EXECUTION COPY
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$850,000,000
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
among
BUNGE LIMITED FINANCE CORP.,
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
CITIBANK, N.A.,
as Syndication Agent,
BNP PARIBAS,
as Documentation Agent,
CREDIT SUISSE,
as Documentation Agent,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW YORK BRANCH,
as Documentation Agent,
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent,
Dated as of November 15, 2005
================================================================================
J.P. Morgan
Securities Inc. and Citigroup Global Markets Inc., as Lead
Arrangers and Joint Bookrunners
<PAGE>
TABLE OF CONTENTS
-----------------
Page
SECTION 1.
DEFINITIONS..................................................1
1.1
Defined Terms.................................................1
1.2
Other Definitional Provisions................................16
SECTION 2.
AMOUNT AND TERMS OF COMMITMENTS.............................17
2.1
Commitments..................................................17
2.2
Procedure for Loan Borrowing.................................19
2.3
Commitment Fees, etc.........................................20
2.4
Termination or Reduction of Commitments......................20
2.5
Prepayments..................................................20
2.6
Conversion and Continuation Options..........................21
2.7
Limitations on Eurocurrency Borrowings.......................22
2.8
Interest Rates and Payment Dates.............................22
2.9
Computation of Interest and Fees.............................22
2.10
Inability to Determine Interest Rate.........................23
2.11 Pro
Rata Treatment and Payments..............................24
2.12
Requirements of Law..........................................25
2.13
Taxes26
2.14
Indemnity....................................................28
2.15
Change of Lending Office.....................................28
2.16
Illegality...................................................28
2.17
Replacement of Lenders.......................................29
2.18
Judgment Currency............................................29
SECTION 3.
REPRESENTATIONS AND WARRANTIES..............................30
3.1
No Change....................................................30
3.2
Existence; Compliance with Law...............................30
3.3
Power; Authorization; Enforceable Obligations................30
3.4
No Legal Bar.................................................30
3.5
Litigation...................................................31
3.6 No
Default...................................................31
3.7
Ownership of Property; Liens.................................31
3.8
Taxes31
3.9
Federal Regulations..........................................31
3.10
Investment Company Act; Other Regulations....................31
3.11 No
Subsidiaries..............................................31
3.12 Use
of Proceeds..............................................31
3.13
Solvency.....................................................31
3.14
Limited Purpose..............................................31
SECTION 4.
CONDITIONS PRECEDENT........................................32
i
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Page
4.1
Conditions to Effectiveness..................................32
4.2
Conditions to Each Loan......................................33
SECTION 5.
COVENANTS...................................................34
5.1
Affirmative Covenants........................................34
5.2
Negative Covenants...........................................36
SECTION 6.
EVENTS OF DEFAULT...........................................38
SECTION 7.
THE AGENTS..................................................41
7.1
Appointment..................................................41
7.2 Delegation of
Duties.........................................42
7.3
Exculpatory Provisions.......................................42
7.4
Reliance by Administrative Agent.............................42
7.5
Notice of Default............................................43
7.6
Non-Reliance on Agents and Other Lenders.....................43
7.7
Indemnification..............................................43
7.8
Agent in Its Individual Capacity.............................44
7.9
Successor Administrative Agent...............................44
7.10
Syndication Agent and Documentation Agents...................44
7.11 Agent
Communications.........................................44
SECTION 8.
MISCELLANEOUS...............................................45
8.1
Amendments and Waivers.......................................45
8.2
Notices......................................................45
8.3
No Waiver; Cumulative Remedies...............................47
8.4
Survival of Representations and Warranties...................47
8.5
Payment of Expenses and Taxes................................47
8.6
Successors and Assigns; Participations and Assignments.......48
8.7
Adjustments; Set-off.........................................50
8.8
Counterparts.................................................51
8.9
Severability.................................................51
8.10
Integration..................................................51
8.11
Governing Law................................................51
8.12
Submission To Jurisdiction; Waivers..........................51
8.13
Acknowledgements.............................................52
8.14
Confidentiality..............................................52
8.15
WAIVERS OF JURY TRIAL........................................53
8.16 No
Bankruptcy Petition Against the Borrower;
Liability of the Borrower....................................53
8.17
Conversion of Approved Currencies into Dollars...............53
8.18
U.S.A. Patriot Act...........................................53
ii
<PAGE>
Page
SCHEDULES:
1.1
Commitments
1.1A Mandatory Cost
Formula
3.3 Consents,
Authorizations, Filings and Notices
EXHIBITS:
A
Form of Guaranty Agreement
B
Form of Closing Certificate
C
Form of Assignment and Acceptance
D-1 Form of
Legal Opinion of Winston & Strawn 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
iii
<PAGE>
THIRD AMENDED AND RESTATED 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 November 15,
2005, 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, as a documentation
agent, CREDIT SUISSE ("Credit Suisse"), as
a documentation agent, COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL," NEW YORK
BRANCH ("Rabobank") as a documentation
agent (together, BNP Paribas, Credit
Suisse and Rabobank are referred to herein
