Level IV ” and “ Level V ”:  the respective Level set forth below:

 

		S&P		Moody’s
Level I		BBB+ or higher		Baa1 or higher
Level II		BBB		Baa2
Level III		BBB-		Baa3
Level IV		BB+		Ba1
Level V		BB or lower		Ba2 or lower

 

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provided that if on any day the Applicable Moody’s Rating and the Applicable S&P Rating do not coincide for any rating category and the Level differential is (x) one level, then the higher of the Applicable S&P Rating or the Applicable Moody’s Rating will be the applicable Level; (y) two levels, the Level at the midpoint will be the applicable Level; and (z) more than two levels, the higher of the intermediate Levels will be the applicable Level.

 

“ LIBO Rate ”:  (a) with respect to any Eurocurrency Loan denominated in the Base Currency for each day during each Interest Period (or, as applicable, for purposes of determining ABR with respect to an ABR Loan for any day by reference to a one month Interest Period), the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period (or, in the case of any determination of ABR, on the day of determination) by reference to the British Bankers’ Association Interest Settlement Rates for deposits in the Base Currency (as reflected on the applicable Reuters screen page), for a period equal to such Interest Period, and (b) with respect to any Eurocurrency Loan denominated in the Optional Currency for each day during each Interest Period, the rate appearing on the Reuters screen EURIBOR01 page (it being understood that this rate is the Euro interbank offered rate (known as the “EURIBOR Rate”) sponsored by the Banking Federation of the European Union (known as the “FBE”) and the Financial Markets Association (known as the “ACI”)) at approximately 10:00 a.m., Brussels time, two (2) Business Days prior to the commencement of such Interest Period, as the rate for deposits in Euro with a maturity comparable to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the rate at which the Administrative Agent offers to place deposits in the currency of such Borrowing for such Interest Period to major banks in the London interbank market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period (or, in the case of any determination of ABR, on the day of determination).

 

“ Lien ”:  with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest in or on such asset  and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement relating to such asset.

 

“ Loan ”:  any loan made by any Lender pursuant to this Agreement.

 

“ Loan Documents ”:  this Agreement, the Guaranty Agreement and the Notes.

 

“ Loan Parties ”:  each Group Member that is a party to a Loan Document.

 

“ Mandatory Cost ”:  with respect to any period, the percentage rate per annum determined in accordance with Schedule 1.1A.

 

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“ Mandatory CP Wind-Down Event ”: as defined in Annex X to the Pooling Agreement.

 

“ Master Trust ”:  the Bunge Master Trust created by the Pooling Agreement.

 

“ Master Trust Approved Currency ”:  Dollars, Euro, Sterling and Yen.

 

“ Material Adverse Effect ”:  (a) a material adverse effect on the business, property, operations, condition (financial or otherwise) or prospects of the Borrower or of the Guarantor and its consolidated Subsidiaries taken as a whole, (b) a material impairment of the collectibility of the Purchased Loans taken as a whole or (c) a material impairment of the validity or enforceability of this Agreement or any of the other Loan Documents or of the Transaction Documents or the rights or remedies of the Administrative Agent or the Lenders against the Borrower or the Guarantor hereunder or under the other Loan Documents.

 

“ Monthly Settlement Statement ”:  as defined in Annex X to the Pooling Agreement.

 

“ Moody’s ”:  Moody’s Investors Service, Inc. or any successor thereto.

 

“ Multiemployer Plan ”:  with respect to any Person, a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which such Person or any ERISA Affiliate of such Person (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code) is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

 

“ Multiple Employer Plan ”:  a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any of its ERISA Affiliates and at least one Person other than the Borrower and its ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any of its ERISA Affiliates could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

 

“ Non-Excluded Taxes ”:  as defined in Section 2.13(a).

 

“ Non-U.S. Lender ”:  as defined in Section 2.13(d).

 

“ Notes ”:  the collective reference to any promissory note evidencing Loans.

 

“ Obligations ”:  the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Administrative Agent or to any Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest,

 

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reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.

 

“ Obligor ”:  as defined in Annex X to the Pooling Agreement.

 

“ Optional Currency ”:  Euro.

 

“ Other Lender ”: as defined in Section 2.1(b)(i).

 

“ Other Taxes ”:  any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

 

“ Pari Passu Indebtedness ”:  the Dollar Equivalent of (i) Indebtedness for borrowed money, the proceeds of which are used to either increase the Series 2002-1 Invested Amount, refinance Indebtedness originally used for such purpose and/or pay expenses incurred in connection with this Agreement or any such other Indebtedness, and (ii) indebtedness incurred in connection with Hedge Agreements entered into in connection with the Commitments hereunder and any Pari Passu Indebtedness described in clause (i) above, in each case which ranks not greater than pari passu (in priority of payment) with the Loans.

 

“ Participant ”:  as defined in Section 8.6(b).

 

“ Participating Member State ”:  each state so described in any EMU Legislation.

 

“ Payment Period ”:  a period commencing on a date on which the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents have become due and payable (whether at the stated maturity, by acceleration or otherwise) and ending on the date the Loans (with accrued interest thereon) and all such other amounts are paid in full by the Borrower or the Guarantor.

 

“ PBGC ”:  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA and any Person succeeding to the functions thereof.

 

“ Performing Lender ”:  any Lender that is a Defaulting Lender solely as a result of the occurrence of an event described in clause (d) of the definition of Defaulting Lender that following such event continues to perform all of its obligations under this Agreement and any other Loan Document, and has not been replaced in accordance with Section 2.17(b).

 

“ Permitted Indebtedness ”:  (a) Indebtedness of the Borrower pursuant to this Agreement and (b) Pari Passu Indebtedness.

 

“ Person ”:  an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

 

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“ Plan ”:  a Single Employer Plan or a Multiple Employer Plan.

 

“ Pooling Agreement ”:  the Fifth Amended and Restated Pooling Agreement, dated as of June 28, 2004, among Bunge Funding, Bunge Management Services, Inc., as servicer and the Trustee named therein, as the same may be amended, supplemented or otherwise modified from time to time.

 

“ Potential Series 2002-1 Early Amortization Event ”:  an event which, with the giving of notice or the lapse of time or both, would constitute a Series 2002-1 Early Amortization Event.

 

“ Purchased Loans ”:  as defined in Annex X to the Pooling Agreement.

 

“ Rate of Exchange ”:  as of the relevant date, the rate of exchange set forth on the relevant page of the Reuters screen on or about 11:00 A.M., New York time, for the purchase of (as the context shall require) a Master Trust Approved Currency with any other Master Trust Approved Currency on such date.

 

“ Register ”:  as defined in Section 8.6(d).

 

“ Regulation U ”:  Regulation U of the Board as in effect from time to time.

 

“ Required Lenders ”:  at any time, the holders of more than 50% of the Aggregate Exposure Percentage.

 

“ Requirement of Law ”:  as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“ Responsible Officer ”:  as to any Person, any member of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President of such Person or any other officer of such Person customarily performing functions similar to those performed by any of the above-designated officers.

 

“ S&P ”:  Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or any successor thereto.

 

“ Sale Agreement ”: the Second Amended and Restated Sale Agreement, dated as of September 6, 2002, among Bunge Funding, as Buyer, Bunge Finance Limited, a Bermuda company, as a Seller, and Bunge Finance North America, Inc., a Delaware corporation, as a Seller, as the same may be amended, supplemented or otherwise modified from time to time.

 

“ Series ”:  as defined in Annex X to the Pooling Agreement.

 

“ Series 2002-1 Accrued Interest ”:  as defined in Annex X to the Pooling Agreement.

 

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“ Series 2002-1 Allocated Loan Amount ”:  as defined in Annex X to the Pooling Agreement.

 

“ Series 2002-1 Collection Subaccount ”:  as defined in Annex X to the Pooling Agreement.

 

“ Series 2002-1 Early Amortization Event ”: as defined in Annex X to the Pooling Agreement.

 

“ Series 2002-1 Invested Amount ”:  as defined in Annex X to the Pooling Agreement.

 

“ Series 2002-1 Supplement ”: the Fourth Amended and Restated Series 2002-1 Supplement to the Pooling Agreement, dated as of February 15, 2008, among the Borrower, Bunge Funding, Bunge Management Services, Inc., as Servicer and The Bank of New York, as Trustee, as the same may be amended, supplemented or otherwise modified from time to time.

 

“ Series 2002-1 VFC ”:  the interest in the Master Trust created and authorized pursuant to the Series 2002-1 Supplement and the Pooling Agreement that is designated as the “Series 2002-1 VFC Certificate” pursuant to the Series 2002-1 Supplement.