as the "Documentation Agents") and
JPMORGAN CHASE BANK, N.A. as administrative
agent. This Agreement amends and
restates that certain Second Amended and
Restated Revolving Credit Agreement,
dated as of June 28, 2004, among the
Borrower, the Lenders, the Syndication
Agents and the 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 Base CD Rate
in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. 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); "Base CD Rate" shall mean
the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and
the denominator of which is one
minus the CD Reserve Percentage and (b) the
CD Assessment Rate; and "Three-Month
Secondary CD Rate" shall mean, for any day,
the secondary market rate for
three-month certificates of deposit
reported as being in effect on such day (or,
if such day shall not be a Business Day,
the next preceding Business Day) by the
Board through the public information
telephone line of the Federal Reserve Bank
of New York (which rate will, under the
current practices of the Board, be
published in Federal Reserve Statistical
Release H.15(519) during the week
following such day), or, if such rate shall
not be so reported on such day or
such next preceding Business Day, the
average of the secondary market quotations
for three-month certificates of deposit of
major money center banks in New York
City received at approximately 10:00 A.M.,
New York City time, on such day (or,
if such day shall not be a Business Day, on
the next preceding Business Day) by
JPMorgan Chase Bank, N.A. from three New
York City negotiable certificate of
deposit dealers of recognized standing
selected by it. Any change in the ABR due
to a change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal
Funds Effective Rate shall be effective as
of the opening of business on the
effective day of such change in the Prime
Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate,
respectively.
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2
"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" means, with respect to any Eurocurrency
Loan for each day during each Interest
Period, an interest rate per annum
(rounded upwards, if necessary, to the next
1/16 of 1%) 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 Agents 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 rate per annum set forth under the
relevant column on the Pricing Grid.
"Assignee": as defined
in Section 8.6(c).
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3
"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).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any
successor).
"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.
"Borrowing" means 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.
"Bunge Funding": Bunge Funding, Inc., a Delaware corporation,
and its successors and permitted
assigns.
"Bunge Master Trust": the trust created pursuant to the
Pooling Agreement.
"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
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4
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": any and all shares, interests, participations
or other equivalents (however designated)
of capital stock of a corporation, any
and all equivalent ownership interests in a
Person (other than a corporation)
and any and all warrants, rights or options
to purchase any of the foregoing.
"CD Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on
such day that is payable by a member of
the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation
(the "FDIC") classified as well-capitalized
and within supervisory subgroup "B"
(or a comparable successor assessment risk
classification) within the meaning of
12 C.F.R. ss. 327.4 (or any successor
provision) to the FDIC (or any successor)
for the FDIC's (or such successor's)
insuring time deposits at offices of such
institution in the United States.
"CD Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a
decimal) which is in effect on such day,
as prescribed by the Board, for determining
the maximum reserve requirement for
a Depositary Institution (as defined in
Regulation D of the Board as in effect
from time to time) in respect of new
non-personal time deposits in Dollars
having a maturity of 30 days or more.
"Change in Control": for any Person (i) at any time during any
twelve (12) consecutive calendar months,
more than fifty percent (50%) of the
members of the Board of Directors of such
Person who were members on the first
day of such period shall have resigned or
been removed or replaced, other than
as a result of death, disability or change
in personal circumstances, or (ii)
any other Person or "Group" (defined in
Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, but
excluding (A) any employee benefit or
stock ownership plans of such Person, and
(B) members of the Board of Directors
and executive officers of such Person as of
the Closing Date, members of the
immediate families of such members and
executive officers, and family trusts and
partnerships established by or for the
benefit of any of the foregoing
individuals) shall have acquired more than
fifty percent (50%) of the combined
voting power of all classes of common stock
of such Person, except that such
Person's purchase of its common stock
outstanding on the date of this Agreement
which results in one or more of such
Person's shareholders of record as of such
date controlling more than fifty percent
(50%) of the combined voting power of
all classes of the common stock of such
Person, shall not constitute an
acquisition hereunder.
"Closing Date": the date on which the conditions precedent set
forth in Section 4.1 shall have been
satisfied, which date is November 15, 2005.
"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.
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5
"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
$850,000,000.
"Commitment Fee Rate": the rate per annum set forth under the
relevant column on the Pricing Grid.
"Commitment Increase Supplement": as defined in Section
2.1(b)(ii).
"Commitment Period": the period from and including the Closing
Date to the Termination Date.
"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 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.
"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.
"Delinquent Loan": any Purchased Loan (i) 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 one (1) day but not
greater than seven (7) days or (ii) as to
which an Insolvency Event has occurred with
respect to the related Obligor.
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6
"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.
"Dollar Equivalent" means, 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) the application for
a minimum funding waiver with respect
to a 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 ERISA Affiliate in the
circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the
Borrower or any ERISA Affiliate from
a Multiple Employer Plan during a plan year
for which it was a substantial
employer, as defined in Section 4001(a)(2)
of
<PAGE>
7
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; or (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.
"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.
"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.
"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
<PAGE>
8
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
guaranteeing person's maximum reasonably
anticipated liability in respect thereof as
determined by the Borrower in good
faith.
"Guarantor": Bunge Limited, a company organized under the laws
of Bermuda, as guarantor pursuant to the
Guaranty Agreement.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing
with interest rates or currency
exchange rates or the exchange of nominal
interest obligations, either generally
or under specific contingencies.
"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 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, (h) all net
obligations of such Person in respect
of
<PAGE>
9
equity derivatives and Hedge Agreements and
(i) 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 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 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.
<PAGE>
10
"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" and "Level IV": 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+ or lower
Ba1 or lower
provided that if on any day the Ratings of
the Rating Agencies do not coincide
for any rating category and the Level
differential is (x) one level, then the
higher 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, 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 by reference to the British
Bankers' Association Interest
Settlement Rates for deposits in the Base
Currency (as reflected on the
applicable Telerate 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 Page
248 of the Telerate Service (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., London 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.
<PAGE>
11
"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.
"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 ERISA Affiliate and at
least one Person other than the Borrower
and the ERISA Affiliates or (b) was so
maintained and in respect of which the
Borrower or any ERISA Affiliate 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).
<PAGE>
12
"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, 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 increase the
Series 2002-1 Invested Amount and/or to
refinance Indebtedness originally used
for such purpose, 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.
<PAGE>
13
"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.
"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.
"Pricing Grid": the
table set forth below.
<TABLE>
<CAPTION>
======================================================================================================
Applicable Margin for
Applicable Margin
Commitment
Rating
Eurocurrency Loans
for ABR Loans
Fee Rate
------------------------------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
------------------------------------------------------------------------------------------------------
Level I
0.625%
0.00%
0.125%
------------------------------------------------------------------------------------------------------
Level II
0.75%
0.00%
0.15%
------------------------------------------------------------------------------------------------------
Level III
0.875%
0.00%
0.20%
------------------------------------------------------------------------------------------------------
Level IV
1.25%
0.375%
0.25%
======================================================================================================
</TABLE>
"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 Telerate 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.
"Rating Agencies":
collectively, S&P and Moody's.
"Ratings": the ratings of the Rating Agencies applicable to
the long-term, non-credit enhanced senior
unsecured debt of the Guarantor, as
announced by the Rating Agencies.
"Register": as defined
in Section 8.6(d).
"Regulation U": Regulation U of the Board as in effect from
time to time.
<PAGE>
14
"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 division of
The
McGraw-Hill Companies, Inc., 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.
"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 Third Amended and Restated
Series 2002-1 Supplement to the Pooling
Agreement, dated as of August 31, 2005,
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 Bunge 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.
<PAGE>
15
"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.
"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 ERISA Affiliate and no
Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained
and in respect of which the Borrower
or any ERISA Affiliate 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.
"Statutory Reserve Rate" means 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 (in addition
to the Euro).
"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, or the
<PAGE>
16
management of which is otherwise
controlled, 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 29, 2009.
"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.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurocurrency Loan.
"United States": the United States of America.
"Withdrawal Liability": as defined in Part I of Subtitle E of
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.
<PAGE>
17
(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,
determine the respective rate of
exchange 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.
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 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
$250,000,000. 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
<PAGE>
18
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 Default has occurred and
is
continuing. Upon any request by the Borrower to increase the
aggregate
Commitments hereunder, the Borrower shall be deemed to have
represented
and warranted on and as of the date of such request that no Default
or
Event of 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 a favorable written
opinion of
counsel for each of the Borrower and the Guarantor, addressed to
the
Lenders, with respect to the matters set forth in paragraphs 2, 6,
7
and 8 of Exhibit D-1 and paragraphs 2, 3 and 4 of 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
<PAGE>
19
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 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
<PAGE>
20
amount and Type of Loans to be borrowed,
(ii) whether such Loans are to be
denominated in the 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, 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 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 the weighted average
Commitment Fee Rate during the period for
which payment is being made, on the
average daily amount of the Available
Commitment of such Lender during the
period for which payment is made, 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
<PAGE>
21
(3) Business Days prior thereto, in the
case of Eurocurrency Loans denominated
in the Base 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).
(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.
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.
(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
<PAGE>
22
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 the ABR plus the Applicable
Margin.
(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).
(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
<PAGE>
23
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 Section
2.8(a).
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
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.
<PAGE>
24
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.
(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 a
Borrowing Date that such Lender will not
make 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
<PAGE>
25
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 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
<PAGE>
26
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;
provided that the Borrower shall not be
required to compensate a Lender pursuant
to this paragraph for any amou