 

“ Servicer ”:  Bunge Management Services, Inc., a Delaware corporation, and any “Successor Servicer” (as defined in Annex X to the Pooling Agreement).

 

“ Servicing Agreement ”: the Third Amended and Restated Servicing Agreement, dated as of December 23, 2003, among Bunge Funding, the Servicer, and The Bank of New York, as Trustee, as the same may be amended, supplemented or otherwise modified from time to time. 2

 

“ Single Employer Plan ”:  a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any of its ERISA Affiliates and no Person other than the Borrower and its ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any of its ERISA Affiliates could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

 

“ Solvent ”:  with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

16

 

“ Statutory Reserve Rate ”:  a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board).  Such reserve percentages shall include those imposed pursuant to such Regulation D.  Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

“ Sterling ”:  the lawful currency of the United Kingdom of Great Britain and Northern Ireland.

 

“ Subsidiary ”:  as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned directly or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.

 

“ Syndication Agent ”:  as defined in the preamble hereto.

 

“ Termination Date ”:  June 2, 2010.

 

“ Total Commitments ”:  at any time, the aggregate amount in the Base Currency of all Lenders’ Commitments then in effect.

 

“ Total Loans ”:  at any time, the aggregate principal amount of the Loans of the Lenders outstanding at such time (after converting the outstanding principal amount of any Loans denominated in the Optional Currency into the Dollar Equivalent thereof at such time).

 

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

 

“ Transferee ”:  any Assignee or Participant.

 

“ Trustee ”:  as defined in Annex X to the Pooling Agreement.

 

“ Type ”:  as to any Loan, its nature as an ABR Loan or a Eurocurrency Loan.

 

“ United States ”:  the United States of America.

 

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“ Voting Stock ”: with respect to any Person as of any date, 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.

 

“ Withdrawal Liability ”:  liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.

 

“ Yen ”:  the lawful currency of Japan.

 

1.2           Other Definitional Provisions .  (a)    Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

 

(b)  As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, and (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any restrictions on such amendments, supplements, restatements or modifications set forth herein).

 

(c)  The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(d)  The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

(e)  For purposes of calculating the Dollar Equivalent of (i) any Loan or Borrowing denominated in the Optional Currency outstanding at any time during any period, (ii) any Loan denominated in the Optional Currency at the time of the making of such Loan pursuant to Section 2.1 and (iii) any other amount denominated in a Master Trust Approved Currency, the Administrative Agent will at least once during each calendar month and on or prior to the date of any borrowing and the last day of any Interest Period and at such other times as it in its sole discretion decides to do so or as otherwise directed by the Required Lenders, determine the respective rate of exchange

 

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into Dollars of the Optional Currency or such other Master Trust Approved Currency (which rate of exchange shall be based upon the Rate of Exchange in effect on the date of such determination).  Such rate of exchange so determined on each such determination date shall, for purposes of the calculations described in the preceding sentence, be deemed to remain unchanged and in effect until the next such determination date.

 

(f)  Notwithstanding any other provision contained herein or in the other Loan Documents, all terms of an accounting or financial nature used herein and in the other Loan Documents shall be construed, and all computations of amounts and ratios referred to herein and in the other Loan Documents shall be made, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower, the Guarantor or any of their Subsidiaries at “fair value”, as defined therein.

 

SECTION 2.   AMOUNT AND TERMS OF COMMITMENTS

 

2.1           Commitments .

 

(a)  Subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans in either the Base Currency or, solely with respect to Eurocurrency Loans, the Optional Currency to the Borrower from time to time during the Commitment Period in an aggregate Dollar Equivalent principal amount at any one time outstanding which does not exceed the amount of such Lender’s Commitment.  The Borrower shall not request and no Lender shall be required to make any Loan if, after making such Loan, the Total Loans would exceed the Total Commitments then in effect.  During the Commitment Period the Borrower may use the Commitments by borrowing, prepaying the Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof.  Subject to Section 2.10, each Loan shall be either an ABR Loan or a Eurocurrency Loan, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.6.  The Borrower shall repay all outstanding Loans not later than the Termination Date.

 

(b)  (i)     Notwithstanding anything to the contrary contained in this Agreement, the Borrower may request from time to time that the aggregate Commitments hereunder be increased by an amount not to exceed $2,500,000.  The Borrower may (I) request one or more of the Lenders to increase the amount of its Commitment (which request shall be in writing and sent to the Administrative Agent to forward to such Lender or Lenders) and/or (II) arrange for one or more banks or financial institutions not a party hereto (an “ Other Lender ”) to become parties to and Lenders under this Agreement, provided that the identification and arrangement of each Other Lender to become a party hereto and a Lender under this Agreement shall be made in consultation with the Administrative Agent.  In no event may any Lender’s Commitment be increased without the prior written consent of such Lender, and the failure of any Lender to respond to the Borrower’s request for an increase shall be deemed a rejection by such Lender of the Borrower’s request.  The aggregate Commitments of all Lenders hereunder may not be increased if, at the time of any proposed increase hereunder, a Default or Event of

 

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Default has occurred and is continuing.  Notwithstanding anything contained in this Agreement to the contrary, no Lender shall have any obligation whatsoever to increase the amount of its Commitment, and each Lender may at its option, unconditionally and without cause, decline to increase its Commitment.

 

(ii)  If any Lender is willing, in its sole and absolute discretion, to increase the amount of its Commitment hereunder (such a Lender hereinafter referred to as an “ Increasing Lender ”), it shall enter into a written agreement to that effect with the Borrower and the Administrative Agent, substantially in the form of Exhibit F (a “ Commitment Increase Supplement ”), which agreement shall specify, among other things, the amount of the increased Commitment of such Increasing Lender.  Upon the effectiveness of such Increasing Lender’s increase in Commitment, Schedule 1.1 shall, without further action, be deemed to have been amended appropriately to reflect the increased Commitment of such Increasing Lender.  Any Other Lender which is willing to become a party hereto and a Lender hereunder (and which arrangement to become a party hereto and a Lender hereunder has been consulted by the Borrower with the Administrative Agent) shall enter into a written agreement with the Borrower and the Administrative Agent, substantially in the form of Exhibit G (an “ Additional Lender Supplement ”), which agreement shall specify, among other things, its Commitment hereunder.  When such Other Lender becomes a Lender hereunder as set forth in the Additional Lender Supplement, Schedule 1.1 shall, without further action, be deemed to have been amended as appropriate to reflect the Commitment of such Other Lender.  Upon the execution by the Administrative Agent, the Borrower and such Other Lender of such Additional Lender Supplement, such Other Lender shall become and be deemed a party hereto and a “Lender” hereunder for all purposes hereof and shall enjoy all rights and assume all obligations on the part of the Lenders set forth in this Agreement, and its Commitment shall be the amount specified in its Additional Lender Supplement.  Each Other Lender which executes and delivers an Additional Lender Supplement and becomes a party hereto and a “Lender” hereunder pursuant to such Additional Lender Supplement is hereinafter referred to as an “ Additional Lender .”

 

(iii)  In no event shall an increase in a Lender’s Commitment or the Commitment of an Other Lender become effective until the Administrative Agent shall have received favorable written opinions of counsel for each of the Borrower and the Guarantor, addressed to the Lenders, substantially in the form of Exhibit D-1 and Exhibit D-2, as they relate to this Agreement and the borrowings hereunder after giving effect to the increase in the aggregate Commitments hereunder resulting from the increase in such Lender’s Commitment or the extension of a Commitment by such Other Lender.  In no event shall an increase in a Lender’s Commitment or the Commitment of an Other Lender become effective until the Administrative Agent shall have received an acknowledgement and consent from the Guarantor that the Guaranty Agreement remains valid and enforceable.  In no event shall an increase in a Lender’s Commitment or the Commitment of an Other Lender which results in the aggregate Commitments of all Lenders hereunder exceeding the amount which is authorized at such time in

 

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resolutions previously delivered to the Administrative Agent become effective until the Administrative Agent shall have received a copy of the resolutions, in form and substance satisfactory to the Administrative Agent, of the Board of Directors of the Guarantor authorizing the borrowings by the Borrower contemplated pursuant to such increase, certified by the Secretary or an Assistant Secretary of the Guarantor.  Upon the effectiveness of the increase in a Lender’s Commitment or the Commitment of an Other Lender pursuant to the preceding sentence and execution by an Increasing Lender of a Commitment Increase Supplement or by an Additional Lender of an Additional Lender Supplement, the Borrower shall make such borrowing from such Increasing Lender or Additional Lender, and/or shall make such prepayment of outstanding Loans, as shall be required to cause the aggregate outstanding Dollar Equivalent principal amount of Loans owing to each Lender (including each such Increasing Lender and Additional Lender) to be proportional to such Lender’s share of the aggregate Commitments hereunder after giving effect to any increase thereof.  The Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss or expense incurred as a result of any such prepayment in accordance with Section 2.14, as applicable.

 

(iv)  No Other Lender may become an Additional Lender unless an Additional Lender Supplement (or counterparts thereof) has been signed by such bank or financial institution and which Additional Lender Supplement has been agreed to and acknowledged by the Borrower and acknowledged by the Administrative Agent.  No consent of any Lender or acknowledgment of any of the other Lenders hereunder shall be required therefor.  In no event shall the Commitment of any Lender be increased by reason of any bank or financial institution becoming an Additional Lender, or otherwise, but the aggregate Commitments hereunder shall be increased by the amount of each Additional Lender’s Commitment.  Upon any Lender entering into a Commitment Increase Supplement or any Additional Lender becoming a party hereto, the Administrative Agent shall notify each other Lender thereof and shall deliver to each Lender a copy of the Additional Lender Supplement executed by such Additional Lender and agreed to and acknowledged by the Borrower and acknowledged by the Administrative Agent, and the Commitment Increase Supplement executed by such Increasing Lender and agreed to and acknowledged by the Borrower and acknowledged by the Administrative Agent.

 

2.2           Procedure for Loan Borrowing .  The Borrower may borrow under the Commitments during the Commitment Period on any Business Day, provided that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by (a) the Administrative Agent prior to 10:00 A.M., New York City time, three (3) Business Days prior to the requested Borrowing Date, in the case of Eurocurrency Loans denominated in the Base Currency, (b) the Administrative Agent (London Office) prior to 10:00 A.M., London time, four (4) Business Days prior to the requested Borrowing Date, in the case of Eurocurrency Loans denominated in the Optional Currency, or (c) the Administrative Agent prior to 10:00 A.M., New York City time, on the requested Borrowing Date, in the case of ABR Loans), specifying (i) the amount and Type of Loans to be borrowed, (ii) whether such Loans are to be denominated in the

 

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Base Currency or in the Optional Currency, (iii) the requested Borrowing Date and (iv) in the case of Eurocurrency Loans, the length of the initial Interest Period therefor.  Each borrowing under the Commitments shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Commitments are less than $1,000,000, such lesser amount), (y) in the case of Eurocurrency Loans denominated in the Base Currency, $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (z) in the case of Eurocurrency Loans denominated in the Optional Currency, EUR 5,000,000 or a whole multiple of EUR 1,000,000 in excess thereof.  Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Lender thereof.  Each Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 2:00 P.M., New York City time (the “ Borrowing Time ”), on the Borrowing Date requested by the Borrower, in each case in funds immediately available in Euros or Dollars, as the case may be, to the Administrative Agent.  Such borrowing will then be made available at 2:00 P.M., New York City time on the Borrowing Date to the Borrower by the Administrative Agent crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent.  Should any such borrowing notice from the Borrower indicate an account on the books of another bank or financial institution, the Administrative Agent shall transfer the amounts described in such borrowing notice to such account within a reasonable period of time.

 

2.3           Commitment Fees, etc .  (a)   The Borrower agrees to pay to the Administrative Agent for the account of each Lender (other than a Defaulting Lender that is not a Performing Lender) a commitment fee in Dollars for the period from and including the date hereof to the last day of the Commitment Period, computed at a rate per annum equal to for each day during such period the Commitment Fee Rate on such day, on the amount of the Available Commitment of such Lender on such day, payable quarterly in arrears on the last day of each March, June, September and December and on the Termination Date, commencing on the first of such dates to occur after the date hereof.

 

(b)  The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates previously agreed to in writing by the Borrower and the Administrative Agent.

 

2.4           Termination or Reduction of Commitments .  The Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount of the Commitments; provided that no such termination or reduction of Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Loans made on the effective date thereof, the Total Loans would exceed the Total Commitments.  Any such reduction shall be in an amount equal to $1,000,000 or a whole multiple thereof, and shall reduce permanently the Commitments then in effect.

 

2.5           Prepayments .  (a)   The Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no later than (i) 10:00 A.M., New York City time, three (3) Business Days prior thereto, in the case of Eurocurrency Loans denominated in the Base

 

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Currency, (ii) 10:00 A.M., New York City time, four (4) Business Days prior thereto, in the case of Eurocurrency Loans denominated in the Optional Currency and (iii) 10:00 A.M., New York City time, on the date thereof, in the case of ABR Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans denominated in the Base Currency or Optional Currency or ABR Loans; provided, that if a Eurocurrency Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.14.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.  If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid.  Partial prepayments of Loans shall be in an aggregate principal amount of $1,000,000 (with respect to ABR Loans and Eurocurrency Loans denominated in the Base Currency) or EUR 1,000,000 (with respect to Eurocurrency Loans denominated in the Optional Currency) or a whole multiple thereof.

 

(b)  If, on any day, the sum of the aggregate outstanding principal amount of the Loans hereunder and Pari Passu Indebtedness (after converting all such amounts into the then Dollar Equivalent thereof) exceeds the then current Series 2002-1 Invested Amount outstanding under the Series 2002-1 VFC (after giving effect to any increases or decreases therein on such day), the Borrower shall prepay Loans and/or Pari Passu Indebtedness in an amount sufficient to comply with Section 5.2(a).  Any such prepayment of Loans pursuant to this Section 2.5(b) shall be made together with accrued interest to the date of such prepayment on the amount prepaid and the Borrower shall also pay any amounts owing pursuant to Section 2.14.

 

(c)  If, on any date, the Total Loans outstanding on such date exceed the Total Commitments in effect on such date, the Borrower immediately shall prepay the Loans in the amount of such excess.  Any such prepayment of Loans pursuant to this Section 2.5(c) shall be made together with accrued interest to the date of such prepayment on the amount prepaid and the Borrower shall also pay any amounts owing pursuant to Section 2.14.

 

2.6           Conversion and Continuation Options .  (a)   The Borrower may elect from time to time to convert Eurocurrency Loans denominated in the Base Currency to ABR Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 10:00 A.M., New York City time, on the Business Day preceding the proposed conversion date, provided that any such conversion of Eurocurrency Loans may only be made on the last day of an Interest Period with respect thereto.  The Borrower may elect from time to time to convert ABR Loans to Eurocurrency Loans denominated in the Base Currency by giving the Administrative Agent prior irrevocable notice of such election no later than 10:00 A.M., New York City time, on the fourth (4th) Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor), provided that no ABR Loan may be converted into a Eurocurrency Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Required Lenders have determined in its or their sole discretion not to permit such conversions.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

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(b)  Any Eurocurrency Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans, provided that no Eurocurrency Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations, and provided , further , that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso, any such Eurocurrency Loans denominated in the Base Currency shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period, and any such Eurocurrency Loans denominated in the Optional Currency shall as of the last day of such then expiring Interest Period bear interest at such rate as the Administrative Agent determines adequately reflects the costs (including a comparable margin to that set forth herein) to the Lenders of maintaining such Loans.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

2.7           Limitations on Eurocurrency Borrowings .  Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of Eurocurrency Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, (a) the aggregate principal amount of the Eurocurrency Loans denominated in the Base Currency comprising each Eurocurrency Borrowing in the Base Currency shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof, (b) the aggregate principal amount of the Eurocurrency Loans denominated in the Optional Currency comprising each Eurocurrency Borrowing in the Optional Currency shall be equal to EUR 5,000,000 or a whole multiple of EUR 1,000,000 in excess thereof, and (c) no more than fifteen (15) Eurocurrency Borrowings shall be outstanding at any one time.

 

2.8           Interest Rates and Payment Dates .  (a)   Each Eurocurrency Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to (i) the Adjusted LIBO Rate determined for such day plus (ii) the Applicable Margin plus (iii) in the case of a Eurocurrency Loan of any Lender which is made from a lending office in the United Kingdom or in a Participating Member State, the Mandatory Cost, if any.

 

(b)  Each ABR Loan shall bear interest at a rate per annum equal to (i) the ABR plus (ii) the Applicable Margin minus (iii) one percent (1%).

 

(c)  During the continuance of an Event of Default all outstanding Loans (whether or not overdue) shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section  plus 2%.  If all or a portion of any interest payable on any Loan or any commitment fee or other amount payable hereunder (other than any amount to which the preceding sentence is applicable) shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to ABR Loans plus 2% from the date of such non-payment until such amount is paid in full (as well after as before judgment).

 

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(d)  Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on demand.

 

2.9           Computation of Interest and Fees .  (a)   Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed.  The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of an Adjusted LIBO Rate.  Any change in the interest rate on a Loan resulting from a change in the ABR or the Statutory Reserve Rate shall become effective as of the opening of business on the day on which such change becomes effective.  The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

 

(b)  Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error.  The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Sections 2.8(a) and (b).

 

2.10         Inability to Determine Interest Rate .  If prior to the first day of any Interest Period for a Eurocurrency Borrowing denominated in any currency:

 

(a)   the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period, or

 

(b)   the Administrative Agent shall have received notice from the Required Lenders that the Adjusted LIBO Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,

 

the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter.  If such notice is given (x) any Eurocurrency Loans requested to be made on the first day of such Interest Period shall be made as ABR Loans (if such Borrowing is requested to be made in the Base Currency) or shall be made as a Eurocurrency Loan bearing interest at such rate as the Administrative Agent determines adequately reflects the costs to the Lenders of making or maintaining such Borrowing (if such Borrowing is requested to be made in the Optional Currency), (y) any Loans that were to have been converted on the first day of such Interest Period to Eurocurrency Loans shall be continued as ABR Loans (if such Loans are denominated in the Base Currency) or as Loans bearing interest at such rate as the Administrative Agent determines adequately reflects the costs to the Lenders

 

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of making or maintaining such Loans (if such Loans are denominated in the Optional Currency) and (z) any outstanding Eurocurrency Loans shall be converted, on the last day of the then-current Interest Period, to ABR Loans (if such Loans are denominated in the Base Currency) or as Loans bearing interest at such rate as the Administrative Agent determines adequately reflects the costs to the Lenders of making or maintaining such Loans (if such Loans are denominated in the Optional Currency).  Until such notice has been withdrawn by the Administrative Agent, no further Eurocurrency Loans shall be made or continued as such, nor shall the Borrower have the right to convert Loans to Eurocurrency Loans.

 

2.11         Pro Rata Treatment and Payments .  (a)   Each borrowing by the Borrower from the Lenders hereunder shall be made pro rata according to the respective Commitments of the Lenders.  Any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Commitments of the Lenders.  Each payment by the Borrower on account of any commitment fee with respect to any period shall be made pro rata according to the respective average daily Available Commitments of the Lenders for such period; provided, that the Borrower shall not be obligated to pay any commitment fee owed to a Lender with respect to any period during which such Lender became a Defaulting Lender and such Defaulting Lender’s Available Commitment shall not be included in the calculation of the commitment fees owed to the Lenders that are not Defaulting Lenders during such period, unless in either case such Lender remains a Performing Lender during such period.

 

(b)  Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Loans shall be made pro rata according to the then Dollar Equivalent of the respective outstanding principal amounts of the Loans then held by the Lenders.

 

(c)  All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in immediately available funds.  Payments and prepayments of principal of and interest on Loans denominated in the Optional Currency shall be made in the Optional Currency; payments and prepayments of all other amounts hereunder shall be made in the Base Currency.  The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received.  If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day.  If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.  In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

 

(d)  Unless the Administrative Agent shall have been notified in writing by any Lender prior to the Borrowing Time on a Borrowing Date that such Lender will not make

 

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the amount that would constitute its share of such borrowing on such date available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Borrowing Date, and the Administrative Agent may, but shall not be so required to, in reliance upon such assumption, make available to the Borrower a corresponding amount.  If such amount is not made available to the Administrative Agent by the required time on such Borrowing Date, and if the Administrative Agent makes such corresponding amount available to the Borrower, then such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent.  A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error.  If the Administrative Agent makes such Lender’s share of such borrowing available to the Borrower, and if such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.  The failure of any Lender to make any Loan on any Borrowing Date shall not relieve any other Lender of its obligation hereunder to make a Loan on such Borrowing Date pursuant to the provisions contained herein, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on any Borrowing Date.

 

(e)  Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount.  If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate.  Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

 

2.12         Requirements of Law .  (a)   If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:

 

(i)  shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, or any Eurocurrency Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes

 

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covered by Section 2.13 and changes in the rate of tax on the overall net income of such Lender);

 

(ii)  shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Adjusted LIBO Rate; or

 

(iii)  shall impose on such Lender any other condition;

 

and the result of any of the foregoing is to increase the cost to such Lender, by an amount that such Lender deems to be material, of making, converting into, continuing or maintaining any Eurocurrency Loans or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable.  If any Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.

 

(b)  If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction; provi